Wednesday, 31 October 2012

It's Official: McCann is a "Top NBA Mind"

Finally, sports lawyers are getting their due. A few months ago I declared 2012 the "Summer of Sports Law."  With no end to the NHL lockout in sight, the O'Bannon v NCAA case growing steam and national attention, and the power of Roger Goodell being litigated on a daily basis, the demand for insight from sports lawyers is growing—although for some reason our pay isn’t.

Anyways, The Sporting Charts ( just posted a list of the Top 50 NBA Minds to Follow on Twitter here.  Not surprisingly, our own Michael McCann (@McCannSportsLaw) was listed.  Join me in congratulating Mike on continuing to help grow this important field—and if you don’t follow him on Twitter, consider this your wake-up-call.

[Of course since my account (shameless plug @WarrenKZola) was noticeably absent I’m sure there some sort of accounting error for which I'll definitely sue.]  Seriously...congrats Mike!

Two Updates on the Sports Gambling Front

The past several weeks have saw a number of developments on the sports gambling front.  First, the federal lawsuit filed by the NCAA and the four major North American team sports leagues (NBA, NFL, MLB, and NHL) challenging New Jersey's move towards regulated sports betting continues to move forward.  The most recent news involves depositions being scheduled for the league commissioners and the NCAA president.  For more background on the legal and corruption aspects of sports gambling, here is a link to a paper Tassos Kaburakis and I co-authored that was recently accepted for publication in the Journal of Legal Aspect of Sport.  Also, for a comprehensive history of gambling-related federal legislation since 2000, we wrote a piece that was just published in Gambling Law Review and Economics.

Second, authorities in New York and Nevada (working in concert with the FBI, it appears) made a number of arrests earlier this week in connection with an 18 month illegal sports gambling investigation.  The DA's press release alludes to several offshore sports books.  A recent Las Vegas Review-Journal article provides more detail on the sting operation.  For a copy of the full 259 page indictment, click here.

Tuesday, 30 October 2012

Public talk in Ghent, Belgium on Wednesday

"Does God exist?" - professor Stephen Law (Heythrop College University of London)

alle activiteiten
Wat Lezing
Wanneer 31-10-2012
van 20:00 tot 23:00
Waar Zebrastraat 32, 9000 Gent
Organisator Vakgroep Wijsbegeerte & Moraalwetenschap & Onderzoeksgroep The Moral Brain
Contact of  
Dr. Stephen Law presents a novel challenge to belief in an all-powerful, all-good God. Law's "Evil God challenge" has been discussed widely on the internet, and featured in a high profile debate with Christian apologist William Lane Craig. It offers a novel and entertaining way of bringing out the irrationality of this traditional brand of theism. If you believe in an all-powerful, all-good God, dare you take the "Evil god challenge"?

Stephen Law is Senior Lecturer in Philosophy at Heythrop College University of London, editor of the Royal Institute of Philosophy journal THINK, and author of several best-selling introductions of philosophy, including The Philosophy Gym and Believing Bullshit. His latest book is the children's primer on science, philosophy and skepticism Really, Really Big Questions About Me and my Body. Gratis inkom, iedereen welkom.

Monday, 29 October 2012

Video of Yale Law School Hot Topics in Sports Law Panel

I moderated the Yale Law School panel last week on hot topics in sports law - a video of the panel is available online. Jimmy Golen was one of the distinguished panelists, as were Craig Masback (Nike), Charles Mechem (LPGA), and Nell DeVane (ESPN). We covered a wide-range of topics, including the legality of age limits in sports, viewing college sports as minor leagues, Ed O'Bannon v. NCAA (and the paying of college athletes), whether the NCAA should have punished Penn State, Title IX, morals clauses (including with Lance Armstrong) etc.  Harvard Law School Professor Alan Dershowitz, in the audience, had several insightful comments about Penn State and the NCAA. Here's the video -- and thanks to Warren Zola for finding and sharing it:
In the Legal Zone: Hot Topics in Sports Law from Yale Law School on Vimeo.

Symposium: The Impact of Concussion Lawsuits on the Future of Football

The Mississippi Sports Law Review at the University of Mississippi School of Law is hosting an incredibly timely symposium entitled "The Impact of Concussion Lawsuits on the Future of Football."  I am honored to be participating in this symposium which will be held Friday, November 9, 2012, at the Robert C. Khayat Law Center at 1:30 p.m., room 1078 (free and open to the public).

From the symposium website: "Once thought to be a badge of honor that doctors could quickly 'cure' with a sniff of smelling salt, concussions have now become the subject of litigation that could threaten the future of football and other contact sports. Recent medical studies consistently show serious long-term effects for athletes who have had multiple concussions, including serious brain trauma and reduction in life expectancy. Where re-entering the game after a concussion, or even the week after a concussion, used to be common practice, there is an increasing burden on team physicians and the athletes themselves to consider the implications of going back onto the field. In light of this research, the four major American sports leagues have implemented concussion policies and procedures, but many question if these policies alone are sufficient to protect the athletes from permanent injuries."

Sunday, 28 October 2012

Rock climbing yesterday

Went rock climbing in Cornwall and took this short video clip yesterday afternoon, looking down Flannel Avenue, on Chair Ladder cliffs, very close to Land's End. Tom Pilling climbing upper section and abseiling down to start of route in the photos below.

Saturday, 27 October 2012

Broadcast Rights, Unjust Enrichment, and the Student-Athlete

At the professional league level there is a long history of disputes and court challenges over property rights in the live game broadcasts.  However, the interest of the NCAA, conferences and universities in live game broadcasts from a property rights perspective has never been challenged in court.  Who owns the copyright to the broadcast of the live game?   What is the origin of the legal right of the NCAA, conferences and universities to the billions in revenue generated by their licensing of the right to broadcast the live games?   Assuming the NCAA, conferences and universities do in fact have some sort of property right or other legal right to sell these rights to networks, should they be recognized as the exclusive rights holder?  Do college players also have some sort of property right or other legal right to a portion of the licensing revenue based upon their substantial contribution to the broadcast of the game?  Afterall, the players are the sine qua non of the broadcast because it obviously does not exist, and it would not generate billions in revenue, without their contribution and year-long preparation. 

