Tuesday, July 26, 2011

Men Behaving Bradley?

A Quick Look at the Issues Raised by the Lawsuit Filed Against Junior Welterweight Champion Timothy Bradley

Earlier this year, it appeared as if a “Desert Storm” was going to wreak havoc on the junior welterweight division, as WBO/WBC Junior Welterweight Champion Timothy (Desert Storm) Bradley, 27-0 (11 KOs), began to impose his will on his division’s fellow titleholders, starting with his January 29, 2011 technical decision win over then-WBC champion Devon (The Great) Alexander. While not a scintillating performance, Bradley’s domination of Alexander was expected to lead to a more compelling unification bout with former 2004 British Olympic silver medalist and current WBA Junior Welterweight Champion Amir Khan. Khan, fresh off of his tremendous war with Marcos (El Chino) Maidana and the methodical breakdown of Paul McCloskey, was expected to give Bradley the sternest test of his professional career in a battle for three of the four major junior welterweight crowns. Another battle, however, was reportedly beginning to brew behind the scenes which pitted Bradley and his manager, Cameron Dunkin, against his soon-to-be former promoters Gary Shaw and Ken Thompson, with whom Bradley’s promotional agreement was expiring. Thus, as the negotiations for a Bradley-Khan fight languished on despite some exceptional concessions from the Khan camp, including an even split of the television money generated in Khan’s fan bases, it was widely whispered that Bradley may be looking to simply spike the ball and sit out the rest of his contract with Shaw and Thompson so that he can sign with Top Rank or another major promoter. What began was rampant speculation and rumor boiled over earlier this month into a Florida-venued lawsuit against Bradley and Dunkin in which Shaw and Thompson allege, among other claims, breach of contract and tortious interference in contractual relations in connection with their respective actions during the Khan negotiation. The inference that the lawsuit makes is that it was nothing more than bad faith and looking past their expiring promotional agreement with Shaw and Thompson that led Bradley and Dunkin to opt out of the Khan fight. But was this just a matter of Bradley behaving badly, or something less sinister? A quick look at the potential issues raised by Shaw and Thompson’s lawsuit follows...

For the full article, please go to this link.

Monday, July 25, 2011

NFL Lockout is (essentially) over: New Sports Illustrated column on what's next

Here's my Q/A for SI on the end of the lockout and what is now likely to happen.  Speaking of SI, congrats to Gabe Feldman on being named by SI as the 100 top twitter users.

Sunday, July 24, 2011

Pine Tar: Of baseball and law

Today marks the 28th anniversary of the "Pine Tar Game." In 1983, the Royals were playing the Yankees at Yankee Stadium on a Sunday afternoon. With two out in the top of ninth and the Yankees up 4-3, George Brett hit a two-run homer. But Yankee manager Billy Martin protested, saying that Brett had used an illegal bat containing pine tar more than 18 inches up the bat handle;R. 1.10(c) prohibited pine tar or any other grip-improving substance on the hitting area of the bat. The umps measured the amount of pine tar, found it higher than 18 inches, and called Brett out, giving the Yankees the win. In one of the iconic video images in baseball history, Brett came charging out of the dugout and tried to attack the umpire and had to be restrained by teammates, coaches, and other umpires. The Royals protested and the protest was upheld by AL President Lee MacPhail, who reinstated the homer and ordered the game resumed from that point.

Long before John Roberts went before the Senate Judiciary Committee, this game had people talking about baseball and the law, even prompting some legal scholarship on the case as demonstrating statutory interpretation, judicial decisionmaking, and legal processes.

