Do You Believe He Can Fly? Royce White and Reasonable Accommodations Under the Americans with Disabilities Act for NBA Players with Phobias

I have posted on SSRN an early draft of my forthcoming article in the Pepperdine Law Review: Do You Believe He Can Fly? Royce White and Reasonable Accommodations Under the Americans with Disabilities Act for NBA Players with Phobias.

The article is about Royce White, who is expected to be selected in the first round of tonight's NBA draft (rumors are the Celtics will pick him, though other teams are interested), and what impact his severe fear of flying will have on his NBA career. The article also considers the legal mechanisms that may be available to White under the Americans with Disabilities Act.

Here's an excerpt:

If fear of flying constitutes a disability for White under the ADA, he could argue that the NBA or his team should accept any reasonable request for accommodation. They may disagree about what constitutes "reasonable". Allowing White to take a train from Boston to New York City, or even a ship to Europe, would probably be reasonable so long as White does not miss meetings, practices or games. Then again, White as a rookie traveling alone, might not gain valuable insight from conversations with coaches and teammates or develop camaraderie with them.

Seemingly less reasonable would be allowing White to miss a road trip. Unless he is injured, suspended or assigned to the D-League (the NBA's minor league), White will be contractually obligated to play 82 regular season games, along with four to six pre-season games, up to 28 postseason games, and possibly a handful of summer league games. No player signs a standard contract to play in "some games." Consider the impact of such an arrangement on White's coach: if White's only an occasional player, his coach might struggle to set his rotation. On the other hand, professional leagues have carved out exceptions for players to miss road games. This has been true of NBA players recovering from injury. Gilbert Arenas, returning from a knee injury in 2009, was allowed a flexible schedule whereby he would play in all home games but only some road games. Other circumstances have led to similar arrangements. Last year the Central Hockey League allowed Rapid City Rush forward Brett Nylander, a second lieutenant in the Air Force, to only play home games because his military service limited travel.

Hope you have a chance to read this early draft and email me thoughts.

Age of Entry and NBA Success

Jun Woo Kim and I recently published a (non-legal) statistical article in the Journal of Quantitative Analysis in Sports that looks at age and NBA success. A link to the article can be found here. The abstract is below:

The NBA’s age eligibility rule is controversial. To examine the on-court efficacy of the NBA’s age eligibility rule, we test the effect of age of entry on NBA career performance. Our data set comprises the 332players selected in the first round of the NBA draft from 1989 and 2000. Using censored normal regression models, we found that players drafted at a relatively younger age have more successful NBA careers across three different metrics. To explore a beneficial effect of one year in college, group selection bias tests were conducted by comparing differences in career success between quasi-“one-and-done” players and players who entered the NBA straight out of high school. The results were consistent with our main analyses – players who moved into the NBA directly from high school generally perform better than players with a single year of college experience. We find no systematic evidence in support of the on-court efficacy of the NBA’s age eligibility rule.

Will The NBA's One-and-Done Rule Face Legal Challenge?

Myron Medcalf of ESPN.com has an extensive article on the NBA's minimum age requirement, which requires that U.S. players be 19-years-old plus one year removed from high school. He interviews several people for it, including such notable persons as Mike Krzyzewski, Mark Emmert, Rick Pitino, and Spencer Haywood, and far less notable persons, including me.

Here are my thoughts in the article:

Michael McCann, director of the Sports Law Institute at Vermont Law School, helped Maurice Clarett in his unsuccessful bid to enter the 2004 NFL draft after his freshman season at Ohio State.

He's an opponent of the current age requirement for NBA draft picks and conducted a study 10 years ago that revealed four-year players and high school athletes faced similar struggles as they transitioned to the NBA.

"A lot of players, relatively high draft picks who played four years of college, have struggled," McCann said. "I think that's because the college game is so much different."

If the NBA moves toward a two-year rule for players coming out of high school, more players might consider challenging the NBA's minimum age requirement on legal grounds. Although Haywood challenged the NBA alone, today's climate and the union protection attached to the rule might require a class-action lawsuit to gain any traction in the courts, McCann said.

"In terms of the NBA, if it were two years, maybe we would see more players come forward, feeling like it's worth challenging the age limit," he said. "The fact that it's only one year, a lot of players probably calculate that it's not enough to file a lawsuit against the league."

To read the rest, click here.

MLB's Paternity Leave List

MLB's new CBA has an interesting provision: a three-day paternity leave list. It allows a team to replace a player on its active roster for up to three days after having a child. MSNBC's Jacoba Urist has an excellent piece on the social and legal significance of this new policy.

