Monday, June 30, 2008

Shaq is from Leominster, MA (west of Boston), and counting the Canadian side of Niagara Falls, China will be his second international trip. A lover of music and dancing, Shaq is a DJ at WNEK-FM. Shaq practices martial arts, and is particularly interested in seeing wushu (Chinese martial art) demonstrations while in Beijing.

Jake is from Plymouth, NH, and going to the Olympics is a dream-come-true. Having been to the Turks and Caicos Islands, Jake is interested in seeing and experiencing a different country and culture in China. Jake's motto is "if it's meat, I'll eat it," so we will put that to the test every day in Wangfujing Snack Street near our hotel!

Most people do not know that Bre, who is from Amherst, NH, is a twin sister (whaaaat?!). Her greatest fear on this trip is that she will get lost (memo to Jenn: do not buddy up with Bre!), but she is anxious to experience both a new culture and the Olympics. This will be Bre's second foreign trip, after Bermuda.

Ashley is from South Hadley, MA, and will be making her first trip abroad . . . to Beijing, China! As a political science major, Ashley is particularly interested in the role of the Chinese government in the organization of these Olympic Games. A closet cut up, Ashley is expected to keep the group entertained with her jokes based on famous Chinese fortune-cookie sayings!

Jess has been to the UK and Ireland, and can't wait to visit China to personally witness the Olympics, which she has been watching on TV since childhood. Jess is from Bethlehem, CT (west of Hartford), loves to cook and eat, and says she will try almost anything . . . so we will see if that includes starfish, seahorse, and cicada!

AJ has been in Beijing since June 6, doing an internship with Club Football Ltd, a grassroots soccer program for adults and juniors. In his spare time, AJ is studying Mandarin so that he can order our meals when we get to China! He is from Northboro, MA, and has visited Canada, which he reports is quite different from China!

Rob loves to play sports and is anxious to see the best athletes in the world at the Olympic Games. Rob is from Saugerties, NY (south of Albany), and is looking forward to adding China to his list of foreign destinations outside of Canada, as he begins his campaign to see the world and learn about different cultures.

Since visiting France, Whitney caught the travel bug and now wants to see the the rest of the world. Even though she believes going to the Olympics in China will be an amazing experience, Whitney is a bit nervous about the plane ride over to Beijing. Whitney is from East Falmouth, MA, or simply "the Cape," as they say in New England.

Mike is from Colonia, NJ, and has for many years wanted to go to the Olympic Games. Having previously traveled to Canada, Mike is eager to venture beyond North America, and is ready to experience China's culture and the excitement of the Olympics. Mike's next big event on his to-do list is to attend a Super Bowl.

Amanda is from Stamford, CT (also home to other notable people such as Benny Goodman, Bob Crane, Christopher Lloyd, and Bobby Valentine), and is anxious to experience the Olympic Games and China up close and personal. She has been to Mexico and Aruba, and hopes to get a job that will allow her to travel the world.

Lauren has been to Italy, Germany, and Costa Rica, and with the addition of China, will be well on her way to achieving her travel goal of visiting every continent. She is from Wolcott, CT (west of Hartford), and is passionate about travel, soccer, and food (though not necessarily in that order!).

Jenn has traveled to Fiji, New Zealand, and Australia, and is excited to add a fourth country to her passport! Her greatest fear about going to the Olympics is that she might get lost among Beijing's 15+ million people, all the while not being able to speak Mandarin! Jenn is from Rensselaer, NY (near Albany).

Marti is a veteran globetrotter, having traveled to France, Germany, Mexico, Canada, Switzerland, and Israel; and being from the Philly area, she is a big-time fan of the NHL Flyers. Since she is a prolific texter, Marti volunteered to head up the student BOG (Beijing Olympic Games) blog!

Cool People

This next series of posts will introduce readers to the group of eager learners and intrepid travelers to the Beijing Olympics, who signed up for this seminar abroad program last fall and filled the roster within days of the announcement. Although competition tickets have been sold out for US tourists for nearly a year, we managed to score tickets to soccer, track & field, beach volleyball, tennis, softball, boxing, basketball, baseball, water polo, and badminton. In addition, we will visit the Forbidden City, Tiananmen Square, Temple of Heaven, Summer Palace, and Great Wall of China, as well as meet with top officials of sport, business, government, and academia throughout our eight days in China.

Saturday, June 28, 2008

Serendipity - Welcome Bella

December 1st 2005 is a date I would prefer to forget as it is the day that I got the awful phone call telling me that my beautiful foundation broodmare 'So Gentle' (Genna, pronounced Jenna) had died whilst in the 'care' of someone else. Not only had she died suddenly but she had died after foaling a dear little filly foal who was left and orphan.

Very long story short, I raised the orphan foal for the 'breeder' who was not in a position to do so and returned her to her when she was three months old (bawling my eyes out of course). The 'breeder' soon decided that she was too much like hard work and put her up for sale. I was never notified of her being for sale but found out through the grapevine and after lots of emails, phone calls and secret planning, she ended up with a friend up north, where she still resides and is very happy and loved and cared for (and I believe, rather naughty, hehe!).

So, back to Genna. I had purchased Genna from an advertisement in the Horsetrader magazine. I had seen her advertised and her breeding had caught my eye – I had initially made contact on the off chance that she might have been a filly that I had sold about 8 years earlier when personal circumstances forced my hand. She was not said filly (whom I had adored) but she sounded perfect so we took the float and we went to see her. Genna had already foaled a number of TB foals for the racing industry prior to coming to me. She was 14 years old, healthy, clean legged and beautiful. She would go on to produce my very first homebred foal (Bridie - now in a wonderful home where she is a SJ and Trail riding horse for a farmer) then Bijou (this was a twin foaling and BJ the survivor of the two foals) and then, her last foal, at the age of 20, Roxy.

I had always lamented the fact that I had not retained a filly out of Genna but none of us has a crystal ball to gaze into the future with, do we.

Now, lets travel back in time to last spring. I am a regular visitor to the NZHorses website and last spring one of the board regulars posted an SOS message as he had lost a mare post foaling and desperately needed a foster mare. I put him on to the foster foal service as this is an option we had tried for with Roxy. He was successfully matched up with a TB mare and she instantly took his foal – A wonderful success story! He posted up photos of this lovely mare with her new baby and someone asked her breeding. I couldn’t believe it when I got an email alerting me to the thread asking me if ‘So Gentle’ had been my mare. Amazingly it turned out that Bella, the foster mare, was Genna’s first daughter (her third foal, first filly). I just thought it seemed so serendipitous that, after my recommendation of the foster foal service, the mare that saved them was none other than a daughter of my beautiful precious Genna.

