The Irrelevance of Evolutionary Biology to Sports and Law

One of my favorite college classes was Science B-29, Human Behavioral Biology. This venerable franchise (affectionately nicknamed “Sex” by the undergraduate students), long one of the most popular courses at my college, dealt with primate evolution and explored evolutionary explanations for human behavior. Along with a roommate, I even went so far as to nominate one of the course’s favorite subjects, the Bonobo chimpanzee, as the football team’s mascot. Sadly, the “Angry Pilgrim” was chosen instead.

It was with some interest over the weekend, therefore, that I read blogger Brian Leiter’s new essay, Why Evolutionary Biology is (so far) Irrelevant to Law (available here). Leiter and co-author Michael Weisberg make a thoughtful and persuasive case against the use of human behavioral biology and evolutionary psychology in legal scholarship and legal policy-making. The authors commendably explain the occasional philosophical term of art (e.g., “causal etiology,” “ontological parsimony”), such that even a non-scholarly reader can gain something from the piece.

Here’s a snapshot of their argument: “[E]volutionary biology offers nothing to law—more precisely, it offers nothing to help with questions about legal regulation of behavior . . . . Only systematic misrepresentations or lack of understanding of the relevant biology, together with far reaching analytical and philosophical confusions, have led anyone to think otherwise.”

The idea that evolutionary biology could come to replace economics as the leading “law and ___” movement always struck me as odd, given how much evolutionary biology and selfish gene theory owe to economics. That is to say, I’m not sure evolutionary biology is really all that much of an “alternative” to the reigning interdisciplinary approach to studying and conceptualizing law. Leiter’s essay provides further reasons to doubt the likelihood that any “law and evolution” movement will have legs. This is not to say that genetic science is irrelevant to some pressing legal questions (for example, in putting to rest the notion that race is anything but a social construct, as my colleague Bill Richman argues here), just that evolutionary biology is not sufficiently well developed to offer conclusions about law that have any scientific rigor.

Comments about evolutionary biology occasionally surface in discussions of sports as well. Jimmy “The Greek” Snyder’s remarks about African-American athletes are perhaps the most infamous. More recently, Cubs manager Dusty Baker made his own oddball evolutionary observation about African-American and Latino players and their comparative tolerance for hot weather. For any athlete, coach or player thinking of making a comment speciously asserting an evolutionary explanation for some perceived difference among categories of athletes, Leiter’s essay is good reading. If the career-destroying effects of such comments aren’t enough to deter, Leiter’s essay helps show, on an intellectual level, how little evolutionary biology has to say about current human behavior or how it should be regulated.

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Court Denies Class Certification in NCAA Walk-On Football Players Antitrust Case

On May 3, a federal district court in the Western District of Washington denied class certification in an antitrust case filed by walk-on NCAA football players challenging limits on the number of scholarships. The case is In re NCAA 1-A Walk-on Football Players Litigation, W.D. Wash., No. C0-1254C (May 3, 2006). The Westlaw cite is 2006 WL 1207915. The plaintiffs in this case had previously survived a motion to dismiss. See 398 F.Supp.2d 1144, available here.

The putative plaintiff class consisted of a subset of those walk-on players from Division I Schools for the 2000-2001 through 2003-2004 seasons (those walk-ons who participated in spring practice with the team, and thus were closest to making the “cut” for a scholarship). The plaintiffs challenged NCAA Bylaw 15.5.5, which caps the number of scholarships for each DI-A school at 85. The plaintiffs claimed violations of Sherman Act §1 and §2 (their complaint is here). The §1 claim alleged that the NCAA operated a classic cartel to exercise monopsony purchasing power and restrict competition in the market for football players, an input market for DI-A college football. The §2 claim asserted that the NCAA were engaged in a conspiracy to monopolize the “big time college football” market.

The court rejected plaintiffs’ motion for class certification, explaining, “The facts going to the violation are also identical for each class member. All of the factual and legal inquiries will be the same to establish the relevant market, illegality, characterization of Bylaw 15.5.5 as a horizontal restraint, injury to competition, and the propriety of an injunction. Where the required proof diverges significantly is at the antitrust injury and damages stages . . . .”

The court continued, “[O]nce the existence of an antitrust violation has been fully litigated, the predominance of common issues will fade quickly. . . . The individualized determinations that will be required to prove antitrust injury and damages provide an insurmountable barrier to class treatment.” In a nutshell, the court felt that only some of the plaintiffs would have been damaged, since not all of them would have received scholarship even if the cap on scholarships were lifted. This decision will no doubt be appealed.

