Tuesday, 31 December 2013

Top 10 Sports Law Stories in 2013 & Predictions for 2014

I've authored a Top 10 Sports Law Stories of 2013 article for Sports Illustrated.  My list from 2013:

10. Chris Christie and sports betting in NJ
9. NHL concussion litigation and fighting
8. Jonathan Martin and the forthcoming Ted Wells Report
7. Lance Armstrong admits to doping and hit with lawsuits
6. NFL reaches proposed settlement in Concussion Litigation, but some retired players say no
5. Jameis Winston cleared in rape investigation, but civil lawsuits may follow
4. New Legal Strategy in Biogenesis case, but A-Rod fights back
3. Ed O'Bannon's class certified, setting table for historic trial
2. Aaron Hernandez charged with murder
1. Boston Marathon bombing

Hope you have a chance to check out my analysis and predictions.

Monday, 30 December 2013

Head Injuries and Baseball

I have a short piece in the December Sports Litigation Alert, called Head Injuries and Baseball. It elaborates on an exchange between Nathaniel and me on this post regarding what baseball can do about concussions.

Rooney Rule

Check out the third item ("My Pal the Tortoise") and footnote 7. If this is really how teams operate--and I have no doubt it is--then the Rooney Rule is a joke.

Sunday, 29 December 2013

Athlete speech and hate speech

Mike passed along this story about French soccer player Nicolas Anelka, who made a possibly anti-Semitic neo-Nazi salute after scoring a goal in an EPL game yesterday. Anelka (who converted to Islam and whose parents emigrated to France from Marinique) made the "quenelle" signal, in which the right hand is pointed downward and the left hand grasps the right shoulder. The signal, which was created by a controversial French comedian, is becoming popular among neo-Nazis and anti-Semites in France, where the Nazi salute is banned under strict hate-speech laws. The signal sort of looks like an inverted Nazi salute, but is unknown outside of France and thus allows people to express themselves without anyone out-of-the-known understanding what was being said; there have been stories and photos of people making the gesture outside Auschwitz and at the Western Wall. Anelka denies that he was doing the gesture as a racist or anti-Semitic statement and claims to be "gobsmacked" by the international uproar he has caused; he insists the gesture is "anti-system" (which I assume means anti-establishment). The English Football Association has opened an investigation.

The reaction is doubly intense here, as compared to if a U.S. athlete had done this after scoring a touchdown or hitting a home run. Europe's approach to hate speech is much different than ours (although the First Amendment would not be in play in any event). More importantly, Europe is especially sensitive to anti-Semitic and Nazi speech, given its history.

On a different part of this, on-field athlete speech is a different and interesting issue, one I hope to  examine if/when I get back to writing about the sport/speech connection. Expression--verbal and physical--is endemic to what athletes do on the field. Content aside, it is a nice question how much room sports teams and leagues should leave the players to express themselves, especially on what must be understood as political matters (even if hateful ones).

Update 12/30: The plot thickens and comes across the pond. French NBA players Tony Parker and Boris Diaw posed with the comedian who started all this while making this gesture; the photos, which are a few years old, hit the interwebs on Sunday. Parker apologized, saying he saw the gesture as part of a comedy act and only recently learned about its anti-Semitic connotations. The Simon Wiesenthal Center asked that he make a further statement, in French, directed to French Jews.

Anelka has promised not to make the gesture again.

Saturday, 21 December 2013

If Facebook’s Zuckerberg Was A Sports Fan What Would He Do With His Billions In Charity?

I am not the one to tell someone how to spend his or her money. But if it is acceptable to dream about winning the lotto, it’s still OK to imagine a movie on how a nerdy Harvard dropout became the richest youngster in the world, and then had a sports epiphany. If done well, it could top Adam Sandler’s golf dreams in Happy Gilmore. So in the most unusual of dreams, and without a man-crush, and like most good comedies, there is a touch of reality.

The reality is that billionaire Zuckerberg is so rich he has a tax bill bigger than many city budgets. He has the acumen to say something like, “OK, I am not going to use my cash to pay the IRS. It hurts at a visceral level to do that – and I have choices.”  Rather, SEC filings reveal a complex transaction where he will take advantage of Facebook’s doubling in stock price since January 2013 to pay those taxes and donate to education, including the local school district around Facebook’s headquarters.  His wife is a teacher and influenced him to teach as well.

The plan is that he will exercise his options on 60 million shares, sell 41.35 million of them to pay capital gains taxes he will have on the transaction. He had the option to buy at – get this – 6 cents a share. That will net him about $1 billion.  Then by donating about 18 million shares ($990 million in value) to a nonprofit, he can save the same amount in taxes – i.e. a little-known dollar-for-dollar tax benefit under a certain adjusted gross income threshold.

But what if his passion was for sports, not teaching? Or why not a passion that weds the two? My movie (which I am writing and is already copyright protected) has him playing touch football, getting knocked unconscious, having a concussion and then having the following epiphany:

“I am providing a matching grant to the NFL, NBA, and MLB and their respective players associations if they amend their collective bargaining agreements (“CBAs”) to mandate two items noted below.

