Monday, June 30, 2008
Cool People
Saturday, June 28, 2008
Serendipity - Welcome Bella
Very long story short, I raised the orphan foal for the 'breeder' who was not in a position to do so and returned her to her when she was three months old (bawling my eyes out of course). The 'breeder' soon decided that she was too much like hard work and put her up for sale. I was never notified of her being for sale but found out through the grapevine and after lots of emails, phone calls and secret planning, she ended up with a friend up north, where she still resides and is very happy and loved and cared for (and I believe, rather naughty, hehe!).
So, back to Genna. I had purchased Genna from an advertisement in the Horsetrader magazine. I had seen her advertised and her breeding had caught my eye – I had initially made contact on the off chance that she might have been a filly that I had sold about 8 years earlier when personal circumstances forced my hand. She was not said filly (whom I had adored) but she sounded perfect so we took the float and we went to see her. Genna had already foaled a number of TB foals for the racing industry prior to coming to me. She was 14 years old, healthy, clean legged and beautiful. She would go on to produce my very first homebred foal (Bridie - now in a wonderful home where she is a SJ and Trail riding horse for a farmer) then Bijou (this was a twin foaling and BJ the survivor of the two foals) and then, her last foal, at the age of 20, Roxy.
Now, lets travel back in time to last spring. I am a regular visitor to the NZHorses website and last spring one of the board regulars posted an SOS message as he had lost a mare post foaling and desperately needed a foster mare. I put him on to the foster foal service as this is an option we had tried for with Roxy. He was successfully matched up with a TB mare and she instantly took his foal – A wonderful success story! He posted up photos of this lovely mare with her new baby and someone asked her breeding. I couldn’t believe it when I got an email alerting me to the thread asking me if ‘So Gentle’ had been my mare. Amazingly it turned out that Bella, the foster mare, was Genna’s first daughter (her third foal, first filly). I just thought it seemed so serendipitous that, after my recommendation of the foster foal service, the mare that saved them was none other than a daughter of my beautiful precious Genna.
Now cut back a couple of days ago. I was alerted by email to another message on the NZHorses message board asking me if I would like Bella. The drought in the Hawkes Bay (and around the country) has pushed up feed prices and grass is at a real premium and Bella’s owner (the people who had made her available to the foster mare program had gifted her to the foal’s breeder) was looking for a new home for Bella and, would I like her.
I am SO not supposed to be taking on any more horses and have been turning them down left, right and centre but I had to have Bella. I just had to. It was fairly urgent as she was starting to drop condition and they really wanted/needed to move her on so I rang my friends at Woodville Wairarapa Horse transporters to see what they could do. I made that call on Friday afternoon. On Saturday night, she arrived! Big plug for Woodville who pulled out all the stops to get her collected and delivered safely to me.
She’s just beautiful and very like her mum! Taller, rangier with more bone and a different colour (Genna was a chestnut, Bella is a dark bay) but has some of the same mannerisms, the same face and eyes and loves rubs in the same spots and even has the same strange ticking on her face that Genna had. I have to admit I shed a tear when she leaned into me as I rubbed around the base of her ears, just like Genna would. She's obviously been well cared for and loved and I am just so grateful to Nick for letting her come and live with us.
And here are a couple of her last year with her foster babe, Lexus.
Random Thoughts on Various Subjects
Once in awhile, the SCOTUS gets it right, and they did so in striking down the DC gun ban. I think their reasoning is shaky as hell, but guns are an essential component to personal liberty. An armed citizenry is a free citizenry. Outlawing guns is stupid and hurts people while making them easy prey for criminals. I can only hope the SCOTUS will go further with gun rights.
2. SCOTUS AND CHILD RAPE
This is when the SCOTUS gets it wrong. Child rape is deserving of th death penalty. As it stands, most child rapists are going to be killed anyway. Putting them on death row and killing them with lethal injection is probably more humane than putting them into the general population or decades in protective custody. The reality is that there are few crimes that are more repugnant than raping a child. Monsters like this are not fit to live.
I am not a huge fan of the death penalty because I think innocent people have died because of judicial fuck ups. But I think it is a fitting punishment for murder and the rape of a child. I would personally love to kill all child rapists and molesters. My hatred for them is probably extreme, but it tears my heart in two to think there are children who suffer like this in the world.
