All sorts of fan speech going around today.
The Florida Marlins signed Adam Greenberg to a one-day contract and he will play next week against the Mets (R.A. Dickey on the mound, looking for his 20th win). Greenberg was beaned in his first Major League at-bat with the Cubs in 2005 (against the Marlins, ironically) and has spent the last seven years trying to overcome post-concussion symptoms. His opportunity came about as a result of the efforts of the One At Bat Foundation, which has been lobbying (and encouraging and helping fans to lobby) MLB and teams to sign Greenberg and allow him to get an official at-bat.
Greenberg is Jewish (he most recently played for Israel in the World Baseball Classic Qualifiers), so there is something appropriate about this happening on the heels of Yom Kippur, where we hope to be inscribed not only for a life, but for a successful and meaningful life.
Ideas in action
Over the summer, Dan Markel (Florida State) and I wrote a short piece for The Atlantic arguing for the creation of "Fan Action Committees" ("FACs"), through which fans could collect and give money to free agent players to lure them to join fans' favorite team. We currently are working, along with Mike, on a longer version of the piece.
As everyone knows, this week's Monday Night Football game between Green Bay and Seattle ended on a touchdown on the final play of the game, in what most people outside Seattle believe was one of the worst calls, and worst-handled calls, in NFL history.* Several Green Bay players took to Twitter to express their dispelasure, notably offensive linement T.J. Lang, who tweeted ""Fine me and use the money to pay the regular refs." Shortly after that, a fan posted on the site Indiegogo (the page has been taken down, unfortunately) encouraging fans to send money to Lang to help him pay the fine that most believed was inevitable, as the NFL routinely fines players, coaches, and executives who criticize officiating. As it turned out, the league announced it would not impose fines for any comments related to Monday's game, no doubt a concession to the egregiousness of the mistake.
Still, this is our FAC idea in action--fans paying money as a show of fandom and of support for their favorite players. Although we primarily discussed the idea only in the context of free agency, this shows that fans may support players through money for a number of difference reasons in a number of different contexts. And it shows that fans instinctively understand this as a legitimate way to express support for their favorite players and teams.
* Which, it turns out, will be the last call ever by the replacement referees, at least in this labor dispute.
As everyone knows, this week's Monday Night Football game between Green Bay and Seattle ended on a touchdown on the final play of the game, in what most people outside Seattle believe was one of the worst calls, and worst-handled calls, in NFL history.* Several Green Bay players took to Twitter to express their dispelasure, notably offensive linement T.J. Lang, who tweeted ""Fine me and use the money to pay the regular refs." Shortly after that, a fan posted on the site Indiegogo (the page has been taken down, unfortunately) encouraging fans to send money to Lang to help him pay the fine that most believed was inevitable, as the NFL routinely fines players, coaches, and executives who criticize officiating. As it turned out, the league announced it would not impose fines for any comments related to Monday's game, no doubt a concession to the egregiousness of the mistake.
Still, this is our FAC idea in action--fans paying money as a show of fandom and of support for their favorite players. Although we primarily discussed the idea only in the context of free agency, this shows that fans may support players through money for a number of difference reasons in a number of different contexts. And it shows that fans instinctively understand this as a legitimate way to express support for their favorite players and teams.
* Which, it turns out, will be the last call ever by the replacement referees, at least in this labor dispute.
Replay it Again Sam
To say the replacement refs have not been up to the level of their striking counterparts the first three games of the season is an understatement. But Monday night was a sight to behold on what still is, in the hearts of many, the NFL showcase game of the week.
In case you missed it, Seattle attempted the proverbial Hail Mary trailing 12 to 7 with 8 seconds remaining. Quarterback Russell Wilson heaved the ball some 60 yards where two of his players jockeyed for position amidst five Packers. The perfectly named Golden Tate pushed the defender in front of him away and leaped to catch the pigskin only to be out leapt by Packer safety M.D. Jennings who made the circus catch falling to the ground, while Tate still had one hand lamely clinging to the ball.
Two replacements stood over the pair looking befuddled, one signaling touchdown, the other making the correct call that the game was over with Green Bay the victor. No review. No discussion. No Mas. Final score: Seattle 14 Green Bay 12.
While my media hero Michael McCann makes a good point that these ne’er do well officials threaten the safety of the players, thus perhaps justifying legal action by the union to demand the league cough up the relative pennies to end the strike, much more is at stake here.
No less a rapscallion than Jimmy Connors said afterwards he no longer would bet on the NFL. Now that is a problem. Estimates vary, but it is safe to say the amount of gambling money flowing through the economy during an NFL season is in the billions of dollars. Recorded wagers in Las Vegas are about $650 million, with $90 million bet on the Super Bowl alone. And that’s legal bets, sure to be just a fraction of actual bets. If betting on an NFL game is like betting on a bout in the World Wrestling League, that free flow of money will soon be reduced to a trickle.
It’s time for the Commissioner to act for the good of gamblers everywhere.
As NASCAR goes, so goes America?
Two years ago, I wrote about a poll showing the general politcal breakdown of sports fans. It found that sports fans overall leaned Republican, with NASCAR fans among the strongest Republican supporters (along with fans of golf and college football). Zogby just published a poll showing Obama with a lead among self-identified NASCAR fans (admittedly small sample size of only about 200 out of an overall sample of 800).