Here's an excerpt:

By placing paternity leave squarely in the news (especially on sports sites that don’t usually cover pregnancy and parenting), and allowing players to take a bit of time from their grueling schedule to be with their new babies, Major League Baseball might be helping to pave the way for all the normal guys out there to ask for a week or two when their wives give birth.

To read the rest, click here.

Gig tomorrow night, Joe's Bar and Grill Summertown Oxford

The Heavy Dexters - with myself on drums - will be playing from 8.30 - 11.00pm. Fre entry. Book if you want a table. Details here. Facebook page here. Joe's Bar and Grill 260 Banbury Road, OX2 7DX Oxford

Extraordinary claims require extraordinary evidence.

Jeff Lowder on "Extraordinary claims require extraordinary evidence" here.

Via Ferrata trip

Just got back from Italian Via Ferrata trip. Stayed at San Martino in the Dolomites and did some high level stuff (requiring ice axe and crampons) and also some at Lake Garda, including Via Attrazetta Rino Pisetta on a very hot day (32C), video clips below.... Another clip of Pisetta... Above clips are high on the route, about 3 hours in... Below is of start of the route. A Czech guy in red that we met on route seemed unsure to begin with... This is Via Ferrata Porton:

Choosing your own decisionmaking process

At Sunday's Olympic Trials in the women's 100m, there was a tie for third place (the final spot on the team). And now the question is how to break the tie, with the options being a coin flip or a run-off between the two women, Allyson Felix and Jeneba Tarmoh. But it gets more complicated, because the choice is delegated to the runners: If they agree on a process, they use that. If they disagree on their preferences, they use a run-off. And if no one expresses a preference, they use a coin flip.

This raises a couple of interesting issues:

1) As discussed here, Olympic officials have avoided making a decision (and having to provide reasons for the decision) by delegating the choice to the participants, something judges typically are unable to do.

2) Is there any doubt that world-class athletes will choose the run-off? And, if so, why? Is it fear of randomness? Is there something unique about professional athletes?

3) Note the game theory element to this. If they state a preference and disagree, it's a run-off; if one or both decline to state a preference, it's a coin flip.

New Sports Law Scholarship

Recently published scholarship includes:

Douglas E. Abrams, Player safety in youth sports: sportsmanship and respect as an injury-prevention strategy, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 1 (2012)

Roger I. Abrams, Early baseball and the urban political machine, 5 ALBANY GOVERNMENT LAW REVIEW 1 (2012)

Gene W. Allen, Negotiating, drafting, and implementing naming rights agreements, 86 NORTH DAKOTA LAW REVIEW 789 (2010)

Thomas A. Baker III et al., Football v. Football: A Comparison of Agent Regulation in France’s Ligue 1 and the National Football League, 2 PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM 1 (2012)

Emily Battersby & Wolfgang G. Robinson, Paradise lost: media in injustice and injustice in media, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 29 (2012)

Raymond Belliotti, Billy Martin and jurisprudence: revisiting the Pine Tar Case, 5 ALBANY GOVERNMENT LAW REVIEW. 210 (2012)

Christian H. & Howard W. Brill, Take me out to the hearing: Major League Baseball players before Congress, 5 ALBANY GOVERNMENT LAW REVIEW 90 (2012)

Winston J. Busby, Comment, Playing for love: why the NCAA rules must require a knowledge-intent element to affect the eligibility of student-athletes, 42 CUMBERLAND LAW REVIEW 135 (2011-2012)

Michele Colucci, & Arnout Geeraert, The “social dialogue” in European professional football, 33 COMPARATIVE LABOR LAW & POLICY JOURNAL 203 (2012)

Marc Edelman, Upon further review: will the NFL’s trademark licensing practices survive full antitrust scrutiny? The remand of American Needle, 16 STANFORD JOURNAL OF LAW, BUSINESS & FINANCE 183 (2011)

Ed Edmonds, Arthur Soden’s legacy: the origins and early history of baseball’s reserve system, 5 ALBANY GOVERNMENT LAW REVIEW 38 (2012)

Gabe Feldman, Brady v. NFL and Anthony v. NBA: The shifting dynamics in labor-management relations in professional sports, 86 TULANE LAW REVIEW 831 (2012)

Michael J. Fabrega, Comment, The California Supreme Court’s insertion of a no-duty rule into the field of sports torts: a futile exercise achieving inequitable results, 33 WHITTIER LAW REVIEW 181 (2011)

David Fagundes, Talk derby to me: intellectual property norms governing roller derby pseudonyms, 90 TEXAS LAW REVIEW 1093 (2012)

