The Sports Law Professor

The Problem with the Red Sox-Dodgers Trade

2012-08-28T13:28:00.001-07:00

So my favorite team swapped my favorite player (and the team's best) to the Dodgers, along with two other solid players, for a handful of minor league players of various promise. Obviously, in terms of baseball talent, this is a very lopsided trade. The mixture of prospects coming to the Sox falls well short of equalizing the baseball talent going the other way. Even good prospects may never find a useful role in Boston.

Yet from all accounts, Boston fans are celebrating the trade. What the trade provides is not baseball talent, but payroll relief. This is new. The Red Sox, like other "big-market" (that is, profitable) teams, never before had to worry about payroll and finding ways to jettison the contracts of under-performing veterans. Trades made for financial flexibility, transferring bad contracts to teams with salary space, is the hallmark of the NBA, with its notably "hard" salary cap. Major League Baseball has never had a cap; now it appears it does, albeit in the form of an increasingly punitive luxury tax that it seems even very profitable teams like the Boston Red Sox cannot ignore.

MLB has suddenly become the NBA. And that's a problem. 1. Baseball has by far the longest schedule of all the professional leagues. More than any other sport, it relies on local income streams, including gate receipts, local television contracts, concessions and parking, and so forth, for a substantial portion of its total revenue. Local interest sustained over the long season is the key to baseball's financial viability. Contrast this with the NFL, which is the most television-friendly, national-level sport in history. The NFL's short season, culminating in a playoff tournament, fits perfectly into the national television schedule. Indeed, the NFL's national revenue streams are so great, it can afford to put franchises anywhere it pleases, no matter how small the locality (Green Bay), or anywhere it pleases not, no matter how large (Los Angeles).

2. Large variations in local revenues have historically allowed the most successful baseball teams in the best markets, like the Yankees or Red Sox, to sustain the highest team payrolls. In baseball, although player salaries do not easily translate into player achievement; total team payroll does not correlate much with winning percentage. Yet a high salary structure does allow teams to remain competitive, and fielding a competitive team, one that takes part in the season-long pennant race, has been adequate to maintain the large local revenue streams in the largest markets.

3. MLB is shooting itself in the foot. First, expansion of playoff eligibility, with the advent of one and now two "Wild Card" entrants, extended playoff length, and moving divisional playoffs from three games to five and now seven, has steadily denuded the value and importance of late-summer games in the regular season. The slow, steady march of a pennant race, often reaching its crescendo in the season's final weeks, is mostly a thing of the past. Like a football team whose playoff spot is assured, baseball's best teams now typically spend the final weeks of the season resting their best players, even in games that might determine divisional winners. Baseball's new approach, placing so much importance on the tournament and not the regular season, obviously works for the NFL. But NFL fans will watch the best teams play, whether those teams are from Green Bay or New York, and will watch no matter where the game takes place. In essence, a football game takes place on Fox or CBS or ESPN. Football is a studio game, with neat, perpendicular lines and carefully timed play and endemic commercial breaks..But baseball is the opposite of neat and perpendicular and timed; baseball fans will be less inclined to tune into seemingly endless playoff games if the teams involved are not their favorites. Baseball has thrived for over a century relying on local interest, impassioned fans, and the slow yet thrilling momentum of the pennant race. With all the other professional league sports more and more highlighting playoff tournaments, baseball stood out as the one sport where the regular season still mattered, and mattered most. No longer.

4. Along with a meaningful regular season, MLB has one other ingredient essential to its continued success, and that is the success of its several flagship teams. The only point in my lifetime where MLB struggled financially was during the late 1980's, when the Yankees were a second-division team. As much as it hurts me to say it, MLB needs the Yankees to be a dominant team. As one of the few truly national teams, the Yankees can draw national television ratings, can fill up typically empty ballparks when they visit, and can earn large rents on its local television, merchandise, advertising and vendor contracts. Forget that the Yankees make more money than the Royals; the fact is that the Yankees create a huge stream of revenue from the consumption of baseball; that the money for the most part flows to the Yankees' coffer and not the Royals is a mere detail. Assuming that other attributes, like managerial skill, are distributed equally, the only way for the Yankees to maintain and enhance their profits is to command the market on the best baseball talent. A salary cap, even in the more flexible form of a luxury tax, threatens that command.

5. Baseball needs strong, profitable teams in its biggest markets. A salary cap or its equivalent could impede that necessity. What's worse, the salary cap serves little purpose: baseball has inherent parity. Each season, even the worst teams in the league still manage to win about 40 percent of their games; the best win about 60. So even the worst teams will win four out of ten games, despite remarkable disparities in payroll, revenues, and other indicia of success. Baseball does not need parity-enhancing rules such as the salary cap. (Ironically, the league with the most parity rules, the NFL, has the least parity: each year the worst team in the league threatens to go winless, while the best team flirts with perfection.) So baseball is threatening to kill the goose that lays the golden egg (yes, my Red Sox) for nothing.

The trade was a salary dump. It is not a good development when baseball's new rules require one of baseball's most profitable teams to trade one of its best players.

NBA at the Crossroads

2011-11-13T14:13:00.000-08:00

The NBA and its players appear unable to reach an agreement on the terms and conditions of labor. A number of proposals have been rejected. From available reports, the primary difference appears to center around the division of income. I suspect, however, that the division of income forms only part of the dispute; the owners have been seeking some very fundamental alterations in the structure of the league, including limits on individual salaries, terminable contracts, and a tightened salary cap. But even if the popular reports are correct and the revenue split is all that stands in the way of an agreement, the fact that the sides have been unable to arrive at satisfying division implies more is at work than simply recalculating percentages.

What could be emerging in the NBA is a complete re-working of league arrangements. The NBA, like most professional sports leagues, embodies a delicate balance between owners with profitable teams and those without, between players paid huge sums and those paid much less, and between agents on the inside and those on the out. There are a lot of moving parts here, and the threat of union decertification that has emerged in the last few weeks suggests that the whole edifice may be about to crash to the ground.

I suspect there is something important going on with the talk by players of decertification. As we've seen recently with the NFL, the usual purpose of decertification is to unleash an antitrust suit against the owners. But it appears that the NBA players who are pushing for decertification may not be targeting the owners. They may be targeting the union.

1. As a formal matter, decertification ends the union, after a period of time. With the end of the union comes the end of the owners' collective exemption from antitrust law. This means that the owners' ability to act jointly in setting the terms and conditions of labor would then be subject to antitrust scrutiny. Although the owners have some very good arguments to justify their collective action, the fact of the matter is that sports owners in general have not done well at the bar of justice. If these hypothetical antitrust suits were to be filed and proceed all the way to the merits, the owners could find many of their questionable labor practices ended, including the rookie draft, salary restrictions, including maximum salaries and the cap, and limitations on freedom of movement by both players and franchises. Decertification could radically change the league.

2. So decertification does provide a means to attack restrictions imposed by owners, albeit by a very long-term and unpredictable process. But decertification provides this means by eliminating the union. Might the intermediate step be the real goal? Might the players be better off without a union?

3. It depends on the player. Like other unions, the NBPA is organized around the principle of "one member, one vote." Each player's vote counts the same. This practice can be problematic in any union where members might have significantly disparate interests. Salary and tenure in professional sports varies markedly among players. In the NBA, star players typically make several times the salary of the journeyman. Arguably, the stars could make even more. The NBA is a league of stars, and with only a few players on the court at a time, stars determine winners and losers. Despite the salience of stars, NBA teams have deep rosters, high minimum wages, and carefully negotiated salary cap exceptions. All of these features are designed to funnel higher wages to veteran, league-average players. Thus, a lot of the money putatively earned by the stars is allocated to average players. The union exists for its majority, and the union's business is to redirect money that would go to stars toward the union rank and file. In a workplace situation where salaries are so disparate, such an arrangement is a powderkeg.

4. The owners have a similar predicament. Most businesses are organized in such a way that the person who has the largest stake in the business is accorded the most control. Someone who owns 70% of a corporation, for instance, will not expect merely "one vote" among other owners in setting the course of the enterprise. Yet that's exactly how the NBA, like other sports leagues, is arranged. The teams that generate the most revenue and thus keep the league afloat are given no more say in running the league than is the most inefficient, money-losing owner of the worst franchise. "One member, one vote" is not only an odd way to run a business; it condemns the league's owners to a perduring state of squabbling among the wealthy and the poor. And the squabble has a theme: the poor want to take from the rich. The small-market owners want the big-market owners to send them a cut of their revenues. Because the owners need to be sure that any revenue-sharing arrangement is protected from antitrust attack, the owners use the periodic reopening of the collective bargaining agreement as an opportunity to reset revenue sharing agreement. Every labor battle contains an "owner battle" too. Like star players, highly profitable owners chafe in having to share their earnings with their less-productive brethren.

5. So the existence of the union sets up a class battle of the haves and have-nots (granted, among wealthy people). The practice of "one member, one vote" means the have-nots among both players and owners outnumber the haves, and will use the collective bargaining process to increase their earnings. Yet it doesn't have to be this way. It is not written in stone that professional athletes must be represented by a union. Might the stars have had enough? Lebron James is paid only 13 million dollars per year (yes, not bad). But that's 13 million per year for 82 games plus another pile of playoff games. On an open market, his salary would likely increase by several times. (For evidence, ten years ago, without a salary cap and without free agency, Michael Jordan was paid a salary over 30 million per year for a similar slate of performances.) The star players, and the "star" franchises, are leaving a lot of money on the table. I can't imagine that sits too well with them, all this talk about unity and brotherhood notwithstanding.

6. Which finally brings us to the agents. They have been mostly invisible during the entire labor dispute. Yet they bear, as usual, the brunt of media displeasure, being blamed for fueling the complaints of the star players, holding up union approval, and generally standing in the way of the return of NBA basketball. (I don't see why it's wrong or nefarious for an agent to advise a star player that the player could significantly increase his earnings if only the union gave greater deference to the stars who generate most of the profits.) The process would be smoother if the agents were given a place at the table. The view that the agent is paid by the player and has interests that dovetail with the player is antiquated. The word "agent" is a misnomer. It is more realistic today to think of sports agents as placement professionals (the ubiquitous "headhunters" that are common in white-collar occupations). Sports agents represent numerous clients with similar skills who seek a limited number of positions. Although the agent answers to the player (and the union), their salary comes from the money paid by the team. (Some headhunters are paid directly by the business.) If there were no agents, it is probably not the case that all of the agents' salaries would go to an increase in player salary; at least with respect to the journeyman, league-average player, that savings would likely accrue to the team. Thus, for these players, agent salaries are paid by the team, in effect. Why shouldn't the agents negotiate the terms of their salary?

By bringing the agents directly into the process, the NBA would have a better chance at finding a place of provisional repose among its many competing elements.

NFL Players Sell the Rookies Short

2011-07-25T21:49:00.000-07:00

Although details remain undisclosed, it appears the new NFL/NFLPA collective bargaining agreement will contain a substantial limitation on the terms of rookie salaries, especially at the top of the draft. This development is troublesome to me, but to others seems to be a point of celebration. I suspect the players association simply didn't care much about the rookies and were oblivious or even dismissive of their best interests. But not even the media or other commentators appear to care about the rookies either. All seemed to agree that the rookie wages were "too high" and "should" be transferred to the pockets of other players. All seem happy that veteran players and team owners reached an agreement to reduce the salaries of players not yet in the league and not yet part of the union. Why do we celebrate this? We should call the police.

Am I the only person alive who cares about children?

1. Start with the unchecked presumption that there is something wrong with a salary structure that lavishes high salaries on very high rookie draft picks. This money, we've been told forever, "should" go to veteran players who have proved themselves, not to these green, ungrateful kids. Repeatedly we're told the story of the high draft pick who earns a large salary but flops in the league. Yes, that episode is a concern. But what about the larger problem, that of the veteran player who gets his large, front-loaded contract and proceeds to lose interest in football? Why don't the union and the owners conspire to take his money away too?

2. It's simply untrue to claim that rookies drafted in the top of the first round are overpaid. They've been drafted in the top of the first round! They've just won a huge tournament, one for which they've been competing since they first put aside the flag belt and put on real football pads. Their stellar play has earned them fans. They will attract attention to the team, like any new acquisition. They show the team's fans that the team has a chance to improve. Assuming your team is a losing one (and thus likely is awarded a high pick), would you rather have your favorite team re-sign one of its veterans (one of the players who contributed to the losing season) or take an educated chance on landing a new star? Top rookies draw fans and generate hope for the franchise.

3. Football is a young man's game. Yet the rookies, bound by dubious interpretations of federal labor laws to be "represented" by a union they are not yet eligible to join, have money taken out of their pocket by the veterans who control the players association. Why is no one writing that story? Why do the media and commentators swallow without question the union line that trumpets seniority over apprenticeship? If veterans are so valuable, then why aren't teams happy to give up their first-round draft picks for aging stars? Why did star receiver Randy Moss, even in the prime of his career, get traded for a fourth-round draft pick? Because high-round rookies are more valuable than veterans! Yet the media continues to think that Randy Moss was worth far more than a mid-round pick, and that somehow the Patriots "stole" him from the misguided Raiders. It's not the Raiders who are misguided, it's the football media that thinks that veterans are worth more than rookies! Tell me again why the veterans should take the rookies' money?