R. 1.10(c) called for the removal of the tainted bat from the game, but did not specify what should happen to a player who used such a bat or to a play in which such a bat was used. The home-plate umpire invoked his gap-filling power under R. 9.01(c) to "rule on any point not specifically covered in these rules" and decided that a player should be called out for using an illegal bat on a play.
In reversing that decision, McPhail made an intentionalist "spirit v. letter of the rule" decision. R. 1.10(c) was not about regulating performance, it was about economics. MLB wanted players to keep pine tar off the hitting area of the bat because if pine tar got on the ball, the ball would have to be thrown out, requiring teams to provide more balls each game. But pine tar did not affect the "performance" of the bat, in the sense of how far or hard or well the ball would travel off the bat (compared with, for example, doing something to make the bat lighter). Thus, the only appropriate sanction was removing the bat from the game, as provided in R. 1.10(c). Calling a player out was an unnecssary additional sanction, because Brett's violation of the rule did not give him an unfair competitive advantage. The umps, if you will, abused their discretion in turning to 9.01(c) for that additional sanction.

This also shows that the posture of an issue on appeal and the administrability of any ruling affects its resolution. This was one of the rare cases that a league upheld an appeal of an umpire's ruling--in fact, it was the only time in MacPhail's ten-year term as AL President that he overruled the umpires. He was able to do so, in part, given the timing of the play at issue--it was the final play of the game. This meant there were only two possiblities: game over if MacPahil affirmed or pick the game up from a known point immediately after the challenged play if he reversed. But imagine the administraive difficulties if the challenged play had come in the fifth inning. The game would have been played to a conclusion "under protest," then the challenge would have gone to the league (in essence, a Final Judgment Rule). If MacPhail makes the same ruling, what happens? Does the game resume from after the challenged play and everything that actually happened is erased from the record books? Does it depend on whether those two runs would have made a difference in the game, in essence, a harmless error analysis? Should the game resume only if it would affect the pennant races (both teams were in contention, although neither won its division), in essence a mootness analysis?

MacPhail ordered the game replayed from the point of the call--two outs in the top of ninth, Royals up 5-4. There was more conflict over when the game would be played or if it should be played. The Yankees wanted to wait until the end of the season and resume it only if it affected the penant race. The AL ordered the game to be picked up on Thursday afternoon, August 18.

Then there was some real legal wrangling. The Yankees sued to stop the resumed game, citing security and administrative burdens; a state trial court issued a preliminary injunction, which was quickly overturned on appeal. So the game resumed, with about 1200 fans in the stands. The first move by manager Billy Martin was to appeal to every base, arguing that Brett and the runner ahead of him had not touched the bases on the home run. The four umpires working the resumed game were not the same umpires who had worked the original game, but each signalled safe. They then produced an affidavit from the four original umpires swearing that both players had touched all the bases on the home run.

Finally, to see separation of powers at work: MLB amended the rules to handle the situation in the future, adding a Note to R. 1.10(c) stating that the use of a bat with too much pine tar would not be the basis for calling a player out or ejecting him from the game and a Comment that if excessive pine tar is not objected to prior to a play, it cannot be a basis for nullifying a play or protesting the game.

Umpiring--it's a lot more than calling balls and strikes.

Friday, July 22, 2011

Winning and losing legal battles and the legacy of Curt Flood

As Nathan noted last week, HBO Sports has produced an excellent documentary (narrated, of course, by Liev Schreiber), The Curious Case of Curt Flood, examining Flood's career, unsuccessful federal-court fight to establish free agency, and life after baseball. Among the commentators is Wisconsin Prawf Brad Snyder, who wrote a fantastic book on Flood's case, A Well-Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports.

One of the subjects the movie tackles is Flood's precise legacy. The popular myth (and I use myth in both its meanings) is that Flood successfully challenged baseball's reserve system (which essentially allowed MLB Clubs to continually renew a player's one-year contract) and created free agency. But Flood did not win, losing in a 1972 decision that has become infamous for two things: 1) Justice Blackmun's otherise-pointless paen to the glory and history of baseball (which Chief Justice Burger and Justice White refused to join and which excluded Joe DiMaggio from the list of greatest players) and 2) a logical progression of, essentially, "We were wrong in our two prior precedents holding that MLB is not engaged in interstate commerce and thus not subject to the Sherman Act, but at this point it is for Congress, not us, to change it." Free agency came about three years after Flood, as a result of a labor arbitrator's decision (that may well have been legally incorrect, according to some) in a griveance filed by two other players, Andy Messersmith and Dave McNally.

