Tuesday, January 31, 2006

Illinois Appeals NCAA Mascot Ban

The University of Illinois has filed a second appeal challenging a decision of the NCAA that would require the school to drop its Chief Illiniwek athletic mascot and logo before it could host any postseason competition. (ESPN) Although the NCAA ruling allows the university to keep its Illini and Fighting Illini nicknames, it ruled that Chief Illiniwek is "hostile and abusive."

I have covered this topic a great deal, usually opposing these types of sanctions (5/25/05). That being said, Chief Illiniwek does seem like a bit of a caricature. And the school gets to keep its nickname -- it just needs to change its mascot. I understand there is tradition at stake, but many teams change logos just for marketing purposes.

On the other hand, there seems to be a great deal of discrepancy in the NCAA policy. "Fighting Illini" is ok. But the NCAA has penalized North Dakota for its nickname -- "Fighting Sioux." And what about the "Fighting Irish," with an arguably far more-offensive caricature mascot. How is that at all different? Is it that most Irish are not offended by the nickname? Well, neither are most Native Americans (9/28/04). Seems like a double standard to me.

Coretta Scott King's Death and Respectful Racial Competition

Since Coretta Scott King died this morning, it’s hard for me to concentrate on sports at the moment. I was going to write something about there actually being “sports law”, which would include the standards of review for overturning referee calls, deductions regarding the arbitrariness or due process in league suspensions, and other private law stuff. But all that seems a bit trivial at the moment. I’m feeling a need to relate Ms. King’s death to another, realer game: political competition.

In The Tournament of Races, the team called white people has a significant lead in each major category of human activity: education, entertainment, economics, labor, law, politics, sex, religion, and war. This is what I believe is a benign conception of white supremacy, (as opposed to the conception of hooded warriors who terrorize as the only white supremacists). In some of those areas of activity, entertainment and politics more so than economics and war, white peoples’ lead has diminished. The lead began shrinking when slavery ended, reduced further in the 50s thanks to Brown v. Board of Education, Rosa Parks and Coretta’s husband, Martin Luther King, and others, and reduced further still in the 60s and 70s with the introduction of the Civil Rights Acts, school desegregation and Affirmative Action.

Affirmative Action was the last straw. This was and is seen as a direct threat to white supremacy. White people had to call a timeout. After instituting a new general manager named Reagan, white people began battling back, calling Affirmative Action reverse racism, and pleading with the country to battle the forces of discrimination, not the forces that uphold white supremacy.

Then OJ got off. If a big black buck of dude can kill a white woman and get away with it, then white peoples’ supremacy must have ended, or at least the other teams are close enough so that white people take the car off cruise control and compete with vigor again. In comes Gingrich's Contract with America, the Republican Congress, Karl Rove (especially Karl Rove), and now Bush and the boys.

Now the Supreme Court is really up for grabs. It is already slightly right of center, which probably accurately reflects an aggregated America. Rehnquist was a foe of governmental attempts to level the playing field. O’Connor was not a huge fan, but recognized that when one team wins all the time the game disintegrates, and in the political game disintegration is not pleasant. Samuel Alito, the new nominee, like John Roberts less than a year before him, are of the mind that the playing field is level enough to allow full blown racial competition. Blacks and other minorities vehemently disagree. The playing field is tilted and we’d like to switch at halftime.

Whether there is or is not a level playing field is not really where I’ve been going with this. Tavis Smiley pointed out this morning that the day of Rosa Parks funeral, Bush laid a wreath then nominated Samuel Alito. Then, on the day Coretta Scott King dies, senators will issue statements praising her then turn around and confirm Alito. This despite a Zogby poll claiming that 100% of black people oppose Alito’s nomination.

This certifies in my mind that the white team is back in full effect. And that’s cool. All I ask is that we keep the competition respectful this time, same rules for everybody and no chummying up with the ref. And most importantly, despite all praise of bad sportsmanship on ESPN and everywhere else, just remember, when you’re up by a lot, there’s no need to rub the losing team’s face in it. It’ll just start a fight.

Andre Smith

Sports Agent Finds Himself Caught Between A Rock and A Hard Place

Liz Mullen of Street & Smith's Sports Business Journal does an excellent job of reporting on the latest labor and agent news -- especially when it comes to digging up the dirt in the sports agent business. In her column this week, "NFLPA hasn't given up on disciplining Dunn," she discusses the current situation of agent David Dunn, who was suspended by the NFLPA in 2003 for two years based upon testimony given by NFL players at a trial in 2002 in which a jury found that Dunn unfairly competed against his former partner, Leigh Steinberg. Dunn then filed for personal Chapter 11 bankruptcy, which put a hold on all administrative actions against him, including the NFLPA two-year suspension. Last spring, the jury verdict was reversed on appeal, but the NFLPA still wants to suspend or decertify Dunn because the reversal was based upon technicalities, including jury instruction errors.

