Deutscher Tennis Bund vs. ATP World Tour

The first post-American Needle sports-related case was released by the U.S. Court of Appeals for the Third Circuit today. The case is Deutscher Tennis Bund, et al vs. ATP World Tour, et al, No. 08-4123. As of 6:oo PM PDT, the Third Circuit had yet to make the decision available on its website, but I will update this post as soon as it is available. In the interim, I have a copy that I can email to anyone as an attachment upon request. UPDATE - With a hat tip to Nathaniel Grow, the decision can now be found here.


Sports Illustrated's Jon Wertheim and I are collaborating on a law review article about the case (working draft will be posted on SSRN soon) and have been following its developments for the past several years. The case won't receive much attention vis-a-vis the Supreme Court's recent American Needle decision, but is important for a number of reasons. Most notably, it represents the most exhaustive discussion of the authority of an individual sport league to make rules, set schedules, determine player eligibility, etc.


The impetus for the case was the ATP's 2007 move to re-work its tournament calendar. Plaintiff's tournament was demoted as part of the schedule change. Rather than accept its new status as a lower tier tournament, Deutscher Tennis Bund filed suit alleging that the ATP and several individually-named members of the board of directors violated Section 1 and 2 of the Sherman Antitrust Act (allegations also included breach of fiduciary duty claims against the board members). After extensive discovery, the case went to trial in Delaware. At trial, both parties used expert witnesses. The District Court judge ruled for the ATP as a matter of law in connection with some of the plaintiff's claims. A jury verdict was returned for the ATP on the remaining claims.


Some observations and links about the 45 page Third Circuit decision are below:


1. Oral argument was revealing. Audio is available here (scroll down to #08-4123). Rob MacGill of Barnes & Thornburg argued on behalf of plaintiff. Brad Ruskin of Proskauer Rose represented the ATP during oral arguments. One of the three judges (I can't tell which one on audio) asked Brad Ruskin if the yet-to-be decided American Needle decision would be controlling. Listen to his insightful reply.


2. The ATP's succinct press release is here.


3. Judge Scirica wrote for a unanimous three-judge panel in favor of the ATP. He opened by making an important distinction that is probably only known by fairly hard-core tennis fans - the ATP does not control the four Grand Slam tournaments (Australian Open, Roland Garros, Wimbledon, and the US Open). Such tournaments (as well as the Davis Cup and minor league "Futures" tournaments) are under the International Tennis Federation's (ITF) jurisdiction. In contrast, the ATP oversees all remaining elite-level professional men's tournaments. Examples include the big US tournaments every year in Indian Wells, Key Biscayne, and Cincy as well as smaller US-based tournaments such as Atlanta, San Jose, and Washington, DC.


4. Judge Scirica's opinion followed a fairly standard analytical framework. Seminal cases such as Standard Oil, Continental TV, Dagher, and Nat'l Soc. Prof. Eng. were all cited. This part of the opinion reminded me of American Needle.


5. Today's opinion, in contrast to American Needle, cited many more sports-related cases (many in footnotes). The most treatment was devoted to the Seventh Circuit's Chicago Bulls decision and Justice Stevens's SCOTUS NCAA vs. University of Oklahoma opinion from 1984. Of course, American Needle was also cited a number of times. With that said, Deutscher Tennis Bund vs. ATP World Tour was by no means a simple exercise of applying American Needle to the facts of the case.


6. Citing NCAA vs. Univ. of Oklahoma, Judge Scirica stated: "the per se rule does not apply for a tennis tour, like other sports leagues, where 'horizontal restraints on competition are essential if the product is to be available at all.'"


7. Judge Scirica dismissed the possibility of "quick look" treatment too. In sum, upon defendant's showing of procompetitive benefits stemming from the challenged conduct, the "quick look" possibility is "extinguished."


8. The most pointed analysis of American Needle was on pages 28 (for a discussion of the single entity issue) and 29 (reiterating that "substance, not form" controls the antitrust inquiry). There was nothing that extended, distinguished, or refuted American Needle.