3. GEORGE CARLIN
I am sad to lose a funny guy and a great freethinker. Carlin did what a great comedian should. He made you laugh, but he also challenged your thinking. This tradition hearkens back to the court jester who was the only one free to say what he thought. Carlin will be missed.
4. TIM RUSSERT
Russert was a good newsman. I thought he had shit for brains politically. But he did make the politicos sweat. For this, he will be missed.
5. RON PAUL
Like it or not, Ron Paul did more for the libertarian movement than any politician before him. He did way more than any LP presidential did or ever will do. I really think the Ron Paul way of working within a major party is the way to go. I think it is a better strategy than trying the third party route. I hope Bob Barr shakes things up in the fall, but I have to face facts. Bob Barr will be marginalized and forgotten. I think more people will write in for Ron Paul than will vote for Barr.
I'm not wasting my time on the LP anymore. I'm going to do like those religious shitheads have done and create trouble within the GOP until people listen to me and likeminded folks. Ron Paul is doing this, and I support him in this.
Nike vs. Adidas
Articles--> http://www.businessweek.com/magazine/content/08_15/b4079058287126.htm?chan=search
http://www.forbes.com/markets/2008/06/23/beijing-olympics-sponsorship-markets-equity-cx_jc_0623markets02.html
http://www.forbes.com/opinions/2008/04/23/china-olympics-sponsors-oped-cx_sre_0424olympics.html
http://articles.latimes.com/2007/oct/08/business/ft-olympics8
http://www.businessweek.com/print/globalbiz/content/jun2008/gb20080620_447605.htm
http://online.wsj.com/article/SB121520521471229245.html?mod=sports
Friday, June 27, 2008
Hey Prime Minister this applies to you
Hosting the Olympics: Investment or Insanity?
Articles-->
http://www.worth.com/Editorial/Thought-Leaders/Politics-Policy/World-Marketplace-Fools-Gold-Print.asp
http://online.wsj.com/article/SB121614671139755287.html
Finally the Blackcaps show Passion!
Finally the Blackcaps have shown passion. After Collingwood decided not to call back Elliot, the Blackcaps were fuming and they let their disgust be known. Then when they took the winning run off the last ball, the celebrating begun, not since the 80's have I seen a kiwi cricket team so fired up, wanting to win, and it meant so much to them.
For too long now, we have had a team that just wanted to be paid and didn't really care about the result, you could tell this in press conferences afterwards when players would just shrug their shoulders, and say "Well we have to be more consistent" and then just walk off.
Hats off to Vettori for bringing Passion to a team that lacked it, maybe this will start a whole new era for the Blackcaps, where players want to play, where players will turn up early for training and not leave until dusk, this hasnt happen for a long time, but if it does, we could have another glorious era in New Zealand cricket.
Wednesday, June 25, 2008
Bad Duke Football Team Wins in Court
Being a bad football team paid off for Duke University, which won a breach of contract lawsuit because in large part because of its unsuccessful track record and a contract clause that required the plaintiff, the University of Louisville to find an adequate substitute school after Duke backed out of a obligation to pay the better school.
Duke's football team has amassed a record that few would envy. Six wins and 45 losses over the last five seasons puts the team in the category of as bad as it could get. As reported by the Louisville Courier-Journal, the University of Louisville sued Duke claiming breach after the Blue Devils opted out of the final three games of a four-game football series covering the 2002, 2007, 2008 and 2009 seasons after Louisville demolished the Duke Team 40-3 after the first game in 2002. Apparently, Duke waved the surrender flag to avoid more embarrassments.
The case, University of Louisville v. Duke University, No. 07-CI-1765, filed in Franklin (county) circuit court, sought $450,000 in damages. The amount was derived from a contractual cancellation penalty clause of $150,000 per game if the nonbreaching party is unable to schedule a replacement game with a “team of similar stature." According to the article, Duke asked Louisville to attempt a good faith effort to find a replacement opponent and promised to pay Louisville only if the school could not find one. Louisville claims it could not do so and therefore asked for the liquidated damages.