4. One consequence of the rookie wage scale will be a disappearance of the professional sports agent from the scene. With the contract terms for rookies set in the CBA in both salary and years, there will be little left for the agent to do. If this prediction comes true, this will be a problem. Rookies are very young adults. What they need, as they while away their last years of formal education, is help making the important, impactful decision about whether and when to turn professional. Draft status is huge. Today, agents fill that need. Tomorrow, not so much. How would you like a system that forces you to give up your present occupation (college education, by extension) before you are able to find out if someone else will hire you? Most of us like to have our landing spot secure before we tell the boss to get lost. College kids now will have to take a large jump into the unknown, unaided.

5. Keep in mind that the draft system limits player salaries already. A college player who is drafted may negotiate salary with only one potential employer, unlike the rest of us who can negotiate salary with every employer who has an interest. Although the team that drafts a player is under great pressure to sign the player, lest the valuable asset of the draft pick be wasted, on balance the team has the drafted rookie over the barrel. A rookie who declines the team's best offer can forget about playing professional football, a career for which he's been training most of his life. So, the better argument is probably that salaries for the best rookies, high as they were, are probably smaller than the market would pay without a draft.

Now they will be smaller still.

Why The NBA Labor Fight Will Be A Doozy

2011-06-29T13:23:00.000-07:00

I enjoyed the chance the other day to speak with a magazine writer about the impending NBA lockout. Time permitting, I'm happy to oblige. In our conversation we reviewed the basic issues in the NBA labor-management discussions and their likelihood of resolution. But what troubled me was his last question, for which I admitted not having an answer. Why, he wondered, is the current NFL lockout receiving so much more public attention than the NBA's labor troubles? Why the apparent disparity in media coverage? Does the NFL situation raise more issues, perhaps as a legal matter, than does the NBA's predicament?

No, in fact, less. Comparatively speaking, the NFL labor negotiations should be child's play. The NFL owners already have their league set up in a way they like. But it's the owners of the NBA who are deeply dissatisfied. They are hoping to remake the structure of their league in a very fundamental way. It's the NBA situation, not the NFL's, that should garner most of the media attention and cause worry among sports fans.

Let's break this lockout down, pre-game style.

1. Start with the NFL. From an owner's perspective, the basic labor structure of the league is golden. Player contracts are not guaranteed, meaning that players may be cut at several junctures throughout the NFL year with little financial obligation, short of an injury settlement. Teams operate under a "hard cap" that ensures spending parity among teams. Vigorous sharing among teams of revenue from nearly all sources results in a unified, cohesive and nearly foolproof means of sustaining operations and making a profit. Add in beautiful cheerleaders, huge public exposure, lavish media attention and glistening luxury boxes and, well, it's good to be an NFL owner.

2. So why do we have an NFL lockout? What's the big beef? Not much. There are a few pimples left on the fanny of NFL progress to be sure. The owners want to address inordinate rookie salaries at the top of the draft, to resolve complaints about health care for retired players, and to knock a percentage point or two off the current split of revenue with the players. But none of these seem large enough, even in combination, to justify such a significant labor action as the current lockout. I'm convinced that the owners' beef at this time isn't really with the players or the players association. The owners beef is with themselves. The financially successful teams are tired of subsidizing the financial losers. The NFL's insistent and pervasive approach to revenue sharing is simply irksome to certain owners, like Jerry Jones of the Cowboys and Dan Snyder of the Washington team. Implicitly, revenue sharing rewards failure and penalizes profitability. Yet the only way owners can try to adjust extant revenue sharing provisions is to rewrite the document that contains them, the Collective Bargaining Agreement. And the only way to rewrite the CBA is to let it expire (done) and then negotiate a new one with the players. It's odd, but the owners have to lock out the players in order to renegotiate among themselves.

3. So the NFL lockout in theory should be easy to resolve. The owners have to devise a more acceptable formula for revenue sharing, perhaps including a reduction in overall player compensation to make up for some of the shortfall. But that's it, the lockout is just about money, and for the NFL, there's plenty of that to go around.

4. Things look different in the NBA. It appears the league is not awash in money. The owners have tried to make the public case that they are collectively losing money and that those losses are substantial. Indeed, if the NBA is to be believed, it loses more as a league in total than the entire amount the NFL designates as "revenue sharing" among its teams. So, if the NFL is willing to risk adverse public reaction and experience a prolonged labor battle over revenue sharing, imagine the lengths to which the comparatively smaller NBA will go with even more at stake. The NBA is not asking its players association to give back a small portion of salaries to iron out revenue sharing. Instead, the NBA wants to become the NFL. It wants a hard salary cap, an end to the various cap exceptions, increased revenue sharing, and an overall diminishment in league-wide player compensation. These are big issues that involve changes to the fundamental relationship between players and teams.

5. If the NFL owners are serious about these fundamental changes, and it appears they are, then the players will dig in for a protracted fight. The NBPA is not the NFLPA. The football players union has a sketchy history. Members crossed the picket line with regularity during the last NFL interruption in 1987 and who would likely do so again. That the NFL owners hold the upper hand in their negotiations is beyond dispute. But in the NBA, it's a players league. The players are very well paid, and all but the most profligate should be able to withstand even a significant job action. (For the liberal spenders, they might be able to sign with a foreign league to help make ends meet during the lockout.) The players are also tight, having grown up together playing all-star level basketball and commonly hanging out together after games. This is not the NFL, where players will do nearly anything to win the competition among their teammates to get on the field, and then to win the on-field competition for victory and its spoils. This is the NBA, clubby, tight, and friendly. If the owners want a fight, these players will stick together and give it to them.

6. And they will fight, as will the owners, over the one issue that most animates both sides. Above all, this is the key issue in the NBA labor battle. The issue is the guaranteed contract. Take Rashard Lewis of the Washington Wizards. (Take him, please!, beg the owners.) Lewis is at best a journeyman pro. He is also the second-highest paid player in the league. For the owners, Lewis embodies all that is wrong with the league, where such a mediocre player draws such huge compensation and the owners are powerless to change it. Devoting large compensation to underperforming employees is hardly the ideal business model. For the players, Lewis is the poster child for the good life. A few quality seasons, well-timed with impending free-agency, landed Lewis one of the richest contracts in the sport. This contract ensures him against bad play, poor coaching, or injury, and sets him up financially for life. NBA players have long grown accustomed to teammates with bloated guaranteed contracts sitting on the bench. To them, the situation is not troubling; it's inspiring.

7. So forget about the NFL lockout. That will get fixed soon. Instead, keep your eye on the donnybrook just getting started on the NBA side. If the owners are to ever impose such radical changes in the structure of the sport, if the NBA is to become the NFL in terms of labor relations, then the NBA may have to emulate its brother league. Not the NFL, but the NHL. The NHL had to sacrifice an entire season to bring about fundamental, structural changes in player relations. So might our other favorite winter sport, I'm afraid.

More on Online Poker

2011-05-10T10:32:00.001-07:00

Nobody's very happy about the indictments over online poker. I was a guest this morning on NPR's "On Point" program, hosted by Tom Ashbrook. I repeated the same themes about "state-by-state" regulation. I think we look in vain for a single, national resolution to this issue.

Here's Tom's website. Follow the link to "listen to this show" to hear the discussion.

Online Poker Will Come Again

2011-04-27T21:38:00.000-07:00

Yesterday I did a podcast with Chad Millman of ESPN. You can listen to the conversation here. (It's also available on itunes.) We talked about the indictment of the officers of three of the major online poker operators, including Full Tilt and Poker Stars. Basically I try to make the point that, despite the indictments, online poker is legal in many states, and could soon be in several more. Once online operators realize that federal law prohibits only those games that are unlawful under state law, then the operators should resume offering online poker to U.S. citizens who live or happen to be in one of those states. Once the market is large enough (that is, once it includes California), then we'll have a significant online poker presence in the US again.

I also argue that the DOJ overreached with this indictment. It's a nice discussion. My thanks once again to Chad Millman for the opportunity.

Why An NFL Lockout Makes Sense

2011-01-20T11:52:00.000-08:00

The coverage on the impending NFL labor battle sounds a single theme. The story goes something like this: that if only these greedy and dumb billionaires (the owners) and greedy and dumb millionaires (the players) acted reasonably (in other words, if only they were as generous and smart as the rest of us), we'd have a new NFL labor agreement. If only for once these spoiled rich people would think of the good of the game and the needs of the fans, then all would be well.

Does that account seem sufficient? Is "greedy/dumb" the best explanation we can come up with for why the nation's most popular sports league seems about to shoot itself in the foot? The common story seems a bit glib, even dismissive.

Before we conclude someone's acting irrationally, we observers should first see if we can come up with a rational explanation. Why would the NFL owners and the players rationally choose to take the league into a labor crisis? Given that similar labor battles nearly put the NHL into a death spiral and forever blemished MLB's World Series, how can a work stoppage be desirable? What are these people thinking?

They are thinking rationally. At this point in time, it serves the interests of the NFL owners to lock the players out. A labor fight also serves the interests of the NFLPA. Believe it or not, a labor struggle might also serve the rational interests of the fan. That's what I'm rooting for. Let's not have any football in 2011!

1. Let's start with the owners. It's pretty obvious they believe the last collective bargaining agreement was flawed from the start, even as they voted to adopt it. Then-commissioner Paul Tagliabue's lengthy seventeen-year tenure had established immense credibility that he relied on in his final act in selling the labor deal to reluctant owners. In effect, Tagliabue's generous revenue-sharing deal with the players bought labor peace. He succeeded in avoiding the debacles that had recently plagued other professional leagues. But he also lit a time bomb that will soon burn to the end of the fuse.

2. Given their unhappiness with the last deal, the owners have to lock the players out at the outset of next season. It's the only rational move to make. Staging an NFL season involves huge outlays of money by the owners and their licensees. The itemized list is nearly endless, and includes salaries for players, team officials and staff, game officials and others, plus expenses for stadium use and other physical plant. Add in the costs for contracted licensees, including broadcast, merchandise and concessions companies, and the picture grows larger. For sure the NFL and its licensees make some money back as the season goes along. But all the investments are made with an eye to the big payback, the Super Bowl playoffs, the tournament that caps the season and drives the television ratings and advertising revenue. Why would fans care about a regular season if there were to be no crowned champion? If the owners don't lock out the players, they will risk all their substantial investments on a Super Bowl tournament that may never happen. If the owners fail to lock the players out, they in effect give the upper hand to . . .

3. The players. The players association got the benefit of the "Tagliabue payoff" last go round and have long known this fight was coming. Their new chief, DeMaurice Smith, seems exactly the kind of combative and determined union leader who will push the players' side as much as he can. Imagine if the owners decide not to lock the players out for 2011, proceeding to invest in the coming season without the benefit of a labor contract. Smith would time a strike, or at least the threat of one, at the most propitious time. Much like the MLBPA struck and thus precluded a World Series in 1994, Smith could threaten to dismantle the single most compelling and lucrative day in the sports calendar, Super Bowl Sunday. The owners cannot give the union such immense bargaining leverage.

4. The NFLPA is generally thought to be a relatively weak professional athletes' union. The last time it called a strike, in 1987, member loyalty was erratic. Many NFL stars openly crossed the picket line. Player careers in the NFL are short and pay disparity is large; perhaps those factors account for what appears to be the differing interests of players and the endemic weakness of the players association. Or perhaps union leadership has been lacking. What DeMaurice Smith needs is a stronger union. The selection of Smith, along with some of the strident rhetoric that has come from prominent members, suggests that the NFLPA is trying to mimic the more aggressive leadership style of Major League Baseball's players union. Remember, most of the NFLPA's success as a union during the last century came in courtrooms, not at the bargaining table. To get to the courtroom, the NFLPA has to decertify and then litigate; in other words, the NFLPA in effect has been better off dead. But antitrust litigation is expensive and unpredictable; plus courts are today more agreeable to collective action by employers. The new union leadership should (rationally) want to avoid the courtroom; it should want to enhance member loyalty, improve internal discipline, and hammer out a new CBA from a position of strength. Nothing like a good fight to improve the zeal of the rank and file. At bottom, the NFLPA is spoiling for a fight, and rationally needs one for its own good.

5. And you, Joe Fan, you want a labor fight too. The NFL is a great product, but it's just so expensive to be a fan. It's crazily spendy to see games in person: the costs of tickets, parking, seat licenses, concessions, and the like keeps schoolteachers like me at home. But it's even pricey to watch at home, in a sense, as we free viewers "pay" with our impatient attention to games that feature increasing commercial interruptions, sponsor mentions, and product placements. The NFL even makes its tedious "replay reviews" a chance for commercial sponsorship. I watch very few games live any more, not when I can view a game on my DVR in about 30 minutes. The NFL is just getting too expensive. The game has to reduce costs, and one big cost, the major one actually, is player salaries. Don't think the owners (or the players) are just greedy. The owners are in a very competitive market, probably the most competitive market in contemporary America: the market for your leisure time. Any costs savings the owners can wring from the players will find its way into your pocket, making NFL games more accessible in person and more enjoyable at home.

6. Ssshhh, boom, bah
Player lockout, hurrah!
Cut those costs!
All is not lost!
Don't litigate,
Negotiate!
"Won't be a next year,"
He says, moping,
"Try something new, dear,"
She says, hoping.

