Despite Several Triple Axels, 15-Year-Old Mao Asada Barred From the 2006 Olympics

Within hours of posting on the age eligibility "summit" held a couple of weeks ago (see below), I came across another germane news story that broke yesterday. Japanese figure skater Mao Asada has been barred from competing in the 2006 Winter Olympics in Turin, Italy because of her young age. The International Skating Union, the relevant governing body, requires that all Olympic and World Championships competitors be at least 15 years old by the previous July 1 to be eligible.

A good summary of Ms. Asada's on-ice exploits is on SI's website. The quotes in the SI article attributed to Ms. Asada indicate that she does not intend to fight the age rule in Japan or elsewhere, despite here status as one of the best figure skaters in the world. Similarly, Japan's skating federation probably won't further her cause in connection with the '06 Olympics given that it voted for the 1996 amendment to the ISU age rules. Surprisingly, Ms. Asada's strongest supporter may be Junichiro Koizumi, the Prime Minister of Japan. When I researched this issue years ago, I focused my research on USA antitrust laws. A survey of antitrust laws (or whatever they are called outside the USA) on an international basis would shed light on whether an aggrieved party could forum shop or race to a (favorable) courthouse. Hmmm...did I just come up with an idea for my next law review article?

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Reggie Bush Sweepstakes

Oh those NFL schedule makers. How do they do it? The final week in the NFL pits Houston against San Francisco with so much at stake one can barely watch the game. The loser, of course, wins the Reggie Bush sweepstakes, a prize more valuable than any division crown. In this season of watching fans root for their team to lose, it’s time to challenge the bedrock assumption of the American professional sports monopolies: the necessity of a college draft with the worst teams getting the top picks.

The rationale has been the subject of so much propaganda no one challenges the concept: We do it for the fans; otherwise the same teams will get all the best players and win every year and the smaller market fans will have nothing to root for.

Bull.

Actually, the more accurate term is monopsony not monopoly since the leagues control the buying of talent not the selling: they are the only source to which the players may sell their services.

But why shouldn’t Reggie Bush be able to market his considerable talent to the highest bidder or, heaven forbid, live and work in a city of his choosing with professionals with whom he chooses to associate. Isn’t that what the rest of us get to do when we look for a job?

Let’s look at that assumption again. The NCAA, with all its other faults, does seem to operate rather competitively without a draft of high school players to the colleges in reverse order of how they finished the prior year. Each year the upsets in the NCAA basketball tournament make your picks in the office pool worthless by the Sweet Sixteen. Even if Duke does seem to get more than its share of All-Americans, it does so by offering the most to its recruits: a great coach, a quality education, a history of not simply using its young talent but helping them grow into quality human beings. Shouldn’t college athletes get to choose their employers by similar criteria?

The English and European soccer leagues stay competitive without the privilege of monopsony power. So does virtually every profession outside of the American sports world. The truth is: the reason for the draft is to control competition in the market not on the playing field. So the top players can’t field offers from those otherwise willing to pay them what the free market says they are worth. That is what monopsonies do and, except in the American sports world, that is why they are illegal.

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Age Eligibility Rules in Pro Sports - Conference #2

A few weeks after Sports Law Blog contributor Mike McCann spoke at a conference at Case Western Reserve School of law pertaining to eligibility rules in pro sports, leaders of several sport governing bodies convened in at the W Hotel in New York City for the same reason. The title of the forum was "Professional Athlete Forum of Phenoms to Professions: Successful Transitions." Speakers included (from left): NBA Deputy Commissioner Russ Granik, NHL Commissioner Gary Bettman, LPGA Tour Commissioner Carolyn Bivens, WTA Tour head Larry Scott, and MLS chief Don Garber.

Although I wasn't able to attend, I did read a great summary of the event penned by Bob Seligman, a correspondent for the Sports Business Daily. Among other things, the conference attendees discussed the timely issue of Morgan Pressel, a promising 17-year-old golfer seeking a waiver from the LPGA's minimum age rule requiring that all full-time players be at least 18. Shortly after the forum (or perhaps it was decided beforehand), the LPGA Tour granted Pressel full membership on tour for 2006.

In my previous life as a lowly law student, I published an article on this issue in the Sports Lawyers Journal, a publication out of Tulane University School of Law. With two high-profile conferences in a single month, it is apparent that the issue of age eligibility issues in pro sports is a timely one. In 2006, it will be interesting to see if a "perfect plaintiff" emerges to challenge an age rule. Stay tuned...

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Matters of Coverage

Head athletic trainers (AT) and athletic directors (AD) at universities and high schools face several challenges when it comes to ensuring the safety of their athletes. Facility safety, emergency care responses, and pre-participation physicals are all examples of administrative responsibilities that can impact player safety.

One additional administrative challenge that is especially interesting from a legal standpoint is the issue of appropriate medical coverage. In other words, if you're the AD at Arizona State University, how do you decide how many ATs you must employ in order to reach an appropriate level of medical coverage across all practices and events? If you're the head AT, how do you decide to make coverage assignments for your group of AT employees? How you decide how many ATs to assign to Fall football, swimming, soccer, etc.?

What about the high school? In most cases, high schools employ only 1 (if any) full-time ATs who are then responsible for the medical care of all student athletes. At many large high schools, several hundred student athletes might be active simultaneously, many of whom might be practicing or playing at remote sites. How do you decide what event you should physically attend and how do you stay in touch with the others?

The goal in both settings is to make informed decisions about medical staff placement based on knowledge of 1) the intensity of the sport (e.g., collision vs. contact vs. non-contact), 2) the injury rates in the sport, and 3) the likelihood of catastrophic injury (e.g., severe head / neck injury) in the sport. This is why, in most cases, the lone high school AT will always cover football while ensuring other sports can be in contact with him by cell phone or walkie-talkie. On the other hand, because universities tend to have a little more money, each major sport will usually receive the coverage at least one AT. Sports like football will be covered by a small army of medical staff for the reasons I identified above, and because of the large numbers of players on a typical university football team.

You can imagine, however, that if high school Sally, a freshman girls basketball player is injured, and medical response to her injury is delayed because the lone AT must run, or golf-cart, or even drive from one facility to another, and if that delay contributes to increased morbidity or mortality of the injury, Sally (or her parents) are going to wonder why the AT of AD didn't take steps to ensure a more immediate response for their daughter? Yes, there is an expectation that coaches can serve as first responders and provide at least basic 1st aid & CPR, but many athletic injuries or illnesses can overwhelm those responses very quickly.

To provide some formal structure and decision making tools for these situations, the National Athletic Trainers' Association (NATA) created relevant guidelines and recommendations in the form of two documents: Recommendations and Guidelines for Appropriate Medical Coverage of Intercollegiate Athletics and a Consensus Statement on Appropriate Medical Care for the Secondary School-Age Athlete.

I'd recommend you take a look at these. First, notice that we're dealing with recommendations, guidelines, and a consensus statement. The NATA was not looking to create policy (nor could they), but certainly these documents could be used to establish a standard of care. Second, appropriate medical coverage is defined much more broadly than the 3 guiding principles for coverage I mentioned earlier. Third, you'll notice some striking differences between the two documents. The first takes an almost formulaic approach to the issue. The second is more brief and seeks to establish the characteristics of appropriate medical coverage and who is capable of providing such coverage.

To my knowledge, neither has been used in formal legal action. A matter of time, I suppose.

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Woody

I'm originally from Ohio, and all Ohio natives, by law, must root for Ohio State or risk deportation to that state up north.

We also have an unending (and many would say unhealthy) love affair with Woody Hayes. So, although today's a happy day for me personally (it's my birthday), it's also the anniversary of the infamous Woody Hayes punch, which lead to his immediate dismissal and the end of the most successfuly period in Ohio State football history.

