Friday, February 29, 2008

The Lesson

Christians assume that I am mad at God, and this explains my atheism. This simply isn't true. I honestly do not believe that God exists. I can't hate what does not exist.

There was a time when I was very angry at God. I hated him. I hated him because he let my roommate kill himself. We were both seminarians, and I discovered after his death that my roomie was a closeted homosexual. I remember this Bible verse from Isaiah 42:3 echoing in my brain:

A bruised reed he will not break, and a smouldering wick he will not snuff out.

My roommate was the smoldering wick. God had failed him. I would spend the next five years trying to understand that tragedy. I found that understanding in the Kershaw County Library while reading a National Geographic and looking at pelvic bones in whales. It struck me that evolution was a fact, and I had spent 30 years of my life believing a lie.

My roommate killed himself because he hated what he was. He hated something he could not change. And if I could go back in time, the saving knowledge I would give him would be that there was no God. Fuck Christ in his crucified ass.

I found peace with God when I found that there was no God. That was the lesson I learned. It was tough to accept and embrace that truth. It meant accepting that there was no afterlife. There was no one up there watching out for me. I was alone in an indifferent universe. But I had the courage to accept those things, and I am better for it.

(SORRY! The rest of this post has been deleted. Greta and I have settled our differences and apologized to one another. I wish her nothing but the best in her life. All is forgiven.)

Thursday, February 28, 2008

The Private Journal of Mr. C.

Shrinks and therapy are a waste of money. I don't mean to imply that therapy is not beneficial. Talking about your problems certainly helps. But as studies indicate, talking to a mental health professional is about as beneficial as talking to a friend or your local bartender except that it costs way more.

I remember watching a story of survivors of 9/11 and how they coped by drawing pictures or writing in journals about the trauma they had undergone. The practice helped them to overcome their distress much more quickly and easily than those who did not do the same thing.

I learned a long time ago the value of writing it all out. The problem is that this blog seems to be my number one outlet for venting my emotions and frustrations. I'm not sure this is a good thing anymore. I live a very open life, but I don't put it all here out of respect for certain people including myself. Consequently, I am inhibited and not able to really spill my guts.

I am keeping a journal now. No one will get to read it unless I am dead or the shit gets stolen or taken as evidence for court. I need something that will give me a place to dump all this baggage I carry around. A $1 notebook from Wal-Mart is the best thing for this.

The blog may become less personal as a result of this project. I realize a lot of people enjoy reading about the trainwreck that is my life, and I'll be sure to post the highlights as the shit hits. But the day-to-day bitchiness on my part is being put somewhere else. I doubt it will be missed.

New Sports Illustrated Piece on Roger Clemens and his Legal Strategy

I have a new piece tonight on Roger Clemens. It examines how the House Oversight Committee regarded Clemens' legal strategy for the proceedings. Hope you have a chance to read it.

Baseball and Union Ask Supreme Court to Review Eighth Circuit's Fantasy League Ruling

Eric Fisher of Street & Smith's SportsBusiness Daily reported today that MLBAM and the MLBPA have filed a petition for a writ of certiorari to the U.S. Supreme Court, arguing that a series of prior lower court rulings involving First Amendment and right of publicity issues have created an inconsistent mess, and that "the appropriate legal test for balancing state-law publicity rights and First Amendment interest is a recurring and important question on which this Court's instruction is needed. ... The same use of a famous person's identity will be unlawful or constitutionally protected depending upon which jurisdiction first addresses that use an outcome that is fundamentally unfair, particularly to national businesses." Fisher notes that "[t]he vast majority of petitions for a writ of certiorari are denied, particularly for civil cases such as this, and MLBAM and the union are seeking to improve their chances by arguing to the broader need of a uniform standard for right of publicity disputes." As I have argued before, the Eighth Circuit's public domain standard is simply not a workable standard for determining whether the First Amendment trumps a right of publicity claim.

In my Penn State Law Review article, which can be downloaded from here, I propose that right of publicity claims can be assessed utilizing a "commercial advantage spectrum" that incorporates First Amendment considerations. At the purely "non-commercial" end of the spectrum, the primary purpose for the defendant's use of a celebrity's identity is not to gain any commercial advantage, e.g. news reporting uses, entertainment (i.e. movies, films) and literary works, which are privileged under the First Amendment based upon either the public's right to know or the public interest in free expression. At the other end, the purely "commercial end," the celebrity's identity is being used to demonstrate to consumers that the individual is associated with, or approves of, the user or the user's product or service, e.g. advertisements, endorsements and marketing efforts, which clearly violates the right of publicity.

The confusion arises with respect to those uses that fall somewhere in between the two ends of the spectrum, which can be referred to as "quasi-commercial" uses, i.e. video game use, trading card use and fantasy league use. In my article, I propose a standard that entails a two-part inquiry:
(1) Is the celebrity's name or likeness being used for a purpose other than news reporting, entertainment (i.e. movie, film), or literary?
(2) If so, is the celebrity's name or likeness the "essence" of the product or service being produced such that the product or service is dependent upon such use for its existence?
When the content for a product or service is based almost exclusively on the celebrity's name or likeness, it is unfair and not good policy to allow the producer to reap the full commercial value of the celebrity's identity. The most efficient allocation of resources is obtained in a free market by which producers of products and services compete for the right to use celebrities' identities, and the celebrities and producers are incentivized to negotiate licensing fees based upon what the market will bear for such use.

UPDATE (2/29/08): USA Today's press release on the filing of the petition for writ of cert. states: "Using First Amendment and right of publicity arguments, MLBAM and the union have argued that players should be paid when their names are used for fantasy baseball leagues, in the same way players are paid when their names are used to endorse products. But the lower courts found that fantasy leagues' broad use of statistics isn't the same as faking an endorsement from a player and not paying him." However, USA Today's statement misconstrues both MLBAM's and the union's position as well as the lower courts' determinations, and implies that the right of publicity is only violated by fake endorsements -- which is simply false. Contrary to what is stated in this press release, neither the district court nor the court of appeals ruled as such, and MLBAM and the union are not comparing fantasy league use to endorsement use. USA Today conveniently omits that the holdings of the lower courts are inconsistent with the fact that players are paid for use of their names in non-endorsement contexts as well, such as trading cards and video games.

Second Annual National Sports and Entertainment Law Symposium

I am honored to be speaking at the Second Annual National Sports and Entertainment Law Symposium, to be held at the University of Virginia School of Law next Thursday and Friday, March 6-7. The event is sponsored by the Virginia Continuing Legal Education and the Virginia Sports and Entertainment Law Journal. Other speakers include Sports Law Blog's Chris Callanan and Gary Roberts.

The event offers 9 MCLE credit hours and 2 Ethics credit hours. If you are interested in attending, click here.

Here are more details about the event:

* * *

The best national experts in the fields of sports, entertainment, music, publishing, art, and marketing converge at the University of Virginia for a multi-track program perfect for beginners and experienced lawyers and agents alike.

An expanded day-and-a-half program, following the tremendous success of the inaugural symposium, featuring:
• A faculty of more than 25 prominent national experts, agents, academicians, professionals, and celebrities from New York, Los Angeles, and around the country
• 1½ days consisting of general topics as well as breakout sessions, including: (1) the basics of sports and entertainment representation; (2) advanced issues in sports law regulation; and (3) the latest in entertainment issues, including panels on literary publishing, issues of relevance to the music industry, making a TV deal, and challenges to artists over appropriation art
• Special panels providing complete legal updates on sports and entertainment issues
• Plenary session on merchandising deals
• Breakout session on how to represent your client in the Internet/digital age
• Lunch on March 6 and a networking cocktail party, all included
• All of the above for a bargain price of only $350 because of our partnership with the University of Virginia


Simply, this is quickly becoming a must-attend gathering for aspiring to experienced lawyers and agents, as well as students and academicians who focus their attention or practice in the sports/entertainment fields. This year we combine “basic knowledge” course offerings with course offerings for more sophisticated entertainment and sports law practitioners. Virginia CLE (a non-profit) combines its significant resources with those of the prestigious University of Virginia School of Law to offer this diverse and cutting-edge program in a spectacular setting (we have the entire law school to ourselves during spring break) — for only $350. No matter your goals or your current niche in practice or academia, you will leave this symposium armed with the most current information and a new set of friends and professional contacts.



7:30 Registration Begins

7:45 Plenary Session. The Basics of Starting an Entertainment and Sports Law Practice (Optional — NO CLE CREDIT)

Entering the field of Entertainment and Sports Law can be very exciting but also very challenging for newcomers. This panel will discuss various strategies for entering into this field, as well as how to gain important knowledge and how to attract clients and build a successful practice.