The Best of the Year

2010-12-21T16:47:00.000-08:00

Here are some of my favorite things from the past year. I'll try to add a word or two of constructive criticism along with my praise, just in the hope of making these favorites even better the next time the sun orbits the earth.

1. The Best Sports Law Blog of 2010
This was a tough one, as obviously I have a horse in the race. So I checked my calculations twice, tried to remain as objective as I could . . . and the winner is . . . The Sports Law Blog! (Darn it. The Sports Law Professor came in 2139th place, in case you were wondering. There's always next year.) The boys at The Sports Law Blog have pretty much become my go-to people for links to new developments, academic articles in the field, and upcoming conferences. There's really no substitute, and I point my browser to the site nearly every day. At times the blog can become a bit self-promotional, but that's an excusable folly. What's less excusable is the habit into which some of the authors have fallen of just raising an issue for discussion and (apparently) hoping for an answer to grow from the comments. That approach may be a way to generate some traffic, but I'd encourage the writers to try for more. Why else take the time to write a blog if not as a forum for your views? (Wait, don't answer that.)

2. The Best New Sports Blog of 2010
Hey, I don't even know if this site is "new" in chronological terms, but it's new to me and this is my blog. (Yes, for you philosophers out there, I'm a radical idealist; nothing exists until I stumble across it.) So I scoured the internet, searching every single server in the world, and have determined that the best new site of the year is . . . Wei Under Par! It provides the insider story of the professional golf tours. Golf is a sport that, as compared to the daily rumor-trading about other important sports, has always been kept buttoned-up. I guess the Tiger Woods fiasco took the wraps off, so to speak, and Wei Under Par shows the golf fan a different side of the great game. The writer (Stephanie Wei) has a clever way of mixing in photos, comments and some genuine reporting to present a fun, quick package. Wei is also cute as a button and spreads plenty of photos of herself on the page, which I suspect is part of the draw. (We at TSLP are considering a similar marketing strategy for next year. May I take photos of Wei off her site and put them on mine?)

3. The Best Sports Magazine of the Year

No contest here, Sports Illustrated has solidified its traditional spot as the king of the general-interest sports magazine. For a few years, a few years ago, SI had become predictable, and had clearly dumbed-down its writing and its subjects. Yet the advent of a strongly edited competitor (ESPN The Magazine) has had a good effect on SI. (I suspect SI initially tried to answer the competitive challenge issued by ESPN by trying to appear more hip and youth-oriented; I don't know.) The magazine seems to this long-time reader to have regained its more literate voice. It is also devoting more of its pages to that which it does best: lengthy articles on the trends in the game, the controversies or scandals surrounding it, or the stories on the redemptive (or tragic) power of sports. I'm glad the experiment with style over substance is ending; I'll be happier when it's over. With all that said, the magazine disappoints recently with its consistently mawkish, leftist, and obvious political tone. The back page editorial is the worst; only Phil Taylor ever gives due regard to what might be considered the opposition view. It worries me that the moralists who inhabit SI's pages seem either unwilling to give (or worse, incapable of giving) due regard to the very substantial arguments that might slow down their rush to a sanctimonious conclusion. For example, a few weeks ago Sports Illustrated published what looked like a Cliff Notes version of the plaintiff's brief in the antitrust case against the BCS. Couldn't the writer have at least called one of the many BCS defenders (or me, if no competent person were available) to make the reader aware that the BCS has some compelling arguments in its favor too?

4. The Best Great Novel of the Year
I mean, wow, I'm sorry about this, but my sense of propriety had long made me shy away from ever reading Lolita, by Vladimir Nabokov. I have owned the book forever, but couldn't bring myself to walk around the house with it, owing to the racy art on the cover and the famously scandalous subject matter. (Yes, I blush easily.) But finally, at the end of last summer and looking for a study break, I finally felt mature enough to turn to the first page. Lo-li-tah, a trip of three steps down the palate. What a book. What an incredible piece of writing. It's a thrill and humbling, all at the same time. That's all; I'm not an English major.

5. The Best Sports Television Show
None. Not one show merited this prestigious, coveted award. In past years I had given this prize to Pardon the Interruption, but that show has slowly morphed into a slightly more thoughtful version of its competitors: increasingly louder, more abrasive, more concerned with the gag or the schtick than with actually saying something about the subject. The show has gone from unmissable to unwatchable. The gimmick where some fellow "scores" the hosts on their comments is just annoying. Here's my constructive criticism: Stop It! Get rid of all the silliness (it doesn't work and at best is stale) and just present two thoughtful commentators debating sports and you'll be back.

6. The Best New Sports Documentary Series By a Worldwide Leader
I guess ESPN's 30 for 30 wins. I didn't see all the documentaries in the series but watched enough of them to bestow the top honor in the category. The good part: the series represents an ambitious project, and ESPN must be commended for devoting so much time and money to programming it most likely does not need. Most of the programs have been good, a few even riveting. Sports has long been a perfect subject for documentaries. The story usually has a denouement (victory on the field), with lots of happenings off-field (obstacles to overcome) to fuel the film. Few walks of life present such a ready-made subject matter for documentaries. But the downside of the sports documentary has been evident in many of the 30-for-30 episodes: it's hard to tell an historical, off-the-field story without a lot of narration. The only film footage typically available is the on-field sports action, which works fine for the sports but less so for the off-field stuff. So at times you find yourself watching people talk, which (like my students, I'm sure) I seldom enjoy.

7. The Best of the "30 for 30" Documentaries
I know the general acclaim has been missing for this episode, but I found "Pony Excess," the story of recruiting scandals at SMU, to be stunning. What made the film work was that so many of the interviewed subjects (being sports stars) were interviewed at the same time the scandal was occurring, and (amazingly) gave pretty much the same answers then that they give now. They confessed to the money! In any event, the spectacle of former coaches and boosters admitting without shame or hesitation their direct involvement in paying football players was a shocker to this viewer. Wow, they (and apparently most everybody else) really bought players! Where is the NCAA (today) in all of this? If we're going to chase down Reggie Bush for his college years, why not go after the hundreds of athletes and dozens of schools from the "money era" of college football? Aren't there more trophies to be returned, more wins to be forfeited, and more money to be recouped? Let's get after it!

8. The Best Television Show I Want to See
This is an award I'm giving out preemptively. Dear major television networks, if you will please just spend millions of dollars and create this show, I promise I will give you my award next year. Here's the show: take the late-night talk show format, cross it a bit with Charlie Rose, and focus it on sports! (Thank you, thank you, please sit back down. Please.) Here's the problem with all of today's sports talk shows: the creators think that because viewing sports involves lots of brainless cheering, shouting and quasi-loutish behavior, then so must the show about sports be commensurately riotous. Why? People watch election returns with some of the same emotion as sports but can talk about it dispassionately later on. So here's the show: the genial host (let's call him TSLP) comes out for the opening monologue, offering a few wry observations, jokes and perhaps a humorous video clip or two from the sports world. Then, while the band plays, TSLP gets behind the desk. Over the next hour, divided into three 20-minute segments, comes the evening's guests. The guests would be drawn from star players, industry officials and insiders, and thoughtful commentators (TSLP again!). The discussion would be focused on current controversies and, in the case of star players, some personal issues. Players would adore this; Tom Brady supposedly loved being interviewed on 60 Minutes. The conversation would be thoughtful, interesting, controversial. This show would be great. I don't have a name for it yet (TSLP! is the working title), but everything else is fully conceptualized. Help yourself, ESPN.

9. The Best Coach of the Year
The award so many have been waiting for goes to . . . Bill Belichick, New England Patriots! Congratulations Bill. (We look forward to presenting the award to you at our annual TSLP Awards Dinner in Salem, Oregon. We'll cover your lunch bill if you can pick up the rest.) Why Belichick? I just love the guy. He flat out doesn't care about anything or anybody other than his team. This fact, by the way, is true of all coaches, but unlike everybody else, Belichick shows it! He gives us his honest perspective. He hates the media and makes his disdain evident. He cares not a bit for publicity, or NFL promotions, or playing up the big game, and he shows his lack of care for all to see. Unlike most coaches, Belichick never allows his players to be "miked up" (notice how all the shows reviewing past Super Bowls never include sideline remarks of Patriots' players?); Belichick seldom does routine NFL promo commercials. He just doesn't care. Again, no coaches do. But the media hate Belichick because he is honest in showing his lack of regard. I like people who are that honest. Even in the notorious "Spygate" scandal, Belichick took his medicine and uttered not one public word in his defense. He did once let slip that he thought the rules permitted his taping practices (which interpretation, as I wrote at the time, I agreed with), but that was it. Not another word said. He just doesn't care that he was and continues to be excoriated in the public conversation. You go, Bill.

10. Legal Brief of the Year
Out of the Milwaukee offices of the estimable law firm of Foley & Lardner, with Mssrs. Leffel and McKeown on the brief, comes the TSLP Legal Brief of the Year: the Brief of Economists in the American Needle v. NFL appeal. Here's the link. The amicus brief does an incredible job translating arcane economic concepts to legal prose; more importantly, the analysis is simply correct. How the Supreme Court couldn't have taken quality work like this and given a better, more thoughtful opinion on the case (even one that disagrees with the brief's recommendations) is beyond me. The Court should have answered the brief's arguments, if only to refute them. Answering would have elevated the court's opinion; instead the court ignored the brief. One reads the opinion in American Needle in the same manner one watches a politician make a speech (with which one disagrees) on television: how can Politician X claim everything's better, you mutter to yourself, when (to you) everything's worse? The American Needle opinion reads that way, like a politician preaching to his followers, blithely ignorant that nearly everything that is said in the opinion is conclusory and objectionable. You could have done better, Supreme Court of the United States. The Economists' Brief gave you that opportunity. You missed it.

Lucky Dominican Baseball Players

2010-12-18T20:28:00.000-08:00

The sports law world is abuzz with the revelation that baseball super-agent Scott Boras provided very large loans to young baseball players in the Dominican Republic. It turns out other groups of American investors, allied with other player agents, are also making a business out of investing in young Dominican players. Although it appears that this practice does not violate any restrictions imposed by Major League Baseball or the MLB Players Association, many commentators have termed this funding practice of dubious ethical merit and at bottom exploitative. It's the assertion that lending money to a young athlete is exploitative that seems a bit hasty to me.

Lending money to a young athlete is not exploitation. It's empowerment. Why do these commentators, whom I assume would profess to love sports, want to keep money out of sports? Sports aren't free. What exactly is wrong with wealthy Americans issuing "micro-loans" to fund the hopes and dreams of young, impoverished Dominicans?

1.This is baseball, friends. Not football or basketball. Baseball requires a lot of athleticism, of course, but also involves a great deal of skill, attention to detail, and training over a long period of time. I'm not saying other sports are easy or don't require just as much skill. But in the U.S., serious young baseball players nowadays play year round. They attend baseball camps and academies, play on private travel teams, and enter themselves in expensive "showcase" events to expose their skills to scouts at the next level, be it special regional all-star teams at the youth level, special off-season high-school age travel squads, college programs and of course the pro level. It takes a lot of commitment and naturally a lot of money for a young baseball player to make it to the next level, whatever that level may be. Notice nowadays how few inner-city minorities make it to baseball's highest levels? Baseball is no longer the inexpensive, easy-access sport that basketball is and football (the latter thanks to school programs) remains. Baseball requires a long apprenticeship and a lot of money.

2. Golf requires a lot of money too. Young golfers need money for course access, practice expenses, specialized instruction, and tournament fees. Baseball is not quite golf in terms of expense, but today it is a lot closer to golf than it is to basketball. So how do young American golfers make it? How do they play in state-wide and national junior tournaments, on elite junior golf tours, on college teams and eventually even on one of the many pro tours? How can they afford this expensive sport, with its protracted, specialized apprenticeship and extensive travel requirements? They are sponsored. Their efforts are funded. At the amateur level, well-off parents (or those who angle to get themselves golf industry insider jobs) provide access and pay for instruction. Yet parents can only take the player so far. Making it on the professional level requires a very deep pocket: even on the minor tours, players need money for large travel expenses, high tournament fees, equipment, and continued instruction. For an aspirant to the highest level, the PGA or LPGA Tour, the requisite stakes are multiplied.

3. So once past the amateur stage, where do these young, hopeful professional golfers get the needed money to start their careers? Most of them borrow it, but not from a bank or wealthy relative. Tool around on your favorite internet search engine. It won't take long to find opportunities to invest in aspiring professional golfers in exchange for a share of the winnings. That's right: young American golfers raise money through a self-created capital market. American investors looking to promote young golfers, and take a chance on getting a return on their money, have made possible the launch of the careers of most of today's touring golf professionals. This situation is neither corrupt nor exploitative. It's a benefit to the player.

4. It is undoubtedly true that the advance of money from a lender or investor carries with it certain obligations. The young athlete now carries a debt, and will have to give his best efforts to earn enough to pay it off. Undoubtedly many aspiring professional athletes fail to make the grade, and the lender or investor might go unpaid. Certainly this risk will be factored into the promised return. [In theory the lender stands in a better place than the investor; the latter's security will be nonexistent, while the former could demand repayment whether the professional earnings happen or not. But the difference in the method of financing probably reflects the longer gestation period for success in golf, compared with the large signing bonuses paid to pro-quality non-American baseball players.] But if we allow the young American golfer (or the young American college student, for that matter) to take on very substantial financial obligations, why deny that opportunity to the Dominican athlete?