Now cut back a couple of days ago. I was alerted by email to another message on the NZHorses message board asking me if I would like Bella. The drought in the Hawkes Bay (and around the country) has pushed up feed prices and grass is at a real premium and Bella’s owner (the people who had made her available to the foster mare program had gifted her to the foal’s breeder) was looking for a new home for Bella and, would I like her.

I am SO not supposed to be taking on any more horses and have been turning them down left, right and centre but I had to have Bella. I just had to. It was fairly urgent as she was starting to drop condition and they really wanted/needed to move her on so I rang my friends at Woodville Wairarapa Horse transporters to see what they could do. I made that call on Friday afternoon. On Saturday night, she arrived! Big plug for Woodville who pulled out all the stops to get her collected and delivered safely to me.

She’s just beautiful and very like her mum! Taller, rangier with more bone and a different colour (Genna was a chestnut, Bella is a dark bay) but has some of the same mannerisms, the same face and eyes and loves rubs in the same spots and even has the same strange ticking on her face that Genna had. I have to admit I shed a tear when she leaned into me as I rubbed around the base of her ears, just like Genna would. She's obviously been well cared for and loved and I am just so grateful to Nick for letting her come and live with us.

And here are a couple of her last year with her foster babe, Lexus.

Random Thoughts on Various Subjects


Once in awhile, the SCOTUS gets it right, and they did so in striking down the DC gun ban. I think their reasoning is shaky as hell, but guns are an essential component to personal liberty. An armed citizenry is a free citizenry. Outlawing guns is stupid and hurts people while making them easy prey for criminals. I can only hope the SCOTUS will go further with gun rights.


This is when the SCOTUS gets it wrong. Child rape is deserving of th death penalty. As it stands, most child rapists are going to be killed anyway. Putting them on death row and killing them with lethal injection is probably more humane than putting them into the general population or decades in protective custody. The reality is that there are few crimes that are more repugnant than raping a child. Monsters like this are not fit to live.

I am not a huge fan of the death penalty because I think innocent people have died because of judicial fuck ups. But I think it is a fitting punishment for murder and the rape of a child. I would personally love to kill all child rapists and molesters. My hatred for them is probably extreme, but it tears my heart in two to think there are children who suffer like this in the world.


I am sad to lose a funny guy and a great freethinker. Carlin did what a great comedian should. He made you laugh, but he also challenged your thinking. This tradition hearkens back to the court jester who was the only one free to say what he thought. Carlin will be missed.


Russert was a good newsman. I thought he had shit for brains politically. But he did make the politicos sweat. For this, he will be missed.


Like it or not, Ron Paul did more for the libertarian movement than any politician before him. He did way more than any LP presidential did or ever will do. I really think the Ron Paul way of working within a major party is the way to go. I think it is a better strategy than trying the third party route. I hope Bob Barr shakes things up in the fall, but I have to face facts. Bob Barr will be marginalized and forgotten. I think more people will write in for Ron Paul than will vote for Barr.

I'm not wasting my time on the LP anymore. I'm going to do like those religious shitheads have done and create trouble within the GOP until people listen to me and likeminded folks. Ron Paul is doing this, and I support him in this.

Nike vs. Adidas

Reminiscent of the cola wars between Coca-Cola and Pepsi, the titans of sports footwear, Nike and Adidas, have been waging a high-stakes campaign in China against the backdrop of the coming Olympic Games. While Adidas is an Olympic Games sponsor and Nike is not, they appear evenly matched with some 3,000 stores each throughout the country. The leading athletic shoemakers are pitted in a marketing frenzy to gain a stronger foothold (no pun intended!) in China and a greater share of the $27.5 billion industry. Combined, Nike and Adidas account for nearly 60% of the worldwide athletic footwear market, though Chinese sportswear maker Li Ning (see previous blog) and Italian shoemaker, Geox (see article, below), among others, are throwing their pebbles in the pond in hopes of generating something of a ripple. Question: do you think Adidas' Olympic sponsorship gives it an edge in this latest battle in the global shoe war?


Friday, June 27, 2008

Hey Prime Minister this applies to you

I know you think your above the law, but please, stop parking in a Handicapped spot, unless your trying to tell us something.

Can ya imagine what blogs like would be saying, if John Key did this.

Hosting the Olympics: Investment or Insanity?

A recent Worth Magazine article ("Fool's Gold," 3/1/08) asserted that at a whopping $34 billion, this summer's Olympics in Beijing "are going to be the most expensive games in history." To put this in perspective, the most recent Olympic Games just four years ago in Athens -- with its massive cost overruns and security expense -- carried a then-hefty price tag of $8 billion, while the last summer games in the U.S. (Atlanta in 1996), came in at a mere $1.8 billion. Of course, the paradigm shift attributable to the events of 9/11 has driven some of the budget inflation, such that the security line item alone for the 2004 Athens Olympics was pegged at $1.5 billion. But with the uncertain economic return on investment, why is it that Beijing in 2008 and other cities at other times trip over themselves to pay exorbitant sums for the "privilege" of hosting an Olympics or even a World Cup?


Finally the Blackcaps show Passion!

Finally the Blackcaps have shown passion. After Collingwood decided not to call back Elliot, the Blackcaps were fuming and they let their disgust be known. Then when they took the winning run off the last ball, the celebrating begun, not since the 80's have I seen a kiwi cricket team so fired up, wanting to win, and it meant so much to them.

For too long now, we have had a team that just wanted to be paid and didn't really care about the result, you could tell this in press conferences afterwards when players would just shrug their shoulders, and say "Well we have to be more consistent" and then just walk off.

Hats off to Vettori for bringing Passion to a team that lacked it, maybe this will start a whole new era for the Blackcaps, where players want to play, where players will turn up early for training and not leave until dusk, this hasnt happen for a long time, but if it does, we could have another glorious era in New Zealand cricket.