Henry D. Fetter, From flood to free agency: the Messersmith-McNally arbitration reconsidered, 5 ALBANY GOVERNMENT LAW REVIEW 156 (2012)

Joseph Z. Fleming, “Just like umpires”: why Chief Justice Roberts correctly relied on baseball to describe the Supreme Court of the United States, 5 ALBANY GOVERNMENT LAW REVIEW 286 (2012)

Matthew J. Frankel, Secret sabermetrics: trade secret protection in the baseball analytics field, 5 ALBANY GOVERNMENT LAW REVIEW 240 (2012)

Daniel Gandert & Fabian Ronisky, American professional sports is a doper’s paradise: it’s time we make a change, 86 NORTH DAKOTA LAW REVIEW 813 (2010)

Elisia J.P. Gatman, Academic exploitation: the adverse impact of college athletics on the educational success of minority student-athletes, 10 SEATTLE JOURNAL FOR SOCIAL JUSTICE 509 (2011)

Neil Gibson, Note, NCAA scholarship restrictions as anticompetitive measures: the one-year rule and scholarship caps as avenues for antitrust scrutiny, 3 WILLIAM & MARY BUSINESS LAW REVIEW 203 (2012)

James R. Hoy, Constitutional law—separation of powers: the North Dakota Supreme Court balances the constitutional authority of the State Board of Higher Education, the State Legislature, and the judiciary, 86 NORTH DAKOTA LAW REVIEW 905 (2010)

J. Gordon Hylton, Before Redskins were the Redskins: the use of Native American team names in the formative era of American sports, 1857-1933, 86 NORTH DAKOTA LAW REVIEW 879 (2010)

Christopher Immormino, Note, I’m gonna knock you out: why physical force is a legitimate form of dispute resolution, 27 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 207 (2012)

Suzanne Janusz, Comment, The NFL’s strict enforcement of its personal conduct policy for crimes against women: a useful tool for combating violence or an attempt to punish morality?, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW. 93 (2012)

Eric E. Johnson, The NFL, intellectual property, and the conquest of sports media, 86 NORTH DAKOTA LAW REVIEW 759 (2010)

Allison A. Kotula, Note, A win-win scenario: using the gold standard to improve the World Cup’s Green Goal Initiative, 36 WILLIAM & MARY ENVIRONMENTAL LAW & POLICY REVIEW 565 (2012)

Michael H. LeRoy, The narcotic effect of antitrust law in professional sports: how the Sherman Act subverts collective bargaining, 86 TULANE LAW REVIEW 859 (2012)

Martin L. Levy, High school baseball, the NCAA, and Major League Baseball: “a reality show”, 5 ALBANY GOVERNMENT LAW REVIEW 332 (2012)

Morgan Marcus, Comment, A delayed penalty: the implications of the Ilya Kovalchuk arbitration decision on the National Hockey League, 45 JOHN MARSHALL LAW REVIEW 145 (2011)

John R. Maney, Train wreck (of the I-AA), 14 VANDERBILT JOURNAL OF ENTERTAINMENT AND TECHNOLOGY LAW 279 (2012)

Patrick J. McAndrews, Keeping score: how universities can comply with Title IX without eliminating men’s collegiate athletic programs, 2012 BRIGHAM YOUNG UNIVERSITY EDUCATION & LAW JOURNAL 111.

Christopher McNair, Note, Edward C. v. City of Albuquerque: the New Mexico Supreme Court balks on the baseball rule, 41 NEW MEXICO LAW REVIEW 539 (2011)

Charles S. Michels, Note, Major League Baseball and the National Collegiate Athletic Association: private lotteries and enforceable contracts, 14 VANDERBILT JOURNAL OF ENTERTAINMENT AND TECHNOLOGY LAW 395 (2012)

Matthew J. Mitten, From Dallas Cap to American Needle and beyond: antitrust law’s limited capacity to stitch consumer harm from professional sports club trademark monopolies, 86 TULANE LAW REVIEW 901 (2012)

Jeffrey Mongiello, Student article, Title II and high school athletics age limits: individualized assessments for student-athletes with disabilities after Martin, 89 UNIVERSITY OF DETROIT MERCY LAW REVIEW 35 (2011)

Jason Navia, Comment, Sitting on the bench: the failure of youth football helmet regulation and the necessity of government intervention, 64 ADMINISTRATIVE LAW REVIEW 265 (2012)

Timothy G. Nelson, Comment, Flag on the play: the ineffectiveness of athlete-agent laws and regulations—and how North Carolina can take advantage of a scandal to be a model for reform, 90 NORTH CAROLINA LAW REVIEW 800 (2012)