My article published this fall in Cardozo Law Review traces the historical development of broadcast rights in the professional sports leagues.  In essence, the courts have held that professional clubs have a quasi-property interest in the right to license the broadcast rights to the networks.  The network is the author of the broadcast and assigns to the league its ownership in the copyright to the broadcast pursuant to a provision in the broadcast licensing agreement.  And college sport has followed on the coattails of the professional sports league model.  Basically, the network pays the NCAA, conferences and universities billions of dollars to let their camera crew enter the stadium door and capture the game being played.  Yet nobody has challenged this exclusive putative quasi-property right of the NCAA, conferences and universities.

There are legitimate reasons to recognize an exclusive right for the professional clubs that arguably do not apply to tax-exempt public universities.  While difficult to explain in any detail in a blog post, a couple distinctions are worth mentioning briefly.  For example, professional clubs are for-profit entities with individual owners who put substantial private investment at risk through their purchase and operation of a team.  Also, professional players are employees of the clubs, which is legally significant in evaluating the property right because the Seventh Circuit in Baltimore Orioles v. MLBPA held that the players' claim to a portion of the licensing revenue was precluded on the basis of copyright law's "works for hire" doctrine  and the players can negotiate with the clubs over the value of their individual contributions to the broadcast.  College players, on the other hand, cannot be subject to the works for hire doctrine simply because, well, college sport has consistently maintained the position that the players are not employees or independent contractors who can be hired.  Viewed within the construct of common law unjust enrichment which is premised on the idea of distributive justice, my article argues that universities obtain an unjust benefit at the players' expense by retaining exclusively for themselves the portion of the increasing rights fees that would normally and equitably be paid to the players for their substantial contribution to the value in the live game broadcast.  My article also addresses whether copyright law preempts an unjust enrichment claim in this context and I explain why I do not believe that it would.

In the O'Bannon litigation, the class did not assert a claim to live broadcast licensing revenue in its complaint.  Just last month, however, the class filed a motion seeking to revise the class definition to include live game broadcast licensing revenue.   If the court ends up denying their request, I nevertheless expect to ultimately see this case coming soon to a theatre near you....

Thursday, 25 October 2012

San Francisco Bay, America's Cup Venue

One of the more striking scenes from the world of sports this week was the pitchpoling of the Oracle America's Cup yacht in San Francisco Bay during reported 25 knot winds.  Seeing this video of the capsizing was a reminder of how important the venue of a sporting event is, including venues for sports other than the major four sports, and how the attorney working with a sporting event must consider the challenges of the venue in preparing contracts for the event.

For an America's Cup regatta, one of the challenges posed by the venue is spectator proximity to the action and safety.  Unlike previous America's Cup regattas held far offshore where few spectator boats might venture, this America's Cup will be held close to shore where there will be many spectator boats.  They likely won't be high-performance racing boats like an America's Cup yacht, but they will be close to the action, on the water, and close to each other, possibly in high winds or rough seas.  Spectator safety risks must clearly be assessed, with the goal of keeping these fans safe during the event while allowing them to enjoy the action.  The America's Cup organizing authority's contracts with the relevant authorities have to address safety issues so that liability is minimized -- where can spectator boats be positioned during a race, how will safety be monitored, how many boats will be allowed in an area, what spectator boat credentials or registration will be required, what liability waivers will be obtained.  By accounting for these issues in contracts, the excitement of America's Cup racing can remain the focus during the event.

Wednesday, 24 October 2012

Heythrop College Open Day Wed 31st Oct

Event Details
To book your place at this event at my own college, or find out more, go here.

12.00 -15.30pm.

You'll be able to see the facilities on offer and speak to staff and students to find out more about studying and student life.

Please view our Open Day programme (.pdf) and book your place.

You'll be able to see the facilities on offer and speak to staff and students to find out more about studying and student life.

If you have any queries about undergraduate open days or foundation degree open evenings please contact us at or by telephoning 020 7795 4124

Tuesday, 23 October 2012

RIP Russell Means

Activist, actor, musician, agitator, politician and former American Indian Movement (AIM) leader Russell Means passed today from esophageal cancer, at the age of 72.  He died at his ranch located on the Pine Ridge Indian Reservation in South Dakota,  the place where he was born in 1939.  Means was a fierce advocate of American Indian rights and led dozens of protests and uprisings throughout his life ranging from seizing the Mayflower II in Plymouth, Mass on Thanksgiving day in 1970 (protesting discriminatory treatment of American Indians), to orchestrating a 1971 prayer vigil atop the Mount Rushmore monument in South Dakota (dramatizing Lakota claims to the Black Hills), to organizing cross-country caravans in 1972 to Washington, D.C. (protesting a century of broken treaties by the U.S. government), to leading a boycott of Cleveland Indian games in the 1990s (protesting the use of Chief Wahoo as a racist, caricatured mascot/logo).

Russell Means' method of protest was often controversial and violent.  He was arrested many times, served time, shot several times, and criticized as an "opportunist" by critics.  According to the New York Times: "Strapping, and ruggedly handsome in buckskins, with a scarred face, piercing dark eyes and raven braids that dangled to the waist, Mr. Means was, by his own account, a magnet for trouble — addicted to drugs and alcohol in his early years and later arrested repeatedly in violent clashes with rivals and the law. He was tried for abetting a murder, shot several times, stabbed once and imprisoned for a year for rioting. He styled himself a throwback to ancestors who resisted the westward expansion of the American frontier. With theatrical protests that brought national attention to poverty and discrimination suffered by his people, he became arguably the nation’s best-known Indian since Sitting Bull and Crazy Horse."

In protesting Chief Wahoo as mascot and logo of the Cleveland Indians, Russell Means referred to its continuing use as "unconscionable."  He was outspoken throughout his life challenging professional sports franchises and collegiate athletic programs use of American Indian mascots and mimicry of sacred native culture and tradition.  When asked about Florida State's mascot Chief Osceola, Means responded that "we’re the only entire ethnicity in America that is still stereotyped."  In describing American Indians as the only minority group in the United States that is still stereotyped, Means focused in on an interesting phenomenon that has been written about by scholars and debated in symposia:  Why when it would be unthinkable to call a sports team by a racially charged nickname in connection with African American, Latino or Asian citizens, is it still somehow tolerated to refer to teams as "Redskins," "Indians," "Braves," "Blackhawks," "Utes," and "Seminoles"?