Destination: "Abnormally dangerous conditions"
After watching this weekend’s NFL games, it is obvious that the replacement referees are patently incapable of maintaining order during a game. Blown calls—made or not—are maddening, inconsistency and human error are part of officiating sports. What is unacceptable is the loss of control on the field, leading to an unsafe environment for the participants.The caliber of officiating is abysmal, these aren’t even elite Division I referees because those conferences are not letting them work NFL games. With Division II referees attempting to manage games, the players are responding like the teacher has left the room and they have a poor substitute teacher trying to maintain order—it’s not happening. Let's be clear, the referees are doing the best they can, but are overmatched by the speed, violence, and intensity of NFL football.
What can be done?
1. The NFL’s CBA has a “no strike clause” which, in theory, would restrict the ability of the players to strike in sympathy with the referees.
2. However, as Michael McCann recently analyzed on Sports Law Blog, clause 29 USC 143 of the NLRB permits a worker from refusing, in good faith, to work under “abnormally dangerous conditions”, and 29 USC 143 is applicable to NFL labor conditions. Aren’t we there? Football is a violent sport. Referees who are grossly inexperienced are posing a real and imminent safety risk to the players on the field.
3. The NFLPA could, and at this point I’m arguing should, take action. Either:
a. The NFLPA could refuse to play under the current conditions, citing the very real fact that the workplace is fret with “abnormally dangerous conditions”…OR
b. Could ask the courts for an immediate injunction, terminating the current lockout by the NFL of the referees. In theory, the referees could go back to work while the parties continue to negotiate or mediate this mess.
4. We love sports and the tort doctrine "assumption of the risk" is well established because injuries are part of the game. However, when a football player consents to risk, they do so under the assumption that the game will be managed by professionals, able to maintain safety standards that are paramount to the operation of these contents. Based on what we have seen in the first three weeks of the 2012 NFL season, that safe work environment is missing.
5. An even bigger issue facing the NFL than the debacle surrounding replacement referees is the concussion litigation. Here, the NFL is doing everything imaginable to argue that they care about player safety--with potential damages in the $ 1 BILLION range. Doesn't it make sense to show some legitimate good will regarding player health and safety now?
Floyd Mayweather, Jr.: In trouble again?
Last week, Las Vegas police investigated an alleged verbal altercation between Mayweather and an unidentified woman in a home owned by one of Mayweather's companies. According to records obtained by the Las Vegas Review-Journal, Mayweather apparently argued with the woman, took personal possessions from her, and then later had an associate return the items he took. Although she was not identified as the woman in question, Melissa Brim, the mother of one of Mayweather's daughter, reportedly lives at this address. In 2002, Mayweather pleaded guilty to domestic violence charges stemming from an altercation with Brim. . . . .
In fairness to Mayweather, police did not uncover evidence of physical violence and he has not been charged with a crime. But that may not matter. The typical test for violating probation would not require Mayweather to be convicted of a crime or even get arrested. Instead, merely spending time with known criminals or traveling to locations deemed off-limits by the terms of probation can be enough. Considering Mayweather's history with Brim, there's reason to believe his probation compels him to avoid conflict with her. Mayweather's alleged dispossession of the woman's personal belongings might also be grounds for violating probation.
Creative rule changes, injuries, and the nature of football
A few weeks ago, Chuck Klosterman at Grantland proposed three rule changes for the NFL. I want to discuss one of the ideas: Legalize both holding on the offensive line and downfield contact on receivers until the ball is in the air. Klosterman's theory goes as follows:
Still, it strikes me as an interesting idea and not one that contradicts our understanding of what "really" constitutes football or the way football should be played. Of course, even if the game is still football, would it be an enjoyable game to watch if everyone is able to hold or hand-check off the ball.
Thoughts?
- It's incessantly (and accurately) argued that referees could feasibly call holding on every single pass play; it's really just a matter of whether or not the ref sees the infraction clearly enough (or whether it happens to be especially egregious). This would end that arbitrary judgment call. Phantom holds and missed holds would no longer matter. Moreover, there would be fewer penalties in general (and as a consequence, fewer stoppages of play).
- If holding were legal, quarterbacks would be able to stand in the pocket much, much longer. But this advantage would be mitigated by the way cornerbacks could now cover wide receivers. The Mel Blount Rule was implemented in 1978 to open up the passing game; essentially, it limits the contact on WRs to one chuck within five yards of the line of scrimmage. But if a defensive back could essentially hand-check a receiver as he runs his route, the ability of that receiver to get separation would drastically decrease. In other words, it would be easier for the quarterback to accurately throw the ball downfield, but much more difficult for any receiver to break open. I suspect the impact on passing statistics would be negligible; the numbers might decrease a little, but that's OK. It's become too easy to throw for 4,000 yards in a season.
- Obviously, concussions can happen at any time. But when do they happen most dramatically? It's usually when a wideout is sprinting unencumbered on a crossing route and a strong safety blows him apart when the ball arrives late. If cornerbacks could keep their hands on a receiver for most of the play, this kind of hyper-violent collision would happen more rarely (because WRs simply could not run free over the middle of the field). Meanwhile, letting offensive linemen hold would also decrease the likelihood of quarterbacks absorbing death blows from unblocked edge blitzers (because linemen could at least reach out and get a hand on the guy as he flies into the backfield). Changing these two rules might be the easiest way to decrease the number (and the severity) of concussions without totally changing the nature of the sport; in fact, it might make the game simultaneously safer and more physical. Football would still look like football.
Still, it strikes me as an interesting idea and not one that contradicts our understanding of what "really" constitutes football or the way football should be played. Of course, even if the game is still football, would it be an enjoyable game to watch if everyone is able to hold or hand-check off the ball.
Thoughts?
