Sunday, May 31, 2009

Rain, Rain Go Away? Or on Second Thought, Stay!

I have not been cycling for the past week due to nonstop rain. But today I finally could not take it anymore: Despite the overcast sky and the morbid forecast, I went. By mid-day, it did rain. And it was great!

Some nice things about cycling in the rain:
. it's good for your complexion
. you can sing in it (and I did!)
. the grass and trees look super green, almost neon
. the lovely scent of flowers really comes out
. you have the cycle paths mostly to yourself
. you have an excuse to wear screaming red and lobsterman yellow!

Above: My empty Apfelspritzer mug, in an empty outdoor cafe -- in the rain. Look how red those geraniums look!

Saturday, May 30, 2009

Ballpark t-shirt case in Texas?

A woman wearing a "Yankees Suck" t-shirt was threatened with removal from The Ballpark in Arlington last week. And the story is drawing some national attention (ED: Contains video line; I removed video from post because it was playing automatically).

The Rangers have received a number of complaints about the word sucks and consider it impermissible profanity that is offensive to "many people." The woman is not talking about suing, only about wanting the Rangers to change their policy; she concedes that the park is private property (something I continue to dispute). She also makes the obvious-but-often-missed point that teams cannot ensure that no one ever is offended by what they happen to see and hear at the ballpark, especially if it is not in-your-face.

Even if there is no lawsuit, it is nice to have a ballpark-speech story with a singular (and seemingly sympathetic) face and story.

The Pashley Princess: How the Choice Was Made

I have been asked by several people now why I chose the Pashley Princess over the Gazelle and other options, so I wanted to describe the process that led to this decision.

First, I want to say that I do not necessarily think that Pashley is "the best" bicycle. It was the right choice for me, and this decision was based on very subjective criteria. In terms of quality, I think that most of the manufacturers profiled here are equivalent, and any differences in preference between them are a matter of personal choice. Please be certain to try out a bicycle before deciding whether or not it is right for you; it is the only way to really know.

My initial choice was between Gazelle, Batavus and Pashley. These were the only models out of the list here that fit all of my criteria and were available locally to try before buying. Gradually, the Batavus fell out of the competition, because it just did not pull at my heartstrings in the same way as the other two, lacking some of the more elegant touches. And so the real choice soon became between Pashley and Gazelle.

Selection factors:

1. Fit: The proportions of the Pashley fit my body just a tad better than the proportions of the equivalently sized Gazelle. Namely, the Pashley felt a bit roomier between the saddle/seating-tube area and the handlebars/front wheel area. Note that the Pashley Princess is available in three different frame sizes. Size "small" is smaller than Dutch bike sizes; sizes "medium" and "large" are equivalent to the 51 and 58 Dutch frames. I tried the Pashley "medium" and the Gazelle 51-size.

2. Getting the Perfect Configuration: To get a Gazelle configured with all the components I wanted (including adding gears, but more importantly, getting both the colour I liked and the brake system I wanted on the same model) would have involved more customisation and more money than Pashley.

3. Aesthetics: The subtle elements of Pashley's design -- including the angles, the curvature, the style of the chain cover and dress guard, the placement of lights, etc. -- appealed to me just ever so slightly more.

4. Je Ne Sais Quois?... : Granted, this is a rather vague factor, but I think it is important if you want the kind of bicycle that you will have a love affair with. The Pashley got to me at the intuitive/emotional level. It whispered "Take me, I am yours!..." in a sweet husky voice. What could I do?

And so there it is. My Pashley Princess Sovereign is now at Harris Cyclery, getting customised with a coaster brake and 7-gear Shimano hub. I also asked for her to be fitted with a drop-down stand and Brooks leather handles. By the time I return to the US, my green beauty will be waiting for me, and oh how happy our union shall be!

But I have a confession to make: I still want the Gazelle!... Yes, in addition to the Pashley... But that's insane, right? I don't need a second bicycle. Right?...

[Edited to add: I have now posted a full review of my customised Pashley Princess.]

Friday, May 29, 2009

Blog Overhaul

I finally got around to overhauling the blog. I changed the font to make it unreadable and simplified the sidebar a bit. It is probably not an improvement, but I did want to simplify things a bit. I had too much shit going on in that sidebar. Now, if I could just simplify my life.

Thursday, May 28, 2009

What happens in Delaware...

The possibility of sports gambling in Delaware is one step closer to becoming a reality. In March 2009, Delaware Governor Jack Markell requested an opinion from the Delaware Supreme Court regarding the legality of Delaware’s proposed sports lottery. On Wednesday, the Delaware Supreme Court ruled that the lottery does not violate the Delaware Constitution. Here are some questions you might have regarding this development, with a few answers.

I don’t understand. No lawsuit has been filed. Why is the Delaware Supreme Court giving an opinion on this? I’m having trouble deciding what to have for dinner tonight. Can the Delaware Supreme Court give me an opinion on that?

The Delaware Constitution authorizes the Governor to seek advisory opinions from the Justices of the Delaware Supreme Court regarding the constitutionality of any law passed by the Delaware Assembly. The Governor’s request does not need to be connected to any ongoing or potential litigation. Rather, as was the case here, the request can be made to “enable the Governor to discharge the duties of the office with fidelity.” The Opinions of the Justices are not binding in later litigation, but will likely be persuasive. And, to answer the second question, unless you’re the Governor and one of your dining options may violate the Constitution, you are out of luck.

What is the Delaware sports lottery?
Delaware introduced a football lottery back in 1976. That original lottery offered two types of parlay games. In the first game, players had to correctly select the winner of 7 NFL games in a given week. In the second game, players had to correctly select the winner of 3 or more NFL games with the point spread. The lottery lasted less than a year because the lottery commission had difficulty picking the correct point spread, which led to significant losses for the state.

Governor Markell pushed for a new sports lottery to help Delaware deal with its budget deficit. As proposed, the new Delaware sports lottery will consist of three games: First, a single game lottery, where players try to pick the winner of an NFL game with a point spread. Second, a total lottery, where players pick whether the total scoring in an NFL game will be over or under the total line. Third, a parlay lottery, where players pick the winner of multiple NFL games and/or multiple over/unders. In other words, the sports lottery allows people to bet on NFL games. As of now, it appears that the lottery will also use NBA games. If the sports lottery becomes a reality, Delaware will be the only state east of the Mississippi with legalized sports betting.

Did the NFL challenge the original Delaware sports lottery?

Yes. The NFL brought two broad claims in federal district court in Delaware against the original Delaware sports lottery. First, the NFL claimed that the sports lottery was an illegal form of gambling that violated the Delaware Constitution. Second, the NFL argued that the lottery violated the NFL’s trademarks, misappropriated the NFL product, and amounted to a “forced association with gambling.” In a 1977 opinion, Judge Walter Stapleton declared that the lottery did not violate the Delaware Constitution. He also rejected the bulk of the NFL’s intellectual property claims, but did require the lottery to make clear that the games were not affiliated with the NFL.

Why did the Justices of the Delaware Supreme Court determine that the new sports lottery is legal?

