The Sports Law Professor

The Coming Federalization of Anti-Doping Policy

2009-11-06T19:37:00.000-08:00

Just this past week, a Congressional subcommittee held a hearing on the recent Starcaps decision out of the Eighth Circuit. (I wrote about that decision here, and not all that favorably.) To refresh your recollection, the court decision allowed two NFL players, both named Williams and both playing defensive tackle for the Minnesota Vikings, to assert claims for damages against the NFL in state court. The players argued that the NFL's anti-doping policy violates Minnesota state law governing workplace drug testing. The NFL's position was that, even if the NFL policy and state law conflict, state law claims are preempted by federally protected collectively bargained agreements. The "Starcaps" court said they weren't. So we're left with the prospect of two NFL players having violated the NFL anti-doping policy with apparent impunity. We're left with two NFL players (or one team of players) subject to one (more lenient) set of rules, and everyone else subject to the NFL's more punitive policy. One league; different rules.

Pretty clearly, the NFL and interested members of Congress are not pleased. Roger Goodell testified at the hearing, asking the Congress to intervene by reasserting the supremacy of federal law and federally protected collectively bargained agreements over state law. The Players Association's executive director, DeMaurice Smith, along with most of the other witnesses at the hearing, advised the Congress to delay action on the grounds that the Minnesota court could still see things the NFL's way, or that the Minnesota state legislature might amend its law to accommodate the NFL's policy.

I can't speak to the politics in Minnesota's state house. But I can offer an opinion on the legal case: nothing's going to change. No good result for the NFL can possibly come out of the state court proceeding. If the Eighth Circuit's decision stands, the drug-testing policy of the NFL and other sports leagues has been balkanized. It's a done deal; the NFL policy is as good as dead. By waiting, the Congress is only inviting a crisis. And the crisis will not produce the modest intervention prescribed by Goodell and another witness at the hearing; instead it will result in the Congress' sweeping takeover of anti-doping policies for all sports. The union, which should have asked the Congress to protect the collective bargaining process, will instead find its players subject to a set of rules much harsher than ever before.

1. As it relates the the NFL anti-doping policy, the Minnesota state trial that looms in March 2010 is irrelevant. Indeed, it's on that precise ground (that the state case and the NFL CBA are not relevant to each other, thus rendering the state case not preempted) that the federal court allowed the state case to proceed. So how can the state case uphold or reaffirm the NFL policy? The state court will have nothing to say about the NFL policy. I think the suggestion made to the Subcommittee that things can somehow turn out all right in Minnesota is unsupportable. The Minnesota court could, in theory, read Minnesota's law to mirror the current NFL policy, but this suggestion (also made at the hearing) is very dubious. Minnesota's law prohibits any suspension for the first positive test; the NFL policy mandates a four-game suspension without pay. How can those opposites be reconciled? Remember, a Minnesota state trial judge already granted the players a preliminary injunction on the grounds that the players would "likely succeed" on their claims that the NFL's policy violates Minnesota law. These players will win. As far as the NFL policy is concerned, of course, they already have.

2. Regardless of any interpretation of state law by a state court, what's on the books is a decision by a federal appellate court that holds that players may assert state-created rights to avoid being subject to the league's anti-doping policy. Nothing in the opinion limits this principle of law to the NFL; the same reasoning should apply to the policies of other professional sports leagues. Indeed, nothing limits it to the pros; some courts have held that NCAA scholarship athletes comprise "employees" for state law purposes, so perhaps even amateurs will be able to challenge drug suspensions, should they live in a state that has a law in disagreement with the testing protocols of the governing body of the sport.

3. We're not just talking of a few states that have, like Minnesota, workplace drug testing laws more protective of worker rights than the NFL policy. Nearly all states are home to a professional team in some sport. Potentially, the state law of any of these states could form the basis for nullification of a drug suspension. These state laws could also change, as of course they are subject to legislative amendment and judicial interpretation. How effective would a sport league's anti-doping policy be if it were limited by the "most protective" state law? State laws vary a lot on this subject. Some require all tests be based on suspicion; some limit sanctions; some place limits on the means by which urine samples are taken. Writing a policy that complied with all applicable state laws would be difficult.

4. More importantly, the resulting "state-law-proof" policy might not serve the needs of professional sports. State laws on workplace conduct are written with typical workers in mind. In that setting, careful proscription of testing procedures and significant allowances for rehabilitation of the worker make sense, given the typically long employment relationship and given the substantial investments worker and employers make in each other. In the NFL, however, careers are short and pay and public salience is high. Players are well-compensated for their agreement to submit themselves to more rigorous testing procedures; the public attention the league earns makes the teams interested in providing that compensation to present the public a clean image. The short career suggests that swift punishment, not interminable rehabilitation, provides the preferable response to the first positive test. Finally, the need for competitive balance on the playing field requires that players who have helped themselves to an unfair pharmacological advantage need to be removed from the field, not sent to mid-week counseling meetings.

5. Soon enough we'll see other athletes go through the door opened by the Vikings' defensive tackles, challenging drug suspensions in state courts. Indeed, in the wake of the Starcaps case, what competent lawyer for a player would fail to assert a state law claim? Remember, because this claim is not based on the CBA, the players union has no say in the matter, as it would ordinarily in an arbitration claim. The player need only retain a private lawyer for hire to file suit and needs nobody's permission to bring that suit. State courts and state laws will soon define the permissible boundaries for doping policy in major sports. It won't take much of this for the federal Congress to intervene.

6. And when the Congress intervenes, I predict it will do so in a forceful way. Uninterested in the legal complexities of federal law preemption, lacking faith in the collective bargaining process, and perhaps responding to a public outcry, the Congress will proceed to adopt national drug-testing standards for all professional and amateur sports. Most likely these standards will mirror the very strict and most intrusive rules of the World Anti-Doping Association. No one's going to be very happy if this comes to pass.

7. The unions and the Congress could have avoided this path had the unions and the other panelists agreed with the recommendation that Congress intervene currently, but in a modest, surgical way. The Congress was advised at the hearing to adopt a simple measure: amend Section 301 of the Labor Management Relations Act to preempt any state claim that would conflict with any drug-testing policy incorporated as part of a valid collective bargaining agreement. This small measure would have in a stroke of the President's pen taken all the sting out of the Starcaps case and completely insulated sports CBA's from the vagaries of state law. It would also have upheld the significance of the collective bargaining process in sports. It would have maintained the union's relevance by giving the players a voice in establishing doping policy. Instead, they will one day find themselves subject to doping policies set by WADA: a group of unseen people in far away countries, an organization over which American athletes and American sports leagues will have no influence.

The Starcaps Case and the Impending NFL Labor Fight

2009-09-21T15:35:00.000-07:00

The recurring drama of the National Football League season is off to a great start, except for the part where my beloved Patriots took it on the chin last week against the hated Jets. Looming over all the optimism of a new season is the much-anticipated labor crisis that threatens a return to the strike-filled era of the late part of the last century, an era in which sports unions flexed their young muscles against entrenched management interests. All football fans are hoping for an interruption-free continuation of America's most popular spectator sport.

For the most part, the job of the courts is to stay on the sidelines during labor negotiations. Their limited role is to police unfair labor practices and keep the parties negotiating. On occasion, in the course of a negotiation or immediately afterwards, courts are also called on to affix the scope of the non-statutory labor exemption. The importance of this exemption cannot be overstated. The non-statutory labor exemption basically means this: it's "non-statutory" (that is, a court made it up); and it's a "labor exemption": not an exemption from federal or state labor laws, but an exemption that exempts "labor" from the federal anti-trust law. That's right. Labor unions and management interests can together reach agreements and otherwise act in concert in ways that violate federal antitrust law, and no one can do anything about it. A private agreement to break the law renders the law invalid.

Which brings to mind the recent decision of the United States Court of Appeals for the Eighth Circuit in the matter of the Minnesota Vikings' defensive tackles, Kevin and Pat Williams, against the NFL in the "Starcaps" dispute. The appellate court upheld the trial judge's decision to subject the NFL's steroid-testing policy to the dictates of Minnesota's drug testing workplace act.

As I said, courts don't often get much involved in labor negotiations. But they can sure mess them up.

1. The issues are a bit too complex to submit to easy summary, but at the nub of the case is whether or not federal law "preempts" state law. Kevin and Pat Williams tested positive for a weight-loss substance, apparently a common masking agent to hide steroid use. It appears the players ingested the substance by taking "Starcaps," an unregulated dietary supplement. The players were suspended by the commissioner's office (acting as arbitrator of the validity of the test) in keeping with the NFL's Steroid Policy, which policy was negotiated between the NFL and the players' union. The NFL's drug testing procedures, however, may not comply with Minnesota's state law that sets the parameters for workplace drug testing schemes in Minnesota. So the issue is this: may the NFL and its players agree to a policy that violates state law, just like they have agreed to many policies (such as the NFL draft) that violate federal law?

2. There's a lot more going on in this case than just who gets to play defensive tackle for the Minnesota Vikings. On the one hand, you might wonder why any two people or parties should ever be at liberty to agree to anything that violates the law. After all, if the State of Minnesota has decided that no Minnesota worker in any context should be drug-tested without the careful adherence to stated procedures and opportunities for appeal, why should NFL workers be treated any differently? The point of Minnesota's law is prevent anyone from agreeing to anything less, no matter what pressures the employer may bring to bear. Aren't those pressures every bit as substantial in the NFL, with its short player careers and the constant threat of contract termination?

3. On the other hand, the NFL is undoubtedly trying to run a business on a national scale. The NFL rightly argues that, if this decision stands, players in each state could theoretically be subject to differing rules insofar as steroid testing goes. The next version of the collective bargaining agreement will have to be written in terms of the "lowest common denominator": the most pro-worker state statute will by necessity form the bottom floor for any national testing plan, assuming the NFL and NFLPA want a single, national standard for all its players. This result requires more than a big legal research project: the supposed effectiveness of the NFL's current policy could be significantly undercut if testing conditions and player sanctions were limited by Minnesota law. (The Minnesota statute, for example, precludes an employee from discharge without first being relegated to treatment; the NFL policy provides for strict liability for all positive tests and requires an immediate four-game suspension for first-time offenders.)

4. The Eighth Circuit court was a little flippant in its dismissal of the NFL's arguments. Quoting from another court's opinion, the Eighth Circuit stated that "[federal labor law] did not give employers and unions the power to displace any state regulatory law they found inconvenient." The federal Congress did not "wish to give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation." (This quote came from a Supreme Court decision.) This is unconvincing. Private agreements override laws all the time. Private agreements determine legal rights. I own my laptop computer: if you borrow it without my agreement, you're a thief; with my agreement, you're a borrower. What is the nonstatutory labor exemption but a private agreement to waive federal law as it applies to the subjects of that agreement? The law is not in place to preclude private agreements; it's there as a "default rule," to supply a fictitious agreement where none was reached explicitly.

5. The better approach for the court would have been to ask whether federal law should empower these particular parties to form an agreement to override contradictory state law provisions. It should. These are well-represented antagonists who are very fully aware of their rights and interests and are both willing to make horse trades on all aspects of employment, including drug-testing protocols and procedures. Agreeing to a relatively intrusive steroid testing program might serve the interests of both the NFL and the NFLPA, given the league's salience in the public mind and its appeal to America's youth.

6. A decision that significantly handicaps the latitude of permissible agreements that the NFL and the NFLPA may strike creates one additional impediment to a successful bargaining resolution. The Eighth Circuit's opinion, remember, in effect prohibits the negotiators from striking any deal on a steroid policy that violates Minnesota law. It will render a successful negotiation more problematic. And any future change in law, in Minnesota or elsewhere, could also render a negotiated resolution immediately obsolete. Courts tend to defer to collectively bargained agreements in resolving labor disputes for good reason. Judicial pronouncements on the terms of labor usually do little good.

Final Word On Delaware Lottery Decision

2009-09-02T16:31:00.000-07:00

By the title of this entry I don't mean my final word. I'm referring to the very recent decision of the U.S. Court of Appeals for the Third Circuit, which decision most likely comprises the final word of the federal judiciary on Delaware's planned sports lottery. Here's the link to the court's opinion.

I've complained previously about the unnecessary haste with which this court decided to resolve this important legal issue. If this decision stands, as most likely it will, then it represents the permanent resolution of Delaware's status under the federal PASPA statute. It's an important issue, one of salience to Delaware's ability to take advantage of its unique status under federal law. That Delaware's federal exemption from PASPA should have been conclusively resolved, and resolved in a way apparently contrary to the spirit of the law and to Delaware's expressed sovereign interest in raising state revenue, is problematic. That this resolution was done in the hasty manner normally reserved for cases involving the potential loss of constitutional rights (abortion, free speeech) is even more troubling. No threat to life or liberty necessitated this action.

The court's opinion justified the rush to judgment as follows: "When a party seeks injunctive relief, the stakes are high, time is of the essence, and a straightforward legal question is properly presented to us, prudence dictates that we answer that question with dispatch." This statement may sound convincing, but it seriously misstates the law. It is simply not true that "when a party seeks injunctive relief" that that fact alone means the "stakes are high" and "time is of the essence." The plaintiff (here the professional sports leagues) has to prove that time is of the essence and quick judicial action is needed. The leagues tried to prove that the stakes were high and time was of the essence before the trial judge in this case, and failed to convince that judge to issue the injunction. No new proof of the need for haste was offered (or could be) to the appellate court; indeed, the appellate court specifically refused to address the issue of the potential of "irreparable harm" should the injunction stopping Delaware not be granted.

The fact of the matter was that there was no hurry. The NFL and the NCAA in particular, whose games are already subject to widespread and much-discussed betting action, would likely suffer no harm at all (never mind "irreparable" harm) should Delaware have been allowed to go forward with its lottery scheme. To imply that there would be harm and that Delaware's lottery plan required emergency judicial intervention seems doubtful, if not incorrect.

What we're left with is the claim that, because in the court's view no factual issues remained for resolution and because the legal issue was "straightforward," then the appellate court should proceed to conclusively resolve Delaware's statutory authority. This is not the law that the Supreme Court decision from which this authority is derived, the 1986 Thornburgh decision (about which I've written previously), expressly established. The Thornburgh decision did allow for final appellate resolution of a case on an emergency basis. But in a majority opinion (that collected only four votes) Thornburgh made clear that such an intervention "deviated from the stated norm" and that an appellate court should "ordinarily limit its review to abuse of discretion," and not to a resolution on the merits. The Supreme Court made plain that such intervention was justified in a "constitutional case" where "the unconstitutionality of the particular state action is clear." The Court also noted in Thornburgh that the appellate process in that particular case was benefitted by "an unusually complete factual and legal presentation from which to address the important constitutional issues at stake."

Obviously, no issue of constitutional rights, important or otherwise, was presented by Delaware's plan to expand its state lottery. No "unusually complete factual and legal presentation" was available, particularly considering that the entire case was litigated in a matter of weeks. Prudence did not "dictate" that the appellate court act with dispatch; it dictated the opposite. The claim that the stakes were high militated in favor of holding a trial on the merits, not rushing forward without one.

On the merits of the federal law, the appellate court limited Delaware to offering a lottery game "to the extent" it offered a game in 1976. Thus Delaware may offer parlay bets involving at least three games, and only on NFL games, because that is "the extent" to which Delaware offered bets in 1976. However, the court continued, Delaware's new game may differ from the 1976 game in "certain aspects," such as at what betting locations the game is offered. In short, the court held that Delaware may introduce changes to the game "as long as they do not effectuate a substantive change from the scheme that was conducted" in 1976.

This reasoning begs the question. The whole issue in the case was whether or not shifting from a three-game bet to a single game bet constitutes a "substantive change" from the 1976 game. For the court to tell Delaware that it may make non-substantive changes but not substantive changes tells Delaware nothing new. And when the appellate court holds, as a matter of law, that a change from a three-game bet to a single-game bet is a "substantive change," then the appellate court is resolving a factual issue, and is doing so without the benefit of a trial record.

Here's the factual issue: Is a three-game bet all that different (and different enough to be "substantive") from a single-game bet? The outcome of both bets involves a lot of luck; certainly the three-game bet involves more luck, but most sports gamblers would say that even winning a single-game bet against a point spread involves a lot of luck as well. Is the limited skill involved in a sports bet all that more prevalent in a single-game bet as opposed to a parlay? Is the greater degree of skill in a single-game bet enough of a difference to make the bet "substantively" different than that made in 1976? That's the issue the appeal presented. The issue presented cannot logically supply the rationale for the court's decision. Yet in the Third Circuit it did.