Moderator: Kirk T. Schroder
Panelists: Keven J. Davis, Michael D. Steger, Stephanie Vardavas
8:45 Opening Remarks 9:00

Breakout I. The Basics: The Fundamentals of Representing and Marketing Athletes

Moderator: Pamela R. Lester
Panelists: Anthony J. Agnone, Keven J. Davis, George K.H. Schell, Stephanie Vardavas

Breakout II.
Update on Current Issues in Entertainment Law

Few experts in the field keep up with the latest trends and developments in entertainment law like Stan Soocher, Editor-in-Chief of Entertainment Law & Finance. Stan is joined by Stewart Levy, a prominent New York–based entertainment litigator for this interesting and informative panel.

Moderator: Stan Soocher
Panelist: Stewart Levy

Breakout I. The Music Industry at a Crossroads: The Topics Concerning Music Lawyers in Today’s Marketplace

What do you get when you put one of the top music lawyers from Los Angeles and one of the top music lawyers from New York together on a panel with the general counsel to the Dave Matthews Band? A rare opportunity to see music law legends get to the bottom of what the future holds for today’s music industry.

Moderator: Philip H. Goodpasture
Panelists: Jay L. Cooper, Elliot J. Groffman

Breakout II. The Art of the Television Production Deal

With the advent of reality television and more outlets to exhibit television programming, television production deals are more complicated and have more issues. This distinguished panel will discuss television production from the perspective of the producer and television network and will give entertainment lawyers important insights in the deals in today’s market.

Moderator: Bennett J. Fidlow
Panelists: Lee Bartlett, Jonathan Moonves

Breakout III. Sports: Disciplinary Rules and Procedures in Professional Sports

From off-the-field misbehavior to performance-enhancing drugs, disciplinary issues in sports have never been more at the forefront. This panel of representatives from major team and individual sports will explore the parameters of such discipline, the rationale underlying it, the legal basis supporting it, and what the future portends.

Moderator: Jill Pilgrim
Panelist: Ron Klempner

1:30 Plenary Session: Merchandising Deals — What Every Attorney Must Know

The creation of brands around celebrities associated with entertainment and sports is an important source of revenue, especially in the merchandising of such brands. This panel will discuss the basics of merchandising deals and how these deals are structured in today’s global economy. Issues regarding cross-branding, marketing, streaming media, and downloadable content also will be discussed.

Moderator: Jay L. Cooper
Panelists: Michael Krassner, Pamela R. Lester

3:15 Breakout I. The Challenges of Appropriation Art and Its Impact on the Entertainment Industry

In the visual arts, the term appropriation often refers to the use of borrowed elements in the creation of new work. When appropriation art is used in connection with the entertainment industry, it raises many gray areas in copyright law interpretation and enforcement of agreements. One of the leading lawyers in the field of the Visual Arts and former Secretary and General Counsel to the J. Paul Getty Trust, Christine Steiner of Beverly Hills will moderate a lively discussion on this hot topic. Her panel will present competing views from both the artist’s perspective and the end user’s perspective.

Moderator: Christine Steiner
Panelists: Simon Frankel, Victor Perlman

Breakout II. Sports Law Update

A concise and essential update on the latest judicial and administrative rulings during a year in which controversy surrounded nearly every sport.

Moderator: Gary R. Roberts


8:30 Breakout I. Practice Considerations for Lawyers Representing Clients in the Digital Age

This panel will apprise attorneys of the legal developments and approaches in the digital age. Topics will include the approach to negotiating agreements related to new technologies and how to properly identify and address important issues on behalf of clients.

Moderator: Bobby Rosenbloum

Breakout II: A Current View of Literary Publishing and the Relationship Among Authors, Publishers, Attorneys, and Agents

The negotiation of an agreement between an author and a literary publisher often is complex, especially in an era of high-profile authors and large advances. In a panel discussion moderated by Symposium Director Kirk T. Schroder, Michael Rudell, a leading literary publishing attorney, and David Black, a prominent agent, both of whom represent well-known authors, will discuss these complexities and the relationships among authors, publishers, and agents.

Moderator: Kirk T. Schroder
Panelists: David Black, Michael Rudell

Breakout III. Morals Clauses in Sports Contracts — A 2008 Primer

A leading expert in the United States — Mike McCann — leads a discussion of the most heavily negotiated aspect of any sports or entertainment contract: the morals clause, including the cutting-edge reverse morals clause. There is no single subject of greater import for the sports lawyer or agent in today’s brightly lit sports environment.

Moderator: Michael McCann
Panelists: Christopher L. Brown, Christopher Callahan, George K.H. Schell, Stephanie Vardavas

10:15 Ethical Issues: Considerations for Entertainment and Sports Lawyers

The changing nature of the entertainment and sports industries always presents important ethical and professional considerations for attorneys. This panel will discuss key considerations for attorneys when addressing ethical issues and will discuss current potential ethical matters arising from current opinions and practices.

Moderator: Martin E. Silfen 12:15


Anthony J. Agnone
, Eastern Athletic Services / Hunt Valley, MD
Lee Bartlett, Executive Vice-President, Business & Legal Affairs, Fox Broadcasting / Los Angeles, CA
David Black, David Black Literary Agency / New York, NY
Christopher L. Brown, Orpheus Sports and Entertainment Consulting Company / Boston, MA
Christopher Callanan, Campbell Trial Attorneys / Boston, MA
Jay L. Cooper, Greenberg Traurig, LLP / Santa Monica, CA
Keven J. Davis, Garvey Schubert Barer / New York, NY
Bennett J. Fidlow, Schroder Fidlow, PLC / Richmond, VA
Simon Frankel, Covington & Burling / San Francisco, CA
Philip H. Goodpasture, Williams Mullen / Richmond, VA
Elliot J. Groffman, Carroll, Guido & Groffman / New York, NY
Ron Klempner, Associate General Counsel, NBA Players Association / New York, NY
Michael Krassner, Sony Signatures
Pamela R. Lester, Lester Sports and Entertainment, Inc. / Skillman, NJ
Stewart Levy, Eisenberg Tanchum & Levy / New York, NY
Michael McCann, Mississippi College School of Law; Sports Illustrated / Jackson, MS
Jonathan Moonves, Del, Shaw, Moonves, Tanaka, Finkelstein & Lezcano / Santa Monica, CA
Victor Perlman, General Counsel and Managing Director, American Society of Media Photographers, Inc. / Philadelphia, PA
Jill Pilgrim, General Counsel and Drug Testing Program Administrator, Ladies Professional Golf Association / Daytona Beach, FL
Gary R. Roberts, Dean and Gerald L. Bepko Professor of Law, Indiana University School of Law / Bloomington, IN
Bobby Rosenbloum, Greenberg Traurig, LLP / Atlanta, GA
Michael Rudell, Franklin, Weinrib, Rudell & Vassallo, P.C. / New York, NY
George K.H. Schell, Assistant General Counsel, Marketing, Trademarks and Licensing, The Coca-Cola Company / Atlanta, GA
Kirk T. Schroder, Schroder Fidlow, PLC / Richmond, VA
Martin E. Silfen, Law Office of Martin E. Silfen, P.C. / Virginia Beach, VA
Stan Soocher, Editor-in-Chief, Entertainment Law & Finance / Denver, CO
Michael D. Steger, Law Offices of Michael D. Steger, PC / New York, NY
Christine Steiner, Law Office of Christine Steiner / Los Angeles, CA
Stephanie Vardavas, Assistant General Counsel, Nike, Inc. / Beaverton, OR

Directions to Seminar Site


$350.00 regular registration.
$199.00 regular registration — Thursday, March 6 only.
$159.00 regular registration — Friday, March 7 only.
$99.00 law student registration.

Alan Milstein to Speak at Syracuse University College of Law

The folks at the Entertainment and Sports Law Society at Syracuse University College of Law have let us know about a couple of upcoming speaking events: one with our friend and colleague Alan Milstein, the other with ESPN college basketball analyst Len Elmore, who is also an attorney. If you would like to attend either event, please contact Steven Saperstein, president of the society, at

Here are the details:

February 29, 2008 1 p.m.
Len Elmore, ESPN broadcaster and Attorney
Syracuse University College of Law room 275

March 5, 2008 12 p.m.
Alan Milstein, Top Sports Ligator and Sports Law Blog writer
Syracuse University College of Law room 275

Rusty Hardin Needs to Stop Talking

The latest from Rusty Hardin, Roger Clemens' lead attorney and possibly the worst example of the grandstanding lawyer we have seen in a while. Upon learning that the House Committee on Oversight and Government Reform had requested that DOJ open an investigation into possibly perjury or obstruction by his client, Hardin said:

Now we are done with the circus of public opinion, and we are moving to the courtroom, . . . Thankfully, we are now about to enter an arena where there are rules and people can be held properly accountable for outrageous statements.