The Delaware Constitution prohibits all forms of gambling, except lotteries under state control that are used for the purpose of raising funds. Thus, the key question facing the Justices was whether the proposed sports lottery constituted a legal type of “lottery,” or an illegal type of gambling. This was precisely the issue addressed by Judge Stapleton in 1977, so the Justices relied heavily on his opinion. The Delaware Constitution does not define the term “lottery,” so the court relied on the definition used by Judge Stapleton, which explained that a lottery has three elements: a prize, consideration, and chance.

The question then became, does the sports lottery contain the necessary element of chance? There are (just in case you thought this would be simple) two competing tests to answer that question. Under the English rule, also known as the “pure chance” rule, no element of skill may be involved. Under the American rule, also known as the “dominant factor” rule, chance does not have to be the only factor, but must be the dominant or controlling factor.

Given that the majority of states (and Judge Stapleton) follow the American rule, the Justices adopted the “dominant factor” American test. For what it’s worth, it probably also helped that Delaware is in America. That led to the next question—is chance the dominant factor in betting on NFL games? To answer that, the Justices again relied on Judge Stapleton, who determined that chance was a significant factor because games are often decided by unpredictable factors such as “the weather, the health and mood of the players and the condition of the field.” As Judge Stapleton added, “no one knows that may happen once the game has begun.”

Interestingly, because Judge Stapleton’s opinion was limited to the parlay games of the original lottery, the Justices only concluded that chance was the dominant factor in the parlay games offered by the new sports lottery. Citing a lack of evidence, they did not offer an opinion as to the chance element present in the single-bet games, noting that the point spread may provide the requisite chance element, but may just “manage the money flow.” So, for now, the only form of sports gambling that the Justices have explicitly blessed is parlay games. Other forms of gambling—including single games—may also be legal, but the state will have to prove that chance is the predominant factor in those games.

I live in New Orleans. We have a casino in the middle of the city and drinks named after dangerous weapons and natural disasters. Surely we can have a sports lottery, too. Right?

Wrong. The Professional and Amateur Sports Protection Act (“PASPA”), passed by Congress in 1992, prohibits all states from operating any form of sports gambling operation, except those states operating sports wagering schemes between 1976 and August 31, 1993. Delaware, along with Nevada, Oregon, and Montana, fall within that exception.

But, all hope is not lost. The State of New Jersey, seeking to start its own sports lottery, recently filed a lawsuit challenging the legality of PASPA. According to the lawsuit, “PASPA represents a substantial intrusion into States’ rights and restricts the fundamental right of States to raise revenue to fund critical State programs. Moreover, it blatantly discriminates between the States.”

The NFL recently allowed its teams to sign licensing deals with state-sponsored lotteries, so they must be fine with the Delaware sports lottery, right?

Not quite. The NFL has approved team licensing deals with state-sponsored lotteries, so their anti-gambling stance seems to have softened, at least where it will provide an influx of revenue to their teams. But, the NFL has not softened on their anti-sports gambling stance. What’s the difference? Gambling on the NFL impacts the integrity of the game; playing scratch-off games does not. Here is how Commissioner Roger Goodell phrased it in his letter to Governor Markell urging him not to go forward with the Delaware sports lottery:
Professional sports involve athletic contests that must not only be honest, but be perceived by the American public as honest. NFL owners and players have worked hard from the league’s inception nearly 90 years ago to protect its integrity. There is no issue of greater importance to the league. That is why the NFL’s position on legalized sports gambling has remained consistent for decades. State-promoted gambling not only adds to the pressure on our coaches and players, but creates suspicion and cynicism toward every on-the-field mistake that affects the betting line.

The NFL prides itself on the parity they have achieved throughout the league and on their “on any given Sunday” mentality (which, I suppose, has now become an “on any given Sunday, Monday, Thursday, and, late in the season, Saturday”). The beauty of sports—and the NFL in particular—is that we don’t know who is going to win the game until they play it. The NFL wants to ensure that nothing interferes with that unpredictability. (Note that this unpredictability is precisely why Judge Stapleton determined that chance is the predominant factor in predicting the outcome of an NFL game.)

Of course, many argue that the NFL would be quite happy if Delaware and other states legalized gambling on NFL games. Gambling drives a tremendous amount of interest in games and keeps people watching even when the result of the game is no longer in doubt. Others point to the fact that the NFL’s position on the Delaware lottery is hypocritical. The NFL has a billion dollar television contract with ESPN, a company that provides predictions of NFL games with the point spread. As Governor Markell noted in his response to Commissioner Goodell: “the notion that the NFL has aggressively and actively fought against betting on its games is belied by the very programming the NFL indirectly endorses and from which it handsomely profits.”

Can the NFL prevent the Delaware lottery from using the schedule and scores of NFL games?

Unlikely. Judge Stapleton ruled in 1977 that use of NFL scores and schedules by the original Delaware sports lottery was a fair use, as long as no NFL trademarks were used and a disclaimer made clear that the games were not authorized by the NFL. Thus, expect the new lottery to refer to the matchups by city names—for example, Philadelphia vs. New Orleans, instead of the Eagles vs. the Saints.

On a scale from 1 to 10, what impact will this have on Brett Favre’s possible un-retirement?


On the hunt ...

I had a call last night from a very nice lady who wanted to buy Robbie. I told her that he was not for sale but it got me thinking and realising that I really need to start working on finding him a new girlfriend. Now that I have had Meg home for a few weeks and have REALLY loved my rides on her, I am tempted to start breeding and producing purebreds for under saddle. They make such wonderful, active riding mounts and are perfect for everyday riders wanting extraordinary horses!

So, the hunt is on for a registered purebred mare. We are not in a position to buy a mare at this stage as nice mares come at nice prices (and for good reason too) but we thought there might be someone out there with a nice mare that is not planning on breeding her for a season or two and might like her gainfully employed in the meantime. It's a good way to get your mare in foal for nothing plus save yourself 18 month's worth of feed/worming and trims etc. So, if anyone reading this perhaps knows of someone with a nice registered Clydesdale mare sitting in a paddock, pass on our details, we would love to hear from you!!!

Viennese Cyclists

I have finally gotten up the nerve to go beyond photographing parked bicycles, and to capture cyclists in actions. Here they are, on the streets of Vienna.

These photos were taken over the course of several days, along my normal walking routes.

Looking at these now, I am struck by how distinctly un-picturesque the surroundings are -- something that is actually quite difficult to achieve when photographing Vienna! But the cyclists sure look nice.

I did not have a chance to be selective and pretty much photographed whomever my camera was quick enough to capture. So this is a good sampling of what commuters here look like.

As you can see, the bicycles are mostly hybrids and comfort bikes, fitted with fenders, racks, baskets, etc. Lights are mandatory, so all bicycles here have them.

It is pretty common to see elderly persons cycling, often faster and more skillfully than younger ones.

Bicycles are allowed into most parks and courtyards including inside the Museum Quartier (a maze of court yards where many of Vienna's museums are located, as well as outdoor cafes and small gardens).