Russell Means is most recognized for two well known portrayals, though very divergent:  First, he led a 1973 occupation of Wounded Knee, South Dakota, the site of the 1890 massacre of more than 350 Lakota men, women and children, often referred to as the last major conflict of the American Indian wars, where protestors demanded strict adherence by the federal government to all Indian treaties.  Second, he starred as Chingachgook in Michael Mann's 1992 epic "The Last of the Mohicans" alongside Daniel Day-Lewis and Madeleine Stowe.  Means received critical attention for his portrayal of the fiery, brave father/leader of the Mohican people.

Russell Means used his notoriety to advocate on behalf of equality on behalf of American Indians until his untimely death.

Outsourcing NCAA enforcement

An excellent and thoughtful essay in The Atlantic from my friend and law school classmate Stephen Miller, arguing that the NCAA should charge an outside body with conducting major investigations and punishments. Steve is a former Scalia clerk and AUSA; his practice now includes representing athletes in NCAA proceedings. He also is a lifelong Kentucky fan, so he is personally familiar with the vagaries of NCAA enforcement.

This is an interesting take, especially if we begin from the premise that the NCAA is here to stay, that there is good reason to regulate intercollegiate athletics and the conduct of student-athletes (in terms of amateurism, academics, etc.), and that self-regulation, given the structure of college sports, is unworkable.

I am tutor for admission BA Philosophy at Heythrop (repeat post)

I happen to be tutor for admission for the BA in philosophy at Heythrop College University of London. If you want to find about more about our BA programme, or an evening MA in philosophy, get in touch (email address is in the header to this page). Obviously with the new fees system, all colleges are focusing on recruitiment, and so are we of course. Obviously we're not as well known as some other colleges. But we are quite exceptional.

So here are a few facts about Heythrop you might be interested in, if you're thinking about pursuing a degree in Philosophy or Theology.

(1) Heythrop is the University of London college that specializes in just Philosophy and Theology. It's all we do.

(2) Heythrop students achieve remarkably good results, despite our comparatively modest entry requirements. We have outperformed other better known colleges in terms of number of first class hons degrees achieved, for example

(3) This is because, astonishingly, Heythrop runs a one-to-one tutorial system. Students receive individual one-to-one tutorials on all their second and third year essays. This is unheard of outside of Oxbridge, of course, and is one of the main reasons are students are so academically successful.

(4) Heythrop is the oldest college of the University of London, being founded by the Jesuits in 1614, though one of the most recent member colleges of the University). However, despite its religious foundation, it is highly diverse in its membership (I'm there, for goodness sake. And I'm made to feel very welcome too.) The philosophy students are no more "religious" than at other London colleges, and the staff have all sorts of views on the subject. There's no religious agenda whatsoever in the philosophy teaching on the BA Philosophy. We just ask that you think and question with an open mind.

(5) Heythrop is small, friendly, and located in beautiful, leafy Kensington Square, very close to Kensington High Street tube station.

(6) Heythrop has some excellent philosophy research going on. Tom Crowther is doing cutting edge work in the Philosophy of Perception, for example (recent paper in Philosophical Review). But our greatest strength is in Philosophy of Religion. We have Professors Keith Ward and John Cottingham working in this area as part of Heythrop's Centre for The Philosophy of Religion. And of course I am regularly publishing in philosophy of religion too (and other areas).

Here's a recent letter of mine published in the Independent:

Dominic Lawson ("A Private Sector Oxbridge? Not Exactly" 7th June) rightly celebrates the one-to-one tutorial system, offered by Oxford and Cambridge, which he describes as "the single most valuable aspect of their educational offering". But Lawson is wrong to say the system is only offered by Oxford and Cambridge. It is also offered by Heythrop College, University of London for undergraduate degrees in philosophy and theology.

If you want to know more, get in touch with me directly. Our website is here. Open days and student conferences available (I run the A Level Philosophy and Philosophy of Religion Conferences - free entry, with speakers like Nigel Warburton, John Cottingham and Keith Ward).

Stephen Law
Senior Lecturer in Philosophy and Tutor for Admissions BA Hons Philosophy, Heythrop College, University of London.

Friday, 19 October 2012

Event (arranged by myself) tomorrow with Chris French, Andy Lewis, etc. - see some of you there I hope

CFI UK and Conway Hall present


Chris French, Andy Lewis, Mike Heap, Serena Roney-Dougal

Do some people have the power to heal others by psychic means? Would medicine benefit by being more aware of our “spiritual” dimension? Where do psychic and spiritual approaches to medicine end and quackery begin? Does hypnosis work, and if so, how? Does meditation offer real benefits – and if so, what are they?

Saturday, 20th October 2012

Conway Hall
25 Red Lion Square
London WC1R 4RL

11am-4pm (10.30am registration)

£10 (£5 students concessions). Free entry for Friends of CFI UK.

Tickets from the BHA website now or on the door.


11am-12.00 Chris French (Professor of Anomolistic Psychology at Goldsmiths) on psychic healing

12.00-1pm Serena Roney-Dougal(parapsychologist and Director of the Psi Research Centre) "Is long-term meditation related to psychic awareness?"

2-3pm Michael Heap (Clinical and forensic psychologist working in Sheffield who has published widely on hypnosis in scientific journals and books and has taught and lectured on the subject throughout Europe and North America.) ‘Hypnosis: Suggestion or Trance?’ 

3-4pm Andy Lewis (Quackometer) on “Anthroposophy and Spiritual Science”.

Introduced by Stephen Law(Provost of CFI UK)


Thursday, 18 October 2012

O'Bannon v. NCAA: Where things stand

I have an article in the October 15th issue of Sports Illustrated that provides a legal analysis of recent developments in the Ed O'Bannon v. NCAA & Electronic Arts class action. 