Wednesday, June 25, 2008

Bad Duke Football Team Wins in Court

Being a bad football team paid off for Duke University, which won a breach of contract lawsuit because in large part because of its unsuccessful track record and a contract clause that required the plaintiff, the University of Louisville to find an adequate substitute school after Duke backed out of a obligation to pay the better school.

Duke's football team has amassed a record that few would envy. Six wins and 45 losses over the last five seasons puts the team in the category of as bad as it could get. As reported by the Louisville Courier-Journal, the University of Louisville sued Duke claiming breach after the Blue Devils opted out of the final three games of a four-game football series covering the 2002, 2007, 2008 and 2009 seasons after Louisville demolished the Duke Team 40-3 after the first game in 2002. Apparently, Duke waved the surrender flag to avoid more embarrassments.

The case, University of Louisville v. Duke University, No. 07-CI-1765, filed in Franklin (county) circuit court, sought $450,000 in damages. The amount was derived from a contractual cancellation penalty clause of $150,000 per game if the nonbreaching party is unable to schedule a replacement game with a “team of similar stature." According to the article, Duke asked Louisville to attempt a good faith effort to find a replacement opponent and promised to pay Louisville only if the school could not find one. Louisville claims it could not do so and therefore asked for the liquidated damages.

It is in interpreting "team of similar stature" where Duke's lack of success helped. Judge Phillip J. Shepherd agreed with Duke’s argument that it team was so bad that finding a replacement team of "similar stature" should have been a slam dunk (pardon the bad pun). As the opinion noted:

"To say that one thing is “of a similar stature” to another is to say that
the two are on the same level. Nothing in the language of the agreement
suggests that it is necessary or appropriate to conduct an in-depth
analysis of the relative strengths and weaknesses of the breaching team
and its potential replacements. Nor does the agreement specify that
replacement teams must be from a particular major athletic
conference or even a particular division of the National Collegiate Athletic
Association (NCAA). The term “team of similar stature” simply means any team
that competes at the same level of athletic performance as the Duke football
team. At oral argument, Duke (with a candor perhaps more attributable to
good legal strategy than to institutional modesty) persuasively asserted
that this is a threshold that could not be any lower. Duke's argument
on this point cannot be reasonably disputed by Louisville.

Louisville did find substitute teams and the court rejected the claim that the term "similar stature" was ambiguous. According to Shepherd, finding a suitable replacement literally meant that any NCAA Division I team would suffice – including those in the Football Championship Subdivision (formerly known as Division I-AA.) Therefore, the court granted summary judgment for Duke for the 2007 and 2008 season, but did not consider the 2009 season since the claim lacked ripeness.

Imagine, however, if Duke was a more competitive football team. Then the substitution clause would be more difficult to fulfill. Or, in a legal nightmare scenario, imagine that Duke's football team was as good as its men's basketball team! Needless to say, substation would be far more difficult.

[Note: I would like to thank reporter C.L. Brown and the Louisville Courier-Journal, who giving me access to the opinion.]

Justice Alito’s Comments on Holmes’s Opinion in Federal Baseball

"That to which it is incident, the exhibition, although made for money would not be called trade or commerce in the commonly accepted use of those words. As it is put by the defendants, personal effort, nor related to production, is not a subject of commerce."

Justice Holmes, Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, 259 U.S. 200, 209 (1922).

Howard Wasserman posted a reference on June 3 to comments by Justice Samuel Alito before a Supreme Court Historical Society gathering on the opinion of Justice Holmes in Federal Baseball that established the foundation for baseball’s antitrust exemption. In reading the linked post by Tony Mauro at The BLT: The Blog of LegalTimes, I found the following statement:

"Alito said the Supreme Court's decision has been pilloried by scholars and judges alike in the decades since it was issued. More recently, he said, some commentators have been 'less harsh,' fitting it into a more modest view of the scope of the Constitution's commerce clause. Alito indicated that he is in the camp that views the case more kindly."

I do not have access to Justice Alito’s comments or his references. However, after teaching the case for years, I think that one aspect of Holmes’s decision is commonly overlooked. If you notice the second sentence in the quotation at the beginning of this post, you will see the hook for my argument. To support this reading of the case, I have spent some time analyzing the briefs of counsel. The position that a baseball game was the result of human labor and not production or manufacturing of goods was argued by counsel and accepted by Justice Holmes for deciding that baseball was not within "trade" - the second of the three prongs of a Sherman Act § 1 violation with "contract, combination, or conspiracy" and interstate commerce.

The defendants (the member teams of the two leagues and the three members of the National Commission) were represented by George Wharton Pepper, Benjamin S. Minor, and Samuel M. Clement, Jr. In their brief, the attorneys offered three reasons why organized baseball was "not within the Sherman Act." The presentation of the first of these three reasons begins on page 46. Counsel advanced the following statement - "(a) Personal effort, not related to production, is not a subject of commerce; and the attempt to secure all the skilled service needed, for professional baseball contests is not an attempt to monopolize commerce or any part of it. It is believed that in no decided case has it ever been held that personal effort, considered apart from production, is a subject of commerce." This is the point of Holmes’s opinion that has long been ignored. Notice that in the quotation above, Justice Holmes specifically refers to the position taken by the defendants that personal effort apart from production (e.g. manufacturing) does not constitute commerce. After citing § 6 of the Clayton Act ("That the labor of a human being is not a commodity or article of commerce."), counsel proceeds to discuss a number of cases supporting their basic position.

The first cited case, Paul v. Virginia, 75 U.S. 168 (1868) involved the sales of contracts for fire insurance, and counsel followed that with a reference to Hooper v. California, 155 U.S. 648 (1894) that marine insurance sales could not be distinguished from fire insurance sales. Hooper was one of the two cases cited by Holmes in the opinion, and it would be overruled by the Court in 1944 by United States v. South Eastern Underwriters Ass’n., 322 U.S. 533 (1944). Counsel proceeded to distinguish Paul and Hooper from one involving correspondence school instruction, International Textbook Co. v. Pigg, 217 U.S. 91 (1909). Unlike a baseball game played locally between two teams, the main point of the transaction in Pigg was the shipment of educational materials from Pennsylvania to students in various states.

Counsel turned next to a discussion of Metropolitan Opera Co. v. Hammerstein, 147 N.Y.S. 532 (1914):

The production of opera or other theatrical exhibition before an audience in exchange for the price of tickets involves none of the elements of trade or commerce as commonly understood. There is no dealing with an article of trade or commerce nor any use made of the instrumentalities of commerce. The holder of the ticket pays a certain price as a consideration for the privilege of experiencing the gratification of an artistic sense."

