Sunday, October 5, 2008

Chicago Cubs and the Curse of Legal Formalism

On Saturday night, the Los Angeles Dodgers beat the Cubs 3-1, completely a dominating three-game sweep in the National League Division Series in which they outscored the Cubs 20-6. Thus will it be more than 100 years between world championships for the Cubs, who famously last won in 1908. This century of losing has been blamed on everything from billy goats to black cats to twenty-something fans in head phones to the refusal to install lights at Wrigley Field. I want to suggest a new source: legal formalism.

In addition to being the centennial of the Cubs' last championship, 1908 also was the centennial of one of the game's most infamous gaffes, by Fred "Bonehead' Merkle. Some detailed history. On September 23 of that year, the Giants and Cubs, tied for first place, played at New York's Polo Grounds. Tied 1-1 with two outs and runners at first (Merkle, then a rookie first-baseman) and third, the Giants' Al Bridwell singled, scoring the runner from third, and apparently winning the game.Giant fans immediately ran onto the field, a common practice in those days, both to celebrate and to head to the stadium exit in right field that was closest to the trains and streetcars home. To get out of the crowd, Merkle turned right and headed for the clubhouse, which was located behind centerfield (the Polo Grounds remains my favorite of the now-deceased ballparks), without touching second base. That left the force at second base in effect. Amid the chaos, Cubs second baseman Johnny Evers got a ball (no one knows for sure whether it was the actual ball that had been hit on the play and that fact never has been established; some stories have a Giants player throwing the actual batted ball into the stands) and tagged second base and umpire Hank O'Day called Merkle out on the force, which nullified the run and ended the inning. The game then was called because of darkness and declared a tie. The teams finished the season tied, so the tie game was replayed; the Cubs won 4-2, winning the pennant and then the World Series--their last.

And here we have legal formalism at work. O'Day's call was correct under MLB rules. A run does not score if a trailing runner is forced out at another base for the third out of the inning. And there seems no dispute that Merkle did not touch second. On the other hand, the crowd had stormed the field, so Merkle's decision to get off the field as quickly as possible is understandable. It was common in those days for fans to come onto the field and for players to head for safety, even without touching the base. The rule was not well-known and was not regularly enforced. And, of course, we do not know whether the ball that Evers had when he tagged the base was the right ball. On the other hand, some accounts have Evers trying the same move a few weeks earlier on the same umpire--it did not work then because the umpire had not watched to see whether the runner touched second. But O'Day was on notice when it counted.

So how does karma work? One way would be to deny the Cubs the benefit of the "tainted" victory by having them lose the World Series. Another way would be to give the Cubs the benefit of the Series that year--and never letting them have it again. So, if you are an 8-year-old Chicagoan in 1908, which do your choose?

By the way, I have been looking at current Major League Baseball rules (Download 04_starting_ending_game.pdf) and it appears the result would be the same under current rules. Rule 4.09(a) addresses this situation and requires that all runners touch the next base. Rule 4.09(b) provides that in a walk-off situation (run scoring in the last half of the final inning), the runner on third must touch home and the batter must touch first, with no mention of any other runners. But that rule is limited only to plays with the bases full which force the runner on third to advance--not the situation in 1908, because the runner on third was not forced to come home. A comment creates an exception when fans rush the field and prevent either from touching the necessary base, with the bases awarded because of fan interference. But that comment is limited only to Rule 4.09(b), which, again, does not cover the 1908 situation. Am I reading the rule correctly?

Or maybe umpires impose flexibility as a matter of their own discretion. In 1976, the Yankees won the ALCS when Chris Chambliss hit a home run to lead-off the ninth inning. Thousands of fans descended on the field to celebrate, pull up grass, and (I have read) try to steal pieces of padding off the outfield fence) as Chambliss tried to get around the bases; he eventually gave up and ran for the safety of the clubhouse. Later, after the field had been cleared, the umpires pulled Chambliss out of the clubhouse and had him touch home plate. Formalist, to be sure. Call this a mix of formalism and pragmatism--make sure the batter touches the bases, but allow him to get out of the madness of the moment without penalty.

Retirement Sucks



I don't believe in retirement. Retirement sucks. Retirement is the warmup for death.