It is in interpreting "team of similar stature" where Duke's lack of success helped. Judge Phillip J. Shepherd agreed with Duke’s argument that it team was so bad that finding a replacement team of "similar stature" should have been a slam dunk (pardon the bad pun). As the opinion noted:
conference or even a particular division of the National Collegiate Athletic
Association (NCAA). The term “team of similar stature” simply means any team
that competes at the same level of athletic performance as the Duke football
Justice Alito’s Comments on Holmes’s Opinion in Federal Baseball
Justice Holmes, Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, 259 U.S. 200, 209 (1922).
Howard Wasserman posted a reference on June 3 to comments by Justice Samuel Alito before a Supreme Court Historical Society gathering on the opinion of Justice Holmes in Federal Baseball that established the foundation for baseball’s antitrust exemption. In reading the linked post by Tony Mauro at The BLT: The Blog of LegalTimes, I found the following statement:
"Alito said the Supreme Court's decision has been pilloried by scholars and judges alike in the decades since it was issued. More recently, he said, some commentators have been 'less harsh,' fitting it into a more modest view of the scope of the Constitution's commerce clause. Alito indicated that he is in the camp that views the case more kindly."
I do not have access to Justice Alito’s comments or his references. However, after teaching the case for years, I think that one aspect of Holmes’s decision is commonly overlooked. If you notice the second sentence in the quotation at the beginning of this post, you will see the hook for my argument. To support this reading of the case, I have spent some time analyzing the briefs of counsel. The position that a baseball game was the result of human labor and not production or manufacturing of goods was argued by counsel and accepted by Justice Holmes for deciding that baseball was not within "trade" - the second of the three prongs of a Sherman Act § 1 violation with "contract, combination, or conspiracy" and interstate commerce.
The defendants (the member teams of the two leagues and the three members of the National Commission) were represented by George Wharton Pepper, Benjamin S. Minor, and Samuel M. Clement, Jr. In their brief, the attorneys offered three reasons why organized baseball was "not within the Sherman Act." The presentation of the first of these three reasons begins on page 46. Counsel advanced the following statement - "(a) Personal effort, not related to production, is not a subject of commerce; and the attempt to secure all the skilled service needed, for professional baseball contests is not an attempt to monopolize commerce or any part of it. It is believed that in no decided case has it ever been held that personal effort, considered apart from production, is a subject of commerce." This is the point of Holmes’s opinion that has long been ignored. Notice that in the quotation above, Justice Holmes specifically refers to the position taken by the defendants that personal effort apart from production (e.g. manufacturing) does not constitute commerce. After citing § 6 of the Clayton Act ("That the labor of a human being is not a commodity or article of commerce."), counsel proceeds to discuss a number of cases supporting their basic position.
The first cited case, Paul v. Virginia, 75 U.S. 168 (1868) involved the sales of contracts for fire insurance, and counsel followed that with a reference to Hooper v. California, 155 U.S. 648 (1894) that marine insurance sales could not be distinguished from fire insurance sales. Hooper was one of the two cases cited by Holmes in the opinion, and it would be overruled by the Court in 1944 by United States v. South Eastern Underwriters Ass’n., 322 U.S. 533 (1944). Counsel proceeded to distinguish Paul and Hooper from one involving correspondence school instruction, International Textbook Co. v. Pigg, 217 U.S. 91 (1909). Unlike a baseball game played locally between two teams, the main point of the transaction in Pigg was the shipment of educational materials from Pennsylvania to students in various states.
Counsel turned next to a discussion of Metropolitan Opera Co. v. Hammerstein, 147 N.Y.S. 532 (1914):
The production of opera or other theatrical exhibition before an audience in exchange for the price of tickets involves none of the elements of trade or commerce as commonly understood. There is no dealing with an article of trade or commerce nor any use made of the instrumentalities of commerce. The holder of the ticket pays a certain price as a consideration for the privilege of experiencing the gratification of an artistic sense."
The three attorneys continued to pile on more precedent. In In re Duff, 4 F. 519, 521 (1880), they quote the court: "This bankrupt was a theatrical manager ... I think he cannot be considered a merchant or tradesman within the meaning of the statute;" In re Oriental Society, 104 F. 975 (1900): "A corporation engaged in giving theatrical performances is, of course, not engaged in manufacturing, printing, or publishing;" People v. Klaw, 106 N.Y.S. 341 (1907), determining that booking arrangements by theatre owners did not constitute trade.