A trial on this point would have been very illuminating. Experts would have testified as to the mathematical differences between parlays and single-game bets; a trial judge would have marshaled and assessed the evidence in creating a record for appeal. Instead, the appellate court resolved the appeal on the merits because the court decided that there were no factual issues left in the case.

Assuming factual issues away doesn't make them go away, not really.

Delaware's Next Step

2009-08-25T10:36:00.001-07:00

I have only a few minutes this morning, but with the phone ringing and emails chirping I want to try to offer a few comments on the dark day in Delaware.

1. The decision of the appellate court to convert the preliminary injunction appeal into a decision on the merits is problematic. But it's not unprecedented. Federal courts may do this, as the Supreme Court allowed in the 1986 Thornburgh decision involving a statute limiting abortion. The court can rule on the merits "when the facts are established or of no controlling relevance." It's a controversial decision and should be used only in "unusual cases," as the Court admonished in the Thornburgh opinion.

2. It appears from reports in the popular media that Delaware's counsel conceded that the facts were established, thus obviating the need for a trial. This concession, if true, befuddles me. (Granted, I get confused easily.) Why would Delaware's counsel essentially tee the ball up for the appellate court to rule on the merits? Especially when it appeared, from the (reported) tenor of the hearing, that this particular panel of judges was strongly inclined to rule in favor of the sports leagues? Really, without a trial record (there's never been a trial), how could the appellate court know that the "facts are established" unless the appellate counsel conceded as much?

3. What facts could be developed at a full trial that are relevant to Delaware's statutory exemption from the federal PASPA statute? First, what bet exactly will Delaware offer? I understand that Delaware's plans on this point are incomplete at this time. If they are incomplete, then it is possible that Delaware could devise a game that fit within the PASPA exception. Second, what game exactly did Delaware offer back in the mid-1970's? Delaware offered several games, and changed one in mid-season. All of these games involved NFL bets. Which 1975 bet defines the lottery game that Delaware may now offer? One game involved parley bets requiring picking winners of at least four contests and also picking the point spread for the game. Is that game all that Delaware may offer today? Third, a trial court would take evidence, in the form of expert opinion, as to whether a single-game bet was different in some meaningful, qualitative or quantitative way from a parlay bet. Does the game involve different outcomes, or put the counterparties to the bet in a significantly different position than they were in 1975?

4. The most significant problem with the appellate court's apparent decision on the merits is that the briefing on which it ruled was incomplete. The only element of a preliminary injunction that has anything to do with the legal merits of the case is that the court is to determine if the plaintiff is "likely to prevail" at trial. Lawyers briefing this issue will of course discuss the law as it relates to this element. But they will also spend much of their brief and much of their oral argument discussing the other issues relevant to a preliminary injunction, most notably the possibility of irreparable harm to the plaintiff and the chance of undue hardship on the defendant. In other words, the key legal issue, here the issue about the scope of Delaware's exception under the federal statute, gets only partial consideration in a preliminary, emergency action. The briefing and argument on this legal point are nowhere as substantial as they would be on an appeal devoted to that issue exclusively.

5. The federal statute at issue is a complicated one, and the legislative history that surrounds it is fairly voluminous. Many statements can be found in that history that support Delaware's position; many also can be found that favor the position of the leagues. To resolve this complex legal issue on the basis of incomplete briefs and no factual development, and to rule that Delaware is permanently stopped from enjoying its exception under PASPA in the way that Delaware interprets that exception, strikes me as unnecessary judicial lawmaking. This isn't an abortion case: no salient legal rights or human lives might be affected by the court's ruling. There was no need for the court to take this hasty action, based on a spontaneous and probably ill-advised concession by Delaware's counsel during oral arguments.

I hope Delaware has the wherewithal to fight this decision, either by direct appeal or by a collateral attack on the federal statute.

Not the End in Delaware

2009-08-24T12:33:00.000-07:00

Today the U.S. Court of Appeals ruled on a motion for a preliminary injunction brought by the NFL and other sports leagues against the state of Delaware over its plan to offer a sports lottery. The injunction is a preliminary injunction, not a permanent one. It prevents Delaware from offering the sports betting games, for now, until a full trial adjudication can consider the legality of Delaware's plan at a more reasonable pace. So, as a legal matter, Delaware is no worse off today than it was before today; it had no sports bet lottery, and for the near future, it will continue with none. It may take a year to resolve the issue more dispositively, and if Delaware wins, it will be able to offer the games in time for the 2010 NFL season, if not sooner.

Even as a temporary measure, the court's ruling today seems problematic. Like many judges when given a chance to intervene in a legal dispute, the court of appeals failed to give adequate attention to the elements of the process that are designed to limit emergency judicial action to the most severe of cases. For a federal court to intervene so strongly at this stage, and most notably against the wishes of a sovereign state, threatens the presumption of latitude that underlies the delicate federal-state balance. And it's also a bad way to make law.

1. No harm has happened yet. Delaware has not offered a sports bet. At this stage, a court may intervene only if the plaintiff, in this case the professional sports leagues, will suffer a harm from the delay in adjudication that is "irreparable." In other words, the leagues must prove (1) that they will suffer a harm from Delaware's lottery, (2) that that harm will happen between now and (let's say) one year from now (at which time final adjudication would likely be completed), and (3) that that particular harm will be "irreparable," either by the granting of a permanent injunction or by an award of money damages. On all counts the leagues should have lost.

2. First, are the leagues harmed at all by Delaware's plan? Gambling on sports, especially on NFL games, the Super Bowl, and the NCAA's March Madness, is a very common legal and illegal practice that produces an industry that totals billions of dollars in transactions. Sports gambling has been going on for years, apparently without blemish to the leagues' reputations (and at considerable enhancement of their fan interest). How would the leagues be harmed by one more state (joining Nevada) offering a bet? Delaware's plan was to offer the game by contracting with privately owned "racinos" who would create a casino-based sports book: to a bettor, the game would appear indistinguishable from that offered by a sports book in Las Vegas. The fact that the state owned the game means only that Delaware would be the residual claimant on any profits, instead of collecting monies through a tax. How would the leagues be harmed?

3. Look at the leagues' arguments. They claimed they would be harmed in two ways: through fans doubting the integrity of close penalty calls by game officials, and by children being led to gamble by the fact that their sports heroes were playing a game on which gambling was conducted. Again, how would the advent of a comparatively small Delaware game bring about these concerns? Would a fan yelling about a call be more likely to think the officials bribed than the fan thinks already? Remember, millions of dollars rides on game outcomes today, without Delaware's modest entry. As for the children, they know that professional athletes play sports for money. (Indeed, I suspect that's precisely why so many children aspire to be professional athletes.) How would knowing that others also enjoy sports in part along a financial dimension corrupt them, or to be precise, corrupt them more than they might be corrupted already?

4. Second, the leagues must prove they would be harmed not by the fact of sports betting, but by the judicial delay in reaching a more deliberate result. Would one season of NFL sports betting in Delaware harm the leagues? In other words, if Delaware offered its game, and then after the season a federal court rules that Delaware's game violates state or federal law and thus must be stopped, the leagues must prove that this temporary game caused the leagues some harm that they otherwise would have avoided. Most likely Delaware's nascent sports game would likely be small. Delaware and its contracted agents would be unlikely to make large investments in a game that could be subsequently ruled illegal; plus Delaware would have to spend some time ironing out the processes for the game, such as how it should obtain the best point spreads, how to market the game, how to share in profits, and the like. It seems doubtful that a temporary, small game could harm the giant leagues irreparably.

5. Third and finally, the leagues have to prove that the harm from this temporary game would be irreparable by a later injunction or money damages. Assuming Delaware offered the game for one NFL season, then the NFL upon winning permanent relief would be right back where it is now, with widespread betting on its games but with the tiny game in Delaware ruled illegal. Surely a permanent injunction, even coupled with some payment or disgorgement by Delaware of its profits from the game, would fully protect all the NFL's interests. The fact that the NFL is now partnering with (non-sports) lotteries in other states suggests that the NFL's interest is as much monetary as moral anyway.

6. The fact that the law limits judicial intervention to cases where the plaintiff can establish the threat of "irreparable harm" suggests that courts should prevent defendants from planned conduct only in the rare case. So too does another key element in a motion for a preliminary injunction, specifically that the court must determine that the preliminary injunction, if granted, would not cause "undue hardship" on the defendant. Delaware and its contracted parties, I would presume, have already spent some time and money in developing this game. More importantly, if it is later determined that Delaware may legally offer this game, but was prevented from doing so by a wrongfully granted injunction, then Delaware would have lost one year's worth of profits from its lottery game. Estimates of the value of this game vary. But Delaware could recover its lost profits from the NFL and the other plaintiff leagues. Do the leagues realize they could be on the hook for millions of dollars in damages should Delaware turn out to be acting lawfully? The trial judge, in implementing the injunction, should require the leagues to post a substantial bond payable to the state of Delaware should it turn out the leagues, in their haste for a quick judicial victory, have led the courts down the wrong path. Make the leagues put their money where their mouth is.

7. The Circuit Court's decision did not decide the case "on the merits." We don't know any more now than we did before about whether or not Delaware's planned lottery game is legal under federal and state law. In ruling on a motion for a preliminary injunction, the court is only to decide on whether or not the plaintiff is "likely to prevail." This is at best an offhand, brief look at the law. Unfortunately, given the contemporary willingness of courts to issue emergency relief, it is not uncommon that this brief prediction as to the likelihood of success becomes the de facto law of the land. Often once defendants lose at the preliminary stage, they give up trying to pursue their legal rights. If Delaware stops now and does not seek a ruling on the merits after a full trial, then today's appellate ruling on a preliminary injunction will become permanent federal law.

The emergency processes for temporary injunctions were not designed to produce statements of law. That they were used as such today by the NFL and the other leagues only exacerbates a trend of using the threat of legal action, rather than the rule of law itself, to influence others to behave in preferable ways. It is the rule of law, and the rule only, that should limit Delaware's options on raising revenue from its citizens.

The (Un)Importance of American Needle

2009-07-29T20:23:00.000-07:00

To most everyone's surprise, the American Needle litigation has found its way to the U.S. Supreme Court. When that court grants cert it's usually to reverse, but because of the strange posture of this petition (both sides sought the grant), the usual rules don't apply.

Plenty of commentators have reviewed the appeal and discussed its prospects before the high court. What has surprised me is the discussion of the decision's potential ramifications. Judging from the weight of expert opinion, if the NFL prevails, the players will suffer complete reversals of the wage and work condition gains from the past several decades. For a particularly notable example, see this article by ESPN's Lester Munson. Under the understated title, "Antitrust Case Could Be Armageddon," Munson paints a picture of owners gone wild: players bound to their teams for life, baseball games barred from cable broadcast, extravagantly expensive game mementos, and players retaliating with widespread strikes. It's a bleak picture; one can only hope Judge Sotomayor comes to the court's rescue, much like her court (thought it) did during the baseball strikes decades ago.

I'm more than a little dubious about these conclusions. I doubt the Supreme Court will use the American Needle litigation to make the pronouncement about the nature of the NFL's business and its relation to antitrust law that the NFL wants it to. Even if the Court obliges the NFL, I doubt that any of the predictions Munson and other commentators make will come true. In short, there will always be an NFL, regardless of what the Court writes.

1. First of all, I thought it was the common consensus that professional athletes are overpaid? Doesn't that mean owners are underpaid? It's a zero-sum game. If we want athletes to make less money, then we have to empower the owners to cut back salaries.

2. But, one might ask, would empowering the owners (should the NFL win the Needle appeal) necessarily come at the expense of the players? In other words, wouldn't the fans also get ripped off, as Munson suggests? I don't see this happening. I assume that every sports franchise is in a competitive market for fans. Each team competes against all the other entertainments and leisure activities which fans might consume in lieu of spectator sports. If the market is competitive, or even approximately competitive, then if the price of spectating is raised the teams will lose profits, no matter if those profits eventually accrue to the owners or the players.

3. Should we, as spectators, care much about who wins the battle between the players and the owners? As long as players command a sufficient salary to keep them from leaving the field, and owners make enough to maintain their investments, why should fans care? Maybe we as fans prefer the current era of comparative player liberty (free agency, arbitration rights, limitations on draft rights), but a lot of anecdotal evidence suggests fans like when players stay on the home team.

4. What may underlie concern about the American Needle case is a preference for the labor side. That's fine, as far as it goes, but really shouldn't be conflated with a concern over the well-being of fans. And even on the labor issue, I doubt that a pro-owner decision in American Needle would do much to alter the balance of power. Undoubtedly the NFL players have had a great deal of historical success attacking the NFL's labor practices under antitrust law. But contemporary courts have adopted a more modern view of business practices. They understand that most significant markets are national in scope, if not international, and that some degree of cooperative behavior among firms is necessary to produce cost-savings and other efficiencies to allow firms to compete. Undoubtedly the NFL today competes in a national market. It will adopt whatever rules on player movement and salary rates that best position it to compete for the nation's attention. In other words . . .

5. Assume the NFL wins and the owners were allowed complete collusion. To put the case more strongly, assume that the NFL were purchased by a single owner and run as a single business. Would the owner prohibit all player movement, despite the attention the league earns from the draft, trades, and free agency? Would the owner eliminate terminable contracts? It strikes me that the NFL already has all the rules in place it wants.

6. Would player salaries diminish? Few employees take salary diminishment lying down. The NFL's salary structure could change, with more wages being devoted to the star and less to the star's complements. Look for quarterbacks to make more; left tackles less. One historic effect of unions is to redistribute salary among themselves. Have the unions also increased the total amount of salary distributed to players? Yes, if we assume that the collective bargain extracts a larger amount of money devoted to labor than would a series of individual negotiations without the constraint of salary slotting and the implicit sharing demanded by unionization. That's a large and very contestable assumption. In any event, it's unlikely the union or the collective bargaining agreement will go away.

7. I'm not saying that the case is insignificant; if the court resolves the case on any but the narrowest grounds, it would give the NFL a significant victory and clear away any antitrust worries for the league when it operates outside of the collective bargaining agreement. But the real balance of power is struck in the CBA; the union is endemically weak because the short-term nature of the NFL player career makes it so. Nothing the court says about antitrust law will change that.

8. As for professional leagues other than the NFL, the newer ones (see Major League Soccer) have from their inception organized in order to appear a "single entity" for antitrust purposes. The older leagues don't have the luxury of starting from scratch. But what would stop the owners in a league from selling their shares to a common company and then "redistributing" owner-like authority back to the former franchisees? It might appear a cynical attempt to avoid antitrust problems, but how would this device be any different from MLS? Recall a few years ago when some wealthy person put in a bid for the entire NHL at a very substantial price? He argued that if he bought the whole thing he could achieve efficiencies that are lost in a league with individual, non-cooperating owners. In other words, along many dimensions it makes business sense for the leagues to act as a single entity. If the courts decide they can't act as a single entity, then they can reorganize to achieve it anyway.

Will Selig Reconsider Rose?

2009-07-28T11:36:00.000-07:00

A few months ago I was given a chance to speak at the annual meeting of the Baseball Historical and Sociological Conference, an esteemed group of baseball historians and other researchers. I used my time to argue a favorite point in my agenda, specifically that Major League Baseball should allow Pete Rose to be admitted into the Hall of Fame. I hoped to kindle in these influential baseball scholars a small spark that might set off some reconsideration of Rose's case. I'm sure I failed. Nonetheless, since it appears that Commissioner Selig is about to reconsider the matter, I wanted to disseminate my small contribution to a wider audience. I put the paper on SSRN.

Here's a link to download the paper.

The paper will be published in print form in the periodical, "Nine: A Journal of Baseball History and Culture," in the fall.