9. At the end of Footnote 15, the judge concluded: "the District Court correctly instructed the jury to evaluate the alleged restraints under the full rule of reason." The jury did this, and found in favor of the ATP. On appeal, the Third Circuit found the plaintiff's failure to prove a relevant market for professional tennis player services fatal. Antitrust plaintiffs challenging aspects of sport industry governance would be well-served to read this footnote.


10. In addition to suing the ATP, the plaintiffs also sued a number of directors on the ATP's board. Judge Scirica concluded the decision with a lengthy discussion of the business judgment rule and found that defendant board members did not breach their fiduciary duty to plaintiffs.


Today's tennis case differs markedly from American Needle. The former resulted in a jury verdict that was validated on appeal. The latter is now on remand, with an upcoming trial on the merits if the parties don't settle. Tennis also differs from football. I was surprised the Deutscher Tennis Bund decision didn't spend more time highlighting the differences. In our upcoming article, Jon and I spend a substantial amount of time making the argument that such differences are important...and in some cases should be dispositive.


I will post more moving forward. With the case being released on a Friday during Wimbledon (see Howard Wasserman's post below about the longest match in the history of professional tennis), most mainstream news outlets probably won't write about the case until next week. When such articles do appear, I will link to them in an update.

UPDATE - Randall Chase of the Associated Press wrote a piece for USA Today that includes some quotes from the attorneys involved.

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Don't Tread on Me

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Levi Gets the Last Word on PNAS

Writing at Slate, Michael Levi cogently summarizes the broader issues associated with the PNAS paper.

The evidence that we are running dangerous risks with the climate is overwhelming. In their zeal to convince the public of this fact, environmental advocates sometimes hype sensational studies and predictions that rest on weak or ambiguous logic. Every time they do, their opponents have a field day.

This week the greens have played right into that trap. . . .

he paper, entitled "Expert credibility in climate change," was published Monday in the Proceedings of the National Academy of Sciences (PNAS). Within hours, a host of progressive and environmentalist groups were loudly touting its conclusions, and sympathetic articles appeared in USA Today, The New York Times, and Time. On Wednesday morning, the White House drove the message home with an official tweet: "Scientists agree on climate change...the few that don't? not cream of crop." . . .

All of this would be academic quibbling if it wasn't so consequential. The authors of the paper are right that the world is running dangerous risks with the climate system. They are right to be angry at those who claim that climate change is a hoax, and at those in the media who give them a platform to confuse the public. But the way to confront those skeptics is to show that they're wrong—as many dedicated climate scientists have done, again and again. Hyping this paper, instead, simply reinforces the dangerous perception that climate activists will credulously push any news that might further their case. For those who care about this issue, that's tragic.

What is more damaging to efforts to implement policies to accelerate decarbonization of the global economy, climate skeptics, or the clumsy efforts to delegitimze them?

Levi is right on the mark when he writes:

. . . the advocates have used bad social science to show that the science of climate change is sound.

And that is a fitting last word on PNAS, at least for this blog. But feel free to continue the discussion in the comments if you'd like. I'm returning to more important topics, like energy policy and soccer ;-)

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Peter Webster on PNAS Paper: "Very Likely Disgusted"

Peter Webster, a climate scientist at Georgia Tech, weighs in on the PNAS paper that segregates scientists into two categories, good guys and bad guys. Webster is listed as one of the "good guys" on the PNAS list:

All of this is new to me as I have just returned from Asia where I was happily oblivious to the PNAS paper and, forgive me, engaged in science. It has come something of a shock to find myself pigeon-holed, classified and lined up!

I do require one clarification and perhaps you can help. Which is the black list: those who agree with the IPCC as defined by PNAS, or the skeptics? By the PNAS classification, I ended up as a supporter of the IPCC, since I signed the Bali 2007 document. I am trying to remember why I did so. That was 3 years ago and I had not thought too much about IPCC and etc. and it was before the latest assessment. Since then I have become more involved with climate change research and more critical of process and perhaps more questioning of the attribution of warming simply because the IPCC performed poorly in distinguishing between natural variability and anthropogenic effects or hardly considered the issue at all.