Please spare me the righteous indignation. Hardin almost single-handedly created any "circus of public opinion" that he now decries. Hardin sent Clemens (or at least acquiesced in Clemens going) to the "60 Minutes" interview--specifically to win over the court of public opinion. It failed because most people who saw the interview did not believe Clemens. Then Hardin (allegedly) pushed for the congressional hearing to be held when both the chair and ranking member wanted to cancel--specifically to win over the court of public opinion by taking an oath and forcefully denying the allegations. Hardin also managed to get half the House Committee to meet privately with Clemens, hoping they would go easier on him in the hearing--thus making Clemens look better for the court of public opinion that would be watching. Both of these failed because most people who saw/heard the hearing still did not believe Clemens. And let's not forget that Hardin has basically dared DOJ to investigate Clemens by saying of the likely lead investigator that Clemens "would eat his lunch."

Everything Hardin has done for the past three months has been designed to win i the court of the public opinion. He does not mind the circus. The problem is the court of public opinion that Hardin has tried so hard to win over simply does not believe his client.

Wednesday, February 27, 2008

Student Fans Acting Badly

Grant Wahl at decries this basketball season as the "ugliest in years" and calls on schools and conferences to take some action to get fans and fan speech under control. I have written enough about fan speech in this and other spaces that my views are pretty obvious. Jump over and read the piece to get a sense of the laundry list of incidents.

One problem is the way Wahl lumps too many dissimilar incidents together into an overall picture of bad fan behavior. Without question, threatening messages on the cell phones of players and families are out of line. So is throwing stuff at players' families--throwing stuff is not protected speech. Homophobic chants are troubling, if only for the continued (although constitutionally protected) disrespect is shows for a portion of the community. Of course, the fact that directing a homosexual epithet at an athlete is viewed by the speaker and the listener as a great insult raises some interesting sociological issues.

But I think Wahl undercuts his point by including too many examples that actually are pretty funny or clever and that certainly contain at least some level of social and political commentary. Calling attention to Maryland's low graduation rate, fans at Duke (which the mainstream media, including SI, lauds ad nauseum for their creativity) wore graduation caps and gowns and held signs reading "Fear the Classroom" and "A Mind is a Terrapin Thing to Waste." Even my wife, a Maryland fan when she pays attention, thought that was funny. Students at UNC waved "WANTED" posters with a picture of Duke's Gerald Henderson, a reference to Henderson's hard (and arguably flagrant?) foul on a UNC player last year. Fans at UAB targeted Memphis player Robert Dozier's allegedly hitting his girlfriend, with signs reading "We Beat Memphis, Not Our Girls." Some of this is offensive, sure--but offensiveness is not a ground for restricting speech.

Michigan State Coach Tom Izzo almost gets it: "I hate to say this because freedom of speech is at issue, but this isn't what freedom of speech is ­intended for." Actually, it is. But too often, we recoil when we see what freedom of speech looks (or sounds) like.

BoyRacers and The Christchurch Community

"I was a Boyracer Once, Silverstone, Donington, Monaco"

"Where were you trying to get to?"


That was a small part of a comic routine by English Comedians Mel Smith and Griff Rhys Jones.

I never used to have a opinion of Boy Racers, I never use to care, what they did, what their cars look like, or what music they listen to, until their behavior directly effected me.

In fact I thought a Boy Racer was a Michael Schumacher or Geff Murphy or a Lewis Hamilton, not some dickhead driving down Bealey Ave.

You see I live in a nice long street, which for the past eight months has been a Favorite of some Boy Racers, its in the Suburbs, a nice family street with many elderly residents and of course during the weekend, these Idiots feel they have the right to use it as their own motor racing course.

That is of course on a good night, on a bad night, well they think throwing Glass Bottles at people's houses is fun. Now don't get me wrong, I shouldn't put all Boy racers in the same group, there are two types of Boy racers IMHO.

The first are just Criminals, throwing bottles, doing burnouts on people's lawns, threating to Kill people, blasting out their gosh awful music at 330am and exposing themselves to anyone who walks by, and of course worse of all driving drunk, they add nothing nothing to Society except putting down property Values.

Then there is the second group of Boy Racers, the Ones who think just because they don't throw a bottle at your head that society owes them a racetrack, and the council should fund their activities and they should be allowed to speed down the street, disturbing traffic. They actually cannot comprehend that society shouldn't have to pay for their hobby and they should have to obey the Traffic Rules.

One group that has a Bebo page called "BOYRACERS UNITED B.R.U" is defending their right to race down Bealey Avenue on a Friday Night and are against the Police action of manipulating Lights so they cant drag, on this webpage they ask for open and honest discussion, but any post that is Pro Police eg:"I support the Police Action" gets deleted and the user gets banned for life.

Which is a ridiculous way to have a discussion, but I guess these guys aren't mature enough to handle a debate.

So whos to Blame for this, The Media has to take some responsibility, the very LIBERAL Press in Christchurch who always seem to support these guys ,and even gave a Blog to one of them. The former Do Nothing Mayor of Christchurch, Garry Moore, who actually welcomed these guys to our city, saying they bring colour. They cannot wash their hands of this Problem.

Of course Government MP's who try to play down the Issue are also to Blame, you just have to look at whats happens to Christchurch at Night, to know treating the problem with Kid Gloves doesn't help.

IMHO, there should be a Zero Tolerance policy, you don't break the speed limit down any street, you don't block Traffic on a Friday or Saturday Night, you certainly don't throw your trash out the window, or break Noise Control Laws, all you have to do is Obey the Laws of society.

We as members of the Public, couldn't give a rats ass about your Hobby, we couldn't care what you do, just as long as your behavior doesn't effect us, which it has been.

Personally if I was a young person, I would much rather spend my money on touring through the States or Europe, going nice places to eat, seeing Movies, going places, but thats just me.

So, I say, good on the Police for manipulating the Traffic Lights, if it slows down the hoons, and gets people to obey the Law, then its a Great day for Christchurch and its what the Public wants.

So well done to the Police!!!

Can Women Be Happy?

You can file this post under "sexism."

Aristotle said that women were without virtue. Because virtue was necessary for happiness, women could never be happy. Virtue is essentially reason, and women are notorious for not possessing reason. Because of this, they are miserable.

To give an example, I was discussing with a friend today about the tendency of women to hold grudges. Women say they forgive, but this isn't true. They merely store the wrath for the rest of their lives as a slow smouldering rage just beneath the surface. I thought this was very sad. But it is very true. A female friend of mine and I were very close until we had an argument. I was completely right on that one, and she knows it. We are friends again, but it is not as warm as before. I doubt it will ever return to what it once was.

I remarked to my friend that women were like disposable razors. After you've built up so much anger in them, you have to throw them away. Women can't forgive, so after you have amassed so many demerits, you are better off to discontinue with them and move on. Things can never be restored between you and them. Contrast this with men who will often have a beer and a laugh after trying to beat the hell out of each other. Some of the best friends I have ever had I made after trying to knock the shit out of them. Men are cool like that. Men can forgive. It is because we have to.

I have had people do a lot of shit to me over the years, but I have let most of that go. Life is too short to carry a grudge forever. But for women, life isn't long enough to burn out the collected rage. This alone makes women miserable. Because of this, they cannot love or have true friendships. They lack magnanimity. At heart, women are pusillanimous. They are bitter and hateful.

I know. GROSS OVERGENERALIZATION. But I have to say that I have never met a happy woman. I suspect Rachael Ray may be the exception to that, but I have yet to meet her. For the most part, women agree with me on these things. Women especially hate each other, and this can only come from their essentially miserable natures.

My friend also pointed out that a man can be happy without a woman, but a woman cannot be happy without a man. I suppose this would explain the paths of Britney Spears and Kevin Federline. Britney has really gone to shit while K-Fed seems to be doing just fine.