At the 2002 trial, there was testimony from an NFL player that Dunn had solicited him to fire Steinberg and join Dunn at Dunn’s new agency, Athletes First, which is a blatant violation of the NFLPA agent regulations. Also, a former NFL player testified: 1) that Athletes First never told him that Steinberg had filed a grievance over fees the former player owed Steinberg; and 2) that he did not know that Athletes First had answered the grievance on his behalf, denying he owed the fees.

Next month, the NFLPA will argue in federal court that Dunn’s certification should not be subject to bankruptcy protection. According to NFLPA counsel Lisa Fenning,

“If we win, it means a ruling by the district court that his [NFLPA
certification] is outside the bankruptcy and can be terminated by the
NFLPA. The NFLPA would certainly terminate it if David Dunn continued to refuse to submit to the disciplinary process.”

Mullen notes that even if the NFLPA loses its motion, Dunn may still be forced out of bankruptcy protection and into the union’s disciplinary procedures because he has a February 15 deadline to propose a financial reorganization plan and an April deadline to confirm that plan.

Now, you might think that a bankrupt agent that is on the verge of being heavily sanctioned (even decertified) for NFLPA rule violations would have some difficulty obtaining clients? Apparently not. Dunn currently represents about eight of this year’s draft prospects, and about 50 NFL players, including Seahawks quarterback Matt Hasselbeck and Broncos quarterback Jake Plummer. And Reggie Bush and Matt Leinart reportedly gave strong consideration to having Dunn represent them.

More to come from me later this week on the sports agent business....

Monday, January 30, 2006

Doesn't Pay to Be Honest In Sports

Ron Artest and Terrell Owens and others believe they are being paid to play their sport, when the media and team officials think they are paying them to play the 'game'. Neither Artest nor Owens will play certain parts of the game. The part they hate most is lying. According to team officials, the media, and most of the sports watching public, athletes, well paid or not, are to follow an unwritten code that mandates lying if it means that your team or teammate or league or sport will be dishonored by your honest opinion. The only exception to this rule is that a player can dishonor other players whom the media or sport officials have labeled as 'problematic'. To avoid this, athletes could refuse to talk to the media, and risk their reputations that way and at the same time get fined by their respective leagues.

What does this have to do with Ron Artest? Artest did not attempt to scuttle the Indiana-Sacramento deal, or at least did not do so with any malice. The Kings, doing their due diligence, asked the Artest if he would be happy playing for the Kings. Artest being Queensbridge through and through responded honestly, that he would not. If being stuck in the middle of Indiana is a problem for Artest, and I am 110% sure that it is, going out to cowtown Sacramento is not a pleasant idea either. The problem is, he honestly expressed how every non-cowtown-wanting-to-go-to player in the league feels.

The Sacramento Kings, accepting the integrity of Artest's statements, rightly and rightfully declined to add on a player who would be unhappy in their town. Good for them, good for Ron, not good for the Pacers, and not good for hegemonic authority over athletes. For that, he is a trouble maker again. Of course the trade went through, but the media portrayal of Ron Artest was clear.

Ask yourself, "what did Terrell Owens say that he didn't honestly believe?"

Andre Smith

Performance-Enhancing Drug or Air Conditioning?

Saturday's edition of the Wall Street Journal had a front-page article that caught my eye -- a piece on the Finnish cross-country team and the use of "alpine cottages." (Newman, "Fake Mountain Air Gives Some Skiers Level Chance for Gold," WSJ, 01/28/06-subscription only).
    In cross-country skiing, a granddaddy of aerobic endurance sports, there is no such thing as a level playing field. Because mountain air boosts energy-generating red blood cells, mountainous countries like Norway and Sweden have a leg up on the Finlands of the world that are mountain-deprived.

    Several years ago, a Finnish scientist invented a way to give his country an even chance: a mechanical altitude simulator called the "alpine cottage."

    ***

    "In Finland we have no mountains," says Prof. [Heikki] Rusko, a trim 62-year-old who works here in Jyväskylä, 170 miles north of Helsinki, at the Finnish research institute for Olympic sports. "Why shouldn't we have the same chances as countries that do?"

    The alpine cottage is Prof. Rusko's mountain-moving device. It can take the form of a sealed-off apartment or just a duct-taped tent. Added nitrogen changes the mix of the air inside, reducing oxygen content while leaving pressure unchanged. The cottage lets low-country athletes live in simulated chalets, making extra red blood cells as they sleep.
But not everyone thinks these cottages are a good idea, or even within the spirit of competition. In Italy, where the Olympics are being held next month, the cottages are illegal. And a number of people thinks that the cottages are no different than the use of a performance-enhancing drug that can have the same effect on red blood cells.