So there it is; my first bout of cyclist stealth photography. Granted, cycling culture in Vienna is not as dramatically stylish as in Amsterdam or Copenhagen, but overall still pretty cool -- at least compared to the US, where hunched over lycra-clad cyclists remain the norm.

Wednesday, May 27, 2009

Meg and Maxi have an adventure

First up we have Reilly 'sharing' his breakfast with his pesky goat neighbour. Clearly you can see that China (who is obviously starving) must ... have ... food!!!

Next we have some photos from today's ride. Maxi had his very first ride down the road and Meg had her very first ride down the road WITH company. The 'kids' had a blast and we went about 2km down the road and then came back up and took them a couple more km up the paper road (complete with wooden bridge and scary cows) - It was great and although my thumb hurt (if you look closely in the pic of Meg and me walking down the road you might see my brace), I really did not notice it too much and Meg was so well behaved I never had to worry about it.

Maxi wearing a cover for the first time
Maxi and Bernie head down the road
Meg and me off with a purpose
The odd couple

A Tale of Two Juniors

Dale Earnhardt, Jr. and Tony Eury, Jr. are a duo that simply suck. This is the only thing left for Dale to do. He has to part ways with his crew chief.

Will things get better for the 88? That is hard to tell, but it can't get worse. But my own personal view on the subject is it is all on Dale, Jr. A driver like Kyle Busch simply wins no matter who the crew chief or the owner is. Busch is what Junior fans want in their driver. Junior sucks. Period.

I've talked to a lot of non-Junior fans, and they all say the same thing. He is a mediocre driver with a famous last name. It is harsh but true. Junior's records put him as a decent but unremarkable talent. His popularity exceeds his performance.

At some point, the Junior Nation needs to bury Dale, Sr. He is dead. He has been dead for quite awhile now, and he is not coming back. What they are doing with Junior is a form of projected necrophilia. They can't let the old man go.

I feel bad for Junior. He is in an unenviable position. He has a huge burden to bear, and I think he will eventually give it up and disappear from the sport.

The StarCaps Saga Continues

As you might recall, five NFL players—Kevin and Pat Williams of the Minnesota Vikings and Charles Grant, Deuce McAllister, and Will Smith of the New Orleans Saints—were suspended for four games last year after testing positive for bumetanide. Bumetanide, a diuretic, is banned under the NFL Policy on Anabolic Steroids and Related Substances (the “NFL Policy”) because it can be used to mask the presence of steroids. The players claimed that they inadvertently ingested the bumetanide when they took StarCaps, an over-the-counter weight-loss supplement. Bumetanide is not listed as an ingredient in StarCaps, but the players proved that bumetanide was present in the StarCaps they consumed.

The players then appealed their suspensions to the NFL. Despite proof that the players did not intend to take bumetanide and did not know they were doing so, the NFL denied the players’ appeal because the NFL Policy makes the players responsible for whatever enters their body. As the NFL Policy states: “Players are responsible for what is in their bodies, and a positive result will not be excused because a player was unaware that he was taking a [banned] substance.”

The players then challenged the suspension in federal court in Minnesota (after a series of legal maneuverings in state court), where Judge Paul Magnuson granted a preliminary injunction blocking the suspensions until a full trial could be held. That trial was scheduled for June 15th in St. Paul, Minnesota. On Friday, however, Judge Magnuson ruled on the parties’ summary judgment motions. Here are some questions raised by the latest development in this case, with a few answers.

1. Who won the case??
Most of the headlines have declared this case a victory for the NFL, but here’s what Peter Ginsberg, attorney for Kevin and Pat Williams, had to say: "This gives my clients a terrific case, and Judge Magnuson kept alive the heart of our case.”

So, who is right? Well, to some extent, they both are. On the one hand, Judge Magnuson’s decision reaffirmed the sanctity of the NFL’s strict liability drug policy. The players raised a unique challenge to the NFL’s Policy. The players did not simply argue that it was unfair that they were punished for unknowingly taking a banned substance. Rather, the crux of the players’ argument was that the NFL knew that StarCaps contained bumetanide but failed to disclose this fact to the NFL players or the NFL Players Association. The players claimed that this constituted a breach of fiduciary duty, endangered the health of the players, and “fatally tainted the suspensions so that enforcing the [suspensions] would unfairly punish the players and condone the improper behavior and breaches of duty by the NFL, in violation of public policy and the essence of the CBA.” Judge Magnuson rejected these claims, noting that “there is no doubt that it would have been preferable for the NFL to communicate with players specifically about the presence of bumetanide in StarCaps. The NFL’s failure to do so is baffling, but it is not a breach of the NFL’s duties to its players.” Judge Magnuson also held that it is “not a breach of fiduciary duties to tell players all supplements are risky and that players should not rely on any supplement’s list of ingredients because that list may be incomplete.”

On the other hand, the decision was not a complete victory for the league. Pat and Kevin Williams also argued that the NFL Policy violated Minnesota state law. Judge Magnuson sent those claims back to be decided by Minnesota state court. So, while it may not be the “heart” of the Williams’ claim, part of their claim is still alive and will be decided by a local state court judge.

And, of course, the case isn’t quite over yet. The NFL has already filed a notice of appeal.

2. What are the Minnesota state law claims?
Pat and Kevin Williams brought claims under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) and the Minnesota Consumable Products Act (CPA). The DATWA is one of the most comprehensive and pro-employee drug testing state laws in the country. It sets forth a series of mandatory procedures designed to protect Minnesota employees and to ensure safe and reliable drug testing in the workplace. One of the provisions of DATWA forbids an employer from disciplining an employee for a first time drug offense without first giving the employee and opportunity to participate in a drug counseling program. Another provision of DATWA permits an employee to submit information to the employer that might explain the positive test result. The CPA prevents an employer from disciplining an employee for using “lawful consumable products…off the premises of the employer during nonworking hours.”

The Williamses thus claim that the NFL violated their rights under state law by:
1) Suspending them without giving them an opportunity for counseling;
2) Failing to give them an opportunity to explain the reason for the positive test; and
3) Suspending them for using a legal substance in the offseason.

3. What are the NFL’s potential responses to the state law claims?
The NFL will likely make two broad arguments.

First, they have already indicated that they will argue that the Labor Management Relations Act (“LMRA”) preempts the state law claims. Judge Magnuson held that the LMRA preempted every common law state cause of action involving the NFL collective bargaining agreement, because, as a general principle of law, the LMRA preempts state law claims that are “inextricably intertwined” with consideration of the terms of a collective bargaining agreement. Judge Magnuson held that the DATWA and CPA claims were not preempted because those state statutes establish rights and obligations that are independent of the collective bargaining agreement. In other words, the NFL and NFLPA were not permitted to agree to terms in a collective bargaining agreement that violate state law.

The NFL will likely argue that federal labor law permits the NFL and the NFL Players Association to maintain a national drug policy that applies equally to all 32 NFL teams and their employees throughout the United States. The NFL policy is designed to protect its employees and sets up procedures to ensure safe and fair drug testing. Thus, the NFL will likely claim that any suits brought under state laws designed to provide similar protection for employees—such as DATWA and CPA— should be preempted.