Brett Favre could not do it. He could not stop playing. Lance Armstrong made a similar decision. After three years, he wants another TDF title. I do not blame these men for wanting to be back in it.

Thanks to Social Security, a lot of people consider retirement to be the pinnacle of existence. They believe that we should all labor to be free from working. I think this is sad.

Eventually, both Favre and Armstrong will have to hang it up. This is inevitable. We get older. We lose a step. It is one thing to retire from an activity. It is another thing to retire to inactivity. I hope both of them go on to bigger and better things.

I believe you should do the things you love for as long as you possibly can. I believe it is better to burn out than to rust out. I will probably be dead before 50, but I intend to work until the day I die whenever that will be. There is no happiness in idleness.

Thursday, October 2, 2008

Not much to report

So not a lot going on here right now, bit of a case of the calm before the storm I suspect. As I type this I am watching Hooty pacing her fenceline. She's a maiden mare so something of an unknown quantity but I would be surprised if she decided to foal a week early - still, anything is possible! I took a few photos of Maude and Aine earlier so have put them up.

Whee!
Does my bum look big in this?
Strike a pose
Be a lert, the world needs more lerts!
Well Hi there

Wednesday, October 1, 2008

Its Cricket Season



And its thirsty work for the Blackcaps, first up in a long long season is the power house of Bangladesh, noone is really taking notice of the one dayers, but the two tests are of vital importance, we have to win and win them handsdown.

The batsman have to get some form, Ryder has to show he can go a day without drinking, and the great Tim Southee and Daniel Vettori well they just have to be themselves and everything will be okay.

But lets me honest this series is a warm up for the blackcaps, we have to travel to Australia for two tests against the best team in the world and we finally have a chance of beating them, with a new captain who takes a positive approach and a couple of real weapons in Taylor and Southee, we could do the impossible.

Fingers and toes are crossed.

New Sports Law Scholarship

Recently published scholarship includes:
Ashley J. Becnel Student article, Friday night lights reach the Supreme Court: how a case about high school football [Brentwood] changed the First Amendment, 15 SPORTS LAWYERS JOURNAL 327 (2008)

Brett Celedonia, Student article, Flying objects: arena liability for fan injuries in hockey and other sports, 15 SPORTS LAWYERS JOURNAL 115 (2008)

Kristin Jo Custer, Note, From mice to men: genetic doping in international sports, 30 HASTINGS INTERNATIONAL & COMPARATIVE LAW REVIEW 181 (2007)

Jonathan B. Goldberg, Player mobility in professional sports: from the reserve system to free agency, 15 SPORTS LAWYERS JOURNAL 21 (2008)

Hannah Gordon, Student article, The Robinson rule: models for addressing race discrimination in the hiring of NCAA head football coaches, 15 SPORTS LAWYERS JOURNAL 1 (2008)

Andrew P. Hanson, Student article, The trend toward principled negotiation in Major League Baseball collective bargaining, 15 SPORTS LAWYERS JOURNAL 221 (2008)

Tyson E. Hubbard, Student article, For the public’s use? Eminent domain in stadium construction, 15 SPORTS LAWYERS JOURNAL 173 (2008)

Jeffrey F. Levine, A golden opportunity for global acceptance? How hosting the Olympic Games impacts a nation’s economy and intellectual property rights with a focus on the right of publicity, 15 SPORTS LAWYERS JOURNAL 245 (2008)

Robert I. Lockwood, Student article, The best interests of the league: referee betting scandal brings commissioner authority and collective bargaining back to the frontcourt in the NBA, 15 SPORTS LAWYERS JOURNAL 137 (2008)

Melissa Neiman, Protecting professional boxers: federal regulations with more punch, 15 SPORTS LAWYERS JOURNAL 59 (2008)

Michael D. Tucker, Student article, Exploring the Copperweld analysis in Kentucky Speedway: single entity treatment for NASCAR and International Speedway Corporation 15 SPORTS LAWYERS JOURNAL 99 (2008)

Alexis E. Quinones, Unique industry, unique relationship, unique perspective: a quick look at some issues of Puerto Rican sports, 15 SPORTS LAWYERS JOURNAL 195 (2008)