So, especially for all you Michigan fans recovering from last night's stinging defeat to Nebraska, enjoy this NYT story, and Go Bucks!

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Alan Milstein's History of Sports and the Human Condition

Alan Milstein, an attorney at Sherman, Silverstein, Kohl, Rose & Podolsky who has litigated on behalf of a number of athletes, including Maurice Clarett, as well as medical patients, has published Out of the Park: A History of Sports and the Human Condition. Co-authored by Attorney Michael Dube, Out of the Park canvasses the history of sports dating back from 777 BC (with the first records of the Olympics) to December 15, 2005 (with the University of Buffalo hiring Turner Gill as the fifth black coach in Division 1A football). The 45-page time line includes pictures and photos, and offers extraordinary detail on how sports has evolved in the realms of the law, medicine, psychology, sociology, and economics.

Out of the Park is an outstanding resource. Be sure to check it out.

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Busy busy busy

I've been busy the last couple of days that I haven't been able to do my weekly post here. I probably should face facts and admit that I don't have the time to do this blog.

 

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iPod oblivion?

Dan Lothian of CNN documents the problem of "iPod oblivion" - the self-induced spaceout experienced by iPod wearers and how it's making them easy targets of petty crimes. There must be legal ramifications for Apple, no? So, I'm just wondering how long it will take for the first lawsuit to be filed. Surely, someone will claim that the iPod is a new kind of "attractive nuisance" (I use the term loosely) that lulled them into a sense of complacency where they were then taken advantage of by lurking criminals. Surely, Apple has an obligation to warn users of the fact that when "under the headphones", they are at an increased chance of falling victim to crime?! When will Griffin invent an iPod add-on that eliminates this dangerous and costly inconvenience??!!

And if that wasn't enough of a legal risk for Apple, consider the debilitating iPod finger
injury. Ouch! The British Chiropractic Association had taken special concern with this ailment. They warn

"Handheld music machines are extremely popular and users are constantly using small, difficult buttons with the same finger in a repetitive motion"

Hmmm. . . So, for all of you new iPod and Blackberry owners, and surely there must be many among the readers of this blog, consider the following safety precautions as your sports, er. . .communication technology health tip of the day:

• Use a neutral grip when holding the device – meaning the wrist is straight, not bent.
• Take a break every hour. Overuse of repetitive motions can cause tendinitis or lead to carpal tunnel syndrome.
• Place pillows in your lap and rest your arms on them. This allows you to keep your head in a more upright position and decrease neck strain.
• Any old chair won't do. Sit in a chair that allows you to put your feet on the floor and provides good back support.
• Ambidextrous is a good thing. Switch hands frequently.
  

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Dreamcatcher: University High School to Abruptly Close on Dec. 31

This field, this game, is a part of our past, Ray. It reminds us of all that once was good, and that could be again. Oh people will come, Ray. People will most definitely come.

Well, at least they came to University High School for a while. As we discussed last month, University High School in Miami has served as an academic field of dreams for many high school football players who sought to pave their way to college football scholarships by taking high school courses in which they knew that if they studied hard and gave it their all, they would do well. The problem was that they also know that if they didn't study--at all--they could simply look up the answers in the back of the book and get straight As. And they didn't have to show up to class either, because there were no classes. All they needed was $399 and the ability to look up answers in the back of the book. Colleges didn't care, because they knew these football players would make a lot of money for them and the NCAA in ticket sales, merchandise, and videogame licensing deals (which, I suspect, is the same reason why the NCAA happened to overlook this racket until the New York Times exposed it last month). It worked great for everyone -- at least until too many University High grads showed up at places like Auburn and Florida State and couldn't handle the work (not surprising, since they couldn't handle high school work).

And therein lies the problem for the University High School, which has become a too-obvious haven for colleges seeking premiere high school talent, but talent that could not do well in legitimate high school settings. Until the New York Times' exposé, however, University High School had prospered as a place where GPAs could somehow rise from failing to spectacular in the span of a month, and where colleges could nominally satisfy NCAA requirements in dispensing scholarships to top athletes.

But under increasing pressure from both creditors and Florida law enforcement officials, University High decided last week to close its doors this Saturday. Duff Wilson of the New York Times has the story. Here are some excerpts:

University High School, a correspondence school in Miami being investigated for giving fast, high grades to qualify high school athletes for college scholarships, is going out of business Dec. 31, its founder, Stanley J. Simmons, said yesterday.

"It's a disaster," Simmons, 75, said in a telephone interview from his Miami home. "I'm finishing up everything, and I'm going back into retirement."

The National Collegiate Athletic Association yesterday named 17 people to a panel to study correspondence high schools and other nontraditional routes to college athletic eligibility and scholarships. The move is a response to questions about the legitimacy of the academic credentials of some high school athletes . . .

Simmons, who founded the school in 2000, said he had sold it about 14 months ago to Michael R. Kinney, 27, of Miami, who had operated it for him for years. Simmons said Kinney defaulted on his monthly payment after The Times wrote about the school last month, prompting state investigations.

Simmons said the school was "totally mismanaged - probably more than mismanaged" - and also that Kinney was responsible for the venture to help high school athletes qualify for N.C.A.A. scholarships. "There's no way that I would consider remaining in the business," Simmons said.

Simmons wrote a letter for the remaining students, telling them to pay their fees and finish their tests before Dec. 31. The letter concluded, in all upper-case letters, "If you are serious about receiving your high school diploma, we recommend that you act now!"

Not so good times at University High.

Hat Tip: Sports Law Blog reader Lance Mixon for alerting me to this story.

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Local drug testing news

In a previous post to this blog, Greg Skidmore shared some important legal information concerning mandatory randomized drug testing of high school athletes. The legal cases he cites are the same cases I share with my athletic training students to establish the legal foundation for testing activities. Athletic trainers will often be included in the creation of these testing policies, are usully in the "need to know" loop on positive tests, and at some levels (college, olympic), athletic trainers are often intimately involved with many aspects of the testing procedures (e.g., sample collection). It's an important topic on which they must be informed and for which they must have an opinion.

Over the past 12 months, the issue has receiving increased attention in the local Phoenix metro area. For example, in response to a drug-related car crash involving four high school athletes, the Scottsdale (AZ) Unified School District, with pressure from Maricopa County Sheriff Joe Arpaio, has been considering a mandatory drug testing system since the Spring, 2005. A brief review of the past 12 months worth of Governing Board meetings shows no evidence that a policy has yet been implemented. However they have implemented school-wide drug-sniffing canine programs which will affect all students. Phoenix Union School District is considering a similar drug testing plan, but the Mayor and others have recieved much public resistance about the appropriateness and legality of such a testing system, although legality appears to be fading as a relevant issue.

Case in point: within the past two months, the Chandler (AZ - a suburb of Phoenix) Unified School District has successfully implemented a mandatory drug testing program for three of its high schools. This program, funded by a grant from the U.S. Department of Education, goes into effect in January, 2006. Expected outcomes for the program include:

• Program empowers students to have a socially acceptable reason to decline using illegal drugs.
• Students participating in sports and non-athletic activities governed by the Arizona Interscholastic Association will set a powerful example for the entire student body.
• Drug use will decline
• Random drug testing will create a safer environment for all athletes
• Reinforces the opportunity for rehabilitation if needed

First, consider the last three bullets. In general, the jury is still out about the eventual likelihood of these outcomes, and perhaps CUSDs program will help contribute to a growing body of literature on the topic. But to date, the current literature does not suggest that these programs are as effective as some might hope. Consider, for example, a recent study by Yamaguchi, Johnston, and O'Mally (Journal of School Health, April 2003, Vol73, No. 4, pp. 159-164). After surveying 30k 8th-graders, 23k 10th-graders,and 23k 12th-graders, they conclude:

. . .drug testing was not associated with eitehr the prevalence or the frequencey of student marijuana use, or of other illicit drug use. Nor was drug testing of athletes associated with lower-than-average marijuana and other illicit drug use by high school male athletes. Even among those who identifeid themselves as fairly experienced marijuana users, drug testing also was not associated with either the prevelance or the frequency of marijuana or other illicit drug use" (p. 164).