Second, if the preemption argument fails, the NFL could challenge the merits of the underlying state claims. Interestingly, according to Judge Magnuson’s opinion, the NFL concedes that its steroid testing procedures do not comply with the strict letter of Minnesota state law. But, the NFL “argues that the differences are negligible and do not require the Court to invalidate the Williamses’ positive tests for bumetanide.” Of course, we wouldn’t expect the NFL to announce that they think they’re going to lose the case, so let’s take a look at some of the arguments the NFL might make. I’ll take them in the order of the claims listed in question 2. The NFL can argue that:

1) Suspension without opportunity for counseling
The purpose of the counseling and treatment requirement in the DATWA is to ensure that Minnesota employers provide assistance to employees with substance abuse problems and chemical dependencies. Issues dealing with substance abuse and the use of recreational drugs are covered in the NFL Policy and Program for Substances of Abuse. That policy does provide for treatment for a first time offender. The situation here, of course, involved use of a performance enhancing drug (or, more specifically, a performance enhancing drug masker). Treatment and rehabilitation concerns for users of performance enhancing drugs are not as heightened (or, at a minimum, are different) than the concerns for users of addictive recreational drugs. The NFL can thus argue that the counseling requirement in DATWA was not intended to apply to users of performance enhancing drugs.

On a more technical note, the DATWA provision states that an employer cannot punish an employee based on a “test result that was the first positive result on a test…” The NFL could argue that the suspensions were based on the admissions by the five players that they used bumetanide, and not on the positive test results. It may seem like a stretch, but courts have narrowly interpreted the requirements of the DATWA and other similar state statutes.

2) Failure to provide opportunity to explain positive test
The NFL did give the Williamses an opportunity to explain the reason for the positive test. But, the reason given (inadvertent use) was not a valid defense under the NFL Policy;

3) Suspension for use of a legal substance
Bumetanide is only legal with a prescription, and the Williamses did not have a prescription. Also, the CPA allows employers to restrict use of legal substances if the restriction “relates to a bona fide occupational requirement and is reasonably related to employment activities.” The NFL can argue that prohibition of performance enhancing (or masking) substances, even if legal to the general public, clearly relates to a legitimate requirement of the NFL.

4. Were these state law claims raised in the earlier preliminary injunction hearings?
No, the state law claims were not at issue during the earlier preliminary injunction hearings and were not addressed by Judge Magnuson during these hearings. The Williamses filed their original complaint on December 4, 2008. That complaint did not contain the DAWTA and CPA claims. Judge Magnuson granted the preliminary injunction on December 11, 2008, before the Williamses raised the state law claims. At the oral argument, the Williamses attorneys did notify Judge Magnuson that they intended to amend their complaint to include the state law claims. These claims were included for the first time in the amended complaint filed by the WIlliamses on January 4, 2009.

5. Does Louisiana have a similar state law that protects Deuce McAllister, Charles Grants, and Will Smith?
Yes and no. Louisiana does have a state law that regulates drug testing of employees, but it specifically excludes drug testing conducted by the NFL. So, pending any appeals by the NFLPA, Judge Magnuson’s decision ended the case for the three Saints.

6. This ongoing litigation cannot be helping the relationship between the NFL and the NFLPA, can it?
I’ll let Judge Magnuson handle this one. Here’s an excerpt from his opinion:
It is clear that this situation arose because the parties to these cases do not trust each other. The NFL does not trust the Union or the players. The players and the Union do not trust the NFL. No one believes that the opposing parties have any common interests. The situation is deplorable and leads to suspicion and the sort of no-holds-barred litigation tactics so clearly on view here.

Other than that, Judge, how are they getting along?

Perjury in Congressional Hearings on College Bowl System and the BCS?

Congress conducted hearings on the college bowl system earlier this month. Now, reporters have raised questions regarding whether bowl defenders committed perjury or acted in contempt of Congress in claiming that most bowl games are organized by charitable groups and that tens of millions of dollars earned by the bowls go to charity. stories are here and here, and BYU law professor Gordon Smith weighs in at the Conglomerate blog.

Not feeling well today.

The "Fendi Abici Bike" in Vogue Magazine

A friend sent me this great scan from the June 2009 issue of American Vogue:

"Girls, go tell the groom that we've found the gift of all gifts to give his bride on the big day. (He does know that one's in order, right?) The Abici Amante Donna city bike now comes fitted with Fendi's luxest Selleria leather accessories. Seat, handles, thermos case, and GPS holder are all cut and sewn by hand. In front, the fully outfitted picnic basket -- which, you might tell him, doubles as a beauty case -- bears the house's signature stamp. There's also a splash catcher (he'll know this isn't its technical name, but "mudguard" is so unsexy) on the back wheel. The course of true love never ran more smoothly!

The price of the Fendi Abici is $5,900 and the detachable travel case on the front rack is $975 extra.

This is a gorgeous bicycle and a lovely wedding gift, but is the Fendi version worth six times the price of the standard Abici Amante Donna? I guess that is a matter of personal choice and depends on how much you like Fendi. Personally, I'd rather keep the Brooks saddle. The travel case is rather nice though (any idea on the weight?).

[image from]

Pictured above is the standard Abici Amante Donna in cream with original saddle and handles, and without dress guard, racks or thermos holder. I believe the cost is about $1,000 MSRP. Not being a fan of the rod brakes, I prefer Abici's Granturismo model. Still, the Amante is quite beautiful, and I think that Fendi had the right idea to add some dark warm contrasts to all that white.

NPR on Sotomayor's baseball decision

Tuesday, May 26, 2009

His Pashley Roadster Arrives!

[edited to add: There is now a review of this bicycle here.]

The end result of our frenzied search, was that both my darling Co-Habitant and I decided to buy Pashleys: he the Roadster Sovereign (which comes only in black), and I the Princess Sovereign in green. My Princess is getting some custom work done at Harris Cyclery (a coaster brake installed) and will be waiting for me when I return from Vienna. The Co-Habitant's Sovereign arrived last week and he has been enjoying it ever since. Lucky, lucky him!

My dandified Co-Habitant added Brooks leather grips and bags to the bike, but everything else pictured here came standard. This is an enormous bicycle and he absolutely towers over the traffic as he rides to work. I can't wait to see him ride it in person, and to pick up my Princess!

The saddle that comes with the Roadster is the Brooks B33 in black. The bags are the Millbrook and Glenbrook. The leather grips in black are pictured here. All of these are available at Harris Cyclery in West Newton, Mass.