So why is Flood widely spoken of, especially by the media and other professional athletes, as the person who made free agency possible? And what does that tell us about what it means to win and lose legal-reform battles?

1) Several commentators in the film argued that Flood put free agency in moral terms, something Messersmith and McNally did not and could not do. Rhetorically this is true. Flood, who had been active in the Civil Rights Movement, spoke of the reserve system as slavery and argued that "a well-paid slave is still a slave" (the quotation which gave Snyder his book title). Whether Flood was right to speak in terms of slavery, no white player could have done the same. In any event, the point was that the existing system was morally wrong and had to change.
But putting his own lawsuit in moral terms did not help Flood himself, who aroused the ire and opposition of the old guard of very conservative, largely white sports writers who were closely tied to teams and owners and were shockingly (compared with today) hostile to players who stepped out of line. And it did not help him in his lawsuit. But did the moral rhetoric ultimately affect the outcome of the legal battle? Did it influence the later resolutions in arbitration?

2) Snyder argues that Flood's case, even if ultimately unsuccessful, swung public opinion in the players' favor. Perhaps that gave the players greater leverage in labor negotiations or even influence the subsequent arbitration decisions. This becomes another instance of public opinion affecting legal decisionmaking. Of course, the change in public opinion still ahd to overcome the hostility of most sports writers, particularly columnists.

3) Snyder argues that the real effect of Flood's lawsuit was to accelerate free agency by accelerating the collective bargaining process between MLB and the Players' Association. MLB's argument during the Flood trial was that this was not an antitrust matter, but a matter for collective bargaining. The players and owners were negotiating what became the 1970 Basic Agreement during the trial in 1979; that agreement ultimately included a 10-and-5 rule (a player with ten years MLB experience and five with the same club could veto any trade--this would have allowed Flood to veto his trade from the Cardinals to the Phillies) and independent grievance arbitration, which ultimately produced decisions rejecting the reserve system. Snyder argues it was not a coincidence that MLB gave the players through collective bargaining the things that it insisted warranted rejecting Flood's antitrust argument. He quotes then Union head Marvin Miller as saying that the owners rejected an independent grievance process in December 1969, prior to Flood filing suit, then agreed to it six months later.
If Snyder is right, it tells us something about the need for legal movements to proceed on multiple fronts. Just as the civil rights agenda had to be pursued through both the courts and Congress, the players had to pursue free agency and higher salaries in the courts, at the collective-bargaining table, and even in Congress (where the threat of removing MLB's antitrust exemption lurked for years). Ultimately, the movement may achieve some success in each arena. Or at least the arguments made in one forum necessary influence conduct and results in another.

4) The fourth possibility is that Flood was a martyr to the cause. And successful social movements arguably always need martyrs, those people who sacrificed something but failed in their efforts to establish some change and never enjoyed the benefits or fruits of that sacrifice. Flood is like, say, John Brown or Harvey Milk. The players who successfully challenged the reserve system in arbitration got their pay days (or in McNally's case, retired following the arbitrator's decision). Flood attempted to come back in 1971, but retired after just 13 games, his skills having eroded from his year off; so, in effect, he sacrificed his career to change the system. The next two decades of his life, the movie shows, were spent in a spiral of business, financial, legal, and alcohol problems, as well as a failed stint as an announcer. He never got his payday. Morover, he was something of a late-discovered martyr. His sacrifice was not widely acknowledged until the 1994 players' strike. At that point he became the public face of challenges to MLB's power, only to contract cancer and die at age 59 in 1997. Legislation to eliminate baseball's antitrust exemption was introduced shortly after his death and named in his memory.