Now, at this point, I am certain some folks wish to take issue with me on these points. Women will say that they are happy, but I would differ with them on the definition of happiness. For women and shitheads, happiness is a feeling. But the problem with this viewpoint is that logically, the crackhead is the happiest of them all at least while high. For women, it would be being in love or some such silly nonsense as that. But objectively, we cannot claim that these people are happy. They are deluded but not happy.

Happiness is not a feeling. It can be accompanied by good feelings, but happiness is a state of being. It is performing rationally and optimally. This is why I say that Rachael Ray is the only woman who I think is happy. She works and loves what she does. The woman is a workaholic.

Happiness is excellence. It is hard to define it, but you know it when you see it. It is when a hero triumphs over adversity. It is when a scientist discovers something new. It is when an athlete performs well. It is when a person does the right thing.

Excluding Rachael Ray, I find women are simply too stupid to be happy. They are bubbling cauldrons of emotion. They cry too much. They whine. And you can't tell them anything because their egoes are too fragile to take criticism. These emotions lead them to inescapable Catch-22's. And it is very hard to trust a woman because she justifies everything by her feelings which change from moment to moment. They will tell you one thing and expect another. It is utterly maddening trying to deal with them.

Most men wise up and learn to abandon women. It is the only logical recourse. You cannot reason with them and forcing them to do the right thing only creates worse problems. So, the smart man walks away. He does not waste his time trying to argue with a woman. Left alone, they descend into their madness because it was the man that was holding them together.

I don't mean to imply that all men have their shit together. They don't. But men learn early that life involes trade-offs. You can't have everything you want. The important things in life are accomplished through hard work, and there are few shortcuts.

It is no mistake that the virtues are attributed to masculinity while the vices are seen as womanly. Cowardice, weakness, and deceitfulness are all things considered to belong to women, and when men practice them, we call them womanly. Courage, strength, and honor are considered masculine.

When women practice these virtues, we see them as being noble. It doesn't mean being butch. I think of Sigourney Weaver in the Alien movies. Time and time again, she displays the virtues. I'd follow her to hell and back. But she is a fictional character. I know of no real life counterpart to her.

In general, women are a fucked up bunch. To make matters worse, they project their bullshit onto others. For instance, I can always tell a bipolar female because she insists that I am bipolar. On and on, it goes. Women love religion and psychobabble and astrology and all sorts of quackery. Their gazes are planted firmly in their navels, and they talk about inner journeys and "healing." Christ, it makes me want to puke.

Most women's problems are easily solved:

Eat less and exercise more.

Spend less and earn more.


Find out what one is first.

Simple answers. There's nothing complicated about this shit. But women want to complicate things. This is because complicated problems can't be solved, but they can be whined about endlessly. This is what women do. They piss and moan. Take away their problems, and you have taken away the only meaningful thing in their lives.

The reason women whine is because they need a man to solve their problems. Actually, they can solve their own problems if left to suffer, but they have been trained to look to a man to fix things for them. Then, they get angry when he does just that.

Women are hopeless. They are miserable. They are irrational and without virtue. Consequently, happiness eludes them all and always will. I find this to be very sad. But I'm too busy being happy to dwell on it.

Would Legislation Providing for Mandatory Drug Testing of Professional Athletes Pass Constitutional Muster?

The answer to that question could be, and has been, the subject of an entire law review article. But I want to touch upon it today because the timing is right in light of today's hearing in front of the House Subcommittee on Commerce, Trade and Consumer Protection. In his opening statement, Chairman Bobby Rush said: "If Congress can play a role in shaping public policy to eradicate all sports at every level of these substances, then this subcommittee is prepared to act. I resent all the elitists and cultural critics who dismiss this as an issue of populist spectacle. I believe that we can move forward in a measured, deliberative and partisan manner with the legislation that seriously tackles drugs in sports." MLBPA executive director Don Fehr later said, "It should be noted that any legislation governing drug testing in private industry surely raises troubling constitutional questions."

In Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), the Supreme Court addressed whether it was constitutional for a school district to adopt a policy implementing random urinalysis drug testing of student-athletes, the expressed purpose of which is "to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs." The Supreme Court noted that "state-compelled collection and testing of urine, such as that required by the Policy, constitutes a 'search' subject to the demands of the Fourth Amendment" and that "[w]arrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause." But "[a] search unsupported by probable cause can be constitutional, we have said, 'when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'" In upholding the constitutionality of the school district's drug testing policy, the Supreme Court also noted:
We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.
The in loco parentis rationale -- the fact that "the subjects of the policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster" -- was central to the Supreme Court's determination that it met the "special needs" requirement. In other cases, the Supreme Court has found special needs in upholding suspicionless searches and seizures (1) to conduct drug testing of railroad personnel involved in train accidents, (2) to conduct random drug testing of federal customs officers who carry arms or are involved in drug interdiction, and (3) to maintain automobile checkpoints looking for illegal immigrants and contraband. Does mandatory drug testing of professional athletes satisfy the "special needs" requirement?

And from a privacy standpoint, the Supreme Court noted that "the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function." Well, that would obviously be a legitimate concern with federal legislation imposing mandatory testing of professional athletes.

Duke Lacrosse II: Some First Amendment Issues

Continuing my thoughts on the latest Duke lacrosse lawsuit.

One interesting feature is the role that the First Amendment might play for the defendants. Much of the conduct described in the complaint, and much of the conduct that presumably forms the basis for the players' claims against Duke and Duke officials (and to law-enforcement officials to a lesser degree), centers on all sorts of public statements that stated or suggested that some or all the players had done something wrong. Consider several categories.

1) Statements by Duke and its officials, particularly President Richard Brodhead, that implied that the players had done something wrong (including possible sexual assault and use of racist epithets) and that they were not cooperating with the investigation by hiding behind a "blue wall of silence." These statements "malign[ed] the Duke lacrosse team as a gang of hooligans that included 'two or three really bad actors.'"

2) Statements by various faculty members, most notoriously the Group of 88's editorial advertisement in April 2006 and various statements by individual professors to the media and to the public. These statements expressly stated a belief in the players guilt and the need for the players to be punished, criminally and by the university. Many of these statements were charged with overtones of race, gender, class, and privilege, the implication being that a group of privileged white males had to be punished for racist and misogynist actions. Many statements used hyperbolic, charged language, including statements likening the team party to the murder of Emmett Till--a lynching of an African-American by privileged whites. Some statements called for judgments to be imposed beyond the walls of the courtroom. Some statements referred to the lacrosse players as "white supremacists." Faculty members also called for the university immediately to condemn the team and its players. There also were some instances of in-class speech, but I will leave those for another day.

3) Several protests against the team and its members. This included a candlelight vigil outside the house in which the party occurred and another Duke-owned house in which some players lived, where the crowd chanted, among other things, "shame" and "you can't run, you can't hide" (protesters also banged on windows and doors at the latter house). There was a "pot-banging" protest outside some player residences early on a Sunday morning, with protesters wielding signs and chanting--all reflecting a belief in the guilt of at least some of the players, the collective guilt of the team as a whole for some misconduct, and a real hostility to the players. There also was a boycott planned for an upcoming (but ultimately canceled) home game, with fans holding signs reading "Don't Be a Fan of Rapists." According to the complaint, these protests were explicitly encouraged by various faculty members.

4) "WANTED" posters went up around campus, featuring photos (taken from the school web site) of 43 of the 46 white team members.

These various expressive incidents seem to form the core of four counts and Duke and its officials: 1) Intentional Infliction of Emotional Distress; 2) Breach of Duty to Protect Students from Known Dangers and Harassment; 3) Negligent Supervision of Duke Professors and Employees; and 4) Intrusion upon Seclusion.

The problem is that much of what is described in the complaint sounds and looks like constitutionally protected speech. Although much of it certainly is "hostile" (to quote the Complaint), the speech described does not look like it crosses the line into unprotected categories of true threats or incitement to violence. There is no temporal imminence necessary for incitement. The one well-known case involving "WANTED" posters, which upheld a jury award against the speakers, occurred in the context of an anti-abortion group, more explicit hints at violence, and the unique history of violence over that issue--none of which is present here. All the rhetorical hyperbole and exaggeration, racially and ethnically charged though it might be, also is protected. So is all the hostility, as long as it does not become a direct, targeted threat.

Most of this is speech on a matter of public concern: an alleged crime and misconduct by a high-profile group in the campus community, an ongoing police investigation into that crime, all of it touching on issues of race, gender, class, and privilege; this sounds like social or political speech. Most of the protesters stayed in public spaces and there is nothing per se unprotected about protesting in front of a residence. True, many faculty members and students seized on the case as a chance to further a particular political agenda--but that is what the freedom of speech is about. Finally, some of what was said or implied turned out to be false, perhaps recklessly so. For example, there are allegations that Brodhead continued to criticize the players despite having information suggesting that no rape had occurred, no racial slurs had been uttered, and that the players were cooperating with the early stages of the investigation.