In examining American Baseball Club of Chicago v. Chase, 149 N.Y.S. 6 (1914), counsel provided a quotation from the opinion citing a definition of "commerce" from the Century Dictionary ("‘interchange of goods, merchandise or property of any kind; trade, traffic") together with a definition of "commodity" before concluding that
The foundation of the National Agreement is the game of baseball conducted as a profitable business, and if this game were a commodity or an article of merchandise and transported from State to State, then the argument of the defendant’s counsel might be applicable.
Gary Hailey, an attorney and author of "Anatomy of a Murder: The Federal League and the Courts" in the spring 1985 edition of the Society for American Baseball Research’s National Pastime concluded that "given the legal doctrines of the day the Federal Baseball case was correctly decided. The courts of that era applied the federal antitrust laws only to businesses that were primarily engaged in the production, sale or transportation of tangible goods."
Although I do not think that either reading of Federal Baseball was an appropriate reason for the per curiam opinion upholding the decision in Toolson v. New York Yankees that really established the reliance on stare decisis that was critical for Justice Blackmun’s opinion in Flood v. Kuhn, I do think that it provides an important point of jurisprudential context for the 1922 opinion by Justice Holmes.
Olympic "Ambush" Marketing: Fair or Foul?
Article --> http://online.wsj.com/article_print/SB121433185767600541.html
Hank Steinbrenner, Chien-Ming Wang, Salary Arbitration and the DH
Kevin Kernan of the New York Post agreed with Steinbrenner’s assessment in a June 17 article. Kernan quoted Steinbrenner as arguing that the National League needed to join the 21st Century and abandon the game as played in the 1880s. Furthermore, Steinbrenner noted that "It’s OK for the Yankees to fill up the seats in the National League parks, they make a ton of money off us." Kernan seconded the observation - "Steinbrenner is right. Most leagues, amateur, college and professional use the DH, something the American League instituted in 1973." Although upset over losing the pitcher for an extended period, Steinbrenner and the Yankees’ position during salary arbitration in February clearly popped into my mind.
Wang had requested $4,600,000 from the Yankees who countered with a $4,000,000 offer. Of course, either figure was a big increase over his 2007 salary of $489,500. Wang wanted a long-term contract, but the Yankees responded that it was "not the time" according to Anthony DiComo’s February 12 posting for MLB.com. DiComo further commented that "the team’s reasoning, according to Wang, was that it’s difficult for pitchers to stay healthy, so there’s little incentive to sign a young starter to a long-term deal." With Wang not eligible for free agency until 2011, the Yankees had little incentive to grant Wang’s request. A number of articles noted Brian Cashman’s position that the figure chosen by the Yankees was the appropriate slot for a first-time arbitration-eligible pitcher with Wang’s career numbers.
When neither side budged, the case went to a hearing on Thursday, February 14, in St. Petersburg. The arbitration panel of Jack Clarke, Stephen Goldberg, and Christine Knowlton sided with the Yankees. The Wang decision was one of the six victories this February by the clubs against two losses. Jon Heyman provided some interesting insight into the hearing in SI.com’s The Daily Scoop on February 20. Heyman noted that Wang’s representatives "badly overshot when they tried to compare Wang to Michael Jordan." The Yankees argued that Wang had not matched Dontrelle Willis when he first became eligible for arbitration after a 22-win season in 2005. The woes of Willis since that breakout season are probably well known to most readers of this blog. The Yankees also likened Wang to Scott Kasmir, Joe Blanton, Freddy Garcia, Roy Oswalt, and John Lackey. Oswalt, for instance, jumped from $500,000 to $3,250,000 for the 2004 season. The Astros were rewarded with back-to-back 20 win seasons in 2004 and 2005. Oswalt excited the game against the Yankees right after Wang’s injury. The Yankees also stressed the great run support that Wang received.