One significant limitation from this study is that the surveys were distributed and collected from school administrators, which may lead to response bias. But nevertheless, the study raises some interesting concerns that perhaps our local testing efforts may be able to address.

As for the first two bullets, they don't strike me as outcomes. They may be viewed as crucial social and/or communication tools that assist student-athletes in getting out of tight peer-pressure situations, but they're not outcomes. To the degree that they are employed in the common social situations student-athletes find themselves in, my guess is that it will take quite some time for those accepted social structures to be modified.

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Blown Save(ings): Former All-Star Closer Jeff Reardon Charged with Armed Robbery

Jeff Reardon, a former All-Star closer who pitched in the big leagues from 1979 to 1994, was arrested yesterday on armed robbery charges in Palm Beach Gardens, Florida. According to the police, the 50-year-old entered a jewelry store and "handed a clerk a note demanding money. The clerk, believing Reardon had a gun, filled a bag with an undisclosed amount of cash." With his bag full of cash in hand, Reardon fled the store. Within a short-time, however, the police found Reardon at a local Chinese restaurant--with the same bag in hand--and arrested him.

A conviction on armed robbery charges could pose a sentence in excess of 10 years.

Although Reardon was best known for his time with the Minnesota Twins (with whom he won a World Series ring in 1988), I best remember him from when the Boston Red Sox signed him as a free agent in 1989. Reardon was born and raised in Massachusetts, and his signing was naturally considered a great homecoming. It was also a lucrative move: at age 34, he received a 3-year, $6.8 million contract from the Red Sox.

But the hometown aspect was most appealing. Just consider these comments from Boston Globe columnist Dan Shaughnessy right after the Sox signed Reardon in December 1989:

The Red Sox have a pitcher who knows the meaning of traffic rotaries, Bill Monbouquette, candlepin bowling and Johnny Pesky.

Jeff Reardon of Dalton, Mass., is coming home to pitch for the Red Sox and he promises not to complain about save situations, wives' seating or the Mass. Pike toll increase scheduled for next spring.

Jim Rivers was Jeff Reardon's high school baseball coach in Dalton and yesterday said, "I couldn't be happier for him. This is his boyhood dream. He's always wanted to be in Boston."

Boyhood dream.

As cliches go, this is one of the best. We are on the threshold of the '90s, and baseball stories are accompanied by an endless stream of digits. The key words are pacts, contracts, extensions, bonuses and incentives. There is no room for the fuzzy dreams of a young boy in bed, laying on his back, pounding a ball into a Sears glove, staring at the ceiling and envisioning himself standing on the great mound at green Fenway. Jeff Reardon is finally going to pitch for his hometown team . . .

Reardon is coming home, and there is joy in the sleepy streets of Dalton, Hinsdale, Washington, Cummington, Windsor, Becket and Peru, Mass. These are the tiny towns served by Wahconah Regional High School, where Reardon got his diploma in 1973. There's a lot of pride in this rural area. (Dan Shaughnessy, "Home is Where He Belongs," Boston Globe, Dec. 7, 1989, at 109).

Although Reardon is obviously innocent until proven guilty, if the charges do prove true, it is striking that Reardon could have apparently blown all of his career earnings, and had to resort to a not-well-executed jewelry store robbery as a result. This story brings to mind the limited career earnings curve of pro athletes, and how important financial advisors are to their post-game futures.

Update 12:15 PM: Fox Sports has more details on the incident, and those details cast a far more positive light on Reardon. To say the least, he has had a rough past couple of years, as his 20-year-old son died of a drug overdose in February 2004, and Reardon underwent a heart angioplastly last week. Reardon claims that medication from the surgery caused his bizarre behavior.

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What We Do

Happy Holidays everyone! I'd like to thank Michael for the generous invitation to guest blog for this week. He and I struck up a conversation a few months back about one of his blog post, and now, here I am. Because I'm one of the few non-lawyers in the guest-blogger stable, I thought I'd open the week with a little information about my profession, athletic training, and try to answer the question, "Why is an athletic trainer reading the Sports Law Blog?"

In a bit of serendipitous media syngery, today's edition of the NYT is carrying two stories that serve as perfect segues into a brief discussion about the role and responsibilities of athletic trainers. The first is a story about the 20th anniversary of Joe Theismann's Monday Night Football injury. (The second is a story about sport-related spinal cord injury, but unfortunately, access is limited to Times Select subscribers, so I'll ignore it here). Theismann's injury, an open tibia-fibula fracture, was similar to the one in the picture above. Gruesome, I know, but also an important reminder of the severity and seriousness of injury that can occur to athletes at all levels of competition. As many of you know, that injury cost Theismann's his career. On a more general note, musculoskeletal ailments are now the most commonly given reason for physician visits. Of the 35 million American kids playing organized sport, it's estimated that 10% will be injured, and most of those will be orthopaedic-related injuries

For many people involved in sport or physical activity, athletic trainers (ATs) serve as the primary point of care for preventative, emergency, and rehabilitative medical services. We are employed at all levels of amatuer and professional sports, and in many oupatient therapy clinics. We work very closely with our directing physicians (team physicians in most cases) in the provision of athletic health care. In addition to preparing Theismann and his teammates for competition (with padding, taping and bracing, nutritional advice, training and conditioning, etc.), ATs, along with the team physicians, would have been primarilty responsible for the acute management of his injury. In many cases, they would then also be responsible for the rehabilitation and return to play of the athlete. I'll spare you more details - you can read more about the profession at the National Athletic Trainer's Association website. I'd especially encourage you to read some of these facts about ATs.

Why would an athletic training / sports health care professor, or any AT for that matter, be interested in the Sports Law Blog? Well, I happen to teach a course on current legal and professional issues facing ATs which is how I first stumbled across the site. ATs, like many other allied health care professionals, are increasingly faced with a myriad of legal issues, including malpractice and negligence claims, risk management, patient confidentiality, drug testing, etc. This blog has proven to be a helpful and provocative resource on many of these issues. So, my goal for this week then, is to try to approach some of these and related topics from the "sports" health care standpoint.

I look forward to discussing more of these issues as the week goes on. If you have any specific ideas for topics, please let me know.

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It's a Wonderful Life: Kobe Bryant and the Prison Life He Avoided

Dave Zirin of Counter Punch Magazine has an interesting piece on the life Kobe Bryant could have led had he been convicted on sexual assault charges two years ago. (Zirin, "Rotten at the Core: Kobe Bryant and the Price of Freedom," Counter Punch, 9/6/2006). As you may all remeber, those charges were dropped less than a week before Bryant's trial was set to begin. Zarin's piece argues that, because of race, African-American men are far more likely than white men to be convicted of criminal charges, and absent extraordinary wealth (see: Bryant, O.J. Simpson), they can expect to endure seemingly-ghoulish conditions behind bars:

Now we know the price of freedom in the USA: eight to ten million dollars. That's how much Kobe Bryant shelled out to his legal team to avoid a rape conviction and four to life in a Colorado Maximum Security Prison. That's how much it costs for a young black man to evade a trial by a jury pool that is .5% African-American. That's how much it costs to get out of Dodge.

It was a small price to pay. If convicted in Eagle County, Kobe would not have shared a cell with Martha Stewart in the Michael Milken wing of a country club prison. He would have been grinded through the sick machine of Colorado's sex-offense "rehabilitation" system.