Thursday, July 21, 2011

Testing the Efficiency of Sports Gambling Markets

George Diemer and I recently completed a chapter in a forthcoming book edited by Leighton Vaughn Williams and Donald Siegel entitled The Oxford Handbook on the Economics of Gambling. The focus of our chapter was on the economics (and legal aspects) of online sports betting. As part of our research, we delved into the efficiency of online/offshore sports books vis-à-vis terrestrial sports books in Las Vegas and London. It was a fascinating inquiry, as we came across a number of studies that analyzed specific aspects of the sports betting industry. One such study was recently published in the Journal of Prediction Markets (published version here and SSRN version here). Author Jeremy Arkes investigated whether gamblers correctly price momentum in the NBA gambling market. The abstract is below:
There is little research on whether new information is correctly synthesized in prediction markets. Previous studies have found evidence consistent with, but have not proved, gambler misperceptions on the existence of momentum effects in the NBA. I use novel momentum measures that, unlike prior studies, incorporate the strengths of the opponent and the wins (or losses). With these measures, I test whether gamblers correctly synthesize information on momentum in the NBA. Contrary to previous studies, I find strong evidence for the existence of a momentum effect. Furthermore, gamblers incorporate momentum into their beliefs on the game outcomes. Gamblers, however, significantly overstate the importance of momentum. But, there is little evidence that the extent of this gambler misperception is large enough to generate market inefficiencies, or profit opportunity. Still, the gambler mis-pricing of the information has implications for how well new information is synthesized in other types of prediction markets.

Tuesday, July 19, 2011

Rashard Mendenhall's Morals Clause Lawsuit against Champion

Steelers running back Rashard Mendenhall, who was recently dropped by Champion as a product endorser after he criticized the public's reaction to Osama bin Laden's death and questioned what happened on 9/11, is now suing Champion for breach of contract.   Mendenhall alleges that the morals clause in his endorsement deal with Champion did not empower Champion to sever ties.  Porcher Taylor, Jeffrey Standen, and I talk to the AP about how unlikely Mendenhall's claim is to prevail. The morals clause at issue is very inclusive and probably gave Champion authority to terminate the deal.

Statistics and Sports Law

As was the case at last year's Southern Economic Association conference, the American Statistical Association's annual meeting (July 30 to August 4 in Miami) includes a number of presentations that overlap with issues widely discussed here on the Sports Law Blog. A panel entitled "Controversies in Sports" features papers devoted to both the BCS and the effects of steroids. A basketball-focused session includes an analysis of NCAA Division I men's basketball tournament selection process. Finally, there is an entire panel devoted to the role of human nature in judging/officiating athletic contests. Jay Emerson organized the session and is presenting his paper pertaining to figure skating. Phil Birnbaum is offering new evidence regarding possible racial bias by MLB umpires. Kurt Rotthoff's paper involves various biases in gymnastics. My presentation focuses on NBA referees. In the course of attending a variety of conferences the past several years, my sense is that the interaction between sports law and statistics is growing. I will be curious if the (apparent) trend continues.

Monday, July 18, 2011

U.S.A. lost? Better change the rules

One unexpected media storyline to emerge from Sunday's Women's World Cup Final is the supposed unfairness of penalty kicks as a way to decide a winner. This is silly. Maybe penalty kicks are a fair process, maybe they aren't (I don't know or care enough about the deep structure of soccer to say). But it is conspicuous that no one said anything of the sort when the U.S. won its quarterfinal match against Brazil last Sunday on penalty kicks. And certainly no one said anything when the U.S. won the 1999 World Cup final against China the same way.

Sunday, July 17, 2011

Like father, like daughter?

