Good Call, Ump: Possible Gag Order and Minor League Managers

Phoenix attorney John M. Powers, who guest blogs here and who played professional baseball in the Padres, Cubs, and Rangers organizations from 1996 to 2003, relays an interesting conversation that he recently had with a minor league umpire who, until last week, was on strike:

He mentioned to me that either Major League Baseball or the Owners (whoever had an economic stake in the strike and umps’ salaries, I would guess—or both) had issued a sort of gag order on the minor league managers. The goal was to prevent the managers from complaining about too many calls either during the game or to the newspapers. I don’t know if the order was official, or if there was a memo, or if there was any kind of penalty for violating it, but it seems to bring up some interesting issues.

As we know, managers risk sanction if they publicly complain about an umpire after a game. And if they over-zealously complain to an umpire during a game, they can be thrown out of that game.

But what about regulating the decision of managers to simply go out and argue a call, which is normally allowable (other than for balls/strikes)? It would seem that Major League Baseball is perfectly within its rights to do so. But given the timing of this new regulation--made while MLB was engaged in collective bargaining negotiations with umpires on strike--it seems more the product of improving public relations than improving the sport: the fewer complaints about the replacement umps, the less public pressure for MLB to capitulate to union demands.

This is an interesting example of management changing the way a sports is played in order to enhance how the public regards them in collective bargaining discussions, which in turn may enhance their leverage in those discussions--meaning the law shapes the sport, rather than the other way around.

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Are Fantasy Leagues Bad for Baseball?

In January, Greg reported on a brewing dispute between Major League Baseball and CBC Distribution & Marketing, a supplier of player names and statistics to fantasy leagues. This dispute is now in court: CBC has sued baseball, claiming a first amendment violation. The plaintiff's complaint is here; trial is scheduled for September 5.

In last Sunday's New York Times, George Vecsey suggested that MLB's "boobs" should "stop trying to gouge these ersatz leagues and instead worry about its abandonment of its traditional working class fan base." Along the way, he took a number of swipes at fantasy leagues:

I've never understood the appeal of fantasy sports leagues . . . .

I find fantasy leagues to be as empty as reality shows on the tube or as the brief poker fad (it's over now, isn’t it?) . . . .

[F]antasy leagues are a sure sign somebody has way too much spare time.

[F]antasy league types ought to get a life.

Rising in defense of fantasy leagues, letterer-to-the-editor Todd Hemphill of Trinity, Florida, offers an explanation for the success of fantasy baseball this Sunday,

There was a time when rooting for the local teams made sense. With few exceptions there was continuity from year to year. The players were part of your community. When they succeeded, there was a sense of pride and accomplishment. Now players are hired guns, spinning through a revolving door of multimillion dollar offers, living in mansions far removed from the cities they supposedly represent. Owners are businessmen, period.

Is it better to be a Florida Marlins fan and watch your team marched off to auction block after every winning season? No thanks.

Instead, we create virtual teams. We make decisions about our teams. We vie with other owners with pride and genuine rewards at stake. It keeps our interest in sports alive and frees us from meaningless attachments to teams that no longer have anything to do with us.

The interesting thing about this defense of fantasy leagues is that it does seem to provide a sensible business reason for baseball to try to make life difficult for fantasy leagues. If fantasy and roto-baseball replace come to replace team allegiances, this may cut into MLB’s profits over the long-run. Roto-players certainly don’t have any reason to attend a game live. I would also suspect that they have little reason, unlike participants in an NCAA tournament pool, to watch baseball games on TV. Instead, they watch highlights or, more likely, simply check box scores for their players on the internet. Is it so wrong for MLB to want a piece of the action, to the extent that it is taking away viewers (and thus hurting ad sales) and cutting in to live attendance?

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Haditha

Recent news coming out of Iraq indicate that US Marines killed a bunch of a civilians in a style reminiscent of the My Lai Massacre in Vietnam. This comes as no surprise to me.