The three attorneys continued to pile on more precedent. In In re Duff, 4 F. 519, 521 (1880), they quote the court: "This bankrupt was a theatrical manager ... I think he cannot be considered a merchant or tradesman within the meaning of the statute;" In re Oriental Society, 104 F. 975 (1900): "A corporation engaged in giving theatrical performances is, of course, not engaged in manufacturing, printing, or publishing;" People v. Klaw, 106 N.Y.S. 341 (1907), determining that booking arrangements by theatre owners did not constitute trade.

In examining American Baseball Club of Chicago v. Chase, 149 N.Y.S. 6 (1914), counsel provided a quotation from the opinion citing a definition of "commerce" from the Century Dictionary ("‘interchange of goods, merchandise or property of any kind; trade, traffic") together with a definition of "commodity" before concluding that

The foundation of the National Agreement is the game of baseball conducted as a profitable business, and if this game were a commodity or an article of merchandise and transported from State to State, then the argument of the defendant’s counsel might be applicable.

Gary Hailey, an attorney and author of "Anatomy of a Murder: The Federal League and the Courts" in the spring 1985 edition of the Society for American Baseball Research’s National Pastime concluded that "given the legal doctrines of the day the Federal Baseball case was correctly decided. The courts of that era applied the federal antitrust laws only to businesses that were primarily engaged in the production, sale or transportation of tangible goods."

Although I do not think that either reading of Federal Baseball was an appropriate reason for the per curiam opinion upholding the decision in Toolson v. New York Yankees that really established the reliance on stare decisis that was critical for Justice Blackmun’s opinion in Flood v. Kuhn, I do think that it provides an important point of jurisprudential context for the 1922 opinion by Justice Holmes.

Olympic "Ambush" Marketing: Fair or Foul?

Today's Wall Street Journal reported that Chinese sportswear company Li Ning, which is not an Olympic sponsor but which has an exclusive contract to outfit sportscasters of China's CCTV (broadcaster of the Olympics in China), withdrew a provision in its agreement that would have seen the company's logo -- a stylized "L" -- prominently displayed on apparel worn by sportcasters during studio broadcasts. Olympic officials jealously guard the intellectual property rights of official sponsors and publicly scorn companies that seek to benefit by implying a relationship to the Olympics, a tactic known as ambush marketing. With worldwide Olympic sponsorships approaching $100 million for the next four-year period, however, it is no surprise that some companies that are unwilling or unable to fork over the price of admission still try to piggyback on the marketing juggernaut that is the Olympic Games. So the question is whether these so-called ambushers are ethically challenged or simply entrepreneurial in their outlook.

Article -->

Hank Steinbrenner, Chien-Ming Wang, Salary Arbitration and the DH

On Sunday, June 15, New York Yankees pitcher Chien-Ming Wang tore a tendon in his right foot and suffered ligament damage while rounding third base during a 13-0 victory and the finale of a series sweep against the Houston Astros. Wang improved his record to 8-2 for the season while lowering his ERA to 4.07. Wang was on the base paths after a fielder’s choice, and one of the results was the ire of Hank Steinbrenner concerning the National League’s refusal to adopt the designated hitter.

Kevin Kernan of the New York Post agreed with Steinbrenner’s assessment in a June 17 article. Kernan quoted Steinbrenner as arguing that the National League needed to join the 21st Century and abandon the game as played in the 1880s. Furthermore, Steinbrenner noted that "It’s OK for the Yankees to fill up the seats in the National League parks, they make a ton of money off us." Kernan seconded the observation - "Steinbrenner is right. Most leagues, amateur, college and professional use the DH, something the American League instituted in 1973." Although upset over losing the pitcher for an extended period, Steinbrenner and the Yankees’ position during salary arbitration in February clearly popped into my mind.

Wang had requested $4,600,000 from the Yankees who countered with a $4,000,000 offer. Of course, either figure was a big increase over his 2007 salary of $489,500. Wang wanted a long-term contract, but the Yankees responded that it was "not the time" according to Anthony DiComo’s February 12 posting for DiComo further commented that "the team’s reasoning, according to Wang, was that it’s difficult for pitchers to stay healthy, so there’s little incentive to sign a young starter to a long-term deal." With Wang not eligible for free agency until 2011, the Yankees had little incentive to grant Wang’s request. A number of articles noted Brian Cashman’s position that the figure chosen by the Yankees was the appropriate slot for a first-time arbitration-eligible pitcher with Wang’s career numbers.

When neither side budged, the case went to a hearing on Thursday, February 14, in St. Petersburg. The arbitration panel of Jack Clarke, Stephen Goldberg, and Christine Knowlton sided with the Yankees. The Wang decision was one of the six victories this February by the clubs against two losses. Jon Heyman provided some interesting insight into the hearing in’s The Daily Scoop on February 20. Heyman noted that Wang’s representatives "badly overshot when they tried to compare Wang to Michael Jordan." The Yankees argued that Wang had not matched Dontrelle Willis when he first became eligible for arbitration after a 22-win season in 2005. The woes of Willis since that breakout season are probably well known to most readers of this blog. The Yankees also likened Wang to Scott Kasmir, Joe Blanton, Freddy Garcia, Roy Oswalt, and John Lackey. Oswalt, for instance, jumped from $500,000 to $3,250,000 for the 2004 season. The Astros were rewarded with back-to-back 20 win seasons in 2004 and 2005. Oswalt excited the game against the Yankees right after Wang’s injury. The Yankees also stressed the great run support that Wang received.

The Yankees concern about Wang’s injury potential probably focused on his arm not his right foot. Albert Chen’s excellent Sports Illustrated piece, "Chien-Ming Wang Has A Secret" (April 21, page 44) detailed the rise of the Taiwanese star and the concern shown by many major league teams over the physical demands placed upon young pitchers in Taiwan. Wang missed the entire 2001 season after blowing out his shoulder. Chen pointed out in his article that the "grueling training regimens in Taiwanese colleges and professional leagues have been blamed for the short careers of pitchers." Wang had pushed his won-lost ledger for the Yankees to 54-20 (.730 percentage) with his victory over the Astros. He was on target for an interesting round of salary arbitration in February 2009. Now he faces rehab sessions, and Hank Steinbrenner will push for a change in the designated hitter rules at least for interleague games.