NFL v. Delaware: Round II

2009-07-24T11:18:00.000-07:00

All of the major professional sports leagues plus the NCAA today filed suit in federal court in Delaware. The "Leagues" as I'll call them are suing the state of Delaware (actually suing the governor, to avoid 11th Amendment complications) for its plan to offer sports wagers as part of its lottery as soon as this fall, just in time for that bettors' paradise known more commonly as the National Football League. (I received a copy of the complaint courtesy of Chad Millman of ESPN.) The complaint seeks preliminary and permanent injunctive relief on two theories: (1) that Delaware's plan to offer sports wagers offends the federal Professional and Amateur Sports Protection Act (PASPA) and (2) that the proposed wagering scheme violates Delaware's constitution.

Delaware is one of the few states that is explicitly authorized by PASPA to offer lottery games based on sports contests. PASPA "grandfathered" Delaware (and Oregon, Nevada and New Jersey) when it created the general federal prohibition on sports bets on the grounds that those states had at the time more or less existent sports lotteries. (I've written about challenges to PASPA here.) The plaintiff Leagues are not challenging Delaware's grandfathered status; indeed the Complaint implicitly concedes that Delaware could offer lottery games based on the outcomes of sports contests. What is new and different about Delaware's plan, and what has drawn the Leagues' ire, is that Delaware plans to offer "lotteries" based on the outcome of single games, either by picking the winner (a sides bet) or picking the over/under on the total score (a totals bet). Back in the mid-1970's, Delaware had offered only "parleys" in its brief foray into sports lotteries. A parley requires the bettor to pick the winners of several games in order to win a single bet.

This litigation could prove enormously important for the world of sports and the world of gambling (two worlds I tend to inhabit). My first-blush thoughts:

1. The Leagues' federal PASPA claim rests on a rather ambiguous phrase in the statute. In the section relevant to Delaware's grandfather status, PASPA states that its prohibitions are not to apply to a "lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a State or other governmental entity, to the extent that the scheme was conducted by that State or other governmental entity at any time during the period beginning January 1, 1976, and ending August 31, 1990." The Leagues state that the phrase "to the extent" essentially limits the grandfathered states to offering (roughly) the same games that were actually offered at the time prior to or surrounding PASPA's passage. In other words, these states weren't grandfathered; rather, the particular games in those states were grandfathered.

2. This interpretation of PASPA, although certainly plausible, is nonetheless contestable, on three grounds. First, the phrase "to the extent" as a grammatical matter seems to refer to and is part of the clause describing the time period concerning which putatively any state could have qualified for the grandfather exception. States could be grandfathered to the extent (meaning "if," they offered games during that time period. The phrase does not seem to modify or qualify the types of games that are listed in the first clause; indeed, if it were meant as a delimitation on the first clause, it would be a clumsy way to do it. (Admittedly it's a clumsy phrase no matter how you view it.) Second, the only states to which this entire clause could apply are Oregon and Delaware. No other state had offered such games in the relevant time period, and New Jersey and Nevada have their own grandfather clauses in PASPA. Oregon and Delaware at the time offered only parley wagers. If the PASPA legislature wanted to limit Oregon and Delaware to parley wagers only, then why did the statute list "lottery, sweepstakes, or other betting, gambling, or wagering schemes" to describe the scope of Oregon's and Delaware's exception? Either these words are surplusage or they describe the exception. If it's the latter, then it seems Delaware has a pretty good argument to make.

3. Third, even assuming the Leagues are correct and that PASPA's "to the extent" limits Delaware to the betting games it offered back in the 1970's, the question is whether or not parley bets are really all that different from single-game bets. Here is, quite literally, the multi-million dollar question. If Delaware has permission to offer bets on the winner of three games, may it also offer bets on the winner of one game?

4. Before I suggest how the court will answer, we should look briefly at the Leagues' state law claim because it raises a similar question. The issue here is one seen in lots of gaming cases throughout U.S. history. Basically, Delaware (like most states) has a clause in its state constitution (original version) that prohibits gambling in all its forms. Like most states, Delaware sometime back in its history amended its constitution to permit state-run lotteries. Like most states, after the passage of the "lottery exception," Delaware's state legislature commenced to push the limits of the exception by offering to the public all kinds of betting games that bear scant resemblance to the common conception of a traditional state lottery, with its weekly drawings of winning numbers and such. Although the judicial outcomes are decidedly a mixed bag, for the most part the states succeeded. A "lottery," courts have held, doesn't have to include spinning balls and winning numbers and smiling television hosts. A lottery is a game where the player provides (1) consideration for a (2) chance at a (3) prize. Many games apart from the traditional lottery fit this legal definition. As did Delaware's old sports parley game. You see, we've been down this road before, in Round I.

5. In 1977, the NFL sued Delaware (I suspect the NFL has it in for Delaware; Wilmington will not be awarded a football franchise anytime soon) on the grounds that Delaware's parley sports lottery did not fit within the Delaware's constitutional lottery exception. The key issue in that case, which will be the key issue in the new litigation, is whether or not the sports bet is at bottom a "game of chance." Remember, to constitute a lottery, the game must be one of chance. (The other two elements, consideration and prize, will undoubtedly be conceded.) In the 1977 decision, Delaware won. The federal court decided that in a parley bet, although some measure of skill was obviously involved, chance was the "dominant factor" in deciding the outcome of the bet. Picking the winner (against the spread) of three or more contests was predominately a manner of chance, not skill.

[6. Interestingly, before signing the new scheme into law, Delaware's governor recently asked the Delaware Supreme Court for an advisory opinion on whether or not a single-game bet fell outside this "game of chance" rule from the 1977 federal court decision. Helpfully, the supreme court conceded that this was a good question that it would presently decline to answer. Now, with this new federal lawsuit, the federal judge might well decide to certify this exact question, which involves state law, right back to the very same state supreme court. Usually certified questions are treated more seriously than requests for advisory opinions from the attorney general, so this time the Delaware court will make a decision.]

7. Not afraid of tough questions (and with a little less riding on my decision), I'll attempt an answer. I think the Leagues will win the state law claim and that Delaware will win the federal law claim. A split decision. The champions will have to fight again in Round III.

8. On the federal PASPA claim, I think the Leagues will be hard-pressed to convince a judge to read the ambiguous "to the extent" language as constituting a complete, permanent ban on Delaware's offering any sports wager other than the parley games it offered in 1975. This reading seems to put too much weight on words that do not make the ban explicit, particularly when explicitness would have been so easy to accomplish as a linguistic matter. (Of course, the federal Congress could, in response to such a decision, amend PASPA to make this ban more explicit, and presumably if it did so the Leagues might win in the next battle, Round III.)

9. On the state constitutional law claim, here I think the smart money will be put on the Leagues. Delaware won this fight in Round I (the 1977 litigation), with the court finding that the parley bet comprised a game of chance and therefore fit within Delaware's lottery exception. But if some sports bets are indeed games of chance, then logically some other sports bets must not fit the bill. Some bets must be games of skill. Is winning a bet on a single game predominately a matter of luck or skill? (Depends on if you're talking to the winner or loser.) Certainly winning this single-game bet involves more skill than does a parley bet. Trying to pick winners against point spreads for three or more contests is the quitessential crap shoot. (Actually, I'd have a much better chance shooting craps.) For a single game, fewer breaks have to fall in one direction. Reduced opportunities for luck necessarily means enhanced opportunities for skill.

10. Of course, just like the Leagues could induce the Congress to amend PASPA should Delaware prevail on the federal claim, so could Delaware induce its voters to amend the state constitution should the Leagues prevail on the state law claim. And we'd be off to Round III.

May Lawyers Play Golf?

2009-07-21T20:21:00.000-07:00

I'll stipulate up front that I'm not the most socially adept person and make frequent blunders. (Luckily for me, I'm often accompanied by loved ones who are quick to point out my errors.) My question today has to do with the mix of sports, law and culture. Specifically, is it ever "wrong" in some social or moral sense to use the rules of a sport in one's favor? Can it be "unsporting" or socially inept or something along those lines for an athlete to apply the rules of the game in a manner that might be surprising, even apparently wrong, yet upon close reading is permitted? I have written on this theme before (here's the link), and I remain bewildered by the claim that there exists some concept of a sport apart from the rules by which the sport is played.

Let me explain my latest confusion. A few days ago I was doing parental duty spectating at a junior golf tournament. On a par four, one of the players in my son's group shanked his approach shot dead right into the woods; he then dropped a provisional ball from the original spot and struck the provisional ball to within a few feet of the hole. Spectators are allowed to assist players in finding lost balls, something I customarily do. But in this case I hung back, and waited to see if the player wanted to look for his original ball or instead proceed to play his provisional. (If he were able to play his provisional he would surely score a bogey.) In a misjudgment, the player trudged into the woods, and I followed. A tournament rules official (this was a serious tournament) was already in there, poking around for the ball. A few minutes later he found the ball, but it was unplayable, stuck in a bush. No plausible place to drop it was nearby or back, and so the only choice for the golfer was to replay the original stroke and see if he could duplicate the excellent provisional shot. Before he did so, the player asked the rules official if he could forget about the first ball and go play the provisional. The official replied in the negative. He said that with the original ball found the provisional had to be abandoned and that to play the provisional ball would be to play the wrong ball, with attendant penalty. Glumly, the junior golfer dropped the original ball back at the original spot and replayed the shot, albeit into a bad lie in a sand trap. He ended up with a triple bogey. He also lost the tournament by a single stroke.

Tough luck for the golfer? Certainly. But also a questionable call by the official. To be clear, the rules of golf provide exactly what the official described. He got it right. But the rules just as clearly provide for exactly the opposite conclusion. So he got it wrong. Which rule should apply? Why not allow the golfer the benefit of the rule that militates in his favor? When I happened to mention all of this to the rules official after the round was over, even showing him the relevant rule in the book (my son keeps a copy in his bag; he's a born lawyer) that provides for the conclusion opposite the one he declared on the course , the official became quite agitated. He said that I was ignoring the spirit of the game and was arguing for bad sportsmanship and that we (adults) need to set a better example for these young men and women.

But how could I be right on the rules yet a bad example at the same time? If the rules provide for differing outcomes, why is one rule (the official's punitive one) morally superior to the other? Could someone please explain this to me so I don't set a bad example for my children?

Here's the rule the official cited, and the one I did. See who you think is both correct and right.

1. Rule27(c) gets to the heart of the matter. It provides that if a provisional ball has been played in case the original ball is lost, once the original ball has been determined not to be lost the player must abandon the provisional ball and play the original. This is undoubtedly the rule the official had in mind when he directed the junior golfer to play the original and, if he chose, proceed under the unplayable ball rule to drop the ball back at the original spot. The rule appears clear. But lawyers are paid to create ambiguity. So keep reading. (And yes, this is why people hate lawyers.)

2. Notice that the paragraph above never said that a ball thought to be lost was "found." It said the ball thought to be lost was determined not to be lost. Rule 27 itself contains the same circumlocution, stating that the putative lost ball is (in fact) "not lost." Why not just say the ball has been "found"? Because for the rules of golf, a lost ball doesn't mean a ball no one can find. A ball can be "lost" even if the golfer can see it right in front of him, right in the middle of the fairway.

3. Section II of the Rules of Golf set forth definitions, and "lost ball" means, as everyone knows, a ball the player cannot find within five minutes of beginning a search. But a ball is also "lost" where "the player has made a stroke at a provisional ball from the place where the original ball is likely to be or from a point nearer the hole than that place." That's the definition, as much a definition of "lost ball" as a ball not found in five minutes. This other, alternative definition means that if the player, upon finding his original ball stuck in a bush, proceeds forward to a point nearer the hole and taps in his provisional ball, then at that moment the original ball back in that bush has now become a "lost ball." Don't believe me? Back to Rule 27, under the heading "When Provisional Ball Becomes Ball in Play": "The player may play a provisional ball until he reaches the place where the original ball is likely to be. If he makes a stroke with the provisional ball from the place where the original ball is likely to be or from a point nearer the hole than that place, the original ball is lost and the provisional ball becomes the ball in play under penalty of stroke and distance."

4. So the rules of golf, in literally adjacent provisions, provide specifically for exactly opposite conclusions. Under the first specification (the rules official's), the provisional ball must be abandoned and the golfer who plays the provisional suffers the severe penalty for playing the wrong ball (two-stroke penalty plus player must go back and play original ball). Under the second specification (mine), the player can walk away from his original ball (or better, not look for it at all) and tap in his provisional for a bogey. Under my approach, the player can hit a provisional and decide later if his chances are better by playing the original or taking the stroke and playing the provisional. I realize my approach "sounds wrong" and that the common understanding is that a "found" ball cannot be "lost." But that's not what the rules say. Indeed, what is the point of that entire alternative definition of a lost ball and all that extra explanation in Rule 27 if not to apply precisely to the situation it describes, a golfer who plays his provisional ball again from a point nearer the hole?

5. The USGA's Decisions on the Rules, which are deemed by the rules to also constitute the rules of golf (resulting in this simple game with balls and sticks being regulated by literally hundreds of rules) provide numerous examples of just the situation I described. Once the provisional ball is played from a point nearer the hole, then the original ball is lost, even if the original ball is found in a literal sense. Keep in mind, nowhere do the rules of golf create an obligation for a golfer to search for a ball. The rules and decisions do of course say (as the rules official pointed out) that once the ball is found (or the player is notified that it's been found) then the provisional ball must be abandoned and the original ball becomes the ball in play. But, again, the rules also provide the alternative, deeming a ball "lost" when the provisional is played for the second time, in essence. The rules and decisions also make this opposite conclusion (the one for which I argued) just as clear.

6. The Decisions are written in question-and-answer format. Check out Decision 27-2B1:

Q. At a par-3 hole, a player hits his tee shot into dense woods. He then hits a provisional ball which comes to rest near the hole. In view of the position of the provisional ball, the player does not wish to find his original ball. He does not search for it and walks directly towards his provisional ball to continue play with it. His opponent (or fellow-competitor) believes it would be beneficial to him if the original ball were found. May the opponent (or fellow-competitor) search for the player's ball?

A. Yes. In equity (Rule 1-4), he may search for five minutes provided that in the meantime the player does not play a stroke with the provisional ball, it being nearer the hole than the place where the original ball is likely to be. The player is entitled to play such a stroke. If he does, the original ball is then lost under Rule 27-2b and further search for it would serve no purpose.

See? I told you. Just go hit that provisional ball. In the junior golfer's case, just hit it and say that the original is "lost" as defined by the rules.

7. The Rules also say, if one encounters a point not covered by the rules, one should fashion a ruling "in accordance with equity." Here one can't say that this point is "not covered" by the rules (indeed, over-coverage might be the problem), but in any event, what is equitable here? One could say it's the process outlined by the rules official. But why? Why is it inequitable to abandon the first ball and play the provisional? The player will take his stroke penalty and did execute the very same shot that would be required upon re-dropping the original under the unplayable ball rule. Is it that the player played the provisional with less pressure, knowing that there was a chance the provisional wouldn't count? Okay, but if the rule were opposite (as actually, it is) and golfers could proceed to play the provisional (as the rules explicitly permit) then that provisional shot would have some added pressure, as the golfer would know this was his only chance to salvage the hole with a good provisional shot.

8. I asked a friend, not a golfer, which rule she thought more equitable and she said the one where the golfer gets to play his provisional shot: why waste time walking back to hit the same shot for the third time? She thought that stupid, given that the penalty was fully assessed. Is this friend wrong? Wouldn't most golfers (older than the junior player in this case) have strolled right past those woods, ignoring that ball in the thicket, and tapped in the provisional for the bogey? Indeed, wouldn't it be bad form (and hyper-competitive) for another player in the group to go looking in the thicket for the original when the player clearly was advancing toward the provisional? The more equitable outcome is the one commonly practiced.

9. Here's the rub of the green: the rules of golf are chock full of such contradictions and ambiguities. Other sports with thick rule books have a similar problem. (Football rules are so full of verbiage, nuance and interpretation even in defining such basics as touchdown or pass reception that I've suggested, only half-jokingly, that a lawyer be added to the studio announcing team; I've even volunteered for the role, promising to laugh uproariously at all the inane jokes.) But is it proper to push the rules of a sport so hard? Should people like me look for loopholes and ambiguities and alternative meanings and find ways to justify applications of the rules that seem at variance with their intention? The intention, it seems to me, is to encourage players to look for original balls and play them if found. The alternative ruling (mine) would allow the golfer to be able to pick from two shots. Say some PGA golfer reads this and uses my reading of the rules in a PGA event. Would that be a good thing? Would that player be vilified (as I was) for being a bad sport? Or would he, by spurring reconsideration and amendment of the rule, be doing golf a favor? In the legal field, lawyers are trained to push the rules at every juncture on the premise that this practice produces better rules. Athletes and coaches in sports often push the rules too. Are the rules of sport the proper subject of such stress? Or is there a spirit of the game that overrides specific provisions?