Notably, however, there is no defamation claim against the university. Two reasons for this. First, there are few, if any, direct assertions of verifiably false fact; second, in any event, none of these plaintiffs could satisfy the "of and concerning" requirement for defamation. To the extent there were knowingly false assertions of fact about the players' guilt or moral culpability, these were targeted at the team as a whole; a member of even a small group typically cannot sue over false statements about that group. Calling the team a "gang of hooligans" with two or three unnamed bad actors is not actionable defamation. Moreover, defamation is not the only tort that has built-in limitations in its application to protected speech. Torts such as I/I/E/D or privacy cannot be utilized against protected speech as an end-run around the First Amendment and the limits of the actual malice requirement of New York Times v. Sullivan. Brodhead, school officials, and Duke as an entity all enjoy First Amendment liberties to speak on these matters of public concern, free from civil liability if that expression does not fall into some narrow category of unprotected speech.

Also notably, the individual professors who spoke out against the team are not named as defendants; only Duke and university officials. The theory of civil liability is that Duke is liable for the harm caused by this expression because Brodhead, et al., failed to stop these faculty members and students from engaging in this expression. If I am right that much of the speech at issue is protected, that theory of vicarious liability cannot work. If civil liability could not be imposed on a speaker for protected expression, how can it be imposed on the speaker's employee for failing to stop the speaker from engaging in that speech? That seems constitutionally perverse.

None of this is to suggest that the case as a whole fails. Just that there is a lot of stuff in this complaint and it requires serious parsing by the parties and the court. One bit of parsing must take into account the limits on civil liability imposed by the First Amendment.

WSJ Law Blog Interview of Lawyer with NCAA Enforcement Practice

The Wall Street Journal Law Blog features an interview with attorney (and former IU quarterback) Mike Glazier. Glazier took his law degree and sports background and joined the NCAA enforcement team for several years. He's subsequently built a practice representing colleges involved in NCAA investigations. HT to Above-the-Law.

Tuesday, February 26, 2008


For some strange reason, I feel damn good. I feel alive. I feel free. I feel like a million fucking bucks.

Thai food is yum-o. A quality date.

Yale Law School Panel on "The Mitchell Report and Beyond: Steroids, HGH, and the Future of Baseball"

I am honored to be speaking at Yale Law School next Tuesday as part of a panel on "The Mitchell Report and Beyond: Steroids, HGH, and the Future of Baseball." The panel was put together largely through the work of Aaron Zelinsky, a 1L at Yale Law School who wrote a terrific guest entry here last month entitled "Three Strikes for the National Labor Relations Act." If you are interested in attending, please contact Aaron at aaron.zelinsky[at] The panel is open to the public.

Here is the official write up of the panel:

* * *

The Mitchell Report and Beyond: Steroids, HGH, and the Future of Baseball

The recently released Mitchell Report has brought national attention to the role of performance enhancing substances in baseball. From Capitol Hill to the sports pages, the conversation has focused on who did what, where, and when. This interdisciplinary panel seeks to move beyond questions about individual users and examine the Mitchell Report from a broader perspective. What did the Mitchell Report actually say? What are its implications for baseball and for other sports? How should professional sports address the issue of performance enhancing substances in the future? The panelists will tackle these issues from medical, legal, business, and media perspectives.

Tuesday March 4, 5pm
Sterling Law Building, Room 122

Dean Harold Koh (Moderator) (M.A. Oxford '96, J.D. Harvard '80). Dean Koh is the Dean of Yale Law School and Gerard C. and Bernice Latrobe Smith Professor of International Law. He is also a longtime Red Sox fan.

Jim Golen (MSL '99) Jimmy Golen has been a reporter for The Associated Press for almost 20 years, covering sports in Boston for the world's largest newsgathering organization since 1995. He has covered five Super Bowls, three Olympics and three World Series, including the Red Sox victories in 2004 and '07. Previously, he worked for the AP in New York, Minneapolis, Baton Rouge, La., and Buffalo, N.Y.

Dr. Peter Jokl (YSM '68, Yale College '64) Dr. Jokl is Professor and Vice-Chairman of the Yale Department of Orthopaedics and Rehabilitation and the Section Chief of Yale Sports Medicine. He is the former President of the American Academy of Sports Physicians

Joe Ravitch (YLS '88) managing director in the Investment Banking Division of Goldman Sachs with responsibility for the media and entertainment sector within the firm's Telecom, Media and Technology (TMT) Group. Ravitch works with many of the large diversified entertainment companies around the world.

Prof. Michael McCann (J.D. UVA '02, LL.M. Harvard '05). Assistant Professor of Law, Mississippi College School of Law; Visiting Professor of Law, Boston College Law School (Fall 2008); Associate Professor of Law, Vermont Law School (Spring 2008 and beyond). Author of "Sports and the Law" column on Legal expert for Sports Illustrated and stories. Chair, AALS Section on Sports and the Law. Contributor, Sports Law Blog.

DVD-Rescue Dawn

Christian Bale plays shot down Navy pilot Dieter Dengler who is captured by the Viet Cong in Laos/Vietnam. Dengler finds himself in a bad situation, but he shows courage and determination in his escape from captivity.

Rescue Dawn touches on big themes. The biggest one is in the prison camp. Dieter disagrees with a fellow prisoner who chooses passivity in dealing with the situation. Dieter will have none of it. Refusing to just sit and rot, Dieter plots and schemes and works to get himself out of the situation he is in.

This movie is a testament to the human spirit and what it means to be a man. It is even more powerful because it is a true story. All I can say is that if you are in some shit it is better to work and/or fight than lay down and die.

I was very glad to have watched this movie. I think you will be glad you watched it, too.

Another Duke Lacrosse Suit

Back in October, I wrote about the § 1983 lawsuit filed by the three Duke lacrosse players who were indicted in 2006 on charges of gang-raping an exotic dancer, then exonerated when it became clear the woman had fabricated the story and the district attorney (subsequently disbarred and convicted of criminal contempt) had repeatedly lied to the court and attempted to conceal exculpatory evidence. Last week, other members of the team (none of whom were indicted) filed their own civil action in federal court, against Duke University and several members of the university administration, most prominently president Richard Brodhead; Duke University Health Services, owner of Duke University Medical Center, where the complainant had been treated following the alleged attack, and two medical staffers who examined the woman and allegedly provided false information about the results of the exam; and a variety of Durham County law enforcement officials. There are 27 counts, involving constitutional and state tort claims. The three indicted players reached a settlement with the university last year before any lawsuit was filed.

I have a particular interest in this lawsuit, and the Duke lacrosse mess as a whole. I have organized and am moderating a panel at this summer's Southeastern Association of Law Schools Annual Meeting in Palm Beach called "The Phases and Faces of the Duke Lacrosse Controversy," which will examine the wide range of legal issues arising from this controversy.

Anyway, some initial thoughts. I will write more on the complaint later this week.

1) The complaint is 237 pages and 747 paragraphs. So much for a short and plain statement of the claim showing that the pleader is entitled to relief. Actually, this is a good example of litigation as press release that Beth Thornburg describes in writing about another hot sports lawsuit--West Virginia University against former football coach Rich Rodriguez. A pleading becomes as much about telling a story to the public and trying to win the community over as about giving notice to the court and to the defendants about the nature of the claims and the surrounding circumstances. This complaint recounts the full story of the Duke lacrosse mess in exacting detail, highlighting all the wrongdoing by various defendants--without necessarily linking that conduct to any legal right or duty to a particular plaintiff.

2) Former DA Mike Nifong is not a named defendant, despite being at the heart of all of this. Nifong filed for bankruptcy recently, imposing an automatic stay on any litigation naming him as a defendant. These plaintiffs thus did not include him as a defendant. But they argue that his misconduct is attributable to the City of Durham, which is a named defendant. This, by the way, could have a major effect on the action filed by the three indicted players, since their case is all about Nifong and his actions as the person who took (apparently unprecedented) control over the entire investigation.