ASU Sports Law Symposium
The Sports & Entertainment Law Student Association at the Sandra Day O'Connor College of Law is hosting its 3rd Annual Conference on Sports and Entertainment Law on Saturday October 27, 2012 on the Arizona State University campus in Tempe, Arizona. Complete conference details can be found at this link. Here are the scheduled speakers:
Panel Session I: Amateurism Moderator: Chuck Schmidt
Panelists: Stephen Webb, Tim Epstein, Darren Heitner, Mark Mignella and Marc Isenberg
Panel Session II: CBA Moderator: Caleb Jay
Panelists: Tim Epstein, Gregg Clifton and Travis Leach
Panel Session III: Concussions & Sports Litigation Moderator: Jason Belzer
Panelists: Travis Leach, Paul Anderson, David Dodick and Scott Peters
Keynote Address: Jared Bartie
Honored Guest Speaker: Jerry Colangelo
Panel Session IV: Entertainment & Right of Publicity Moderator: Caleb Jay
Panelists: Connie Mableson, James Marovich, Leonard Aragon and Mark Conrad
Panel Session V: Future of Gambling & Gaming Moderator: Dana Hooper
Panelists: Bill Squadron, Mark Brnovich and Marc Isenberg
Ethics Presentation: Steven Adelman
Panel Session VI: Business of Sports & Entertainment Moderator: Jason Belzer
Panelists: Woodie Dixon Jr., Jeffrey Benz, Don Gibson and Deborah Spander
Town Hall: Current Issues in Sports Law Moderator: Sam Renaut
Panelists: Lester Munson, Tim Epstein and Darren Heitner
Panel Session I: Amateurism Moderator: Chuck Schmidt
Panelists: Stephen Webb, Tim Epstein, Darren Heitner, Mark Mignella and Marc Isenberg
Panel Session II: CBA Moderator: Caleb Jay
Panelists: Tim Epstein, Gregg Clifton and Travis Leach
Panel Session III: Concussions & Sports Litigation Moderator: Jason Belzer
Panelists: Travis Leach, Paul Anderson, David Dodick and Scott Peters
Keynote Address: Jared Bartie
Honored Guest Speaker: Jerry Colangelo
Panel Session IV: Entertainment & Right of Publicity Moderator: Caleb Jay
Panelists: Connie Mableson, James Marovich, Leonard Aragon and Mark Conrad
Panel Session V: Future of Gambling & Gaming Moderator: Dana Hooper
Panelists: Bill Squadron, Mark Brnovich and Marc Isenberg
Ethics Presentation: Steven Adelman
Panel Session VI: Business of Sports & Entertainment Moderator: Jason Belzer
Panelists: Woodie Dixon Jr., Jeffrey Benz, Don Gibson and Deborah Spander
Town Hall: Current Issues in Sports Law Moderator: Sam Renaut
Panelists: Lester Munson, Tim Epstein and Darren Heitner
Brief History of Pro Hockey Work Stoppages
Year: 1992
Type: Strike
Duration: 10 days: between April 1st and April 11th, 1992. 30 regular season games were cancelled, but ultimately made up.
Result: Fundamentally altered the relationship between the NHL and NHLPA. The owners finally realized that they needed to take the players seriously. The players won major concessions in marketing rights, an increased revenue share from the playoffs, and changes to the free agency system. In order to generate additional revenue the regular season was expanded from 80 to 84 games.
Year: 1994
Type: Lockout
Duration: From October 1, 1994 to January 11, 1995. In the end, a total of 468 games, including the All-Star game, were lost.
Result: There was growing concern about the viability of the small market teams. The league wanted to implement a luxury tax, which the players saw as a salary cap—something they were vehemently against. The players, recognizing the struggles of small market teams, argued for revenue sharing—transferring money from large market to small market teams.
Ultimately, the lockout ended when several large market teams relinquised the luxury tax as an ultimatum. Salary caps for rookies and two-way contracts were implemented. The season was cut from 84 to 82 games. Several teams moved as a result of this work stoppage—Quebec to Colorado, Winnipeg to Phoenix, and Hartford to Carolina.
Year: 2004
Type: Lockout
Duration: The entire 2004-05 season was cancelled.
Result: Real financial issues forced the owners to demand, and ultimately obtain, a salary cap. Players gave up significant financial benefits, including a 24% rollback of salaries. However, the players did receive a guaranteed fixed percentage of league revenues each season. As a result, a new financial structure for the business of hockey was created. Successful? League revenue has grown from $2 billion in 2003-04 to $3.3 billion in 2011-12.
Year: 2012
Type: Lockout
Duration: TBD
Result: The fourth major work stoppage in professional hockey in the past 20 years.
Foul Ball? New "Moneyball" Rankings of Most Relevant Law Professors
It was only a matter of time until the ubiquitous worlds of law school-related rankings and Moneyball collided. I didn't expect the convergence, however, to be found by Berkeley Law Professor John Yoo, a controversial figure based on his authoring of "torture memos" during the presidency of George W. Bush.In a new study, Yoo and a co-author claim to have a list of the 50 most relevant law professors. The ranking is based entirely on citations in law review articles. And only professors at the so-called "top 16" law schools are eligible for ranking. Yoo, who according to his own study is the 24th most relevant law professor, blogs about his study on Richochet in a post he titles "Moneyball Comes to the Ivory Tower".
