Supreme Court nominee Elena Kagan says she agrees with Chief Justice John Roberts that justices basically act like baseball umpires in deciding complex legal issues.Thanks to Associated Press writer and Boston College professor Jimmy Golen for referring me to the story.
But Kagan said the metaphor isn't quite that simple.
She said Wednesday that while judges should be strictly neutral, they also have to exercise difficult judgments. Said Kagan: "They are not easy calls."
At his confirmation hearings, Roberts said justices call balls and strikes. Kagan said the weakness of the metaphor is that it "might suggest to some people that law is a kind of robotic exercise, that there is a kind of automatic quality to it, that we just stand there and call balls and strikes."
Wednesday, June 30, 2010
As curious crowds thronged the Capitol amidst a crush of reporters and newsreel cameras, a diverse lineup of baseball notables took the witness table, including major and minor league officials, team owners, ball players, even sports writers, and associate committee counsel Stevens was asking many of the questions. Not always with success in getting clear answers, as press accounts of his persistent pursuit of a characteristically elusive Branch Rickey show. And Stevens also had to confront a rather forthright rebuke from one witness: sports columnist Red Smith insisted "that in these times I think there are graver matters. I think there are more pressing matters to deal with." Perhaps relieving any frustration and sting from such encounters, Stevens did have the chance to engage in a more amicable interchange with Phil Wrigley, owner of his own beloved Cubs.
The full article is available here.
As virtually all college football fans must be aware, the NCAA has dropped a 2000 lb JDAM on USC for its failure of institutional control over its sports programs. If USC does not succeed in its appeal, it is facing a 2 year ban on postseason play, the vacating of 14 victories in late 2004 and all of 2005, which includes a victory in the BCS championship game over Oklahoma, the loss of 30 scholarships over 3 years, and 4 years of probation.To read the rest, click here.
The NCAA faulted USC for violations in its football, men's basketball, and women's tennis teams. Football star Reggie Bush, who won the Heisman trophy in 2004, was found to have been essentially paid -- and hence ineligible for collegiate play. Basketball player O.J. Mayo was similarly paid by outsiders. (The tennis violations had to do with impermissible long-distance calls, seemingly of much smaller scope than the Bush and Mayo violations.)
What's of interest to me is the seventh infraction in the report: "Lack of Institutional Control" . . . The crux of USC's defense is that it did know of the Bush and Mayo violations and there was no reason it should have known of them; and that the NCAA should not have relied on statements by persons of questionable credibility.
"Lack of institutional control" sounds something like "failure to supervise" in the context of SEC investigations, which is something I dealt with a bit when I was in private practice. Whether one should be required to have compliance controls in place is debatable, I suppose, but that fight has been lost, before both the NCAA and the SEC.
"Failure to supervise" typically arises when you have a rogue employee who does something bad, such as engage in violations of the securities laws. Because corporations are liable for the acts of employees within the scope of employment with (at least partial) intent to benefit the corporation, the company may find itself responsible even though it did not condone the employee's actions and in fact may have been victimized in reality. (The intent to benefit prong is interpreted pretty broadly.) The SEC might slap the corporation for inadequate supervision of the rogue employee.
The important point here is that "we didn't know the employee was doing bad stuff" is not a defense to such a charge. If anything, it aggravates the charge. About the only way you can try to defend yourself against this kind of charge is to show that you had adequate compliance controls in place, which the rogue employee somehow ingeniously circumvented.
Tuesday, June 29, 2010
At the age of 34, Capriati has not played professional tennis for 5+ years following shoulder surgery. However, she has yet to officially retire from the sport. Her career record is impressive. Among the numerous highlights - a gold medal in 1992, three Grand Slams titles, and a top ten world ranking at the age of 14.
Capriati's career is also tied to sports law. In 1995, the WTA Tour (the governing body for women's professional tennis worldwide) enacted a minimum age rule. The WTA Tour age eligibility rule is sometimes dubbed the "Capriati Rule" given that it was adopted shortly after Capriati burst onto the tennis scene as a prodigious 13-year-old. Numerous law review articles have been written about the legality of minimum age rules under antitrust law. However, the number of actual legal challenges has been minimal. The most prominent case, of course, was Maurice Clarett's lawsuit against the NFL. In tennis, Mirjana Lucic filed a 1997 lawsuit in Australia, but did not find any success. In 1999, American teenager Monique Viele threatened to file an antitrust suit against the WTA Tour, but never made good on her threats.
In my research on the issue, I have generally found such age-based policies to pass antitrust muster. As such, I am not surprised by the dearth of actual litigation on the issue. However, I remain curious about the effects such policies have on the careers of players subject to the rule's requirements. Over the course of the past two years I undertook a research line that tests the impact of minimum age rules in various sports empirically. Using the tools of econometrics, I investigated the impact of such rules. Dan Stone and I recently finished the first stand-alone paper to come from this research line and are presenting our findings at the Western Economic Association's annual conference tomorrow. We look forward to receiving feedback from other researchers.
Next up is applying similar research methods to the NBA and building on Mike McCann's work. I recently finished compiling a data set that includes every first and second round NBA draft pick since 1975. In the case of women's tennis, we found the 1995 age rule to have very little impact on the labor market outcomes of players subject to the rule. I have yet to run the regressions for the NBA data, but look forward to seeing if there is any evidence to disprove the null hypothesis.
