New York University School of Law Sports Law Panel on College Athletics

Next Monday - November 14 - NYU Law will host a sports law panel on college athletics from 4 to 6 p.m. at 40 Washington Square South.

Sports Law Blog contributor Alan Milstein -- who I hear will have some provocative commentary about the NCAA and treatment of college athletes to share with the audience -- will be joined by other terrific panelists.

Here's the group:

* Craig Esherick - former head coach of the Georgetown Hoyas men's basketball team and head of the Sports Management program at George Mason (also a lawyer)

* Alan Milstein - nationally-recognized sports litigator (has represented Allen Iverson, Eddy Curry, Allen Houston, Richard Hamilton, Maurice Clarett and others in litigation matters) and co-managing shareholder of Sherman Silverstein Kohl Rose & Podolsky

* Dr. Constance Zotos, former Athletic's Director of Drew University

* Seth Wickersham, writer for ESPN The Magazine

* Professor Robert Boland from the NYU School of Continuing and Professional Studies will be moderating the discussion.

Two posts on Penn State

I have two posts on the Penn State mess over at Prawfs. I thought I'd link to them, rather than reposting.

Here, I question what the students were protesting about at Penn State last night and what they are thinking in objecting to Paterno's firing in this circumstance. Here, I question the use of the word "technicality" to describe a likely argument from the indicted Penn State officials that in 2002 they had no obligation to report a second-hand report of child molestation.

Feel free to post comments there or here.

University of Mississippi School of Law Sports Law Symposium (this Friday 11/11/11)

I will be speaking, presenting my latest law review piece dealing with Social Media and the NCAA, this Friday, November 11th at the law school at Ole Miss. I will have a draft up on my SSRN page soon, tentatively titled: Student-Athlete.O – Regulation of Student-Athletes’ Social Media Use: a Guide to Avoiding NCAA Sanctions and Related Litigation. See below for the official invite:

"The Mississippi Sports Law Review would like to invite you to its inaugural sports law symposium. The symposium will take place on Friday, November 11th at the University of Mississippi School of Law. Lunch will be served at Noon and the symposium will begin at 1 p.m. The symposium will address the issue of Social Media and Intercollegiate Athletics, and will be accompanied by an issue of the Review to be released later in the winter.

The following authors will present their articles at the symposium:

John T. Wendt & Peter C. Young – Reputational Risk and Social Media

Jerry Parkinson – Impact of Social Media on NCAA Infractions Cases

Mary Margaret “Meg” Penrose – Free Speech versus Free Education: First Amendment Considerations in Limiting Student Athletes’ Use of Social Media

Timothy Liam Epstein - Student-Athlete.O – Regulation of Student-Athletes’ Social Media Use: a Guide to Avoiding NCAA Sanctions and Related Litigation"

We hope you can make it.

New Sports Illustrated Column: Did Joe Paterno Break the law???

Joe Paterno is out as head coach of Penn State.  I have a new column for Sports Illustrated on the possibility he will face criminal charges and tort claims.  Here's an excerpt:


* * *

These inconsistencies related to Paterno's and McQueary's statements about "Victim 2" in the grand jury's statement of facts. According to the grand jury's findings of fact, McQueary detailed how in 2002 he saw a naked Sandusky sexually abusing a young boy in the showers in the Penn State football locker room. McQueary also testified that he told Paterno what he saw the following day, though it isn't clear from McQueary's testimony how explicit he was in his description to Paterno.

After hearing from McQueary, Paterno alerted athletic director Tim Curley. Yet instead of relaying what McQueary claims to have told him, Paterno conveyed a milder and vaguer description. Specifically, Paterno testified under oath that McQueary had said that Sandusky was engaged in fondling or "doing something of a sexual nature" to a boy.

To be sure, the phrase "doing something of a sexual nature" technically includes forcibly subjecting a child to anal intercourse, meaning Paterno may have been more evasive than untruthful. Then again, Paterno's hazy choice of words could encompass a band of sexual acts, from raping a 10-year-old boy to inappropriately touching or patting a child, that ranges too widely in heinousness to be deemed consistent with McQueary's allegedly more specific statements. The phrase unnecessarily imports ambiguity and generality where none had existed, and dubiously invites the listener -- Curley -- to assign a lack of severity to the incident. From that lens, Paterno appears to have told Curley a different account than what McQueary had told him.

* * *

To read the rest, click here.

Off Pitch: What Glee Can Teach Us About College Athletics

In trying to explain the issues within college athletics to my 15 year old daughter, I realized an analogy might make sense. What better way to connect than by referencing Glee.

I posted the following essay on the Huffington Post, which uses Glee to describe many of the issues in college sports.

Let me know what you think of this LIGHTHEARTED attempt.

[Also, before I get the hate email, I recognize that in reality, those competing in drama and glee clubs around the country would overwhelmingly jump at the opportunities of the top student-athletes within the sports of football and men's basketball.]

Understanding the NBA Players' Decertification Strategy

Mike wrote about this topic last week for Sports Illustrated, and I now have a new column up over at the Huffington Post analyzing the complicated web of legal issues raised by the potential decertification of the NBA Players Association. Here's an excerpt. You can find the full column here.