Here's an excerpt:

* * *

Second, potentially damaging e-mails involving two other defendants—Collegiate Licensing Company (the NCAA's licensing partner) and Electronic Arts—have emerged. These e-mails portray CLC officials as worried about the legal impact of Electronic Arts's developing video-game characters using real college players' names and then removing those names before retail.

 * * *

Hope you can check it out on page 19 or through this SI Vault link.

Yale Law School Alumni Weekend: Panels on Sports and Entertainment law

I'm thrilled to be part of this weekend's Yale Law School Alumni Weekend, which is centered on sports and entertainment law this year.  If you're in the New Haven area, you might consider registering for it and seeing what should be excellent panels and other events.

Saturday, October 20

9:30 – 10:45 AM
Panel Discussions (two concurrent sessions)

PANEL I. Streaming and Beaming:  Entertainment Where and When You Want It
Bryan Choi, Thomson Reuters Fellow, and Director of the Law and Media Program, Information Society Project, Yale Law School
Emily Bazelon '00, Journalist, Slate, and Senior Research Scholar, and Capote Fellow, Yale Law School
Richard Cotton '69, Executive Vice President and General Counsel, NBC Universal
Alfred C. Perry '87, Vice President, Worldwide Content Protection & Outreach, Paramount Pictures Corporation
Kenneth P. Stern '88, Co-founder and President, Palisades Media Ventures, and former CEO, National Public Radio
PANEL II. Many Voices, Many Eyes: The Promises and Pitfalls of Social Networks
Margot E. Kaminski '10, Research Scholar in Law, Executive Director of the Information Society Project, and Lecturer in Law, Yale Law School
Lori B. Andrews '78, Distinguished Professor of Law and Director of the Institute for Science, Law and Technology, Illinois Institute of Technology, Chicago-Kent College of Law
James Grimmelmann '05, Professor of Law, New York Law School
Beth Simone Noveck '97, Visiting Professor, NYU Robert F. Wagner Graduate School of Public Service and MIT Media Lab, and Professor of Law, New York Law School
Madhavi Sunder, Professor of Law, University of California, Davis
11:15 AM – 12:30 PM
Panel Discussions (two concurrent sessions)

PANEL III.  Yours, Mine and Ours: Ownership of Cultural Capital
Susan M. Scafidi '93, Professor & President, Fashion Law Institute, Fordham Law
Barton Beebe '00, Professor of Law, New York University School of Law
David Boies II '66, Chairman, Boies, Schiller & Flexner LLP
Kristelia A. Garcia '03, Frank H. Marks Intellectual Property Fellow & Visiting Associate Professor, The George Washington University Law School, Washington, DC
Marc Porter '87, Chairman, Christie’s Americas and International Head, Christie’s Private Sales
PANEL IV.  In the Legal Zone: Hot Topics in Sports Law
Michael McCann, Director, Sports Law Institute, and Professor of Law, Vermont Law School
Eleanor (Nell) DeVane '93,  Vice President and Associate General Counsel, ESPN
Jimmy Golen '99 M.S.L., Sports Writer, The Associated Press
Craig A. Masback '92, Senior Sports Marketing Director, Greater China, Japan & Global Business Affairs, Nike; and former CEO, USA Track & Field (1997-2008)
Charles S. Mechem, Jr. '55, Commissioner Emeritus, Ladies Professional Golf Association; and Chairman and CEO, Taft Broadcasting Company
12:45 PM

All Alumni Luncheon
University Commons (Enter either on the corner of College and Grove Streets or from
Beinecke Plaza off Wall Street)

Opening Remarks:
John R. Firestone '85, President, Yale Law School Association Executive Committee, and Partner, Pavia & Harcourt LLP
Robert C. Post '77, Dean and Sol & Lillian Goldman Professor of Law, Yale Law School

Presentation of the Yale Law School Association Award of Merit to:
David Boies II '66, Chairman, Boies, Schiller & Flexner LLP
Presented by: Dean Robert C. Post '77

The Honorable Louis H. Pollak '48 (1922-2012), Judge, U.S. District Court for the Eastern District of Pennsylvania (1978-2012); and dean, Yale Law School (1965-70) and University of Pennsylvania Law School (1975-78).  
Nicholas deB. Katzenbach '47 (1922-2012), Associate Professor, Yale Law School (1952-56); U.S. Attorney General (1965-66), and Senior Vice President and General Counsel, IBM (1968-86).
80th Birthday Celebration:
The Honorable Guido Calabresi '58, Judge, U.S. Court of Appeals for the Second Circuit, and Sterling Professor Emeritus of Law and Professorial Lecturer in Law and dean (1985-94), Yale Law School

New York Law School Sports Law Symposium Friday Nov 2

I'm excited to be part of this year's New York Law School sports law symposium, which will be held on Friday November 2.  Great work by Brett Hirsch and others in putting it together.  They have followed in the excellent planning of sports law symposiums at NYLS previously shown by Elliot Solop, Alycia Powell and others.

Here are the details of this year's event (and if you are interested in attending, click here):

The New York Law School Sports Law Society and the Institute for Information Law and Policy


The Fourth Annual Sports Law Symposium
Friday, November 2, 2012
185 West Broadway
W201 (Events Center)

Fee:        $45 for attorneys (includes CLE’s)
            $45 for attorneys and professionals not seeking CLE credits (No CLE credit)
$15 for outside students
Free for current NYLS students (with a valid school ID)

This CLE program has been approved for a maximum of four hours of CLE credit for both transitional and non-transitional attorneys. New York Law School offers tuition assistance for attorneys who may have difficulty attending CLE events due to cost considerations. Please visit: to see if you qualify.  