Frankly, "sick" doesn't begin to describe it. First, Kobe would likely have been denied bail--a standard Rocky State result of a Class A felony conviction--and then spend 60 days in a county cell waiting to be sentenced.

Then, during the 60-day waiting period, the NBA All-Star would have been given what is called a "penile plethysmograph test." The PPT, which plays a determining role for sentencing, involves fitting an electric measuring band around the penis and connecting this apparatus to a computer. Then Kobe would be shown films of graphic sexual violence and illegal pornography as the computer gauges his level of "arousal and deviancy" . . .

For Bryant, raised in Italy, the son of a globe trotting professional basketball player, a Colorado Maximum Security Prison would be a rude awakening. For the first year, "he [would] be in a cell 23 hours out of 24," explains Denver trial attorney Bob McAllister. "He's famous so the guards will make sure there's no appearance of favoritism. They'll probably be harder on him, full-body cavity searches, just to show him he isn't anything special" . . .

Three-strikes laws, zero tolerance policies, and mandatory minimum sentencing have left more than two million people in this country rotting in prisons, the numbers disproportionately black and brown. For those who don't have ten figure salaries to spend on attorneys, punishment, torture and 23-hour lockdowns become your new life.

My take: I tend to believe that socio-economic status is just as important as race (i.e., poorer, less educated folks--white/black/asian/you name it--seldom make "good defendants" and can't afford legal teams, and are thus less likely to receive the benefit of the doubt that most of the people reading this would--white/black/asian/you name it). Similarly, the human impulse towards "justice" (or, less delicately put, "pay back") animates our thinking in how we respond to crime, and that often has more to do with the crime than the criminal (and, frankly, "pay back" may not always be a bad thing). But obviously, race is still a very significant factor in who ends up in prison and what happens to them in prison, as African-American men are far more likely to be convicted than white men, and they tend to receive harsher penalties for the same conviction.

Hat Tip: Henry Abbot's True Hoop

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Happy Holidays

We hope you all are enjoying the holidays. We'll be back on Monday, December 26, with two guest bloggers (Professor John Parsons of the Arizona School of Health Sciences and Attorney Ryan Rodenberg of Octagon), so be sure to check in. I look forward to posting on Johnny Damon signing with the Yankees and whether his decision "disproves" my upcoming law article, It's Not About the Money: The Role of Preferences, Cognitive Biases and Heuristics Among Professional Athletes, 71 Brooklyn Law Review __ (forthcoming, 2006).

Here's a preview: it doesn't.

But in the meantime, Merry Christmas and Happy Hanukkah! Thanks once again for helping to make this site a popular and we hope commendable forum for those interested in sports and the law.

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Ball Hog? Harlem Ambassadors File FTC Complaint Against Harlem Globetrotters for Unfair Business Practices

The Harlem Ambassadors, a barnstorming exhibition basketball team that was founded in 1998, have filed a complaint with the Federal Trade Commission concerning the business practices of the Harlem Globetrotters, also a barnstorming exhibition basketball team, yet one that was founded in 1926 and enjoys far-better name recognition. (Don Walker, "Ambassadors' Beef with Globetrotters is no Joke," Milwaukee Journal Sentinel, 12/01/2005). The Ambassadors' founder and president/GM, Dale Moss (pictured to left with star player Ladè Majic Prophète), was recently interviewed on David Frank and Scott Gilefsky's Sports Court on Sporting News Radio.

The Ambassadors--which, unlike the Globetrotters, feature male and female players--tend to play in smaller venues, while the Globetrotters often secure the larger arenas. The complaint specifically concerns the Globetrotters' contractual agreements with their host arenas: by rule, the Globetrotters require exclusivity windows, in this case meaning the host arena may not book "any basketball exhibition for a period of eight weeks prior to the performance and six weeks subsequent to the performance [about 3 and a half months all-together]." Consequently, the Ambassadors are greatly limited in their ability to schedule events with the larger arenas, leading the Ambassadors to allege that the Globetrotters "have unreasonably used its market position to initiate a conspiracy of contracts which unreasonably restrain the business activities of the Harlem Ambassadors."

So how do we analyze the complaint? Obviously, competition is a good thing, and the exclusivity windows appear to shutout the Ambassadors from competing with their well-established, name-brand competitor. On the other hand, the Globetrotters might argue that sufficient competition is already generated by the prevalence of other novelty acts, like circuses and feature shows: if the Globetrotters aren't generating fans, then arenas will presumably negotiate contracts with those other novelty acts or possibly even the Ambassadors. It thus seems that both the Ambassadors and Globetrotters have viable lines-of-reasoning in assessing "competition."

As to exclusivity windows, it is important to note that they are not unique: circuses and other novelty acts often secure them in their performance contracts with host arenas. But the Ambassadors might argue that those circuses and novelty acts do not, like the Globetrotters, enjoy a national monopoly on a particular business model. Moreover, exclusivity windows typically have to be "reasonable" in light of industry practices; if the industry features just two actors, with one dominant actor and one minor actor, courts are less likely to be tolerant of lengthy exclusivity contracts, particularly if only one of those actors benefits from the contracts.

Lastly, the Ambassadors may argue gender-discrimination, as only the Ambassadors feature female players and thus exclusivity contracts may (arguably) deny them the right to economically-compete with their male peers.

So which team is right? Is this merely a case of survival of the fittest, or is it one of a longstanding monopoly going too-far in trying to avoid competition?

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60 Wins and Counting: Go Lee High

And now for a nice feel-good sports story to kick off your holiday weekend. Tired of whiny professional athletes and college stars whose infractions are quickly swept under the rug lest they impact The Season? How about a return to high school hoops?

On Wednesday night, the Fighting Leemen of Robert E. Lee High School, in Staunton, Virginia, extended their winning streak to sixty games. On the floor, the Leemen are led by Eli Crawford, who by all accounts is just a solid nice kid from a great family. Eli was the state player of the year last year, as a junior. Incidentally, the Lee winning streak started a few years back under the leadership of Eli's cousin, Tyler, who now plays at Georgetown. Lee has captured the state championship two years running, and this season is off to a great start.

The amazing thing about Lee High basketball's great success is that the pool of student-athletes at Lee is small. Lee High is the only high school in the quiet Shenandoah Valley town of Staunton, which boasts about 25,000 people. But Lee High completely dominates in the AA basketball world in the state. I don't think I can remember a year when they didn't at least make it to the state tournament. Of course, the reason -- and anyone from Staunton will tell you this -- for Lee's success over the years is Coach Hatcher.

Coach Paul Hatcher has been at Lee High since the 1960s, dedicating his entire life to Lee High -- and not just to the basketball team. Coach Hatcher has also taught P.E. and drivers ed to just about every kid who has gone through Lee High (including me). His wife Judy taught in the local elementary schools for years and has mentored many Staunton youth, both basketball players and not. His sons are both active with the team and one of them is reported to be one of the most popular teachers at Lee High today. They're a great family and for many years, have supported a program that brings much joy to a sleepy little town.

In 2002, Coach Hatcher became the winningest coach in Virginia history. The General Assembly passed a resolution honoring him. (That's it for the "law" in this piece.) Last year, Coach Hatcher was named Coach of the Year for AA Basketball. In truth, he probably could win it every year. The Leemen travel to the big city - D.C. - on December 30 at 2:30 P.M. for a game at the MCI Center against their constant rival, the Spotswood Trailblazers. If you're in the area, I encourage you to head over and check it out. It will restore your faith in the value of sports for the players, the coaches, the fans, and the community.