3) There is an interesting version of cause-and-effect presented in the Complaint. The plaintiffs allege that Nifong (and implicitly the other defendants, especially the university) did not cause the media frenzy that surrounded the case. Rather, they all reacted to it and that media frenzy somewhat explains the subsequent Nifong's behavior--he needed to press the case to look good for the press and to satisfy the public aroused by the story. Implicit in the complaint is a similar argument that the Duke administration also reacted against the players when pressure from the media and from faculty and student activists reached a fever pitch.

4) Plaintiffs assert constitutional claims against Duke and its administrators and employees. But I do not see how these defendants are state actors. The basic notion is that the hospital staff and university officials cooperated with government in its investigation by: providing information to law enforcement, some of which was either false or unlawfully released; withholding or speaking out to discredit exculpatory information; or making or failing to correct false statements about the case by law enforcement and others. The complaint refers to the university "acting in concert" with law enforcement and to an "agreement and meeting of the minds" as to this course of conduct--seemingly looking to establish state action via a public/private conspiracy. But based on the allegations, I do not see the necessary meeting of the minds that this test requires. Certainly the university helped law enforcement and certainly the university played a role in creating and fostering the resulting circus. But I do not see the allegations alleging anything approaching an explicit agreement to engage in obviously and blatantly unlawful conduct. Cooperation with law enforcement typically is not enough.

5) It will be potentially difficult, but also necessary, for the parties and the court to sort out precisely which plaintiffs suffered what harm from what conduct. The complaint speaks about the plaintiffs as a group suffering a deprivation of rights. But the only harm suffered in common was the cancellation of the lacrosse season (which forms the basis of one breach of contract claim against the university) and everyone being tagged with the infamy, criticism, and potential harassment that came with being part of "the lacrosse team." But I think some more direct and concrete individualized harm is going to be necessary for individual players to recover. For example, which individual players were called in and questioned by police? Which individual players were subject to improper searches or improper questioning? Which players had confidential information disclosed to law enforcement in violation of federal law? Which individual players were subject to direct threats or harassment or physical assaults or taunts at the hands of professors, classmates, and the public? Unlike the three indicted players who ultimately were forced to leave the university, the individualized harm here is not as obvious and it certainly is not clear from the complaint. Perhaps it is not necessary to break that down at the pleading stage (hey--notice pleading lives!). But it will be as the case moves forward.

Negative and Positive

I received this email not long ago on MySpace:

What is up with all the negativity? I got your friend request read your page. You totally changed my mood. Not for the better or worse, but it kindof saddened me. I don't even know why I am writing this but I felt compelled. I hate to see people go through life with such a negative attitude. If you have a negative outlook on life that is what you will get. If you wish to continue this conversation let me know.

Cheer Up Tomorrow is a New Day!

I felt bad because I don't want to be a negative person. I don't think everything is doom and gloom. But I am a realist. I believe that we must face what is real, and this is not always pleasant. On the other hand, there are many things that I do find pleasant. My worldview is not entirely negative but has many positive features. I just don't think I emphasize them enough.

Here are the things I am negative about and the things I am positive about:



Religion is stupid. This is because there is no evidence for God, your soul, demons, angels, or what have you. None of these things have been proven or are provable. They are the figments of overactive imaginations. People who believe in this stuff are idiots. They are under delusion. They are idiots.

It is sad to face the reality that when you die that is it. You are dead. No more. You will be so dead that you won't even know you're dead. And while you are alive, you live in an indifferent universe that doesn't give a fuck about you.

Yes, this is dark stuff, but it is the truth. Just because it is negative doesn't mean it cannot or should not be believed. But I take hope in this reality. I will not suffer in hell for eternity. I don't have to feel guilt for offending some non-existent deity. I can enjoy my sex life as something normal and enjoyable. And I have already been dead. It didn't disturb me then because I didn't exist. It won't disturb me after I am gone. I have made peace with my death. It no longer frightens me. There are worse fates than death, and those are the things that do frighten me.


Government is, at best, a necessary evil. Time and time again, the government fails to make a positive impact that could not have been achieved better through private means. Government exists to restrain evil. It does very little in promoting the good. From warfare to welfare, government does not make the world a better place but a worse place. The only thing the government does reasonably well is deprive us of liberty. It is ruthlessly efficient at this. When it comes to killing people or locking them up, nothing is better than government. Against people like Ted Bundy or Osama bin Laden, this is a good thing. Against people like you and me, this is a horrible thing. We need less government trimmed back to its essential purpose. The American people need to wake up and stop drinking the Kool-Aid. Fucking idiots.


Love is bullshit. I've said this countless times before. Women have sworn their love to me only I have found out later that they either wanted to use me for money or cheat on me. I see this shit on a daily basis. I can recount story after story of infidelity and divorce. Overall, it is a dismal thing. I know people who are happily married, but this is because they are good people. Love does not conquer all, but character does. Most of the women I meet and date aren't worth a teetotal fuck. Love is not enough to overcome these problems. Consequently, I remain single like my hero, George Clooney. If a guy like George can't find happiness in love, I doubt I can do better.


I'm not much of a joiner. I tend to not want to be in groups, and I'm not big on shit like the "brotherhood of man." I'm also not big on racism either. I don't care to lose myself in something bigger than myself. I am not a bee in a hive. I am a human being. Groups scare me.



I am simply amazed at the times we live in. My life is so much better now than it was just ten years ago. Things like the internet have greatly improved my enjoyment of life. Scientists discover new things all the time, and I believe I will witness cures to many diseases that afflict us now. I believe there is truth, and we can know it. And I believe that the best is still ahead of us.


I am also very glad that I live in a relatively free country where I can express myself such as on this blog and be the person that I want to be. I can believe what I want and say what I want and do what I want. These freedoms are in danger at all times from the government which is why I believe we need to exercise them to the fullest extent to maintain them. Use it or lose it.


I am also a big believer in the free market. Socialism does not work. It is feudalism updated for modern times. Lazy fuckheads love the welfare state because it allows them to loaf. But I tell you that even the lazy prosper more under capitalism than they ever did under communism. It is the free market that gives us a higher standard of living than even royalty enjoyed 100 years ago. Our poor live better lives than Queen Victoria ever did. Unfortunately, people are obsessed with their place in the social order than they are with the actual conditions of their lives. I'd rather be poor today than rich back in 1920. The free market works. Think about this the next time you turn on your cellphone or pop a meal in the microwave.

4. SEX

You can't always find love, but you can always get laid. I am a fat bald guy with a small pecker and an asshole personality. I get laid all the time. With the advent of viagra, I know I will be getting it for a long time to come. I would rather have that sex in the context of a loving and monogamous relationship, but I know I can have one without the other. I don't even have to pay for it. One chick even told me to forget about dinner because she came to fuck. I'm not sure this is exactly positive, but it is nice to know it is available.


I believe the answer to most of our personal problems or desire for achievement lies in hard work. Work is fun. I enjoy doing it. I lose myself in my projects all the time. I love making things and doing things and accomplishing things. It is where happiness lies. My favorite day of the week is Monday, and my least favorite day is Friday. I never have a problem finding something to do so much as picking what to do next. I get so high from whatever it is I set myself to do.


I believe in being true to yourself. I believe in expressing yourself. I believe in being unique. It is individuals that make the world an interesting and better place. I celebrate the individual, and I will always defend them even if I don't always agree with them. It takes courage to stand out in the world, but I believe we owe our very lives to those who had the balls to be who they were. I believe one person can make a difference because history is replete with those individuals. They are called heroes, and I aspire to be one. I am my own hero.

There you have it, folks. I don't know if you think I am negative or positive now, but I can say that I am genuine and real. I refuse to not question things because it might lead to something unpleasant like the truth. I believe you are better off knowing than not knowing. There is bliss in ignorance, but ignorance does not last forever. True happiness comes from fidelity to reality. That is positive and real.

Monday, February 25, 2008

Jesse Ryder

How do you Blow Millions of Dollars, just ask Jesse Ryder.

Here is a guy, who should be at the top of the world, going on television a few weeks ago, saying he's curb his wild ways, cementing a place in the Black Caps at the tender age of 23, yet he blows it, and it just may cost him long term.

Now of course people are talking about, how he got drunk after the deciding match and smashed a window with his hand, of course they are talking about how he verbally abused Hospital Staff that were treating him, and of course they are talking about how he is out of action for 12 weeks, missing most of the return tour to England.

What I found most disturbing is his actions before the match,which shows he has no Professionalism whatsoever. Now don't get me wrong, how have I got the right to comment?, In my only proper game of cricket I made a Golden Duck, not playing a shot, but then again I ran out the School Bully with a bullet like throw from square leg. So I must of been doing something right.