Tentative SCHEDULE                                                                                                                                                               

11:30 a.m. - 11:45 a.m. 
Opening Remarks

11:45 a.m. - 12:30 p.m 
Keynote Interview with Mike Zarren  

12:45 p.m. - 1:45 p.m. 
Overview of Current Legal Developments in the Sports Industry  (1 CLE Credit - Professional Practice) 

2:00 p.m. - 3:00 p.m. 
Breakout Sessions
  • Intellectual Property Issues in Sports (W420)  (1 CLE Credit - Professional Practice)
  • Negotiating Rights Acquisitions (W320)  (1 CLE Credit - Professional Practice) 
  • Bankruptcy Issues in Sports (W220)  (1 CLE Credit - Professional Practice) 
3:10 p.m. - 4:10 p.m.
Analysis and Impact of the Concussion Litigation (1 CLE Credit - Professional Practice) 

4:20 p.m. - 5:20 p.m.
Sports Labor Negotiations (1 CLE Credit - Professional Practice) 

5:30 p.m. - 6:20 p.m. 
Breaking Into the Sports Industry 

6:30 p.m. - 8:00 p.m. 
Networking Reception 

 PANELISTS *                                                                                                                                                                              
Jodi Balsam, Associate Professor at NYLS; Former Counsel for Operations and Litigation at the NFL
Robert Boland, Professor of Sports Management & Sports Business at New York University 
Marc Edelman, Associate Professor of Law at Barry University: Dwayne O. Andreas School of Law 
Robert Erb '91, CEO at Schutt Sports; Adjunct Professor at New York Law School  
Frank Golding, YouTube Director, Head of Sports for North America at Google 
Russ Granik, Vice Chairman at Galatioto Sports Partners; Former Deputy Commissioner and COO at  the NBA 
Frank Hawkins, Partner at Scalar Media Partners; Former SVP Business Affairs at the NFL 
Darren Heitner, Founder of the Sports Agent Blog; Attorney at Wolf Law; Contributor at Forbes Magazine
Ronald Katz, Partner and Chair of the Sports Law Group at Manatt
Jeannine Kenney, Associate Counsel at Hausfeld LLC; Plantiff's Liason Counsel for NFL concussion litigation 
J. Carlos Kuri, Vice President and General Counsel at New York Red Bulls  
David Mayer, Principal Counsel at ESPN, Inc.
Michael McCann, Legal Analysts at SI & NBA TV; Professor & Director of Sports Law Institute at Vermont Law School;  
Lauren Dienes-Middlen, VP, Intellectual Property at World Wrestling Entertainment, Inc. 
Joe Nahra, Business & Legal Affair Executive at CAA Sports
Matthew Parlow, Associate Dean for Academic Affairs and Associate Professor of Law at Marquette University 
Irwin Raij, Partner and co-chair of the Sports Industry Team at Foley & Lardner LLP
Robert Raiola, CPA; Sports & Entertainment Group Manager at Fazio, Mannuzza, Roche, Tankel, LaPilusa, LLC
Frank Saviano, Associate at Proskauer 
Alan Schwarz, Reporter at New York Times
David Soskin '08, Counsel at ESPN, Inc.; Adjunct Professor at New York Law School  
Meredith Wolff, Associate Staff Attorney at NHL Enterprises, L.P.
Mike Zarren, Assistant General Manager and Team Counsel at Boston Celtics 
Warren Zola, Chair, Professional Sports Counseling Panel, & Asst. Dean, Grad. Management Programs at Boston College

Wednesday, 17 October 2012

Getting it wrong on Lance

When Lance Armstrong announced that he was no longer contesting the USADA proceedings, I likened him to Pete Rose and said here that he would be just fine, that he would continue to proclaim his innocence and to remind everyone that no body had ever found him to have doped or used PEDs. I even said so on a radio interview, in response to the suggestion that marketing people had proclaimed him finished as a spokesman, fundraiser, and endorser.

It looks like I got this one very wrong. Yesterday's announcement that Armstrong had been dropped by Nike (which proclaimed itself shocked, shocked that the man who dominated a sport in which everyone doped had been doping himself) and that Armstrong had resigned from his own Livestrong Foundation suggests that he is going to suffer some major fallout. This comes in the wake of USADA releasing the report from its investigation, which laid out in great detail the evidence against Armstrong. Clearly one major sponsor wants nothing to do with him. And clearly either he or other leaders at the foundation believe he would be a drag on fundraising and other charitable efforts.

Perhaps, as Michael Wilbon argued on PTI last night, this is purgatory rather than hell, that Armstrong has to go away for a year or two, then emerge, admit to doping, and ask for forgiveness. In our culture of second chances, Wilbon insists, all be forgiven and Armstrong will be back on the scene as a public figure. Of course, that is what everyone insisted they wanted from Pete Rose and when Rose finally admitted to gambling, he was just buried further. Come back in a couple of years and we'll see.

Myself talking with Peter Atkins, Richard Swinburne, Ard Louis (and Richard Dawkins)

Here is a fairly long video of a discussion between myself, Richard Swinburne (philosopher), Peter Atkins (chemist), Ard Louis (physicist), and also Richard Dawkins (who was in the audience) at one point. The theme was Life, The Universe and Everything - The Quest for Truth.

My main contribution is at 39 mins 30sec.

(nb. Dawkins is at 1hr 18 min 20 sec [he has a pop at Swinburne and me] and my response to Dawkins at 1hr 24 min 30 sec).

I posted on this before, shortly after the recording. Go here.

This included quite a good discussion on the nature and value of philosophy, I thought.

Tuesday, 16 October 2012

Today in sanctionable lawsuits

A New Orleans Saints fan named David Mancina has filed a putative class action against Roger Goodell and the NFL, alleging that Goodell and the league's suspension of Saints players entitles Mancina and other Saints fans to damages from (I am not making this up) "the diminishment in the value of their tickets; their personal emotional reaction to the unwarranted penalties inflicted on their beloved team, players, coaches, and executives; and the deliberate reduction of the competitive capability of the Saints due to the selective gutting of the critical components needed to justify the loyalty of Plaintiff and the class." And according to the complaint, he actually had counsel to do this.
The first, obvious response is they lack standing. But the defects in this go so far beyond that. This has to be sanctionable, and I am not someone who is big on sanctions. If one of my students turned this in in a drafting exercise, she would fail.