Jerry R. Parkinson, Scoundrels: an inside look at the NCAA infractions and enforcement processes, 12 WYOMING LAW REVIEW 215 (2012)

Brett H. Pavony & Jaia Thomas, For the Love of the Name: Professional Athletes Seek Trademark Protection, 2 PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM 153 (2012)

Mary Margaret Penrose, Tattoos, tickets, and other tawdry behavior: how universities use federal law to hide their scandals, 33 CARDOZO LAW REVIEW 1555 (2012)

Jason J. Ranjo, Note, Game over?: the potential demise of the Professional and Amateur Sports Protection Act, 42 RUTGERS LAW JOURNAL 213 (2010)

Michael Rosen, Constitutional implications of Title IX compliance in colleges and universities, 18 CARDOZO JOURNAL OF LAW & GENDER 503 (2012)

Stephen F. Ross, Radical reform of intercollegiate athletics: antitrust and public policy implications, 86 TULANE LAW REVIEW 933 (2012)

Arline F. Schubert, A taxpayer’s and a politician’s dilemma: use of eminent domain to acquire private property for sport facilities, 86 NORTH DAKOTA LAW REVIEW 845 (2010)

Grant H. Shaft, Implementing the settlement of State of North Dakota v. National Collegiate Athletic Association, 86 NORTH DAKOTA LAW REVIEW 747 (2010)

David L. Snyder, The Cobra’s contract: revisiting Dave Parker’s 1979 contract with the Pittsburg Pirates, 5 ALBANY GOVERNMENT LAW REVIEW, 188 (2012)

Wayne Stenehjem, & Matthew Sagsveen, Let’s go sue: the Attorney General’s historical perspective on State of North Dakota v. National Collegiate Athletic Association, 86 NORTH DAKOTA LAW REVIEW 711 (2010)

John Thorn, 2011 Edward C. Sobota Memorial Lecture. It’s a wise child that knows its father: a search for baseball’s origin, 5 ALBANY GOVERNMENT LAW REVIEW 27 (2012)

Anthony Torrente, The dark side of professional baseball: the fall of Barry Bonds, 5 ALBANY GOVERNMENT LAW REVIEW 352 (2012)

Davis Walsh, Note, All a Twitter: social networking, college athletes, and the First Amendment, 20 WILLIAM & MARY BILL OF RIGHTS JOURNAL 619 (2011)

Brant Webb, Unsportsmanlike conduct: curbing the trend of domestic violence in the National Football League and Major League Baseball, 20 AMERICAN UNIVERSITY JOURNAL OF GENDER, SOCIAL POLICY & LAW 741 (2012)

Jack F. Williams et al., Public financing of green cathedrals, 5 ALBANY GOVERNMENT LAW REVIEW 123 (2012)

Ray Yasser, The case for reviving the four-year deal, 86 TULANE LAW REVIEW 987 (2012)

The sports world marked today's 40th anniversary of Title IX by showing a lot of women's sports on TV, including Olympic trials in a number of sports (such as diving and track) and a marathon of WNBA games.

I also caught a new Nike ad, titled Voices. It features close-up shots of basketball players Diana Taurasi and Lisa Leslie, boxer Marlen Esperaza, and marathoner Joan Benoit Samuelson (who I still remember winning the first Olympic women's marathon in Los Angeles in 1984, wearing a white painter's cap) talking about the obstacles and challenges they faced growing up and starting to play sports (notably, each at different ages and stages of Title IX's 40-year history). Those head shots are interspersed with shots of young girls in uniform lip-synching their comments. This ad can be seen as the successor to Nike's famous 1995 If You Let Me Play (regarded by many as one of the all-time best ads). Both can be seen after the jump.

In watching them, note the new rhetoric and narrative. The earlier ad is trying to convince the viewer to let women and girls play by citing all the instrumental benefits that come with participation in sports (better grades, self-confidence, health, etc.). The new ad says that women and girls do and should play simply because they want to. Oh, and because they're really freaking good. This strikes me as progress.

Voices:

If You Let Me Play:

Jerry Sandusky: Guilty

Here's my column for SI.com on the guilty verdict and what it means going forward.

Supreme Court Punts on Broadcast Indecency

Yesterday, the high court issued its long-awaited opinion in FCC v. Fox Broadcasting, 567 U.S. ____ (2012). In its unanimous opinion, the panel gave broadcasters a temporary victory by invalidating the present indecency standards as constitutionally vague based on lack of adequate notice, but failed to consider whether there is a rationale for instituting them in the first place. I have written about the effect that the latest interpretation of the rules, which were expanded to prohibit "fleeting expletives," can cause undue harm to over the air broadcasts of sports events where single instances of the f-word or other such language may be picked up and broadcast.