Anyway, there wouldn't be many Professional sports people on the face of the Planet that would have Ryder's attitude. Can ya Imagine before the World Cup Final, Ronaldo deciding to go out Boozing, can ya Imagine before an NBA Playoff series, Dirk from the Mavericks deciding he wanted to party it up before the match, Can ya Imagine those in the Gymnastics events for the Olympics/the Swimmers all deciding that they would rather go on a Bender the night before the Gold Medal Event.

An American Journalist who has been living in New Zealand for over25 years, the Great John Digby's got it right, if Ryder was in a sporting team in Europe or the USA and did what he did before the deciding match of the series, he would be cut.

Ryder is very lucky though, there is not many people who can take his place in the team, and the drinking cultural of New Zealand, seems to support him, most the calls to Sport Radio in New Zealand and on the message boards, have been the same, "The players of yesteryear use to get drunk before a match, never did them any harm, or "My mates and I are always getting Drunk and we go to work"

Well maybe that worked 30 or 40 years ago when Sport was Amateur in New Zealand and you could get away with it, but its 2008 and things have changed.

If Ryder was a true Professional, he would of been looking at Game Tapes the night before the game, He would be going over his notes, he would be having team meetings with the other players, he would be working with everybody possible to get the best out of himself, its no use saying, "Well the Players have to have a life" Let the players have a life in the off season! Can ya imagine Peyton Manning saying to his coach, "Nah, I'm not going to go over the set plays, Im off drinking.

If its good enough for Footballers, Basketballers, Swimmers, Sprinters, Baseballers, Rugby Players etc etc etc, to give up going out, the night before their big event and getting Drunk, it should be Good enough for Ryder.

If he doesn't learn this, he will cost himself Millions of Dollars and let the cricket loving public of New Zealand Down and more importantly he will let himself down.

I hope he learns his lesson quick.

The Mets in Salary Arbitration

Marty Noble, the Mets beat reporter for, posted an interesting story, "Perez wins arbitration case: Hearing was first for Mets since Cone’s 16 years ago" on Friday analyzing the Perez decision. Noble provided a chart with all of the Mets’ hearings while noting that the team had not participated in an arbitration hearing since 1992. Cleveland (7 team victories, 6 player victories) is the only team to have a longer streak avoiding arbitration. The Indians lost to Greg Swindell and defeated Jerry Browne in 1991. Stephen Goldberg decided the Swindell arbitration, and Gil Vernon handled the Browne arbitration.

Noble offered a glimpse inside the hearing room while also commenting on the efforts of agent Scott Boras on behalf of his clients. Boras squared off against Mets general counsel David Cohen. Noble also discussed both presentations, and I quote: "Boras, who now has prevailed in 19 of 45 cases, used Erik Bedard, recently traded from the Orioles to the Mariners, as a Perez comparable in his presentation. Bedard's salary at a corresponding career point, was $7 million. The Mets presented Tomo Ohka, Jason Marquis and, primarily, Brad Penny ($5.125 million) as Perez comparables." The comparable players chosen for the presentations are rarely presented in the newspaper/web articles covering the hearings. Convincing the arbitrators that you have selected the appropriate comparable players is a key factor in winning of losing. The panel of Robert Bailey, Elizabeth Neumeier, and Steven Wolf accepted the Boras presentation as better than Cohen’s list of pitchers and his overall argument.

So, according to Noble’s tally, Boras is now 19-26 in arbitration hearings. His winning percentage of .422 is only slightly lower than the overall players’ percentage of .423 (205 arbitrations won and 279 arbitrations lost since 1974). I knew from my research that Boras once had a lengthy losing streak so I was interested to see his record because I had not yet been able to compile that information. Given the critic’s position that he often overvalues the worth of his clients, I was somewhat surprised that his record is nearly identical to the 33-year record of the players (remember there were no hearings in 1976 and 1977).

I have added the names of the arbitrators from my research to the list of Mets players who have endured arbitration with the New York National League team.

Player - Year - Player Request - Team Offer - Win - Arbitrator

Dale Murray - 1979 - $100,000 - $72,000 - Team - Herbert Northrup
Joel Youngblood - 1979 - $91,000 - $78,000 - Team - Quinn Mills
Mookie Wilson - 1983 - $325,000 - $215,000 - Player - Robert Stutz
Jesse Orosco - 1985 - $850,000 - $650,000 - Team - Raymond Goetz
Doug Sisk - 1985 - $470,000 - $275,000 - Team - Arvid Anderson
Wally Backman - 1986 - $425,000 - $325,000 - Team - Richard Bloch
Ron Darling - 1986 - $615,000 - $440,000 - Team - Roger Abrams
Ed Lynch - 1986 - $530,000 - $400,000 - Player - Thomas Christenson
Tim Teufel - 1986 - $350,000 - $200,000 - Team - Frederick Reel
Ron Darling - 1987 - $1,050,000 - $800,000 - Player - John Sands
Kevin McReynolds- 1987 - $825,000 - $625,000 - Team - Thomas Christenson
Dwight Gooden - 1988 - $1,650,000 - $1,400,000 - Team - Richard Bloch
Len Dykstra - 1989 - $575,000 - $455,000 - Player - Frederick Reel
Tim Teufel - 1989 - $590,000 - $470,000 - Player - Richard Bloch
David Cone - 1990 - $1,300,0000 - $815,000 - Player - Raymond Goetz
Jeff Musselman - 1990 - $315,000 $220,000 - Player - Thomas Roberts
David Cone - 1992 - $4,250,000 - $3,000,000 - Player - Nicholas Zumas
Kevin Elster - 1992 - $1,350,000 - $760,000 - Team - Robert Creo
Jeff Innis - 1992 - $650,000 - $355,000 - Team - Richard Kasher
Oliver Perez - 2008 - $6,500,000 - $4,725,000 - Player - Robert Bailey, Elizabeth Neumeier, Steven Wolf

David Cone, Ron Darling, and Tim Teufel all went back for a second round with the Mets. Cone won twice while Darling and Teufel split their hearings with the team. Arbitrators with multiple Mets hearings include Richard Bloch (2-1 in favor of the Mets), Thomas Christenson (1-1), Raymond Goetz (1-1), and Frederick Reel (1-1).

Full Contact: The Illinois Supreme Court Elaborates on the Contact Sports Exception in Karas

On February 22, 2008, the Illinois Supreme Court delivered an opinion found here in Karas v. Strevell, et al. Karas was injured during an ice hockey game after he was body checked from behind by two opposing players Strevell and Zimmerman (my client). Thereafter, Karas' father brought suit on behalf of his minor son against the two players, the opposing team, the referee association, and the league. The lawsuit claimed that the opposing players' conduct was willful and wanton, and the team, referees and the league had negligently and willfully and wantonly caused Karas' injury. I will not delve too far into the underlying details as Geoffrey Rapp wrote an insightful piece on this blog following the appellate court's decision, which can be found here, and also because I may have further work on this matter representing Zimmerman.

This matter was before the Illinois Supreme Court on interlocutory appeal following motions to dismiss based on the pleadings (Illinois is a fact-pleading state). In other words, we (the defendants) argued that the complaint did not sufficiently state a cause of action. The Illinois Supreme Court agreed with all defendants, but gave the plaintiff leave to amend his complaint (if he is able to do so) under the new pleading standard to survive the Contact Sports Exception.

The Contact Sports Exception in Illinois holds that if a plaintiff is injured by a co-participant while engaged in a contact sport, the same may only recover if the injury was the result of intentional or willful and wanton conduct (see Pfister v. Shusta, 167 Ill. 2d 417 (1995)).