 

Haditha is merely a symptom of what all Army and Marine Corps personnel are experiencing over there--frustration. And I am not going to be critical of this decision to kill these people because those Marines understand there are only two solutions to the problems over there. Genocide is one. Total withdrawal is the other.

 

The future of Iraq is clear. It is a divided country, and new borders will be drawn to reflect this reality. It was true in Yugoslavia. It is true in Iraq. The only way to avoid this outcome is kill a lot of people and commit atrocities on the scale of Saddam Hussein, the only man who seemed able to keep that place in one piece.

 

It violates conscience and the values of this country to commit Haditha on the large scale. The best thing the US can do is broker a peace agreement among the various factions and allow them to go their separate ways. Then, we should leave. A unified Iraq makes no sense, yet our insistence on it is what is killing us over there.

 

 

 

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Possible Lawsuit Brewing Against NCAA Over "Diploma Mills"

USA Today reports that an NCAA investigation has uncovered cases of abuse and fraud in academic standards at some non-public, non-traditional high schools and that the NCAA will begin releasing the names of the schools from which it will no longer accept grade transcripts of athletes, which could prevent them from accepting college scholarships ("NCAA uncovers academic fraud at some non-public schools"). The NCAA's investigation was accelerated when it was discovered that a Miami correspondence school that had no classes or instructors and operated almost without supervision, was allegedly offering diplomas for $399.

But according to Don Jackson, an attorney representing some of the schools under investigation, most of the schools are church-affiliated, which would make the NCAA's intrusion an unconstitutional violation of church-state separation. It is Jackson's position that the NCAA does not have legal authority to dictate standards for schools that already operate under state sanction. He indicated that a number of schools have already contacted his law firm about possibly suing the NCAA: "In a really strange way, this degenerates into a states rights issue, an issue involving separation of church and state, and I can't imagine families of these players and the schools themselves not collectively filing lawsuits against the NCAA over these issues."

The NCAA is most likely going to win this battle. While a constitutional violation here is highly suspect, the merits of such a claim would most likely not be addressed because the U.S. Supreme Court in Tarkanian v. NCAA held that the NCAA is not a state actor when it establishes rules and regulations pertaining to academic standards to be followed by its member schools:

"UNLV retained the authority to withdraw from the NCAA and establish its own standards. The university alternatively could have stayed in the Association and worked through the Association's legislative process to amend rules or standards it deemed harsh, unfair, or unwieldy. Neither UNLV's decision to adopt the NCAA's standards nor its minor role in their formulation is a sufficient reason for concluding that the NCAA was acting under color of Nevada law when it promulgated standards governing athlete recruitment, eligibility, and academic performance."

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Spelling Bees and Sports Law

For reasons that escape most of us, spelling bees seem to be sporting events. ESPN not only gives them air time, but if you look at ESPN.com and it's "Spotlight" section, you'll see listed, from left to right, "Spelling Bee, MLB, Page 2, Voices, and Tennis." You'll also see details on this year's Scripps National Spelling Bee, won by 13-year-old Katharine Close of New Jersey.

So why then is a spelling bee a sport? One reason may be that, like sports, spelling bees are competitive matches. And maybe that is why chess and poker tournaments also receive airtime on ESPN and other sports channels. But then again, can't the same be said of almost every life activity? Don't companies compete with each other? Don't artists compete with each other? Don't politicians compete with each other? Don't employees compete with each other? Heck, don't we compete with ourselves? Is everything then a sport? And if so, why doesn't ESPN cover those things?

Of course, we all know the real reason why ESPN broadcasts spelling bees: a lot of people watch them, so they are profitable. And think about why we watch them: we get to see the best of the best kid spellers competing with one another, mano-y-mano, and displaying a skill that almost no one else has. And the contestants are actually quite diverse and egalitarian for a "sport": males and females, of different backgrounds, treated as equal opponents. Even better for TV drama, there's that unmistakable nervous tension in the air--these kids have been preparing their entire lives to be on that stage, and, for better or for worse, they really look the part (and when I see that, I am even more grateful to my parents for letting me play sports and videogames as a kid instead of memorizing word spellings, but then again, I never got to be on that stage or ESPN).