New Sports Law Scholarship

Recently published scholarship includes:
Scott A. Anderson, A call for drug-testing of high school student-athletes, 19 MARQUETTE SPORTS LAW REVIEW 325 (2008)

Genevieve F. E. Birren & Jeremy C. Fransen, The body and the law: how physiological and legal obstacles combine to create barriers to accurate drug testing, 19 MARQUETTE SPORTS LAW REVIEW 253 (2008)

Jonathan F. Duncan & Kristina V. Giddings, Which Washington: Constitutions in conflict?, 19 MARQUETTE SPORTS LAW REVIEW 231 (2008)

Marc Edelman, Moving past collusion in Major League Baseball: healing old wounds, and preventing new ones, 54 WAYNE LAW REVIEW 601 (2008)

Evan Steele Fensterstock, Comment, Shin v. Ahn applies the primary assumption of risk doctrine to injuries sustained by golfers in the same group: negligence goes unpunished, 43 NEW ENGLAND LAW REVIEW 87 (2008)

Eldon L. Ham, The immaculate deception: how the Holy Grail of protectionism led to the great steroid era: why Congress should revoke baseballs antitrust boondoggle, 19 MARQUETTE SPORTS LAW REVIEW 209 (2008)

Daniel Healey, Fall of the Rocket: steroids and the case against Roger Clemens, 19 MARQUETTE SPORTS LAW REVIEW 289 (2008)

Sarah L. Horvitz, Travis Tygart & Paul A. Turbow, Dopers are not duped: USADA’s assistance to federal prosecutions ultimately protecting clean athletes is not state action, 19 MARQUETTE SPORTS LAW REVIEW 39 (2008)

Dionne L. Koller, From medals to morality: sportive nationalism and the problem of doping in sports, 19 MARQUETTE SPORTS LAW REVIEW 91 (2008)

T. Matthew Lockhart, Comment, The NCAA should adopt a uniform student-athlete discipline policy, 16 UCLA ENTERTAINMENT LAW REVIEW 119 (2009)

Robert D. Manfred, Jr., Federal labor law obstacles to achieving a completely independent drug program in Major League Baseball, 19 MARQUETTE SPORTS LAW REVIEW 1 (2008)

Richard H. McLauren, Corruption: its impact on fair play, 19 MARQUETTE SPORTS LAW REVIEW 15 (2008)

Robert Moore, The Interaction Between the Americans with Disabilities Act and Drug and Alcohol Addiction in Sports, 16 Sports Lawyers Journal 231 (2009)

Will Pridemore, Book review, Reviewing David Ezra, Asterisk: *Home Runs, Steroids, and the Rush to Judgment, 19 MARQUETTE SPORTS LAW REVIEW 345(2008)

Abbas Ravjani, The Court of Arbitration for Sport: a subtle form of international delegation, 2 JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW 241 (2009)

David G. Roberts, Comment, The constitutionality of the NFL patdown policy after … Johnston v. Tampa Sports Auth. and Sheehan v. The San Francosco 49ers, Ltd., 58 CASE WESTERN RESERVE LAW REVIEW 979 (2008)

Shayna M. Sigman, Are we all dopes? A behavior law & economics approach to legal regulation of doping in sports, 19 MARQUETTE SPORTS LAW REVIEW 125 (2008)

Michael Straubel, The International Convention Against Doping in Sport: is it the missing link to USADA being a state actor and WADC coverage of U.S. pro athletes?, 19 MARQUETTE SPORTS LAW REVIEW 63 (2008)

Judge Sotomayor's Sports Law Opinions

It's official: as Professor cummings predicted earlier this month, the President will nominate Second Circuit Judge and die-hard Yankees fan Sonia Sotomayor to the Supreme Court. Perhaps more than any Supreme Court nominee in history, Judge Sotomayor has a long record of adjudicating major sports law cases, dating back to her time on the district court. Among her notable sports law cases:
Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290 (2nd Cir. 2008) (concurring) (action by league against manufacturer of plush bears with team logos)

MasterCard Intern. Inc. v. Federation Intern. de Football Ass'n, 239 Fed.Appx. 625 (2nd Cir. 2007) (panel member) (action by credit card company claiming breach of contract providing for continued sponsorship of World Cup)

Clarett v. National Football League, 369 F.3d 124 (2nd Cir. 2004) (antitrust action challenging draft eligibility rules)

Gilbert v. Seton Hall University, 332 F.3d 105 (2nd Cir. 2003) (dissenting) (personal injury claim by college rugby club athlete)

Ortiz-Del Valle v. N.B.A., 190 F.3d 598 (2nd Cir. 1999) (panel member) (gender discrimination case by female NBA referee)

Boucher v. Syracuse University, 164 F.3d 113 (2nd Cir. 1999) (panel member) (Title IX claim by female college athletes)

Tasini v. New York Times, Corp., 981 F.Supp. 841 (S.D.N.Y. 1997) (copyright action by freelance writers challenging electronic republication of Sports Illustrated stories)

Silverman v. Major League Baseball Player Relations Committee, 880 F.Supp. 246 (S.D.N.Y. 1995) (unfair labor practice claim against baseball owners)

Jaguar Cars v. National Football League, 886 F.Supp. 335 (S.D.N.Y. 1995) (trademark infringement suit by car company over naming of Jacksonville Jaguars football team)

Monday, May 25, 2009

Pete Rose and the Hall of Fame

A commenter to my post on steroids and the Hall of Fame asks about Pete Rose. I thought it warranted a new post, rather than a comment. I actually wrote about this point three years ago.

Rose should not be in the Hall, because different rules apply. Rose is ineligible for the Hall under Rule 3E, which bars selection of anyone who is on MLB's permanently ineligible list. Rose is on that list because he agreed to be placed on the list (which he did to avoid the now-we-know-was-inevitable finding that he did, in fact, bet on games involving the Reds). There is no character/integrity/sportsmanship debate to be had with Rose--he is out because the rules (properly, I believe) keep him out.

But as the commenter notes, Rose was suspended for post-playing conduct. This raises a couple of points.

First, I still agree with the current outcome under Rule 3E. The ineligible list is the ineligible list for Hall purposes, regardless of when or why the suspension occurred.

But note the anomalies. Rose retired as a player in 1986 and would have been on the ballot for the first time (and almost certainly elected) in 1992. Suppose his gambling had not been revealed until 1995? I cannot find whether there is a procedure for removing someone from the Hall if that person is suspended from the game subsequent to his induction. So we could ask whether it makes sense to deny admission to a player based on a suspension for post-playing conduct when we would not remove him from the Hall for the same conduct. Actually, this happened in miniature in the early 1980s, when Willie Mays and Mickey Mantle were barred from any official involvement with MLB because they held PR positions with casinos (although Commissioner Bowie Kuhn had meant the suspension only to apply to formal employment and not to all involvement in the game). The Hall did nothing and the "suspension" was lifted after two years. Worse, under my counter-factual, Rose might not have been removed from the Hall (if no such procedure exists) even if had been discovered, post-induction, that he had gambled as a player.

Second, the commenter implicitly raises a different counter-factual: Suppose there were no Rule 3E (actually, the Rule did not exist until 1991, enacted specifically to ensure that Rose and the rehabilitating Shoeless Joe Jackson did not make it in). Now we squarely have the situation the commenter suggests: Baseball-related, post-playing, against-the-rules conduct, subject to the integrity/sportsmanship/character clause.

I say he still should not get in. First, I would not divide his baseball conduct between playing and non-playing conduct; it is all what he did as part of baseball and whether he violated specific rules of the game. And he did. Note that this makes his tax evasion conviction/prison term irrelevant, because that was non-baseball.