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Random Steroid Testing for New Jersey High School Stars

New Jersey has become the first state in the country to mandate steroid testing for high school athletes. Acting Governor Richard Codey signed an Executive Order requiring random steroid testing for members of all high school athletic teams that qualify for post-season play. The Order is the culmination of the Governor's Task Force on Steroid Use and Prevention, which issued its report yesterday. Some of the Task Force's recommendations are easy to implement, make sense, and are non-controversial: incorporating education about steroids into the state's current DARE curriculum; encouraging schools to educate students on the risks of steroids; and producing public service ads regarding the same.

As is often the case when an issue does not encounter any significant political opposition (e.g., there are no interest groups supporting steroid use by high school athletes), legislation concerning the issue should be approached cautiously and critically. Bills that pass state assemblies unanimously are often the bane of practitioners' existence, because no one ever thought through what would happen if...

One issue that has already generated some controversy in New Jersey is funding for the steroid testing program -- everyone wants testing, no one wants to pay for it. The testing program is expected to cost approximately $50,000 per year, a cost that according to the Governor, will not be passed on to individual school districts. Note that the Executive Order does not specifically address who will be responsible for the cost.

Another issue is privacy. The ACLU has weighed in that they probably will not challenge such testing, since in Veronia v. Acton, 515 U.S. 646 (1995), the U.S. Supreme Court held that drug testing of high school athletes passed constitutional muster. It strikes me, though, that the random testing of only championship-caliber athletes could present a legal challenge as a somewhat arbitrary and capricious designation. And don't count on the ACLU not to challenge the law down the road -- the organization has filed class action lawsuits in the past challenging drug testing policies in communities where the ACLU asserts there is no widespread drug problem.

The testing program in New Jersey is slated to be implemented during the 2006-2007 school year. As the first such program in the country, it will be interesting to watch to see what legal challenges and consequences arise.

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Sports Law Blog Nominated for Best General Sports Blog of 2005

We are excited to announce that Sports Law Blog has been nominated for the Best General Sports Blog of 2005 in the Red Reporter Awards. We are honored, and we greatly appreciate all of the guest bloggers, readers, and commentators who have contributed so much to the Blog. If you would like to vote on the award, please click here.

-- Michael McCann and Greg Skidmore

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Professor Gregory Bowman's Law Career Blog

Many Sports Law Blog readers are law students or recent law school graduates. If they represent a typical sample of those two groups, then many of them 1) find law school life to be somewhat peculiar and 2) aren't sure what they want to do with their law degrees. Granted, they are well aware of the kinds of jobs they are supposed to aspire to (for example, see left), but for whatever reason, there is a disconnect between those "great expectations" and what they really want to do--even if they can't express or imagine what they really want to do. It can be like staring into the Great Abyss, and not knowing whether to step into it, keep staring at it, or to walk away from it . . . all the while sending out resumes and preparing for on-campus interviews by going on firm websites (where you can learn about each firm's doubtlessly "dynamic" summer associate program, or how each firm excels at training and mentoring and balancing life and work and. . . well, you get the picture).

I am pleased to recommend a new blog that examines these issues: Law Career Blog, authored by Professor Gregory Bowman of Mississippi College School of Law. Law Career Blog tackles the culture and happenings of law school, while providing insight on law careers and alternative career options for lawyers. The posts are thorough and engaging, and Greg's experience lends valuable insight: prior to becoming a tenure-track law professor last year, he had practiced for nine years, primarily in the Chicago and Washington D.C. offices of Baker & McKenzie. He now teaches International Business Law, International Law, National Security Law, and Administrative Law.

I encourage you to take a look. Only a month-old, Law Career Blog has already explored a number of thought-provoking topics:

Law School Life and Careers

• "Business Casual" Woes
  

• Law Professor William Bradford's Resignation Offers a Cautionary Tale

• "Syriana" Misrepresents International Lawyers

• Law Firm Training Redux

• Blogging as Business Development

• Law Firm Training is a Sham

• Learning About the Dark Side

• Most Associates Don't Want Partnership

• Welcome to Law Career Blog

Current Debates in Law

• National Security Law and Terrorism Rant

• China and Torture

• U.S. Trade With China

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U.S. Rep. Marty Meehan on Steve Belichick

In what has been a long year for both our country and professional sports, it's nice to those who represent our country bring out the positives in professional sports. U.S. Rep. Marty Meehan of Massachusetts has done just that with his moving words for Steve Belichick (1919-2005), the father of Patriots head coach Bill Belichick. A Patriots' season-ticket holder since long before he won office, Congressman Meehan's comments appear in the Congressional Record for December 17, 2005:

STEVE BELICHICK (1919-2005): AN AUTHENTIC COACH AND FATHER

HON. MARTIN T. MEEHAN

of Massachusetts

in the House of Representatives

Saturday, December 17, 2005

Mr. MEEHAN. Mr. Speaker, I rise to honor Steve Belichick (1919-2005): an Authentic Coach and Father.

There have been many great images from the New England Patriots dynasty. Tom Brady embracing his teammates after yet another fourth- quarter touchdown. Adam Vinatieri raising his hands after yet another game-winning kick. The Krafts hugging one another after yet another Super Bowl victory.

But the image that might stand out the most is the Gatorade-dousing of Bill and Steve Belichick moments before the Patriots would defeat the Philadelphia Eagles in Super Bowl XXXIX. For many New Englanders, it was the first time they had seen Steve Belichick--the man who every New Englander would like to thank for fathering and mentoring the best coach in football.

And like in his 33-year career as an assistant coach at the U.S. Naval Academy, Steve Belichick would need someone else to draw our attention to him, even at a moment of extraordinary personal success. He was his son's role model, and his son was on the verge of coaching the Patriots to a third Super Bowl victory in four years. It was a moment that any father would savor, and likely in a way that others would detect.

But Steve Belichick never sought public attention recognition of his work, be it his innovative game-plans, exceptional scouting reports, or the invaluable lessons he taught his accomplished son. Instead, he craved the background, the behind-the-scenes world unseen to fans and media, and the world where he would consistently win the high praise of those ``in the know.'' And like any truly substantive professional, Steve Belichick would take enormous personal satisfaction in obtaining the respect of his peers--the very respect that would often elude more celebrated coaches.

Doubtless for that reason, Steve Belichick had remained out of our sight until the camera caught others showering him and son in victory. It is much the same reason why Bill Belichick often deflects praise and attention. It is simply not the Belichick way of doing things.

When Steve Belichick passed away on November 19, 2005 at the age of 86, it was fitting that we remember him as reluctantly tasting success. And it was fitting that he be with his son.

It can be said that a father always dreams of being less accomplished than his own child, because there is no greater accomplishment for any father.

It is a lesson that Steve Belichick has taught us well.

____________________

Just an outstanding statement before the House of Representatives.

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Manners, The Chiefs, and "One Little Finger"

Manners. Manners are what distinguish a place you'd like to live from a place where you have to live. Since moving to the Midwest about six months ago, I have learned to really appreciate how thoughtful, how polite, and how generally nice Midwesterners are.

So I was shocked -- really shocked! -- to read about the behavior of the Kansas City Chiefs defensive coordinator at the end of the Chiefs' game against the Dallas Cowboys last weekend. Yes, the Chiefs were robbed. But I still was shocked to read that a grown man would use an obscene gesture in front of his colleagues, thousands of fans at Arrowhead, and all of us at home. Kudos to the NFL for levying a fine as a result. Sure, it's only money, but maybe it will make others think twice about their public behavior.

Even more shocking to me has been the local reaction. Those of you in Boston and New York need to understand that this is Kansas City. The Midwest. The Heartland. To hear them tell it, this is God's country. People open doors for you here, bid you enthusiastic "have a nice day"s, and actually let you merge in traffic -- or what passes here for traffic. But the obscene gesture by Mr. Gunther Cunningham? Understandable. Reasonable. Acceptable.