Green Bag Call for Papers: Baseball and the Law

We are seeking submissions for our 2010 Almanac & Reader, which will have a baseball-and-the-law theme.

We want scholarly essays on topics related to baseball and the law. We hope to select 12 essays, each between 1500 and 5000 words long. Topics in which we are particularly (but not exclusively) interested are: (a) baseball and … civil rights law; criminal law; defamation law; intellectual property law; international law; labor law; media law; property law; tax law; tort law; transportation law; (b) baseball players who were or became lawyers; and (c) roles played by lawyers in baseball.

Please send your proposals for papers to

(H/T): Legal Scholarship Blog

Tuesday, June 24, 2008

I guess it must be winter ...

Woke up this morning to this ...

Golden Bear

I should mention that we will be taking our mascot to China with us! Here's "Golden Bear" in its cozy backpack perch, from where it will take in all the sights, sounds, and aromas of Beijing's attractions, traffic, people, restaurants, and more!

Delegation Roster

I will post more about each student later, but for now . . . here's the crew:

JENN ASHLEY, Rensselaer, NY
MARTI BLUM, Huntingdon Valley, PA
ROB HORTON, Saugerties, NY
AJ PAPPAS, Northboro, MA
JAKE ROY, Plymouth, NH

Seminar Abroad '08

This summer, my faculty colleague, Dr. Dan Covell, and I will be taking a group of 13 Western New England College students to Beijing August 8-17 during the Olympic Games, which undoubtedly will be an experience-of-a-lifetime. I am looking forward to seeing some of my friends from the international sporting community (I was the director of International Relations for the US Olympic Committee from 2000 to 2006), and I know our students are giddy with excitement about going to the Olympics, seeing some of China's ancient and iconic cultural attractions, and sampling exotic Chinese cuisine . . . perhaps even daring to try scorpion-on-a-stick!

Does Shaq Have First Amendment Claim Against Phoenix Sheriff Who Took Away His Badge Over Kobe-Rap?

We've blogged before about Shaq's amusing part-time role as a volunteer reserve sheriff (see my post here and Mike's post here). After moving from Miami to Phoenix as part of the "worst trade ever", Deputy Diesel resumed his part-time law enforcement career with the Maricopa County Sheriff.

The Sheriff was not pleased, however, with Shaq's recent "freestyle" Kobe-dis, which aired yesterday on the web site TMZ (warning: mildly unsafe for work). In the profanity-laden performance, Shaq uses a racial epithet, accuses Kobe of ruining his marriage and opines that Kobe could not win a championship without him.

Sheriff Arpaio has now asked Shaq to turn in his badges. "[I]f any one of my deputies did something like this, they're fired," explained the Sheriff.

Could Shaq challenge his termination based on his First Amendment right to free speech? Interestingly, Arizona has recently produced some cases in which law enforcement officers challenged their terminations on free speech grounds. In Dible v. City of Chandler, the Ninth Circuit upheld the termination of a law enforcement officer who participated in his wife's pornographic photo business. The Court opined that his "speech" did not involve a matter of public concern, and therefore was not protected by the First Amendment.

While much of Shaq's rap clearly involved private matters, and his termination resulted more from the terms he used than the content of his expression, what about his assertion that Kobe couldn't win a championship without him? A matter of public concern or importance?

Andrew Saville and the NZ media disgrace themselves

The way the NZ media have reported the story of gang rape by four members of the English rugby team is a disgrace.

Saville needs to be dumped for his reporting of the last two weeks, the editors of stuff should hang their heads in shame.

Headlines such as "Hijinks at the Hilton" or Saville saying "Sex romp" is sick, this is an allegation of Rape.

If the woman was saying it was consensual, then the headline and Saville's reporting would be okay, (for a Tabloid anyway) but she is saying it was rape, until charges are laid, or not laid, until guilt or innocence is declared in a court of law, this needs to be taken more seriously by our media.

You can bet your bottom dollar if this was any other player from another code then our media would take this story way more seriously, there would be talk about the damage that its done to the sport, woman right activists would be getting airtime, and thats the way it should be, its a disgusting unforgivable crime.

I hope heads roll at and I hope Saville ends up losing his job, for making light of such a serious story.

Monday, June 23, 2008

I am officially soft!

Today I caved completely and, with the threat of snow and appalling weather I rugged the horses up to the nines, including Kenzie, Meg and Twinkle. For Kenzie it was her very first time wearing a rug but she's such a cruiser, I knew it would not be an issue. Meg and Twinkle had a brief introduction to rugs in the autumn but today were re-introduced in the paddock and, showed no signs of being at all bothered. I watched them for a wee while after they were dressed and they played around showing off their new rugs to everyone else and then settled down to the very important business of eating more grass. Of course the weather won't eventuate now but at least, if it does, I know everyone is going to be nice and dry and warm.

Photo's below
Bados, Kenzie, Tiffin and Smoothie
Meg and Kenzie - Blisters
Uncle Bados and Kenzie Meg, Kenzie, Tiffin and Smoothie
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More on Sonics Lawsuit

Jim Brunner of the Seattle Times has a terrific new piece on the increasingly-acrimonious lawsuit between the Sonics and the city of Seattle. The article is entitled "Sonics Trial: What's Under All the Drama?" He interviews my good friend Professor Al Brophy and me, along with others, for the story. Here's an excerpt of our comments:

* * *

"I think the truth is the Sonics had the advantage going into this," said Michael McCann, a Boston College law professor and legal analyst for "The tradition of courts has been to substitute monetary damages."

A crucial test for the city to reverse that presumption may be whether it can prove that the Sonics are a unique tenant — one that brings benefits to the city that cannot be calculated in dollars and cents.

The city has argued that point, bringing in witnesses to talk about the Sonics' charity work and the team's spillover economic benefits to the community.

Seattle also brought in author and National Book Award winner Alexie — who compared NBA players to Greek gods — to speak for passionate fans who would miss the team. (He brought up the missing cucumber sandwiches, which had been served at a past season-ticket holder event, to imply Bennett had deliberately sabotaged fan interest.)

The city has "a strong argument" when it comes to the unique benefits of having an NBA team as its arena tenant, said Alfred Brophy, a law professor at the University of Alabama and an expert in landlord-tenant law.