I have been a sports fan since I was about six years old and as a youngster did not handle my favorite teams losing--tears, yelling, mild swearing, thrashing, shouts to the heavens, and cries of "why didn't ___ happen" were a common occurrence. When my wife and I had a daughter, I hoped that she would become a sports fan, and have been pleased that she has at a young age. She even is showing some decent five-year-old soccer skills (ironic, since that was long the sport that I just did not get).

Well, the family connection became very clear with the US loss to Japan in the Women's World Cup Final today, which precipitated a crying meltdown for the ages. Being more dramatic than I was, hers even got somewhat existential--wondering why she had been born, why she bothered watching, and threatening never to play or watch soccer again (the last part passed quickly and she is looking forward to attending FIU women's games in the fall).

It obviously hurt to see her that upset. But a small part of me felt a twinge of happiness and pride that she has developed such a passion for this.

Thursday, July 14, 2011

New SI Column on Roger Clemens Mistrial

Be sure to read Howard's excellent post and then I hope you have a chance to check out my column for Sports Illustrated.

Mistrial in Clements case

Judge Reggie Walton declared a mistrial in the perjury prosecution of Roger Clemens, after prosecutors presented evidence that the judge previously had excluded in limine. The evidence at issue was a mention of a statement by Andy Pettitte's wife that Andy had told her that Clemens had admitted to him that he had used HGH, apparently in response to Clemens' defense that Pettitte had either misheard or "misremembered" what Clemens told him. The exclusion of the evidence seems like the correct call, particularly if Clemens' defense is that Pettitte misheard; Pettitte repeating what he misheard does not rebut the possibility that he, in fact, misheard. On the other hand, if Clemens' defense was that Pettitte's memory failed, this evidence may have become relevant later in the trial. So there is a nice question whether a mistrial was appropriate at this point over a fairly small piece of credibility evidence that might even have become relevant later

The government now must decide whether to retry the case and Judge Walton has scheduled hearings for later this month and next month to decide whether it can or whether jeopardy has attached (sometimes the case when the government's misconduct causes the mistrial). And perhaps the government will consider whether this all is worth the candle in any event.

Line of the hearing from Judge Walton (who apparently raised his voice throughout): "I think that a first-year law student would know that you can't bolster the credibility of one witness with clearly inadmissible evidence." First-year law students, take note.

Update: Nina Totenberg talked about the ruling on NPR's All Things Considered. From her description, it sounds as if three things triggered the mistrial: 1) Pettitte is a key witness, so this was vouching for a key witness; 2) this is the second time the government had ignored a prior ruling; and 3) when the parties conferred with the judge right after the inadmissible material came out (on the video of the congressional hearing), the government left the video frozen on the improper point showing the hearing and a transcript of what was being said. In other words, during a several-minute sidebar conference, the jurors were staring at the objectionable evidence. Number 3 strikes me as the big one--it's not just that the jury heard inadmissible evidence, but that they were staring at it for several minutes.

Further Update: Last night, I was interviewed about the case on Seattle's KJR Sports Radio.

Here We Go, Again: Home Runs and Taxes.