The litigation saga of the case covers two Supreme Court rulings and several appeals court rulings. In Fox I, 556 U.S. 502 (2009), the court only addressed administration law claims, concluding that the new rules -- which significantly changed enforcement of the standards from the "7 dirty words" and contextual applications of profane speech over the years to a one-word wonder, was not arbitrary and capricious, but reserved the First Amendment questions for another day. On remand, Second Circuit concluded that the standards were unconstitutional, 613 F. 3d 317 (2010) and this appeal ensured.

The court, in what could be called Fox II, focused on the more narrow question of the constitutionality of the promulgation of the regulations, but not the free speech implications of the fleeting expletive standard. Ideally, the question of the due process of the manner in which the policy was enacted could have been addressed in the earlier opinion because it is so dovetailed with the administrative law issues. But it was not, since the Second Circuit did not address those questions at that time when it ruled on the administrative law issues in 2007.

This time around, Justice Kennedy, writing for the court, focused on the void for vagueness and lack of notice issues. At the time of the violations in question -- which did not involve a sports broadcast, but rather a show of nudity on an episode of ABC's "NYPD Blue" and the use of one-time f-words by Cher and Nicole Ritchie on two separate Billboard Music Awards show broadcast by Fox -- no notice of the change of policy was made. While the restrictions on "obscene and indecent" broadcasts are based on statute -- 18 USC 1464 -- the interpretation of the scope of that statute has been the province of the FCC for six decades. The commission essentially backpedaled its way into the new rules, since in 2001 it was FCC policy that the single use of a profanity was not enough to show indecency, while in 2004, after these incidents, the commission changed course in a 2004 order.

The court stopped there, however, noting that the First Amendment questions need not be addressed at this time -- much to the consternation of Justice Ginsburg, who argued in concurrence that they should have been determined. That means that the Pacifica ruling upholding the FCC's right to regulate indecency stands and the commission has the power to issue new indecency rules and it is likely that yet another round of challenges will occur. Sports broadcasters should not get rid of their time-delay machinery just yet.

Jerry Sandusky: Closing Arguments and Jury Deliberations

I have a new column for SI.com on the Jerry Sandusky trial coming to a close and what to expect.

Commercial Speech in Sports Advertising

One of the most important revenue streams in the sports industry is from advertising. The concept is simple -- an advertisement is created and placed, generally in exchange for a fee. But commercial speech rules and restrictions can influence what goes into an advertisement, whether an advertisement can be placed at all, and what the potential liability is for the advertiser.

Two recent cases demonstrate the impact of commercial speech in sports.

The first involves Michael Jordan and the Jewel-Osco grocery store chain, which was asked to place an advertisement in a special issue of Sports Illustrated honoring Jordan. The ad contained a Jewel-Osco logo and congratulated Jordan from a "fellow Chicagoan." Jordan sued, claiming that the ad explored his name and likeness for commercial gain without his permission. The court, however, found that the ad was in fact not an ad because it did not promote Jewel products or services. The "ad" therefore was not commercial speech and thus entitled to the full protections of the First Amendment. Jewel was thus not liable to Jordan, but it took a litigation to confirm its rights.

The second case involves the Family Smoking Prevention and Tobacco Control Act, passed in 2009. The statute bars tobacco manufacturers from promoting their brands through sponsorship of athletic, social and cultural events in the brand name of a tobacco product. On March 2012, the Sixth Circuit Court of Appeals upheld the sports sponsorship ban, finding that the statute directly advanced the Government's interest in reducing tobacco use by youth.

Advertising is simple, but, as these cases demonstrate, advertisers need to consider the possible impact of commercial speech principles while planning some advertising campaigns.

Via Ferrata trip

Tomorrow I am off to the Italian Dolomites with friends for via ferrata fun. Hope to do the Eterna Brigata below. Info.

Roger Clemens: Not Guilty

Here's my column for SI.com on the verdict. Should he even have been prosecuted?

Interesting day on "Evil and Suffering"

Please note that ALL are welcome to attend this event (at which I am also speaking - see below).

University of London International Programmes in Theology

Day Conference: Evil and Suffering

Friday 14th September 2012
Heythrop College, University of London

10.30-11.00 Registration
11.00-11.05 Welcome
11.05-12.00 Lecture: ‘Title TBC’, Mr Ahmad Achtar
12.00- 12.15 Tea & Coffee Break
12.15-13.15 Lecture: ‘Cosmic Joy and Local Pain: Evil and Suffering in the Hebrew Bible and the Book of Job’, Dr Ann Jeffers
13.15-14.00 Lunch
14.00-15.00 Lecture: ‘The Evil God Challenge’, Dr Stephen Law
15.00-15.30 Tea & Coffee Break
15.30-16.30 Split Session: Study Skills/Q&A for current students
Information/Q&A for prospective students
16.30 Close

For details go here.