5. Ironically, if U.S.-born baseball players could borrow against their "sports capital" as do players from outside the country, then we might see a change in baseball's dearth of African-American players. The very restrictions that Major League Baseball imposes on U.S.-born players effectively diminish the supply of minority players. American players cannot become professionals until they are age-eligible and are drafted or signed after the draft. As a result, American-born ballplayers must delay their professional careers, and may only negotiate with one team when they begin it. These rules lower the compensation for novice professionals, and thus raise the cost of entering the occupation. With no outside funding permitted to amateurs, young baseball players must rely on their families or their own wherewithal to undertake the considerable expense of training. Is it any wonder that U.S. minorities are disappearing from the major leagues?

6. The more money we can lure into investments in young athletes the better and more numerous those athletes will be. The fact that Dominican players are receiving direct funding from American interests will only further promote the Dominican player and further disadvantage the American one. Expect to see even fewer American-born players from impoverished backgrounds make it to the major leagues.

Legalization of Sports Betting, or Not?

2010-11-18T00:38:00.000-08:00

I had the pleasure of participating in a podcast program with Chad Millman of ESPN. The podcast is here, if you want to listen or download. We talked about the current state of the law with respect to sports betting and about the prospects for legalization.

One point I tried to get across was that, as a practical matter (if not a legal one), things are pretty good just the way they are. Most U.S. citizens who want to make a bet on a game can find a way to do so without too much trouble. Payouts from the big on-line sports books are to my understanding quick and reliable. And the vig/overhead is not too bad.

In my view, there's one problem with legalization that has not been fully considered by its proponents. The call for legalization typically means a call for regulation and taxation, much as Congressman Frank's bill would provide. Is that really what people want? Do U.S. gamblers wish to trade today's permissive liberality for government oversight and control?

Last I checked, governments do not come cheap. I would imagine an overhead fee sufficient to fund a new government "sports betting" division would be quite a bit higher than the vig needed to pay the bookie's cell phone bill. Further, when it comes to gambling, governments do not like to lose. Take a look at state lotteries. Only a portion of state lottery revenues is paid out in winnings; the state diverts the lion's share to public uses. States regard gambling as a means to increase the fisc, not as an opportunity to take a counter-position on a wager. The limited forays by state government into sports betting (in Oregon, Delaware, Montana) prove the point: the only bets allowed were multiple-pick parlays against the spread, a bet that the state was overwhelmingly sure to win.

Even if "legalization" meant that private enterprises, and not the state, would run the sports book, undoubtedly the regulatory costs would be substantial, as they are for casinos. The cost of state regulation and the accompanying tax/rake would likely render payouts not as generous as the private bookmaker. You'd get the same thing as now, only at higher cost. The widespread legalization of sports betting might lead to an inferior betting product.

Should Favre Be Fined Too?

2010-11-05T10:09:00.001-07:00

The Patriots' defensive lineman Myron Pryor was fined for hitting Brett Favre. Pryor's apparently legal hit resulted in a cut to Favre's chin. Pryor hit Favre in the chest, but then Pryor's helmet slid up and caught Favre under his chin, lacerating it.

Favre likely would not have been cut had he been wearing a hard-cup chin strap, as do most players, including quarterbacks. Favre continues the wear the old-school soft strap, which is little more than a patch of nylon.

Had Favre not been cut we probably would never had heard another word about Pryor's hit.

Remember, law students, it takes two to tort.

Rules vs. Standards and the NFL

2010-10-25T23:40:00.000-07:00

A difficult and pervasive issue involves the optimal degree of specificity with which statements of law should be expressed. Should lawmakers take the time and trouble to try to define laws with great precision and particularity? Or should laws be expressed in more general terms, leaving some judgment and discretion to the enforcer of the law (police officers, lawyers, judges and juries) to define the more exact contours of the law in a particular case? In short, should the law be written as a "rule" (with great precision) or as a "standard" (more general statement)?

This is the exact predicament that the "lawmakers" who create rules for our professional sports leagues face. How specific should the rules of a sport be? Why not make all rules as specific as can be?

The answer is that the "laws of sports" should be standards, not rules. Overly specific rules are in most cases inapt. Inapt case in point: the National Football League.

1. Let's start with professional hockey. Most of the NHL's rules are written as general, nonspecific standards. For example, "charging" is defined as "the actions of a player who, as a result of distance traveled, shall violently check an opponent in any manner." See all the room there for referee discretion? All checks are violent. How violent must a check be to constitute charging? How much distance must be traveled? The rule is silent, implicitly leaving the matter to the judgment of game officials. Other NHL rules are similarly expressed as standards. "Hooking" is "the act of using the stick in a manner that enables a player to restrain an opponent." That's it; that's the whole rule. "Elbowing" is "the use of an extended elbow in a manner that may or may not cause injury." These are significant rules for the sport of hockey that are regularly applied. Notice how simple and brief they are. Notice also that the rules of hockey seldom change. The same hockey rules we played under as kids still govern the sport today.

2. Now let's use our imagination to think of the rules for the NFL. We have to use our imagination because the NFL refuses to release its rules, as far as I know. (I've been searching for an official rulebook forever.) Why does the NFL keep its rules secret? I suspect it's because the NFL does not want to allow people like me to examine its work. You see, the NFL does not follow the approach of the NHL and most other sports leagues. It does not express its rules in the simple language of standards. Instead, the NFL's rules are expressed with great specificity. For instance, here's the NFL's nice, straightforward definition of a "catch":

"A player is in possession when he is in firm grip and control of the ball inbounds. To gain possession of a loose ball that has been caught, intercepted or recovered, a player must have complete control of the ball and have both feet completely on the ground inbounds or any other part of his body, other than his hands, on the ground inbounds. If the player loses the ball while simultaneously touching both feet or any other part of his body to the ground or if there is any doubt that the acts were simultaneous, there is no possession. This rule applies to the field of play and in the end zone."

Add this, under "Note 1," the "going-to-the-ground" clause.

"A player who goes to the ground in the process of attempting to secure possession of a loose ball [with or without contact by a defender] must maintain control of the ball after he touches the ground, whether in the field of play or the end zone. If he loses control of the ball, and the ball touches the ground before he regains control, there is no possession. If he regains control prior to the ball touching the ground, it is a catch, interception or recovery."

[I found this by poking around on Google; apparently someone has a copy of the rulebook.]

3. Let's keep in mind that this is just one rule (or part of one rule, for all I know; there being a "note 1" implies there are more). It would be eye-opening if the NFL allowed us to see the whole thing. Imagine the contradictions in these voluminous rules, the problematic constructions, the unintended consequences? In other areas of rule-making, seldom is law expressed with the kind of specificity the NFL employs. When we do see such specific rules (for instance, the Internal Revenue Code, or rules respecting ultra-hazardous substances), we also see large numbers of lawyers employed in drafting the rules (either at the legislative or regulatory level), applying them, critiquing them, and challenging them. All this lawyering is good for the rules, as lawyers can point out ambiguities and identify needed corrections. Not to sound arrogant, but really could the work of the NFL Competition Committee withstand lawyerly review? But wouldn't the rules be improved if we could all take a peek at them and offer comments?

[Just look at "note 1" above. For how long "after" must a player hold the ball for there to be a catch? Could the player juggle the ball (after completing all the requirements of the rule and note 1), yet still be deemed to have made a "catch" as long as the ball does not touch the ground? Note 1 seems to allow it; the rule seems to prohibit it. Plus note 1 seems to create bad incentives: after a receiver has made a touchdown catch while falling to the ground out-of-bounds, a defensive player should proceed out of bounds and dive into the receiver in an attempt to dislodge the ball. If the ball comes loose, no touchdown catch. At least the rule/note seems to allow for such conduct. That's a bad incentive.]

4. There are good reasons why very few rules in sports are expressed with the kind of specificity the NFL employs. It's too hard to write them successfully. Highly specific rules cannot account for every possible situation. Inevitably, the rule-writers find themselves adding qualification after qualification, rendering the rule lengthy and unmanageable. Further, in the sports world (unlike in federal taxation or transportation of hazardous materials), rules have to be applied instantaneously and by people (athletes, referees) under some stress. With tax compliance or other highly specific rules of law, lawyers bill by the hour. What is the NFL thinking? Why take hundreds of words to define a "catch"? Children playing ball games or even backyard football know whether or not they have caught a ball. Why can't the NFL trust its referees to make the same, easy determination?

5. Watching an NFL game lately can have extended moments of tedium. The replay review, the endless chatter about technical definitions and their application, the absurd outcomes. (It's like being a student in federal taxation! Notice how the NFL RedZone channel, dedicated to showing the most exciting action, switches away from a game the moment a replay review is initiated.) Calvin Johnson's obvious touchdown catch is not a catch because he flipped the ball to the referee while getting up off the ground? The officials lack "indisputable video evidence" that Miami came up with Ben Rothlisberger's goal-line fumble even after the replay showed a Miami player handing the referee the ball? These are easy calls to make. Yet the league says the calls were "correct" in that the officials applied the written rule correctly. Yes, the refs weren't wrong; the rules are wrong, written to cover every situation but leading in some situations to absurd, patently unintended and unjust results. Games have been won and lost because the written rules were inadequate to meet the question presented.

What will the NFL do in the wake of these debacles? Write an additional amendment to the rules, I'll bet.

Can the NFL Change Its Game, Legally Speaking?

2010-10-20T11:33:00.001-07:00

It seems pretty clear the NFL is out to change the game by vigorously enforcing certain rules against certain kinds of tackles. (What those rules are is anyone's guess; I have for years been unable to find or be issued an official NFL rulebook.) So let's say a few years down the road a wide receiver is hit by a safety while the receiver is leaping in an attempt to make a catch. Assume the worst. The hit is a blow to the head; serious, long-term injury to the receiver follows. Assume further that the hit was intentional and that the safety is unrepentent. "It's how I play the game," the safety says. What can be done?

League discipline is one thing. A league fine, however, is not going to help the injured receiver deal with a diminished life, one that might involve expensive surgeries, extensive rehabilitation, and specialized equipment. Nor will a league-imposed suspension of the safety assuage the injured receiver's lifetime of diminished capacity and circumscribed activities. He may be confined to a wheelchair and worse. I'm not trying to sound like a plaintiff's lawyer here, but you see the point. What if, in an attempt to address these serious consequences, the receiver sued the safety?

Here's the likely answer: no matter what the NFL rulebook says, no matter how harshly the league punishes illegal hits and educates its players about them, devastating helmet-to-helmet hits will always be "part of the game." In other words, the injured receiver will lose his suit. The NFL cannot change the game of football.

1. It might seem preposterous that the NFL cannot change the game of football. One would think the NFL could make any change it pleased. It could give teams three downs to make ten yards, it could widen the field, it could make touchdowns count for ten points, it could tape its quarterbacks in bubble wrap. How ever the NFL defines the game is the NFL game. The same could be said, one might think, of any other sport. The leagues make up their rules. All sports are just made-up games with arbitrary rules. There is no game of "football" apart from the rules that define it. Right?

2. Wrong. The last surviving Platonists in the world have somehow found their way into federal and state judgeships. For unexplained reasons, judges believe that there is a concept of "sport" that in some undefinable way exists apart from the sport as it's played. They believe that the game has certain aspects to it that are part of that game, even if the game and league officials have stated repeatedly that that particular aspect is not part of the game, and have arrayed rules against it and punish it severely when it arises. Sound incredible? Courts have held that physical checking is part of the sport of hockey even in a non-checking hockey league. Courts have found intentionally thrown beanballs to be part of baseball despite rules against them. This zaniness reached its zenith when the U.S. Supreme Court declared in the Casey Martin litigation that "walking" is not part of the game of golf, at least at the PGA level, even though the PGA had an explicit, unambiguous rule that said it was!

3. You see, courts are a long way into the business of creating or divining a concept of a sport that "exists" in court opinions, and not on the playing field. No matter what the NFL does, even if it renames the sport "rugby with helmets," as Steve Young jocularly suggested on television, hard hits to the head will for a long time be part of the sport.

4. What this conclusion means from a legal standpoint is that league discipline of wayward players making illegal, vicious hits will be the end of the matter. Neither suits for damages (tort) nor even criminal liability will help restrict the violence of the NFL. Should the law have a role in regulating on-field violence?

Devastating Hits in the NFL

2010-10-19T10:14:00.000-07:00

Nearly all the "talking heads" studio shows that dominate contemporary sports coverage are a waste of time.

And then there's this.

Brett Favre and the NFL's Personal Conduct Policy

2010-10-18T15:24:00.000-07:00

Back in 1919, Ban Johnson, the president of the American League, suspended pitcher Carl Mays from the New York Yankees. While with his former team, the Boston Red Sox, Mays had walked off the mound and taken the next day off to go fishing. Johnson suspended Mays under the provision in the league constitution that gave the league president the power to suspend players "for conduct detrimental to the general welfare of the game." Sound familiar? The NFL's Personal Conduct Policy gives the NFL Commissioner power to suspend players for "conduct detrimental to the integrity of and public confidence in the National Football League." Like the suspension of Mays by Ban Johnson, it appears Brett Favre may be subject to suspension for sending sexually provocative photographs and engaging in other sexual conduct directed toward some Jets' employees.

So why bring up the 1919 suspension of Carl Mays? How is that event relevant to the Favre situation?