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Pitchers in California Can Intentionally Throw at a Batter's Head

Last month the California Supreme Court decided that all pitches intentionally thrown at a batter's head are "a fundamental and inherent risk of the sport of baseball" (Calif. Supreme Court: Ballplayer Can't Sue for Bean Ball). The plaintiff, Jose Avila, was a junior college baseball player who was struck in the head with a pitch thrown by a pitcher on the opposing team. The plaintiff alleged that the pitcher had intentionally thrown at his head to retaliate for a player on the pitcher's team being hit by a pitch in the previous inning. According to the complaint, his batting helmet cracked and he suffered "unspecified serious personal injuries."

The plaintiff sued the school district, alleging negligent supervision over its pitcher. Regarding this claim, the Court held that the plaintiff assumed the risk of injury. Justice Kathryn Mickle Werdegar wrote for a 6-1 court:

"Being hit by a pitch is an inherent risk of baseball. Pitchers intentionally throw at batters to disrupt a batter's timing or back him away from home plate, to retaliate after a teammate has been hit or to punish a batter for having hit a home run. Even if the Citrus College pitcher intentionally threw at Avila, his conduct did not fall outside the range of ordinary activity involved in the sport."

While the plaintiff did not allege a battery claim, the dissent argued that the plaintiff should have been permitted to amend his complaint. However, Justice Werdegar said it wouldn't have mattered because anyone who plays a sport has consented to physical contact and understands the rules of the game:

"Thus, the boxer who steps into the ring consents to his opponent's jabs; the football player who steps onto the gridiron consents to his opponent's hard tackle; the hockey goalie who takes the ice consents to face his opponent's slap shots; and, here, the baseball player who steps to the plate consents to the possibility the opposing pitcher may throw near or at him."

In terms of whether the beanball in baseball meets the age-old "part of the game" definition for determining tort liability, I think Justice Werdegar is half right. There are some situations when it is part of the game, for example, in order to "protect your teammates" (Justice Werdegar referred to it as retaliating after a teammate has been hit), or when a batter walks off a home run when his team is up by a dozen runs, or maybe when a batter "pops off" in the press about the opposing team or opposing pitcher. However, I think the justice is incorrect that beanballs are part of the game in order "to disrupt the batter's timing" or in order "to punish a batter for having hit a home run". And it is NEVER part of the game, under any circumstance, to intentionally throw at a batter's head (such as was alleged in this case). Throwing a brushback pitch is not the same as intentionally throwing at the head.

But maybe the case was correctly decided after all. At first glance, one has to seriously question whether it is the proper function of tort law to even police beanballs. Assuming that I am correct about the circumstances under which the beanball is and is not part of the game (and assuming the plaintiff can actually prove intent which is always very difficult), should courts be drawing such fine distinctions between permissible and impermissible beanballs? As a policy matter, should the California Supreme Court instead have held that it is acceptable for a pitcher to intentionally hit a batter below the neck, but only if it involves situation A, B or C?

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Was Barbaro Abused?

Sadly, Kentucky Derby winner Barbaro broke his leg in the opening of today's Preakness Stakes in Baltimore. My thoughts are with this brave champion. And I pose the following question: Was Barbaro abused? After all, he ran a very tough race just two weeks ago. A human athlete completing the equivalent race -- say, a marathon -- would be permitted to take time off. Nearly all of Barbaro's Kentucky Derby competitors stayed home today (only two showed up to race). Was this champion treated unfairly, just because he was a horse?

Cass Sunstein, one of America's leading legal scholars, has over the past few years joined a chorus of voices calling for greater protection for animal rights. In The Rights of Animals, 70 Chi. L. Rev. 387, he wrote, "[H]orses should not have the right to vote; but they should have a right to good lives for . . . horses." In Standing for Animals, 47 UCLA L. Rev. 1333, he questioned whether animals might or should have standing to sue to vindicate their interest in avoiding suffering. Should Barbaro have been able to sit out, even though he had a chance at the Triple Crown?

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Random Thoughts on Various Subjects

1. Without a doubt, Barry Bonds is the most hated player in baseball, and he deserves every bit of it. The man needs to get nut cancer and die.

2. I've given Bush a lot of credit for his immigration stance but sending the National Guard to seal the border is dumb shit. It obviously won't work, but at this point, Bush is desperate to win political points and deflect attention from Iraq, Gitmo, wiretapping, and the fact that he has shit for brains.

3. South Carolina citizens and The State have been outraged at how so much taxpayer money has been squandered on the Hunlet fiasco. I would like to know something. Since when did any of these folks ever give a damn about how their tax dollars are spent? And why does The State advocate greater spending (and a tax increase) for every problem? I'd like to see Brad Warthen or the other shitheads on the staff at that rag explain this stupidity to me.

I am united with The State on this issue concerning the Hunley, but I differ with them in that I am neither shocked nor surprised that this shit happens. It is in the nature of government to be wasteful because they lack the corrections that come from market forces and consumer choice. Yet, shithead pinhead clusterfuckheads continue to believe in higher taxes and less choice and express dismay that millions are spent on puke they wouldn't give a red cent for.