WEAI Conference - Sports Economics on Trial

The 87th Annual WEAI conference takes place June 29 to July 3 in San Francisco. There are 21 sports-related sessions with over 70 individual papers being presented. Two sports law-related panels are also included. The complete program can be found here. I will be moderating a panel entitled "Sports Economics on Trial." The panelists and abstract can be found below.

SportsEconomics on Trial

Ryan Rodenberg (moderator)

FloridaState University

Dennis Coates (panelist)

Universityof Maryland, Baltimore County

John Solow (panelist)

Universityof Iowa

Jeffrey Standen (panelist)

WillametteUniversity College of Law

Jonathan Walker (panelist)

EconomistsInternational

ABSTRACT

The sports industry has firmly embraced the use of economic analysis in various decision-making processes. Such methods have similarly been adopted in the sports law field. Moderator Rodenberg will open with a discussion of Federal Rule of Evidence 702 and an anecdotal story about the expert testimony offered in Kentucky Speedway v. NASCAR, a prominent antitrust case. Individual panelists will then move todiscuss how sports economics is used in the courtroom. First, panelist Coates will explain how expert testimony shaped the Seattle Sonics economic impact lawsuit and provide an overview of the amicus brief filed by economists in support of petitioner in the American Needle v. NFL case when it was before the U.S. Supreme Court in 2010. Second,panelist Standen will discuss the American Needle arguments outlined in an amicus brief filed by economists in support of the respondent. More generally, Standen will posit on expert testimony that has been persuasive in sports litigation and what attorneys look for when retaining economists as expert witnesses. Third, panelist Walker will generally outline how the law and economics movement has impacted antitrust cases affecting the sports industry. More specifically, Walker will discuss his role as an expert in several high-profile sports lawsuits, including the recently-resolved Deutscher Tennis Bundv. ATP World Tour case. Fourth, panelist Solow will discuss Daubert v. Merrill Dow,the seminal U.S. Supreme Court opinion pertaining to the admissibility of expert testimony, with a particular emphasis on antitrust litigation. Each panelist will conclude by opining on how the American Needle v. NFL case will likely be resolved if it goes to trial in 2012 or2013.

Talking about bullshit...

Here's me talking about bullshit on Radio 1 New Zealand a while ago.... here. I was a bit dopey on this one. Too many ums.

Good thinking piece

Here's a good piece on critical thinking: here.

All politics is local, some of it is microscopic

Primary voters in North Dakota yesterday voted in favor of legislation that will allow the state Board of Education to retire the controversial Fighting Sioux nickname of the University of North Dakota.
The NCAA has been pressing UND to get rid of its logo and nickname for several years because it deems it offensive to American Indians; schools that continue to use offensive nicknames are barred from hosting NCAA tournament events and cannot use the name and logo in NCAA tournament play.

The state was unable to get approval for continued use of the name from the two area nations, Standing Rock and Spirit Lake Sioux; the latter passed a resolution supporting the nickname but the latter never held a vote. In 2011, the North Dakota legislature passed a law requiring the school to continue using the nickname, but that law was repealed in a special session. A group supporting the nickname then gathered the signatures necessary to challenge the repeal law on the ballot. This now sends the matter back to the Board of Ed., which is expected to change the name.

That is, unless nickname supporters succeed in making the Fighting Sioux nickname a constitutional requirement. Yep, the next move, which supporters say they are going to pursue, is a popular constitutional amendment to amend the state's structural charter to require a university to use a particular nickname and logo. Needless to say, I don't expect to see this particular proposla in Slate's discussion of How to Fix the Constitution. I do not have skin in this nickname dispute; I do not believe that using Indian tribe names and titles (as opposed to, for example, "Redskins")  is inherently offensive and perhaps the NCAA is overreacting (shocking, I know). But this cannot be the sort of even symbolic issue that has any place in a state constitution.

One other touch to this report, also reflective of every political dispute: Sean Johnson, spokesman for the group supporting the ballot measure, pointed out that they were outspent by the other side. It is now virtually guaranteed that the loser in any election, particularly on issue refenda and initiatives, will point out how badly it was outspent. This has become the electoral equivalent of calling the judge in a case "activist": If I lose, it must be because someone (the judge, the other side) did something wrong or untoward.