1) The Complaint does not identify any claim, that is any right or legal obligation to the plaintiffs that Goodell or the league breached on the facts at issue. They  just ask for damages to fully compensate them, but assert no legal rule that entitles them to recovery, but they assert no legal right to recover. We teach in Civ Pro that "he violated my rights" or "he injured me" is not sufficient in a complaint, even pre-Twiqbal. You never expect to actually see one of those.

2) The prayer for relief asks "that Defendants be duly cited to appear and answer this complaint and after due proceedings for judgment against The Commissioner and the League for damages to fully compensate Plaintiffs, and the Class, for damages, and all other general and equitable relief required in the premises." This is utter nonsense. His prayer for relief is that they be made to respond to the complaint.

3) The complaint asserts as one basis of jurisdiction § 1331, but no indication of how this is a civil action "arising under" federal law.

I am tempted to use this in class next semester, as a sample complaint showing what you absolutely shouldn't do. But this is almost so bad as to not be a good illustration of what is bad. Almost.

Quantitative Sports Law

Starting Fall 2013, I recently learned that I will be able to fund at least one PhD student interested in research at the intersection of quantitative methods and sports law.  More details can be found here.  Please contact me if you are interested.

For an example of how math and sports law can intersect, here is a panel discussion on corruption and gambling in sports.  One of the speakers details how he used statistics to determine the scope of point shaving in college basketball.

Friday, 12 October 2012

Heavy Dexters live at Bullingdon Arms last week...(me on drums)

In Defense of the Infield Fly Rule

My two posts on the controversial Infield Fly Rule call in last week's National League Wild Card game generated a number of comments and emails, several suggesting that, not only was the call wrong, but that the rule itself is a bad idea and should be scrapped. This motivated me to write a defense of the Infield Fly Rule, which now has been published on The Atlantic.

By the way, media opinion on last week's call seems to be changing. Two of the stronger defenses are from Rob Neyer and Harold Reynolds (with video breakdown, including highlights of IFR calls happening in similar spots on the field).

Problem of Induction explained simply... (from my book The Philosophy Gym)

Why Expect the Sun to Rise Tomorrow?

Philosophy Gym category:

Warm up
More challenging

Every morning we expect the sun to appear over the horizon. But according to one the philosopher David Hume (1711-76, our expectation is wholly irrational. This chapter gets to grips with Hume’s extraordinary argument. 

An absurd claim?

MacCruiskeen, a scientist,is watching the sunrise. She’s accompanied by her close friend Pluck, a student of philosophy.

Pluck. Beautiful sunrise.
MacCruiskeen. Yes. And right on time too.
Pluck. Yet there was no good reason to expect it to rise this morning
MacCruiskeen. But the sun has risen every morning for millions of years. Of course it was going to rise this morning as well.
Pluck. There’s no reason to suppose it will rise tomorrow, either. In fact it’s just as sensible to expect that a huge million-mile wide bowl of tulips will appear over the horizon instead.


MacCruiskeen. I agree we can’t be certain the sun will rise tomorrow. Some cataclysmic event might destroy the Earth before then. But it’s very unlikely that anything like that will happen. The probability is that the sun will rise, surely?
Pluck. You misunderstand me. I’m not just saying we can’t be certain the sun will rise tomorrow. I’m saying we have no more reason to suppose that it will rise than we have to suppose that it won’t.
MacCruiskeen. That’s absurd. The evidence – such as the fact that the sun has risen every morning for millions of years – overwhelmingly supports my belief that the sun will rise tomorrow too.
Pluck. You’re mistaken.

Pluck’s position might seem ridiculous. But Hume has an argument that appears to show that she’s right. Not only is our belief that the sun will rise tomorrow wholly unjustified, so too are all our scientific theories.
Before we look at Hume’s argument I need briefly to explain the difference between deductive and inductive reasoning.


[FULL PAGE-WIDTH TEXT BOX. THINKING TOOLS: Inductive and deductive reasoning. An argument consists of one or more claims or premises and a conclusion arranged in such a way that the premises are supposed to supportthe conclusion. Arguments come in one of two forms: deductive and inductive.

1: Deductive arguments. Here is an example of a deductive argument:

All cats are mammals

My pet is a cat
Therefore: My pet is a mammal

Two things are required for a good deductive argument. First of all, the premises must be true. Secondly, the argument must be valid. The expression “valid”, in this context, means that the premises must logically entail the conclusion. In other words: to assert the premises but deny the conclusion would be to involve oneself in a logical contradiction. The above argument is valid. A person who claims that all cats are mammals and that their pet is a cat but who also denies their pet is a mammal has contradicted him or herself.

2: Inductive arguments. Suppose you observe one thousand swans and discover them all to be white. You don’t come across any non-white swans. Then surely you have pretty good reason to conclude that all swans are white. You might reason like this:

Swan 1 is white

Swan 2 is white

Swan 3 is white


Swan 1000 is white 

Therefore: All swans are white

This is an example of an inductive argument. Inductive arguments differ from deductive arguments in that their premises are supposed to support, but not logically entail, their conclusions. The above argument is not and is not intended to be deductively valid. To assert that the first one thousand swans one has examined are white but that not all are white is not to contradict oneself (in fact not all swans are white: black swans come from New Zealand)
Nevertheless, we suppose that the fact that if all the swans we have observed so far are white, then that makes it more likely that all swans are white. The premises supportthe conclusion. We believe that an inductive argument can justify belief in its conclusion, despite not providing logical guarantee that if the premises are true then the conclusion will be.
            END OF TEXT BOX]]]

Why is induction important?

We rely on inductive reasoning in arriving at beliefs about what we have not observed, including, most obviously, our beliefs about what will happen in future.
Take, for example, my belief that the next time I sit in a chair it will support my weight. How is this belief justified? Well, I have sat in a great many chairs and they have always supported my weight before. That leads me to think it likely that the next chair I sit in will support my weight too.
But notice that the statement that all the chairs I have ever sat in have supported my weight does not logically entail that the next chair will. There is no contradiction in supposing that even though I have never before experienced a chair collapse beneath me, that is what’s about to happen.
But it then follows that I can’t justify my belief that the next chair will not collapse by means of a deductive argument from what I have observed. So if my belief is justified at all, it must be by means of an inductive argument.
            Science is heavily dependent on induction. Scientific theories are supposed to hold for all times and places, including those we have not observed. Again, the only evidence we have for their truth is what we have observed. So, again, we must rely on inductive reasoning to justify them.