Here's why. When Johnson suspended Mays, the New York Yankees sued. They termed Johnson's suspension an impermissible interference with Mays' contract and a violation of their property right to the player and to pursuing a championship. The Yankees argued that the president's constitutional power, while sweeping, was limited to misconduct on the playing field and went no further. Johnson's contention that "conduct detrimental" extended to any conduct, anywhere and anytime, according to the Yankees effectively converted Johnson from a constrained league president to an "unmolested despot."

And the Yankees won. The league's personal conduct policy did not extend to off-field conduct. Should it?

1.The limitations imposed on the commissioner's authority by the court in the Mays case are history, so to speak. Beginning with baseball's decision, in the wake of the 1919 Black Sox scandal, to create the office of the commissioner and endow the commissioner with virtually unconstrained authority, no court would find that baseball's constitution today limits the commissioner as it did the league president in 1919. The NFL patterned its sweeping personal conduct policy after similar language in baseball's current constitution. Clearly Roger Goodell has the legal authority to suspend Favre for his off-field conduct.

2. Consider this problem with including off-field events under the personal conduct policy. What happened, out there in the real world? It's easy when there's criminal misconduct that results in a prosecution: the police investigation, grand jury subpoenas, and probation report give all the details that the commissioner would need. But what about when the off-field misconduct falls short of a crime? It's not easy to determine "what happened" in any situation. The Commissioner cannot easily replicate the painstaking fact-finding of the criminal justice process.

3. Consider this other problem. What kind of misconduct fits the bill? The NFL policy, by way of example, lists several crimes and other threatening behavior. But the personal conduct policy is not limited to criminal behavior. It proscribes any conduct that is detrimental to the integrity and public confidence in the NFL. Does a married man's making romantic/sexual advances to women/employees meet the standard? Favre's personal conduct appears not to have been admirable. But can the commissioner seriously suspend a player for (potentially) breaking his marital vows? From what I hear, quite a few players might fall short of this standard.

4. Goodell should exonerate Favre and in doing so should clarify the limits of his authority. The personal conduct policy is not unlimited. It proscribes conduct that affects the integrity of the NFL and public confidence in the NFL. The NFL is a fall football league that features sixteen regular season games and a playoff tournament. Does anything Favre allegedly did threaten public confidence in the integrity of those contests? Is the argument that, if Favre cheats on his wife, he'll cheat during the game? No, there's no threat to the game's integrity. There's no threat in the public confidence in the NFL. The commissioner's authority extends to off-field conduct only insofar as it threatens that confidence. The commissioner should not punish off-field conduct just because it's bad conduct.

5. What about illegal dog-fighting? Should Vick have been suspended? Dog fighting is terrible. So is cheating on your spouse.

Why Is the Randy Moss Trade So Hard To Figure?

2010-10-07T17:27:00.000-07:00

Sometimes it seems the media commentators ignore simple explanations. In the wake of yesterday's trade by the New England Patriots of wide receiver Randy Moss to Minnesota in exchange for a 2011 draft pick, reporters are picking apart the Patriots locker room, searching for the "real reason" the Patriots made this trade. Speculation and rumor abound, with disputed stories of Moss not getting along with teammates, arguing with coaches and even disrespecting the team owner. Meanwhile the man responsible for trading Moss, Bill Belichick, has stated repeatedly, categorically and emphatically that there were no personal problems or discipline issues with Moss, that he was a pleasure to coach and was professional at all times. The media just can't bring themselves to believe him.

I believe him. Moss was traded for the obvious reason. He's in the last year of his contract and the Patriots, unwilling to pay market value (or use the franchise tag) to retain Moss' services for next season, wanted to get something for him rather than nothing. The mid-round draft right is something. The Patriots figured that the value of the pick was worth more than the value Moss gave them over his replacement player for the rest of the season. In other words, if the Vikings offered Moss to New England as essentially a 12-game rental in exchange for a third-round draft pick, New England would refuse the trade and keep the pick.

Reporters search for the "real reason" because at bottom they don't see the value in any draft picks except those in the first round or two of the draft. Years of reading the sports pages has convinced me that NFL teams value draft choices much more than do NFL sports writers. Every year at draft time, sports writers write the easy column about how worthless most draft picks are and how poorly teams do at selecting players. It is true that many drafted players never perform up to expectations. Teams draft poorly (sports writers don't grade on a curve, it appears), while players who went undrafted become stars. So, in the eyes of the media, lower-round draft picks are just a waste. (Put it this way: if Moss had been exchanged for Minnesota's first-round pick, reporters would not be poking around for dirt on Moss.)

Yet the fact of the matter is that nearly every NFL player and even moreso nearly every star NFL player was in fact drafted. Most players were drafted below the first two rounds. These low-round picks have real value. What was the value to the Patriots of the sixth-round pick that netted Tom Brady? Even if only one in one-hundred sixth round picks ever become stars (as opposed, as a guess, one in ten of first-round picks and one in forty of third-round picks), there's still value there. Finding a single star contributor is worth "wasting" many draft picks. Even if the player the Pats ultimately receive for Moss turns out to be a dud, there's still value in having the chance.

As a nice bonus, these mid-round drafted players come cheaply in terms of salary. As another bonus, the Patriots gain next year by giving Moss' young replacement some valuable game experience this year. Judging from their history in trading away players in the last year of their contracts (Richard Seymour, Deion Branch), the Patriots do not like to let valuable players leave for nothing. The simplest explanation is the best.

Jeter Cheater?

2010-09-16T15:04:00.000-07:00

First of all, Derek Jeter did not cheat. He broke no rule of baseball. He simply hammed it up to get a call. With that said, it seems to me that acting/flopping/diving is diminishing the enjoyment of watching professional sports. Few bad calls frustrate fans more. Yet, flopping is widespread. It's so pervasive in some leagues (such as Italian league soccer) as to make the games unwatchable for me. Baseball is actually one of the least affected sports, simply because the game doesn't lend itself to so many interpretive umpiring decisions involving physical contact. Yet outside of baseball, one sees flopping and "drama-queen" falls even in youth sports. Athletes compete in their drama to earn favorable calls.

What can be done? What are the options?

1. Amend. Amending the rules of sport to proscribe flopping is probably inadequate. Some soccer federations do prohibit diving, yet the call is seldom made. In the NBA, flops are expected and are usually rewarded. Players and coaches today define "defense" in part as the act of sliding under an airborne or nearly airborne offensive player and getting the charging call. It's not defense; it's not even basketball. In theory, the rules of any sport could be amended to prohibit faking, even after the fake is over and the whistle has blown. For example, in baseball players like Jeter before being awarded first base could be asked if indeed they were hit with the pitch, with penalties for answers later determined to constitute knowing or reckless fabrication. ("I had to lie; I told one for the team.") Although there seems to be a trend to make professional sports into morality plays, I would doubt we'd want to introduce a rule against perjury. So the rules of the game probably cannot adequately respond to the problem.

2. Boo. We could respond with sanctions outside of the game rules. Along with ruining the game for viewers, players who fake consequences in order to get calls are exhibiting poor sportsmanship. We could boo them mercilessly. This would mean that Lakers fans would have to boo their team of floppers for nearly the entire game. (Of course, TSLP, as a die-hard Celtics fan, might have to consider booing my favorite player, Paul Pierce, should he ever pretend he was hit on the arm while in the act of shooting. So far in his career, he hasn't, I don't think.)

3. Fight. Another plausible option is to rely on players policing themselves. This is unrealistic too. Should the Rays now throw a ball at Jeter to hit him for real? (Should other teams throw at him too? Just everybody throwing at Jeter for a couple of weeks?) Given the reward for being hit by a pitch (the batter is awarded first base), being hit is not an unalloyed penalty. Same thing on the basketball court: a player frustrated with repeated flopping is said to be "taken out of his game," and thus his retaliatory efforts might actually inure to the benefit of the flopper. Players can police their own game on big things, like overly rough play or repeated beanballs. They can't be expected to police themselves on every little instance of the numerous flops and falls. Fighting over such small events seems unreasonable.

4. Suspend. The only plausible option to rid the games of flopping is to sanction players on a league-wide basis. Game rules have to be specific and clear; league-wide rules can be expressed in greater generality, as standards. Game rules say ten yards produces a first down; league rules say players may not act in conduct unbecoming the game. Isn't flopping unbecoming? At a minimum, it's bad sportsmanship; at worst, it's damaging the product. Just create a rule that says flopping and fakery and the like will be met with a suspension, and the problem will be over. Even Little League does this for players and coaches who get out of hand. Just send them home for the next game. Why is this so hard? Suspend Jeter (the one Yankees player I like) for a game and be done with it. Suspend Kobe and yes, even Paul Pierce for a game next time they ham it up. (Just throw Anderson Varejao out of the NBA now to save the trouble.) This simple, unhurried, discretionary response by the leagues involved could go a long way to creating and enforcing an overriding norm of "good sportsmanship" that ought to be part of the professional sports landscape.

Reggie Bush and the Heisman Heist

2010-09-16T10:43:00.000-07:00

Star running back Reggie Bush gave back his Heisman Trophy. Although he did so voluntarily, quite obviously he would not have done so without the mounting public displeasure over the revelation that Bush received money from marketing representatives during his college football career. Bush's action also was timed to preempt the imminent Heisman Trust reconsideration of his award. Bush has of course known of his NCAA rule violation for many years, and held on to the trophy since its award even though rumors and later more substantial evidence of Bush's payoff become public. Only with the whole scandal coming to a head did Bush "do the right thing." I'm not writing to call into question Bush's motivations in making this public act of contrition. I'm wondering if he has anything to be contrite about in the first place. The fact that Bush for so long delayed his act of contrition suggests to me he didn't.

I understand why the NCAA desires student-athletes to compete as amateurs. For that matter, I also understand why OPEC wants to drive up the price of gasoline. What perplexes me is why we help them.

1.There's really no two ways about it: the NCAA is a cartel. On behalf of its members, it procures the services of athletes at a fixed price. That price is the athletic "grant in aid," more commonly termed a scholarship. The price is substantial, and indeed for many student-athletes, the price might even be excessive. Some athletes contribute little to their team's success and profits. But for other athletes the price is substantially less than the athlete would command in a competitive market for his services. For which athletes is the fixed price too low? For those who are provided offers of compensation from other sources, such as boosters, agents, marketing representatives, or financial advisors. The offer of superior compensation identifies and measures the inferior fixed price of the scholarship.

2. The NCAA's reasons for imposing this cartel are valid and admirable. The NCAA wants athletes to focus on their studies, and not be distracted by monetary pursuits. The image of the part-time amateur athlete remains the ideal in contemporary college sports. Further, colleges and universities know that maintaining a competitive program in the revenue-producing sports (football and men's basketball) is hugely expensive. Prohibiting athletes from profiting allows the school to capture much of those profits for itself, by exploiting the athlete's likeness and image in merchandise sales and broadcast revenue. This money also funds other sports programs within the school, and goes a long way to maintain compliance with the equality dictates of Title 9. So the money's put to good use, for the most part. (Some might be troubled by the fact that part of the expenses needed to maintain a competitive program include paying the head coach's very large salaries. I don't begrudge the coaches their salaries, but I would posit that, if players were compensated by schools, that money would in part come out of the coach's salary. Because schools and their boosters can't pay players directly, they pay proxies (coaches) who are skilled at recruiting them.)

3. Other cartels also have benign motivations. During the oil criss, OPEC consistently maintained its goal in restricting the supply of oil was to ensure the continuance of a scarce natural resource. This is much the same language that governmental entities employ in imposing taxes on gasoline consumption or in limiting domestic production. Yet the fact that the oil-producing nations were profiting mightily from this concert of action obscured the benign message. To the contrary, the fact that governing authorities with respect to gasoline and NCAA member institutions with respect to athletes also profit mightily from exercising their market power is seldom mentioned. It is Reggie Bush who is the "cheater," people say, not the NCAA that cheats Bush out of the market price his services could command.

4. We cheered those oil-producing nations (e.g., Nigeria) that had the fortitude to defy OPEC during the hey-day of the oil crisis. The nations that defied OPEC (with Saudi Arabia as the center of OPEC) were heroes. Why didn't we call them cheaters? They had agreed to restrict output in order to drive up prices in order to conserve oil supplies, and then they did the opposite. Why did we cheer the OPEC cheaters yet now revile Reggie Bush?

5. I'm not saying that Bush, like all student-athletes, didn't know the rules. He knew he had agreed not to make money, yet he did it anyway. But our condemnation has to stop right there. Bush went back on his word, and that's it. He did nothing wrong in any additional or greater moral sense. Taking money for one's labor or services is not wrong. (In fact, why do we say college athletes "take" money, while the rest of us "make" or "earn" money? Bush earned it as much as any celebrity makes money off his fame.) Being paid for the use of one's name or public persona is not wrong. Bush took money from marketing representatives who planned, once Bush finished college, to find Bush advertising opportunities, a staple product of the modern celebrity athlete. It is not wrong to be paid for marketing one's name.

6. It is wrong to promise one thing and do another. But when the promise that is made (or for all practical purposes, required to be made lest the athlete end his football career on the spot) is one that cheats the promisor out of making a living, why should we, the public, be on the side of the promisee? Why should we use public pressure, including media scrutiny and even federal prosecution (yes, it's happened to agents) to help the NCAA maintain its private cartel? Why should we put those who try to break the cartel in prison (Norby Walters, an agent) or use public shaming and the threat of trophy revocation (Reggie Bush) to help out the cartel? Did we send Nigeria's cheap oil back?