I don't think Billy Beane (or, if you prefer, Paul DePodesta or Daryl Morey or Mike Zarren or Dean Oliver) would be proud. What about teaching? Or helping students learn how to actually practice law? Or helping students get an internship or, better yet, a job? Law students are largely footing the bill of legal education and I suspect what's most "relevant" to them is getting a job out of a law school, or at least real-world experience while in school. It's true some of those qualities may be difficult to quantify, but if a so-called "Moneyball" study alleges to measure "relevance" it should do just that.
In fairness to Yoo, he acknowledges the study's limitations and he recognizes that teaching is important: "Finally, faculty also teach and have other responsibilities within and without law schools, and citation studies can never measure these important professional functions". But the tone of "faculty also teach" to me, at least, does not signal that Yoo views teaching as important of a priority. Which it should be. He also doesn't seem to address the crucial role of faculty in helping students obtain real world experiences and employment.
Also, as noted in a Facebook comment by Jacob Gottlieb, having many citations is not necessarily a good thing, especially if you are frequently cited in rebuke. And this may be true of Yoo, who is often cited by other law professors in a negative way.
And there's the argument against a study like this on grounds that law review articles do not influence judges or law makers, and may just be an overweening form of currency for law professors to make and keep tenure. I don't endorse that view, but I also believe that other qualities are probably more important, and teaching and helping students with internships and jobs are among those qualities.
Lastly, there's a powerful point raised by Ken Houghton in the comments section below. Moneyball is based on identifying efficiencies to obtain a competitive advantage over other teams. For many years, baseball teams undervalued on base percentage and runs scored; Beane, with good counsel, was among the first general managers to correctly value those metrics and that gave him an advantage over other teams in evaluating players. Evaluating law professors based on their legal scholarship and how often they are cited in legal scholarship, in contrast, has been around forever. Yoo seems to have developed a new method of evaluating citations, but that is different from identifying undervalued efficiencies in evaluating faculty. A true "Moneyball professor", in other words, is probably one undervalued by the very metric Yoo proposes.
For another take on Yoo's study, see David Lat's post on Above the Law.
The Impending NHL Lockout
1. Unlike the last CBA negotiations, the players are unified and active. Here is a list of the 283 players that were in New York City on Thursday for the NHLPA’s Executive Board and Negotiation Committee meetings. [Editor’s note: tremendously proud to see twelve former Boston College hockey players attend. Not only does Coach Jerry York and his staff bring talent to Chestnut Hill he brings individuals who understand the big picture.]
2. Labour law in Canada is different than labor law in the United States. This will impact the lockout on the margins. A brief overview of the nuances, and how it pertains to professional hockey, can be found here.
3. Once the lockout begins, one of the most important parts of the previously negotiated CBA will be the “exemptions to regular waivers” definition. Why? Because this will trigger which players the NHL teams will be able to control (i.e. send to the minors) after a lockout and which ones they can’t—who will be free to go overseas or forced to sit out. In general, younger players can be assigned to the AHL or ECHL as many times as a team wishes without the need for the player to clear waivers. And make no mistake, once there is a lockout the AHL and ECHL will be flooded with these players.
To see the actual parameters of which players the NHL teams control, refer to the following chart.
Veteran players who have played in a sufficient number of NHL games would have to clear waivers, making them susceptible to having another NHL team select them, before being assigned to the minors. Thus, most veterans are unlikely to be put through waivers and thus have the ability to decide whether or not to play overseas.
[Editor's note: the waiver process has already started, here's an update.]
4. Regardless of your opinion as to which side—the NHL or NHLPA—is right, please remember that many, inside and outside of hockey, will be affected negatively by this entire episode. Additionally, and this may show my bias, only four percent of NHL players play 1,000 games—meaning these players typically have short careers and, more importantly, a small window in which to be compensated for being the best athletes in the world for their sport.
5. Here is a link to my thoughts a few weeks ago on “The Unique Nature of the Business of Hockey” that appeared in the Huffington Post.
Sonny Vaccaro on whether NCAA will punish Duke and UNC
In the last week, Sonny Vaccaro has spoken at two academic events -- Santa Clara Law School's sports law symposium on the proper role for sports in higher education and an event at Southern Methodist University related to Vaccaro's arguments for student-athletes and compensation. He also found time to speak with Eric Prisbell of USA Today about alleged wrongdoing at Duke and UNC. Vaccaro says the NCAA lacks the guts to punish these schools. Here's an excerpt:
"Pull back the curtain and the wizard is not there," Vaccaro said of the schools over lunch Monday. "They are all the same . . . The NCAA does not have the guts to do the right thing for everyone. They do it for a chosen few. The rules are made according to them, for them." ..... If wrongdoing is found at North Carolina and Duke, Vaccaro said, "You've got to impose whatever the right penalty is. It has got to be done. If you gave the eye test to the American public -- like Notre Dame and some other anointed schools -- they will get a pass. And that's not right."The NCAA disagrees:
Said the NCAA's Stacey Osburn in an email Monday to USA TODAY Sports: "Sonny is wrong. Member institutions make the rules and expect that all schools abide by them. When they don't, there are consequences, regardless of who is involved."For more on the allegations against Duke and UNC, see Prisbell's story.
Gee, that's big of you
Maryland Delegate Emmitt C. Burns, Jr., after a few days as a national punchline, has had some time for "reflect[ion]":
"Upon reflection, he has his First Amendment rights," Del. Emmett C. Burns Jr., a Baltimore County Democrat, said in a telephone interview. "And I have my First Amendment rights. … Each of us has the right to speak our opinions. The football player and I have a right to speak our minds."Glad we got that straight. Still, it is frightening that it took "reflection" for a public official to realize that "the football player" has First Amendment rights and the same right as him to speak his opinion.