Monday, June 28, 2010
So he decided to call it a career.
In doing so, Wallace will walk away from more than $12 million in guaranteed salary over the next two years [note: there is a possibility, though not a certainty, that the Celtics will give Wallace a portion of the salary in a buyout]. With his playing career over, it seems unlikely he'll ever come to close to earning that kind of salary doing anything else.
Why would somebody walk away from so much money when there's probably no source of income that will ever come close to being a substitute? Hasn't Wallace seen the startling research by Sports Illustrated's Pablo Torre showing that "Within five years of retirement, an estimated 60% of former NBA players are broke"?
To be sure, Wallace could have bucked saving/spending trends of not only pro athletes but Americans in general. As has been reported for many years, we are really, really bad at saving money, but maybe Wallace proved to be an exception. It's also certainly possible that Wallace's agent, Bill Strickland (who's about to lose his 3 or 4% commission on the $12 million), and financial advisers gave him good advice during the 14 years he played and, according to Basketball Reference, earned $150 million in NBA salary.
Still, I find it surprising, and on some level admirable, that someone would walk away from such a huge amount of guaranteed salary. That's especially the case when you think about how easy it would have been for Wallace to get the money. He could have simply gone through the motions for a couple of years or lingered on the injured reserve while collecting paychecks that exceed what most earn in a year (NBA players are paid twice a month and only during the season).
Not sure how many people in Wallace's position would do the same thing, but I can't imagine it's a high percentage. I guess this shows that it's not always about the money.
Update: as Brian mentions in the comment section, former big league reliever Keith Foulke did a similar thing a few years ago, but it didn't work out so well, at least not money-wise. In January 2007, a then 34-year-old Foulke passed a physical with the Cleveland Indians and signed a guaranteed 1-year, $5 million contract with the team. A few weeks later, however, he decided to retire because of recurring elbow problems, thereby walking away from the $5 million. He would never pitch for the Indians. But a year later, Foulke changed his mind, unretired, and signed a 1-year, $700,000 contract with the Oakland A's. That was his last big league contract. Hopefully Wallace isn't making the same mistake here.
Sunday, June 27, 2010
The article also includes an interesting discussion regarding the effect that a possible appearance by Boise State in this season's BCS National Championship Game would have on a potential antitrust suit against the BCS. While other strong antitrust claims against the BCS would continue to exist, having a university from a non-BCS conference appear in the national title game would nevertheless weaken such a case, enabling the BCS to argue that its system is truly open to all Football Bowl Subdivision universities, regardless of conference affiliation. This is one of the reasons why I believe that claims based on price-fixing and unequal revenue distribution provide a stronger basis for an antitrust challenge to the BCS, shifting the focus of the case from one of access to the financial disparities inherent in the current system.
The Idaho Statesmen article is available here. For more on potential antitrust claims against the BCS, see my article Antitrust & The Bowl Championship Series.
Friday, June 25, 2010
Sports Illustrated's Jon Wertheim and I are collaborating on a law review article about the case (working draft will be posted on SSRN soon) and have been following its developments for the past several years. The case won't receive much attention vis-a-vis the Supreme Court's recent American Needle decision, but is important for a number of reasons. Most notably, it represents the most exhaustive discussion of the authority of an individual sport league to make rules, set schedules, determine player eligibility, etc.
The impetus for the case was the ATP's 2007 move to re-work its tournament calendar. Plaintiff's tournament was demoted as part of the schedule change. Rather than accept its new status as a lower tier tournament, Deutscher Tennis Bund filed suit alleging that the ATP and several individually-named members of the board of directors violated Section 1 and 2 of the Sherman Antitrust Act (allegations also included breach of fiduciary duty claims against the board members). After extensive discovery, the case went to trial in Delaware. At trial, both parties used expert witnesses. The District Court judge ruled for the ATP as a matter of law in connection with some of the plaintiff's claims. A jury verdict was returned for the ATP on the remaining claims.
Some observations and links about the 45 page Third Circuit decision are below:
1. Oral argument was revealing. Audio is available here (scroll down to #08-4123). Rob MacGill of Barnes & Thornburg argued on behalf of plaintiff. Brad Ruskin of Proskauer Rose represented the ATP during oral arguments. One of the three judges (I can't tell which one on audio) asked Brad Ruskin if the yet-to-be decided American Needle decision would be controlling. Listen to his insightful reply.
2. The ATP's succinct press release is here.
3. Judge Scirica wrote for a unanimous three-judge panel in favor of the ATP. He opened by making an important distinction that is probably only known by fairly hard-core tennis fans - the ATP does not control the four Grand Slam tournaments (Australian Open, Roland Garros, Wimbledon, and the US Open). Such tournaments (as well as the Davis Cup and minor league "Futures" tournaments) are under the International Tennis Federation's (ITF) jurisdiction. In contrast, the ATP oversees all remaining elite-level professional men's tournaments. Examples include the big US tournaments every year in Indian Wells, Key Biscayne, and Cincy as well as smaller US-based tournaments such as Atlanta, San Jose, and Washington, DC.