So if we accept that a spelling bee is a sport, what then are some possible legal issues? We are, after-all, a sports law blog, and we don't want to ignore a sport. Here's a few:

1) Conflicts of interest with contestants' parents serving as their agents
We know this applies to some: forcing your kid to stay up all night to memorize words like "spheterize" and "drupaceou" and "tonitruous" because you want to be the parent of a spelling bee champion.

2) Age eligibility and spelling bees
What if a 5-year old is the Lebron James of spellers? In the likely absence of collective-bargaining, he may have a case.

3) Collective bargaining between contestants and ESPN over TV revenue
These kids are uniquely smart--if they could somehow band together as a negotiating unit, they might run circles around ESPN's lawyers. However, and at least based on parent interviews, I'd take ESPN's lawyers if the parents are the ones banding together.

4) Emancipated children (e.g., Gary Coleman; Corey Feldman) who become contestants (e.g., neither Gary Coleman nor Corey Feldman but someone else)
Now the world don't move to the beat of just one drum. What might be right for you, may not be right for some.

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Antitrust Authorities Weigh in on Italian Soccer Scandals

In an interesting development in the Italian soccer scandal, about which I blogged here, the country's antitrust regulators appear poised to get involved. Here's part of the BNA story:

ROME--Italy's antitrust authority on May 25 weighed in on the nation's ever-growing soccer scandals and called for widespread changes in the way players and agents operate.

The announcement from the Autorita Garante della Concorrenza e del Mercato is an unusual one because it doesn't mandate specific action or sanction anyone or any organization. The four-week-old scandal, which involves charges of game fixing and illegal betting, has so far resulted in charges being filed in around a dozen criminal and civil cases. But this is the first time a regulator has weighed in on the issue.

The authority noted that it had conducted a fact-finding inquiry that shows many cases in which agents represent players in negotiations with clubs in which the agent has an interest--either financial or because of family members in key posts.

"It is believed that such relationships can prevent the market from functioning correctly," a spokesman for the authority told BNA. "We call on the national football federation to change the way these rules work."

The authority also suggested elimination of the agents' register, reduction of penalties for players who quit contracts with agents, and creation of incentives to create more competition between agents.

What's interesting about this, from a comparative perspective, is that in the few American cases where an agent has also had an interest in the team with which a client was negotiating (namely, Detroit Lions v. Argovitz, 580 F. Supp. 542), similar conflicts have been addressed as breaches of fiduciary duty, not antitrust violations. Of course, the desire of the regulators to get involved may have more to do with the publicity the scandal has attracted than the merits of the antitrust claims.

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Should Pro Teams Have Religious Identities?

Spurred by a story on ESPN radio based on this USA Today piece about the Colorado Rockies' efforts to promote Christian values among team mebmers, there is an interesting conversation developing about the business and legal aspects of religious affiliations for pro teams at Prawfsblawg. According to USA Today, "On the field, the Rockies are trying to make the playoffs for the first time in 11 seasons and only the second time in their 14-year history. Behind the scenes, they quietly have become an organization guided by Christianity — open to other religious beliefs but embracing a Christian-based code of conduct they believe will bring them focus and success."

Former Rockie (now Giant) Mark Sweeney: "...I've never been in a clubhouse where Christianity is the main purpose. You wonder if some people are going along with it just to keep their jobs. Look, I pray every day. I have faith. It's always been part of my life. But I don't want something forced on me. Do they really have to check to see whether I have a Playboy in my locker?"

UPDATE: Michelle Malkin, who thinks the Rockies' move is "refreshing", reports that some players have been backing away from the USA Today story.

UPDATE #2: On a related topic, see this story from Friday's New York Times, which reports on a development my colleague Howard Friedman covered a month ago (minor league football teams' efforts to target fans of particular religious traditions through "Faith Night" promotions).

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