Boxing and the definition of sport

For those of us who like to debate the Platonic ideal of what is sport, boxing creates the second biggest conundrum after golf (which everyone seems to want to define out). Last weekend's fight between Manny Pacquiao and Tim Bradley, in which Bradley won a split decision that has been universally derided as wrong to the point of being corrupt (the promoter of the fight has called on the Nevada Attorney General to investigate), brings the issue back up.

One of the four elements to my preferred definition of sport is objective scoring. This means points are awarded and winners determined based on objective criteria, rather than through "judging," which involves inherently subjective and usually undefined (and undefinable) criteria such as "artistic merit" or "whichever fighter you would not have wanted to be in a given round" (an oft-accepted standard for judging in boxing). One way to distinguish this is to ask whether the judge could explain his conclusion in a way likely to convince anyone who watched the fight and initially reached a different conclusion.

So what of boxing? Fights obviously can and often do end by knockout, the ultimate objective determination. But, as here, they often end on a decision by judges who exercise completely unchecked decision applying a standard that, quite literally, has no determinative criteria beyond "which guy won?". This contrasts with amateur boxing, in which judges look to who landed the most punches, an objective standard (although of course subject to manipulation and error). We could tweak the definition to include boxing by defining this element as "objective scoring, or at least the possibility of determining a winner by something other than subjective judging." So the possibility that a fight could be decided objectively is enough, even if some fights are decided via subjective judging. But it is hard to call something a sport (as opposed to a contest or competition or exhibition) after a fight like this one, in which you have the feeling that things were decided by people who were just making things up, but you could not, in fact, explain why.

Athletes as Owners

Over the last few weeks a number of high-profile athletes have announced their involvement with a bid for a sports franchise or their own apparel line: Phil Mickelson announced that he has joined a group bidding to purchase the San Diego Padres and Caroline Wozniacki announced her own underwear line in conjunction with a Danish company. On the other end of the athlete-ownership spectrum is Terrell Owens, whose contract and ownership stake with an Arena Football League team were recently terminated, reportedly as a result of his failure to attend certain team promotional events. There is nothing new about athletes having their own clothing line, or brand, or having an equity position in a venture but these developments with high-profile athletes highlight important issues.

First, it is increasingly common for athletes to not just simply be product endorsers for a fee but to obtain an equity position in the entity producing the product. Tom Brady (Under Armour) and David Wright (Vitamin Water) are additional examples of athletes taking equity in the company whose product they endorse. For the athlete, there is an advantage of having the potential to earn far greater financial rewards if the product becomes a financial success than through an endorsement fee. For the company, the advantage lies in tying the athlete to the company for the long-term and possibly paying the athlete less in cash by giving an equity position. This kind of deal can thus be particularly attractive for a new company with potential but not a lot of cash yet or a company that wants to make a splash through a celebrity association.

Second, giving an athlete an equity stake makes morals clauses, or a variant thereof, an important negotiating issue. The concept behind athlete endorsements is at least in part that their association with a product or brand will increase its visibility and financial success. If the athlete/owner subsequently is embroiled in scandal, the rationale for using him or her as an endorser may be reduced, if not eliminated, but what appends to their equity ownership? Is it retained? Forfeited? Subject to repurchase by the company at its option pursuant to a set price or formula?

A few years ago a client I was working with, a small company that sought to make a splash, considered giving equity ownership to a professional athlete. The deal ultimately didn't happen, fortunately, because just a few months later the athlete engaged in improper conduct and his marketing value had significantly diminished. The ramifications to the company for being tied to an athlete who had fallen into disrepute would have been severe. There is no doubt that athlete equity in their ventures will increase.

In order to protect the company providing the equity stake, care must be given to associating with an athlete who is unlikely to end up in a scandal. Drafting the endorsement/equity participation agreement should also be done so that the company is protected in the event the athlete falls into disrepute.

Musburger and the 1968 Olympics

Dave Zirin has a column at The Nation calling on Brent Musburger to apologize for the column he wrote for the Chicago American criticizing Tommie Smith and John Carlos after their protest at the 1968 Olympics. (H/T: Deadspin. Zirin reprints Musburger's column, which he uncovered after some digging, in full).

In the column, Musburger referred to them as "a pair of black-skinned stormtroopers" and their protest as "juvenile," "ignoble," and "unimaginative." He also belittled their efforts to explain their protest, saying, more-than-somewhat condescendingly, that "[p]erhaps it’s time 20-year-old athletes quit passing themselves off as social philosophers.” In a 1999 documentary on the '68 games, Musburger acknowledged that his words were "a bit harsh," but questioned the value of the protest. He is quoted as saying: "Did it improve anything?' . . . Smith and Carlos aside, I object to using the Olympic awards stand to make a political statement.''