4. Judge Scirica's opinion followed a fairly standard analytical framework. Seminal cases such as Standard Oil, Continental TV, Dagher, and Nat'l Soc. Prof. Eng. were all cited. This part of the opinion reminded me of American Needle.
5. Today's opinion, in contrast to American Needle, cited many more sports-related cases (many in footnotes). The most treatment was devoted to the Seventh Circuit's Chicago Bulls decision and Justice Stevens's SCOTUS NCAA vs. University of Oklahoma opinion from 1984. Of course, American Needle was also cited a number of times. With that said, Deutscher Tennis Bund vs. ATP World Tour was by no means a simple exercise of applying American Needle to the facts of the case.
6. Citing NCAA vs. Univ. of Oklahoma, Judge Scirica stated: "the per se rule does not apply for a tennis tour, like other sports leagues, where 'horizontal restraints on competition are essential if the product is to be available at all.'"
7. Judge Scirica dismissed the possibility of "quick look" treatment too. In sum, upon defendant's showing of procompetitive benefits stemming from the challenged conduct, the "quick look" possibility is "extinguished."
8. The most pointed analysis of American Needle was on pages 28 (for a discussion of the single entity issue) and 29 (reiterating that "substance, not form" controls the antitrust inquiry). There was nothing that extended, distinguished, or refuted American Needle.
9. At the end of Footnote 15, the judge concluded: "the District Court correctly instructed the jury to evaluate the alleged restraints under the full rule of reason." The jury did this, and found in favor of the ATP. On appeal, the Third Circuit found the plaintiff's failure to prove a relevant market for professional tennis player services fatal. Antitrust plaintiffs challenging aspects of sport industry governance would be well-served to read this footnote.
10. In addition to suing the ATP, the plaintiffs also sued a number of directors on the ATP's board. Judge Scirica concluded the decision with a lengthy discussion of the business judgment rule and found that defendant board members did not breach their fiduciary duty to plaintiffs.
Today's tennis case differs markedly from American Needle. The former resulted in a jury verdict that was validated on appeal. The latter is now on remand, with an upcoming trial on the merits if the parties don't settle. Tennis also differs from football. I was surprised the Deutscher Tennis Bund decision didn't spend more time highlighting the differences. In our upcoming article, Jon and I spend a substantial amount of time making the argument that such differences are important...and in some cases should be dispositive.
I will post more moving forward. With the case being released on a Friday during Wimbledon (see Howard Wasserman's post below about the longest match in the history of professional tennis), most mainstream news outlets probably won't write about the case until next week. When such articles do appear, I will link to them in an update.
UPDATE - Randall Chase of the Associated Press wrote a piece for USA Today that includes some quotes from the attorneys involved.
Wednesday, June 23, 2010
Wimbledon (like the French and Australian Opens, but unlike the U.S. Open) does not allow for fifth-set tiebreakers, so the set continues until someone wins two straight games (with a break of service). This rule has provided some great historical moments--the 8-6 fifth set between Bjorn Borg and John McEnroe in the 1980 Men's Finals or the 16-14 fifth set between Roger Federer and Andy Roddick in last year's Final. But it also creates ridiculous moments such as this one. Neither player is close to breaking the other's serve (Isner has 98 aces, Mahut 95), so no one is close to winning two straight games. Actually, this match may highlight why many believe grass tennis is obsolete, at least for men--serves are just too overwhelming and breaks are extremely rare. Both players actually are playing well--lots of winners, few unforced errors. But that is because their serves are so dominant that service points tend to be short, with that dominance exaggerated by the speedy grass surface.
So here is my rule-based quesion: How likely is it that Wimbledon will move to a final-set tiebreaker in the wake of this match? And should the change be made? This illustrates the problem of case-based rulemaking, which is the norm in U.S. (and probably most) legal cultures.
Legal rules generally are made within a particular factual setting. This is obvious where courts make rules (common law or constitutional) in the course of resolving an actual case or controversy. But it also is true for legislative bodies making prospective rules of general applicability, because they usually act with a particular event, case, or situation in mind. The problem with case-based decisionmaking (as Fred Schauer and Richard Zeckhauser argue) is that the case which leads to the rule often is an outlier, an extreme, unusual, unrepresentative case; thus the legal rule that results, enacted in response to those unique outlier facts, may not be the optimal rule for the ordinary situation. This is particularly true for legislative rulemaking, because legislators tend to act, often too quickly and often in something of a moral panic, in response to, and to take care of, the latest high-interest, notorious story that captures media and public attention, even if that story is unusual and far from any norm, and even if the new rule has unintended consequences.
So what should the powers that be at Wimbledon do? Obviously, the Isner-Mahut match (or anything even close) is unprecedented. Should they change the rules to prevent something like it from happening again, since the chances of that have to be slim? We arguably don't need the rule change to keep this case from arising again; a match such as this is so unusual that it never will happen again on its own. So should a rulemaker make a change to prevent a highly unlikely repeat of this unrepresentative match, at the (unintended) loss of future memorable matches (a la Borg-McEnroe) that do not devolve into the current absurdity?