If the players go forward with the decertification petition, is the 2011-2012 season completely lost?
Not necessarily. Although antitrust litigation is painfully slow, expensive, and unpredictable, the mere threat of decertification followed by antitrust litigation might cause the owners to move at the bargaining table. In other words, the owners might be willing to make concessions at the bargaining table to avoid the inherent uncertainty of antitrust litigation. Of course, decertification might have the opposite effect. The owners, wary of setting a precedent of caving at the bargaining table when the players threaten to decertify, might dig in their heels even further and call the players' decertification bluff. This could lead to the ultimate lose-lose situation--the NBA season is cancelled while the NBA owners fight the NBA players in court.
Assuming the mere threat of decertification/litigation is not enough to move the owners, the NBPA could (while the players are waiting for the decertification election) disclaim interest in representing the players. Disclaimer would permit the players to file their antitrust suit immediately. The NBA owners would argue that any such lawsuit must be heard in NY, so the players could either file in NY (unlikely) or file in another jurisdiction and engage in a legal battle to allow them to choose where the case is heard (more likely).
Even if it gets all the way to an actual decertification vote, the season isn't necessarily lost. It is possible--although a lot of things would have to go right for the players for this to occur--that the players are able to vote to decertify and file an antitrust in late December and get a court to issue a temporary restraining order blocking the lockout by early January. That's a bit of a long shot, but it's possible, and the mere possibility of it could be enough to convince enough of the owners to make a deal to avoid that outcome.

Modifiers

I write this with some trepidation. So I'm going to begin with a disclaimer: I am not trying to suggest anything about what is right or wrong or what should be treated as right or wrong. I just want to think about how we treat certain speech. Please keep that in mind in any responses. OK, I just set myself up for some very high (or low) expectations, so here we go.

Steve Williams is a professional golf caddy who worked for Tiger Woods  for more than a decade (earning a lot of money, as well as a reputation as being Woods' overbearing bodyguard/hitman on the course). Woods unceremoniously fired Williams last summer, a move over which Williams is still just a bit bitter. Williams caught on with a golfer named Adam Scott (who himself has a rivalry and tension with Tiger); Scott won a tournament earlier this year, after which Williams preened and called it the greatest victory of his life. Over the weekend, at a caddie celebration dinner, Williams explained "I wanted to shove it up that black arsehole."  Word of what Williams said at the closed, "off-the-record" event quickly got out. Williams issued a typical famous-person denial by the next morning, saying "I apologize for comments I made last night . . . I now realize how my comments could be construed as racist. However, I assure you that was not my intent. I sincerely apologize to Tiger and anyone else I've offended."

Williams is being criticized for making a "racist" remark and he used that term in his sort-of apology. But should his remark be considered racist and why or why not? Do they suggest he is racist? Or are the remarks, and therefore Williams, just stupid?


The upshot is that Williams is in trouble for using a bad modifier. Had he simply called Woods an "arsehole," people would have thought Williams was an obnoxious ass, but not racist. Same thing had he called Woods a "cheating arsehole" (in reference to Woods widely reported infidelity) or a "sex-addict arsehole" (in reference to Woods reportedly seeking treatment for sex addiction) or "washed-up arsehole" (in reference to Woods struggles on the golf course). But Williams mentioned, in a purely descriptive way, the unquestioned fact that Woods is (part) black. And the narrative is that this modifier made his comments, and perhaps him, racis. Indeed, Williams' apology was all about his own state of mind--that he did not have racist intent in what he said and therefore is not racist.

But Williams did not use a racial slur. He did not attribute his dislike of, or anger at, Woods to Woods' being black (as opposed to being an arsehole). He did not make a statement about what type of person Woods is because of his race. He did not suggest Woods is inferior or incapable because of his race. He did not make a comment grounded in any racial stereotypes (compare when another golfer was criticized for joking about Augusta National serving soul food at the tournament dinner after Woods won the Masters). Williams made an observation and stated a fact--Woods is black. He also is, in Williams' view, an arsehole. And, therefore . . .
So that has been the change in our discourse: We have made the mention of race (along with other characteristics, such as ethnicity, religion, gender, etc.) improper even as a purely factual matter when criticizing someone. You can call someone a #$*&% with relative impunity; you no longer can call him a [Race/Gender/Ethnicity/Religion] #$*&%. And doing so tags the speaker as racist.

My best guess at a justification is that because race is (or should be) irrelevant to our opinion of someone, mentioning race serves no purpose. Thus, mentioning it, even as a factual modifier, calls attention to the target's status as a member of a minority or historically weak or disempowered group. The use of the modifier highlights the target's "otherness" or singleness in society. Williams would not have called a white golfer a "white arsehole", because emphasizing whiteness does not call up that otherness. Racializing the insult makes that insult worse by calling up and highlighting that otherness, even if that otherness is merely a descriptive modifier and not the heart of the insult. Or maybe the explanation is slightly different: Because race is irrelevant, anyone who mentions actually is using it as the basis of the opinion. In other words, Williams dislikes Woods because of his race (and not because of his arseholeness), otherwise he wouldn't have mentioned it.

I cannot emphasize strongly enough that I am not defending what Williams said or did. I only am trying to consider how and why we characterize the act a certain way.