A couple of thoughts.

First, I'm not sure of the answer to Zirin's basic point about an apology. Most of the mainstream (read: white) sports media were critical of Smith and Carlos. In fact, sports reporters were harshly critical of all the athletes in the late '60s and early '70s who were speaking out on social issues, especially race, seeking greater freedom, greater negotiating power, etc. Muhammad Ali was not a beloved media figure around this time. While Musburger's rhetoric is particularly harsh (especially the "stormtrooper" thing), he was writing what most everyone else was writing and saying, especially in its condescending tone. So if we demand an apology from Musburger, do we demand apologies from the other commentators and the publications for which they wrote, about Smith and Carlos or about any of the other politically active athletes of the day.

Second, I do agree with Zirin (and Barry Patchesky at Deadspin) that Musburger still did not get it in 1999. Look again at his quotation. He asked if the protest improved anything? Perhaps not, if we look at it alone and immediately. But Musburger must have been smart enough to know that one single act does not immediately change or improve everything and it is absurd for him to expect differently. But every act of expression and protest builds towards improvement. Next he said he objects to using the Olympic awards stand to make a political statement. This is fundamentally silly. It is impossible not to understand the political nature of the Olympics, including the medal awards. Why does he think we play the national anthem?

Preview of Jerry Sandusky Trial

I have a preview of Commonwealth of Pennsylvania v. Jerry Sandusky for SI.com. Here's an excerpt:

Amendola's defense will center on (1) undermining the government's case as undeveloped and as riddled with exaggeration and fiction; and (2) portraying Sandusky as a caring and generous mentor to children who were ignored by everyone else.

To advance these strategies, Amendola will aggressively challenge the eight men who say Sandusky abused them. On cross-examination, Amendola will question their motives for coming forward years after the alleged abuse occurred. He will also challenge them as to why none of the victims apparently kept any physical evidence that implicates Sandusky. Amendola will probably try to uncover if any of the accusers plan to seek financial compensation for telling their accounts, such as to book publishers or film rights. While Amendola has to avoid seeming like a bully, he has a professional obligation to challenge those who have accused his client. That is true even if it means Amendola raises awkward, personal questions about interactions between Sandusky and his accusers.

Keep in mind, even if seven of the eight accusers are telling the truth, the jury's confidence in the government's case could collapse if Amendola shows that one of the accusers is lying. Therein lies one drawback to the government using numerous accusers: All it takes is one false accuser to prevent the honest accusers from obtaining justice.

To read the rest, click here.

Philosophy graduates are pretty darn smart

Many thanks to ShahHusseinKCL for this chart. Controversial obviously, but look where philosophy is placed. This chart draws on diagrams that I previously posted here.

Punishing Lessons

What the Boxing World at LargeCan Learn from the Paralyzing of Paul (The Punisher) Williams

ThisMemorial Day weekend, the boxing world saw two of its great warriors go downfollowing decorated and distinguished careers in unarmed combat. First, troubled five-time world championJohnny (Mi Vida Loca) Tapia was found dead in his home in Albuquerque, NewMexico. Then, former two-timewelterweight champion Paul (The Punisher) Williams, who recently signed for tofight Mexican sensation Saul (Canelo) Alvarez for the WBC Light MiddleweightTitle, was reportedly paralyzed from the waist down following a motorcycleaccident en route to one of hisbrother’s weddings in Atlanta. Williamssurvived, but was already advised that he will likely never walk, and thus box,ever again. Relatively speaking, Tapiawas not as lucky. While Tapia’s story isone that was unique to his tortured life, one marked by the murder of hismother when he was eight-years-old, drug problems, and the death of his brother-in-lawand nephew while they were on their way to visit him in the hospital followinga 2007 cocaine overdose, there are several lessons that can be learned fromWilliams’ plight, including what steps those handling the careers ofprofessional athletes can take to try to avoid such sad endings to theircharges’ careers. I initially addressed those lessons back on October 13, 2010 shortly after then-unifiedbantamweight champion Fernando (Cochulito) Montiel suffered an injury to hisright leg when a dirt bike on which he was a passenger crashed in Alamos,Mexico. To avoid redundancy, butreiterate those lessons in wake of Williams’ accident, I direct you back to“The Lesson to Learn from the Montiel Ordeal,” which available at: http://www.8countnews.com/news/125/ARTICLE/2970/2010-10-13.html. With that, I thank Tapia for many greatboxing memories and pray that he finally finds peace going forward and wish a speedyrecovery to The Punisher, who was perhaps the most physically unique top-leveltalent in the sport today.