Note that this does not necessarily speak to the merits of the switch to a fifth-set tiebreaker; maybe that is the appropriate rule (certainly the U.S. Open folks believe it to be), especially in light of the modern grass game. But case-based rulemaking is not only problematic because it may produce the wrong rule, but also because it may produce the right rule for the wrong reasons. In other words, Wimbledon officials must be conscious of all the policy issues and implications in deciding whether a final-set tiebreaker is the "best" rule as a whole. The arguments for change must be more than preventing a notorious-but-unlikely case such as Isner-Mahut from happening again. If that is all they have--if there are not other good reasons for adopting a new rule--they should not do it.
Tuesday, June 22, 2010
But grades aside, the end of the story captures what is really important in getting a job:
James Wagner, the hiring partner at the 29-lawyer Boston firm Conn Kavanaugh Rosenthal Peisch & Ford, said he hadn’t noticed any grade inflation in the last couple of years. But he has noticed something else new from applicants.
“About a third to half of the résumés I’ve been getting now profess a love of the Red Sox,” he chuckles, wondering if the students had been coached by their schools.
“But I’ll bet that if you compared résumés for those same candidates,” he says, “when they apply to New York firms they love the Yankees, and for Chicago firms, it’s the Cubs.”
Monday, June 21, 2010
Both Attorney General Shurtleff and Senator Hatch have previously accused the BCS of violating federal antitrust law by granting preferential treatment to universities in the traditionally stronger "BCS Conferences," at the expense of teams from the historically less competitive "non-BCS Conferences." Both men became critical of the BCS following perceived snubs over the years to their home state schools, the University of Utah and Brigham Young University.
For his part, Senator Hatch has stated that he will continue his campaign against the BCS despite Utah's recent admittance into a BCS Conference. Indeed, Senator Hatch - a BYU alumnus - has a strong basis to argue that the BCS continues to violate antitrust law.
In a new paper, Antitrust & The Bowl Championship Series, I argue that the BCS remains quite vulnerable to attack under federal antitrust law. In particular, although recent modifications to the BCS have increased the access for non-BCS Conference teams, the BCS can still be challenged on several grounds.
First, I assert that the BCS can be attacked as an illicit group boycott, insofar as it distributes revenue unequally and without justification, to the detriment of universities in the non-BCS Conferences. For example, following the 2009-10 season, the BCS distributed at least $18 million in revenues to each of the six BCS Conferences, while the five non-BCS Conferences received a total of only $24 million, despite two non-BCS schools (Boise State and TCU) having been selected to participate in BCS bowl games. Thus, despite increased access to BCS games for the non-BCS schools, the non-BCS Conferences still face significant differential treatment with respect to the financial payouts accompanying an appearance in a BCS bowl game.
Second, and perhaps more significantly, the BCS can also be attacked as an illegal price fixing scheme, due to the fact that it enables formerly independent, competing entities (the participating BCS Conferences and bowl games) to collectively determine the amount of revenue to be distributed to BCS participants.
Given this continued antitrust vulnerability, combined with the fact that Senator Hatch seems intent to continue pushing for reform, and it appears that the legality of the BCS under federal antitrust law is an issue that will not be going away anytime soon.
DRI Panel: Licenses, Monopolies and the NFL: An Examination of the Supreme Court's Decision in American Needle v. NFL and Its Effects in Sports,
A webcast of the event is available. For DRI members, the webcast costs $150; for non-members, it's $180.
Here are more details:
On May 24, 2010, the Supreme Court decided 9-0 against the National Football League (NFL) in American Needle v. NFL, one of the most important legal decisions in U.S. sports.
The case stems from the NFL's decision to enter into an exclusive, long-term apparel license with Reebok and not to renew its license with American Needle. For antitrust counsel, the decision is important because the Court found that the NFL did not constitute a single entity under the Sherman Act because "the NFL teams do not possess either the unitary decision-making quality or the single aggregation of economic power characteristic of independent action." This decision also affects intellectual property counsel who need to direct clients to tread lightly with exclusive licensing deals. Labor or employment lawyers should take note of the potential effects that such decisions have on collective bargaining negotiations, notably the NFL's negotiations with its players for play beginning in 2011.
Who Should AttendAttorneys representing product manufacturers and sports entitiesIntellectual property attorneysAntitrust counselLabor and employment lawyersAny counsel with an interest in professional sports and the legal issues involved with the same
What You Will LearnBackground on the American Needle caseLicensing basics for merchandising and products, including the benefits and drawbacks for exclusive licensesCurrent state of antitrust lawHow the courts treat professional sports leaguesCollective bargaining basics as related to professional sports leagues
Sunday, June 20, 2010
Unlike their counterparts in other major pro sports, baseball teams cannot trade draft picks or even trade players for a year after they were drafted, like the Charlotte Hornets did shortly after picking Bryant or the Colts did with Elway. The rule is supposed to keep struggling teams from frittering away their ticket out of the cellar, but concerns that it might be hurting those it's designed to help have many asking whether it's time to finally lift the ban.This topic regularly comes up on sports law panels that delve into baseball, and it did when Jimmy moderated a baseball and law panel at Harvard Law School earlier this year.
* * *
But while football, basketball and hockey teams can package players and picks to land a coveted star, move up in the draft order or even compensate another team for poaching its coach, baseball limits the market to current players and prospects so losing teams can't sell off their future along with their present.