The unjustified assumption

We have seen that inductive reasoning is important. Science depends upon it. If it can be shown that inductive reasoning is wholly irrational, that would be a catastrophic result. Yet that’s precisely what Hume believes he can show.
Let’s return to Hume’s argument. Hume believes it is no more rational to suppose the sun will rise tomorrow than it is to suppose that it won’t. Hume’s argument, in essence, is simple: it’s that induction rests on a wholly unjustified and unjustifiable assumption. What is this assumption? Pluck proceeds to explain.

Pluck. Your belief that the sun will rise tomorrow is irrational. Hume explained why. Whenever you reason to a conclusion about what you haven’t observed, you make an assumption.
MacCruiskeen: What assumption?
Pluck: You assume that nature is uniform.
MacCruiskeen: What do you mean?
Pluck: I mean you assume that those patterns that we have observed locally are likely to carry on into those portions of the universe that we haven’t observed, including the future and the distant past.
MacCruiskeen: Why do I assume that?
Pluck: Well, put it this way: if you didn’t believe that nature is uniform, then the fact that the sun has, in your experience, risen every day wouldn’t lead you to expect it to continue to rise, would it?
MacCruiskeen: I guess not.
Pluck. So you see – it’s only because you assume nature is uniform that you conclude that the sun will continue to rise in the future.

It appears Pluck is right. Whenever we reason inductively, we make an assumption about the uniformity of nature. We assume that the universe is patterned throughout in just the same way.
Imagine an ant sitting in the middle of a bedspread. The ant can see that its bit of the bedspread is paisley-patterned. So the ant assumes the rest of the bedspread  – the bits it can’t see – are paisley patterned too. But why assume this? The bedspread could just as easily be a patchwork quilt. The bedspread could be paisley here, but plaid over there and polka-dotted over there.


Or perhaps, just over the ant’s horizon, the print on the bedspread turns to a chaotic mess, with blobs, lines and spots muddled up quite randomly.
We are in a similar position to the ant. The universe could also be a huge patchwork, with local regularities, such as the ones we have observed – the sun rising everyday, trees growing leaves in the Spring, objects falling when released, and so on – but no overall regularity. Or perhaps the universe becomes a chaotic mess just over the horizon, with events happening entirely randomly. What reason have we to suppose this isn’t the case?
As Pluck is about to explain, it seems we have none.

Pluck: So the problem is this: unless you can justify your assumption that nature is uniform, your use of induction is itself unjustified. But then so too are all those conclusions based on inductive reasoning, including your belief that the sun will rise tomorrow.
MacCruiskeen: True.
Pluck: So how do we justify the assumption that nature is uniform?

We have just two options: we can either appeal to experience – to what you have observed – or you might try to justify the assumption independently of experience. MacCruiskeen is happy to admit that we cannot know that nature is uniform without observing nature.

MacCruiskeen: Obviously we can’t know independently of experience that nature is uniform
Pluck: I agree. Our five senses – sight, touch, taste, hearing and smell – provide our only window on the world. Our knowledge of nature is dependent on their use.
MacCruiskeen: True.
Pluck: Which means that, if the assumption that nature is uniform is to be justified at all, it must be by appeal to what we have experiencedof the world around us.
MacCruiskeen: Yes. But isn’t the claim that nature is uniform justified by experience?
Pluck: No. To say that nature is uniform is to make a claim about what holds for all times and places.
MacCruiskeen: True.
Pluck: But you can’t directly observe all of nature, can you? You can’t observe the future. And you can’t observe the distant past.
MacCruiskeen. Also true.
Pluck. But then your justification of the claim that nature is uniform must take the following form. You observe nature is uniform round here at the present time. Then you infer that nature is also like that at all those other times and places. Correct?
MacCruiskeen. I suppose so.
Pluck. But that is itself an inductive argument!
MacCruiskeen: Yes, it is.
Pluck: Your justification is, therefore, circular.

Here we reach the nub of Hume’s argument. It seems that, if it can be confirmed at all, the assumption that nature is uniform can only be confirmed by observing that nature is uniform round here and then concluding that this is what she must be like overall.
But such a justification would itself be inductive. We would be using precisely the form of reasoning we’re supposed to be justifying. Isn’t there something unacceptably circular about such a justification.  

 The circularity problem 

 Pluck certainly thinks so.

MacCruiskeen. What is the problem with the justification being circular?
Pluck. Look, imagine that I think Mystic Madge, the psychic who works at the end of the pier, is a reliable source of information.
MacCruiskeen. That would be very foolish of you!
Pluck. But suppose my justification for trusting Mystic Madge is that she claims to be a reliable source of information. I trust her because she says she’s trustworthy.


MacCruiskeen. That would be no justification at all! You need some reason to suppose Mystic Madge is trustworthy before you trust her claim that she is.
Pluck. Exactly. Such a justification would be unacceptably circular because it would presuppose that Mystic Madge was reliable.
MacCruiskeen: I agree.
Pluck: But your attempt to justify induction is unacceptable for the very same reason. To justify induction you must first justify the claim that nature is uniform. But in attempting to justify the claim that nature is uniform you rely on induction. That won’t do. You’re just presupposing that induction is reliable. 

We can now sum up Hume’s extraordinary argument. All inductive reasoning, it seems, relies on the assumption that nature is uniform. How, then, might this assumption be justified? Only by experience, surely. But we cannot directly observe that nature is uniform. So we must infer that it is uniform from what we have directly observed, i.e. from a local uniformity. But such an inference would itself be inductive.Therefore we cannot justify the assumption. So our trust in induction is unjustified.

But induction works, doesn’t it?