But Prof. Rusko disagrees, saying that the more appropriate analogy is to the use of air-conditioning in a hot gym. It isn't harmful and it does not give anyone an unfair advantage.

So which is it? Should alpine cottages be treated like performance-enhancing drugs? Or are they more like air conditioners, which no doubt can increase the amount of time an athlete can spend training, and thus, improve their chance for success? Where does laser eye surgery fall into the mix (4/21/05)? How about bionic surgery (3/28/05)?

As technology continues to improve, where should sports draw the line?

Major League Baseball v. Fantasy Sports

http://www.cnn.com/2006/US/01/15/baseball.stats.ap/

Expansion of personal proprietary rights (the exclusive right to commercially exploit one's name, image or likeness) is not appropriate in the context of fantasy sports. Companies that offer commercial fantasy sports products, like CDM, Rotoworld, CBS Sportsline, etc., have customarily, though reluctantly, acknowledged a players economic right to his statistics, and accordingly have been paying licensing fees to players associations like the MLBPA.

It hadn't been a problem because players associations need revenue to fund the organization and especially to build a war chest, so very few had been denied a license. MLBPA recently gave its marketing rights to Major League Baseball properties, who is now withholding licenses to fantasy games operators. A company named CBC is fighting MLB on this issue, claiming that statistics are news and in the public domain, free for all to use and exploit.

I have not read the briefs yet. It will be interesting to see which "right" of the players MLB is seeking to protect: trademark in the player's name, state laws relating to one's image and likeness, statistics as a league held commodity.

Those are some of the positive concerns. For me the normative concern, relates to monopoly. Copyrights and patent rights are a Constitutionally required monopoly. All other attemtps to monopolize should be highly suspect, as illustrated by section 2 of the Sherman Act, and violative of the goal toward perfect competition in the marketplace. Without the aid and now depsite the resistance of sports leagues, fantasy sports has become a multi-billion dollar industry, creating jobs and profit for many. There are even analogous fantasy competitions. I've recently come across a fantasy law professor game, where the participants get points for article citations (bonus points if cited by a court). Major League Baseball, on behalf of the players union, claims a right to have stifled these novel ideas and business long ago if it, or the players, had so chosen.

Funny how the greedy greedy players or their agents never sought to monopolize this industry. If MLB can prevent the granting of licenses, then fans can legally play the games only on MLB. MLB will not have the incentive to innovate or make it cheaper. Of course, Fantasy sports including baseball would still continue, illicitly, with otherwise lawabiding middle aged participants as criminals, not unlike their music-downloading teenage children.

Even if MLB holds this economic right, I don't believe Congress should allow them to control it absolutely. Like the compulsory licensing scheme in the music industry, fantasy operators should pay a statutorily set fee to rights holders. As an eligible free agent in the law professor game, I don't want to stop people from betting that my article's will make it into the Harvard Law Review, I just want to get paid if it does.

Andre Smith

UPDATE: For more on this topic, see this earlier post (1/3/06). -- ed.

Andre Smith - Guest Blogger

Good morning all,

My name is Andre Smith. I am an assistant professor of law at Florida International University, in Miami, Florida. I teach Federal Income Tax, Estate and Gift Tax, Administrative Law, and Sports and Entertainment Law. I do not teach Critical Race Theory or Employment Discrimination, but I do have strong opinions on the subject of race and sports, and I will share them with you.

Also, I am a fan of economics; not necessarily the conclusions economists make, especially those made by law and economic types. I am in love with the method and the presuppositions that equality (or equilibrium) is brought about by perfect competition, utilitiy maximization, perfect information, and no transaction costs. Looking at sports and race and race and sports in this context drives me towards many of my opinions.

Aside from that stuff, I am also an avid fantasy sports player and am certainly in defense of the industry in its battle against Major League Baseball's attempt to monopolize the industry via proprietary control over newsworthy information. Disclosure: I am affiliated with a website, www.hiphopsports.net, that is heavily involved in the fantasy sports arena.

I'm not a fan of monopolies. I believe the problems created by monopolies are the hardest for the common person to perceive. These "misperceptions" drive wedges between people who actually have common interests, and absolve those who profit from the problem in the first place.

Oh, and I am hiphop. So bear with me if my language, a mixture of English, American, Patois, Ebonics, and HipHop, confuses you at times. I'll try to be clear.

Those are the generalities. I'll be back with a real opinion or blurb or something in a moment.