* * *
"There are a lot of positives that could come from it, and then there's some potential danger that I know traditionally Major League Baseball has been worried about. It could hurt (teams) in the long run, because they'd be tempted to help themselves now, or they wouldn't want to spend the money on the draft picks so they trade them. It's a balancing act." [quoting Red Sox GM Theo Epstein]
* * *
While I understand MLB's collective interest in seeing that weaker teams rebuild through the draft, it seems odd that MLB, of all leagues, would take a protective view of weaker teams when it has neither a salary cap nor a salary floor, has a wide distribution of teams' payrolls (according to CBS Sports, this season the Yankees have a $206 million payroll while the Pirates have a $36 million payroll; in the NFL, in comparison, the Raiders have a $152 million payroll while the Chiefs have an $84 million payroll according to Altius -- though note Rick Karcher's research showing that salary disparities are not necessarily meaningful for MLB teams' on-field performance), and because there is no slotting of salaries for MLB draft picks, some prospective and very talented draft picks' salary demands are too high for small market teams, so those players drop in the draft to big market, successful teams like the Yankees, Red Sox, and a few others which can meet those players' salary demands. In addition, if MLB truly wanted weaker teams to rebuild, why wouldn't it (with assent from the MLBPA) institute a global draft instead of letting non U.S./non-Canadian players become eligible to sign with any team as unrestricted free agents at age 16?
Although the current MLB-MLBPA CBA won't expire until December 11, 2011, and although there are probably more significant issues on the table than the trading of draft picks, perhaps the topic will come up when negotiations heat up in the months ahead. I suspect some MLB teams will push for a rookie wage scale similar to that used in the NBA Draft, where drafted players' salaries are slotted based on where in the draft a player is selected, though a rookie wage scale would probably be opposed vehemently by influential agents (e.g., Scott Boras) who tend to represent top MLB draft picks. Agents, of course, aren't members of a bargaining unit to a CBA, but they nevertheless tend to influence players' views. Still, whether there is the same passion for letting teams trade draft picks remains to be seen.
Saturday, June 19, 2010
“Social Justice in Intercollegiate Sport:
A Critical Examination of Racialized, Gendered and Disabled Bodies”
The Fourth Annual Scholarly Colloquium on Intercollegiate Athletics
In Conjunction with the NCAA Annual Convention
January 12-13, 2011
San Antonio, Texas
Keynote speakers include: Harry Edwards [Professor Emeritus of Sociology, UC Berkeley], Susan Cahn [Professor of History, SUNY Buffalo], Ted Fay, [Professor of Sport Management, Center for Sport in Society, SUNY-Cortland], Allen Sack [Professor, Institute for Sports Management, University of New Haven].
Other invited speakers include: Pat Griffin [Professor Emerita in Social Justice Education, UMass Amherst], Louis Harrison [Professor, College of Education, UTexas Austin], Albert Mosley [Professor of Philosophy, Smith College], Ellen Staurowsky [Professor of Sport Management & Media, Ithaca College], Terry Todd [Lecturer, College of Education, UTexas Austin], David Wiggins [Professor & Director, School of Recreation, Health & Tourism, George Mason University].
Papers for the refereed papers session should deal closely with issues related to the conference theme of “Social Justice in Intercollegiate Sport.” They may relate to sport in general or to intercollegiate athletics specifically, as long as they are clearly connected to the conference theme of “Social Justice in Intercollegiate Sports.” Papers may highlight scholarship from the sciences, social sciences, economics, humanities, or any number of professional fields that are either directly or indirectly related to intercollegiate athletics. To be considered for the refereed paper sessions, authors most submit a 500-600 word abstract of the proposed paper via e-mail to David Wiggins, firstname.lastname@example.org, and copy the abstract submission to Ketra Armstrong, email@example.com.
The deadline for proposal submission is October 1, 2010. Individuals will be notified of the results of the review process in early November 2010.
Friday, June 18, 2010
Tiger Woods' loss of endorsement income cost his management company IMG $4.6 million in fees, according to a confidential document reviewed by CNBC.To read the rest, click here.
The document provides the most comprehensive financial look into the powerful, but private, sports management company in its 50-year history.
IMG, like other agencies, charges its clients between 15 and 20 percent on endorsement deals it secures, so if it lost $4.6 million on Tiger's endorsements, it would mean the golfer himself lost in between $23 million and $30 million in deals last year.
Monday, June 14, 2010
Watching the Celtics-Lakers game last night, the topic of instant replay came up. Some background: NBA referees can use instant replay in certain situations, as detailed here:
Replay wasn't available for a crucial play last night. With 1:05 left to play and the Celtics up 87-82, Ray Allen shot what appeared to be an air ball as the shot clock was about to expire. After Celtics' center Kendrick Perkins grabbed the rebound, the whistle was blown and it looked like the Lakers -- who seemed to have the momentum at that point -- would get the ball back.
The NBA instituted instant replay before the start of the 2002-03 season, originally to review period-ending baskets and fouls, and a number of triggers have since been added.
Replay is used for officials to confirm a flagrant foul warranted an ejection, or that players left the bench during an altercation. Referees can now go to the monitor to see if shots or fouls came beyond the 3-point arc, whether they beat the shot clock, or if there was a clock malfunction.
