Thursday, September 29, 2011

Rain Delays and "the Integrity of the Pennant Race"

An interesting side-note from Wednesday night, which is becoming widely accepted as one of the best nights of baseball ever.

The Red Sox game against the Orioles in Baltimore was delayed by rain for about 90 minutes in the seventh inning with Boston leading 3-2. This is not an inordinately long delay, but it's much more than the minimum (30 minutes) required for the umpires to decide to call the game. If they had, the Red Sox would have won, and presumably would be in a one-game playoff with Tampa Bay for the AL wild-card spot. But the generally accepted practice is that a game that important should not be called because of "the integrity of the pennant race." (Most agree that if the game had been between two non-contenders, it would have been called.)

I am not saying the game should have been called (or that it shouldn't). But I don't agree that the integrity of the pennant race is best protected by changing the rules in the interest of the integrity of the pennant race. Much like basketball referees who swallow their whistle at the end of the game in the mistaken belief that they are allowing the players to determine the result, deciding not to enforce a rule is as much an example of referees determining the outcome as overzealously enforcing one. In either case, one team is given an advantage it wouldn't have at another point in the game or season.

In this example, it worked out well for the Orioles, and through them the Rays. And it worked out well for baseball, which had a much more interesting outcome than it would have with a rain-shortened game. (Although had Boston won there would have been a one-game playoff on Thursday.) I'm just not sure that having different rules for "important" games is something baseball should be promoting.

Tuesday, September 27, 2011

New Sports Illustrated Column: Court ruling keeps Mets owners in limbo regarding Madoff lawsuit

I have a new column for SI on a key decision today by U.S. District Judge Jed Rakoff to permit the two most serious claims against Mets owners Fred Wilpon and Saul Katz, who are facing a $1 billion lawsuit over whether they fraudulently earned money through investments with imprisoned Ponzi scheme artist Bernie Madoff. Rakoff dismissed nine of the lawsuit's 11 counts, but refused to dismiss the most damaging counts: that Wilpon and Katz earned $295 million in fictitious profits through investing in a scheme that they knew to be too good to be true -- that is, they knew to be fraudulent -- and that they should return their $700 million principal, as well.

Could Major League Baseball take over the team?  Here are my thoughts:
Wilpon and Katz also have to worry about Major League Baseball's interest in the matter. Commissioner Bud Selig has already taken over the Los Angeles Dodgers this season from Frank and Jamie McCourt because of the team's financial woes. The commissioner is armed with several legal weapons -- the best interests of the game clause, which provides Selig with wide discretion to regulate any aspect of the game, including ownership interests; the waiver of recourse clause found in ownership purchase agreements, which nominally prevents owners from suing Major League Baseball; and the historical exemption enjoyed by Major League Baseball under federal antitrust law -- that make it possible for him to wrestle control of privately-owned teams from their owners. Although Selig has a much better relationship with Wilpon than with the McCourts, he cannot ignore the potential fallout of the Mets mired in a $1 billion lawsuit.
To read the rest of the column, click here.

Zelinsky on The Supreme Court (of Baseball)

Aaron Zelinsky, who has blogged here and written on aspects of the judge-as-umpire metaphor, has a new piece, The Supreme Court (of Baseball), at Yale Law Journal Online, that continues his argument that the Supreme Court and the Justices are analogous to the Commissioner of Baseball.

Worth a read.

Professional Sports Counseling Panels: Financial Incentive for Schools

This past winter I co-wrote a law review article (with Glenn Wong and Chris Deubert) titled "Going Pro in Something Other than Sports: Improving Guidance for Student-Athletes in a Complicated Legal and Regulatory Framework." This article appeared in the Cardozo Arts & Entertainment Law Journal and, among other things, we argued that schools should be serving student-athletes in this capacity because it is the right thing to do.

After some thought, I've added a new argument for schools to consider--it will save millions of dollars. Maybe this argument will be heard. You can check out this article on the Huffington Post here.