I don't get the double standard. A lot of the recent big sports stories wouldn't even have been stories had the individuals involved just thought back to their basic nursery-school manners before acting. If you don't have anything nice to say, don't say anything at all. When you do something to hurt someone else, say sorry. Don't do anything you wouldn't want your mom to find out about.

Come to think of it, with all the hullabaloo about T.O.'s birthday party guest list, maybe it was just T.O.'s attempt to use his manners. Most elementary schools encourage kids to invite everyone in their class, so no one feels left out. Bravo to the teammates who politely attended their friend's party. Viva manners in 2006!

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The Politics of Sport: Congressional Oversight of Teams, Players, and Leagues

Chris Graham of the Augusta Free Press has a provocative story on the increasing attention Congress appears to be investing in the oversight of sports. (Graham, "The Politics of Sport," August Free Press, 12/19/2005). We have seen that trend with steroids/baseball, the BCS hearings, and the prospect of a Congressional inquiry into the antitrust implications of the Eagles suspending Terrell Owens.

Chris interviews several persons for this story, including me. As former House Judiciary Committee Fellow to U.S. Rep. Marty Meehan, I take particular interest in this issue. Here are some excerpts:

"The sports industry is a huge industry, and it's largely unregulated, or at least is self-regulated. It makes billions of dollars a year, and its stars are held in high regard in particular by our nation's youth. Sports has an important role to play in our society, so from that perspective, it's not surprising to see Congress wanting to step in and get involved when something seems to go awry," said Matt Smyth, a politics analyst with the University of Virginia Center for Politics.

"Some say the sports industry should be allowed to function outside the realm of accountability and everyday citizen concern. Professional sports are now the 10th-largest industry in the United States, generating $220 billion in revenue every year. They are also one of the largest recipients of corporate welfare, with taxpayers subsidizing new stadiums across the country one after another. And the leagues effectively operate as monopolies, with MLB officially operating as a monopoly with their antitrust exemption," said Shawn McCarthy, the director of the Washington, D.C.,-based League of Fans, a sports-reform group founded by consumer advocate and former presidential candidate Ralph Nader.

"Congress' involvement was critical. The threats of Sen. Jim Bunning and Sen. John McCain, in my opinion, greatly animated baseball to act," said Michael McCann, a professor at the Mississippi College School of Law and a regular contributor to The Sports Law Blog.

"Congress finally stepped up to the plate, no pun intended, and said, look, this is ridiculous. We cannot have role models be those who engage in steroid use. There's a national interest in seeing this kind of behavior curbed, and moreover, you guys aren't doing anything about it. The sanctions that you've imposed seem to be without much in the way of deterrent," McCann told the AFP.

"Their constant attack on baseball and requiring Bud Selig and Donald Fehr to go to Congress and testify had a big effect. It really shook them up," McCann said . . .

Particularly for Republicans, whose operating mantra is focused on limited government and limited involvement in the operations of the business and industry sectors, "you want to be consistent across the board . . . So there's a careful balancing act that has to be performed here," Smyth said.

And more generally speaking, McCann said, "Congress has to be wary to put sports in perspective."

"Clearly, we have an unpopular war. We have a not-clearly-successful recovery effort from Hurricane Katrina. There are obviously issues of greater national prominence that Congress should direct most of its attention to," McCann said.

"If Congress feels that it has time to address these sports issues, it's a good thing. But not at the expense of the bigger issues," McCann said.

What is the optimal role for Congress in the oversight of sports?

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Reverse Stigma? The Precipitous Rise of Young, Highly-Educated General Mangers in Major League Baseball

Alan Siegel of the Lawrence Eagle-Tribune has an excellent biographical piece on the two new co-general managers of the Boston Red Sox: Ben Cherrington (31-years old, Amherst College '96, University of Massachusetts Sports Management Program '97) and Jed Hoyer (31-years old, Wesleyan University '96). His story brings to mind the seemingly growing number of young guys with impressive academic backgrounds who are taking over Major League Baseball teams (in alphabetical order, and feel free to add names in the comments section):

Chris Antonetti, Cleveland Indians Asst. GM
26-years old when hired. Graduate of Georgetown University in 1996 and the University of Massachusetts Sports Management Program in 1997.

Josh Byrnes, Arizona Diamondbacks GM
35-years old when hired. Graduate of Haverford College in 1992.

Jon Daniels, Texas Rangers GM
28-years old when hired. Graduate of Cornell University in 1999.

Paul DePodesta, former Los Angeles Dodgers GM
31-years old when hired. Graduate of Harvard University in 1995.

David Forst, Oakland A's Asst. GM
27-years old when hired. Graduate of Harvard University in 1998.

Theo Epstein (pictured above), former Red Sox GM
28-years old when hired. Graduate of Yale University in 1995 and the University of San Diego School of Law in 2000.

Andrew Friedman, Tampa Bay Devils Rays VP of Baseball Operations
28-years old when hired. Graduate of Tulane University in 1999.

Mike Hazen, Cleveland Indians Asst. Director Player Development
27-years old when hired. Graduate of Princeton University in 1998.

Mark Shapiro, Cleveland Indians GM
35-years old when hired. Graduate of Princeton University in 1989.

Peter Woodfork, Arizona Diamondbacks Asst. GM
29-years old when hired. Graduate of Harvard University in 1999.

It's interesting that there might be a "reverse-stigma" going on here: years ago, none of these guys would have had a chance for a GM job until they "paid their dues." And some of them would have been permanently excluded merely because they would have seemed "too smart" or "too Ivory Tower," or because they had never played pro ball. None of that is terribly surprising, given that employers frequently turn to stereotypical labels and other conclusory-proxies when assessing candidates (i.e., contrary to what we are taught, hiring is often not "merit-based," but instead a murky mix of perceived-merit, presumptions, and satisfaction of confirmation bias: we are all subject to ignore or discount information that challenges existing beliefs, and that animates our thinking in ways that we do not often appreciate -- for reference, see my upcoming article in the Brooklyn Law Review).

But now-a-days, it seems that young, highly-educated guys are accorded the benefit of the doubt, while seasoned baseball executives, like Phillies Asst. GM Mike Arbuckle (55-years old), Tigers Asst. GM Al Avila (46-years old), and Padres' Asst. to the GM Grady Fuson (49-years old), are often overlooked (although the Dodgers' recent hire of 50-year old Ned Colleti is an obvious exception). The growth of Moneyball philosophy is no doubt a contributing factor, but perhaps there is also the power of image on cognitive-analysis: young guys with impressive academic credentials are accorded a favorable presumption that older guys are not, and that affects the thinking of teams when they consider GM candidates. For instance, we "think" that younger, highly-educated guys are more likely to have the energy, enthusiasm, and mental acumen needed to be a successful GM -- just like how, 20 years go, we "thought" that older guys were more likely to have the insight, experience, and judgement needed to be a successful GM.

Put more simply, there may be an inherent bias to hire a certain profiled candidate (i.e., a young guy with prestigious schooling) merely because of that profile.

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A New Job and Ratty Jeans

My blog here has definitely been neglected lately. I have so much going on that I never really get to write like I want to. Plus, I write a lot of other things, so the CB gets shoved to the bottom of my "To Do" list. I intend to remedy this. This will be a once a week blog with a new post published each weekend. I'll cram everything into it on that one day.

 

I've started a new job but because of the nature of the business and the many incidents where employees were fired for posting company business on the internet, this will be the last thing you will ever read concerning my job. Sorry.

 

In other news, I finished reading Atlas Shrugged, and I highly recommend it. I am currently reading all of the Sherlock Homes stories which I found in a two volume paperback collection at Waldenbooks. Holmes is a great character.

