Introduction and Sports Law as an Academic Discipline

First, my thanks to Michael for his overly kind introduction and to the Sports Law bloggers for inviting me to do a guest stint this week. I remain fascinated by blogging as a creative outlet for ideas and writing (whether or not one wants to call it legal scholarship).

I do not “do” sports law (to the extent there is such a thing). I do not teach the course at FIU (that honor falls to my friend, colleague, and former guest on this site, Andre Smith). I once described sports law as an academic discipline involving a range of other areas of law—antitrust, labor and employment, business organizations, and contracts, as well as psychology, social psychology, and group dynamics in some of Michael’s fascinating work—applied to a particular, unique subject. But since I had no interest in or knowledge of those other areas, I never gravitated towards sports law as a teaching or scholarly discipline.

But I am a sports fan. My c.v. identifies my important personal interests to include the Chicago Cubs and Northwestern Wildcats (detect a common theme there?). My favorite phone message ever came from a federal judge who invited me for a clerkship interview by saying “I see you’re a Chicago Cubs fan. I’m a Milwaukee Brewers fan myself, but let’s talk anyway.” And I certainly am not alone in the sports-mad society of the United States.

Starting from the sociological and anthropological importance of sport in American society, I have managed to find a way to link sport to the areas of law that I do write about.

One area is free speech. I have recently examined the First Amendment rights of fans to engage in what I call “cheering speech” at games (which includes cheering, banner-waving, political protest, and all manner of heckling). I even got to present a paper on the subject at the National Baseball Hall of Fame in Cooperstown (wearing a Cubs jersey and hat, of course). Michael discussed this issue a couple of weeks ago in a post about Boston University’s new no-profanity policy at hockey games, a policy I suggest would and should (at a public school, anyway) be unconstitutional. The underlying point is that, given the importance of sports and sporting events in American society, it must follow that speech at and about sports has some degree of importance and is deserving of constitutional protection.

The other area is the judicial process, looking at how sport can illustrate how decisions are made and disputes resolved in the context of a competition. Judges in the American judicial system frequently are likened to “umpires,” most recently by Chief Justice John Roberts in his 2005 Senate confirmation hearings. We should examine the analogy to see how accurate it is. Some have called this the “law of sports”—the law that governs the games we play. That law can tell us things about the law of society.

So, those are some of the things I hope to talk about in the coming week, along with any new stories and issues that arise during this week. And I hope to hear some ideas and comments that might help me in future projects.

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Howard Wasserman: Guest Blogger

We are thrilled to have Professor Howard Wasserman of Florida International University College of Law guest blogging this week. Howard is a nationally-recognized expert on the intersection between the First Amendment and sports law (among many other topics), and he recently published Fans, Free Expression, and the Wide World of Sports, 67 University of Pittsburgh Law Review 525 (2006). We look forward to his posts.

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New Book on Curt Flood's Battle for Free Agency

Via Above the Law, I've learned of a new book on the Curt Flood saga by Yale-trained lawyer Brad Syder, entitled A Well-Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports. According to the New York Times:

The author of “Beyond the Shadow of the Senators: The Untold Story of the Homestead Grays and the Integration of Baseball,” Snyder is a sure-handed and meticulous guide. He knows baseball and writes about the law engagingly and clearly, without ever flaunting his Yale law degree. . . .

Snyder can also be pitiless, perhaps excessively so, but then some of the characters in this story earn his ridicule: Kuhn, a man who pulled off the neat sartorial trick of being at once a stuffed shirt and an empty suit; Goldberg, another legendarily pompous man who gave what even his co-counsel said was one of the worst oral arguments he’d ever heard; and Blackmun, an insecure and ineffectual tenderfoot before joining the liberal legion of superheroes.

At the same time, Snyder is too easy on those he most admires. That includes Marvin Miller, whom Snyder thanks twice in the acknowledgments, once for reading the manuscript. Even more than Flood, Miller deserves to be in Cooperstown. But it was Miller who took a vulnerable and deeply troubled man, used him, then — even by Snyder’s own admiring account — seemingly did nothing for him as his life fell apart, like helping him dry out or lending him money or buying him some new teeth or giving him a job. Only as Flood neared death did the Players Association deign to help him. “Miller’s admiration for Flood ran deep,” Snyder writes. Big deal. For the last four or five years of Flood’s life, Miller never even saw the guy.

And the book is too easy on Flood. Repeatedly, and in ever loftier rhetoric, Snyder insists Flood sacrificed his career for the lawsuit. That’s really not right: as a futile comeback attempt proved, Flood was largely spent when he went to court, and wanted little of baseball once he left it. Given his other sacrifices, there’s no need for such hype.