Important holdings from this opinion by Justice Burke:
  • The Contact Sports Exception is not an affirmative defense, nor does the exception require a court to explore the plaintiff's subjective awareness of the risks associated with a particular sport. Rather, the Exception defines the scope of a defendant's duty.
  • In deciding if a sport qualifies under the Exception, a court must consider the nature of the sport, specifically looking at the inherent risks in said sport. If physical contact among co-participants is inherent in the game, a player owes no duty to a co-participant to avoid ordinary negligence. Again, the court will look to the objective factors of the game, not the subjective expectation of the parties.
  • Ice hockey and tackle football are not only contact sports under the Exception, but are considered by the Court to be full-contact sports. The Court defines full-contact sports as sports where "physical contact between players is not simply an unavoidable byproduct of vigorous play, but is a fundamental part of the way the game is played," and as such, "[i]n these sports, holding participants liable for consciously disregarding the safety of coparticipants is problematic."
  • In full contact sports, "conscious disregard for the safety of the opposing player is an inherent part of the game." Therefore, holding a player in a full-contact sport liable for violating this standard violates the underlying rationale of the Exception, and would have a chilling effect on full-contact sport participation.
  • As the willful and wanton standard is both unworkable and contrary to the rationale in Pfister, a new standard is required.
  • Looking to Knight v. Jewett, 3 Cal. 4th 296 (1992), the Illinois Supreme Court stated the new standard for full-contact sport liability: "a participant breaches a duty of care to a coparticipant only if the participant intentionally injures the coparticipant or engages in conduct 'totally outside the range of the ordinary activity involved in the sport.'"
  • Nothing currently plead against Strevell and Zimmerman meets this standard.
  • The contact sports exception also applies to organizational defendants (coaches, officials, teams, and leagues).
  • To successfully plead a valid cause of action for "failing to adequately enforce the rules in an organized full-contact sport, plaintiff must allege that the defendant acted with intent to cause the injury or that the defendant engaged in conduct 'totally outside the range of ordinary activity (internal citations to Knight)' involved with coaching or officiating a sport."
  • The application of the Exception to organizational defendants is not whether the organizational defendant's conduct causes a 3rd party to violate a standard of care.
  • Nothing currently plead against the organizational defendants meets the new standard to overcome the Exception.

I have not yet heard if Karas plans to re-file this matter under the new standard.

Covington & Burling's Representation of both Major League Baseball and Roger Clemens

of The American Lawyer has a very interesting piece on concerns by Major League Baseball that one of its lawfirms, Covington & Burling, has represented Roger Clemens in his current matter with the Mitchell Report and Congress. Lanny Breuer, one of the Covington's litigation partners and former special counsel to President Bill Clinton in his impeachment proceedings, has led his firm's efforts in representing Clemens. Here are a couple excerpts from the piece:

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Earlier this year Covington & Burling decided to add pitcher Roger Clemens to its roster of high-profile clients. But perhaps it should have received approval from another client, Major League Baseball, first. Covington agreed to represent Clemens in the congressional steroids inquiry without getting the league’s sign-off—a potential blunder in the high-stakes world of sports league representation. According to a source familiar with the matter, Covington’s decision to represent Clemens annoyed the league. The official relationship between Major League Baseball and the firm has not changed but, according to the same source, a meeting between the two is imminent. . . .

[T]he Clemens assignment would potentially put Covington at odds with one its clients, MLB. Covington has a long history of representing professional sports leagues. Although the firm is known mostly for its work on behalf of the National Football League, it has also done some work for baseball, according to its Web site. Last year, for example, it represented baseball in connection with the launch of an MLB channel. However, Clemens’s interests appeared to be aligned against baseball. Breuer, like Hardin, would likely have to attack the Mitchell Report. Breuer apparently didn’t accept the Clemens assignment right away. In January, Hardin told The New York Times that Breuer said he had to get clearance first. “We’d talked to him, and we’d just been waiting a day or two to check out conflicts,” said Hardin. “He had no conflicts.”

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For the rest of the story, click here.

Update: a reader e-mails me a good point about a separate occasion where Covington's interests may not have coincided with Major League Baseball's: "It might be worth noting also that Covington and Burling partner Andrew Jack was lead counsel for the D.C. Sports and Entertainment Commission during its negotiations with MLB over the Nationals new stadium. That stadium deal, as you probably know, was one of the most generous in sports history."

TF Reilly

Finally over the virus that saw him come home from the breaker's early - Reilly is finally starting to put the weight he lost back on and is back to his normal adorable self. Here are some shots of him chillin out with us out home.

Sunday, February 24, 2008

We Win! Now Bring on The Tests!

New Zealand has Won the One Day Series against England, now bring on the tests!!!

What a summer its been for New Zealand Cricket, started off with Victories against Bangladesh in Tests and the One Dayers.

Then the Might of the English came and beat us in the 20/20's, but New Zealand came back and surprised everybody by beating England in the One Day series without superstar Shane Bond.

Apart from the Injuries, everything has gone right for New Zealand cricket in the past two weeks, Massive crowds, this season should see the highest crowd numbers for a season since the 80's. A One Day Series Victory, new stars emerging in How, Ryder and Southee and New Zealand's wicketkeeper becoming a genuine worldwide superstar of the game and an Opposition in England that has caught the Public's imagination, it's great to see Ex Pat Pom's supporting their home team and turning up in droves.

Now its time for the most Important part of the Tour, The Test Series!!!, Three Tests, Five days each, (For those that don't follow the game)

Before the Start of the Series, I thought England would beat us 3-0 in the Series, now I'm not to sure, yes they are going to have a stronger side, but the Blackcaps now have confidence, they believe they are not just playing to keep it close but to actually win the series, something they haven't done against England since 1999.

I believe our fielding is second to none (apart from Mills).

Our batting is okay, our top order may fail, but we can bat right down to number 10, so even if we lose quick wickets, we will not be dismissed for a low total. Its our bowling that is a worry, we need twenty wickets, I can see Vettori and Martin getting five each during a match, I don't see Mills, and Oram doing this though.

I think our best hope is, if the pitch is taking spin and we play Patel, I think it's going to come down to a Freak Performance by one player.

On the England side, I don't see them winning at all, their bowlers are just a tad to predictable, it might well be a drawn series, but if a Team is going to win this series, fingers and toes are crossed that it will be New Zealand, what a way to start a new era in New Zealand Cricket!!!

Truth and Tact

I have become acutely aware that I disturb some people. I'm not sure why, and I have been prone to blame myself for this. But blaming myself for this would be like David Bowie blaming himself for my dad not liking his music.

There are some people out there who like me a lot. They are almost rabid in their devotion to me. At the same time, there are people out there who utterly hate my guts and would like to see me come to a bad end. Sometimes, these people are one and the same but caught at different times.

I cannot explain popularity anymore than to say that there is no accounting for taste. I can also say that it is impossible to have everyone like you. It can't be done. What can be done is to stop worrying about it. It matters more to be consistent than to be nice.

One of the things that people like about me is that I am honest. This honesty is also what makes people hate me as well especially ex-girlfriends. I have a habit of telling the truth, but most people cannot handle the truth. This description would definitely fit my ex-girlfriend who derided fundamentalists as shitheads but believed in just about every New Age thing that came along without question. She believed in being open minded but only when it came to others accepting her. She did not return the favor and was very intolerant of anything that questioned her worldview or her habits.

I have tried to be diplomatic, but diplomacy fails. The error is with them and not me. People rapidly get used to being able to tell me anything they like because I try and consider all viewpoints. The reason I do this is because I spent many years under a delusion that I called the "truth" only to discover later how misguided I was. It is also one of the reasons I like posting on the internet because it exposes me to other points of view and makes me consider them.

I have considered the Charlie is an Asshole Thesis, but it simply does not stand. I can call people bitches, sluts, cocksuckers or what have you all day and no one really gives a fuck except a few religious fuckheads. But the moment I say something true such as "I think you might have a drinking problem," I become an insufferable asshole. So be it.

What makes people fucked up in the head is not so much their refusal to accept truth and reality so much as the belief that they already have it. I know I don't have it. My worldview is a permanent work in progress. I can make strong arguments for my positions, but I am also reconsidering them in my own mind at the same time. I don't take it for granted anymore that what I believe is correct.

I am also appreciated after the fact. I can't count how many times people have come up to me to apologize later. I am vindicated time and time again. My enemies are the ones who come to ruin while I continue onward. This leads me to the big choice I face in my life.

Should I be truthful or tactful? Should I tell people what they want to hear or what they need to hear? Clearly, it is the latter. Being a flatterer nasueates me. Being a friend appeals to me.

I'm not going to spend the rest of my days worrying about people liking me. I have had too many people tell me they admire me for taking the stands I do and have told me to not worry about people who can't handle honesty. In the end, you can't please everybody.

On a sidenote, I have also come to realize that the fundamental reason for my recent breakup is because I was involved with a woman who refused to listen. I want to blame myself because I can fix myself. But I wasn't the problem. The truth is I never am. The women I date can't handle the truth. The moment I cut too deep is the moment they are out of there. This is why many women prefer flattering men who lie to them. And they suffer the consequences for this. It is the triumph of tact over truth.

I can't be the flatterer. If I see a naked emperor, I will call him or her out. On the flipside, I accumulate honest friends. I just wish I could find an honest girlfriend. The last one was like all the rest--a self-deluded liar.