More prominently, Rose violated a specific rule of MLB through acts that go to the basic integrity of the game in a way that steroid use does not. The game's integrity demands that every player go all out to win every game to the best of his ability and effort, for the sake of winning (and the intrinsic values associated with winning), within the established rules of the game. A player who uses steroids or other PEDs is trying to maximize his performance and his success--that is the basic argument in the Zev Chafets piece that I originally linked to. Gambling on games involving one's own team (even if always to win) runs contrary to that understanding of the game's integrity.

Saturday, May 23, 2009

Hall of Fame, Steroids, and Cheating

Zev Chafets argues on ESPN that steroid users should not be kept out of the Hall of Fame. His argument is that steroid users are no different than players of past generations, many of whom engaged in questionable activities off the field (consorting with gamblers, the Klan, and gangsters) and were "happy to use any substance they thought would give them an edge" on the field. As to the latter category, Chafets points to Hall of Famers of the past using non-anabolic steroids, amphetamines, monkey testosterone (hey, it was 1899), and other substances. He argues generally that we have to judge one generation against itself, not past generations. So Barry Bonds's greatness, even if steroid-enhanced, must be measured against his contemporaries, many (most?) of whom also were using steroids.

I am generally sympathetic to the argument, so long as it focuses on on-field behavior (I think off-field behavior is irrelevant and, to the extent Chafets relies on past greats' off-field behavior as evidence, I reject the consideration). And I agree that the visceral rejection of the use of science and chemicals to improve performance (while accepting and encouraging other ways of improving performance, including different science and different chemicals) is too short-sighted.

But I think Chafets ignores one point: Steroids are against the rules of baseball (also illegal more broadly, although I do not necessarily care about that), while these other substances were not specifically banned by baseball at the time. Rule 5 of the Hall Rules requires consideration of "integrity, sportsmanship, character," which must be understood as a prohibition on cheating within the game; cheating necessarily means breaking the rules. There is, I would argue, a difference between "doing what was necessary to stand above their peers" when it involved breaking the operating rules of the game (i.e., cheating) and when it did not. So, to the extent players were using steroids in violation of MLB rules, I disagree with Chafets' conclusion; to the extent they were not banned by the game (regardless of what federal law had to say about them), I think he has it about right.

Employers get mad when applicants lie on their resumes. Job seekers get mad when companies lie on job descriptions.

Friday, May 22, 2009

In Defense of the "Frivolous" Bike Craze

[J. Crew catalog excerpt; image from]

During the past two years, traditionally styled bicycles have gained considerable popularity in the US. Fashion models in ad campaigns have been featured riding Gazelle and Jorg & Olif, celebrities have been photographed cruising around on their Electras, and there is over a dozen weblogs now across North America dedicated to cycling and fashion. The New York Times made it official by referring to the stylish bicycle as the current must-have fashion accessory.

It is hard not to notice that some of the discussions of the “Dutch bicycle craze” come with a degree of scorn. There is an assumption that those who are buying such bicycles are not actually interested in bicycles, but merely want the latest “It” item -- a frivolous, consumerist attitude that is embarrassing to the real, authentic bike lovers. I have gotten this response form several shop owners when I told them what kind of bicycle I was looking for, as well as from some acquaintances who have been riding road bikes for years. Surprised and disappointed to encounter this sentiment, I offer two lines of argument in response.

[Gazelle Toer Populair for Club Monaco; image from]

First off, those rolling their eyes at the girls who supposedly must have a Dutch bike as a fashion accessory, may be misunderstanding the situation. If you read the first post on this weblog, I think you will get a pretty good idea of why many women in the US do not ride bikes, and how introducing them to traditionally styled bicycles can change that. When I saw a Gazelle on the street for the first time, I did not know what it was. I had no idea whether it was new or vintage and whether it was considered popular in the public eye. What I did know, was that finally I was seeing a bicycle that I would be willing and able to ride.

The point is, that before the Dutch-style bicycles began to be imported in the US, it was simply not possible for fashion-conscious and unathletic women to ride a bike. There were no products for them to buy that would have accommodated their lifestyles. Now there are, so they are buying them. Therefore, to say that they are buying fashion accessories that happen to be bicycles is to misjudge the situation. They are buying these bikes, because finally the kind of bicycles that suit their tastes are available.

Second, even if some persons are interested in these bicycles only because they have been deemed a fashion must-have, I do not understand why this should evoke criticism. Is it not the ultimate victory for cycling advocates and environmentalists, that it is suddenly possible to get even the most unlikely suspects interested in commuting by bicycle? Wouldn’t it be an ideological coup for the go-green movement, if all those glamour girls previously driving enormous SUVs now think that cars are totally uncool and anyone who is anyone must have a Dutch bicycle? I can assure you that the majority of the population is far more likely to be influenced by these giggly spokespersons than by the earnest Green activists. It really seems like a win-win situation to me.

So please, hard-core cyclists: do think twice about criticizing those who you think want a bicycle “for the wrong reasons”. Consider instead what a fabulous thing it is, that they want a bicycle at all.

Thursday, May 21, 2009

The biggest argument against Objectivism is the lack of humor among randroids.

Wednesday, May 20, 2009

Meet Saffron

So there is snow LOW on the Tararua mountains today and the weather over the last few days has been nothing short of absolutely HIDEOUS! Saffy and Libby have been sharing the yards because I have not wanted to put her out in the paddock with the mob until I am sure she is ready. She spent the first 24 hours thinking about jumping out (don't think I have ever seen a horse stand on its hind legs for so long except when watching the Spanish riding school horses do their levades!), bless her. She has settled now and I let her out for a quick pick at the grass and a run around this morning between FREEZING showers. I had my camera so took a few photos. I can't wait to show off what is under that cover as she is a very beautiful little girl but, that will have to wait!

A little airtime
New friends
Nose up!
Libby playing mom and watching over her charge

Will Michael Vick Return to the NFL?

I have a new column on this topic. Here's an excerpt.

* * *
What will Goodell do? He appears poised to reinstate Vick for the 2009 season, though probably with onerous strings attached, such as Vick facing permanent expulsion should he get into any trouble. Without expressly saying so, Goodell has laid out a roadmap for Vick's reinstatement. He has conditioned reinstatement upon Vick showing genuine remorsefulness. Goodell also expects Vick to demonstrate that he has learned from his mistakes and that he can be a positive influence going forward.

For his part, Vick has acknowledged that he committed "heinous" acts, has expressed sorrow for them and offered a desire to become a better person for himself and others. In other words, Vick and his advisers seem aware of the commissioner's expectations and are trying to meet them.

In addition, and from a purely economic standpoint, the NFL may regard Vick's return as beneficial to its bottom line. Still only 28 and just three years removed from the Pro Bowl, Vick likely remains a dynamic player. He may also remain marketable, perhaps very marketable. After-all, in spite of his embarrassing lapses in judgment, including those with legal consequences (e.g., the "Ron Mexico"/genital herpes matter), Vick has a track record for attracting consumers' dollars.