The system was expanded this season to out of bounds possessions in the 2 minutes of regulation or overtime.
Instead, the refs huddled together and determined, without instant replay but with plenty of advocacy from the Celtics and Lakers' respective benches and perhaps the Boston crowd, that the ball actually glanced the rim. The Celtics got the ball back with a fresh 24 seconds on the shot clock and would go on to win the game.
While it's not clear what would have happened had the Lakers gotten the ball back, there seems to be a real possibility that they would have won the game. Kobe was completely dominant in the second half, despite pretty tight defense by Tony Allen, Ray Allen, Paul Pierce, and anyone else the Celtics tried in vain to stop him. From the Lakers' perspective, going back to LA with a 3-2 advantage in the series would seem completely different from going back down 2-3. The call on whether the ball hit the rim, in other words, may have changed the outcome of the series.
One of the difficulties of adopting instant replay is figuring out when it should be used and when it shouldn't, and how to justify the lines of demarcation. If instant replay is allowable for determining whether someone got a shot off before the 24 second clock expired -- which it is under NBA rules -- why isn't it okay to use it to see if a ball hit the rim?
Sunday, June 13, 2010
The ball is back in the government's court with three options: 1) Try to get en banc re-hearing in the Ninth Circuit, an option that might work, given the high-profile nature of the case; 2) Seek cert before the Supreme Court, incredibly unlikely because the Court does not take cases simply to correct one-off errors; or 3) Go back to the district court and determine whether it can win without the evidence. My guess is prosecutors believe the evidence is significant, which is why they appealed a pre-trial evidentiary ruling. What is not clear is whether they did this because the evidence is so central and essential to the case that they cannot prove the case without it or whether they appealed out of an excess of caution, recognizing that perjury prosecutions are hard to win in the first place, especially against a well-funded and well-represented defendant such as Bonds, thus they need all the evidence they can muster. I don't know the answer to that strategic question.
What do we do with this information as we consider the increasing use of replay? Should the players' views receive some consideration and even a certain deference? After all, they have the most directly and immediately on the line with a blown call (despite what fans of the team may believe). My speculation, by the way, is that players accept umpire mistakes because they believe that, on average, the disadvantages from bad calls even out over the course of a long season or even series. In other words, just as many bad calls will go for us as against us, so why change.
An interesting side issue is the effect on, and role of, college basketball. Basketball clearly is in the same boat as football in terms of being essentially professional, but it does not drive the realignment bus and does not take in or spend nearly as much money. College basketball always has at least made a pretense (the loathed Billy Packer notwithstanding) to there being a place at the table for the smaller conferences. But does anyone want to be a basketball-centric conference when football (and its dollars) drives all this?
The school I feel bad for in this is Kansas, which has gotten shafted. It has the top basketball program in the country right now, but not a top football program, so no one wants it (because it also does not add a major television market). Because football and television markets drive the process, Kansas is not attractive to any of of the major conferences (Big ___, SEC, or Pac-___)*, so it is going to end up in the Mountain West, an inferior (at least right now) conference, with hopes and dreams of joining the big boys but having a ways to go. Instead of being a top team in what has been in some recent years the top basketball conference, Kansas risks becoming like Gonzaga or Butler (or, in football, its likely new conference rival, Boise State)--a big fish in a small pond, ripping through an inferior league, but a question mark nationally (unless it takes on some brutal non-conference games).
Any chance that basketball-first schools (the traditional Big East and ACC schools, perhaps) will give up the football money and try to do something to protect their unique basketball-centered interests? And how will that affect the perception of which basketball conferences are "big-time" for NCAA Tournament purposes. Recall that one scenario (not happening yet, but still possible) had the Big Ten raiding some Big East football schools (Pitt, Rutgers, Syracuse) and the SEC raiding some ACC football schools (Miami, Florida State, Virginia Tech).** But that would leave the ACC and Big East as second-tier football conferences, although still great basketball conferences. Is there room for such a thing anymore? Is there room for great basketball-first schools anymore?
* By law, conferences no longer may use numbers in conference names. We are academic institutions--if we form the Pac-10 or Big Ten, there should be only ten teams in each.
** If not swallowing the ACC whole, which now seems unlikely.
Friday, June 11, 2010
Some members of Congress are already talking about holding hearings to question and possibly block certain conference changes. The legal power of the federal government to stop changes in conferences is another matter. While they impact the economics (and admissions and fundraising efforts) of colleges, conferences are fundamentally voluntary associations of competing schools for scheduling and promoting games. And they are not etched in stone; their rosters have changed over the years, with schools joining and leaving conferences from time-to-time. The choice of competing schools to collude in a conference (and to not allow other competing schools to join and reap the economic benefits of conference membership) could in theory be seen as problematic with Section 1 of the Sherman Act, which prohibits concerted action that unreasonably restrains trade, but it's likely a difficult argument to make (as is discussed by Joseph Morton in the Omaha World-Herald). But when coupled with the topic of the BCS and automatic bids -- a topic of interest to the Justice Department -- perhaps we'll still some hearings on conferences.