 

Yesterday, I went Christmas shopping with my aunt. (Yes, I am this bored. It is tragic.) I couldn't help but notice the ratty jeans they were selling in the stores as the latest fashion. They look atrocious.

 

Now, don't get me wrong. I wear some ratty stuff, but I didn't buy the stuff that way. They became that way after wearing it for a long time. Most of it needs to be thrown out. But maybe I'm just being an old man now. I just think buying jeans with holes already in them is dumb as hell.

 

I also hate denim. It is the worst material ever made. I hate jeans. They are heavy, hot in the summer, cold in the winter, and wear like sandpaper when they get wet. Plus, they look like shit. I wear slacks, Dickie's workpants, or what have you. Jeans are probably good for welding, but I recommend Carharrts for that kind of work.

 

On the political front, I'm not too pleased with George W. Bush admitting that he allowed the NSA to spy on Americans. I am glad the Senate scuttled the Patriot Act. Like it or not, the Bushies have not been kind to civil liberties. This is very disturbing. Along with the recent 9/11 Commission Report Card where Bush and Co. got a big fat F, it is pretty clear to me that Bush has been more interested in being a tyrant than doing his job. As Americans give up their freedoms, the AQ terrorists are pretty much just as free as ever to do their thing. What a joke.

 

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Axis of Evil Baskets: Americans Playing Pro Hoops in Iran

Scott Peterson of the Christian Science Monitor has an engaging piece on Iran's first attempt to create a national basketball association. (Peterson, "On the Parquet, 'Great Satan' plays for 'Axis of Evil,'" 12/15/2005). In an effort to bolster quality of play, teams are paying up to $15,000 a month to lure players from the United States, which Iranians sometimes call "The Great Satan."

Over the last two years, the number of American players has increased from three to 18, including former Boston Celtics guard Chris Herren and former Denver Nuggets center Garth Joseph (pictured to left). Teams are sponsored by an assortment of public and private entities. For instance, Andre Pitts, who played collegiate basketball at Houston-Tilotson, plays for Saba Battery, which is run by Iran's Defense Ministry.

It's interesting to observe reactions of American players in Iran, and how their initial stereotypes proved wrong:

Pitts's Iranian teammates say he was somewhat anxious about this when he arrived. But players of both nationalities say now that the first thing to fall away are the prejudices and misconceptions fostered by governments and the media.

"We clicked from Day One," says Pitts . . . who is often busy countering misperceptions among friends and relatives when he returns home to Texas for vacation.

Americans "think all Iranians hate America, or have a negative attitude to the US," he adds. "It's sad, because the news shows all the bad things [about Iran] but never the good things. It's wrong, but all states are the same: There are some bad things, and some good."

These comments seem to illuminate the absurdity of much of contemporary political rhetoric. We call certain countries part of an "Axis of Evil," while they call us manifestations of "The Great Satan." Really, how ridiculous have things become when our leaders engage in rhetorical debates over which side is evil and which side is Satan, as if people who happen to be born in Iran and those who happen to be born in the United States are inherently anything? For all of the flaws in professional sports, they seem to enable persons to rise above convenient rhetorical labels, and see that the world is bigger, more complicated, and less black and white/good and evil than is often taught.

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More on the World Baseball Classic - Cuba Shut Out

Following up on Mike's story from earlier this morning regarding the World Baseball Classic, the U.S. Treasury Department has shut out Cuba more effectively than even Roger Clemens could. According to an Associated Press story, the Treasury Department yesterday told Major League Baseball that Cuba would not be allowed to play in the World Baseball Classic, to be held largely in the United States (with Cuba having been scheduled to play early round games in U.S. territory Puerto Rico), due to various commerical embargo-related federal statutes.

Cuba was not viewed by many as a top contender in the March 2006 tournament, largely because defectors such Livan Hernandez, Jose Contreras, and Livan Hernandez would not be on the Cuban roster. In a somewhat rare collaborative effort, Major League Baseball and the MLB Player's Association will work together in an attempt to appeal the Treasury Department's decision. Further, this now apparently leaves a hole in the 16-team draw, with Cuba having been slated to play in Pool C with Puerto Rico, Panama, and The Netherlands.

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A-Rod May Play for the Dominican Republic: Un-American or Quintessential American?

Yankees third baseman Alex Rodriguez will probably play for the Dominican Republic, rather than the United States, in next March's inaugural World Baseball Classic. Born in New York City, Rodriguez would live there until the age of four. At that time, his family moved to the Dominican Republic. The family would return to the United States when Rodriguez was eight-years old.

Certainly, Rodriguez is entitled to play for the team of his choice. It would seem hypocritical for a democracy or one its long-standing institutions like Major League Baseball to force or even admonish players to play for its national team instead of another national team. At least until recently, the power of democracy has always been in its unique power to inspire, rather having to compel, and its ability to "win" often without throwing punches or even flexing muscles. Along those lines, to criticize A-Rod or any player who elects to play for a different country seems inapposite with our norms and aspirations.

That said, Rodriguez's decision to play for a country in which he was not born, and one in which he has only lived four of his 30 years, begs an interesting question that perhaps has no answer: At what point do we "become American"? Can it happen in the first generation of a family? The second generation? The third generation? Obviously, it varies by family; some families maintain close relations with their relatives "back home"; others come to the United States and don't look back; and yet others, like the Rodriguez family, literally move back-and-forth.

Many of us can relate to this experience. I think of my own background: my mother's parents were Italians who emigrated to the United States as young adults, while my father's ancestors came to the United States from Ireland a long time ago. So I'm "half second-generation American," and yet I don't feel an affinity for any country but the United States. And this goes to the fact that while I say that I'm half Irish-half Italian, I also say that I'm American, born and raised (even though I--and I suspect almost all of you--have no ties to the indigenous population that predated the influx of Europeans on the North American continent--a population that some might call the "real Americans").

So how can one be 100% American, 50% Irish, 50% Italian, and 0% "real American"? I guess that's the "fuzzy math" we sometimes delve into. It may also reflect the situation in which we find ourselves: when we talk to people from other countries, we say that we're "American"; when we talk among ourselves, we say that we're "half this" and "half that."

And yet despite this often mixed message of identity, we are an incredibly patriotic country, sometimes to the point of excluding those who may disagree with national policy--which is, of course, not a very "democratic" thing to do. For that reason, we can expect A-Rod to receive criticism from certain "Americans," even though his decision to not play for the American team appears as consistent with our national ideals as if he chose to play for "us."

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New York Court Lets Them Play

First, thanks to Mike and the first of the guest bloggers for picking up my slack as I took a short break. I echo Mike in saying that we are thrilled to have such an impressive line-up of guests over this two-month period.

I am also pleased with the news from New York, as a Supreme Court (trial court) judge has refused to interfere with the outcome of a high school wrestling match. From the law.com story:

The dispute centers on a championship wrestling match in Albany. On March 5, Frank C. Rodriguez and Paul Florio were competing for the state title in the 135-pound division. At the end of the match, Rodriguez, then in 12th grade, was ahead by a score of 7-6. In celebration, he threw his headgear into the air before the official handshake signaled the end of the match.

After declaring Rodriguez the champion and having the combatants shake hands, the referee learned from an assistant referee that the headgear had been thrown and that the athlete had to be punished for unsportsmanlike conduct. The referee assessed Rodriguez a two-point penalty and declared Florio the victor. Rodriguez appealed to the protest committee to no avail, so he took his gripe to court . . . .

Now, you can say what you will about a rule that imposes a penalty for such a harmless violation. But it was clearly the referee's decision to make and not a decision to be overturned by judicial fiat. As the judge wrote:

To establish a precedent of reviewing and potentially reversing a referee's judgment call from the distant ivory tower of a judge's chambers would cause unending confusion in the interscholastic athletic system.