And if there is an overriding spirit to our games, could someone please reduce it to writing so all of us insensitive sorts don't go around setting bad examples?

Podcast Links to Interview on Sirius Radio

2009-06-21T20:35:00.000-07:00

Sarah Meehan, host of UnderScore Sports radio program on Sirius Radio, interviews me on my latest book, my next book, and lots of things in between.

In Part One she reads a bit from my book, before I'm on the program. Here's the link to part one of the podcast.

In Part Two, I say something too. Here you go for that one.

PASPA Under Fire

2009-03-25T21:23:00.000-07:00

(This was cross-posted on my new blog, Gaming Law Memo.)

A state senator in New Jersey has filed a federal lawsuit to challenge the constitutionality of the Professional and Amateur Sports Protection Act. Here's a link. (Note the nutty professor quoted toward the end.)

PASPA, signed into law in 1992, prohibits states or any person from offering or authorizing a lottery or other betting game based on the results of any competitive game in which amateur or professional athletes participate. Read literally (and statutes are meant to be read literally), PASPA seems to outlaw any bet sanctioned by state law, even so-called social gambling where state law permits it, such as a parlor poker game or a five-dollar bets at your local golf course. In practical effect, the law prohibits states from raising revenue by permitting Las Vegas-style sports books, or lottery games like the NFL parley lottery game Oregon recently discontinued. (Four states were implicitly exempted from PASPA: Nevada, Montana, Oregon and Delaware.)

Will this litigation test the issue? I hope the Senator has the wherewithal to pursue the question through the appeals process. The trial litigation should be relatively inexpensive, since the legal question can probably be raised on a stipulated factual record, obviating the need for extensive discovery and fact-finding. I would imagine the district judge will issue an opinion on the question and hurry the case along to the appellate courts, the inevitable destination.

And what will the courts say? Is PASPA unconstitutional? I'd rather try to pick a four-game parley on an NFL weekend than predict judicial results. But here are some thoughts:

1. One infirmity in the statute is that it treats states differently from each other; specifically, those four states mentioned above get special treatment. The argument is that the federal Congress has an obligation under the commerce clause to treat states equally. This theory was raised a few years ago in an article in the Virginia Law Review. I just don't see it, although I'm of course willing to be convinced. The commerce clause in the federal constitution does not explicitly require that the Congress deal with states uniformly. Since other clauses of the constitution do contain such an explicit requirement, its absence from the commerce power is telling. Congress' authority to regulate commerce is plenary; as long as the law is rational, it's good to go. I think this argument loses. (Take the points.)

2. I think the more interesting constitutional argument arises under the tenth amendment: that PASPA violates the principles of federalism that the federal courts have come to recognize in the tenth amendment. Specifically, the tenth has been held to prohibit the federal government from forcing states to enact specific laws. What does PASPA do if not compel states to prohibit sports betting games? Put it this way: if PASPA were nationally uniform, then Nevada would have to change its laws to conform with the federal law. In this sense, a state (other than Nevada or one of the other exempted ones) in passing a lottery law must include a provision prohibiting games based on sports contests. So PASPA in effect requires states to pass state laws to conform with federal law. This poses a substantial tenth amendment issue. (Give the points.)

New Jersey's governor has said, according to the link above, that he will wait for the federal law to be tested before backing any plans to institute sports bets. He should throw his support behind the proposal now, in order to ensure that the federal court finds that New Jersey is sufficiently serious about sports wagers to present a real conflict for the court to resolve with a declaratory remedy. I would hate to see this important test case fail for lack of justiciability.

Rethinking the PED Ban: The Rights of Cyborgs

2009-02-23T21:47:00.000-08:00

I know I'll likely lose my last reader over this. (Goodbye Mom.) But, just like Alex Rodriguez, it's time for me to come clean on performance-enhancing drugs. As more than one email message has mentioned, every time this blog deals with the PED issue, TSLP quickly turns the cannon, aiming at the prosecutors, cops, reporters, parents . . . just about anybody I can think of except the players themselves. I guess there's plenty of blame to go around, and I like to see that everyone gets his comeuppance. Plus I get to dodge the most obvious issue the "steroid era" presents: specifically, should PED's be banned?

My answer is complicated, but the summary is not. I think, maybe, possibly, the answer just might be "no." I think. Very provisionally. Here's why:

1. All kinds of technologies enhance sports performance. My golf clubs have U-shaped grooves. I've fished on boats with depth finders to locate fish. I've launched myself in pole-vault competitions with super-strong and light carbon composite poles. (Yes, being a college professor is nothing but fun.) I could mention huge equipment improvements in tennis strings or archery bows, and changes in discus composition, barbell strength, kayak materials, artificial surfaces, and shoewear. All of these developments, and countless more, make the games easier to play. All of them enhance performance.

2. Let's pause for a moment to consider the fact that these technologies enhance performance. By making performance easier, a technological improvement changes the game. It promotes the shattering of extant performance records. It also changes the skills needed to perform. Athletes who may have mastered the old technology will find their hard-earned comparative advantage wiped away. New technology yields new winners. New technology will also invite more people to play the game, thus crowding our competitions and increasing demand on shared resources. Nice to have some of those easy-turn skis that came out in the past few years; not so nice that I need them to avoid all those new skiers turning right in front of me.

3. It seems too facile to distinguish equipment improvements from biological ones. Some of those improvement technologies are biological, both indirectly and directly. An equipment technology is biological indirectly in the sense that certain biologies can best take advantage of it. Golf's square groove technology, by facilitating and thus lessening the penalty on shots from the rough, gives advantage to the long hitter, who can strike tee balls as hard as possible while suffering minimal penalty from wayward shots. Some technologies are more directly biological, such as prosthetic devices on amputated limbs, laser eye surgery, or hypoxic chambers. These last three are clearly products of advanced technology. In the case of the prosthetic device, like the "Cheetahs" employed by the Olympian Oscar Pistorius, the technology is applied and remains on the body; both lasik surgery, undertaken by golfer Tiger Woods, and hypoxic chambers, used by athletes in many sports, are applied to the body and leave the body altered. All three impart a technological enhancement that is distinctly biological. All three enhance performance.

4. As an ethical matter, biological improvements cannot be separated from other technologies. Most technological improvements at bottom give the athlete improved performance that is in some sense "unearned": the athlete passively sleeps in the hypoxic coccoon or is given a faster swimsuit. Yet the athlete enjoys the improvement nonetheless. Some technologies do require adaptation, and so the practice spent on that adaptation does look like the traditional road to athletic accomplishment. But the practice is only necessary to perfect the adaptation, not to perfect the sport itself. In a sense, the competitors now compete to master the adaptation, not the sport, and thus the victory goes to the swiftest and best adaptor of the new technology. The athlete who could best perform with the old technology, under which conditions performance was more difficult, now loses. Technological change rewards those who best adapt to it.

5. Parimutuel betting on horse races has long been an exception to the widespread prohibition on sports gambling in this country. Why are the horses so lucky? Because state legislatures have long held to the (now antiquated) notion that horses should be encouraged to race (hence the betting as an incentive) so that the horse stock and breeding practices could be improved. Horses were a vital part of the American economy. What's important today? Human health. Indeed this subject may be the salient public policy concern in this still-new century. Sports is more than entertainment. Sports serves a useful purpose in finding and expanding the limits of human performance and health. New technologies and therapies are tried in the world of sports on a regular basis. Why can't athletes, within the walls of safe practices and with full knowledge of known risks, push the limits of the human ability to adapt to and profit from distinctly biological technologies? I know steroids are dangerous. But part of that danger must stem from their illegality. Would their dangers be mitigated in the hands of an experienced medical doctor? Plus the steroids era has come and gone. Few athletes intent on employing biological technologies would today resort to the crudiites and attendant side-effects of steroid use. Why use steroids when you can use . . .

6. Genetic modification. It's coming. What's wrong with this exactly? If a person can in some real sense alter his genetic makeup, then isn't his very person altered? Isn't he competing in as natural a state as he can achieve? Consider the athlete whose genes were modified at infancy. Is that person to be forever banned from sports? What if the genes were altered in utero? What if the parents themselves were altered, and that alteration was passed along to the athlete/child? Are children to be disqualified from birth? Have I asked enough questions?

7. I haven't even mentioned drug testing, which is intrusive, legally problematic, always one step behind, expensive, unavoidably subjective, and doomed to failure. I also haven't mentioned the huge problem with drawing the line between therapy (ethically permitted, to bring the athlete back to normal) and enhancement (ethically not permitted, because it brings the athlete beyond the normal). Andy Pettitte of the New York Yankees did this for me, when he claimed, after being found to have taken steroids, that he only did so to overcome injury and return to the field. Isn't he correct (whether truthful or not)? Why deny an athlete or any person a drug that can safely restore him to health?

8. I think performance enhancements are inevitable, regardless of whether those enhancements involve biological technologies or not. Safety is a concern; but safety usually supplies a reason to regulate, not ban. Fair competition is a concern, but competitive advantages will have to be regulated through restrictions on equipment, not with biological bans. In other words, if Oscar Pistorius is allowed to line up at the start of the 200 wearing his Cheetahs, then I get to be in the next lane revving the engine in my Ford F-150.

9. If cyborgs may compete, will the natural human have no chance? Will bionic legs propel runners and jumpers, laser-aided eyes aim rifles, external lungs sustain endurance? How can biological technology be contained? Honestly I think it can't. I think the future of sport lies in competition classes. We classify competitors now: by gender, by weight, by experience. I think more of the same lies ahead. This splintering of sports may diminish our fan experience, as multiple competitions crowd the airwaves and compete for our attention. More sports may become "minor league" in the pejorative sense. But that's okay. The purpose of sports is competition, not to provide an entertainment spectacle. I could live with enhancements, so to speak.

Alex Rodriguez and the Real Victim of Steroids

2009-02-09T20:37:00.000-08:00

Two years ago I predicted everything that we see today would come to pass. Here's the link. All that was left was to fill in the blank with the names of the guilty. Finally, one leaked out. We should not be surprised that the name is probably the most famous name on the positive test list: Alex Rodriguez.

Imagine being a lawyer, or working in some support position for those lawyers or for a court, and knowing that none other than Alex Rodriguez failed a drug test for steroids. What a difficult secret to keep. Yet your professional or occupational obligations require that you take that knowledge with you to your grave. How hard would that be? Lawyers have this obligation drilled into them in law school and in the culture of legal practice; nonetheless, despite the explicit court order to the contrary, maybe one of them let it slip. Alternatively, maybe a non-lawyer, perhaps lacking that practiced response, also gained knowledge of Rodriguez' test results and squealed.

In any event, it's out, and Rodriguez has more or less owned up to his steroid use. The leak was inevitable, right? Not in my view.

1. As I explained in the post linked above, the government seized the testing data by executing a search warrant. The legality of that seizure remains a matter of ongoing litigation. The Ninth Circuit appellate opinion, to which I referred in the post two years ago, is currently being re-examined by the entire Circuit "en banc." The appeal involves a number of issues, one of which (the rights of a person in his expended urine) may even interest the Supreme Court. Fearing premature release of this information, the federal judge presiding in the case specifically ordered all parties to the action not to disclose the contents of those test results while the appeals were pending. My point here is that, especially while the ability of the prosecution to use that evidence remains contested, the release of some of its contents to the public arena constitutes a notably disturbing development.

2. A disturbing development, I should add, that was created by the Sports Illustrated reporters who enticed several insiders with knowledge to break their legal duty and finger Rodriguez. Where is the reporters' complicity? I see Selena Roberts, Sports Illustrated's new back-page moralizer (assuming the high ground vacated when Rick Reilly assumed the pontificator's role at ESPN) being interviewed on evening news programs without having to answer for her conduct. If it is not permissible for an insider to reveal the contents of sealed evidence, then why is it morally permissible (if not illegal) for an outsider, especially a veteran reporter experienced in prying admissions out of reluctant innocents, to cajole and entice such insiders to break their known legal obligations? Isn't luring another to commit a wrong just as culpable as the wrong itself?

3. Yet the reaction is precisely the opposite. Mark Fainaru-Wada, the reporter who abused the legal system by digging out the secret transcripts of grand jury proceedings respecting BALCO and Barry Bonds, instead of spending more time in prison, lands a gig with ESPN. Selena Roberts will undoubtedly rise within the ranks as well. Why does the news reporting industry visibly and tangibly reward employees who lure others to break the law? Today, media writers from every corner are weighing in on how much Alex Rodriguez has destroyed his name and the game he plays. But why doesn't the media examine its own contribution to the destruction of something far more important than a game? The actions of Roberts, like that of Fairnaru-Wada before her, threaten the very legal system on which this country relies. Their actions reveal a disregard for the social good that runs far deeper than that of some twenty-three year old shortstop sticking a needle in his arm.

4. Roberts will enjoy her day in the sun. But I look forward to the trial. Not that of Alex Rodriguez: I doubt anything he did will interest a prosecutor. And certainly not the tawdry matter involving the pitiable Barry Bonds. No, I'm looking forward to the day when reporter Selena Roberts gets to squirm on the hard wooden chair in the federal courtroom. I'm getting the sense that the federal judge presiding in this matter will not be pleased by this latest leak. I'm also guessing that the federal prosecutor to whom this judge will likely refer this leak problem will want to do his very best to impress the new federal administration. This is not the end of the matter.

Will Selena Roberts write her moralistic SI back-pagers from the confines of federal prison, where she'll be on her civil contempt penalty?

The Bonds Tapes

2009-02-04T22:27:00.000-08:00

Today much of the evidence the federal government will present against Barry Bonds in his perjury trial was unsealed. I have yet to have a chance to review the entire file (I have a day job), but one piece of evidence in particular has received the pointed attention of the press: a tape recording of a conversation made by a business associate of Bonds. The tape contains statements by Greg Anderson, Bonds' former trainer and alleged steroid supplier, describing the process by which Major League Baseball was to test Bonds and containing Anderson's prediction that his substances would prove undetectable. This evidence, of course, is pretty damaging to whatever credibility Bond's protestations of innocence retain in the court of public opinion. In a court of law, however, where this drama will be played out, the tape will likely be of no moment. At least if the judge is awake.

This recording is not admissible, at least under the theory the major sports media is discussing. It's not even close.

1. First, put aside issues as to the sketchiness of the recording; I listened to it and had trouble discerning the words. (And TSLP, with eyesight possible only through the thickest of lenses, hears like a bat.) The recording is of a conversation, with typical interruptions and half-sentences, that undoubtedly was aided by gestures and inflections to help convey meaning, all of which is lost on tape. Even if we could parse its words, the conversation, we are told by the national media, is hearsay. The tape would be offered in evidence to prove the truth of its contents, specifically, that Anderson did know how to create a drug to beat the MLB testing system. From this contention the jury could plausibly conclude that Anderson put that knowledge to use in aiding Bonds. Hearsay is inadmissible.

2. Unless the hearsay fits one of the many hearsay exceptions. Only one exception seems reasonably appropriate, and that is the exception for statements against interest. But like most shorthand labels, the phrase "statements against interest" is misleading. A statement against interest requires more than that the statement be against interest in some general sense. One requirement is that the statement is only admissible if the declarant, i.e., the person who uttered the words (Anderson), is "unavailable" in a legal sense. In a perplexity typical of the law of evidence, a person who is sitting in the front row of the courtroom can be legally unavailable, for example if that person's testimony falls under an evidentiary privilege. In this case, the prosecution will argue that Anderson, although dragged to the courtroom and sitting in a pink jumpsuit with a number across its back, is unavailable due to his unwillingness to testify. But what if Anderson stops refusing to testify and takes the stand, and then testifies that he genuinely does not recall the details of this particular conversation with the business associate? Indeed, Anderson may well recall having the conversation but may not recall the particular statements made during the conversation. It is unlikely the conversation was significant to him at the time, thus making his vague memory quite probable. If Anderson can recall having the conversation, even if he cannot recall its details, then Anderson is no longer an unavailable witness. The tape recording would be inadmissible.