Anyway, what would be an ideal conference arrangement of schools? My Vermont Law School colleague and good friend Jason Czarnezki, who played football at the University of Chicago in the late 90s, offers these excellent thoughts in his post College Football & Big Ten Expansion:
The Big Ten wants to expand from 11 teams to 12-16 teams. The Big Ten last expanded in 1991 when Penn State joined. Football, and the revenue that comes with it, drives expansion. The Penn State addition proved very successful. From the beginning I have argued that Big Ten expansion from this point is driven by three schools that the Big Ten would like to add:
(1) Notre Dame
Notre Name was ironically denied admission to the Big Ten at the turn of the century, and now wants to remain an independent. ND will join the Big Ten only when the Big East dies; though joining the Big Ten, and the accompanying Association of American Universities, would greatly enhance its academic profile.
The Big Ten seems to have landed Nebraska and its storied football tradition. My guess is that the Big Ten still wants Texas. The question is whether continued bad blood between Nebraska and Texas will allow this to happen, and whether Texas can join the Big Ten without Texas A&M (something that Texas politics might forbid). My guess is that this can only occur if Texas A&M goes to the SEC as some reports suggest.
Jim Delaney, commissioner of the Big Ten, is in my guess hoping for a dream scenario where the Big 12 (Colorado, for the Pac-10, and Nebraska, for the Big Ten, have already left) and Big East fall apart, and Texas A&M goes to the SEC. Then the Big Ten will have 14 teams with Notre Dame, Nebraska, and Texas, to go along with national football powers Ohio State, Penn State, and Michigan. The revenue would pour in at that point for cable’s Big Ten Network. I question whether the Big Ten can pull this off but I think it’s their dream scenario.
The divisions, setting up a conference championship game, would look like this:
West Division: Texas, Nebraska, Iowa, Minnesota, Wisconsin, Illinois, Northwestern
East Division: Notre Dame, Indiana, Purdue, Michigan, Ohio State, Penn State, Michigan State
Such a strong football conference might also argue to have two automatic BCS bowl qualifiers.
Thursday, June 10, 2010
For the full article, please go to: http://www.8countnews.com/news/125/ARTICLE/2633/2010-06-10.html
Monday, June 7, 2010
Boston College's Professional Sports Counseling Panel: Helping Student-Athletes with the Decision to turn Pro
Here's an excerpt:
* * *
Boston College won’t be mistaken for Southern Cal or Florida as an NFL pipeline. But in player development, the Eagles feel they have a chance to set the standard.To read the rest, click here.
Warren Zola , an assistant dean in the Carroll School of Management at BC, helped organize the school’s Professional Sports Counseling Panel five years ago and has served as chairman, a non-paying position, since then.
The idea? Give student-athletes with professional potential in all sports the training to prepare for the next level. Some schools have coaches or officials for specific sports to handle these matters. But Zola says that, to his knowledge, BC is the only one to have an overarching group separate from the individual programs.
“It may be cliché, but it feels like we’re doing something good, helping young folks make good decisions, and this is a way for me to stay connected to athletics,’’ said Zola, who also teaches sports business and sports law classes.
Zola graduated from Tulane’s law school in 1992, and wanting to stay in athletics but not work as an agent, he got a job working in Athletic Operations at BC. With the blessing of then-football coach Tom Coughlin, he was soon helping Pete Kendall, Tom Nalen, Glenn Foley, and Mike Mamula prepare for the NFL.
When the panel launched in 2005, Zola’s goals were to make sure athletes knew the rules and could navigate the process while preserving their eligibility, and to educate them on picking an agent.
Zola has helped big-timers like Matt Ryan, B.J. Raji, and Jared Dudley, but also sees his presence as vital to the rookie free agent or female basketball player looking to find a contract in Europe.
“Matt Ryan will have no problem getting the right agent,’’ he said. “It’s the others where you have to make sure they understand what’s critical.’’* * *
Thursday, June 3, 2010
I am trying to figure out why this would not have the commissioner reviewing all sorts of calls post hoc (although Mitch Berman's suggestion could limit this problem). I just am not exorcised about the "correctness" issue, at least where sports are concerned. I prefer finality and redoing all sorts of things once the game ends.
For those of you outside Chicago and Philadelphia who didn’t realize the NHL Stanley Cup finals are being played magnificently, compare what happened in the last game almost at the same time as the goings on in Detroit. The Flyers shot the puck on net and a Blackhawk flicked it out before the officials could see if the puck had crossed the line. Play continued for ninety seconds until an icing call. Then after a look at the replay, the officials declared the goal counted. The ninety seconds were put back on the clock. Even if the Blackhawks had scored a goal during that time, it would have been erased.
Which result is more just, to use the legal term for the purposes of this Blog?
As someone who is Flyered Up, I was thrilled that the right call was made in the hockey game. Playoff hockey is such a brutal game and the players seem to give more of themselves in that sport than in any other, well past the point of exhaustion, performing feats on ice that on solid ground would be remarkable.
But baseball is the most human of games. Players don’t commit penalties or make turnovers, they commit errors. The best hitters fail two thirds of the time. It is a sport that reflects the wonder of human frailty. As the biblical texts teach us, even the angels were jealous of humans because their free will allowed them to make wrong decisions, which made the right ones so much richer.