Sorry PNAS, but I have evolved, since 2007! But at least my view of the science is not determined by orthodoxy. I imagine Roger Sr. feels the same way.

Re the PNAS paper, it is rather louche. What is the point of this paper? Are the arguments so old and stale that it has to rely on past statements to substantiate a point of view? Death rattle come to mind. Perhaps we are seeing the death throes of the old guard. Perhaps out of these ashes will emerge a more solid scientific view on climate and global change, free of orthodoxy and invigorated by debate.

Finally, in case the PNAS paper comes out in a second edition. I should state my position on attribution. Very Likely? Likely? Well maybe!

Actually, I would like to form a new subgroup, “very likely disgusted.” I suspect its membership may be rather large.

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A Reminder That Serious Engagement at Real Climate is Impossible

Will I never learn?

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Social and Solitary

If you look at most cycling blogs today, the discourse tends to stress the social aspects of riding a bicycle. Cycling is presented as an activity that fosters a sense of community- with an emphasis on interaction with other cyclists, neighborhood initiatives, various workshops and co-ops, group rides, community action programmes, and city or state-wide coalitions.

I find this interesting to observe, because to me the bicycle has always been a symbol of solitude - something that brings complete independence and freedom. When I think of "riding a bicycle," I imagine cycling for miles and miles through changing landscapes, alone with my thoughts and at peace with the world; a meditation of sorts. But I can certainly understand that others imagine group rides, bike workshops, and other social activities - they see the bicycle as a shared interest that makes it easy to connect to others.

Often I am asked why I do not participate in group rides, and the reason is simply that for me socialising and cycling are two distinct activities that are best enjoyed separately. It makes me nervous to chat while trying to navigate traffic, so I fully enjoy neither the discussion nor the ride. I also feel that group rides - even slow ones - are more hazardous than cycling alone, because you have to watch out not only for traffic, but for the wheels of other cyclists; I know probably a half dozen people whose only cycling accidents happened during group rides. I can cycle pretty happily with one person at a time (though it depends on their style), but beyond that it starts to get stressful.

This is not to say that I am "against" the socially-oriented portrayal of cycling. I just don't think that the bicycle = community association is universally applicable. And after all, it is rather fascinating that the bicycle can be a symbol of two diametrically opposite things: the social and the solitary.

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Snatch & Glad Midsommar!

Snatch 24kg: 5/5, 40/40, 3/3

Swing outside legs 2x24: 3x 10 (one set was attempt Martin style)

(tried snatches 2x24kg but it was not their day)

Snatch 16kg (with cotton glove): 10 minutes

Long rest
Oa jerk 32kg:10/10/5/5

2hand swing 32kg: 5x 20 reps (valsalva breathing)


Nice I could do 40/40 again in snatch. Now, I've done it twice, a third time and I dare to say I can snatch 40/40 :-).

Brief snatch analysis:

1) When I get tired, I tend to shorten back swing and tame the arc (it becomes more dead snatch like). This is probably as I don't want to drop the bell. I was outdoors today, that helps.

2) As grip gets tired, I don't dare to pull the bell as quick/forcefully (cf. point 1) from the bottom position. The bell does not ascend as high, and I don't get it to land as well in the palm in lockout. When that starts, grip endurance quickly deteriorates.

Ok, what to do with this? Stop getting tired...? Not very good strategy :-). I see this particular issue as mainly a conditioning question - grip endurance, more specifically. Technically, an awareness of not taming the arc prematurely can be helpful. Still, predominantly, I tame the arc with a good reason: grip is giving out.

Btw, to dead snatch is ok if it is an voluntary strategy to squeese out some last reps, through changing the bell trajectory. I am not there with the 24kg yet though.

Glad midsommar allihop!

Added:
Talking about snatches and getting the max out, Mike Sharkey came to think of this video. I think it is Johnny Bendize: the hottest snatcher around today:

Note how he uses a small dip, also when he is quite fresh. He drops the bell quite low, probably to avoid a grip-tiring jerk and dampen the bell's descent. Snatching at it's best.

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