Activist athletes, tone-deaf politicians
Now here's a fun free-speech controversy.
On Thursday, the story got out that Emmett C. Burns, Jr., a member of the Maryland House of Delegates, had sent a letter to the principal owner of the Baltimore Ravens, expressing horror that a member of the Ravens, Brendan Ayanbadejo, had spoken in support of a pending ballot initiative that would establish marriage equality in Maryland. Burns asked the team to "take the necessary action . . . to inhibit such expressions from your employee and that he be ordered to cease and desist such injurious actions." Ayanbadejo responded on Twitter by saying "Football is just my job it's not who I am. I am an American before anything. And just like every American I have the right to speak!!!" (wow, maybe you can make good points in 140 characters). Vikings punter Chris Kluwe defended Ayanbadejo on Deadspin and has been getting some attention for his response, which mostly hits (in an inimitable style) the key points.
Burns obviously should not be taken seriously or given too much credit for having put any real thought or principle into the letter. What I find disturbing is the stated belief that, as a football player, Ayanbadejo has less of a right to speak out on public issues--that it is wrong for him to "try to sway public opinion one way or another" simply because he is a professional athlete. I haven't heard of Burns sending letters to other employers in the state (such as Johns Hopkins University, the largest employer in Maryland) asking them to tell their employees to concentrate on their jobs. Modern athletes are frequently criticized for not being political and not taking a stand on public issues (recall Michael Jordan's infamous comment that "Republicans buy shoes, too"). Now, when an athlete is willing to take a stand, a public official insists that he is engaging in "injurious behavior" and should be silenced.
We have not heard any response from Burns since the story became public and my guess is we won't. As an unknown and not influential state legislator, he no doubt is basking in the attention, even if it all makes him look like a complete fool.
On Thursday, the story got out that Emmett C. Burns, Jr., a member of the Maryland House of Delegates, had sent a letter to the principal owner of the Baltimore Ravens, expressing horror that a member of the Ravens, Brendan Ayanbadejo, had spoken in support of a pending ballot initiative that would establish marriage equality in Maryland. Burns asked the team to "take the necessary action . . . to inhibit such expressions from your employee and that he be ordered to cease and desist such injurious actions." Ayanbadejo responded on Twitter by saying "Football is just my job it's not who I am. I am an American before anything. And just like every American I have the right to speak!!!" (wow, maybe you can make good points in 140 characters). Vikings punter Chris Kluwe defended Ayanbadejo on Deadspin and has been getting some attention for his response, which mostly hits (in an inimitable style) the key points.
Burns obviously should not be taken seriously or given too much credit for having put any real thought or principle into the letter. What I find disturbing is the stated belief that, as a football player, Ayanbadejo has less of a right to speak out on public issues--that it is wrong for him to "try to sway public opinion one way or another" simply because he is a professional athlete. I haven't heard of Burns sending letters to other employers in the state (such as Johns Hopkins University, the largest employer in Maryland) asking them to tell their employees to concentrate on their jobs. Modern athletes are frequently criticized for not being political and not taking a stand on public issues (recall Michael Jordan's infamous comment that "Republicans buy shoes, too"). Now, when an athlete is willing to take a stand, a public official insists that he is engaging in "injurious behavior" and should be silenced.
We have not heard any response from Burns since the story became public and my guess is we won't. As an unknown and not influential state legislator, he no doubt is basking in the attention, even if it all makes him look like a complete fool.
New Sports Illustrated column: What today's bounty gate decision means for Goodell, Vilma, Payton and others
Probably not what Roger Goodell wanted to hear on the eve of the 2012 NFL season: Arbitration panel lifts suspensions of Vilma and others. My take for Sports Illustrated. Here's an excerpt:* * *
4) Does today's ruling mean that Sean Payton and the other suspended coaches can return to work?
No. Today's ruling does not legally benefit Payton -- or, for that matter, Gregg Williams and Joe Vitt -- because they are coaches, and do not enjoy collectively bargained protections as do Vilma and other players. Players enjoy these protections because they are members of a union, the NFLPA, which collectively bargains with the NFL for rules impacting players' wages, hours and other working conditions. In contrast, Payton's relationship with the NFL is governed by an employment contract with the Saints and which, like all coaches' contracts, contains stipulations he must accept NFL judgments.
That said, today's ruling could motivate former Saints defensive coordinator Gregg Williams, who has been suspended indefinitely and whose NFL coaching career may be over, to more seriously consider suing Goodell and the NFL. While a lawsuit would be challenging, Williams could argue the NFL and its teams have essentially boycotted him on exaggerated or fictitious grounds. Given their continued employment, it is less likely Payton, Vitt and Saints general manager Mickey Loomis would seek litigation against the league.
* * *
Corruption, Gambling, and Manipulation in Sports
With my research devoted to the legality and efficacy of minimum age rules winding down (recent examples here and here), I am looking forward to moving into a new research line - (non-)gambling corruption and manipulation in sports. It is a topic that blends my interest in doctrinal sports law and quantitative methods. With a few working papers on the topic in the queue (here and here), I was fortunate to receive a small grant that enabled me to organize a panel with a number of subject matter experts. The panel will take place October 12, 2012 and will be hosted by Florida State University's Department of Sport Management as part of the department's annual conference. The panel title, speakers, and abstract are below.
Corruption, Gambling, and Manipulation in Sports
Ryan Rodenberg (moderator)
Florida State University
Rick Borghesi (panelist)
University of South Florida
Author, Widespread Corruption inSports Gambling: Fact or Fiction?