I also have to wonder who was giving the young litigant advice. The ruling does seem unduly harsh, and I certainly would have been livid had I been him, but going to court? Perhaps the better lesson would have been that life is sometimes unfair and you have to make the best of the situation, not run screaming to a judge. The court took this approach and I hope it becomes the accepted rule in conflicts over sporting results.

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Situation Matters: Race and Larry Bird Comparisons

Interesting and doubtlessly controversial piece by Josh Levin of Slate on why star young basketball players who happen to be white are often compared to Larry Bird (Levin, "Follow that Bird," Slate, Dec. 12, 2005). It's a good example of how situation--like the color of another's skin--influences our thinking, perhaps in ways that we don't appreciate or intend:

Want proof that getting compared to Bird is a one-way ticket to the Caucasian basketball graveyard?

A list of players who've been identified as Bird-like reads like the roster of a CBA team sponsored by the KKK. There are the Dukies: Danny Ferry, Mike Dunleavy Jr., and Christian Laettner (according to Charles Barkley, "the only thing Christian Laettner has in common with Larry Bird is they both pee standing up").

There are the guys whose main qualification was playing college ball in the Midwest: Troy Murphy and Wally Szcerbiak ("a Larry Bird game, a Tom Cruise smile," one scribe said). There's the inexplicable: Australian Andrew Gaze.

And the monstrously, hilariously inexplicable: center Eric Montross, whom Celtics exec M.L. Carr said was cut from the same cloth as the Birdman . . .

According to the Web site Basketball Reference, the list of players whose statistics mirror Bird's most closely includes one German (Dirk Nowitzki) and six African Americans: Kevin Garnett, Antoine Walker, Clyde Drexler, Magic Johnson, Dominique Wilkins, and Julius Erving. Instead of being classified with his true peer group—the Magics and Dr. J's—Bird has become the patron saint of slow-footed white guys like Troy Murphy and Adam Morrison. Such is the burden of the white archetype.

Hat tip: the always engaging Celtics Blog.

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BCS Hearings and Antitrust Implications

The Voluntary Trade Council's web site ran an interesting story last week on a theoretical antitrust challenge to the Bowl Championship Series. As a longtime college football playoff proponent, I'm always devising scenarios by which we can destroy the BCS and institute an eight- or even sixteen-team playoff as a replacement (if Chad Henne from Michigan doesn't complete that last pass to beat Penn State, think of the public outrage of Joe Paterno and the undefeated Nittany Lions locked out of a USC-Texas title game). Unfortunately, I've believed for a couple of years now that it would be difficult for any potential plaintiff to show standing in an antitrust challenge following the 2004 agreement between the six BCS conferences and the Coalition for Athletics Reform, which designated criteria by which non-major conference schools can automatically qualify for a BCS berth. Now that any Division I-A football program has a means by which to play in a BCS bowl, an antitrust challenge by an NCAA member institution seems unlikely. One interesting point made within the VTC story is that in such a challenge, the BCS-related defendants could argue that is actually pro-competitive, rather than anti-competitive, in that the bowl system allows for increased participation/output versus a playoff system as there are 28 bowls currently.

That being said, I can't help but envision what an eight-team playoff might look like. Using the current BCS standings, picture the following matchups being played over Christmas weekend at various bowl sites: #1 USC vs. #8 Miami, #2 Texas vs. #7 Georgia, #3 Penn State vs. #6 Notre Dame, and #4 Ohio State vs. #5 Oregon (automatic conference champion berths ignored here for simplicity's sake). The semifinalists could play New Year's weekend at other bowl sites with the championship game the following weekend in primetime at a rotating venue.

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Welcome Back, Theo: Theo Epstein to Return to Red Sox

A month after Theo Epstein unexpectedly refused to sign a 3-year, $4.5 million contract with the Red Sox (and thus effectively quit as general manger) Rob Bradford of the Lawrence Eagle-Tribune reports that Epstein will return to the team as Senior Advisor (Rob Bradford, "Sox Owner Henry Clears Way for Epstein's Return," 12/11/2005). He will provide advice to his two former assistants, Ben Cherrington and Jed Hoyer, who will become co-general managers. Interestingly, Bradford also reports that Epstein may resume his general manager position as early as the spring if team president/CEO Larry Lucchino accepts a diminished role (i.e., Theo would need to have direct access to the team's owner, John Henry).

It will be interesting to see how the Theo/Larry dynamic plays out in Round 2. It seems relevant to remind ourselves that both are attorneys in addition to baseball executives. Lucchino is a Yale Law grad and a former associate at Williams and Connolly in D.C., while Epstein completed his law degree at the University of San Diego School of Law while simultaneously serving as Director of Baseball Operations for the San Diego Padres (and any attorney who worked a full-time job while attending law school at night has my utmost admiration -- I don't know how you did it, and I always ask that of my eldest sister Maria). So both Epstein and Lucchino likely have an acute awareness of their "rights" vis-a-vi each other, and as any good law school graduate will tell you, they will want those rights spelled out in great specificity. In short, Round 2, like Round 1, seems poised for acrimony.

But all of that aside, and speaking strictly as a Red Sox fan, it's exciting that Epstein will be returning. He's bright, creative, local (a native of Brookline -- he actually understands our pain), and, most importantly, assembled most of the players who comprised the 2004 World Championship team.

I'm so thrilled, in fact, that I want every Sports Law Blog reader who is also a Red Sox fan to join me in singing the following melody (as sung to John Sebastian's Welcome Back, Kotter theme song):

Welcome back . . . your dreams were your ticket out.

Welcome back . . . to that same old place that you were ambivalent about.

Well the names haven't really changed since you hung around.

But those dreams have remained and they've turned around [especially by dumping Edgar Renteria -- why did you ever sign him in the first place??!! What was wrong with you??!!].

Who'd have thought they'd lead ya?
Who'd have thought they'd lead ya?

Back here instead of Costa Rica.
Back here instead of Costa Rica.

Yeah we tease him a lot cause Larry Lucchino's still got him on the spot, welcome back.

Welcome back, welcome back, welcome back.
Welcome back, welcome back, welcome back.

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7th Floor Crew: More "Life Experience" for the Student-Athlete

Martin Edwards of the Chuck and Doug Show on 620 AM The Score Jackson Mississippi alerts me to a recent ESPN column on the "7th Floor Crew," a student band at the University of Miami. (Pat Forde, "Rap recording could threaten Miami's Progress," ESPN.com, 11/18/05). The band features a number of Hurricanes' football players, and its music is described as, "spectacularly profane and stunningly offensive." Its most popular song is about group sex, with a group of men ganging up on one woman.

At one point during the song, junior linebacker Tavares Gooden (number 52 on your Hurricanes' roster) croons:

Then He said baby that's not how it begins
and he brought in all his 7th floor friends
She found it was [unintelligible] the Miami Football Team
It's also the 7th floor king ding-a-lings
She thought 52 was just my number then she realized
you multiply the b**** up then you get my d*** size

It's stories like this that help explain why the longer an athlete stays in college, the more likely he may engage in criminal behavior (and our recent study on NBA player arrests appears to evidence that trend). When you are a freshman player, and your role-models are junior and senior players who gleefully disregard norms or who break rules or laws, and who suffer no material consequence for doing so, guess what kind of lesson you internalize?

Alan Milstein and I are currently co-authoring a law review article for the University of Pennsylvania Journal of Labor and Employment Law that will hopefully amplify this discussion (although the article will primarily be about Eddy Curry and DNA testing). Alan, as many of you know, is Allen Iverson and Eddy Curry's attorney and was Maurice Clarett's lead counsel in his lawsuit against the NFL. We hope to have a completed draft in the near future, and it will be posted on SSRN.

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