Consider the tens of millions of dollars Vick earned from endorsement deals with Nike, Coca-Cola, Kraft, and other companies -- companies that saw Vick misbehave and then listened to social critics lambast him, and yet they still deemed Vick to be a good investment. Or consider that Vick's #7 Falcons jersey was consistently among the top-selling NFL jerseys during his heyday. Although Vick's prison time and dog abuse crimes have unquestionably and, in some ways, irreversibly tarnished his reputation, the jury is still out as to whether consumers would again find it worthwhile to invest dollars in him.

* * *

To read the rest, click here. Also, I'll be interviewed on CNN tomorrow morning on the network's "American Morning" program (its broadcast between 6 and 9 a.m.) to discuss Vick's future. The interview may also air later in the day on CNN's other programs and Headline News. Hope you can watch.

"Redskins" Case and the Dangers of "Reply All"

After the Washington Redskins won at the D.C. Circuit last week, which I discussed here, the team's law firm learned a valuable lesson in the dangers associated with the "reply all" function of Microsoft Outlook. The legal gossip blog Above-the-Law has a series of e-mails exchanged by lawyers at the victorious law firm.

Truth is not a chess match.

Tuesday, May 19, 2009

Kitty Inspects English Craftsmanship

My cat has just emailed to inform me that while I've been away, my lucky Co-habitant has acquired a Pashley!...

WADA-code in the EU

The World Anti-Doping Agency (WADA) is the foundation which has been established to promote, coordinate and monitor the fight against doping in all forms of sport. In pursuing this aim WADA cooperates with intergovernmental organizations, governments, public authorities and other public and private bodies fighting against doping in sport.

One of the most important tools for WADA in the fight against doping in sport is the implementation of a harmonized set of anti-doping rules, the World Anti-Doping Code (the Code). Pursuant to the Code drug-testers must be able to administer out-of-competition tests anytime and anywhere without prior notice. This is believed to be an effective deterrent against drugs cheats. The key provisions of the Code are that athletes must:

  • Provide whereabouts and be subject to testing 24 hours a day, 7 days a week, 365 days a year;

  • Identify their location for each day in the following three months and update it should it change; and

  • Specify one hour each day between 6am and 11pm during which they can be located at a specified location for testing.
Recently the WADA-code has been introduced for professional sportsmen in the EU, but now the question has been raised whether this is acceptable from a legal perspective?

According to the "Council of Europe Anti-doping Convention" anti-doping controls should be carried out at appropriate times and by appropriate methods without unreasonably interfering with the private life of a sportsman. In the light of the above, the information to be provided concerning the whereabouts should be clearly determined by taking into account the requirements of the principles of necessity and proportionality with respect to the purposes of out of competition testing and avoiding the collection of information that might lead to undue interference in athletes' private lives or reveal sensitive data on athletes and/or third parties.

Furthermore it is also being discussed whether the whereabouts imply a breach of the European privacy laws, namely, the right to privacy and family life under the provisions of article 8 of the European Convention on Human Rights of 1950. Legal challenges under Data Protections Laws and the EU Working Time Directive are being considered. These regulations provide that every employee is entitled to 20-24 days of annual holiday. Regarding the whereabouts, if an athlete has to make himself available for a drug test 365 days a year, how can the whereabouts comply with this legal provision?

Legal rulings within the next months/years will probably determine the outcome of the discussion. A group of 65 athletes, cyclists, footballers and volleyball players has already filed a complaint with the Belgium's Council of State. If the case is successful in Belgium, it could undermine the work of the World Anti-Doping Agency and be used as a precedent to contest the ruling in other courts around the world.

Monday, May 18, 2009

The new kid on the block and Maxi's big adventure

Maxi has only ever been ridden by Amy. I am about 40kg too heavy for him and I have never had the opportunity to put a small rider on him, until now. Bernou is not short, she is the same height as me BUT she is slim as a slim thing and she offered to hop on and introduce him to the joys of being ridden off the lead rein.

OMG was he cute or what?! Walk, trot and canter and a big adventure over the farm, including right up the hill into the top paddock in the wind. What a fantastic pony, he took it all in his stride (which is quite big for one so small). He's going to be such a great little pony for Amy as he is so kind and quiet. We're very lucky to have him here!

I had a lovely ride on Meg late morning/early afternoon and we nearly had a gallop! I took her up through the back paddocks and we trotted and cantered around and had a blast. Definitely loving my hairy clompety!

Saffron arrived at 3.15pm this afternoon and is now safely tucked up in the yards WITH HER MOTHER!!! Seems Majestic were not aware that Missy was to go on to Alfredton and the home of my friend Rachael, even though this had been, I thought, discussed and agreed upon. Obviously a wire was crossed somewhere but driver definitely not interested in taking her any further so poor Rachael and Grant are headed here to borrow our float and take her to her final destination *sigh*.

Photos of Saffy once the rain fecks off back to where it came from! Grrr!

Sunday, May 17, 2009

On Jeremy Mayfield: You’ve Got a Fast Car, and an Unusual Drug Policy.

Let me start this post about Jeremy Mayfield’s indefinite suspension for violating NASCAR’s new drug policy with two admissions. First, for many years, my favorite stock car driver was Cole Trickle. Second, I have found myself shouting “shake and bake”(in my head) after making a good point in class. Over the past few years, however, I have gained a new appreciation for NASCAR and real stock car drivers, and Trickle has slipped out of my top spot (I’m not ready to give up on shake and bake yet).

Now, on to the Mayfield situation. Most of you have probably read the stories by now, but here’s a quick recap of some of the key facts. For nearly twenty years, NASCAR only tested drivers if there were a “reasonable suspicion” that the driver was using drugs. In 2007, a push was made—both by NASCAR drivers and NASCAR management—for a stricter drug policy after Aaron Fike admitted that he had used heroin on days when he was competing in a NASCAR Truck series race. Fike was not suspended by NASCAR until after he was arrested for possession of heroin in July 2007.
NASCAR’s new, stricter drug policy was revealed on September 20, 2008. The reason for implementing a stricter policy was clear—a driver under the influence of drugs racing at speeds well over 100 miles per hour presents a danger (Grave danger? Is there another kind?) to himself, other drivers and fans.

Under the new regime, which began on January 1, 2009, drivers and pit crew members will undergo mandatory preseason drug tests and random drug tests throughout the year, in addition to reasonable suspicion testing. Additionally, AEGIS, an independent laboratory, will conduct the drug tests for NASCAR, unlike under the previous policy, where NASCAR itself did (or, more commonly, did not do) the testing. Without question, these are all positive changes designed to make drug testing more effective and deception more difficult.

So, what’s the problem, and where’s the controversy? Well, NASCAR’s new policy has a few other interesting features. First, the policy does not identify the substances that are banned. Any drug—legal or illegal, prescription or over-the-counter—can result in a positive test. Second, the policy does not provide a clear list of penalties for failed tests. Instead, the policy indicates that a driver will be indefinitely suspended for a first violation and suspended permanently for a third violation, but NASCAR officials have noted that the policy allows for a permanent suspension for a first offense. Third, the policy provides no appeal for a suspended driver or crewmember. And, any reinstatement—if permitted at all—is conditioned on the entrance into a rehabilitation program.