Generations of ballplayers — Curt Flood’s children — have never honored him properly. But with his fine book, Brad Snyder surely has.

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Again This Year, High Payroll Does Not Equal Success

At the beginning of the baseball playoffs last year, I compared the payrolls of all MLB teams to see what kind of impact payroll disparity in major league baseball had on overall team performance, and posted the results. Not surprisingly, my report showed that high payroll did not equal success. I decided to do another report this year, so I guess that means I can now officially call this my "Annual MLB Salary Report Card".

The most important category on the report card last year in terms of measuring general manager performance and sound organizational business decisions was the "Spent What Was Necessary" category listing all the teams that made the playoffs last season without breaking the bank: White Sox ($75M), Angels ($98M), Braves ($86M), Cards ($92M), Astros ($77M) and Padres ($63M). Now here's the irony. This season, 4 of these 6 teams actually spent more on payroll this year and did NOT make the playoffs: White Sox ($102M, and 4th highest payroll), Angels ($103M, and 3rd highest payroll), Braves ($90M), and Astros ($92M). Interestingly, St. Louis actually spent less this year ($88M) and DID make the playoffs again, and San Diego, with the lowest payroll of the entire group at $69M, made the playoffs again as well. [See USA Today's Salary Database, 2006 Total Payroll.]

Looking at the other teams making the playoffs this year in addition to St. Louis and San Diego, the Mets spent the same this year ($101M) and made a complete turnaround from last year. The Dodgers spent $15M more this year ($98M) and it paid off for them. The Yankees spent $15M less this year and still made it with a $194M payroll, but got ousted by Detroit who spent their $82M very wisely this year. Oakland ($62M) and Minnesota ($63M) each won their respective divisions this year -- As usual, Beane and Ryan got it all figured out. Whatever those two guys are making, it's just simply not enough. Boston, with the supposed "boy wonder" in charge and the 2nd highest payroll of $120M, can thank Minnesota (who spent half as much as them) and Detroit (who spent about $40M less than them) for not making it this year.

The MVGM award this year has to go to Billy Beane, whose $62M payroll has found its way in the ALCS against Detroit. Hats off to Florida Marlins GM Larry Beinfest, who pulled off a fairly respectable 78-84 record with just a $15M payroll and a roster made up of primarily young minimum salary players. But gosh, who knows what they might have accomplished by just spending another $15M? -- and they still would have maintained the lowest payroll!

Here's an interesting statistic. There are 12 teams that spent between $60M and $89M, and 5 of them (42%) made the playoffs (and as of this date three of them are still in it). There are 10 teams that spent more than $89M, and only 3 of them (30%) made the playoffs (but only one of them is still in it).

Salary caps? Who needs 'em......

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George Mitchell and the Competing Roles of Internal Investigations and Criminal Prosecutions

Charles Pierce of the Boston Globe has a very interesting and lengthy (~4,000 words) piece today on former U.S. Senator George Mitchell, who was Senate Majority Leader from 1989 to 1995 and who MLB Commissioner Bud Selig recently tapped to head an internal MLB investigation into past steroid use by MLB players ("Does George Mitchell have the Juice?," 10/8/2006). Pierce supplies an engaging biographical survey of Mitchell, including background on his role in the Iran-Contra Senate hearings, his work in helping to broker a peace accord in Northern Ireland, his investigation into corruption at the 2002 Olympic Games, his experience as a private attorney in both Maine and Washington D.C., and his current role with the Boston Red Sox as team director. No matter what you think of his politics, the 73-year-old Mitchell has lived an extraordinary life, especially when considering his humble origins--his father was a day laborer and his mother was textile worker who had emigrated from Lebanon, and Mitchell paid his own way through Bowdoin College and Georgetown University Law Center.

But as Pierce notes, Mitchell's current challenge--figuring out which players used steroids and how they obtained them--might prove to be his toughest, at least in terms of demanding results. As Pierce details, Mitchell's investigation appears to be having difficulty gathering information: criminal prosecutions of baseball players, and the threat of those prosecutions, have discouraged players from speaking with Mitchell out of fear that such information could be shared with federal investigators. This dynamic supplies what I think is an interesting interplay between internal investigations and criminal investigations, both of which seek the same information, but the success of the former may depend on the absence of the latter.

Our blog has plenty of good past coverage on steroids and MLB and Mitchell's investigation, but be sure to check out Charlie Pierce's excellent story as well.

Note: pictured above, from left to right, Michael Dukakis (Massachusetts Governor from 1975-79 and 1983-1991 and Democratic Presidential nominee in 1988), Mitchell, and Larry Lucchino (president and C.E.O of the Boston Red Sox). A picture of Ted Williams rests behind them.