The Yankees concern about Wang’s injury potential probably focused on his arm not his right foot. Albert Chen’s excellent Sports Illustrated piece, "Chien-Ming Wang Has A Secret" (April 21, page 44) detailed the rise of the Taiwanese star and the concern shown by many major league teams over the physical demands placed upon young pitchers in Taiwan. Wang missed the entire 2001 season after blowing out his shoulder. Chen pointed out in his article that the "grueling training regimens in Taiwanese colleges and professional leagues have been blamed for the short careers of pitchers." Wang had pushed his won-lost ledger for the Yankees to 54-20 (.730 percentage) with his victory over the Astros. He was on target for an interesting round of salary arbitration in February 2009. Now he faces rehab sessions, and Hank Steinbrenner will push for a change in the designated hitter rules at least for interleague games.
Green Bag Call for Papers: Baseball and the Law
We want scholarly essays on topics related to baseball and the law. We hope to select 12 essays, each between 1500 and 5000 words long. Topics in which we are particularly (but not exclusively) interested are: (a) baseball and … civil rights law; criminal law; defamation law; intellectual property law; international law; labor law; media law; property law; tax law; tort law; transportation law; (b) baseball players who were or became lawyers; and (c) roles played by lawyers in baseball.
Please send your proposals for papers to editors@greenbag.org.
(H/T): Legal Scholarship Blog
Tuesday, June 24, 2008
Golden Bear
Delegation Roster
JENN ASHLEY, Rensselaer, NY
MARTI BLUM, Huntingdon Valley, PA
LAUREN BROUILLETTE, Wolcott, CT
WHITNEY DePRIZIO, East Falmouth, MA
JESSICA DiPIETRO, Bethlehem, CT
AMANDA GOLDSMITH, Stamford, CT
ROB HORTON, Saugerties, NY
MIKE KUCHNO, Colonia, NJ
AJ PAPPAS, Northboro, MA
ASHLEY RICHARD, South Hadley, MA
BREANNE ROCHE, Amherst, NH
JAKE ROY, Plymouth, NH
SHAQIM WALKER, Leominster, MA
Seminar Abroad '08
Does Shaq Have First Amendment Claim Against Phoenix Sheriff Who Took Away His Badge Over Kobe-Rap?
We've blogged before about Shaq's amusing part-time role as a volunteer reserve sheriff (see my post here and Mike's post here). After moving from Miami to Phoenix as part of the "worst trade ever", Deputy Diesel resumed his part-time law enforcement career with the Maricopa County Sheriff.
The Sheriff was not pleased, however, with Shaq's recent "freestyle" Kobe-dis, which aired yesterday on the web site TMZ (warning: mildly unsafe for work). In the profanity-laden performance, Shaq uses a racial epithet, accuses Kobe of ruining his marriage and opines that Kobe could not win a championship without him.
Sheriff Arpaio has now asked Shaq to turn in his badges. "[I]f any one of my deputies did something like this, they're fired," explained the Sheriff.
Could Shaq challenge his termination based on his First Amendment right to free speech? Interestingly, Arizona has recently produced some cases in which law enforcement officers challenged their terminations on free speech grounds. In Dible v. City of Chandler, the Ninth Circuit upheld the termination of a law enforcement officer who participated in his wife's pornographic photo business. The Court opined that his "speech" did not involve a matter of public concern, and therefore was not protected by the First Amendment.
While much of Shaq's rap clearly involved private matters, and his termination resulted more from the terms he used than the content of his expression, what about his assertion that Kobe couldn't win a championship without him? A matter of public concern or importance?
Andrew Saville and the NZ media disgrace themselves
The way the NZ media have reported the story of gang rape by four members of the English rugby team is a disgrace.
Saville needs to be dumped for his reporting of the last two weeks, the editors of stuff should hang their heads in shame.
Headlines such as "Hijinks at the Hilton" or Saville saying "Sex romp" is sick, this is an allegation of Rape.
If the woman was saying it was consensual, then the headline and Saville's reporting would be okay, (for a Tabloid anyway) but she is saying it was rape, until charges are laid, or not laid, until guilt or innocence is declared in a court of law, this needs to be taken more seriously by our media.
You can bet your bottom dollar if this was any other player from another code then our media would take this story way more seriously, there would be talk about the damage that its done to the sport, woman right activists would be getting airtime, and thats the way it should be, its a disgusting unforgivable crime.