So, to sum up, under NASCAR’s new drug policy, drivers can be suspended indefinitely, without appeal, for using an unspecified quantity of an unnamed drug. That is essentially what happened to Jeremy Mayfield earlier this month. The Mayfield saga (or is still the Mayfield story? When does something like this convert from a story to a saga?) allows us to focus on two questions:

First, why would NASCAR create a drug policy that does not have a list of banned substances (aka, who was the ad wizard who came up with that drug policy?)? If drug use by drivers is so dangerous, why not provide a list to the drivers of the drugs known to be dangerous? One obvious is answer is: because they can. Unlike in most of the other pro sports in the U.S., the players (here, drivers) had no input into the drug policy. In fairness, many of the drivers seem to support the new policy, though my guess is that Mayfield is not one of them.The other reason for a drug policy with no drug list comes straight from NASCAR:
The reason we don't have a list is we believe that a list is restrictive. As you've seen with a lot of other leagues, the policy is constantly changing. We know that there's new drugs out there every day. By having a broad policy that doesn't list anything, we feel like we can test for any substance that may be abused….

I want to be clear on that. We've never had a list. It states right now in our policy that cough medicine could be abused if you're taking that too much and it's going to affect the safety on the racetrack. That won't change. We'll test for anything. Our experts are very familiar with prescriptions people may be taking and legitimate medications, but we will not have a list.
Or, as Kyle Petty put it: "Look, a drug is a drug is a drug. This is not shooting hoops; this is not hitting a fastball. This is life and death. In a sport like this, everything should be off limits unless there is a medical reason."
NASCAR’s reasoning is simple—every drug is potentially harmful, so drivers should assume that every drug is off limits. If NASCAR were to come up with a list, it would look like this: Banned Substances: Everything. Of course, the same argument could be made by other sports organizations, yet the drug policies of the World Anti Doping Agency and all of the major professional sports leagues in the U.S. contain lists of banned substances.

Second, does the absence of a list increase the likelihood that Mayfield (or the next suspended driver) could successfully challenge the suspension in court? The short answer is: yes. I’m not claiming that Mayfield could successfully challenge the suspension, but I do think he has a stronger case because there is no list. NASCAR’s concern for safety is laudable, and they are no doubt right that abuse of any drug, whether it is cocaine, Sudafed, or Tylenol PM, can be dangerous when combined with cars moving at 150 miles per hour. The question is, do NASCAR’s legitimate concerns justify the creation of a drug policy with no list of banned drugs? And, if not, is there anything a potential plaintiff like Mayfield can do about it?

As a general rule, courts are reluctant to interfere with the disciplinary decisions of private, voluntary associations, such as NASCAR. Under this principle of judicial noninterference, courts will defer to private associations and only interfere in one of three circumstances: 1) when the association’s rules or conduct are contrary to public policy or violate concepts of fundamental fairness; 2) when the association violates its own rules; or 3) when the association’s decision is motivated by prejudice, bias, or bad faith.

Here, however, Mayfield has a stronger argument for judicial interference because NASCAR is not the typical voluntary, private association. In two different cases involving challenges to the results of NASCAR races, the Second Circuit held that NASCAR is entitled to less deference because it is “a for-profit company that completely dominated the field of stock car racing and…its members have no rights whatsoever with respect to the internal governance of the organization.” See Crouch v. NASCAR, 845 F.2d 397, 401 (2d Cir. 1988); Koszela v. NASCAR, 646 F.2d 749 (2d Cir.1981). The Second Circuit also noted “courts have demonstrated more of a willingness to intervene in the internal matters of private associations when they conclude that there are inadequate procedural safeguards to protect members' rights.” Crouch, 845 F.2d at 401.

Mayfield could thus argue that NASCAR’s list-less drug policy is contrary to public policy and violates concepts of fundamental fairness. Rules must be sufficiently clear to permit people to draw a clear line between permissible and impermissible conduct, so that they may avoid engaging in unlawful behavior. An argument can be made that it is fundamentally unfair to punish someone for engaging in conduct they did not know was unlawful. If NASCAR wants to protect its drivers and fans, it should provide more information, not less, about what types and quantities of drugs might pose a threat to safety. (NASCAR’s response, of course, will be that the drivers should know that use of any drug might violate their drug policy, so they should avoid all drug use—prescribed or not—before getting approval from NASCAR officials.)

Mayfield could also argue that the absence of any explicit standards for identifying a positive drug test permits the drug administrators to apply the drug policy subjectively and on an ad hoc basis. And, with no rules to follow, the drug administrators are more likely to be able to make arbitrary and discriminatory decisions. With no standards, no list, and no right of appeal, Mayfield has an argument that NASCAR does not have adequate procedural safeguards in place to protect the rights of suspended drivers.

More on this (and my discussion of the relative merits of RC Pro Am and Mario Kart) to come…

Saturday, May 16, 2009

"Tie goes to the runner" and other myths

I recently have been reading journalist Bruce Weber's book, As They See 'Em: A Fan's Travels in the Land of Umpires. It is a fun read, providing great insight into the history, politics, and nuances of umpiring. I was interested in it for the insight it may shed on the much-despised judge-umpire analogy, this time from the umpire perspective. I may write a book review on it, focusing on the analogy and what it teaches us about that.

For now, I wanted to mention one thing that caught my eye. As far back as Little League, we learned (and constantly repeated whenever there was a close play) that "the tie goes to the runner." Apparently, this is false. Rule 7.01 states that "A runner acquires the right to an unoccupied base when he touches it before he is out." Thus, the runner is out unless he beats the throw and/or tag to the base.

This is an interesting example of default rules and burdens of persuasion in action. The default is that the runner is out unless he affirmatively beats the throw. In a sense, the runner has the burden of proof that he is safe and his failure to meet his burden (his failure to beat the throw) means he is out. Weber does not get into the origins or rationale for the rule or the origins of the myth. But it is one more thing that umpires do that we do not understand.

Friday, May 15, 2009

The cart horse goes to the dressage ...

I don't think we frightened the DQ's too much when we descended upon them at the first day of the Solway Dressage Group's winter dressage series. Meg was adorable, as always, and behaved impeccably. She was a little unsure of the pinto pony she met first up (Is it a cow? Is it a horse??) but I think she would have loved to get to know him a little better. We just pottered around the grounds amongst the other horses and people and had a few good trots and canters in the big space. She was a very tired bunny after about half an hour so had a shower and a nibble on her hay net and then spent a wee while eating grass while we watched a few tests. I couldn't be happier with her - she's just the coolest! In fact, she decided she liked it so much there that she was a bit of a tart to get on the float at the end and I had to get Mr Wippy out and wave him around a bit. She soon realised it was easier to succumb and climbed aboard and off we went, home. As I sit here I can look out of the window and see she is having a big sleep next to her hay. Bless.