Perhaps you’re not convinced. You might suggest that there is one very obvious difference between, say, trusting induction and trusting Mystic Madge. For induction actually works, doesn’t it? It has produced countless true conclusions in the past. It has allowed us successfully to build supercomputers, nuclear power stations, and even to put a man on the Moon. Mystic Madge, on the other hand, may well have a very poor track record of making predictions. That’s why we are justified in believing that induction is a reliable mechanism for producing true beliefs whereas trusting Mystic Madge is not.
The problem, of course, is that this is itself an example of inductive reasoning. We are arguing, in effect, that induction has worked until now, therefore induction will continue to work. Since the reliability of induction is what is in question here, it seems that this justification is, again, unacceptably circular. It is, after all, just like trying to justifying trust in the claims of Mystic Madge by pointing out that she herself claims to be reliable.

An astonishing conclusion

The conclusion to which we have been driven is a sceptical one. Sceptics claim that we do not know what we might think we know. In this case, the scepticism concerns knowledge of the unobserved. Hume and Pluck seem to have shown that we have no justification for our beliefs about the unobserved, and thus no knowledge of the unobserved.
Hume’s conclusion is a fantastic one. It’s a good test of whether someone has actually understood Hume’s argument that they acknowledge its conclusion is fantastic (many students new to philosophy misinterpret Hume: they think his conclusion is merely that we cannot be certain what will happen tomorrow.) In fact, so fantastic is Hume’s conclusion that MacCruiskeen cannot believe Pluck is really prepared to accept it.

MacCruiskeen: You’re suggesting that what we’ve observed to happen so far gives us no clue at all as to what will happen in the future?
Pluck: Yes. Things may continue on in the same manner. The sun may continue to rise. Chairs may continue to support our weight. But we have no justification whatsoever for believing any of these things.
MacCruiskeen: Let me get this straight. If someone were to believe that it’s just as likely that a huge bunch of tulips will appear over the horizon tomorrow morning, that chairs will vanish when sat on, that in future water will be poisonous and objects will fall upwards when released, we would ordinarily think them insane. Correct?
Pluck: Yes, we would.
MacCruiskeen: But if you’re right, these “insane” beliefs about the future are actually just as well-supported by the available evidence as is our “sensible” belief that the sun will rise tomorrow. Rationally, we should accept that these “insane” beliefs are actually just as likely to be true!
Pluck: That’s correct.
MacCruiskeen: You really believe that? You really believe it’s just as likely that a million-mile wide bowl of tulips will appear over the horizon tomorrow morning?
Pluck: Well, actually, no, I don’t.
MacCruiskeen: Oh?
Pluck: I do believe the sun will rise tomorrow. For some reason, I just can’t help myself. I see that, rationally, I shouldn’t believe. But while I realize my belief is wholly irrational, I can’t stop believing.

Hume’s explanation of why we believe

Like Pluck, Hume admitted that we can’t help but believe that the sun will rise tomorrow, that chairs will continue to support our weight, and so on. On Hume’s view, our minds are so constituted that when we are exposed to a regularity, we have no choice but to believe the regularity will continue. Belief is a sort of involuntary, knee-jerk response to the patterns we have experienced.

[[TEXT BOX: THINKING TOOLS: Reasons and causes - two ways of explaining why people believe what they do.
Hume’s explanation of why we believe the sun will rise tomorrow does not, of course, give us the slightest reason to suppose that this beliefs is actually true.
It is useful to distinguish two very different ways in which we can “give the reason” why someone believes something. We may give the grounds or evidence that a person has for holding a belief. Or we may explain what has caused this person to believe what they do.
It’s important to realize that to offer a causal explanation of a belief is not necessarily to offer any sort of rational justification for holding it. Consider these explanations:

Tom believes he is a teapot because he was hypnotized during a stage act.
Anne believes in fairies because she is mentally ill.
Geoff believes in alien abduction because he was indoctrinated by the Blue Meanie cult.

These are purely causal explanations. To point out that someone believes they are a teapot because they were hypnotized into having that belief during the course of a hypnotist’s routine is not to provide the slightest grounds for supposing that this belief is true.
The following explanation, on the other hand, gives the subject’s grounds for belief (which is not yet to say they are good grounds):

Tom believes in astrology because he finds newspaper astrology predictions are quite often correct.

Interestingly, ask the hypnotized person why they believe they are a teapot and chances are they will be unable to answer. The correct causalexplanation is unavailable to them (assuming they don’t know they have been hypnotized). But nor will they be able to offer a convincing justification for their belief. They may simply find themselves “stuck” with a belief that they may themselves recognize is irrational.
Hume admits that, similarly, his explanation of why we believe the sun will rise tomorrow does not supply the slightest grounds for supposing that this belief is true. Indeed, we have no such grounds. It is, again, a belief we simply find ourselves “stuck” with.END OF TEXT BOX]


If Hume is right, the belief that the sun will rise tomorrow is as unjustified as the belief that a million mile wide bowl of tulips will appear over the horizon instead. We suppose the second belief is insane. But if Hume is correct, the first belief is actually no more rational. This conclusion strikes us as utterly absurd, of course. But Hume even explains why it strikes us as absurd: we are made in such a way that we can’t help but reason inductively. We can’t help having these irrational beliefs.
Hume’s argument continues to perplex both philosophers and scientists. There’s still no consensus about whether Hume is right. Some believe that we have no choice but to embrace Hume’s sceptical conclusion about the unobserved. Others believe that the conclusion is clearly absurd. But then the onus is on these defenders of “common sense” to show precisely whatis wrong with Hume’s argument. No one has yet succeeded in doing this (or at least no one has succeeded in convincing a majority of philosophers that they have done so).

What to read next?

This chapter introduces scepticism about the unobserved. Chapter XX “The Strange Case of the Rational Dentist” and XX “Brain-snatched” introduce other forms of scepticism: scepticism concerning other minds and scepticism about the external world.

In chpt XX “Who Knows?” I discuss the possibility that justification not required for knowledge. Might this suggestion help us to defeat the sceptic?

Further reading

A good discussion of the problem of induction can be found in:

·      Chris Horner and Emrys Westacott, Thinking Through Philosophy (Cambridge: Cambridge University Press: 2000), chpt. 4.

A simple but effective introduction to the problem of induction and to some of the philosophical issues surrounding science is provided by:

·      Nigel Warburton, Philosophy: The Basics, second edition (London: Routledge, 1995), chpt. 5.