I hope heads roll at stuff.co.nz and I hope Saville ends up losing his job, for making light of such a serious story.
Monday, June 23, 2008
I am officially soft!
More on Sonics Lawsuit
"I think the truth is the Sonics had the advantage going into this," said Michael McCann, a Boston College law professor and legal analyst for SportsIllustrated.com. "The tradition of courts has been to substitute monetary damages."
A crucial test for the city to reverse that presumption may be whether it can prove that the Sonics are a unique tenant — one that brings benefits to the city that cannot be calculated in dollars and cents.
The city has argued that point, bringing in witnesses to talk about the Sonics' charity work and the team's spillover economic benefits to the community.
Seattle also brought in author and National Book Award winner Alexie — who compared NBA players to Greek gods — to speak for passionate fans who would miss the team. (He brought up the missing cucumber sandwiches, which had been served at a past season-ticket holder event, to imply Bennett had deliberately sabotaged fan interest.)
The city has "a strong argument" when it comes to the unique benefits of having an NBA team as its arena tenant, said Alfred Brophy, a law professor at the University of Alabama and an expert in landlord-tenant law.
"Public interest is a trump card that judges throw down to resolve these kinds of huge cases, especially when you have something like a building that a lot of people use, or a highway, or in this case, a city's treasured team," Brophy said in an e-mail.
Brophy dismissed Bennett's claim that the team would lose $60 million over the final two seasons at KeyArena.
"The team's fear that they'll lose money isn't a factor in whether they've broken the contract. Just because you struck a bad deal and you're going to lose money isn't a basis for getting out of a contract," he said.
* * *
To read the rest of the article, click here. We have plenty of coverage of this trial on Sports Law Blog, including Mark Conrad's excellent post from last week.
George Carlin and some sports
The New Republic's Feature Article on Sonny Vaccaro
As a shoe company executive, an all-star game organizer, and a summer camp and tournament operator, the 68-year-old Vaccaro has been one of the most powerful--and controversial--men in basketball for nearly three decades. He is the sport's ultimate insider, the man who brokered the marriage between Michael Jordan and Nike that gave birth to Air Jordan; plucked a 15-year-old Tracy McGrady from basketball obscurity in rural Florida and put him on the path to NBA stardom; and played godfather to myriad successful college basketball coaches, most notably Ben Howland, who reportedly owes his job at UCLA to Vaccaro's lobbying . . . When the NBA holds its annual draft on June 28 in New York City, Vaccaro will be there as the guest of at least three players expected to be taken in the first round. As one of those players, O.J. Mayo, who began keeping Vaccaro's counsel as a ninth-grader, has put it: "Sonny's kind of a man in the back."
For the rest The Pivot, click here. For other Sports Law Blog coverage of Sonny Vaccaro, including discussion of his recent talks at Harvard Law School and Yale Law School, among other schools, click here.
Hey Labour have ya Seen Auckland Airport shareprice lately?
Thanks a lot Labour, have ya seen the share price of AIA Lately? Thanks to you guys trying to appeal to your xenophobia base and to people who have never bought shares in thier life, your party has cost tens of thousands of Kiwis, hundreds of Millions of dollars.
Once again, Aunty Helen and her supporters, haven't figured out, that decent Kiwis, have no problem with the Government not selling their shares, but you had no right to tell private shareholders who they can or cannot sell their shares too.
Roll on the Election!
Sunday, June 22, 2008
Book Recommendation: Money Players
Over the course of 23 chapters, Money Players thoughtfully details every imaginable business aspect of becoming and being a professional athlete--from selecting an agent to maximizing media relations to understanding the duties and rights of being a member of a players' union--and does so in very clear and precise ways. In chapter 7, for instance, Marc offers a particularly terrific description of how the player drafts work, comparing the rules, as well as the risks and benefits of the major leagues' drafts.
I suspect I'll be regualrly using Money Players as a resource. It certainly delves into sports law issues and does so with both sophistication and clarity. If you would like to learn more about Money Players, check out these excerprts, Darren Heitner's interview of Marc on Sports Agent Blog, and Marc's blog, Money Players. If you are interested in learning more about ordering the book, click here.