Sean Patrick Griffin (panelist)
Penn State Abington
Author, Gaming the Game: The InsideStory of the NBA Betting Scandal and the Gambler who Made it Happen
Katarina Pijetlovic (panelist)
Tallinn Law School, Estonia
Author, European Union SportsPolicy Update
Jeff Reel
Associate General Counsel
ATP World Tour
Brian Tuohy (panelist)
Author, The Fix is In: The ShowbizManipulation of the NFL, MLB, NBA, NHL, and NASCAR
Author, Larceny Games: SportsGambling, Game Fixing, and the FBI
ABSTRACT
Twenty years ago, U.S. President George H.W. Bush signed into law theProfessional and Amateur Sports Protection Act (“PASPA”), a federal statutebanning sports gambling in all but four states (Nevada, Delaware, Montana, andOregon). PASPA, dubbed the Bradley Actafter its main Senatorial proponent and former NBA player Bill Bradley (D-NJ),drew strong support from professional and amateur sports leaguesnationwide. Competitive integrity preservation and theprevention of corruption in sporting contests were major tenets in furtheranceof PASPA’s enactment two decades ago. With the impetus for PASPA as a backdrop, the foci of this panel aretwo-fold. First, each panelist willprovide a primer on how competitive sports can (and are) being corrupted bygambling-related game fixing and non-gambling commercial interests. Second, panelists will discuss specificaspects of corruption and manipulation of sports. Borghesi will explain how he tested the so-called“widespread point shaving hypothesis” in college basketball. Griffin will provide an overview of the NBAbetting scandal and detail his statistical analysis of point spread movementsin the recent NBA betting scandal. Pijetlovic willexplain emerging corruption trends in Europe and the state of investigative journalismin the sports industry. Reel willoutline anti-corruption policy from a global sports league’s perspective. Tuohy will posit on how commercial interestsaugment sports and introduce his findings from over 400 FBI files pertaining tosports bribery and related issues. Thepanel will conclude with predictions and remedies for the future.
Is Kansas Softening on the Legality of Fantasy Sports?
As I noted in my 2012 Harvard Journal of Sports and Entertainment Law article, A Short Treatise on Fantasy Sports and the Law, Kansas has traditionally been a high-risk state for operating fantasy football leagues based on language appearing on the state's Racing and Gaming Commission website that indicated "chance predominates over skill in fantasy sports leagues" and that "if a fantasy sports league has a buy-in (no matter what it is called) for its managers and gives a prize, then all three elements of an illegal lottery are satisfied."
However, as of this morning, this cautionary language no longer appears on the Kansas Racing Commission website. In addition, the Kansas Racing and Gaming Commission's Frequently Asked Questions page now omits any discussion about the legality of fantasy sports.
Although language on the Kansas Racing and Gaming Commission website is merely advisory, its recent removal in conjunction with the website's overall renovation signals a possible backing away from the state's earlier hard-line stance against fantasy football. Furthermore, it is interesting to note that two of the largest providers of pay-to-win fantasy football games -- CBS Sports and Yahoo! -- had allowed entries from Kansas, even despite the previous cautionary language.
Boston University Hockey and Institutional Control
The report was ordered up by the school administration after back-to-back incidents last season that led to sexual assault charges. Corey Trevino, a 2008 draft pick of the New York Islanders, pleaded guilty to assault. Rape charges against Max Nicastro, who is the property of the Detroit Red Wings, were dropped. Neither player remains in school.
The report says it doesn't attempt to judge the guilt or innocence of the players, but rather look into "whether inherent aspects of the program's culture and climate could have helped to foster the actions that led to the criminal charges."
BU is an interesting case. The school doesn't have a football team; it eliminated the program in 1997. But that only confirmed what most everybody already knew: BU is a hockey school, with five NCAA titles, 21 appearances in the collegiate Frozen Four and the longtime domination of the Hockey East conference and the annual battle for Boston's bragging rights called the Beanpot.
For those unfamiliar with Boston University athletic programs, the men’s hockey team, which has won a total of five national championships, has garnered substantial national recognition and is often among the top university ice hockey programs in the nation. Its visibility both on and off campus exceeds that of any other BU athletic program.
The report also noted that hockey is an unusual situation, in that players are often drafted before they attend college. That calls into question, perhaps even more than in other sports where a pro career might be assumed, the players' commitment to their academics. In its conclusion, though, the report hit the school for a lack of sufficient institutional control over its flagship athletic program.
There are a number of important structures and processes that are failing to achieve the full level and quality of oversight of the men’s ice hockey program that is expected and appropriate at a major university. These failings include issues of institutional control and governance structure at the highest levels, as well as shortcomings in leadership at the team level. Further, the absence of a few routine, transparent, and systematic processes that would establish clear expectations for players’ behavior has created a culture in which important aspects of oversight for our student-athletes’ behavior—beyond performance as a team member—has fallen inappropriately to the coaching staff.
The report said its outside investigator, Michael Glazier, chair of the Collegiate Sports Practice Group in the firm of Bond, Schoeneck & King, PLLC, "found no evidence of major NCAA violations."
Replacement refs, player safety, and causation
Warren and Mike each discuss the idea of NFL players staging a sympathy strike in solidarity with the NFL referees' union, with player safety as the purported hook. This also has been a recurring theme in media criticisms of the NFL--that the league, despite its purported concerns for concussions and player safety, is jeopardizing player safety by using replacement refs of questionable ability, and all over a relatively small-value labor dispute. Mike's e-mailer captures it when he insists that the NFL has an argument "the minute an NFL player is injured because of a bad call."