7. To be clear, the NCAA has been for the most part successful in defending its restraint on trade in litigated cases. OPEC too, for different reasons, could not be broken through litigation. But I don't understand why we root for the cartel. The athletes who take money while in college are claiming what is theirs: the rights to their own property, namely the rights to one's labor and to one's publicity. Why should the NCAA be allowed to require the athletes to transfer those rights to the NCAA as a condition of his playing on the college football team, whether the player receives a grant-in-aid or not? Personally, I would have preferred to see Reggie Bush stand up to the public vilification and defend his right to earn a living.

Daredevil Boys and the Manly Sports

2010-08-30T14:18:00.000-07:00

Throughout American history, the "manly" sports have provided a perpetual test to the legal limits of consent. They have also make us think hard about the boundaries of social welfare and morals. Among the manly sports, the blood sports involving animal fighting, such as bear baiting, dog fighting, cock fighting, and even cricket fighting (who cares about bugs?) can be put to one side. They do not involve true cases of consent as the fighting animal cannot be said to consent to the fight, and thus be complicit in its own demise. (Notably, defenders of these sports in days past argued the opposite. They contended that certain animals, bred to the mast, did have it as their nature to fight, and thus were acting consistent with their preferences.) But the blood sports that involved men, the so-called manly sports such as bare-knuckle boxing, knife fighting, and dueling, were justified on the grounds of consent. Even today the rougher sports, such as boxing, combat and football, survive as a legal matter on the complicity that results from consent. Combatants who are injured or even killed while playing the sport are without legal cause against those who have injured them.

Most of the blood sports involving animals have failed to survive public scrutiny and have been driven underground or even to extinction. Yet some of the blood sports, such as hunting and fishing, survive largely intact, although are highly regulated in terms of time and method. As to the humans-only blood sports, the record is similar. Those that survive are regulated, both publicly and privately, in an attempt to ensure some degree of safety and fair competition within the spirit of the sport. Boxers are matched by weight class and experience; football leagues require helmets and limit blocking and tackling techniques. But many manly sports are no longer legal. Social convention, coupled with the jurisprudence of consent, over time rendered these sports illegal. The practice of bare-knuckle fighting, for example, was banned because it was deemed to corrupt public morals and incite violence. Fighters, the courts held, could not legally consent to acts that might cause them substantial bodily harm and even death.

Our historical ambivalence over the manly sports brings us to the sad case of the thirteen-year-old boy who died racing a motorcycle on the Indianapolis speedway. Which brings us once again to the limits of consent, the role of public morals and sensibilities, and the continuation of dangerous sports. There are no new answers. But there are certainly new questions.

1. What's been happening in the world of sports all around us, right under our noses yet largely unexamined, is the advent of an entire new range of risky sports, including combat in its various forms, "extreme" or "X" sports, and just general daredevilry. Youth motorsports, on motorcycles, dirt bikes or go-carts, fits the bill as well. Even tame pursuits such as bicycling or skateboarding can be easily converted into high-risk activities. Spend a few minutes at your local skatepark or at the ski mountain terrain park. As the father of a daredevil, I have. You will see young prepubescent children flipping and twirling in the air, all without a net and without any formal training. They just go for it. I attended what was called a "jam" session at a local ski area last winter. To the sound of very loud music (yes, TSLP was a bit out of his element), kid after kid rode his snowboard down a short hill, hitting prepared jumps, metal rails, and wood fixtures. Many of the kids did flips and spins; quite a few fell, one so badly I couldn't believe it when he later got back up. (Good luck to the ski resort that one day bases its defense to a law suit on the consent of a twelve-year-old.)

2. Despite what some would like to believe, the fact of the matter is that consent is not an absolute defense. It hasn't been so in this country for nearly a century. Athletic participants can consent to acts that fall within the rules of the game (such as a tackle in football) or to acts that, although against the rules, are fairly within the contemplation of participants (such as the brushback pitch in baseball). But participants cannot lawfully consent to violence that lies outside these common occurrences. Consent is limited.

3. Social approbation is limited as well. Probably nothing happened during a bare knuckle fight that wasn't within the participants' expectations. Yet the sport is banned because lawmakers did not want to allow people to consent to such a contest. Athletic participants can validly consent, but not to acts that carry a high likelihood of causing substantial bodily harm or death. While we vindicate consent, at the same time we have a long history in this country of limiting the scope of permissible consent.

4. Children (perhaps especially boys) love to do risky things. They like to go fast and fly through the air. Left to their own devices, boys will jump off bridges into rivers and lakes, race their bikes, and race on skis. As teenagers they may also race their cars. When they race, they will want to go faster and faster; when they jump, they will want to go higher, further and with higher degrees of danger in their aerial tricks. Despite their danger, few of these activities are prohibited; few are even regulated or supervised or "made safe" to much of an extent. We parents stand by with eyes closed, or look away and hope for the best. But how could these risk-taking boys be stopped? How could they be made safe? Are we to prohibit boys from going fast and jumping high?

5. There are some sporting activities that appear benign but are actually dangerous. The backyard death machine known as the swimming pool fits this bill. Then there are some activities that seem crazily dangerous but that, with adequate training and sensible precautions, can be quite safe, statistically speaking. Rock climbing scares the bejesus out of me, but I've been told often of its comparative safety. From what I've read, it sounds like the motorcycle racing the young boy in Indianapolis was doing falls into this category. It's pretty safe. Yet here's the glitch: the sport is pretty safe, yet it looks so unsafe. The child was traveling over 100 miles per hour! Like the rock climber high on the mountain face or the snowboarder trying to complete two revolutions before landing, the immediate chance of mortal peril are obvious. One slip up and the participant will be badly injured if not killed. No parent panics when his child goes off to baseball practice or takes a swim in the pool, yet all parents swallow hard when their child scales a mountain ledge or flips over backwards on his bicycle. The expected value of injury (so to speak) from all these activities is probably roughly the same. Some sports (football, hockey) carry a high probability of serious yet non-catastrophic injury; other sports (motorcycle racing) carry a very low probability of very catastrophic injury. The nature of the risk and its likelihood might differ, but the risk is still there. Boys will take risks.

6. I think the old-time defenders of animal fighting had it right, in a limited sense. (Not that I condone animal fighting; I don't.) They argued that some animals were born to fight. Putting aside the nature/nurture aspect, I think boys are the same way. As a general matter, boys like to take risks. Some boys are born (or made) to like to take their risks in the catastrophic sense. They want to dangle high on the bridge over the water, and leap far off, narrowly missing the outlying rocks before they splash into the small area deep enough to stop their descent. Others will take on different risks, playing football or baseball or other, non-"extreme" sports. They still take on the risk of injury, albeit with a higher degree of incidence and a lower degree of catastrophy. Maybe others take on non-physical risks as well, playing fantasy sports or online poker. Boys will find their own level of acceptable risk, and what is acceptable will run the gamut from sailing the world's oceans alone to "daring" to hit a wedge shot over a pond in front of the green.

7. There's undoubtedly a large social value in allowing boys (and girls, if they share these preferences) to undertake risks. They learn to function under pressure; they learn the consequences of risk through trial and error; they adopt a competitive, risk-taking approach to life that might pay off for them personally and for us socially as they mature into adults and enter the work world. We try to protect our children and keep them from acting too stupidly. Children are likely to discount the probability of harm and exaggerate their competence (much as parents are likely to do the opposite; my mother had an incredible fear of me having an eye poked out). But all parents know we can't stop them. If they want to take risks, they will find them, even if they have to invent "sports" to provide those risks.

8. Of course it is an unspeakable tragedy when the consequences of all this risk-taking is death. Every year here in the wilds of Oregon, adventuresome people, including young ones, die from rock climbing, mountain climbing, hunting accidents, boating accidents, and the like; plus like everywhere the usual run of automobile accident fatalities and other misfortunes claims victims. Risk and its consequences are all around us. But even death teaches the survivors. It teaches them that the activity indeed is very risky. For adults, the riskiness of most of these activities is self-evident; for children, much less so. The death makes that nature apparent. The death both lures more participants to the sport while it also repels others. Those children who prefer to risk their lives will know of an opportunity to do so, just as those who prefer not to risk so much will shy away. It is gruesome, sad business. Yet it is the business of young men to learn about fire, and despite what parents say, they learn by playing with it.

American Needle and the Future of the NFL

2010-08-23T11:42:00.000-07:00

As suggested in my several previous posts on this litigation, I can certainly understand why the Supreme Court was unwilling to side with the NFL in this appeal. The NFL wanted itself declared a "single entity" for antitrust purposes. This pronouncement would ostensibly have put the NFL beyond the reach of the antitrust law for all practical purposes. Such a decision might also have allowed the NFL to operate in the labor market for players without antitrust oversight. In theory, the NFL could have imposed restrictions on player salaries, free agency and tenure, limited only by the collective willingness of the player union to withhold labor by going on strike.

[It should be noted that, for many decades, the NFL has in fact dealt with its players without antitrust concern simply because the presence of the Collective Bargaining Agreement with the Players Association gives the league an exemption from antitrust scrutiny. But the players always had the implicit threat, once actually utilized and even more often raised, of decertifying itself (thus terminating the NFL's exemption) and resorting to antitrust law to challenge league labor practices.]

The Supreme Court was offered several plausible middle grounds short of the NFL's desired decree. Most notable was that of the intermediate Court of Appeals for the Seventh Circuit. The lower court had ruled that the NFL constitutes a single entity for some purposes, but not others. This nuanced, sophisticated rule promised a gradual iteration in antitrust law, separating instances where the NFL in fact competes with other business entities in the large, national market for entertainment from those instances where the NFL (as in the hiring of football players) for all practical purposes has no competitor at all. Instead of adopting this complex but promising middle ground, the Court wrote the easy opinion. It described the NFL as a joint venture much like any other, and held it to be a multiple entity subject to antitrust review.

In my view, the Court committed a serious mistake. This decision will hinder the continued prosperity of the NFL, and could devastate other, less secure professional sports leagues.

1. The NFL is a growing business. It has evolved from a sport that depended mostly on local ticket sales to one whose business model encompasses a national market. Today, most fans consume professional football on television. The league's television package is sold to national networks; its best games feature the top teams, regardless of geography. Even in its ancillary businesses, including merchandise and fantasy play, the NFL competes with other sports and other brands. Of course there remains some competition among NFL teams for local revenue in merchandise, radio broadcasts, and stadium-derived revenues. But the national television contracts dominate the league profits, and coupled with aggressive revenue sharing among teams, form the principal reason for increased value of franchises.

2. The Court's resolution of the appeal should have taken some account of the predominately national character of this particular professional sports league. The jurisprudence should advance to reflect contemporary economic realities. "Substance over form" is the maxim the court promised in its opinion to follow. It must have been joking. The punchline is that the Court did the opposite, concluding that a business entity that is divided into 32 separate franchises is a joint venture for antitrust purposes, even though the reality is that those franchises are locally owned primarily to enhance on-field competition and are united as one for most everything else. Yet the court took no account of the evolving national character of the NFL. It treated the league as if it were 32 independent mom-and-pop operations staging football games. That is the league of the 1960's and 70's, the football the ancient Justices remember from their youth. It is not the league today. Yet, as a result of the court's opinion, antitrust law will continue to regulate every aspect of the NFL.

3. Despite the claims of those who favor the American Needle decision, the continued threat of antitrust scrutiny presents a serious obstacle to efficient business operations. The governing standard in antitrust law is the "rule of reason," which calls for an assessment of the the competitive effects of a joint action. It sounds great on the page, but in practice the rule of reason is a nightmare as a regulatory tool. Fundamentally, the rule requires a difficult and intensive factual inquiry, buttressed by the testimony of expert witnesses. Consequently, antitrust litigation is notoriously expensive. To make matters worse, it is unpredictable. No easy rubric exists to compare the pro-competitive and anti-competitive effects of any course of action. Yet because the NFL is a multiple entity, every one of its business decisions potentially opens the league up to an unpredictable and expensive antitrust lawsuit. Every business decision must be considered not only for its wisdom in terms of profits and costs, but also for its possibility to give rise to a major piece of litigation. This is a serious cost that is not imposed on the NFL's numerous competitors in the entertainment market.

4. Few people are aware that the NFL, like other professional sports leagues, stands on very thin ice. As a joint venture, all meaningful league decisions and contracts are vulnerable to antitrust review. In the area of marketing, the American Needle decision renders objectionable the league's decision to license its valuable trademarks exclusively to one head wear company. Similar deals in other sports, such as Major League Baseball's lucrative exclusive license for baseball caps, are now similarly open to antitrust scrutiny. The NFL's even more huge broadcasting agreements are also objectionable, as are those of the other major professional sports leagues. Despite the common understanding, the exemption from antitrust law created by the Sports Broadcasting Act is far too narrow to encompass the NFL's contracts with ESPN and Direct TV. The sport's ongoing efforts to claim ownership of intellectual property in the significant fantasy markets will also one day become an antitrust issue. Add to these the longstanding and unanswered antitrust questions involving player drafts, salary caps, schedule restrictions, revenue sharing, waiver restrictions, arbitration rules, salary slots, and limitations on free agency, and one can see that the pro leagues could have quite a bit of litigation on their hands. Now the NFL may well win many of these cases, as I suspect it eventually will in American Needle with respect to its trademark licensing. The league will, I predict, be able to justify its conduct under the rule of reason. But the victories will be costly, if only in substantial legal fees. Any litigation losses will be devastating. For example, a decision that precludes the NFL from enforcing its schedule on teams, allowing teams to set their own schedule, would alter the league forever.