Monday, September 26, 2011

University of Maryland School of Law Symposium on Intersection of Sports and Business in Today’s Legal Arena

I look forward to participating in next Monday's sports law symposium at the University of Maryland School of Law -- this event is open to the public; hope to see Sports Law Blog readers there.

University of Maryland Francis King Carey School of Law

Upcoming Symposium

"The Intersection of Sports and Business in Today’s Legal Arena."

Journal of Business & Technology Law Fall Symposium, Co-Hosted by the Entertainment, Arts and Sports Law Association

Monday, October 3, 2011, 9:30 a.m. – 5:30 p.m.

Ceremonial Moot Court Room, University of Maryland Francis King Carey School of Law, 500 West Baltimore Street, Baltimore, MD 21201

Distinguished speakers will take part in panel discussions on stadium development, the legality the Bowl Championship Series, and athlete images/media rights. A highlight of the event will include a speech by Ed Durso, Executive Vice President, Administration for ESPN, who is currently scheduled to give a luncheon keynote address. Additionally, Jay Bilas, ESPN commentator and analyst, will also speak and moderate a panel discussion. Other recognized speakers include Irwin Kishner, a Partner at Herrick, Feinstein and lead counsel for the new Yankee Stadium transaction, Alan Fishel, a Partner at Arent Fox and supporter of the Bowl Championship Series, and N. Jeremi Duru, Associate Professor of Law at Temple University Beasley School of Law and author of the book, Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL.

RVSP HERE or reply by email to

Schedule of Events

9:30 – 9:35 Welcome from JBTL/EASL members
9:35 – 10:20 A discussion with N. Jeremi Duru, visiting Associate Professor of Law, University of Maryland School of Law, about equal opportunity in sports.
10:20 – 11:00 Opening Remarks from moderator Jay Bilas, ESPN commentator and analyst
11:00 – 12:30 p.m. Complex Sports Transactions: Stadium Development Panel
Stan Kasten, Former President of the Washington Nationals, Atlanta Braves and Atlanta Hawks
Irwin Kishner, Partner, Herrick, Feinstein
Irwin Raij, Partner, Foley & Lardner
Paul Tiburzi, Partner, DLA Piper
12:30 – 1:00 Lunch and message from Dean Phoebe Haddon
1:00 – 2:00 Keynote speech by Edwin Durso, Executive Vice President, Administration for ESPN
2:15 – 2:30 Introduction to the afternoon panels from moderator Dionne Koller, Associate Professor of Law, University of Baltimore School of Law
2:30 – 4:00 Bowl Championship Series Panel
Alan Fishel, Partner, Arent Fox
Philip Hochberg, Law Offices of Philip R. Hochberg
Josephine (Jo) Potuto, Professor, University of Nebraska College of Law
Robert Wierenga, Principal, Miller Canfield
4:15 – 5:15 Athlete Images/Media Rights Panel
Ronald Katz, Partner, Manatt, Phelps & Phillips
Michael McCann, Director of the Sports Law Institute and Professor of Law, Vermont Law School
Stuart Paynter, Partner, Paynter Law Firm.  Lead plaintiff's counsel in Sam Keller v. Entertainment Arts
5:15 – 5:30  Closing Remarks from Dionne Koller

Sports Lawyer Matthew Lane to speak at Vermont Law School on Representing Olympic Athletes

This Thursday, between 12:45 and 2:00 p.m. in Oakes 208 on the Vermont Law School campus, Matthew Lane will speak on representing Olympic athletes and runners. Lane is a sports attorney at Preti Flaherty in Portland, Maine. His clients include the American Milers' Association, NJNY Track Club, and Andrew Wheating, a 2008 Olympian. Lane is a summa cum laude graduate of University of Maine School of Law and the College of William and Mary. He was previously a professional runner, sponsored by Nike, and was a member of two U.S. national teams.

This event is sponsored by the Vermont Law School Sports Law Institute and is open to the public.

New Book Chapter on Mike Williams

Congrats to Sports Law Blog contributor Warren Zola, who contributed a chapter to a recently released book "Sports for Dorks: College Football" which was edited by Mike Leach. The book is intended to "address the information needs of college football fans who seek a deeper understanding about the game and its intricacies."  Warren wrote a chapter entitled "Understanding the College-to-NFL Transition: The (Cautionary) Tale of Mike Williams.”

Saturday, September 24, 2011

The future of GLBT athletes

Ari Waldman has a short post at PrawfsBlawg discussing the new NFL CBA which prohibits discrimination because of sexual orientation. Waldman describes this as an important next step in the slow acceptance of homsexuality in sports (especially male sports), along with numerous athletes speaking out on marriage equality and anti-gay bullying.

Who Is It That Should Protect You at All Times?

Is Boxing’s Oldest Adage Under Fire Following Floyd Mayweather’s Controversial and Crushing KO of Victor Ortiz?
This past Saturday night, following a seemingly intentional head-butt to his mouth and conciliatory kiss and hug by “Vicious” Victor Ortiz, Floyd (Money) Mayweather, Jr. scored a spectacular fourth round knockout which will have a permanent home in boxing infamy.  

While Mayweather was ripped by fans and boxing cognoscenti alike for his facially unsportsmanlike conduct, there is no real consensus as to who of the three individuals in the ring should truly bear the brunt of the post-fight firestorm.  

Did Ortiz get what he deserved for setting off Mayweather, who has a history of forcefully laying waste to boxers such as Diego (Chico) Corrales, Phillip (The Time Bomb) N’Dou, Ricky (Hitman) Hatton, and Arturo (Thunder) Gatti when he is facing an actively dangerous opponent? Should Mayweather be deemed the epitome of a bad sportsman for landing the two worst-intentioned punches in his career when Ortiz tried to apologize again after touching gloves? Should referee Joe Cortez have been looking away during a volatile moment in the bout? 

More important perhaps than any of these questions, however, is the question of whether boxing’s oldest adage, protect yourself at all times, survives a bout such as Mayweather-Ortiz and is truly the exclusive responsibility of the boxer himself anymore and not a referee. A quick analysis follows...

For the full article, please go to this link.

Thursday, September 22, 2011

Family of hockey scout settles last remaining 9/11 lawsuit

The family of Mark Bavis, an LA Kings scout who died aboard United Flight 175 when it crashed into the World Trade Center during the Sept. 11 attacks, has settled its lawsuit against the airline and its security company. See the AP story here

Bavis' family, including his identical twin brother Mike, a BU assistant coach, had insisted that they would not settle (see my earlier story here) because it was more important to them to investigate and expose the failures of airline security. They had hoped to house their findings at the 9/11 memorial at ground zero. But the family, and its lawyers, say U.S. District Judge Alvin Hellerstein gutted its case, limiting the amount of time for the trial to three weeks. He also kept much of the information under seal, for national security reasons.

The family explained its change of heart this way:

"This change is the result of a recent ruling by the Honorable Judge Alvin Hellerstein. With the stroke of his pen, Judge Hellerstein very cleverly changed this lawsuit. The lawsuit was about wrongful death, gross negligence and a complete lack of appreciation for the value of human life. He instead made it a case about a federal regulation. He ignored 100 years of aviation law and relied on an environmental case to apply federal preemption. He essentially gutted the case so that the truth about what led to the events of Sept. 11, 2001, would never be told at trial."

The amount of the settlement has not been disclosed. I would be interested in seeing whether it came in higher than the average $2 million payment from the Victims Compensation Fund, and higher than the $5.5 million average from the other cases that went to court before settling.

Wednesday, September 21, 2011

Boston Panel Tonight: Understanding the NFL & NBA Labor Disputes and Their Economic Impact

The Boston Chapter of Women In Sports and Events (WISE) is pleased to present a networking and panel discussion covering the NFL and NBA lockouts.

Don't miss out on your chance to hear our panel of industry experts discuss the impact of the NFL and NBA lockouts on teams, owners, players, fans, and the media.

We are also pleased to announce the addition of Jimmy Golen, Sports Writer for the Associated Press, as panel moderator.

Our Panelists:

  • Robyn Glaser - Senior Advisor to The Kraft Group, Club Counsel to the
    New England Patriots
  • Keith Glass - Sports Agent, NBA
  • Michael McCann -Sports Illustrated & NBA TV Legal Analyst, Law Professor at Vermont Law School
  • Gary Washburn -National NBA Writer, Boston Globe
In addition to what is sure to be a lively discussion, a fantastic lineup of food and beverage will be provided by Davio's and Wachusett Brewery, followed by a networking reception sponsored by Croft Pink.

Register Now for this Event!  


Wednesday September 21, 2011 from 6:00 PM to 8:30 PM EDT
6:00-6:30 Registration/Networking 
6:30-7:30 Panel Discussion
7:30-8:30 Q&A/Networking Cocktail Hour


Nixon Peabody LLP
100 Summer Street
25th Floor
Boston, MA 02110

WISE Boston members: This event if FREE for WISE Boston members.  Simply register via the link above and select the "WISE Boston Member: No Charge" option* 

Non-Members: The registration fee for this event is $15 by Credit Card/PayPal.  (If you'd prefer to pay by cash or check on the evening of the event, the fee is $20.  You still must RSVP via the link above but select the "Non-Members Paying Cash or Check at the Event" option)
*Not sure if you are a current Member?  Please email to inquire about your status or sign-up to become a WISE Boston member today.
Join WISE Boston by October 7th and we will apply your event registration fee towards your annual membership dues.

Sunday, September 18, 2011

New Group seeks College Football Playoffs

Interested in BCS reform? Want a playoff system for college football?  A new community of fans is emerging: Fix The Post Season. They also can be found on Twitter and Facebook.  Definitely worth checking out if you're hoping to see playoffs in college football.

Thursday, September 15, 2011

NBA TV: What to expect in NBA Lockout

A few hours ago I was on NBA TV to join Steve Smith, David Aldridge, Vince Cellini and Steve Aschburner for a roundtable discussion on what to expect going forward in the NBA lockout.  One thing not to expect: the 2011-12 season starting on time.

Tuesday, September 13, 2011

Sports Law Discussion at Suffolk University Law School today (Wednesday) at 4 p.m.

I'll be giving a talk today at 4 p.m. at Suffolk University Law School in Boston.  It will be held in the moot court room on the 4th floor.  Topics will include the NBA lockout, collective bargaining issues for Major League Baseball and the Major League Baseball Players' Association, and how to break into the sports law industry.  If you're in Boston and have some free time around then, hope to see you there!

Monday, September 12, 2011

Ryan Hart's federal lawsuit against Electronic Arts dismissed

Electronic Arts, publisher of the NCAA Football and NCAA Basketball video games, has been sued by various former college players who argue that these video games have featured the players' likenesses without the players' permission.  The "likenesses" have varied by game, but normally include reference to the player's number, position, skills/talents, hometown, and a digital representation of his height, weight and race/ethnicity, but not his name.  Even without the players' name, it is usually clear to the typical fan of a team as to whom the digital players are referring.

U.S. District Judge Freda Wolfson, who in 2002 was nominated by President George W. Bush to the U.S. District for the District of New Jersey, has just dismissed a lawsuit brought by former Rutgers player Ryan Hart against EA.  The judge reasoned that the First Amendment and its protection of free speech (and significant transformative elements) empowered EA to create digital representations of the players.

The dismissal by no means signals that similar lawsuits, such as Ed O'Bannon's class action lawsuit against the NCAA, will also fail, especially since those lawsuits have been brought in other jurisdictions and since they raise other types of claims, including those based in antitrust law.  Still, a defense based on the First Amendment to use college players' identities does appear bolstered by Wolfson's dismissal.

Here's IGN on the news:
Hart, a former Rutgers player, accused EA of using his name and likeness in the NCAA Football series without his knowledge or consent, suing the company in 2009. But U.S. District Judge Freda Wolfson has ruled that the likeness is permissible under the first amendment, and has dismissed the case.
EA's lawyer Elizabeth McNamara said the decision "validates Electronic Arts' rights to create and publish its expressive works." Hart's lawyers have yet to comment publicly.
This case is one of many currently pending against the publisher in relation to likeness issues in NCAA titles, largely stemming from players' wishes to be compensated for their inclusion in the games. NCAA Football 12 released in July for PS3 and Xbox 360.

Sunday, September 11, 2011

Personalizing the national anthem

Patriotic and political rituals that pervade our sporting events. And the performing of The Star-Spangled Banner, a part of just about every game, is heightened at major games and events (championships, Super Bowls, all-star games, event finals). And we expected that to even more so at today's Women's Final of the U.S. Open, played in New York on the tenth anniversary of 9/11.

What I find interesting is the way artists can and do try to personalize the anthem, changing the entire tune and musical style of the song (particularly in non-traditional styles), and the way our reactions to that have changed. What is widely regarded as the first attempt at restyling was Jose Felciano's acoustic slow Latin jazz rendition before Game 5 of the 1968 World Series in Detroit, which outraged fans (NBC stations were inundated with angry phone calls) and lead some radio stations to stop playing Feliciano's music for a time. On the other hand, the response was much more favorable to Marvin Gaye's rendition at the 1983 NBA All-Star Game. And in 2010, Feliciano was invited back to Detroit to perform his version of the anthem during a memorial ceremony for late Tigers announcer Ernie Harwell. Are there other recent examples of performers making stylistic changes to the song?

All of which is by way of saying that our reaction to Queen Latifah's gospel/soul rendition before today's match is a product of its time:, It probablt would have been a subject of controversy 40 years ago; it now becomes an instant classic. Enjoy.

Saturday, September 10, 2011

Tennis Bracketology

Only sort-of sports-law related, kind of: The top 4 seeds made the Men's Semifinals at the U.S. Open. In today's semis, # 1 (Djokovic) played # 3 (Federer) and # 2 (Nadal) played # 4 (Murrary). But brackets are always set up for semis of 1 v. 4 and 2 v. 3.

Anyone out there know why the Open does it differently?

Friday, September 9, 2011

Phillies protest denied

I missed this two days ago: To no one's surprise, MLB denied, without explanation, the Phillies' protest over the use of replay in last Sunday's game with the Marlins.

University of Wisconsin Law School Symposium related to Sports Law and Gender

If you are writing about sports law and gender issues, be sure to consider submitting your piece:

The Wisconsin Journal of
Law, Gender & Society

Announces our 2012 Symposium…

When Gender Norms Become Law:
Recognizing and Correcting for Gender Bias

February 10, 2012
University of Wisconsin Law School
Madison, Wisconsin

We are seeking original scholarship, from both scholars and practitioners, addressing ways in which gender norms are reflected in legislation, judicial precedent, and administrative findings. Ideally, proposals would highlight:
·       An analysis of the inherent and functional gender biases in these policies and practices and
·       Recommendations as to how the same policies could be pursued without the resulting gender disparity.
Topics could include: findings of fact that shape evolving areas of law, the role of social sciences in evidence, and differing approaches to gender considerations across legal systems.  Interested parties should send an abstract to by October 15, 2011.  Those selected for the Symposium will be notified by November 2011.  The Journal’s Symposium issue will be published in Fall 2012.

Questions may be addressed to Symposium Editor Meredith Davis at

Thursday, September 8, 2011

Olympic Sports Law Symposium hosted by Preti Flaherty and University of Maine School of Law

Sports Law Symposium: Law and the Olympic Movement

Please join The University of Maine School of Law and Preti Flaherty on September 13, 2011 from 3:00 to 5:00 pm for a Sports Law Symposium featuring:
Law and the Olympic Movement

Join us in exploring the law as it affects the rights of athletes.  Hear from sports professionals and attorneys who will discuss the Ted Stevens Olympic and Amateur Sports Act, the World Anti-Doping Code, and the athlete's right of publicity. 

Please join us for a reception immediately following the panel discussion.Cost to attend is $35.00. This event has also been approved for 2 hours of general CLE credit for Maine.


  Peter Carlisle:  Peter Carlisle is the driving force behind the success of Octagon's Olympic & Action Sports division. An expert at the forefront of the booming action sports industry for more than a decade, he has emerged as a leader in the representation and marketing of Olympic and action sports athletes. He oversees a global business that provides career management for Olympics and action sports clients through contract negotiations, endorsements, licensing, merchandising opportunities and more. Before joining Octagon, he founded Carlisle Sports Management and served as an attorney for Preti Flaherty Believeau & Pachios. He has also served as an adjunct professor at Maine Law.

  Paul Greene:  Paul J. Greene focuses his sports law practice on protecting athletes' rights. He handles anti-doping and eligibility arbitrations, rights of publicity matters, cybersquatting cases and immigration issues for athletes. He has successfully represented, among others, the gold-medal winning U.S. Men's Olympic Bobsled Team and the Michael Phelps Foundation. Paul credits the University of Maine School of Law, where he took a course in sports law, for giving him his start as a sports lawyer. Paul is listed in Chambers USA 2011 as one of America's Leading Lawyers for Sports Law in the Nationwide category. Chambers USA writes, "He is making a considerable name for himself in sports law."

  Sonja Keating: Sonja Keating is the Senior Vice-President & General Counsel of the United States Equestrian Federation, the national governing body for equestrian sport.  Before this appointment, Keating served as Associate General Counsel for the USEF. Prior to joining the Federation staff, Keating was associated with the Lexington office of the Cincinnati-based law firm of Dinsmore & Shohl, LLP, where she practiced in the litigation department. Sonja lives and works in Lexington, Kentucky and attended the University of Kentucky College of Law.

  Matt Lane:  Matt Lane is an attorney with Preti Flaherty where he practices Business, Litigation and Sports Law. Prior to launching his law career, Matt was a professional runner and competed against the world's best. Maine Law gave Matt the training and vision to explore new challenges in track and field. Today, his sports practice is focused on representing individuals and entities performing at the highest levels. His clients include the American Milers' Association, NJNY Track Club, and Andrew Wheating, a 2008 Olympian. Matt serves as a legal correspondent for, the premier internet site for track and field news and results. 

  Nancy Hogshead-Makar:  Professor Nancy Hogshead-Makar is an Olympic champion and national leader in the fight for women's rights in sports. She is one of the nation's foremost exponents of Title IX of the Education Amendments of 1972, particularly within the context of intercollegiate sports. She is a former President of Women's Sports Foundation (1992-94) and currently serves as its Senior Director of Advocacy. She has testified in Congress numerous times on the topic of gender equity in athletics, written numerous scholarly and lay articles, and has been a frequent guest on national news programs on the topic. Nancy capped eight years as a world class swimmer at the 1984 Olympics, where she won more medals than any other swimmer—three Gold medals and one Silver.

Wednesday, September 7, 2011

Will Baylor University and Ken Starr stop Texas A&M from joining the SEC?

Baylor University and its president, Ken Starr (the same Ken Starr who was Independent Counsel investigating President Clinton) may file a lawsuit to stop Texas A&M from joining the SEC. I talk to Maggie Gray of Sports Illustrated Inside Report about it.

Catching up with Links

* The Dodgers ownership mess gets messier and messier.  If you're a law student looking for a note topic, I'm pretty sure you could have a field day writing about the Dodgers situation, the powers of the MLB commissioner, and the relationship between a league and bankruptcy and divorce courts.

* My column for SI on the Barry Bonds case ending not with a bang, but a whimper (thanks to T.S. Eliot for that line)

* Last week I spoke with Sports Illustrated Inside Report about Texas A&M trying to leave the Big 12 and join the SEC:

More Statistics and Sports Law

The American Statistical Association's Section on Statistics in Sports is sponsoring a conference September 24, 2011 at Harvard University. The schedule includes a mix of oral presentations and poster presentations. A panel featuring NBA front office executives is also included. Much like the ASA's general meeting last month, there are a number of papers being presented that address quasi-legal issues in the sports industry. Examples include cheating in soccer, market efficiency in tennis, seed distribution in the NCAA basketball tournament, the efficacy of the NBA's minimum age rule, and referee bias in hockey. Paper abstracts can be found here. Proceedings from the conference will be published in the Journal of Quantitative Analysis of Sports. Conference registration and contact details can be found here.

Monday, September 5, 2011

UConn: NCAA Rules (Still) Don't Apply To Us

Anyone paying attention to what the University of Connecticut just did down in Storrs with their basketball program? Coach Jim Calhoun seized the opportunity to bring highly touted Andre Drummond, the top ranked recruit by ESPN, to campus to play for his basketball program in their efforts to defend last year's national championship.

Current player, Michael Bradley, a 6'10" backup center, has decided to give up his scholarship so Drummond can join his team. Wait...what? Many across the country are applauding Bradley for exhibiting a selfless dedication to his school so they can bring in another star for Calhoun's program. Don't cry for Bradley, apparently he is going to apply for financial aid and, one can only assume, be taken care of by UConn.

This isn't unique to UConn as other schools have pulled similar stunts as well....both Calipari at Kentucky and Pitino at Louisville took similar courses of action. I'm uncomfortable with this...anyone else? Check out my story here at the Huffington Post.

The Re Play’s The Thing

A remarkable event occurred during the 6th inning of the Phillies Marlins game Saturday (which Howard Wasserman also blogged about yesterday). With Ryan Howard on first, Hunter Pence hit a long drive to the fence in right field. As Brian Peterson attempted to make the catch, two South Florida University students who happened to be Phillies fans (who else would be at a Marlins game?) reached over the fence and appeared to touch the glove of the outfielder. As the ball fell to the ground, Pence ended up on second and Howard on third. Out came Manager Jack McKeon to argue fan interference which, if called on the field, could negate the double and return Howard to first. Umpire Joe West and his crew listened then retreated to view the replay. When they returned, West ruled Pence out. Phillies skipper Charlie Manuel then came out to argue and was promptly tossed.

The problem was that the baseball’s rule clearly limits the use of replay. The rule states: "Instant replay will apply only to home run calls -- whether they are fair or foul, whether they have left the playing field, or whether they have been subject to fan interference. The decision to use instant replay will be made by the umpire crew chief, who also will make the determination as to whether or not a call should be reversed."

To make matters worse, after the game, Umpire West later gave a false statement as to what had given him “jurisdiction” to consult the replay, claiming Manuel had contested whether it should be ruled a Home Run. The replay shows no such thing; Manuel never approached West until after the reversal was made. The only reason West consulted the replay was to see if it was a double or an out.

For his part, octogenarian McKeon was candid in his assessment of the events, saying, “I don’t know. I’m not the judge. But I would think, isn’t what we want from the umpires: To get it right? Did they get it right? Yes. Did they make a mistake in how they went about getting it right? Yes.”

It’s a classic law school ethics question: is the truth more important than the process? Can a lawyer, or judge or jury go around the rules to see justice is done?

In the end, the game will matter not a bit. The Phillies should easily go on to win their division with the best record in baseball, securing home field advantage along the way.

And as to those Phillies fans? The blogosphere has already rendered its verdict. They will have a tough time buying a cheesesteak when they get home.

Sunday, September 4, 2011

Law at the old ballgame

Jen, Lily, and I went to Sunday's game between the Phillies and Marlins, which turned into a game that shows why lawyers love baseball so much. In the top of the sixth and a man on first, the Phillies' Hunter Spence hit a drive to deep right that Marlins rightfielder Bryan Petersen could not pull in against the wall; Spence ended up on second with a double. The Marlins claimed fan interference (a Phillies fan reached his red Phillies hat over the fence and it looks like the hat hit Petersen's glove as he was leaping to make the catch). The umps went to replay, deciding that the fan had interfered and calling Pence out. Phillies manager Charlie Manuel argued the call and was ejected (watching the video, it almost looks as if he asked the crew chief to run him). The Phillies played the game under protest (the link has the does not allow blogs to embed video), which the Marlins won on a bases-loaded walk in the fourteenth inning (we didn't last that long).