But this arguments suffers from serious causation problems. How exactly does a bad call "cause" the injury in any legal, or even logical, way? I do not see how using unskilled replacement refs creates a greater risk of injury or how replacement refs will cause more injuries with their terrible calls and non-calls. The likelihood of an incorrect call or non-call on a given play does not affect the likelihood of an injury occurring on that play. In other words, whether a penalty is called (correctly or incorrectly) after a play is over does not affect whether an injury occurs on the play itself. If DB A hits Receiver X coming across the middle, Receiver X may or may not be hurt on the play, whether or not a penalty is called on the play and whether or not a penalty should have been called; if DE B hits QB Y, QB Y may or may not be hurt, whether or not a penalty is called or should have been called. In no sense did the incorrect call or non-call "cause" the injuries on those plays.
Plus, even with the regular refs, injuries regularly occurred on plays in which no penalty was called, with the league coming in and imposing fines after the fact for certain conduct. Also, most "bad calls" that refs are going to make or not make it are unconnected to injury; that missed Offsides is not going to increase anyone's risk of injury. So, at best, we are talking about a small subset of calls and plays. And, of course, lots of injuries occur on plays in which no penalty should be called because no one did anything against the rules; they just played an inherently risky game.
The only conceivable argument is that the replacement refs will have less control of the game and will less accurately call certain dangerous conduct (late hits, hits to the head, hits on defenseless receivers), causing players to try to get away with more knowing that they will not be caught or penalized, resulting in more injuries. Several problems with this. First, it is necessarily cumulative; it will not allow for proof that one injury was caused by the refs, but only proof that a series of bad calls incentivized a given play on which an injury occurred. That is a tricky logical chain to navigate. Second, it is impossible to show that DB A wouldn't have gone high on the receiver even if he knew there was a greater chance of being penalized. So, again, we have the problem of a causal link between some bad call(s) and the injury itself.
Third, and most importantly, the argument assumes the replacement refs' awfulness will run in the direction of being more lax and giving players more incentive to engage in dangerous or injury-threatening play. But it may be just as likely that the refs will err on the side of over-calling penalties, imposing a disincentive on players as to how they play. If the replacements improperly call lots of unwarranted penalties on hits to the QB, defensive players are going to ease up on anything close, not wanting to risk a penalty. The result is bad football because the refs are just getting things wrong and because defenders are losing the opportunity to make plays. But the result is not a reduction in player safety--in fact, player safety would seem to increase, as QBs are going to take fewer hits.
At some level, player safety has become an unfortunate talisman for the players and for the media to trot out over everything. And there are lots of reasons not to want the NFL to allow less-skilled officials onto the field. But the leap to connect bad officiating to player safety is a long one that is not obviously warranted, at least not ex ante.
But this arguments suffers from serious causation problems. How exactly does a bad call "cause" the injury in any legal, or even logical, way? I do not see how using unskilled replacement refs creates a greater risk of injury or how replacement refs will cause more injuries with their terrible calls and non-calls. The likelihood of an incorrect call or non-call on a given play does not affect the likelihood of an injury occurring on that play. In other words, whether a penalty is called (correctly or incorrectly) after a play is over does not affect whether an injury occurs on the play itself. If DB A hits Receiver X coming across the middle, Receiver X may or may not be hurt on the play, whether or not a penalty is called on the play and whether or not a penalty should have been called; if DE B hits QB Y, QB Y may or may not be hurt, whether or not a penalty is called or should have been called. In no sense did the incorrect call or non-call "cause" the injuries on those plays.
Plus, even with the regular refs, injuries regularly occurred on plays in which no penalty was called, with the league coming in and imposing fines after the fact for certain conduct. Also, most "bad calls" that refs are going to make or not make it are unconnected to injury; that missed Offsides is not going to increase anyone's risk of injury. So, at best, we are talking about a small subset of calls and plays. And, of course, lots of injuries occur on plays in which no penalty should be called because no one did anything against the rules; they just played an inherently risky game.
The only conceivable argument is that the replacement refs will have less control of the game and will less accurately call certain dangerous conduct (late hits, hits to the head, hits on defenseless receivers), causing players to try to get away with more knowing that they will not be caught or penalized, resulting in more injuries. Several problems with this. First, it is necessarily cumulative; it will not allow for proof that one injury was caused by the refs, but only proof that a series of bad calls incentivized a given play on which an injury occurred. That is a tricky logical chain to navigate. Second, it is impossible to show that DB A wouldn't have gone high on the receiver even if he knew there was a greater chance of being penalized. So, again, we have the problem of a causal link between some bad call(s) and the injury itself.
Third, and most importantly, the argument assumes the replacement refs' awfulness will run in the direction of being more lax and giving players more incentive to engage in dangerous or injury-threatening play. But it may be just as likely that the refs will err on the side of over-calling penalties, imposing a disincentive on players as to how they play. If the replacements improperly call lots of unwarranted penalties on hits to the QB, defensive players are going to ease up on anything close, not wanting to risk a penalty. The result is bad football because the refs are just getting things wrong and because defenders are losing the opportunity to make plays. But the result is not a reduction in player safety--in fact, player safety would seem to increase, as QBs are going to take fewer hits.
At some level, player safety has become an unfortunate talisman for the players and for the media to trot out over everything. And there are lots of reasons not to want the NFL to allow less-skilled officials onto the field. But the leap to connect bad officiating to player safety is a long one that is not obviously warranted, at least not ex ante.