5. Other professional sports leagues are even worse off. The NFL stands today as America's premier league, and has already advanced its industry far into the national market. A fan will watch a key game featuring top teams no matter where that fan lives. Other sports, however, lag behind the NFL, and still depend more heavily on local broadcast contracts and local ticket sales. These other leagues see the NFL as a model in moving their products up from a local to a national or even international market. These leagues do not have the resources of the NFL to wage major antitrust litigation wars, and are less able to withstand a negative ruling. The American Needle decision deals these leagues a heavy blow.

6. Of course, it is always true that the leagues could be disaggregated. Players could be perpetual free agents, much like any worker. Teams could be free to relocate at will. Owners could barnstorm their teams, playing in only the most desirable contests at optimal times. Football and other sports would persist at the professional level. Only they would persist in a form very different than that to which Americans have become accustomed. But for unaccountable reasons of taste, Americans do not seem to like their professional sports in disaggregated form. They like players to remain with teams for a time, teams to remain in cities, and schedules to culminate in earned berths in playoff tournaments. We could consume our sports differently and maybe one day we will. But that change, if it ever occurs, should be in response to changing consumer preferences. It should not result from the injunction of a federal judge wielding the outdated, amorphous standards of antitrust law.

The Clemens Indictment Misses An Opportunity

2010-08-20T13:33:00.000-07:00

Roger Clemens still holds his cards. How he plays them will of course have a huge impact on the rest of his life. Perhaps more importantly from a social perspective, Clemens' litigation strategy could also have a huge impact on the past and future of major league baseball and even professional sports more generally.

The fact that the indictment has been issued actually helps Clemens to a degree. The indictment means that the prosecutor at long last has shown his hand. He has played his cards, and judging from the shape of the indictment, the prosecutor is playing his hand aggressively. The indictment consists of two counts for perjury in lying under oath to the Congress, three counts of lying under oath in his deposition, and one count of obstruction of the Congress. These are a lot of counts, considering that they basically derive from a single episode of criminal conduct, namely Clemens' voluntary appearance before the Congressional committee. Clemens could end the matter right here, by pleading guilty, accepting the conviction, and hoping for a decent sentencing outcome. The fact that the counts arise from a single episode, coupled with a guilty plea, would give Clemens a significantly mitigated sentence, although it would most likely include some prison time.

But the fact that the prosecutor has played his hand so aggressively basically rules out any incentive Clemens might have to plead guilty as charged. By so overbidding, the prosecutor is in effect inviting Clemens into a negotiation that will likely result in a compromise, probably on a single count of perjury. Clemens will plead guilty to a single count, pay a steep fine, serve some time in prison, and that will be the end of the matter.

It could have been so much more.

1. Prosecutors typically charge at the "high end" of the provable evidence. In other words, prosecutors will indict on as many counts and on as many legal theories as the prosecutor believes the evidence will support, given the stringent standard of proof in a criminal case. This typical approach works best in this era of overflowing dockets and rampant plea bargaining. By starting with the high bid, the prosecutor leaves plenty of room for an adequate plea agreement. The strong charge also gives the defendant a commensurately strong reason to negotiate a reasonable plea. If the defendant refuses to bargain and instead stands trial on the indictment, the defendant could be convicted as charged, with severe sentencing consequences to follow. Although criminal defense lawyers decry the practice, the habit of prosecutors to frame their charging decisions by the full extent of the law actually greases the skids on an otherwise unworkable and archaic system of criminal justice.

2. The prosecutor should not have treated Clemens as just another defendant. Celebrities are often treated "specially" in sentencing: many judges have justified imposing unusually harsh sentences on convicted celebrities on the grounds that the defendant's notoriety presents an opportunity for a strong deterrent message. In other words, the criminal courts have used the opportunity in sentencing celebrities to achieve other social aims. Prosecutors and judges will use the celebrity at the sentencing phase; why not use them at the charging phase too? Instead of bringing impossibly severe indictments, why not indict celebrities on a single, strong count? Why not leave no room for plea bargaining? The celebrity would have no reason to settle. He could plead guilty and take his medicine (the likely outcome from a negotiated plea anyway), or more likely, take the case to trial. Instead, with his severe indictment the prosecutor is basically giving Clemens every incentive to plea bargain. The result is that we will be cheated out of a trial.

3. And what a trial it would have been. The issue in the perjury case is whether or not Clemens lied to the Congress. But the underlying issue is the real one: did Clemens in fact take performance enhancement drugs? The prosecutor's case would have ripped open the seamy underside of professional sports. The unseen world of drug suppliers and steroid smugglers that shadows pro sports would have been brought to light. The locker room culture of shared information and shared bathroom stalls would have been made plain for all to see. Teammates, trainers, coaches and managers and many others would have called to testify. This trial would not be another feckless "Mitchell Investigation" that had to beg reluctant witnesses to share their stories. This would have been a federal criminal trial, with subpoenas flying all around the baseball world, followed by vigorous cross-examination under oath. This would have been very serious business.

4. My suspicion is that a full-blown trial of the famous former member of the New York Yankees would have been the source of daily revelation and shocking news. A Clemens trial could have generated real public momentum for reform and even a serious commitment from lawmakers and league officials to separate baseball and all professional sports from their historic drug culture. A lot of public good might have come from the latest trial of the century. Yes, trials are expensive. But aren't they sometimes worth it?

5. Instead, what we'll likely see soon is a negotiated plea arrangement. The saga of Roger Clemens will be regarded as nothing more than the sad example of the high being brought low, of a fall from grace for a former all-star pitcher. The Clemens case will provide nothing more than the fulcrum for that fall. There is certainly a public interest in punishing the guilty, don't get me wrong. Certainly the case will generate a new respect for the importance of telling the truth under oath. But the case could have accomplished so much more. Following the leads a trial would inevitably have generated, the Clemens case could have started us on the ultimate trail of truth: it could have told us who used and who didn't. Wouldn't it be great, as we (supposedly) turn the page on baseball's steroid era, to know who used and who did not, if only for the sake of baseball's records and baseball's criteria for the Hall of Fame?

I'm hoping the prosecutor pares down his indictment substantially so that we're left with a single count or two. Make this charging indictment into a document on which Roger Clemens can plausibly stand trial. My suspicion about Clemens is that, faced with a reasonable challenge, he'll accept it and try to make his case before a jury. That turn of events would be in the public interest.

Our Little Baby's All Growns Up

2010-01-26T22:13:00.000-08:00

Of course we're talking today about Major League Soccer, the little baby in the American professional sports world. Like the growing pains experienced by its more mature siblings, MLS is facing the expiration of its collective bargaining agreement, on January 31, and the distinct possibility of a labor interruption. Is MLS doomed to repeat the labor strife experienced in baseball and football? Or can "the beautiful game" follow a different path?

[I had the opportunity to participate in a podcast discussion of the status of MLS labor issues today on a website called "MLS Talk" Here's the link.]

1. From its inception, MLS has tried to follow a different path. Well aware of the trouble antitrust law has caused for owners in other professional sports, MLS was organized in a very specific way in order to avoid antitrust liability. Antitrust law, in relevant part, prohibits an agreement that restrains trade. One way to avoid antitrust problems is not to restrain trade. The other is not to enter any agreements. MLS chose the latter. It avoids entering any agreements, in effect. Under the MLS ownership structure, the MLS constitutes a "single entity." As a result, the kind of arrangements or agreements among teams that have gotten other leagues in trouble (such as salary scales, salary caps, player drafts, limitations on free agency, and so forth) are not, in the view of the MLS, "agreements" under the antitrust law at all. They are merely internal business decisions, no different than any coordinating activities among divisions of a single manufacturer. Thus, MLS is incapable of violating the antitrust laws, no matter how much it restrains trade.

2. The union fought this "single entity" characterization in the 2003 litigation styled Fraser v. MLS. The league won, sort of. The appellate court in that case (the U.S. Court of Appeals for the First Circuit) found that the league lacked sufficient "market power," given the ample competition for players from the various international soccer teams, to give rise to a cognizable antitrust claim. So the best reading of that decision (and this reading is debatable; the court's opinion is less than clear on the point) is that the First Circuit gave no ruling on the single entity argument. In any event, in the wake of the decision, the union in its next collective bargaining agreement promised not to contest MLS's single entity status, at least for now. It remains contestable, however, at least in my view.

3. Of course none of this should matter, and courts will say as much. Whether or not a sports league is a single entity for antitrust purposes should have nothing to do with what form of business model a league adopts. League structures should be based on the most efficient forms to enhance fan interest. Most leagues have a more decentralized structure, featuring independent team ownership, on the view that teams owned locally will promote local rooting interests to a greater degree than would a centrally managed league in which teams were mere divisions of the same company. Structure shouldn't matter for legal purposes, but it does. MLS, which has "investors" instead of owners, and has player contracts entered into by the league, not the team, simply looks more like a single entity than does Major League Baseball, for instance, and thus is more likely to sustain that conclusion in court.

4. It is this "single entity" status that is at the heart of MLS current labor issues. The players' union is not asking for more money or better benefits. It wants free agency: the right of players whose contracts have expired to shop their services among competitor teams. The union understands that it has been free agency that, along with salary arbitration, has been instrumental in bringing about the enormous salaries that are common in other pro sports. The union wants the MLS to treat itself, essentially, as not a single entity, and to allow their "divisions" to bid against each other for assets. This is a serious divide. The entire league is set up to promote single entity status, yet it is exactly that status (or more exactly, the benefit from that status) that the union wants to negate. Soccer fans, this could get ugly.

5. The MLS collective bargain agreement expires in a few days. I have no idea what the parties will do. I know what I would advise the owners to do: offer a better financial deal, and if it's refused, lock the players out. This is a huge year for MLS. The league's public prominence has crested during times of significant USA success in international competitions, such as the 2002 World Cup, where the US made the quarterfinals, or last year's Confederations Cup. 2010 is of course a World Cup year, and the attention of the US on its national team will be intense. This is exactly the wrong time for a labor stoppage. Yet the union by requesting free agency is threatening the very heart of the MLS cost-control measures. The union is picking a big fight.

6. MLS is currently enjoying some profitability. It has a few very successful franchises (Toronto, Seattle) and (finally) a profitable television contract. It has some money to spread around and adjust some of the very low player salaries. But the union doesn't (at this time) appear to want money; it's arguing for a principle that the league will be very loathe to adopt. By not locking the players out at the inception of the season, the league risks making major investments in the season (in salaries and in staging contests) only to see the players threaten a strike toward the late summer, when World Cup interest reaches its peak and the MLS season heads towards the playoffs. A failure by the owners to lock the players out only transfers the leverage to the players, who would now get the pick the date of a work stoppage to exert maximum leverage. By locking the players out early, the owners retain the upper hand and will be able to exert maximum leverage to sustain the season.

7. I like MLS. I don't want to see the season interrupted. I think the best way to avoid an interruption is for the league to put out its best financial offer presently and then plan on a lockout. The prospect of improved wages will be very attractive to the union's rank and file, many of whom earn less than $50,000 per season, and who may care less about free agency than does the higher-paid players. Also, the huge divide in player compensation (David Beckham earns over six million for his limited work) will render a strike very hard for the union to sustain. Players will cross the lines, or go back to Europe. The union has to know this, and know also that the owners could withstand a lockout much more easily than could the players. Let's hope a reasonable salary compromise can be reached.

No Good Argument in American Needle

2010-01-14T14:07:00.000-08:00

Two observations about last week's oral argument before the Supreme Court in American Needle v. NFL:

1. Neither position seemed entirely plausible
Lawyers like to ask questions based on completely unrealistic hypothetical situations because they allow us to locate the outer limits of a rule. Figuring out to what situations a rule of law would not apply helps lawyers determine where it does. The Justices in the American Needle argument spent much of the time trying to locate limits. They took turns asking the lawyers for each party about football leagues playing on Saturday, rogue non-sanctioned games between NFL teams, Red Sox fans wearing Yankees' shirts, and purchases of office stationery by NFL commissioners. No matter how far-fetched and silly the Justices' questions appeared, they couldn't find a limitation to the rules proposed by the litigants. The lawyers blithely insisted that antitrust law would (or would not) apply to everything.

The Court couldn't find limits because there weren't any. American Needle's position is that the antitrust law must be used to examine all aspects of a joint venture. Since the NFL teams are independent businesses, in Needle's view, then when those teams conspire to take joint action then that joint action is subject to examination under the antitrust law. That sounds fine, until one realizes that "subject to examination under antitrust law" is lawyer's code for intrusive and very expensive federal litigation. Expensive antitrust lawsuits to review every action of the joint venture, from awarding trademark licenses to buying one brand of football; that sounds sub-optimal, no? Similarly, the NFL's position is exactly the opposite, that the league is a single entity for virtually anything it does that is related to the game of football, which means that the NFL is basically immune to antitrust liability. Which also sounds about right, until one recalls that the owners have a long history of restricting the salary and movement of players, and that the players won much of their labor rights through antitrust litigation in the 1980's. In short, no hypothetical seemed too outrageous. Neither proposed rule appeared to have a limit.