New Sports Law Scholarship
James J. LaRocca, No trust at the NFL: league’s network passes rule of reason analysis, 15 UCLA ENTERTAINMENT LAW REVIEW 87 (2008)
Mitchell Nathanson, What’s in a name or, better yet, what’s it worth? Cities, sport teams and the right of publicity, 58 CASE WESTERN RESERVE LAW REVIEW 167 (2007)
Justin F. Paget, Comment, Did Gebser cause the metastasization of the sexual harassment epidemic in educational institutions? A critical review of sexual harassment under Title IX ten years later, 42 UNIVERSITY OF RICHMOND LAW REVIEW 1257 (2008)
David G. Roberts, Jr., Note, The right of publicity and fantasy sports: why the C.B.C. Distribution court got it wrong, 58 CASE WESTERN RESERVE LAW REVIEW 223 (2007)
Brian Shaffer, Comment, The NBA’s age requirement shoots and misses: how the non-statutory exemption produces inequitable results for high school basketball stars, 48 SANTA CLARA LAW REVIEW 681 (2008)
Michael J. Weir, Note, The ugly side of the beautiful game: “bungs” and the corruption of players’ agents in European football, 14 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS 145 (2007)
Saturday, June 21, 2008
Writer's Block
I have a ton of projects going on, but everybody thinks I am goofing off or something. They only see the visible side of what I do because I keep the rest hidden. I will say that this is not the only blog that I keep. I can safely say that I generate about 100 pages of content each week. I am a machine, and I work in excess of 50 hours a week.
I don't understand writer's block. I've never had it. What I do get is writer's fatigue. I am feeling that way now which is why I have been neglecting the C-Blog. I will fix that this week. Thanks for hanging in there.
The Essence of Success - Sports and Otherwise
But from the 5-day reality show called the US Open, we saw the essence of why Tiger Woods is so successful.” He wasn’t at his job just to make money. Before the Open started, he already had $128 million from salary, winnings, endorsements and appearance fees, making him the top-earning US athlete on the Sports Illustrated “Fortunate 50” for several years and counting. It is his ability to compete at the highest level in the face of adversity, the competitive desire to win, the single-minded purposefulness to overcome major “distractions”, the patience and perseverance to, as he says, “grind it out. Isn’t that the key in many of our personal and professional endeavors? When we rewind our minds to when we have been most successful, hasn’t it often involved one or more of those attributes? When you worked not just to get paid, but a combination of profitability and passion? Without swinging a 7 iron, haven’t you done your best when you stayed focused on the task at hand, or continued to work into the night to grind out a document when you could have been sipping martinis, or ignored the excuses to fight for what you believed about your abilities, not limiting yourself to what others thought were your limitations? What I saw in the US Open, therefore, was not just a sporting event. I saw a glimpse of greatness, born not in a golf swing or the singular desire to make the next dollar (OK, the next million dollars). The essence was in the mind and heart of a great achiever. I also saw a glimpse of the essence of what breeds success in all of us – just not as profitable and prolific, but prophetic nonetheless.
[1] He has now won 14 major championships. Only a legend named Jack has more at 18, but it took him longer to reach where Woods is now.
Friday, June 20, 2008
Thursday, June 19, 2008
Article on Coach Liability in Pro Athlete Injury Cases
From the Tort Law Professor Blog:
Sports law casebook author and Wake Forest Professor Timothy Davis has posted Tort Liability of Coaches for Injuries to Professional Athletes: Overcoming Policy and Doctrinal Barriers. Here's an abstract of the article:
The resolution of seemingly straightforward disputes that arise in sports often require courts to invoke rules from several substantive areas of the law. The potential tort liability of coaches and their teams for injuries to professional athletes provides such an illustration. Determining the culpability of coaches requires resort not only to tort law doctrine, but also to doctrine and policy related to contract, labor, and workers compensation law. This article first provides an overview of the law regarding the tort liability of institutions for injuries to athletes and the standards of care that courts have adopted. The article suggests that the breach of any duty imposed on coaches and their teams to players would most likely be assessed according to a heightened standard of care, specifically recklessness. The article concludes, however, that even if a coach engages in conduct that falls short of the applicable standard of care, a professional athlete will have difficulty prevailing in a tort-based civil action against a coach, or by virtue of vicarious liability, the team. In this regard, the article briefly discusses the defenses that might impede a player's ability to pursue state tort claims. These defenses, which include the labor law preemption doctrine, mandatory arbitration, and workers compensation, demonstrate the convergence of different strands of law in resolving sports-related disputes.