Could NFL Players walk off field and argue Replacement Referees Pose an "Abnormally Dangerous Condition" under federal law?
A labor lawyer familiar with the NLRB emailed me tonight with an interesting twist to the NFL referee lockout (between the asterisks)The U.S. Court of Appeals for the Sixth Circuit enforced the NLRB's order in the TNS case, which involved employees at a nuclear plant who were exposed to unsafe levels of radiation and who walked off the job. The NLRB said the workers were legally entitled to do so under 29 USC 143 because of a good faith belief and objective evidence (including evidence of kidney damage and abnormal levels of uranium exposure) that they were being harmed.* * *I was listening to DeMorris Smith of the NFLPA raise the possibility of a work stoppage in support of the locked out refs and noticed something no one has mentioned as of yet.
While it is true that the current collective bargaining agreement does contain a "no strike" clause, there is an exception that I think the NFLPA may be considering. 29 USC 143 permits a worker from refusing to work in an "abnormally dangerous condition.". The lead NLRB case in this issue is TNS 309 NLRB 1348 (1999). This type of argument crystallizes the minute an NFL player is injured because of a bad call.* * *
John B. Flood--who, to be clear, is not the lawyer who emailed me tonight--has a law review article on when the NLRB determines whether there are sufficient abnormally dangerous conditions to justify workers walking off their jobs. In Revisiting the Right to Refuse Hazardous Work Amidst the Anthrax Crisis of 2001, 5 U. Pa. J. Lab. & Emp. L. 545 (2003), Flood writes that the NLRB decides each situation on a case-by-case basis, with "immediate, presently existing dangers" given particular weight.
You might say it's inconceivable that NFL players would walk off the job because of replacement referees. NFL players make a ton of money and everyone, other than the real refs, is excited that the 2012 season is about to start. The last thing NFL players want to do is stop everything - and not get paid their salaries.
I get that. But let's say the referee lockout goes on for weeks and during that time, some of the game's top stars are injured, at least in part because replacement refs made terrible calls or failed to make obvious calls? Or say the number of injuries goes way up under replacement refs? Would the idea of walking off the field remain inconceivable if players believed they were playing in . . . abnormally dangerous conditions? How would their families and agents and those who influence them feel?
The Presidential Race At 26.2 Miles
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| Image from Politix |
An interview last week between Ryan and Hugh Hewitt contained the following dialogue:
* * *
HH: Are you still running?PR: Yeah, I hurt a disc in my back, so I don’t run marathons anymore. I just run ten miles or yes.
HH: But you did run marathons at some point?
PR: Yeah, but I can’t do it anymore, because my back is just not that great.
HH: I’ve just gotta ask, what’s your personal best?
PR: Under three, high twos. I had a two hour and fifty-something.
* * *
Much to the Republican Party’s dismay, those darn fact checkers revealed that Ryan’s best time in any marathon was over four hours. As Nicholas Thompson put it: “That’s the difference between running and racing.” Ryan recently recanted; the spin, of course, was that this all occurred some ten years ago and his memory was naturally fuzzy.
Anyone who has seriously run competitively, let alone run marathons, knows this explanation to be as shaky on the facts as the original assertion. The best times of any serious runner—like the best scores of any golfer—are firmly etched in one’s psyche. While I sometimes have trouble with my children’s names, I can remember my best high school hurdle times achieved more than 45 years ago. (Sigh!)
Can you imagine a golfer claiming to have shot in the low 70s when he had never broken 90?
It’s one thing to tell half-truths about Medicare, the country’s credit rating, or the closing of an auto plant; rabid supporters will never know the difference—or care even. But let’s draw the line at PERs, performance enhancing rhetoric.
New Sports Illustrated column: Ed O'Bannon wants to include Current Players in massive class action v. NCAA
As Warren Zola discussed earlier this morning, Ed O'Bannon's class action lawsuit against the NCAA could grow dramatically. O'Bannon has asked a federal judge to expand the purported class to include current D-I football and men's basketball players. Through a trust, these players would be paid, in all likelihood thousands of dollars. Put more bluntly, college players would be paid. You heard that right.
I have a column for Sports Illustrated on this and what it means for college sports. Hope you have a chance to check it out.
I have a column for Sports Illustrated on this and what it means for college sports. Hope you have a chance to check it out.
NCAA....it's Your Move.
With one strategic maneuver, the plaintiffs in the O'Bannon v. NCAA lawsuit have placed the debate of paying college athletes front and center. Filed in 2009, the suit initially sought damages under antitrust law, claiming that the NCAA and EA Sports conspired to pay student-athletes nothing for the use of the name and likeness in video games.
This past Friday, as the sports world prepared for the start of another exciting college football season, the attorneys for O'Bannon and other plaintiffs, sought to have their case certified as a class action. Additionally, based on information they have obtained during discovery, the plaintiffs now contend that the money derived from television, video games and other products that use athletes' names, images and likenesses be shared with players.
The lawyers "do not seek compensation to be paid to current student-athletes while they maintain their eligibility" but rather "that monies generated by the licensing and sale of class members' names, images and likenesses can be held in trust" until their college careers are over.
Make no mistake, the reverberations of this strategy in the United States District Court in California could radically alter college athletics forever.
[With news this big, I am certain that there will be detailed and thoughtful analyses coming soon from others....perhaps from "our own" Michael McCann....]
[With news this big, I am certain that there will be detailed and thoughtful analyses coming soon from others....perhaps from "our own" Michael McCann....]
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