4. I've never understood the balkanization of human rights. I believe in human rights for women, gays, minorities, etc. But I don't believe in "gay rights" or "women's rights." it is plain fucking stupid.

I was reminded of this while listening to NPR and some homo was talking about how unfair the green card regs were because they excluded gay or lesbian couples from being able to secure a green card for their foreign lovers. I was just amazed. Basically, the gay community only cares about an immigrant when that immigrant takes it in the ass and likes it. Otherwise, fuck off.

5. It is sad to see Sir Paul getting a divorce. But then again, married life is for suckers.

6. For the record, I am not dating Paris Hilton. I just wanted to set that straight.

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The Real Moonlight Graham: Byron Gettis

Norm Sanders of the Belleville (Illinois) News-Democrat has an interesting story on Byron Gettis, a 26-year old who will become a freshman at Southern Illinois University Carbondale this fall. (Sanders, "Cahokia Star Finally Gets His Chance," 4/27/2006). Back in 1998, when Gettis was 18-years old and graduating from high school, he signed with the Kansas City Royals organization as a free agent in lieu of accepting a scholarship to play football at the University of Minnesota. However, his contract with the Royals stipulated that the Royals would pay for his college education, if and when he later pursued it. Gettis went on to a successful minor league career, and even reached the big leagues with the Royals for 21 games and 39 at-bats in the 2004 season. He had 7 hits and one RBI, and got to play with Carlos Beltran and Mike Sweeney. But in 2005, he was back in the minors, and then decided to retire from baseball.

This fall, Gettis will take the Royals up on their contractual committment to pay for his college education, and he'll try to make his college football team as a walk-on. Gettis has no regrets. He says of his brief time in the big leagues:

"It was unbelievable. It was probably one of the best and greatest experiences of my life. When you reach your goal that you've dreamed of, it's unbelievable. It was just being part of that brotherhood, having your name on the roll in the big leagues."

Interestingly, and as baseball agent Joe Rosen has discussed and written about, big league teams often include a college education clause in contracts with players who elect to sign out-of-high-school. It's unclear what percentage of players actually exercise that clause, but it's a good reminder that a college education is not a "one-shot-deal" in American life. People can go back to school at any point, so when an extraordinary opportunity presents itself out-of-high-school (be it sports or otherwise), a person doesn't forfeit college by taking advantage of it. And considering that Byron Gettis got to play in the big leagues, even for a very brief and unnoticed time, I suspect he'll have some great stories to tell as a freshman this fall.

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How Best To Build A (Sports) Lawyer?

There's an article in this month's edition of the ABA Journal written by G.M. Filisko, which entails a thought-provoking discussion about how best to prepare and train people to become lawyers ("How Best To Build A Lawyer?"). Filisko notes that, "[f]or years, ideas have been batted around to improve the way lawyers are educated, ranging from allowing apprenticeships to changing bar exam standards to wiping out law school altogether." A few states -- California, Maine, New York, Vermont, Virginia, Washington and Wyoming -- allow students to skip law school in favor of some form of apprenticeship or “reading the law,” which combines self-study and practice under the supervision of an experienced, bar-admitted attorney. While skipping law school altogether probably sounds attractive to many prospective law students, the reality is that it would be difficult to get a job as an attorney because most hiring partners reject such drastic alternatives to obtaining a formal law school education.

But there may be a happy medium somewhere in-between. For example, some of the hiring partners interviewed for the article support the idea of combining a formal law school education with a legal residency (analogous to the medical profession). Here are some of their comments:

• “My general sense is that the first year to two years of law school is important because it really does teach people how to spot and analyze issues and how to construct arguments.” However, he added that he could see “losing the last year of law school and replacing it with practical work.”

• A residency program could help law firms in hiring. "If you bring students in for an extended apprenticeship, you get a better look at them.”

• A residency program could improve attorney retention. “It may result in less movement by people from one area of the law to another or from one firm to another.”

Internships are a great way to accomplish, on a more limited scale, many of the same goals and objectives of a formal legal residency program. While law schools across the country are establishing more concentrations with specialized curriculums in various fields of law, it is vital that students in these programs have the opportunity to not only apply what they are learning in the classroom, but to also begin making contacts within the particular industry while in law school. I think generally law schools could do better in this regard.

As a director of a sports law concentration, I make internship placement a priority because internships afford students a tremendous opportunity during law school (1) to gain practical experience in the sports industry, (2) to give sports industry employers a "look-see" which may lead to future employment for the student with that particular employer or with another employer, and (3) to help students determine early on which fields within the sports industry interest them most. Internships can also help to alleviate senioritis.

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