"Public interest is a trump card that judges throw down to resolve these kinds of huge cases, especially when you have something like a building that a lot of people use, or a highway, or in this case, a city's treasured team," Brophy said in an e-mail.

Brophy dismissed Bennett's claim that the team would lose $60 million over the final two seasons at KeyArena.

"The team's fear that they'll lose money isn't a factor in whether they've broken the contract. Just because you struck a bad deal and you're going to lose money isn't a basis for getting out of a contract," he said.

* * *

To read the rest of the article, click here. We have plenty of coverage of this trial on Sports Law Blog, including Mark Conrad's excellent post from last week.

George Carlin and some sports

Comedian George Carlin died yesterday of heart failure at age 71.

At Concurring Opinions, Deven Desai links to one of Carlin's funniest routines--comparing baseball with football. Worth a watch.

The New Republic's Feature Article on Sonny Vaccaro

In this week's The New Republic, Jason Zengerle has a terrific, in-depth (nearly 6,000 words) article on basketball legend Sonny Vacarro and his arguments against the NCAA and the current age eligibility rule for the NBA draft. I was interviewed for the article, which is entitled The Pivot. Here are a few excerpts:

* * *

As a shoe company executive, an all-star game organizer, and a summer camp and tournament operator, the 68-year-old Vaccaro has been one of the most powerful--and controversial--men in basketball for nearly three decades. He is the sport's ultimate insider, the man who brokered the marriage between Michael Jordan and Nike that gave birth to Air Jordan; plucked a 15-year-old Tracy McGrady from basketball obscurity in rural Florida and put him on the path to NBA stardom; and played godfather to myriad successful college basketball coaches, most notably Ben Howland, who reportedly owes his job at UCLA to Vaccaro's lobbying . . . When the NBA holds its annual draft on June 28 in New York City, Vaccaro will be there as the guest of at least three players expected to be taken in the first round. As one of those players, O.J. Mayo, who began keeping Vaccaro's counsel as a ninth-grader, has put it: "Sonny's kind of a man in the back."

* * *
Vaccaro believes the NCAA is fraudulent for two fundamental reasons: The first is that the NCAA is more devoted to business than to education; and the second is that the NCAA makes its money by exploiting the talents of the young men it is supposed to be educating. "They're not good people, the NCAA," Vaccaro told me. "It's a one-sided street; all the money goes to them." Vaccaro is revolted by the hypocrisy that's become engrained in the culture of college athletics--the insistence that the athletes are students, that the coaches are teachers (not "mercenaries" and "hired guns," as he calls them), and that "college sports," as NCAA president Myles Brand has declared, "is not a business." If Vaccaro's life is a testament to anything, it's that college sports is a business. And his new mission is to ensure that the people who contribute most to that business, the athletes, get something in return. "My goal," Vaccaro says, "is to get freedom for these kids."

* * *
In the meantime, Vaccaro is looking for ways to circumvent the "one-and- done" rule. The most promising avenue lies overseas. Two years ago, he was on the verge of brokering a deal for two American high-school stars to play one season for a professional team in Israel, but he scotched the idea because of Israel's conflict with Hezbollah. "The guy from the team was telling me, 'Sonny, the bombs don't come to Jerusalem,' but I couldn't let them go there," Vaccaro recalls. (Both players went to college instead.) Vaccaro is now looking for other young hoops phenoms who'd be interested in playing overseas for the year they'd otherwise be in college before coming back to enter the NBA draft. "I need Jackie Robinson; I need a guy who can stand this," he says. "And I think I'll have one."

* * *

For the rest The Pivot, click here. For other Sports Law Blog coverage of Sonny Vaccaro, including discussion of his recent talks at Harvard Law School and Yale Law School, among other schools, click here.

5000 Hits!!!!!

Yehaa!!! My wee blog has passed the passed the 5000 hits mark!

Hey Labour have ya Seen Auckland Airport shareprice lately?

Thanks a lot Labour, have ya seen the share price of AIA Lately? Thanks to you guys trying to appeal to your xenophobia base and to people who have never bought shares in thier life, your party has cost tens of thousands of Kiwis, hundreds of Millions of dollars.

Once again, Aunty Helen and her supporters, haven't figured out, that decent Kiwis, have no problem with the Government not selling their shares, but you had no right to tell private shareholders who they can or cannot sell their shares too.

Roll on the Election!

Sunday, June 22, 2008

Book Recommendation: Money Players

I recently enjoyed reading Marc Isenberg's Money Players: A Pro Athlete's Guide to Success in Sports, Business & Life. I enthusiastically recommend it to any sports fan, but particularly any player, team executive, agent, or prospective agent.

Over the course of 23 chapters, Money Players thoughtfully details every imaginable business aspect of becoming and being a professional athlete--from selecting an agent to maximizing media relations to understanding the duties and rights of being a member of a players' union--and does so in very clear and precise ways. In chapter 7, for instance, Marc offers a particularly terrific description of how the player drafts work, comparing the rules, as well as the risks and benefits of the major leagues' drafts.

I suspect I'll be regualrly using Money Players as a resource. It certainly delves into sports law issues and does so with both sophistication and clarity. If you would like to learn more about Money Players, check out these excerprts, Darren Heitner's interview of Marc on Sports Agent Blog, and Marc's blog, Money Players. If you are interested in learning more about ordering the book, click here.

New Sports Law Scholarship

Recently published scholarship:
James J. LaRocca, No trust at the NFL: league’s network passes rule of reason analysis, 15 UCLA ENTERTAINMENT LAW REVIEW 87 (2008)

Mitchell Nathanson, What’s in a name or, better yet, what’s it worth? Cities, sport teams and the right of publicity, 58 CASE WESTERN RESERVE LAW REVIEW 167 (2007)

Justin F. Paget, Comment, Did Gebser cause the metastasization of the sexual harassment epidemic in educational institutions? A critical review of sexual harassment under Title IX ten years later, 42 UNIVERSITY OF RICHMOND LAW REVIEW 1257 (2008)

David G. Roberts, Jr., Note, The right of publicity and fantasy sports: why the C.B.C. Distribution court got it wrong, 58 CASE WESTERN RESERVE LAW REVIEW 223 (2007)

Brian Shaffer, Comment, The NBA’s age requirement shoots and misses: how the non-statutory exemption produces inequitable results for high school basketball stars, 48 SANTA CLARA LAW REVIEW 681 (2008)

Michael J. Weir, Note, The ugly side of the beautiful game: “bungs” and the corruption of players’ agents in European football, 14 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS 145 (2007)

Saturday, June 21, 2008

Writer's Block

I have run out of things to write about. Actually, that is bullshit. The truth is I have been writing nonstop all day today, and I am simply scorched. They say if you have writer's block you need to write about having writer's block. It is a sure cure for what ails you.