The way Gallarraga and Joyce have conducted themselves since the one hitter shows how perfect human beings, and baseball, can be.
This game does not change my mind about replay generally and specifically in baseball. I still am not convinced that replay will across-the-board increase accuracy. And, in any event, I continue to believe that the efficiency and workability concerns outweigh any increased accuracy. And I just am not willing to give up on the human side of it. If that makes me old-fashioned or tradition-bound, so be it. In any event, I will hide behind the argument from Fred Schauer and Richard Zeckhauser about the danger to making rules (or, in this case, changing my mind about policy) based on a specific, unique case, which is necessarily skewing as to the larger problem. This is a classic example of that--one vivid story likely will drive major changes to replay.
Instead, let me talk about the question (mentioned in the WSJ post) of whether Bud Selig should step in to undo the call and award Galarraga a perfect game, to which I say no. The commissioner does not (and I believe should not) exercise power to overturn a particular call in a particular game and there is no instance of the commissioner (or a league president) ever overturning a particular call. The commissioner/league president review power always has been limited to matters of interpretation of the rule (such as the Pine Tar Game in 1983), not its application. And, as Ted Frank notes, MLB will not overturn an erroneous interpretation if it would not affect the outcome. [Update: Selig announced he will not reverse the call, but will look into the umpiring system and, oh no, expanded use of replay.]
There also is a danger to allowing this one unique case to over-determine the question of post-hoc revision of calls. Is it so different that the blown call occurred on the 27th out rather than the 26th? How about on the 1st out--Suppose (as I propose in a comment on Mike's post) the blown call had occurred with the lead-off hitter, Galarraga then picked him off and proceeded to retire the next 26 batters. Or suppose that Batter # 27 took what replays all showed unquestionably show (and the plate umpire later admits) was strike 3 but was called a ball, then got a base hit on the very next pitch--should the commissioner be able to go back and say the batter actually struck out? None of these situations are, it seems to me, different than what we actually have--there would have been a perfect game but for the blown call.
Finally, it is interesting that this has become the lightning rod for replay, because unlike other historically "wrong" calls (see Denkinger, Don) this one did not affect the outcome of the game, but only a historical footnote.
By the way, I would have been in favor of the umpires huddling on the play and overruling the call at the time. I am not sure if the rules allow it in that situation, but it seems appropriate there.
Further Update: Mitch Berman of Texas (a co-panelist on my "Judges as Umpires panel who is working on a book about sports/law links) makes the following interesting point:
[I]t’s rare that a call can be corrected without having either to make contestable counterfactual judgments or to replay the game forward from the point of correction. The latter, of course, is what had to happen in the pine tar game. But in this most recent fiasco, the miscall can be corrected and everything all wrapped up without further ado.Indeed, I’m tempted by the following proposal: allow the C’mish to reverse mistaken factual determinations when (1) the call was clearly erroneous; and (2) correction would require neither counterfactual judgment nor re-play. Those two conditions are likely to obtain very rarely. But when they do, why not correct what’s correctable?
Wednesday, June 2, 2010
On Wednesday night, with just one out to go in the game, Tigers pitcher Armando Galarraga was wrongly denied a perfect game on a very bad call by umpire Jim Joyce. Here's Tom Verducci's account for SI.com:
Joyce happened to be working first base Wednesday night in Detroit for the game between the Tigers and the Indians when infamy did not just tap him on the shoulder, it slapped him upside the head. Tigers pitcher Armando Galarraga had just thrown the 21st perfect game in baseball history, and a ridiculous third perfecto inside of four weeks, when first baseman Miguel Cabrera threw to him covering first base on a grounder by Jason Donald for the 27th out. Cabrera celebrated. Only one thing was missing.
Jim Joyce called Donald safe.
There is no polite way to say this: Joyce blew the call. Galarraga caught the ball in plenty of time, even if it wedged precariously in the webbing of his glove, and scraped the base, even if inelegantly, with his foot. Immortal fame was his.
Jim Joyce took it away. He called Donald safe. No sign that Galarraga juggled the ball. No sign that he missed the base. Just safe. Pure and simple safe.
Umpires miss calls. It happens. Nobody feels worse when an umpire misses a call than the umpire himself. They are proud men who strive for a 100 percent success rate and are bound to be disappointed. Upon seeing a replay, Joyce was crushed.
"I just cost that kid a perfect game," the umpired admitted afterward. "I thought he beat the throw. I was convinced he beat the throw, until I saw the replay."
Here are four sources that begin to address that issue:
- First, in an editorial published in this week's Sports Business Journal, I discuss the impact of the American Needle ruling on labor relations, ticket pricing, and the way that investors will likely structure new professional sports leagues (here).
- Second, in an interview with Ripten Magazine, I discuss the impact of the American Needle ruling on the football video game market and the NFL's exclusive licensing deal with EA Sports (here).
- Third, in traditional law review format, University of Iowa's esteemed Ben V. and Dorothy Willie Professor of Law Herbert J. Hovenkamp discusses the impact of American Needle on the credit card, hospital, and real estate industries (here).
- Finally, over on the Legal Talk Network, attorneys and co-hosts J. Craig Williams and Bob Ambrogi interview both Michael McCann and me about the effects of the American Needle case, via podcast (here).