(3. Indeed, were Anderson really willing to do anything, as it appears, to help Bonds, then he should take the stand and testfy as I've described, to render the damaging tape inadmissible. But I'll put this in parentheses so that Anderson, if by chance he's reading this, will skip over the parenthetical comments. The state could try to use the tape to impeach Anderson's claim of forgetfulness, but remember, all this assumes the judge is competent: no judge would allow the prosecutor to put damaging inadmissible hearsay in front of the jury just for impeachment purposes.)

4. Now let's assume Anderson refuses to testify, as he has all along, and thus is not "unavailable" in this legal sense. Would the tape be admissible as a statement against interest now? No. To be admissible in this case, the statement must be against the declarant's penal interest; that is, the interest of Anderson, not Bonds. In fact, the statement must be so far contrary to the declarant's penal interest that no reasonable person would have said it unless it were true. Does Anderson's rather deadpan description of the dates for MLB's urine tests so far subject Anderson to criminal liablitity that no one would utter those statements unless they were true? The statements barely subject him to criminal prosecution at all; I would bet many players and agents (even innocent ones) gave some thought to MLB's rather odd testing procedures. Clearly, Anderson's statements that the drugs he designed would be undetectable (if that's what he said; it's hard to discern) are more problematic. Yet it is not illegal to design drugs that happen to be undetectable. The statements are incriminating, yet do they so far subject Anderson to criminal liability that we can believe he wouldn't have said them unless they were true? Might he just have been bragging, or even making something up entirely, just to impress a person (the business associate) who obviously appeared not to know the very first thing about performance-enhancing drugs? This part of the conversation, a very small part by the way, does appear mildly incriminating, but seems to fall short of the stringent demands of the law.

5. I'll admit I'd prefer to see the government and everybody else just leave Bonds alone at this point. His career is over and he'll have to live with his public shame forever, as will Mark McGwire. So I hesitate to help the prosecution. But it's an honest blog, so here goes: the media legal experts are wrong, not just about the hearsay exception. They're wrong about the statement being hearsay. It's not hearsay. The prosecution would be foolish to concede that it is. The conversation between Anderson and Bonds' business partner was a conversation among conspirators, all a part of the conspiracy between Bonds, Anderson, the business associate and who knows whom else to get Bonds pumped up and hitting home runs and to get themselves rich. Statements made during and in furtherance of a conspiracy are admissible against all co-conspirators. To make this work, all the prosecution would have to offer is some proof that Bonds himself was part of the conspiracy. Hard to do? Under federal evidence law, the statements themselves can be used to prove that Bonds was part of the conspiracy the statements further. The statements can be used to justify the statements.

If you understand that point, you should be in law school.

Athletes, Guns and Money

2008-12-02T14:40:00.000-08:00

New York Giants' wide receiver Plaxico Burress got himself shot yesterday and got himself arrested today. The shooting was accidental; nothing that happens after this will be. Burress has been charged with two counts of criminal possession of a firearm. Under his new contract with the Giants, he could be cut from the team and forfeit much of the remaining salary. Under league policy, he could be suspended without pay, indefinitely, interrupting or even ending his playing career. Under state law, he could face a mandatory minimum sentence of three and one-half years. Burress' entire livelihood could be lost from this one incident.

And what was this incident? Burress isn't charged with injuring someone or even with carrying a weapon with malicious intent. His conduct (carrying a weapon) is perfectly legal. What he did wrong was fail to get permission. He violated a mere regulation.

If Burress does indeed suffer the full gamut of possible consequences, the fault lies only in part with him. It also lies with the absurd policies of the NFL and the state of New York concerning the possession of handguns.

1. What many media commentators and many of those who shape public policy fail to understand is why a star athlete like Burress might rationally choose to carry a handgun. The most obvious motive is protection. Athletes are targets: coming from and venturing back into neighborhoods blighted by crime, their high public stature and published wealth must ineluctably draw avaricious stares from thieves. The seemingly frequent news of another athlete being attacked and robbed testifies to the predicament of life as a public star. The response that a pro athlete should never venture into a dangerous place (and thus never have need for a gun) is facile and wrong: any public venue, even a restaurant or cinema, might house potential danger. Should a star athlete turn his back on the neighbors and friends of his youth? Just buy a mansion in a gated community and live inside the walls? In any realistic sense, an athlete will venture out, and it stands to reason that a handgun might be needed for protection. The paucity of news reports describing the use of a gun for protection might suggest such uses are rare; it might also suggest that a thief stopped in his tracks or deterred from even starting is not the kind of news that will bubble to the surface and make its way onto the evening telecast. Such beneficial uses of guns probably go underreported.

(2. I heard one prominent former pro athlete say he would never carry a handgun. No, it turns out he hired private security people, themselves armed, to accompany him. How is that all that different? If guns are so dangerous and wrong, why have them along? The answer is they're needed, if only as a deterrent.)

3. But the justification to carry a firearm doesn't rest on a hypothesized utilitarian claim; it's more profound. Deep within the American sports tradition are the "manly sports," a term no longer in vogue but not without significance. The manly sports, like bare-knuckle fighting, boxing, wrestling, fencing, marksmanship and the like were once very popular. Men engaged in manly sports for no utilitarian reason: not (at first) for prizes or fame or enhancement of martial arts. No, men engaged in these sports simply as an expression of manliness, out of simple preference. When my brother and I were teenagers my father, in an act unthinkable in today's world, bought us boxing gloves: the best gift ever. We and our friends spent many a winter's night in our basement, basically punching the heck out of each other. Was this "useful" in some sense, to protect us from bullies or prepare us for fighting unforeseen wars? Not really. It was just fun, the kind of fun boys love to have. It was just sport for its own sake, not for any purpose other than itself, a simple, direct expression of what it meant for us to be young men.

4. It's the utilitarians who eliminated or curtailed the manly sports. Sports are lawful today only if they're useful in some greater sense. Bare-knuckle fighting used to be popular; the utilitarians (sitting on judicial benches) came to the opinion that such fights served no purpose and tended to incite breaches of the public decorum. Thus fighting was outlawed and slowly converted to boxing (itself actually more dangerous, as the gloves were added to protect the hands, not the face, and thus permit harder blows), not initially through legislation, but through judicial decisions holding fighters acting within the rules of the sport to have committed torts or even crimes against their voluntary, consenting opponents. To survive the scrutiny of the utilitarians, sports had to prove they were useful in some sense apart from the sheer pleasure of the sport itself. Not many manly sports can survive this scrutiny. We see this very phenomenon going on today with respect to hunting: to justify hunting, contemporary hunters' groups point to the "usefulness" of the sport as a means of providing food for the table or thinning overrunning animal populations. Hunting as "harvesting" or "wildlife control." Why can't we say that hunting is fun, that it appeals in some indescribable way to many (men, for the most part) in our population, and call that justification enough?

Further, why does the preference to bear arms need a justification, any more than does any other constitutional right? The point of putting rights in the constitution was to eliminate the need to convince people that this preference is a good or useful one. Why do arms-bearers have to make the case that free-speakers or free-religionists don't?

5. Which brings us back to Plaxico Burress, today's poor hounded subject of the swarming round-the-clock, tabloid journalism in which ESPN is starting to specialize. Why did he possess a gun? For the same reason that men like to purchase guns, and fire them, and use them to provide added protection or shoot targets or bring down game. Because he wanted to, as a man. No further justification is possible for manly pursuits, and no more explanation is desirable: you either understand it or you don't. It's a man thing. And that so many media commentators can't make a distinction between Burress doing a perfectly lawful thing, had he had the requisite permission, and the other crimes that athletes and others commit that involve assaults against comparatively defenseless persons is a reflection on the media, not the athlete. If the media don't understand manly sports or manly pursuits then how is that the fault of the man?

(And why did the overbearing police feel the need to "perp walk" Burress on the street in handcuffs for the benefit of national television? I'm sure he would have been happy to surrender to authorities at the time and place of their choosing. Why the felt need to take the public figure, the innocent person, down a peg, all without a trial by jury? Envy is never a pretty emotion to see in action.)

6. I'm not saying Burress shouldn't be punished. But let's be clear: Burress' crime is what is called a regulatory crime, or a crime malum prohibitum. It's a crime just because we (that is, the State of New York) say it is. It's not a crime because it's wrong in some profound sense, what the law used to term male in se, wrong in and of itself. New York is using a criminal sanction to enforce a regulation, the regulation being that arms-bearers in New York have to have a permit. (Some legal commentators think that the criminal sanction, society's most serious, should never be used for mere regulatory purposes.) So must people who plan to stage a parade or a protest. We have a right to protest, but we must do it with lawful permission. Martin Luther King, for example, once staged a protest without a permit. His consequence? He spent a single night in the Birmingham jail. (And by the way, that particular restriction on protesting was later held unconstitutional.) But Burress will get over three years and the loss of his livelihood? Sure, MLK had greater things in mind, but that's not my point of comparison: both King and Burress exercised a constitutional right, albeit one that had to be exercised with restriction; both violated the restriction, and both got or will get punished. But the crime is a minor one at most, and the public reaction should be commensurate.

Obama Playing Fantasy Football

2008-11-23T20:16:00.001-08:00

President-elect Obama has recently added his presidential-elect voice to the chorus calling for the demise of the BCS college football championship. The primary reason for eliminating the BCS and instituting a playoff for the top level of college football is the desire to crown a "true champion." Some people also express concern over the fact that the BCS system limits eligibility to champions from certain conferences, plus (as of recently) a possible at-large bid for other teams. In short, the BCS smacks of the elitism of a select private club: eligibility limited members only. No wonder populist politicians rail against it.

And what is the position of one obscure professor of law? (The internet waits for the answer.) It's this: the BCS is not a bad way to determine a national champion. Nor is a playoff. Nor is a popularity poll. We could throw dice for that matter. The point is, there is no way to determine a national college football champion. Not even a single plausible way. Just a lot of bad ways. And there's a good argument that the BCS (or something along its lines) is the best of the bad ways to determine a champion. So when football coaches and other world leaders complain about the BCS, they might as well complain about the weather while they're at it. It's out of our control.

1. Of course the model for the ideal college sports playoff system is the NCAA's annual gamblers' extravaganza, March Madness. The tournament is a lot of fun (and also puts about one-half of the American population in violation of the federal Wager Wire Act), but no one really believes its "champion" is anything more than a mythical champion. Some of the best teams in the country get eliminated far short of the final four on fluke shots, crazy bounces and bad calls. The surviving team is no more the best team in college than is the champion of the World Series of Poker or the winner of the Super Bowl (especially last year). The Patriots were the best team in football last year, winning seventeen of eighteen games. I'm not begrudging the Giants their trophy: they won by the rules in place. But let's not trick ourselves into thinking that trophy makes them the best team for the year, any more than the Patriots were the best team in 2001 when the upset the heavily favored (and better) St. Louis Rams. These are tournaments. They crown tournament champions, not "true champions" except by coincidence. So if it's a "true champion" you want, a tournament's not the obvious choice.

2. One other little problem comes to play in tournaments: who wins is to some extent the product of initial seedings. Assume four college football teams: Team A has a strong running game, Team B has a strong passing game, Team C has weak run defense but a strong pass defense, and Team D has a great run defense but a poor passing defense. Assume all other team strengths are equal. If the four-team tournament is seeded A v. C and B v. D in the first round, then we would expect a championship game pitting A v. B. If the first round is A v. D and B v. C, then the title contest would be C v. D. Same teams, different champions, all depending on the initial seedings. Or, what if Team E is better than Team F, and F is better than Team G, but G (for whatever matchup reason) can beat E? (And by the way, we see this all the time in college football, where Oregon State beats USC, then USC beats Stanford, then Stanford beats Oregon State: which is the best team based on game results?) We'd cycle around forever, with E beating F, F beating G, and G beating E forever, or at least until an upset happened and we could pretend one of these teams is "the champion." The point here is, it's very hard when dealing with more than one candidate to ever arrive at a "true" sense of who the best one is. (Hey, I should win a Nobel Prize for this! Wait, I think someone already did.)

3. A tournament would be fun and produce some wild betting, so for sure I'm for it. But I don't think a national political leader would want to put it quite that way. Maybe the fun of it all is justification enough (although we'd probably kill the players with all these games). But the "true champion" thing does not pass even basic sense. Plus, how is the BCS, which (with some arbitrariness) designates a single one of its four bowl games "the national championship game" any better? Isn't it obviously a joke to designate a game as the championship one and expect the rest of us to go along?

4. But there is some plausibility to the BCS' claim to crown a national champion. First, by limiting BCS eligibility to schools from certain top conferences (and Notre Dame, which stinks but has its own television contract), the BCS eliminates to some degree the "fluke elimination" that renders the NCAA basketball tournament (and the World Series of Poker) so obviously susceptible to random luck. Second, by relying in part on opinion polls and game results, the BCS makes an earnest attempt to identify the best teams in the nation. Now I'm not for a minute kidding myself into thinking that the two teams selected to participate in the final game are necessarily the best two, but I think the better case could be made for the proposition that they are more likely to be the best two teams than would be the two teams that survived some single-elimination tournament. Even if the selectors are in error, the odds are even higher that at least one of the teams selected to play in the national championship game was the "right" one, thus ensuring the crowning of the best team in the country as champion. If your interest is in identifying the very best team, then we must be exclusive, precluding eligibility for those teams whose only shot at a title would be to win by a fluke. Members only.

5. Although I could be talked out of this, I don't agree with those commentators who have suggested that the BCS constitutes an antitrust violation. The BCS is a private organization (much as is the NCAA) that is separate from the NCAA and that came about by a joint agreement of its member conferences (and Notre Dame, which stinks but has its own television contract) and certain bowl games. That the BCS people claim its champion is the finest in all the land seems mere hubris: that the rest of us go along with the claim in part shows its plausibility, in part shows its marketing, and in last part shows our gullibility. The excluded schools could of course form their own little club and crown their national champion. Although in the short term this claim would appear foolish, over time it could become plausible as some super-team from a non-BCS conference could have a dominant season (go Boise State!). We could have multiple national champions, just like in professional boxing. In other words, the excluded schools can compete in the market, and so appear unlikely to win an antitrust suit.

6. If we really cared about identifying the best team in college football, we'd scheme a way to have the better teams play each other, as often as possible, and hand the trophy to the team with the best overall record. The more trials, the better the evidence. But college teams play in conferences scattered all over the country, and play strong opponents outside their conference as infrequently as they can (except Notre Dame, which stinks but does have that television contract). So any national champion in football, under any system, will be the product of guesswork or worse. It's always been called "the mythical national championship" for good reason. It still a myth.

What Golf Can Teach the Rest of Us (Part Three)

2008-11-14T00:51:00.000-08:00

Here at TSLP International, we're studying three of the many lessons we can take from the great game of golf. (Ideally, we'd be examining this issue at a golf course.) Part One described the fledgling golfer's manner of financing, and wondered why other young professionals (lawyers, college athletes) couldn't fund their formative years in the same way. Part Two looked at the implicit betting system that underlies tournament golf, with its perfect incentive for competitive play, and suggested that other sports (and by implication, other occupations) could mitigate any bad incentives produced by their compensation schemes by mirroring golf's payoff system.

What else can we expect out of a game? What else can golf teach us? How to stop cheating, that's all.

1. The other week I was watching an NFL game and couldn't believe what I saw. Just after the whistle blew, ending a play, one of the defensive players gave what could only be characterized as a slight push to an offensive player, a lineman I think. The lineman keeled over like he had fainted. The referee, apparently catching only the aftermath of this inconsequential contact, called the punitive "personal foul" penalty on the defensive player, giving the offensive team fifteen yards and converting what would have been a difficult down and distance to a first down. A flop. (If flopping becomes endemic to pro football, not only will I stop watching, but the NFL will begin a slow death spiral to match the fix in which the NHL finds itself.)

2. All the major sports suffer from rampant cheating, right in front of our eyes. Players flop at the slightest contact, falsely signaling that an opponent has broken a rule. Players fake injuries, exaggerating the severity of contact in an effort to influence an official's decision. Players will even lie directly to officials, pointing the wrong way on a basketball going out of bounds or pretending to be hit by a baseball pitch when they weren't. Worse, players will even commit purposeful violation of the rules if they think they can get away with it. A football lineman might hold an opponent if he thinks his hold might be shielded from an official's sight; in a similar instance a basketball player might do the same. (For the most egregious example of faking, scan through your cable channels one night and find a game from Italian League soccer. So many players take (fake) tumbles, moppy hair flying, hands clutching pretend wounds while voices scream out in pain, that spontaneous laughter is the only possible response. It is a scream, indeed.)