I have a ton of projects going on, but everybody thinks I am goofing off or something. They only see the visible side of what I do because I keep the rest hidden. I will say that this is not the only blog that I keep. I can safely say that I generate about 100 pages of content each week. I am a machine, and I work in excess of 50 hours a week.

I don't understand writer's block. I've never had it. What I do get is writer's fatigue. I am feeling that way now which is why I have been neglecting the C-Blog. I will fix that this week. Thanks for hanging in there.

The Essence of Success - Sports and Otherwise

Every now and then we get a glimpse of the essence of something – that special ingredient among many that is most responsible for whatever it is. Without malt powder, it’s only a milk shake kind of stuff. Tiger Woods by all accounts is a successful golfer. At only age 32, he is winning major tournaments at a pace faster than anyone in the history of the sport.[1] Around the water cooler we try to capture his essence by saying “He’s a great athlete”. But upon the revelation that he not only won the U.S Open while hurt, but with a broken leg and a bum knee (technically two fractures of a major leg bone – the fibula- and serious ACL knee ligament damage), the essence is something more than just having “athleticism”. Some humans with great athleticism would cue the pain and have been back at the clubhouse by day 2, 3, 4, or day 5. Some humans would have missed the US Open altogether by the completely legitimate excuse of taking the advice of Tiger’s highly respected doctors. They essentially said, “swing your crutches not your clubs” this week.
But from the 5-day reality show called the US Open, we saw the essence of why Tiger Woods is so successful.” He wasn’t at his job just to make money. Before the Open started, he already had $128 million from salary, winnings, endorsements and appearance fees, making him the top-earning US athlete on the Sports Illustrated “Fortunate 50” for several years and counting. It is his ability to compete at the highest level in the face of adversity, the competitive desire to win, the single-minded purposefulness to overcome major “distractions”, the patience and perseverance to, as he says, “grind it out. Isn’t that the key in many of our personal and professional endeavors? When we rewind our minds to when we have been most successful, hasn’t it often involved one or more of those attributes? When you worked not just to get paid, but a combination of profitability and passion? Without swinging a 7 iron, haven’t you done your best when you stayed focused on the task at hand, or continued to work into the night to grind out a document when you could have been sipping martinis, or ignored the excuses to fight for what you believed about your abilities, not limiting yourself to what others thought were your limitations? What I saw in the US Open, therefore, was not just a sporting event. I saw a glimpse of greatness, born not in a golf swing or the singular desire to make the next dollar (OK, the next million dollars). The essence was in the mind and heart of a great achiever. I also saw a glimpse of the essence of what breeds success in all of us – just not as profitable and prolific, but prophetic nonetheless.

[1] He has now won 14 major championships. Only a legend named Jack has more at 18, but it took him longer to reach where Woods is now.

Friday, June 20, 2008

Faux News Interviews Obama

Thursday, June 19, 2008

Article on Coach Liability in Pro Athlete Injury Cases

From the Tort Law Professor Blog:

Sports law casebook author and Wake Forest Professor Timothy Davis has posted Tort Liability of Coaches for Injuries to Professional Athletes: Overcoming Policy and Doctrinal Barriers. Here's an abstract of the article:
The resolution of seemingly straightforward disputes that arise in sports often require courts to invoke rules from several substantive areas of the law. The potential tort liability of coaches and their teams for injuries to professional athletes provides such an illustration. Determining the culpability of coaches requires resort not only to tort law doctrine, but also to doctrine and policy related to contract, labor, and workers compensation law. This article first provides an overview of the law regarding the tort liability of institutions for injuries to athletes and the standards of care that courts have adopted. The article suggests that the breach of any duty imposed on coaches and their teams to players would most likely be assessed according to a heightened standard of care, specifically recklessness. The article concludes, however, that even if a coach engages in conduct that falls short of the applicable standard of care, a professional athlete will have difficulty prevailing in a tort-based civil action against a coach, or by virtue of vicarious liability, the team. In this regard, the article briefly discusses the defenses that might impede a player's ability to pursue state tort claims. These defenses, which include the labor law preemption doctrine, mandatory arbitration, and workers compensation, demonstrate the convergence of different strands of law in resolving sports-related disputes.

Wednesday, June 18, 2008

The Latest Odds on the US Election

The latest odds on the US Election are...

Obama: $1.50
McCain $2.80
Independent $13.00

Go Obama!!!

Tuesday, June 17, 2008

NCAA "Singles Out" Baseball Player for Not Paying Advisor

Liz Mullen of SportsBusiness Journal (OSU Case Raises Questions About NCAA Rules for Agents, 6/16/08) reports that Oklahoma State University pitcher Andy Oliver was declared ineligible late last month by the NCAA after he received a bill for $113,000 from his "advisor," MLB certified agent Robert Baratta. Oliver recently terminated Baratta, and hired Scott Boras as his advisor. According to Mullen, "Baratta maintains that by charging Oliver for 325 hours of advice at $350 an hour, he was following NCAA guidelines that state a student athlete must pay his adviser at that adviser’s normal rate." Mullen raises an interesting point: "The issue in the industry is the fact that many MLB player agents routinely charge student athletes nothing unless and until the player is drafted. That leads to the question of whether this standard, industry practice is a violation of NCAA rules." I would add that it also leads to the corollary question of whether or not agent regulations of governing bodies should conform with industry norms.

The NCAA Bylaws on amateurism and use of agents, which are incorporated into the student-athlete's scholarship, do not contain any provision requiring a student-athlete in any sport to pay his or her advisor, let alone how to pay his advisor. However, there is a statement buried in a Memorandum, dated October 7, 2007, from the NCAA to Baseball Student-Athletes with Remaining Eligibility that provides: "Finally, it is important to note that in order to maintain your eligibility at an NCAA school, if you receive assistance from an advisor, you will be required to pay that advisor at his or her normal rate for such services." The Memorandum contains a signature line for the athlete to date and sign.