Christian Lopez, the fan who recently caught Derek Jeter’s record setting home run baseball, which constituted Jeter’s 3,000th hit, joins a small group of fans who have caught historic home run baseballs only to find there may be tax consequences. First, there was the groundskeeper who retrieved Mark McGwire’s 62nd home run baseball in 1998, only to give it to McGwire. Most recently, there was Matt Murphy, who caught Barry Bonds’ record setting 756th career home run in 2007.
In 1998, the Service issued conflicting statements regarding the tax treatment of a fan who caught a historic home run ball and returned it to the player. The Service ultimately issued a press release stating that the fan would not have taxable income or gift tax issues upon catching the ball or relinquishing the ball to the player, absent a situation where the fan sold the ball. In 2007, the Service was more cautious, declining to comment on the possible tax treatment of the fan who caught Bonds’ record setting home run ball. Based on the belief that merely obtaining the ball constituted gross income, Murphy sold the baseball to create liquidity with which to pay the resulting tax liability.
With that background, what are the tax consequences for Lopez? Lopez gave the ball to Jeter, voluntarily. He was given season tickets and other items by the New York Yankees. Many are positing that the only tax issue in this scenario revolves around Lopez’s receipt of the tickets and items from the Yankees. Given the Service’s track record in handling these situations, this may be the end result.
I suggest there are other results possible. Among these other results, it could be asserted that the ball constituted an accession to wealth (i.e., gross income) to Lopez, to the extent of its fair market value. Lopez’s subsequent transfer of the ball to Jeter, coupled with his receipt of items from the Yankees, could be construed as a sale to the Yankees, perhaps at a loss. As the ball did not belong to Jeter prior to the hit, Jeter’s receipt of the ball from Lopez could be seen as compensation from the Yankees, which allowed the ball to pass to Jeter.
Determining the proper resolution of these situations is vexing. Attempting to develop ways to avoid the uncertainty, a number of articles have been written proposing non-recognition be afforded to fans who catch such baseballs, including an article I co-authored with Adam J. Poe entitled Home Run Baseballs and Taxation, an Open Stance: How a H.R. can be I.R.D., 3 Est. Plan. & Community Prop. L.J. 79 (2010) (available on Westlaw).

The Curious Case of Curt Flood

Sports law history aficionados will want to be sure to watch the new documentary, The Curious Case of Curt Flood, airing this month on HBO. The documentary, which premiered last night, chronicles Curt Flood's historic legal challenge to baseball's reserve clause and antitrust exemption, culminating in the United States Supreme Court's 1972 decision of Flood v. Kuhn. The New York Times' preview of the documentary is available here.

Meanwhile, those interested in the history of the Flood suit should also check out Professor Brad Snyder's excellent history of the case, A Well-Paid Slave.

Tuesday, July 12, 2011

Latest Update on NBA Lockout on NBA TV

I discuss the latest developments in the NBA Lockout on NBA TV.  I appreciate the shout-out from Dennis Scott!

Sunday, July 10, 2011

Catching up with Links (Belated)

First off, our apologies for the lack of posts.  With the 4th of July, vacations, moves, summer weather (and not being on-line as much) and other life events, things have been really slow around here of late.  We'll resume regular posting soon, with original content as opposed to merely linking to stuff, as I'm about to do.

Here are some links from the last week or so:

* Paul Doyle's advice for Roger Clemens?  Don't talk.

* Geoffrey Rapp talks to CBS Sportsline about the NFL lockout.

* Rick Karcher talks to the Columbus Dispatch about the Ohio State mess.

* Ohio State law professor Douglas Berman, on Sentencing Law and Policy, comments on possible sentencing of Clemens and my prediction of 15 to 21 months if convicted on all counts.

* As always, two of the best sports law blogs around are Connecticut Sports Law Blog and Sports Agent Blog.  Be sure to check them out.  Tons of good stuff.

* My SI column on the Eighth Circuit's decision in favor of the NFL.  Not good news for NFL players, though it seems like they will reach a deal in the next few weeks.

* My SI column on Dr. Anthony Galea's guilty plea and what it could mean for his former clients/patients, who include Tiger Woods and Alex Rodriguez.  Be sure to also see my SI colleague Will Carroll's column on implications for A-Rod.

* My SI column explaining the NFL retired players' lawsuit against both the NFL and NFLPA.  Shouldn't retired players have a seat at the bargaining table?

* My SI preview of the Roger Clemens trial.  David Epstein and I also co-author several articles for SI on the trial -- "Strategies change in Clemens trial" and "Arguments over audio tapes"

* I've joined NBA TV as an On-Air Legal Analyst.  I was in Atlanta last week to talk with Kenny Smith and Antonio Davis about lockout in studio.  Here is a link to one of the clips.

* For SI I compare the NBA and NFL lockouts.  Here's the video: