Everyone is talking about Bill Belichek's decision to go for it on 4th-and-2 from the Pats' own 28 with around two minutes left (sorry Mike). And most people (including the NBC commentators speaking three-and-a-half minutes after the game) have concluded it was a bad decision. But the only reason they offered as to why the call was bad is that it did not work. Had it worked, it would have been called gutsy and a brilliant decision.
This is the problem--in both sports and law--of pure consequentialism, in which the a priori wisdom of a decision is evaluated solely by the outcome. But the decision to go for it cannot be right or wrong based solely on the result. The result is good or bad; but the decision must be evaluated independent of the outcome. Evaluating a decision as right or wrong must be based on the quality of the reasoning that went into it. Since 2001, the Pats have converted 63.5 % of attempts on 4th-and-2-or-less, a higher percentage when Brady is the quarterback. And on a day in which the offense racked up more than 400 yards and generally had moved at will, those sound like pretty good odds. Plus, in the situation, the Colds defense would be particularly worried about jumping offside, so their aggression may be ever-so-slightly-restrained. All-in-all, it strikes me as a highly unconventional, but hardly unreasonable or reckless decision. And, in fact, the play worked, except Fault did not catch the ball cleanly, thus losing forward progress as to the spot.
Gregg Easterbrook writes the Tuesday Morning Quarterback feature for espn.com and he is constantly arguing that coaches should go for it on 4th-and-short, particularly around midfield and deep in opposing territory. I am looking forward to what he has to say about this one.
Update:
The folks at Advanced NFL Stats, who know stuff about mathematical analysis that I don't, say that Belichek made the right decision. (H/T: Deadspin) The success rate on 4th-and-2 is 60% and teams score a touchdown from the opponent's 28 with 2:00 remaining approximately 53% of the time. This puts the Pats in a statistically better position than punting would have.
Further Update:
Easterbrook weighs in: Belichek was absolutely right to go for it (although he questions some of the other calls and moves, particularly the call on 3d-and-2). Easterbrook also takes on one of the sillier memes about this--Tedy Bruschi saying Belichek showed a lack of faith in his defense--by pointing out that what Belichek did was to show faith in his offense to get two yards on a day in which it averaged more than 6 yards a play.
The "lack of faith" meme rests on the assumption (which Easterbrook has been fighting) that going for it on 4th down is so far out of the norm that it is justified only in special circumstances. The assumption is that an offense really only has three downs to get a first down ordinarily and to use an additional down shows desperation of some sort--here, lack of faith in the defense. But if the mindset is that four downs means four downs and the percentages favored New England, there was nothing insulting to the defense here, just a faith in the offense within the normal rules of the game (four downs to try to get a first).
Monday, November 16, 2009
Sunday, November 15, 2009
Aaron Zelinsky on Benching the Judge-Umpire Analogy
Aaron Zelinsky of Yale Law School has just posted on SSRN a draft of his forthcoming piece in Yale Law Journal Online titled "The Justice as Commissioner: Benching the Judge-Umpire Analogy". It's an excellent read. Zelinsky traces the judicial history of the judge-umpire analogy since 1886, concluding that it was intended for trial court judges, and meant as a model to be rejected because of an umpire's passivity. In its place, Zelinsky proposes that Supreme Court Justices are properly analogous to Commissioners of Baseball, since both provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rulemaking power.
Check out Aaron's draft here. We have also discussed this analogy on our blog -- see commentary by Howard, Geoff, and me.
Check out Aaron's draft here. We have also discussed this analogy on our blog -- see commentary by Howard, Geoff, and me.
Thursday, November 12, 2009
Boise State Athletic Department Selling Stock
USA Today is reporting today that Boise State has officially formed a non-profit corporation and will begin selling shares to the public at $100 per share in hopes of raising $20 million (Boise State Athletic Department Hopes Stock Offering Raises $20 Million). AD Gene Bleymaier said, "If we are to continue the success we are enjoying now we must generate new revenues to pay for coaches' salaries, scholarships and facilities." The shares will not pay dividends, but shareholders can vote on members of a 12-person board at an annual meeting and the board will determine how money raised through the offering would be spent. Bleymaier also said this fundraising program mirrors the offering made by the Green Bay Packers when they raised $24 million in the sale of more than 105,000 shares back in 1997.
If this is true, needless to say, it's a very interesting development. One would certainly think this has to violate some provision, somewhere, in that 437-page NCAA Bylaw manual. It also raises all kinds of interesting corporate law questions in the context of fiduciary duties, state and federal securities regulations and non-profit corporation laws, just to name a few. The more I think about it, this has to be a joke, right? But perhaps this is no different than what is already taking place in big-time intercollegiate athletics, the only difference is that we call them boosters instead of shareholders.
This new development also relates to the topic of my article I posted on two days ago to the extent the proceeds generated from this stock sale fund coaches' salaries. Boise State along with Cincinnati and TCU are prime candidates to have their successful football coaches solicited by competitor schools, making them soon-to-be victims of both tortious interference and breach of contract. The presidents of these three schools have a choice. They can pay their coaches more money or let them go and then proclaim that they are "powerless" to do anything about rising salaries. Or, they can exercise their legal rights and stand up for all the current and prospective student-athletes who committed to their school in reliance on the fact that their coach was obligated to be there for a period of years....the same student-athletes who, unlike their coach, are prohibited from transferring to another school.
If this is true, needless to say, it's a very interesting development. One would certainly think this has to violate some provision, somewhere, in that 437-page NCAA Bylaw manual. It also raises all kinds of interesting corporate law questions in the context of fiduciary duties, state and federal securities regulations and non-profit corporation laws, just to name a few. The more I think about it, this has to be a joke, right? But perhaps this is no different than what is already taking place in big-time intercollegiate athletics, the only difference is that we call them boosters instead of shareholders.
This new development also relates to the topic of my article I posted on two days ago to the extent the proceeds generated from this stock sale fund coaches' salaries. Boise State along with Cincinnati and TCU are prime candidates to have their successful football coaches solicited by competitor schools, making them soon-to-be victims of both tortious interference and breach of contract. The presidents of these three schools have a choice. They can pay their coaches more money or let them go and then proclaim that they are "powerless" to do anything about rising salaries. Or, they can exercise their legal rights and stand up for all the current and prospective student-athletes who committed to their school in reliance on the fact that their coach was obligated to be there for a period of years....the same student-athletes who, unlike their coach, are prohibited from transferring to another school.
Tuesday, November 10, 2009
University Presidents are Not "Powerless" to Control Coaches' Salaries
USA Today's latest study released today on college coaches' compensation reveals that at least 25 college head football coaches are making $2 million or more this season, which is slightly more than double the number two years ago, and the average pay for a head coach in the 120-school Football Bowl Subdivision is up 28% in that time and up 46% in three years, to $1.36 million. Two weeks ago, the Knight Commission released its survey of bowl-subdivision university presidents in which 85% of the respondents said they felt football and basketball coaches' compensation "was excessive" as well as "a key contributor to the (fiscal) 'arms race' in intercollegiate athletics" and "the greatest impediment to sustainability."
With the end of the football season approaching and, hence, the beginning of the coach solicitation season, the timing is ripe to announce my new law review article on this subject titled, The Coaching Carousel in Big-Time Intercollegiate Athletics: Economic Implications and Legal Considerations. The paper will be published in the coming weeks in the Fordham Intellectual Property, Media and Entertainment Law Journal and can be downloaded off SSRN here. I take an extensive look at the economics surrounding college coaches' contracts and the reasons for rising coaches' salaries, and then use the economics to tackle the legal question that everyone avoids like the plague, which is what can schools do about it?
From a legal standpoint, it is astonishing that schools routinely solicit and steal coaches who are under contract with another school and that these solicited coaches are free to breach their contracts with limited or no repercussion. This is not representative of free market competition, but rather unfair competition. It would be like the Cowboys soliciting Tom Brady to breach his contract with the Patriots, and even worse, the Patriots then allowing Brady to breach his contract with them. The professional leagues have "no tampering" rules that prohibit this tortious interference and the Patriots would have no qualms whatsoever about using judicial means to prevent Brady (via a negative injunction) from playing for the Cowboys. Indeed, the NFL even has a no tampering policy with respect to its coaches.
The NCAA should consider adopting a "no tampering" policy (i.e. an anti-solicitation rule) similar to the NFL's no tampering policy which essentially prohibits teams from soliciting coaches under contract. In my paper I also explain why schools are entitled to equitable relief in the form of a negative injunction to prevent their coaches from jumping ship, and there is even precedent for it specifically in the context of enforcing college coaches' contracts.
With the end of the football season approaching and, hence, the beginning of the coach solicitation season, the timing is ripe to announce my new law review article on this subject titled, The Coaching Carousel in Big-Time Intercollegiate Athletics: Economic Implications and Legal Considerations. The paper will be published in the coming weeks in the Fordham Intellectual Property, Media and Entertainment Law Journal and can be downloaded off SSRN here. I take an extensive look at the economics surrounding college coaches' contracts and the reasons for rising coaches' salaries, and then use the economics to tackle the legal question that everyone avoids like the plague, which is what can schools do about it?
From a legal standpoint, it is astonishing that schools routinely solicit and steal coaches who are under contract with another school and that these solicited coaches are free to breach their contracts with limited or no repercussion. This is not representative of free market competition, but rather unfair competition. It would be like the Cowboys soliciting Tom Brady to breach his contract with the Patriots, and even worse, the Patriots then allowing Brady to breach his contract with them. The professional leagues have "no tampering" rules that prohibit this tortious interference and the Patriots would have no qualms whatsoever about using judicial means to prevent Brady (via a negative injunction) from playing for the Cowboys. Indeed, the NFL even has a no tampering policy with respect to its coaches.
The NCAA should consider adopting a "no tampering" policy (i.e. an anti-solicitation rule) similar to the NFL's no tampering policy which essentially prohibits teams from soliciting coaches under contract. In my paper I also explain why schools are entitled to equitable relief in the form of a negative injunction to prevent their coaches from jumping ship, and there is even precedent for it specifically in the context of enforcing college coaches' contracts.
Monday, November 9, 2009
Follow-up on Buster Olney - Hardy, Hermida, Teahan
After posting last week about Buster Olney’s article and comments about arbitration-eligible players and free agents, the Twins traded Carlos Gomez to the Brewers for J.J. Hardy; the Red Sox traded Jose Alvarez and Hunter Jones to the Marlins for Jeremy Hermida; and the White Sox acquired Mark Teahen for Chris Getz and Josh Fields. Olney posted a column on his ESPN.com site (“Hermida’s Move Sure to be Replicated - 11-6-2009) supporting his earlier comments while noting that the Royals are looking to slash $10-$13 million from their payroll and peddling Teahen is a start. Teahen settled with the Royals last year at $3,575,000 after an exchange of figures ($3,050,000 - $3,850,000). Teahen was in a select group of five of the 46 players who exchanged numbers to negotiate a figure above the midpoint. As a Super Two in 2008, Teahen was able to negotiate a $2,337,500 deal that year. Apparently the Royals will contribute $1,000,000 towards Teahen’s 2010 salary. Fields and Getz have quite awhile before they become arbitration-eligible.
Hardy finished four years with the Brewers with a disappointing season. In 2008, Hardy exchanged numbers with Milwaukee ($2,400,000 - $3,050,00) before agreeing to a $2,650,000 deal. In 2009, he made $4,650,000. Hardy’s .229 average and drop in power numbers prompted to Brewers to make a move instead of going back into arbitration. With his demotion to AAA last year, the Brewers forced him to lose his ability to move to free agency after the upcoming season. How the Twins will handle negotiations will be interesting.
Olney’s main post involved Jeremy Hermida, who moved into the salary arbitration-eligible group before the 2009 season with the Marlins. He signed in January 2009 for $2,250,000. The Red Sox will accept his arbitration-eligible status without much complaint.
Hardy, Hermida, and Teahen are now set. Their new teams will advance through the negotiation and arbitration process, if necessary, to sign their new acquisitions.
Hardy finished four years with the Brewers with a disappointing season. In 2008, Hardy exchanged numbers with Milwaukee ($2,400,000 - $3,050,00) before agreeing to a $2,650,000 deal. In 2009, he made $4,650,000. Hardy’s .229 average and drop in power numbers prompted to Brewers to make a move instead of going back into arbitration. With his demotion to AAA last year, the Brewers forced him to lose his ability to move to free agency after the upcoming season. How the Twins will handle negotiations will be interesting.
Olney’s main post involved Jeremy Hermida, who moved into the salary arbitration-eligible group before the 2009 season with the Marlins. He signed in January 2009 for $2,250,000. The Red Sox will accept his arbitration-eligible status without much complaint.
Hardy, Hermida, and Teahen are now set. Their new teams will advance through the negotiation and arbitration process, if necessary, to sign their new acquisitions.
Friday, November 6, 2009
Tulane Law School Baseball Arbitration Competition
I am proud to announce that the Tulane Law School Sports Law Society will be hosting its third annual National Baseball Arbitration Competition from January 22-24, 2010. This is a really great and unique event that allows students to argue a baseball arbitration case involving real players and real statistics. We already have a number of great guest arbitrators lined up to judge the competition and will have students from schools across the country competing in the event. The official announcement from the Tulane Sports Law Society is attached below. Click here for the competition's website and more information. I look forward to seeing many of you down in New Orleans for the competition...
About the Competition
The Tulane Law School Sports Law Society is pleased to invite your school to compete in the 2010 Tulane Law School National Baseball Arbitration Competition. The Baseball Arbitration Competition is a simulated salary arbitration competition modeled closely on the salary arbitration procedures used by Major League Baseball. Like most law school moot court competitions, the Competition’s main goal is to provide participants with the opportunity to sharpen their oral and written advocacy skills, which are essential for a successful career as an attorney. The Competition, however, is unique in that it allows law students across the country with an interest in the growing body of sports law to sharpen these skills within the specialized context of Major League Baseball’s salary arbitration proceedings. This will be an exciting and educational legal exercise for all participants, as it will provide participants an opportunity to learn more about one of the legal processes used in the sports industry. In its two-year history the Competition has grown significantly, and we fully expect an increase in participation once again.
Schedule & Registration Materials
The Baseball Arbitration Competition is open to any ABA accredited law school. This year, the Competition will begin the evening of Friday, January 22nd, with a reception for competitors and participants. Competition rounds will begin the morning of Saturday, January 23rd, and continue through the afternoon of Sunday, January 24th.
The Changing Landscape of Salary Arbitration-Eligible Players and Free Agents in Baseball
With the Yankees winning the World Series last night, the off-season officially began this morning. The clock starts ticking on the free agent filing period of 15 days after the end of the World Series. Buster Olney appeared on Mike and Mike on ESPN this morning. He started his segment with the same point that he made in an article on ESPN Insider on Sunday titled “Baseball's Next Great Economic Disparity.”
Let me quote from his posting:
“Baseball's financial structure appears to have reached a tipping point that can be defined simply. ‘The arbitration process is now outdated,’ said a highly ranked executive, ‘because the players can get more money in arbitration than they would through free agency.’ So now teams are about to adjust to this reality, and this is why multiple general managers expect that dozens of young players with three, four and five years of major league experience will be cut loose rather than offered arbitration in the next 41 days. Not a handful, but dozens.
During the past 48 hours, I went through the rosters with some executives and counted 93 solid non-tender candidates -- players whose current teams simply won't offer them contracts for 2010. If the final numbers come close to that figure, close to 300 veteran players will be looking for jobs in the winter, a staggering number that will inevitably depress the asking prices for free agents.”
Examples that Olney offered in his posted article were J.J. Hardy of the Milwaukee Brewers, Jeremy Hermida of the Florida Marlins, and Bobby Jenks of the Chicago White Sox. In both the article and this morning on Mike and Mike, Olney offered that the big market teams will be able to sign their top choices of both traditional free agents (six years of service) and non-tendered arbitration-eligible players. Small market teams might benefit from a depressed market overall for free agents.
I think that Buster Olney is right on top of this issue. The first two important dates to remember are December 1 and December 7. December 1 is the last day for teams to offer arbitration to their former players who became free agents. Monday, December 7, is the last day for a former free agent to accept arbitration. The non-tender date is December 12. After free agents file, teams have the right the offer arbitration. Often they will do this for projected Type A and Type B free agents to gain a draft choice if the player turns down the offer. Players turn down the offer to talk to all teams about a deal for the upcoming year. If they accept arbitration, they have basically agreed to a contractual relationship with their existing team. They can negotiate a deal or allow the arbitration panel to decide the appropriate amount. This year might be strategically different, however, because of the changing landscape. There will be a lot more free agents this year based on Olney’s prediction. If you offer arbitration to a Type A or Type B free agent, that player and his agent might just accept arbitration when they would have turned it down previously with different market conditions because an arbitration panel might award a figure that is higher than the deal that the player and agent could get on an open free agent market.
I will be monitoring all of this activity in the off-season, and I will post occasional musings.
Let me quote from his posting:
“Baseball's financial structure appears to have reached a tipping point that can be defined simply. ‘The arbitration process is now outdated,’ said a highly ranked executive, ‘because the players can get more money in arbitration than they would through free agency.’ So now teams are about to adjust to this reality, and this is why multiple general managers expect that dozens of young players with three, four and five years of major league experience will be cut loose rather than offered arbitration in the next 41 days. Not a handful, but dozens.
During the past 48 hours, I went through the rosters with some executives and counted 93 solid non-tender candidates -- players whose current teams simply won't offer them contracts for 2010. If the final numbers come close to that figure, close to 300 veteran players will be looking for jobs in the winter, a staggering number that will inevitably depress the asking prices for free agents.”
Examples that Olney offered in his posted article were J.J. Hardy of the Milwaukee Brewers, Jeremy Hermida of the Florida Marlins, and Bobby Jenks of the Chicago White Sox. In both the article and this morning on Mike and Mike, Olney offered that the big market teams will be able to sign their top choices of both traditional free agents (six years of service) and non-tendered arbitration-eligible players. Small market teams might benefit from a depressed market overall for free agents.
I think that Buster Olney is right on top of this issue. The first two important dates to remember are December 1 and December 7. December 1 is the last day for teams to offer arbitration to their former players who became free agents. Monday, December 7, is the last day for a former free agent to accept arbitration. The non-tender date is December 12. After free agents file, teams have the right the offer arbitration. Often they will do this for projected Type A and Type B free agents to gain a draft choice if the player turns down the offer. Players turn down the offer to talk to all teams about a deal for the upcoming year. If they accept arbitration, they have basically agreed to a contractual relationship with their existing team. They can negotiate a deal or allow the arbitration panel to decide the appropriate amount. This year might be strategically different, however, because of the changing landscape. There will be a lot more free agents this year based on Olney’s prediction. If you offer arbitration to a Type A or Type B free agent, that player and his agent might just accept arbitration when they would have turned it down previously with different market conditions because an arbitration panel might award a figure that is higher than the deal that the player and agent could get on an open free agent market.
I will be monitoring all of this activity in the off-season, and I will post occasional musings.
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