It will be difficult for the Court to write an opinion embracing either position, since both lead to places the Court will surely not wish to go. The lawyers did their clients no favors by not being able to articulate a plausible limiting principle to their proposed rules.

2. This case might not be about sports law at all
What was also strange about the argument before the Supreme Court was that most of it had nothing to do with the question the Court had intended to answer, which involved an economic analysis of single entity vs. multiple economic actors with respect to the NFL. Instead, the argument was all about the meaning and reach of the rule of reason. The problem with the rule of reason is that, although it is generally thought to be a generous approach to antitrust law (and it is, compared to the dogmatic "per se" approach that dominated the early antitrust jurisprudence), it is nonetheless onerous in terms of its costs of application. What the Court seemed interested in doing was to use the "single entity" idea much as did the Seventh Circuit: to cabin or calibrate the rule of reason element of Sherman Act liability. In other words, the rule of reason is so uncertain, and thus so costly to implement, that the single entity doctrine might become a proxy to allow for rapid and cheap resolution of joint action litigation.

If I'm right in this analysis of the argument, then the eventual decision of the Court will not be about sports law. We won't know if, as a matter of law, the NFL (and other professional sports leagues that share key attributes with the NFL) are to some extent "single entities" that are incapable of concerted action. Instead, American Needle v. NFL will become another antitrust decision about the rule of reason, a case that just happened to have a sports league as a litigant. The decision will fail to secure a place in the pantheon of sports law, a position it once appeared poised to hold. An opportunity to answer an important and perduring question in sports law will go by the boards.

Teams That Tank

2010-01-07T15:25:00.000-08:00

NFL Commissioner Roger Goodell is the latest sports leader to fret publicly about an increasing problem among professional sports leagues. With so many benefits available to a team from losing a game, or more specifically from not trying very hard to win, then it appears that sometimes teams appear indifferent to winning. I can think of three instances where teams play indifferently. First, where an amateur star player is about subject himself to the entry draft, and a losing team tries to position itself in a better position to obtain the highest draft choice. Second, where a team in the latter stages of the regular season has no chance to qualify for the playoffs, and thus plays rookies and scrubs in order to assess player abilities in preparation for the following season. Third, where a winning team is assured of a playoff berth and therefore uses the remaining regular season games to rest stars and avoid injuries to key players. For shorthand, I'll refer to all of these situations as "tanking."

[Of course situations one and two in the tanking list might in many cases be coincidental; I suspect that sometimes we think we're seeing a team lose for draft position when we're really seeing a losing team making assessments for the next season. So the problem, in my view, is likely overstated.]

Assuming tanking is a problem (Commissioner Goodell clearly seems to think so), let's see what if anything can be done about it. I've read about lots of proposals. Every one of them involves additional rules. I've heard of proposed rules that require stars to play, rules that fine teams for shirking, rules that threaten the forfeiture of a draft pick if teams shirk. Why does everyone always want to make up new rules for every problem in the world? Maybe fewer rules would work better.

So let's eliminate all of the following rules and see if this problem of tanking goes away.

1. Before we discuss remedies, we should ask if tanking is all that bad. In TSLP's glorious formative years in the Commonwealth of Massachusetts, although of course I wanted my teams to be in contention and win (vain hope in those days), I used to love when the Red Sox fell out of contention. It was a chance to see the top prospects, or the part-time rookies, get a chance to play. You could estimate their potential and whet your appetite for their eventual contributions. Granted, watching the kids play is a different kind of fan interest than watching your team drive for the championship. Yet sports fans do consume their fanaticism in various ways. Only one team can win the trophy, and only a minority of the teams (one would hope) can qualify for the playoffs. It is important for teams to learn how to market their non-competitive games as much as the ones with immediate playoff implications.

2. Again before we discuss remedies, realize that this presumed problem of tanking is a very modern phenomenon. Although I'm not that old (my internet persona TSLP is a mere twenty-nine, and handsome to boot), part of the current fixation on tanking stems from the current fixation on the playoffs. Of course the playoffs are entertaining and fun, but they are also contrived: they do not determine a league champion in any true sense. Instead, they crown a champion and make everyone call that team the champion. For instance, beyond doubt the New England Patriots (with a 17-0 record) were the best team in the NFL in 2008, and indeed might have been the greatest NFL team ever, yet an improbable upset meant that the Giants were the season's "champion." The Giants were a very good team, but hardly the best. Does anyone really think that the NCAA men's basketball tournament crowns as its victor the best team in college hoops? It would be amazing if it did. Yet winning that tournament, although obviously the product of a large dollop of luck, has become the defining characteristic for NCAA basketball programs and coaches. Anyway, the result of our modern and indefensible addiction to playoffs and champions is that the enjoyment of the game itself has diminished. I grew up rooting for a losing teams. To be a fan meant to follow that team and root for its gradual improvement over the course of many seasons, looking for small signs of hope in promising rookies, cheaply acquired veterans, and improved skills from present players. Today it's playoffs or nothing. My point is that losing teams that play rookies is nothing new; our terming it "tanking" and considering such games "meaningless" is a reflection of the limits and shallowness of the contemporary fan experience.

3. But before I run out of internet space, here's my first reform (by which I mean rule-elimination, not rule-addition): end the limitations on trades of draft picks. If losing teams are in fact tanking for draft picks, they must believe that the draft pick is more valuable to them than is the fan anger their tanking will likely generate. Which means either that young, unproven but talented players are worth it (sometimes, but not routinely) or that the rules of the professional leagues artificially inflate the value of those picks. I suggest it's the latter. The leagues make it either impossible or difficult to trade picks. Draft picks in major league baseball cannot be traded. NBA teams may not trade first-round picks in consecutive years. The NFL allows for trades of picks. Notice how tanking concerns (at least in Situation One, that is, losing for draft priority) are seldom discussed with respect to the NFL. Why don't NFL teams tank for superior draft position? Because the (relatively) free alienability of draft choices makes it comparatively easy for any team to move up or down in the draft. Why would a team tank to turn its high draft pick into one or two spots higher? History shows it's easy and common to trade up as desired. Plus, where a team has traded away its top pick, it no longer has an incentive to increase the value of that pick.

So one solution to the problem of tanking is to allow teams to trade their picks freely. Then a team that wants a particular high draft pick could weigh the cost of moving up in the draft (say its own pick plus a valuable player) against the cost to its fan support from tanking. In many cases, it might be better to play hard now and trade later. Limiting the tradeability of draft picks means teams have no choice but to make their picks as valuable as possible.

4. The leagues also err by imposing rookie salary scales. These scales are designed to pay rookie players less than their market rate. I understand the various rationales for wage scales. But one unintended consequence of rookie scales is that draft picks are more valuable than they would be otherwise. Would teams be as eager to tank games to get high draft picks if those picks cost the teams a market rate in terms of salary? Again, look at the NFL, where the picks in the top half of the first round are paid something close to their market value. Teams that hold such picks have trouble trading them. The "value" in the NFL draft, I've read, is in the lower part of the first round and the second round, where the pay for players is much lower. These cheaper players from the second round are sought after, while a very top pick might be a curse. If the NFL does adopt a rookie wage scale in its next round of collective bargaining, as has been discussed, then the NFL will usher in an era of tanking. The NBA, which has what is probably the clearest slotting system among the major professional sports, has the biggest problem with tanking, and has had to adopt a crazy-quilt series of lotteries to try to dissipate the obvious gains from tanking. Instead of adding lottery rules and other contrivances, let's try eliminating a rule instead!

5. The other side of the problem is Situation Three, where playoff-bound teams save their stars for the post-season. Part of this problem stems from the uber-importance that the leagues give to their playoffs. But that issue aside, the remedy here is simple: just let teams pay their employees for doing good things! Radical idea, yet the American professional sports leagues prohibit it. Players and coaches must be paid in salary, and that salary cannot be contingent, even in part, on the player's or coach's performance. By rule, the terms of bonuses are carefully circumscribed: in general, players may be given what I'll loosely characterize as "participation" bonuses (number of games played), but for the most part are prohibited from any performance bonuses. (Some exceptions: players can get (limited) bonuses for winning or placing high in the individual voting for league-wide awards.) But bonuses are not permitted for home runs, basketball goals scored, or touchdown passes caught. Okay, I can see how those bonuses might be disruptive to team chemistry. But why not allow individual bonuses to players and coaches for the number one thing that (supposedly) the leagues and the fans all care about, that is, winning the darn games? Why not allow teams to make bonuses contingent on winning? Why is this practice prohibited by the rules and by-laws of every major professional sport?

If players and coaches actually earned money by winning games, don't you think we'd have seen Peyton Manning and the rest of the Colts playing in the second half against the Jets last week? How much would the Colts have paid in bonuses for an undefeated season? Would veterans claim their little toe hurts in order to sit on the bench in "meaningless" late-season contests if they stood to gain financially from getting in the game?

6. There may be times teams would want their veterans to sit. The team may want to give the rookies a chance or rest a star for the playoffs. Teams could still do this, only now by guaranteeing the veteran his bonus. What would be wrong with this? Yet, today we have a rule prohibiting paying bonuses for wins, for fear of making the pro contests look like a gambling event. Yet because of this rule, they look like a tanking event. End this rule and let's see if the problem of tanking persists.

Tim Donaghy on 60 Minutes

2009-12-07T11:30:00.000-08:00

It doesn't take much daring to say that 60 Minutes messed up. The seminal investigative news program lost its teeth a long time ago. But still, it would have been interesting and educational if the program had treated the Tim Donaghy story as something more compelling than a banal morality tale about the depths of addiction. 60 Minutes had the first public interview of the disgraced former NBA referee. It consequently had the opportunity for the first serious examination of the scandal that exposed the hidden underside of professional sports leagues, namely that game officials are omnipresent third-players in the game contests and have a mind of their own.

The 60 Minutes interviewer pressed the point repeatedly that Donaghy was guilty of an act of moral turpitude, a description that Donaghy was very willing to concede. Indeed, the one small act of self-preservation on Donaghy's part, coming when he described his conduct as a "bad choice," drew the interviewer's pointed response that Donaghy's choice was more than bad. So let's try "horrible," Donaghy responded helpfully. The one substantive point Donaghy tried repeatedly to make was that the personal vendettas and whims of game referees go so far to determine game outcomes as to render Donaghy's picks correct about 75% of the time. Yet the interviewer's lame follow-up to this telling assertion was a question put to the FBI investigator, of all people, asking whether the NBA had a problem with biased referees. The agent's reluctant agreement was underscored by the interviewer, as if a key point had been conceded. But how would an FBI agent be in position to confirm or deny such a charge? Biased refereeing hardly rises to the level of a federal crime.

I would have preferred that the investigative report have been more thought-provoking. The story about a lone NBA ref who goes bad tells me nothing new, and indeed mimics the NBA's line. But what was the NBA's role in all this? There can be no question that refereeing a game has a strong subjective element, particularly when the game is NBA basketball, which strikes me as the most difficult sport to officiate at its highest level. So many big men collide in such a small space, rendering the constant charge/blocking call all but impossible to make with any practical consistency. Referee calls will be inevitably variable, regardless of whether the referees are motivated by a pursuit of objectivity or base revenge.

Subjectivity in refereeing will always be with us. The question is what to do about it. The NBA did exactly the wrong thing. It made a policy to keep the referee assignments a secret until game time. The NBA did so in order to keep its referees away from the corrupting influence of gamblers, who had they been aware of which referees were assigned to a particular game would have had an opportunity to fix the game. Yet instead of protecting its referees, what the league's policy did was to make it possible for a referee to be corrupted. By keeping referee assignments secret, the league created inside information. Donaghy and the gamblers he tipped used this inside information to gain a betting advantage. In a point overlooked by the interviewer, Donaghy drew this analogy to inside information explicitly.

Had the league routinely released referee game assignments well in advance of the contest, gamblers would have helped the league keep the game clean. Sports bettors leave no stone unturned in seeking even minute competitive advantages. A referee's biases and proclivities (regardless of whether their cause is malign or benign) would likely be detectable in historical game data; certainly sports gamblers would do their best to discover any foul-calling tendencies both for totals bets but also to see if a referee's calls might tend to favor a particular team. How hard could it have been to discover biases? Donaghy was able to pick 75% of the games based on little more than offhand, anecdotal knowledge.

Had the NBA released its referee assignments, it would have negated their importance. Bettors and touts would have competed to use this new information, and in short order the tendencies and biases of individual referees would have been reflected in the point spreads on side bets or in the over/under on the totals bets. I made this point repeatedly on this blog as the Donaghy scandal was unfolding. Interestingly, in its response to the Donaghy episode, the NBA decided to announce referee assignments well in advance of games.

60 Minutes should have investigated why the NBA unnecessarily created inside information, information moreover that was valuable to gamblers and no one else. Why did the NBA make this mistake? As importantly, why do pro sports leagues continue to keep secrets? The NFL won't even release the rules of its game. Major League Baseball keeps secret the formula it uses to rate free agent players; its umpire ratings are guarded like the colonel's chicken recipe. The NBA does not have an NFL-like requirement for teams to disclose injury information. What is going on here? These are games we're talking about. If the NBA had never kept its silly secret, Tim Donaghy would have had no inside information on which to base his bets.