MLB allows replay in three situations: Fair/foul on a home run; home run or in play; and fan interference. The Phillies objection appears to be that fan interference can be reviewed only on a home-run play; in other words, replay can be used to determine whether a ball should have been a home run or should have been an out for fan interference--basically, the Jeffrey Maier play). But it was not clear whether the Phillies argues that this was a home run or seek review; it appeared that only the Marlins sought review for interference; it was either a double (the call on the field) or it was fan interference. Thus, the argument goes, it was not reviewable.

Three thoughts.

First, the adoption of limited replay demands vigorous policing of the boundaries of reviewability. The decision as to what is reviewable grows from a balance among the flow of the game and the need to keep reviewable plays to a minimum, administrative workability (related to flow, as well as to the means for handling overturned plays), and the desire for correctness and accuracy. MLB determined that home run calls should be the focus of replay--homers are inherently important plays on which we know with absolute certainty runs would score and because it is easy to administer, since a home run is such a final play (batter and all runners score, bases empty). But that means a play that is not claimed to be a home run should not be subject to the five-minute break in the action (ten if you count the subsequent argument) associated with review.

Second, I actually was surprised at the fan-interference ruling because it went against the visiting team. My assumption had been that fan interference could only go against the home team, that the rule is designed to prevent the home team's fans from helping their team. I was wrong on that; the rule is written to require that any batter be called out for any interference by any fan with any team. But that actually creates incentives for home fans to interfere on this precise play--rather than taking a chance that the home team's fielder will make a tough catch against the wall, the fan can interfere and assure an out. That can't be right. Of course, this being Miami, the stadium was probably 2/3 Phillies fans, so maybe the umps acted as if the Phillies were the home team. And the guy who interfered was wearing a Phillies hat and jersey, so perhaps the umps determined that the fan was, in fact, trying to aid the Phillies batter.

Third, my guess is that MLB will reject the protest. At least one game story states that both managers protested the call--Manuel wanted it called a home run and the Marlins manager wanted interference. Thus, both issues (home run/in play and home run/interference) were under review.  The umpires were looking to see both if the ball went over the yellow line at the top of the fence and might have been a home run, thus bringing it within the scope of replay review. Moreover, to overturn the rule would create a real administrative (remedial, if you will) headache--does MLB order the game replayed at that point in the top of the sixth, nullifying eight more innings of play? As I argued in my post on the anniversary of the pine tar game (one of the rare times a protest was upheld), the difficulties that follow from accepting a protest may affect the decision whether to accept it in the first place.

By the way, this was not the only law-related stuff at this game. A kid was injured by a hard foul ball into the stands and a woman was injured when the barrel of a cracked bat struck her in the head--so you have the age-old issue of liability over fan injuries from things flying into the stands. And we sat in front of one of the more obnoxious fans I've met, so we got a very heavy dose of (mostly whining) cheering speech.

Thursday, September 1, 2011

Regulating student-athletes' social media

A fellow law professor raises the following issue: What are the legal (especially First Amendment) implications of recent attempts by some schools (including, apparently, the University of North Carolina) to ban student-athletes from using Twitter and other social media? Can the schools do it? Should they do it? What arguments could student-athletes make in response and would they work?

This is the first I have heard about this issue. My initial, descriptive thought is that such a ban would be upheld on the strength of some unholy hybrid of Garcetti and Morse. Normatively, I find that a bit disheartening. I would hope for a more nuanced analysis, in which we might separate what a player does as an athlete playing for the team (and thus on behalf of the school) and as a student. After all, can it be that student-athletes have fewer First Amendment rights than student non-athletes? I remember watching a documentary a few years ago about John Wooden's UCLA dynasty, which described how Wooden permitted (and even somewhat encouraged) players such as Lew Alcindor and Bill Walton to get involved in campus activism and protests during the off-season (over Viet Nam and civil rights, primarily), with the caveat that they not do anything to embarrass the team (read: "Don't get arrested"). Forty years later and schools are afraid of having players tweet or post status updates?