3. All this conduct is a form of cheating: breaking the rules on purpose (or accusing the opponent of breaking the rules) in the hope of not getting caught. All athletes cheat, right? Wrong. Professional or other serious golfers don't cheat. They don't kick their ball out of a bad lie when no one's looking; they don't re-place a ball on the green closer to the hole; they don't pretend to find their ball in the deep woods when no competitor is nearby. Why are golfers (nearly) alone among professional and other serious athletes in their honesty? Why don't golfers cheat?

4. I'm not going to offer a paean to golf's traditions and values or the honesty of the golfer: the assumption that golfers are in some fundamental way more honest or trustworthy than are other professional athletes begs the question. No, this is sports law, and so (naturally) we're going to try to identify and examine the role that the rules of golf play in this outcome. In what fundamental, pervasive sense do golf's rules differ from those of other professional sports? How do they promote more honesty? And what can we learn from golf that might help solve the endemic problem of flopping and other forms of cheating?

5. Golf is distinct in this way: the rules of golf make the player the referee. Putting aside the (unfortunately increasing) instances where a professional player asks a tournament official to provide a ruling (to help apply golf's perplexing rules), for the huge majority of "calls" the player just makes them on his own, and does so honestly, even when honesty inures to the golfer's detriment (which is the only instance where honesty matters). Where the players are the referees, there's no incentive to fool somebody: any flop or fakery would make no sense, as the player would be trying to trick himself into a scoring error. In addition, although perhaps some outright cheating goes on in golf, maybe deep in those woods where no one is around, any deceitful act on the golf course might easily be witnessed by one's playing partners. No player in a serious competition is going to be able to toe the ball out of the deep rough and get away with it, at least not very often.

6. Are other sports ever self-officiated? Sometimes. Think of a "pickup" basketball game, one where the participants (usually those on the offense) make foul calls. Never in such a game would a player flop around pretending to be affected by a blow that never came. In a sense, the player would be fooling "himself," in that both players (the one faking the affect and the one who is implicitly accused of the blow) share unblemished knowledge of the truth, and know that the other knows the truth: that the blow never happened. But introduce a referee, and suddenly players are cheating, trying to mislead the official in erroneous calls to gain advantage. But without the referee, players don't cheat because to cheat is to lie and the lie is evident for all to see.

7. Now obviously it won't do to have the deciding moment in an NBA championship game decided by a player awarding himself two foul shots after callling a foul on his opponent. But other sports can adopt self-policing as much as possible. For instance, all player rules that regulate off-court conduct should be relegated to the player's union or to self-policing. The most significant and oft-cited reason to ban performance-enhancing drugs is their potential effect on non-using players, putting them at a competitive disadvantage. So if the PED ban inures to the benefit of other, non-using players, why not put those other players in charge of enforcing the ban? Why not use an employee-run honor system, much like the student-run honor organization many law schools use to protect against cheating? Don't be dismissive of honor systems: peer pressure, plus jealous protection against competitive disadvantages, give these systems real teeth. Of course, illicit drug use (unlike exams) is done in secret, away from suspicious eyes. But remember the choice is comparative: how well do you think the present "proctor" approach (where instructors walk around the room, looking for wayward eyes) to PED enforcement is working? Tricking the authority figure is for some an accomplishment; gaining undue advantage on one's peers seems base.

8. As for those acts of cheating that practically cannot be relegated to self-policing, namely those that take place during the course of the game, the solution is easy: add a game official to watch the action and penalize cheating. It's easy to see: anyone can watch an NBA game and see players faking to draw offensive fouls. The penalty for cheating should be as severe as the erroneous penalty call the cheater was trying to induce.

9. Conceptually, a cheating referee can be justified along the same lines as instant replay. Instant reply is annoying, time-consuming, and disruptive. Its justification, however, is a powerful one: it helps to ensure the correct result in a game. On-court cheating, such as fakery and flopping, produces erroneous decisions by game officials that is just as threatening to the correct result as would be any other incorrect call that a replay might reverse. Consequently, the remedy, even if instrusive, can be justified along the same lines as the instant replay. If other sports cannot mirror the near-complete self-policing of golf, then they need to address the problem of cheating by increasing their scrutiny of the players.

ESPN vs. Sports Illustrated

2008-11-06T21:36:00.000-08:00

In this corner, we have the self-proclaimed Worldwide Leader in Sports, which has added to its multiple cable television channels a weekly sports magazine and a heavily visited website, and which can justly claim to have revolutionized sports viewing in the U.S. In the other corner, we have the venerable SI, long the official voice of the thoughtful sportsman, whose principal medium, a weekly magazine, basically invented the genre of serious and reflective sports writing, and whose contemporary presence is enhanced via its own popular website. Ladies and gentlemen, the two most important and influential voices in contemporary sports journalism squaring off, right here at the TSLP international headquarters! If you could only have access to the magazine and internet site of one of them, which would you take?

Let's get ready to ponder!

1. I loved the old Sports Illustrated (and today I'm not just talking about the swimsuit issue.) Long, circumspect articles. The best ones were (and remain so today) the pieces about trends in the game, or about athletes in sports other than the main four sports. Sports Illustrated took chances in its pages, betting that the sports fan might have an education and always treating him as if he did. Even its covers might feature a race horse or a yachtsman or some badminton ace. Sports Illustrated was literate. With that said, it had some weaknesses. One of its staples was the "rags-to-riches" tale: these articles were of a piece, hagiographies that reviewed the star's meager childhood, his rise to prominence, and his contemporary greatness. I usually skipped most of those paragraphs. Still, the magazine was an institution and meant something every single week.

2. Today's version is more limited. As a general rule, the pieces are shorter and edited for a somewhat less literate readership. The subjects of the articles, and certainly the cover photograph, are taken almost always from one of the three or four major American sports, except in Olympic years. Still, the magazine is weighty, particularly when it includes an investigative report or an article on contemporary trends. A staple of the magazine remains the reportage from the week's "big game," which articles are always insightful and fresh no matter how much the big game has been over-reported in the press. Sports Illustrated: I look forward to its arrival every week.

3. As I do ESPN The Magazine. One aspect I can't stand: the typeface/page backgrounds that permeate the magazine. Although it seems to me that the magazine has gravitated in the past year or so more towards a traditional look, nevertheless the ESPN magazine can at times be hard to read. I don't have ADD, but I suspect the editor does: it's hard to tell the articles from the ads. Arrows, boxes, and wacky typeface abound: intentional zaniness aimed at making the magazine look fun. It's not fun. It's sometimes a chore to read through the magazine.

4. Which I do, regularly. It's that good. Although the typeface is goofy and some of the articles have clearly been written with easy access in mind, the content of the magazine is sheer genius. The reader can count on the ESPN magazine to offer an interesting angle on nearly any aspect of sports. Many of the articles offer an insider's perspective, which can be illuminating, even if you never once imagined yourself there. The magazine also takes up some of the old Sports Illustrated's ground, taking time to discuss weird sports and unknown people. Whoever dreams up the story angles in that shop deserves a raise.

5. As for the columnists in the respective magazines, clearly SI has the big edge. The ESPN columns (Stephen A. Smith, Stu Scott, Kenny Mayne) are for the most part self-referential, essentially a celebration of the wonderful personalities of these news readers (Scott and Mayne) or this windbag (Smith). Bill Simmons' columns are not his best: he's essentially a free-form blogger (and for me, that's praise) and doesn't do well within the confines of word counts. As for ESPN's new acquisition, Rick Reilly, formerly of SI of course, he specializes in feel-good morality tales. He's a chick flick, not an action movie. The SI columns are superior because they are in fact columns. They are about some thing, not about the columnist. The two-page column in the front is always a good read; less so is the back-pager, which in Reilly's tradition tends to be admonitory and mawkish. I get enough lecturing at work; I don't need more of it from people who publish a swimsuit issue.

6. The websites differ even more than the magazines. ESPN.com is truly the worldwide leader: it is the authority when it comes to breaking news and live coverage. In a way, the ESPN website has become the "official" site, taking over from the old Sports Illustrated the job as the authorized voice for the American observer of sports. It's a great site, easily the best on the web for sports fans. Yet, strangely, ESPN.com lacks for good columnists. Of course we must first put aside from this comment Bill Simmons, the Sports Guy. His electric pyrotechnics and rambling, inventive and wildly funny columns never fail to draw my cursor the moment they appear on my screen. He was born for the internet. But after Simmons and Gregg Easterbrook (more on him below), the columns on the site present slim pickings. Reilly re-prints his magazine piece, a short column the goal of which is to make the reader cry. Jamele Hill writes pretty well but obviously struggles for something to say. The rest of the columnists (to my recollection) don't address the big picture, instead writing "information-provision" pieces about their assigned sports. These pieces are authored and presented in the guise of a column, but in reality they (typically) are news pieces, giving straightforward information and reporting on rumors or player unrest. But, amazingly, nearly none of these glorified beat reporters is a very good writer. By and large throughout the ESPN site, the prose is unimaginative and offhand, the ideas expressed unthoughtfully. Why would such a powerhouse site, such a loaded outfit like ESPN allow its website to suffer due to a lack (in quality and in number) of outstanding columnists and writers? Take Simmons away, and ESPN will be left without a single leading columnist. (Gregg Easterbrook, Tuesday Morning Quarterback, is quite good too but his column ideas are starting to seem a bit repetitive. Besides, his shrill and embarassingly sanctimonious assaults on Bill Belichick from last season made me question his judgment. Still, he does often offer some pretty good ideas.)

7. The SI.com site presents more "the amateur hour" for sports columnists. It's philosophy seems to be to hire a bunch of unknown writers, give them all columns as an outlet, load the pieces up on the web, and see who draws an audience. Maybe SI is hoping it can luck into its own Bill Simmons. So SI has the advantage in terms of the number of columns. It also offers columns that, unlike the ESPN site, are real columns. These unknown amateurs are actually trying to say something, and SI is devoting some bandwidth to help develop tomorrow's writers. SI also offers a few "big name" columns, most notably Peter King of Monday Morning Quarterback fame; King's column has become increasingly personal and self-referential, with a lot of his weekly column skippable. Don Banks also writes a sports column, but his approach is ESPN-style: a report (disguised as a column) on the latest rumors and insider information from the world of the NFL.

8. So the winner, in a split decision: ESPN! The innovative magazine coupled with the clever stylings of Bill Simmons on the web give the Worldwide Leader the slight edge. Sports Illustrated's superior columnists, overall, both in its magazine and on its website, are not sufficient in my view to overcome the gap. So, if I were stranded on a remote desert island (that luckily got both regular mail service and a strong wireless internet signal) and had to pick just one journalistic combination of magazine and website, I'd have to go with ESPN.

Good fight.

What Golf Can Teach the Rest of Us (Part Two)

2008-11-05T22:20:00.000-08:00

In Part One I discussed how golf teaches us how to fund legal education and college athletics. (And they say golf is a waste of time.) In Part Two, we'll see how golf can fix sport's most pervasive problem. No, I'm not talking about drugs and groupies; I'm talking about money. The current financial structure of sports (professional and collegiate) stinks. Teams profit from winning; athletes profit from individual stardom, even if it comes at the expense of winning. (Makes me wonder how Allen Iverson, Mr. Individual Stardom, will do on the Pistons.) Individual contracts pull players away from team goals. They also put players on different "time frames" from the team and from other players on the team. This different time frame gives the players all potentially opposing reservation prices, causing some players (those trying to get the next big contract) to play harder than others (those who just got the big contract).

What a problem! All solvable by reference to golf, the most radical, non-structured sport in the world.

How to Compensate Everybody
Golfers are independent contractors. They get paid when they win, or come reasonably close to winning. Thus their incentives are perfectly aligned with those of the fans: every week, every pro you see on television is doing his or her best to do his or her best. They are all trying to win, or at least trying as long as winning remains a possibility. Golf is the one sport fans are assured of seeing players go all-out. (Ever see those sweat stains soaking through the belly region of the pro golfers polyester shirt, right above his white belt? That's the proof that these athletes are giving their all.)

Other athletes try too. Indeed, it's a credit to them that they do exhibit such professionalism when lots of financial incentives direct them not to bother. They want to win, of course. But they don't get paid to win. Sure, a star performer who contributes mightily to his team's good results will be in place for a raise when it's time for the next contract. But that incentive is attenuated and discounted. A more immediate incentive would be to pay the athlete to win, right now, as soon as the game is over. Or in a team sport, pay the team. Why don't any of the great American sports leagues structure their compensation practices this way, you know, to actually make winning games a priority? If the "entertainment" the league is offering fans is competitive basketball or what have you, then the league should have every incentive to pay the winning players some kind of bonus for doing their part to produce the very product the league is trying to sell.

Yet amazingly, not only do the professional leagues not provide bonus money for winning teams, they actually prohibit its payment! Indeed, any small hint of such a payoff, however modest, will draw the ire of the league. Why would a sports league want to make sure none of its athletes is provided a financial incentive to win a game? Because the leagues are deathly afraid of gambling, and any financial benefit that hinges on the outcome of a game looks an awful lot like a bet. Leagues are so afraid of bets that they will carefully police individual player contracts for bonuses that might be tied to game outcomes, rather than to (selfish) individual statistics, like innings pitched or at-bats.

The fear of the fix is misplaced. What sports competition could be easier to throw than a golf tournament? One mistimed swing equals one lost tournament, and no one would ever be the wiser. And yet golf welcomes the bet, even setting its tournaments up like a bet (with players putting up entrance fees and playing for the pool), and even tacitly allowing players to bet big sums of money during practice rounds. Now granted, there are reasons no one would want to induce a golfer to throw a tournament (too many players, so no concentration of benefits: in other words, even if you could get John Daly to lose on purpose, that doesn't mean you'll win your bet as there are so many other competitors). A football contest involves just two possible outcomes, so if one side is induced to shirk then a bet on the opposing team will be a winner. But at bottom, if a quarterback is going to throw the contest (or shave points), under which compensation regime would he be more likely to do it: under a regime where the outcome of the game is of no moment to his financial future, or under a regime where the quarterback has a clear financial stake in his team winning? Exactly. Giving players a stake in winning will actually help deter the problem about which the professional sports leagues are worried.

Everyone's better off having a stake in the firm's success (stock options, ESOP's, profit sharing). It's a wonder why our professional leagues for the most part ignore this widespread approach and refuse to take advantage of the lessons that golf teaches. It's much like the point we saw back to Part One: giving law schools (or other institutions of higher learning) a direct financial stake in the future career of their graduates would give institutions a better set of incentives to see to the education of their students. Athletes with a financial stake the success of the team will do their best to generate victories.

Public Funding of Private Sports Stadiums

2008-11-02T13:39:00.000-08:00

It is something of a litmus test among sports academics and other commentators: to be admitted to the club, one must be against public funding of sports stadiums. Everyone's against it. The chief reasons are several: that funding constitutes a subsidization of the wealthy, that new stadiums do not pay off economically in terms of increased business activity, and that new subsidized stadiums ultimately generate ticket prices that are beyond the financial reach of the average fan. Indeed, these points seem beyond debate. Every examination I've read or read about confirmed that the claims of net economic benefits from a new stadium are illusory. The fact that the taxpayer subsidies accrue to the benefit of the wealthy seems undeniable given the prevalence of luxury box seats. Even the pricing effect seems obvious: teams have to raise prices to pay their end of the stadium costs, never mind field a competitive squad. So why subsidize a product that doesn't pay off, for the benefit of people wealthier than you and, worse, prices you out of the product?

Sorry to play the contrarian, but I've never followed the academic/political orthodoxy on this one. Public help for stadium construction seems unobjectionable, at least to me.

1. One point in favor of public funding seems simple, perhaps simplistic, yet deserves consideration: public funding of privately consumed goods is pretty common. Parks tend to be utilized mostly by their neighbors, museums and libraries and public television by those with tastes for those goods, swimming pools and schools by those with children, and so forth, yet all of the above are typically constructed and maintained with public funds. Admittedly in a sense this argument proves nothing, for just because (one might argue) previous errors have been committed is not a reason to make another. Plus the magnitude of the public subsidy of a sports stadium is probably great enough, as compared to a public park for instance, to render the comparison faulty. Nonetheless, seldom are these other, substantial public expenditures put to a cost-benefit analysis. Some of us may not ever use a particular park or visit a new library, but few of us would want to live in a locale with none of them.

2. The high price tag doesn't bother me. The market for sports franchises is competitive. Cities bid against cities, so presumptively the price/subsidy is a competitive one. It doesn't matter whether a city is bidding to be awarded a new franchise, to lure an existing one, or retain an incumbent: all cities are bidding against the next best empty venue. Now it is true that the "free market" claim only goes so far: clearly the major professional sports leagues have something close to a monopoly (at least at this moment in history) on the highest level of competition in their respective sports. This monopoly gives the leagues a measure of market power. This power is limited, of course, because the professional leagues, although without competition against a rival, do compete with each other for fans' attention and compete with other entertainments and leisure activities. So the market power is limited. The market power is also contrived: it's a product of the leagues' decisions to limit the number and location of franchises. This engineered scarcity makes cities bid on teams; without scarcity, anyone interested in a team could just start one and schedule games. (Presumably Boston and other baseball hotbeds would have about five professional teams each.) Cities bid because the leagues make them.

3. It's a manufactured scarcity, but in my view a desirable one. Although I think amateur sports should eliminate their monopoly for the sake of inclusiveness, I don't want professional sports franchises to be as ubiquitous as fast food. Organizing a competition between the finest players in a sport necessarily means excluding those players who don't qualify; the only way to limit the number of players is to limit the number of teams. Some scarcity of franchises is endemic to professional sports; thus the market among cities is unavoidable. The price is high.

4. That cities should bid on teams, and help build stadiums to lure and retain them, also seems unobjectionable. Having a major sports franchise makes a city into a major city. The team provides luster and publicity. Think of what a treat it must be for the mid-sized city of Green Bay to have its own NFL franchise. I would love for the mid-sized city in which I live to have one too, and would support any reasonable tax increase to make that possible. A major sports franchise also provides a means to create or improve community fellowship and good feeling, surely a matter that a city council or mayor might find important. A sports franchise is a significant asset; the fact that the team may be owned by a private citizen, even a non-resident, is irrelevant: the team is a city asset, although privately supplied. The city should subsidize this privately owned asset to the extent of public benefits, and indeed will have to given the competition among cities for teams.

5. To me, a professional sports team has attributes of a public good. The "no-subsidy" school of thought (I'm pretending that enough people agree with me to call my position a "school," too) focuses on the fan experience from inside the stadium in assessing the benefits of a team. (To be fair, assessing the more diffuse, public benefits is probably too difficult.) But many fans never set foot in the stadium, yet still benefit from the team. For these fans, the pro team product is non-excludable and non-rivalrous. The owners of the team can't exclude these fans (and thus can't make them pay for their consumption); consumption by one fan doesn't diminish the product for another. (Indeed, something like a network effect probably happens: the more fans the team has, the more the other fans enjoy their own fanaticism.) These non-attending fans do pay the teams indirectly, by watching television ads or buying some merchandise, but nowhere near their consumption. The price for the rest of their consumption is paid by the city.

6. Here's the real mystery: some critics of public funding say that presence of sports teams does not generate economic renewal or improvement in the area surrounding the stadium. I was on a panel recently at a symposium at Villanova Law School (click here for brochure and webcast). In the panel previous to mine, an economist (an opponent of public subsidies) showed the audience two images. The first, of Wrigley Field in Chicago from an aerial view, showed how the famous stadium is surrounded by bars and restaurants. The second image, of the new, publicly financed U.S. Cellular ballpark, showed the big ballpark enclosed by highways and parking lots, with none of the neighborhood amenities proximate to Wrigley. His point was that Wrigley, built a century ago with private funds, had generated area economic benefits, namely jobs, whereas the White Sox new home obviously had not. To me, the slides were utterly confusing. First, I wasn't sure exactly how the source of the funding contributed to the demise of the "neighborhood" ball park. Second, it struck me that certainly the new stadium has given rise to plenty of bars and restaurants, it's just that these new bars and such are located inside the stadium. The decision about the location of the amenities involves consideration of fan convenience and safety. Regardless of the location of the bars, the jobs provided to the local workers, and even ownership opportunities, are the same. How the stadium looks from the sky seems quite irrelevant.

7. The economist at the conference, in response to my question, said the difference was that the stadium concessions were owned by the team, or by its contractee, and not by local inhabitants. The format of the conference didn't really conduce to a further exchange of views, but I can't see why that's necessarily true, and if so, why it matters. It's just an accounting detail as to who owns the asset. Indeed, the fact that the team can (with a contractor or wholly owned concession) profit further from the good it creates gives the team the desirable incentive to produce as many concesssions and the like as fans would desire. What's the harm in that? I thought fan convenience was a good thing.

8. Of course, if one really for some reason wants fan concessions located outside the stadium (perhaps for use at times other than game times -- although many stadium restaurants have outside access already), then localities should insist that stadium developers purchase the land surrounding the stadium in order to ensure such amenities are created. Indeed, many team owners do purchase the adjacent properties, and presumably use that land for restaurants instead of parking lots if it is more profitable to do so. Yet when stadium developers or team owners do buy up surrounding parcels (as has Ratner in Brooklyn), then the critics charge the owners with hogging all the neighborhood benefits for themselves. But what better way to ensure desirable neighborhood economic effects than to have the developer own a personal stake? What exactly do the critics want? And should the desirability of a stadium and its team be judged by its ability to effect urban renewal anyway?

9. Even the seat licenses and higher ticket prices that come with new stadiums seem unproblematic. Everyone likes a winning team. Winning takes money, and teams have to make that money from their fans. If reducing the number of seats and making them more expensive raises revenue, then it has to be done. It is unreasonable to want a monopolist to come to town and then complain when the monopolist extracts monopoly profits.

10. The fans who are priced out of the stadium I'm sure don't like it. They would regard this whole affair as a transfer of public funds from their pocket to those of their better-off brethren. But remember that these fans, who may fall into the "non-attending fan" category, have their consumption of games subsidized by public funds too. More abstractly, what does it mean to be a fan? Would I want my team to be poorer, and thus less competitive, or even potentially leave town just so I could sit in my cheap seat? At bottom, the price of fielding a competitive team has gone up. The new stadium provides a vehicle for the team to extract that price; it's not the cause of the price increase, only the vehicle for it. Bad stadium seats are pretty inexpensive, and always will be. (One can swing from the lights at a Dallas Mavericks game for $2.00.) Good seats are pricey; if a nice, new stadium has nothing but good seats, then it will have nothing but expensive ones.

11. All is not perfect, of course. Sometimes cities, like any buyer, get a bad deal. The distortions of the NFL's revenue sharing (share ticket gate, not concessions and luxury boxes) certainly drive the new stadium market forward at the margin. (Indeed, this is probably not an unintended consequence: the NFL obviously prefers to take its monopoly profits by driving the cities to produce new stadiums.) Some of the sparkling new arenas seem excessive by any measure (check out this Texas-sized example of conspicuous consumption). But it's still not too bad a market, and certainly not deserving of the widespread academic criticism it receives.

New Book! A Must Read for (My) Christmas

2008-10-29T17:38:00.000-07:00

Looking for the ideal Holiday present? I mean for me. How about buying my new sports law book and giving it to someone, even yourself? It makes an ideal gift for any religious holiday, birthday, or even your anniversary. Taking Sports Seriously: Law and Sports in Contemporary American Culture takes on all the fun issues of sports law, collecting a selection of my essays from this and other blogs, opinion journals and lawyer newspapers, plus a few items that have yet to appear anywhere. I plan to give it to every loved one I know (so if you know me and even barely qualify as a loved one, it's coming), and as your sports lawyer, I would urge you to do the same. The book can function as a classroom discussion-starter in a law or management course or as a good read on the weekend. I have two other book projects in the works, so you'd better get started with this one lest you fall behind.

The book is available at the publisher's website or from Amazon.

What Golf Can Teach the Rest of Us (Part One)

2008-10-28T19:36:00.000-07:00

Golf is a great sport for many reasons, just one of which is the fascinating counterpoint it provides to the other professional sports, and perhaps even to much of life. For golf is unique, even among the individual sports. Professional golf is pure, unalloyed competition. It has no unions, no leagues, no guaranteed contracts, no appearance fees, no parity rules, no striving for competitive balance, and no games determined by dubious referee calls. Its only rules are those essential for staging tournaments and playing the game. It is about as close to the economist's imagined "free market" model as we're likely to see in this age of the modern administrative state where people are defined in substantial part in terms of their group affiliations, workplace status, ethnic identity, and legally validated relationships. Golf is wide open, unadulterated, unvarnished competition. It shows the virtues (and limitations) of a radical free market approach to sports.

Above all, golf is instructive. It provides a serious argument against the top-heavy, rule-bound structure of other American professional sports. Have a serious problem? Look to golf for an answer, at least the answer a free market might provide.

Don't believe me? Here are three serious problems in contemporary American sports. Watch how golf supplies a creative solution. Due to fears of overwhelming the internet, I'll break this discussion into three separate posts, one for each problem.

How to Finance Beginners

The other night I was having dinner with three amicable law students. One of the topics of discussion was the significant financial debt with which law students, like most college and graduate students, enter the work place. Of course for most of these students the debt repayments are subsidized by the federal government: free money. Nonetheless, the weight of the impending debt repayments poses significant problems for these young people, and come at a time in the young lawyer's life when earnings will be at their lowest. Added to the mix is the reality that other, non-tuition debt obligations have often piled up after three years (mostly) out of the work force. This overwhelming debt undoubtedly influences career and life decisions, forcing these young people to seek the highest wage possible, postpone child-bearing, and avoid any pleasurable or socially beneficial pursuits that might interfere with their earnings. Debt matters. Debt hurts.

I recently had occasion to have lunch with a young man (a son of a friend) who shall in a couple of years try his fortune as a professional golfer. (Yes, I eat often, every day in fact.) Just like the young lawyers, this person plans to spend three or four expensive years learning his trade, in his case taking his game on the road to play in various minor-level pro tournaments in the hope of playing his way up to the lucrative PGA Tour. Would this young golfer, like our young lawyers, turn to debt (albeit without the nice government subsidy) to fund his education? In small part, yes, he will borrow a little money. But the amount of money he'll need to fund three years of full-time golf approximates the funds the student needs to complete law school, something approaching $100,000. With no government handout available and with no bank willing to lend on such an endeavor, where will this talented young golfer get that kind of money?

The answer: he plans to sell himself. Or more specifically, he'll sell shares of his future earnings in exchange for cash up front. His investors will give him thousands of dollars each in exchange for a small percentage of his future winnings over a specific period of time. (Indeed, I'll invest some; this kid can really play.) He's just a businessman raising venture capital, only this investment is directed into human capital, not into some business plan. This method of financing is common among fledgling golfers.

What perplexes me is why don't law students (or other higher education students) do the same thing? Why don't they raise funds like any other new business, on the venture capital market? Don't they watch golf? (Indeed, why don't colleges and universities make this market? Just give away their education in exchange for an equity position in the graduate's future. You mean to tell me a school couldn't make money from this? And eradicate the onerous distortions of debt?) A law student could raise his tuition by selling a small percentage of his future wages. The student could graduate debt free but have to pay 3% of his income to his investors for the next twenty years, or something like that. Indeed, given the fact that so many graduates do so well financially (at least in the law profession), I wonder sometimes why schools basically demand that students incur debt. If I ran a university (for some reason, no one's asked me yet), I'd take an equity position in my graduates, some of whom are sure to hit the jackpot. Moreover, I'd be doing my students a favor, helping them avoid the distorting influences of debt on their career and personal choices. What student wouldn't take "free tuition" in exchange for a tiny percentage of their post-graduate salary spread over several decades?

Golf's approach to funding its young players could also help solve some of the problems surrounding college athletic scholarships. Universities who admit students for their athletic prowess could, instead of supplying a grant-in-aid, be required to purchase (perhaps with the proceeds held in trust during the amateur career) an equity stake in the student's future earnings, whether the student makes it as a pro or not. What better way to put the university on the athlete's side? The school will do everything it can to further the player's career chances, helping him leave school early if his pro prospects are bright, or to work further on his game if they're not. And what about the washout? No longer will the student whose athletic light has dimmed be cast aside, later to be sent home uneducated and un-graduated at the conclusion of his college eligibility. The school will do everything it can to re-train this young person and place him in a productive career.

Golf's historic practice of investors sponsoring a young player puts everyone on the same team. The golfer and his investors all want the same success. With the debt financing that is common in higher education and the scholarship that is the means to employ labor for college sports teams, the various relationships are at bottom antagonistic. The student incurs debt and demands a product from his supplier (the educational institution) that will suffice to pay that debt back; today's student-athlete is given a payment (the scholarship) and now has to work it off each season, much like an employee. None of these relationships are optimal.

Equity puts everyone on the same side.

Book Notes: Game On

2008-10-11T21:37:00.000-07:00

Tom Farrey, Game On: The All-American Race to Make Champions of Our Children (ESPN Books, 2008)

Sorry for the inattention, blog readers, but a recent motorcycle accident knocked out a few weeks I'll never get back. (I performed an aerial maneuver while my bike stayed on the ground.) One good aspect of suffering broken bones: a family-sized prescription to percocet, supplied by a doctor indifferent to my volatile addiction profile! Thanks doc. The other upside is a little extra time to read, even in the middle of a busy semester. (Of course I can only cover about one page per hour with my eyes dancing over the words.)

There's so much to like about this book that I hesitate to criticize. Tom Farrey looks at all aspects of youth sports. And I mean all aspects: his reportage at times careens around from topic to topic. Obviously a discussion of such breadth is going to be difficult to organize. Farrey settled on arranging each chapter by the athlete's age: except for chapter one (discussion of sperm banks) and chapter twelve (discussion of Little League World Series), the age thing doesn't quite work. The result produces a narrative a bit hard to track (especially if one is loaded up on painkillers and has to close one eye to find the next line of text).

Nevertheless, the book is absolutely an essential read for anyone who cares about youth and amateur sports. Farrey is insightful and diligent, and makes an overwhelming case that the biggest mistake in American youth sports is our collective insistence on winnowing out the weaker players in favor of the stronger. Farrey also delivers several criticisms of the easy target, the ultra-competitive youth coach who overemphasizes victory at the expense of development.

One of those criticisms is frighteningly true. The other is so wrong it threatens to undo whatever benefit the first criticism may produce.

1. The heart of the problem is the mirage of the early developing child athlete. We see this mirage all the time. We see the twelve-year-old, larger and more muscular than his peers, throwing a baseball at sixty miles per hour and project him right into the Mariners' starting rotation. It's ridiculous, obviously, but something about human perception or psychology (it's either the "salience effect" or the "recency effect," I can't figure out which) makes us draw the ineluctable, yet utterly erroneous, conclusion about future performance. It's the same mistake Malthus made. The past is not prologue, friends. The kid's not going to play pro ball. He's not even going to get the college scholarship. He's just developed early, and in many cases, his development may be close to done. The peak of his athletic career may be now.

2. The early developer may not even make the high school varsity. At least may not if the competition were on a level playing field. But it turns out it's not. The youth sports system effectively guarantees the early developer a varsity spot. For at the same time as we fawn over the early developing athlete, praising and promoting him, we dismiss the late bloomer. The smaller, slower kid is discouraged in a thousand ways: on average, he plays less important postions, sits more on the bench, gets cut from the team, is channeled to less competitive sports, and by and large quits most sports by the age of fourteen. Frustrated with his apparent lack of athleticism, he quits just as he starts his growth spurt and begins to develop adult musculature and coordination. As a result, when our children reach the age of maximum athleticism, probably in their early twenties, the late blooming child and probably even the normal developer are both long gone. We stupidly push the great majority of our potential athletic stars away from sports. With so many athletes cast aside, those early developers who remain form the entire pool eligible for our national teams and professional sports.

No other nation in the world so determinedly and inexplicably discourages the large majority of its young athletes from playing. It's no wonder that even some of America's great professional leagues suffer from perceived dilutions of player talent. As Farrey writes, if the U.S. ever kept all its athletes involved in sports, as do other nations, and picked national teams from the entire pool of available athletic talent, then given America's vast sports-minded and athletic population, we'd never lose another international competition. We shoot ourselves in the foot, repeatedly.

3. The main culprits in this sad story are three, as best I could count. (You try counting on drugs, even to three.) First is the indefensible latitude most states give to parents to hold their children back in school in order to gain academic and athletic advantages. I've written about this here. It's nothing short of cheating. At a time when even a single year's difference can mean a lot in terms of size, musculature and athletic performance, these overage children literally drive the younger ones off the playing field and out of competitive sports. A few states have laws precluding nineteen-year-olds from playing high school sports. This simple rule tells parents of newborns that they can't manipulate their little boy or girl into high school stardom and collegiate scholarships. Every state high school association should adopt it, just to put an end to the grade terror that is destroying youth sports.

4. The second guilty party is the schools themselves. Young athletes at about age thirteen typically graduate from broad-based, participatory, quasi-recreational sports leagues (think Little League, but don't think of the Little League World Series) to middle school sports. In this day of consolidated, overcrowded classrooms, schools still cling to the antiquated "one school = one team" tradition. It's cheaper to boot. Consequentially, dozens of athletes from the youth leagues now have to compete for a comparatively very few spots on the school team. Even if they make the team, they must compete again for scarce playing time and coveted positions. Left behind are committed and talented young players. They are eliminated not just from the team, but essentially from the entire sport, as non-scholastic opportunities to play are hard to find and typically not very serious. Similar in effect to the school teams are the youth "travel teams," which can reach down to even elementary school age groups. By selecting some players and excluding others, the travel teams basically decide which players get to continue in that sport and which don't. Even worse, once the travel team takes away the best players from a sport, in most cases the leftovers are insufficiently numerous (or interested) to form a team to carry on. The travel team destroys the recreational league and kicks most of its players to the curb.

5. According to Farrey, the final main culprit (and there are many lesser ones) are the youth coaches who focus excessively on winning games. Here I think Farrey's argument falters. Farrey is a fan of an outfit called the Positive Coaching Alliance. (You can check out their web site here.) These people obviously mean well. But I am leery of any efforts to minimize the competitiveness of sports, youth or otherwise. I like the coaches of my sons to be competitive and try to win. I cringe when the coach says he wants to teach a "life lesson" as the PCA group describes, meaning some lesson or goal other than trying to win. Sports is about trying to win; that's the point of it and the only reason to play.

One of my boys once had a basketball coach who wanted to make sure everyone on the team got to score. So after a while during a game, the team essentially (in my view) stopped playing basketball. Whoever's turn it was to score had to take the next shot. The team would come down the court on offense and players would pass up wide open shots to feed the ball to the kid whose turn it was to score. My kid once sat down on the court in the middle of this nonsense, bored. He wanted to play a competitive sport; it wasn't "sharing time." I've seen another coach order something similar in soccer, with his team forced to not take wide open shots in favor of additional passes to under-served teammates. Now one might say those coaches went "too far" or something like that, but really, if one is going to be non-competitive and egalitarian then isn't the approach of those coaches simply a frank and honest attempt at being noncompetitive? If the aim of the contest is not to win then why pretend otherwise?

The egalitarians in sports always want to temper competition, whether it be youth coaches instructing players not to shoot or national columnists castigating professional or college teams for running up the score. (Gregg Easterbrook of Tuesday Morning Quarterback fame is particularly zealous in his egalitarian efforts to take the competition out of sports. See here and here, for my particularly unzealous reactions.) But sports is about unalloyed competition. If the score gets out of hand, turn off the scoreboard. If a youth team is overmatched, change a couple of players over to the other team. Don't stop trying to score. Competition is fun. I want my sons to play sports to learn a life lesson, but just a single life lesson, the lesson of trying as hard as you can to win at something, then winning with grace or losing with dignity. Learning how to compete and, yes, how to win is an important life skill and life lesson. Youth sports is one of the very few socially sanctioned opportunities left to today's children to actually try to win at something, to prevail over another person or another team. It's the last remaining outlet for competitive children. Let's not throw out the baby with the bathwater here.

6. The supposed lack of positive coaching has nothing to do with the current crisis in youth sports. Limit children to playing organized sports with others of the same age, and require large schools to field sufficient varsity teams to accommodate all interested athletes. These simple reforms would create ample room to maintain widespread participation in youth sports. High schools have to provide enough language or math classes to meet student needs; similarly they should have to meet student interests in athletic endeavors, except where costs are prohibitive. Maybe one football team per school is the financial limit. But basketball teams could more easily be multiplied. One of the main costs, transportation, could be mitigated by more intra-school games. Further, with multiple teams per school, the rigid classification system that groups schools by size (and hence creates travel nightmares) would be unnecessary. So what if high school sports takes on some of the attributes of intramurals? I played intramural basketball in college. Those games were some of the most intense, competitive and fun sports, ever. Guys wiped away the blood and kept playing. Middle and high school athletes would enjoy such games just as much. Even more, they would keep playing the sport, so that, when sports get serious at the college, Olympic and professional levels, they'd still be around to try out for the team.

All's Not Perfect With Sports Either

2008-09-03T22:52:00.000-07:00

A paper (linked here, which I came across here) by law professor Clayton Gillette compares the market for law professors to the market for free agent professional athletes, notably baseball players. And guess what: the athletes come out on top! (Sports and law plus a little industry gossip: basically everything TSLP cares about, all in one paper!) Gillette's basic point is that sports free agency works pretty well for sports, in terms of bringing about at least a decent version of an optimal distribution of the best players among teams. But in the world of legal education, "free agency" among law professors (by which he means the growing phenomenon of professors' quitting one employer for another) does not obviously seem to auger much good for anybody except the free agent professor, and even then not for sure.

It is nice to be flattered, and Gillette's rosy view of sports presents exactly the kind of idyllic image that keeps those stadia turnstiles spinning. But alas, it's all untrue! I'm unhappy to report that the world of sports is just as screwed up as the nutty world of legal education. If free agency works well enough in the former then it should work just as poorly in the latter.

In other words, if Gillette is looking for an ideal version of an unfettered labor market, he's looking in the wrong direction. To put it another way, if you like it when people use sports metaphors to talk about serious subjects, then grab a bat and step up to the plate, this entry is for you.

1. First of all, baseball general managers in hiring free agents make mistakes all the time. Players typically perform better in their final contract year on the cusp of free agency. They just as typically suffer a drop in performance after the big free agent deal is signed. Teams signing free agents do not on average win more games (compared to their previous season) than those that refrain from signing free agents. So how is that a good free agent market? Gillette points out that sports GM's have the luxury of looking at relatively clear performance data in selecting free agents, whereas law schools have only the murky and subjective analysis of the quality or merit of academic performance. True, but sports GM's have a huge disadvantage in comparison to law faculties: the careers of athletes are remarkably short. Unlike law professors, who dawdle in comfortable desk chairs and lean on the podia for decades, athletes come and go in a few brief seasons. What's more, even a great law professor whose performance, due to age or indifference, diminishes over time still brings huge reputational benefits to his new school. In the world of sports (outside of perhaps a few legendary players) once a player's performance diminishes he loses most of his value to his new team. So, even though baseball GM's do have better data to examine in hiring than does the law school hiring committee, the relevance of that data to future performance is pure guesswork. In legal education, hiring schools get exactly the reputation they buy. Law schools have better data in hiring free agents.

2. Next, Gillette argues that hiring faculties focus almost exclusively on a free agent's published scholarship, and thus do not usually examine closely all the relevant performance data about a free agent professor, such as classroom teaching or institutional service. Gillette envies the baseball general manager, who has data about every aspect of the free agent's performance at his fingertips. Yes, the GM has all this information, but appears not to use it! Chicks dig the long ball, and so do baseball's GM"s. Salaries correlate highly with slugging; everything else seems to matter barely at all. Think Manny Ramirez' next contract will be diminished much because the guy plays the outfield like a little leaguer? The same holds true in other sports: NBA players get paid according to scoring averages, no matter how many zillion shots (and team losses) it took the ball hog to achieve that average. Remember, Allen Iverson is a wealthy man. Even though hiring GM's have all this data about every aspect of player performance, when it comes to setting the salary at the highest end they throw all that data away and pay for home runs, much like hiring schools pay for the "home runs" in legal scholarship. Is it irrational, as Gillette suggests? Or is the school/baseball GM simply responding to an explicit or implicit understanding that the home runs contribute more to winning games (or achieving school rank) than do other assessment factors? In other words, would a hiring faculty that had cheap, quantifed and meaningful evidence of the teaching/institutional performance of a potential hire rationally give it much regard?

3. Gillette's big point is that baseball teams have a residual claimant (that would be the team owners, although perhaps the season-ticket holders might qualify too). The presence of a residual claimant ensures that all the costs and benefits of a new hire are considered before an offer is made. In comparison, the "owners" and other stake-holders for law schools are too diffuse, disinterested and impermanent to oversee the machinations of the hiring committee. In legal education, he argues, the fact that a new hire may, for instance, be a substandard teacher or a negligible institutional contributor will be overlooked simply because the people affected by these performance deficits (students, alumni, even other professors) will not be involved enough or care enough to assert their interests.

This optimistic view of baseball mischaracterizes it. Unlike law schools, baseball teams are not engaged in unalloyed competition. They compete on the field, but cooperate off it. Just ask Bud Selig. Bud says that MLB is a single product, a single entity, an argument he and every sports commissioner has made for years in court and everywhere else. The Red Sox vs. the Yankees is a competition between teams, but it is the competition itself (brought about by cooperation between the teams and oversight by MLB) that is the product fans pay to see. This unique blend of cooperation/competition that characterizes professional sports in America is also its greatest obstacle: there is no single residual claimant for Major League Baseball, no single owner who can assess the aggregate costs and benefits in filling rosters, scheduling games or anything else. So to get his teams to do the "right" thing, by which I mean the profitable thing, Selig has to lead his collection of teams through weeks of discussion and argument, and months of haggling and cajoling. Just like a faculty committee. Remember, it took nearly a decade for MLB to put a franchise in Washington, D.C. (even though it was completely obvious that it would be hugely successful, which it has been) all because the law school grad who owns the team in Balitimore didn't want some newbie stepping on his turf. Sound familiar? Sounds like a faculty meeting.

4. Gillette seems pretty happy with the results of free agency in baseball. Clearly he's a Red Sox fan.

Tennis' Problem with Gambling

2008-09-01T16:13:00.000-07:00

I'm no gambler. My infrequent trips to the local Indian casino, coupled with my annual entry into a friendly March Madness pool, have made it clear to me that gambling is, at least for me, a losing proposition. Yet just because I lose doesn't mean everyone does. Someone's a happy counterparty to my bets, even if it's the rake.

That's what people sometimes forget about the betting scandals that have come to light in professional tennis (and of course pro basketball): bets are exchanged. Every seller of a wagering proposition has to find a buyer. It's just a market transaction, albeit a prohibited one.

There's nothing necessarily wrong or obviously unwise with banning certain market transactions. The usual reason has to do with morality (prostitution is an example) or with perceived neighborhood effects (controlled substances). I'm not going to argue that betting by athletic participants on their own games has no moral dimension or no neighborhood effects. (I've done that before.) Prediction exchanges on sports results has many beneficial aspects too, by the way.

What I want to argue here is that, in the world of impermissible sports wagering, betting by tennis players in particular is the least of our worries. In other words, if you don't care about tennis betting, you're right.

1. It is predictable that tennis players in particular would bet on their matches. Without the vagaries of teammates' play, game outcomes in individual sports are easier to predict. Higher-seeded tennis players customarily prevail over inferior players. The very top players, like Federer and Nadal, often win without losing a single set. Strong favorites in any sport draw heavy betting action in disproportion to the chances of winning: people love to bet the favorite. Hence bookies must offer more favorable odds (or larger point spreads) to attract sufficient wagers on the underdog to even out the betting action. Disproportionate odds help increase the number and size of bets. The odds are "wrong" (at least in terms of the comparative strength of the players), the money is flowing, the action is everywhere. Players might well be tempted to join in the fun.

2. Individual sports contests are also easier to throw. No cooperation or coordination among teammates is necessary: just a few bad swings of the racquet or golf club and the deed is done. The favorite has lost but the bet has been won. Some might be surprised that betting scandals in tennis have not been more numerous. How could anyone, even an opponent, detect with conviction when an opponent purposely returns a ball just wide, or a bit low and into the net? The answer is that in situations where there is heavy betting action (and thus money to be made) the player who has to throw the match would be the heavy favorite. (After all, the weaker player cannot plausibly throw a match he was destined to lose anyway.) One or two bad shots wouldn't suffice. The superior player would have to intentionally misplay shot after shot, making himself far more vulnerable to detection. So illicit player gambing in tennis appears uncommon.

3. Golfers also could easily and without chance of detection lessen their contest performance. Yet to my knowledge golf has never been disturbed by the news of a player purposely throwing a tournament. In tennis, the disincentive to bet comes from the ease of detection should a heavy favorite intentionally lose. In golf, the problem is it's not easy to identify the player who wins when another loses. With multiple competitors, the one other player who could profit from the leader's purposely losing a tournament may not be identifiable until the final round, or even the final few holes. Until that time, too many competitors would benefit from one player losing, but no one player would benefit sufficiently to induce the competitor to shirk. Golf, like tennis, has endemic properties that are resistant to game fixing.

4. Nonetheless, short of the big payoff from game fixing, tennis players can make some money from placing bets against themselves and then losing. It won't be the big money that a heavy favorite would make from throwing a match to a low seed, but it appears there's enough action on the side bet, even in matches between journeymen pros, to make throwing a match worthwhile financialy. To continue the comparison between the predominate individual sports, a golfer similarly could bet against himself. Again, unless he were Tiger Woods (who because of the heavy action on him could win a large amount), the player couldn't practically fix a match, but could take whatever action he could find and bet against himself to make money. It is always easier to lose than to win, or hit a bad shot instead of a good one.

5. So the recent tennis scandals must be kept in perspective. The money's not as big as a fixed match by a tournament favorite. The players most likely to bet against themselves are journeymen. The ultimate results of the tournament will not be changed. The sport will go on, even if a few lower-level matches are determined by betting rather than on the court.

6. The other important factor is that all bets require a counterparty. Players who wish to bet against themselves must find a sucker to take the action. Since presumably no one would willingly stand as the counterparty to a player's bet against himself, players who wish to profit from a bet to lose must find cut-outs to place bets for them, or must settle to taking some percentage from some others who can bet without easy detection. In other words, the athlete is the agent, never the principal. (It is possible that a bettor would willingly take an athlete's action, much like investors take the opposite side of insiders selling stock of their own company, but unlikely, given the athlete's control over the outcome.) This reduced role limits the athlete's profits from the bet, further diminishing the likelihood of thrown contests.

7. As far as the counterparties go, why should the rest of us care? Implicit in any exchange of a prediction is that the some members of the opposing parties may have superior information. In the sports world, such information could take the form of injury data, player performance information, coaching advantages, and the like; it could also stem from information direct from the athlete's mouth. Any bettor is by definition aware that a roughly equal number of bettors is taking the opposite position. The market for bets seems to clear itself without the need for public intervention; a healthy, thriving market presents no evidence of "market failure." Some legal scholars see a market failure under every rock, calling for legal measures to cure imagined economic problems. In the betting world, both sides to a transaction are vigilant in watching their money. If they're not, they'll learn or get out of the market. Bookies are skilled at discovering fixed contests. The market functions fine.

8. All that's left is the claimed spillover effects. The supposition is that members of the public will lose interest in a game that might be fixed. I doubt it. Sports fans seem to tolerate all kinds of contests that are obviously not on the level: fans flocked to see pitchers trying to strike out known steroid users; fans will soon tune it to pro football games whose gargantuan linemen boast seemingly unnatural physiques. We'll even tolerate unmotivated athletes who seem to care little about winning but much about their salaries. Sports is full of corruption. Indeed, it's part of its fascination, sort of like the marital habits of celebrities is for fans of popular culture. Tennis goes on, betting scandals or not. Players can choose to lose a match for all kinds of reasons having nothing to do with money. That money may occasionally provide a motivation is consistent with the vagaries of individual contests.