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The Scorpion and the Frog

The story of the scorpion and the frog is one of my favorites. For those who don't know the story, there was a frog sitting by the bank of a stream when a scorpion happens along and asks the frog for a ride on his back in order to cross the stream. The frog is reluctant to do this because the scorpion will sting him. The scorpion assures him that stinging the frog would not be in his self-interest since he wants to get across the stream and stinging him would drown both of them. The frog agrees with this logic and consents to giving the scorpion a ride. Halfway across, the scorpion stings the frog, and they both start drowning. The frog asks the scorpion why he did something so stupid. The scorpion replies, "It is my nature."

I see this story acted out every day. I have personally been the frog in many such tales. For whatever reason, there are people out there who think you are a complete sucker for caring about them. So, they burn their relationship with you for the sake of some momentary gain that completely fucks them in the long run. In short, they say, "You are an idiot for loving me." And they are correct. And what is so tragic is that they express surprise and dismay when people either don't care about them or even elect to try and use them.

I've been trying to get back to the Alma Jean story, but it really is the story of the frog and the scorpion. As complicated as it is, the bottom line is that it is the tale of three scorpions, and the frogs they have stung.

I am reluctant to help people. The only people I will ever help are the ones I know and trust. I go through a great deal of trouble to maintain the relationships I have. I give in order to get. This may be selfish, but I think it is the heart of the golden rule. I treat others as I want to be treated. I love those who love me. I don't waste my love on those who don't love me.

I have had a painful week ending a scorpion/frog type relationship. I am also going to end another one which will be much easier considering that scorpion is sitting in jail. Both people prey on the compassion of others. They play the victim card, and then they cash in the love you give them.

This leads us to a question. How do you distinguish between fellow frogs and scorpions? This is the fundamental question behind every job interview, business deal, or dating relationship. I don't have an easy answer for this one. The fact is that betrayal is a fact of life, and a person must appear to be your friend before they can stab you in the back. The reality is that everyone you love could be the one to fuck you over.

The flip side of this is to never enter into any type of relationship. This is part of the reason why I will never marry. The potential cost outweighs the benefits. You would be better off spending all that cash on a lifetime of hookers simply to avoid the shattered emotions that come from a divorce. Plus, I can tell you from experience that women are more prone to betrayal than men. That is because women are vindictive and weak. They must use opportunity to their advantage which is why they will fuck you at any moment with no prior warning. That's because they seize the opportunity when it presents itself.

I despise this nastiness. But it is the way things are. It makes more sense to play nice with people, but some folks can't do otherwise. It is simply their nature.

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Wrong Name, Wrong Time: Is Bobcats' Owner Robert Johnson Being Profiled by Airport Security?

Steve Kroft of 60 Minutes has obtained the secret list of names used by the Transportation Security Administration (TSA) to screen airline passengers for terrorists. It includes such highly-common names as "Gary Smith," "John Williams," and "Robert Johnson." People with these names are much more likely to be stopped and searched, and are much more likely to undergo strip searches, before boarding airplanes in American airports. For instance, Kroft "talked to 12 people with the name Robert Johnson, all of whom are detained almost every time they fly. The detentions can include strip searches and long delays in their travels."

Why is this name-profiling happening?

"Well, Robert Johnson will never get off the list," says Donna Bucella, who oversaw the creation of the list and has headed up the FBI’s Terrorist Screening Center since 2003. She regrets the trouble they experience, but chalks it up to the price of security in the post-9/11 world. "They're going to be inconvenienced every time … because they do have the name of a person who's a known or suspected terrorist," says Bucella.

When I saw that the name "Gary Smith" was included, it struck me that I've known a number of Gary Smiths in my life. Gary Smith was a science teacher at my high school. Gary Smith was also a college classmate. And Gary Smith worked with me in one of my jobs. They were different Gary Smiths, of course, and none, as far as I could tell, was a terrorist. And I suspect the same can be said of the thousands of Americans who have that name. In fact, Yahoo! People Search indicates that there are 4,921 people with that name, which obviously doesn't include all of the Gary Smiths out there.

The name "Robert Johnson" also caught my eye, because it is the name of the Charlotte Bobcats' majority owner. I have not read anything about Johnson, the first African-American to become the majority owner of an NBA, NFL, NHL, or MLB team, commenting on his experience as an airline passenger, but he probably hasn't enjoyed it very much. He probably also hasn't enjoyed watching his team lose 56 games last season and 64 games two seasons ago, but while new co-owner Michael Jordan might be able to fix that, even Air Jordan can't control the real skies above.

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