Wednesday, June 18, 2008
Tuesday, June 17, 2008
NCAA "Singles Out" Baseball Player for Not Paying Advisor
The NCAA Bylaws on amateurism and use of agents, which are incorporated into the student-athlete's scholarship, do not contain any provision requiring a student-athlete in any sport to pay his or her advisor, let alone how to pay his advisor. However, there is a statement buried in a Memorandum, dated October 7, 2007, from the NCAA to Baseball Student-Athletes with Remaining Eligibility that provides: "Finally, it is important to note that in order to maintain your eligibility at an NCAA school, if you receive assistance from an advisor, you will be required to pay that advisor at his or her normal rate for such services." The Memorandum contains a signature line for the athlete to date and sign.
The first "advice" that an advisor might consider giving his client is to not sign this document. I have no idea whether Oliver signed it, but I do not see how this Memorandum has any legal significance whatsoever if the student-athlete does not agree to it. Neither the NCAA bylaws nor the student-athlete's scholarship incorporates or references this document. If the NCAA were to declare ineligible a student-athlete who did not sign it, I think the student-athlete would make a very good case for breach of contract (his scholarship) and that the NCAA lacks the authority to declare any student-athlete ineligible for doing something that does not violate its rules and regulations. Under these facts and circumstances, it would be difficult for the NCAA to take the position that signing the Memorandum is a condition to remaining eligible. But that's the legal analysis. The practical reality is that if a player refused to sign it, the compliance director of the school would say to the player, "you need to sign it if you want to play."
This entire situation can be avoided if the NCAA would simply recognize that baseball players are uniquely situated from student-athletes in football and basketball because of the timing of the draft. The MLB draft takes place within days of the completion of the college regular baseball season, and during the playoffs for many players drafted. Student-athletes can't sign a contract with an agent before the draft because they will jeopardize their eligibility, and they also can't agree that they will pay an advisor when they sign a professional contract. So this "under the table" process takes place in which players choose an advisor with a handshake, and the advisor talks to clubs on his behalf, thus technically breaking every rule in the book. These verbal arrangements also create uncertainty between the parties regarding the terms of their relationship, including the agent's fee. But in football, for example, the player has a period of months between the end of the season and the draft to select and sign with an agent. The player signs the NFLPA standard representation agreement at which point there is no concern regarding loss of eligibility because the athlete has no remaining eligibility (he is either a senior or has declared himself eligible for the draft).
In a law review article published in 2005 (which can be downloaded from here), I proposed that the NCAA make an exception for baseball players and permit them to sign with an advisor during the season as long as the player and advisor execute a standard representation agreement drafted by the NCAA. This would help to clarify and define the "industry norms" as well as bring certainty to the terms of the player-advisor relationship.
Monday, June 16, 2008
Seattle Pins Hopes on Specific Performance to Keep Sonics in Town
Saturday, June 14, 2008
Random Thoughts on Various Subjects
This came out of nowhere. Dead from a heart attack. I liked Russert. NBC lost a good one. There will be a huge hole at Meet the Press.
2. RON PAUL
Ron Paul called it quits, but the vows to keep on with a campaign for liberty and try to work within the GOP. Say what you will, no one has done more for libertarianism in terms of an election than Ron Paul. I voted for him, and he inspired a lot of people and their support.
I am a bit lost again. I can't deny that I am not overly enthusiastic about Bob Barr or the LP. I am very frustrated, and I am considering trying to go back and work within the GOP again to push the issues there. I think Ron Paul has given us a model to work from. I am divided between purity and pragmatism. Something for me to contemplate for the future.
3. GAS PRICES
It is hard to be enthusiastic about things when the price of gas is so high. I know all of this will work itself out, but I put the majority of the blame on a weak and inflated dollar. Ben Bernanke blows. He needs to ratchet up interest rates and force a recession. It is time to feel some sharp pain than this long drawn out misery.
Friday, June 13, 2008
Wednesday, June 11, 2008
More winter ponies - clompety clomp