Victoria J. Siesta, Note, Out at home: challenging the United States-Japanese Player Contract Agreement under Japanese law, 33 BROOKLYN JOURNAL OF INTERNATIONAL LAW 1069 (2008)

Avi Sinensky, Comment, Not that there is anything wrong with that: the practical and legal implications of a homosexual professional athlete, 10 UNIVERSITY OF PENNSYLVANIA JOURNAL OF BUSINESS & EMPLOYMENT LAW 1009 (2008)

David C. Weiss, Student article, How Terrell Owens, collective bargaining, and forfeiture restrictions created a moral hazard that caused the NFL crime wave and what it meant for Michael Vick, 15 SPORTS LAWYERS JOURNAL 279 (2008)

Catching Up With "Failed" Prep-to-Pro Jonathan Bender

A couple of years ago, I blogged on the retirement of Jonathan Bender from the NBA ("Not Being Randy Livingston: The Jonathan Bender Story"). Bender, routinely cited as a failed high schooler-turned-NBA player, retired at age 25, due to chronic knee problems. During his NBA career, which spanned six seasons after being the 5th overall pick in the 1999 NBA Draft out of Picayune (Mississippi) Memorial High School, Bender earned about $30 million.

Anna Katherine Clemmons of ESPN The Magazine recently caught up with Bender. Since retiring from the league, Bender has become a different kind of player -- one instrumental in the rebuilding of New Orleans. He has also wisely invested the money he earned and has become a successful businessman. Here is an excerpt from Anna's excellent article:

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Along with his entrepreneurial mind, Bender felt compelled to give back, one of the many lessons [father-figure] Billy Ray Hobley had taught him. Bender had bought a home in the New Orleans suburb of Kenner in 1999, in part to be closer to Hobley (who died of a heart attack in 2002) and his grandmother, Cora, who still lived in Picayune.

Returning to New Orleans four years later, Bender began his Foundation, which focuses on providing disadvantaged children the tools to address their educational, health and social needs.

When Bender's Foundation adopted Joseph S. Maggiore Elementary School, Bender bought and distributed Christmas presents to the 430 students. But he also plans to establish an after-school program he named "Being Busy and Cool After School," where students will have 30 minutes of tutoring followed by lectures from professionals discussing their careers. Bender offered up the example of glass blowers, saying, "Most of these kids don't know that there's a career in blowing glass. They may say, 'I like that, that's what I want to do.' I want to help them identify their passion and work toward it."

The Foundation is just one of Bender's many endeavors. Some of his many others include: an Italian wine imports company; investment in several high-end real estate projects; inventing and seeking a patent on a fitness device he's calling Bender Bands; owning part of an island and some commerical property in the Caribbean; owning Studio 5504, a New Orleans recording facility; and running free basketball clinics for teens in the New Orleans region. He wants to start a mentor program for NBA rookies, and he's developing a reality show, "Brand New Orleans," based on his projects.

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For the rest of the article, click here. For a law review article I wrote a few years back on high schoolers and the NBA, check out "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft."

Court Orders Rehearing in CDT Case

The New York Times reports that yesterday a federal appeals court ordered a rehearing of a 2006 ruling of the Ninth Circuit Court of Appeals in the case of United States v. Comprehensive Drug Testing, Inc. (CDT). In 2004, search warrants were issued authorizing the seizure of drug test records and specimens for ten named Balco-connected players. During the search, the government seized a computer directory containing all of the computer files for CDT's sports drug testing programs. The computer directory contained numerous subdirectories and hundreds of files, and agents removed copies of the files for later review at government offices. The documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named Balco players, intermingled with positive results for twenty-six other players. Using information culled from the computer directory, the government then applied for and obtained new search warrants to seize all specimens and records relating to over one hundred non-Balco players who had tested positive for steroids.

The Ninth Circuit ruled in a 115-page opinion that the government had legally obtained the evidence, which I heavily criticized in a post saying "this decision can't be the right result." I'm glad to see that there is going to be a rehearing because this ruling has much broader implications than affecting a few athletes who allegedly tested positive for steroids. This ruling impacts each and every citizen, because virtually all confidential records and information is stored and intermingled in electronic form on computers one way or another (hospital records, employment records, etc.).