The first "advice" that an advisor might consider giving his client is to not sign this document. I have no idea whether Oliver signed it, but I do not see how this Memorandum has any legal significance whatsoever if the student-athlete does not agree to it. Neither the NCAA bylaws nor the student-athlete's scholarship incorporates or references this document. If the NCAA were to declare ineligible a student-athlete who did not sign it, I think the student-athlete would make a very good case for breach of contract (his scholarship) and that the NCAA lacks the authority to declare any student-athlete ineligible for doing something that does not violate its rules and regulations. Under these facts and circumstances, it would be difficult for the NCAA to take the position that signing the Memorandum is a condition to remaining eligible. But that's the legal analysis. The practical reality is that if a player refused to sign it, the compliance director of the school would say to the player, "you need to sign it if you want to play."

This entire situation can be avoided if the NCAA would simply recognize that baseball players are uniquely situated from student-athletes in football and basketball because of the timing of the draft. The MLB draft takes place within days of the completion of the college regular baseball season, and during the playoffs for many players drafted. Student-athletes can't sign a contract with an agent before the draft because they will jeopardize their eligibility, and they also can't agree that they will pay an advisor when they sign a professional contract. So this "under the table" process takes place in which players choose an advisor with a handshake, and the advisor talks to clubs on his behalf, thus technically breaking every rule in the book. These verbal arrangements also create uncertainty between the parties regarding the terms of their relationship, including the agent's fee. But in football, for example, the player has a period of months between the end of the season and the draft to select and sign with an agent. The player signs the NFLPA standard representation agreement at which point there is no concern regarding loss of eligibility because the athlete has no remaining eligibility (he is either a senior or has declared himself eligible for the draft).

In a law review article published in 2005 (which can be downloaded from here), I proposed that the NCAA make an exception for baseball players and permit them to sign with an advisor during the season as long as the player and advisor execute a standard representation agreement drafted by the NCAA. This would help to clarify and define the "industry norms" as well as bring certainty to the terms of the player-advisor relationship.

Monday, June 16, 2008

Seattle Pins Hopes on Specific Performance to Keep Sonics in Town

Specific performance is one of those rarely-invoked contract remedies that makes for interesting reading. Because the remedy is limited to contracts involving "unique" items, it forces courts to determine the level of irreplacability and scarcity before imposing the remedy. Specific performance cases often involve cases of contracts involving rare works of art or real estate.

But a sports team? That is the question being asked in Seattle, where the city is attempting to compel its team, the SuperSonics to play out the remaining two years of its lease in Seattle before making a move to Oklahoma City. Previous posts in April 2008 and October 2007 discussed the dispute in detail. Essentially the team played in an aging facility (the smallest in the NBA) and when the city refused to make improvements in the KeyArena, the team was sold to Clayton Bennett, an Oklahoma City businessman who vowed to move it to his home town. The NBA gave its approval in the April.

However, the lease with Key Center ends in 2010 and the city wants the team to honor it. Marsha Pechman, the federal district court judge who will preside, will have the opportunity that law professors crave: decide on a case that has a compelling set of facts and the question of whether specific performance can be awarded in this case.

There is an excellent piece in the Seattle Post-Intelligencer which outlines the issue exceptionally well for non-lawyer readers. [Note, however, there is one journalistic faux pas that bothers me (as a former journalist). In that article, it states that "most attorneys claim that the city has a strong case." The author does not identify any attorneys nor gives us any basis for that quotation. It would have been helped to get some quotations.]

In any event, I don't see the case as being that simple. In addition to "uniqueness" the party seeking specific performance must show that it acted with good faith and with "clean hands." Let's assume that the Sonics are a "unique" tenant, unlike a typical business. This is reasonable since it would be difficult to find a replacement NBA team. But the good faith issue is in question and certainly would be contested during the trial. Did the city block attempts to refurnish or built a new arena? Did the two sides honestly try to resolve the dispute? Did Bennett act with good faith in his negotiations or did he consider it a fait accompli to move?

Finally, there is a bona fide question of the equity of compelling a team to play out a lease that would be less than economically viable. Setting aside the debate on whether the team "lost money" in Seattle, one can imagine the space crowds and public disdain for the team during those two years in Seattle. Compounding all this is a lawsuit by the former owner of the team seeking rescission of the sale and what effect a grating of specific performance would have on that litigation.

I see two upsides if the city is successful. By granting the request is that during those two years, it may be possible to the city of Seattle to agree on refurbishing the KeyArena or funding (partially) the construction of a new facility. But that is speculative and it may takes years for the fans to forgive the team for its actions. The second upside for the city is more vindicative: stick it to the team and force them to negotiate a settlement on better terms for the city. My gut tells me that is a plausible scenario.

The best solution: avoid specific performance and slap Mr. Bennett with damages (even perhaps some consequential damages, although that would be a leap) and wish him and the team a not so nice adieu.

Saturday, June 14, 2008

Random Thoughts on Various Subjects


This came out of nowhere. Dead from a heart attack. I liked Russert. NBC lost a good one. There will be a huge hole at Meet the Press.


Ron Paul called it quits, but the vows to keep on with a campaign for liberty and try to work within the GOP. Say what you will, no one has done more for libertarianism in terms of an election than Ron Paul. I voted for him, and he inspired a lot of people and their support.

I am a bit lost again. I can't deny that I am not overly enthusiastic about Bob Barr or the LP. I am very frustrated, and I am considering trying to go back and work within the GOP again to push the issues there. I think Ron Paul has given us a model to work from. I am divided between purity and pragmatism. Something for me to contemplate for the future.


It is hard to be enthusiastic about things when the price of gas is so high. I know all of this will work itself out, but I put the majority of the blame on a weak and inflated dollar. Ben Bernanke blows. He needs to ratchet up interest rates and force a recession. It is time to feel some sharp pain than this long drawn out misery.

Friday, June 13, 2008

Calvin and Hobbes

Wednesday, June 11, 2008

More winter ponies - clompety clomp

Why? Again, because I can. Here are the clompetys doing what they do best (clompetying) in their paddock today. Debi is definitely looking every inch the expectant mum, God love her! Robbie has gained back all the weight he lost over last breeding season and is starting to look more than a little portly. No doubt he will burn it all off soon enough so, for now, he's allowed to keep his grassy paddock and big tummy.