First, 10% of the player salaries will be allocated to certain education-related designated charities designed to equalize opportunities. Many inner city and Appalachian-like rural schools are severely under-resourced compared to suburban schools, with teachers buying materials from their own pockets without comparable technology.

Second, to the maximum extent permitted by ERISA laws, player salaries over a certain multi-million dollar threshold are placed in a trust fund or a vetted deferred compensation plan. That appears to be the most immediate way to reverse the sad statistic that approximately 60% of the NBA players file for bankruptcy protection after retirement. That way, the CBA can protect the athletes from themselves, and redirect their futures away from being an impending lost resource and into a future family and community asset. Hence, a burgeoning class of New Age Athletes.

These provisions are legal because the players have to agree to it, so it is voluntary. It is also likely immune from any antitrust concerns of third-party contractors who provide financial services to the players or the leagues because the clauses fall within the well-established nonstatutory labor exemptions for collectively bargained items.

Sometimes dreams come true. Even business plans start with imagination – a vision of what can be, not what already is, a reality.

Friday, 20 December 2013

Video of UNH Law & Sports Illustrated Town Hall on O'Bannon v. NCAA and Future of College Sports

Last month, the University of New Hampshire School of Law's Sports and Entertainment Law Institute and Sports Illustrated co-hosted a Town Hall on the O'Bannon case and the future of college sports.  The Town Hall examined how this class action lawsuit could radically change college sports as we know it.  As you know if you've followed this case, through legal arguments sounding in intellectual property and antitrust, O'Bannon—a former basketball star at UCLA—contends that current and former Division I men's basketball and football players should be paid for their image and likeness on television broadcasts, video games, trading cards, apparel and other commercial ventures. The Town Hall also considered related cases, including Sam Keller v. NCAA and Ryan Hart v. Electronic Arts, as well as pending federal legislation in the NCAA Accountability Act. Collectively, these legal developments could lead to the compensation of college student-athletes and impact their unionization and quasi-employment rights.

The Town Hall featured some of the most influential and insightful people in college sports. It was moderated by B.J. Schecter (Sports Illustrated & SI.com executive editor and UNH Law adjunct professor of sports law and investigative reporting) and panelists were: Sonny Vaccaro (unpaid adviser to O'Bannon and leading advocate for college athletes' rights), Charles Grantham (former executive director of the National Basketball Players' Association), Alan Milstein (litigator for Allen Iverson, Carmelo Anthony, Maurice Clarett & other sports personalities), Pete Thamel (Sports Illustrated senior writer), Marty Scarano (UNH Director of Athletics), Alexandra Roberts (UNH Law entertainment law professor) and me.

The Town Hall attracted more than 140 people to attend, including students, attorneys and former basketball players, including NBA Hall of Famer and former Boston Celtics forward Satch Sanders.

On December 17, 2013, video highlights of the Town Hall and accompanying commentary were shown on SI.com.

Yesterday the complete Town Hall video was made available on Youtube.  I hope you have a chance to watch:

Monday, 16 December 2013

Concussion-Related Injuries (and Litigation?) Come to Major League Baseball

Media outlets reported yesterday that doctors have confirmed that former Major League Baseball player Ryan Freel was suffering from chronic traumatic encephalopathy (CTE) at the time he committed suicide last December.  Freel is the first MLB player to be diagnosed with the concussion-related disease. Prior to his death, Freel, who was known for his aggressive brand of play, estimated that he had suffered as many as 10 concussions throughout his playing career, resulting from various plays such as colliding with a teammate in the outfield and getting hit in the head by an errant pick-off throw.

Freel's diagnosis shows that football and hockey players are not the only professional athletes exposed to potential concussion-related injuries.  Indeed, as CNN reports, concussions are more common in MLB than one might at first suspect:
This season, 18 baseball players were placed on the disabled list after concussions -- 10 of them were catchers. In 2012, 13 players were placed on the DL after a concussion, and in 2011, the number was 11, according to MLB data.
Therefore, Freel's diagnosis raises the question of whether MLB will be the next professional sports league to face a wave of concussion-related lawsuits.  It would not be surprising if some affected former baseball players (or their families) file suit against MLB.  However, because concussions do not appear to be as widespread in baseball as in football, class action litigation may be less likely.  Indeed, with baseball concussions arising from a variety of different causes (collisions on the field, players getting hit with thrown balls, catchers getting hit by foul tips), the injuries alleged by former baseball players will likely prove to be more dissimilar than those involving contact sports such as football or hockey, arguably making class action treatment less appropriate. 

Nevertheless, it might be possible for a group of similarly situated players, such as former catchers, to jointly sue MLB for failing to take greater precautions to prevent their injuries.  Should such a class action be filed, MLB would be able to assert many of the same defenses that were available to the NFL in its own concussion-related lawsuits.  However, MLB might decide -- as did the NFL -- that despite these potential defenses such a case carries sufficient negative publicity and litigation risk to warrant a settlement of the claims.

For its part, MLB has already been relatively proactive in dealing with concussions over the last several years.  Back in 2011, MLB implemented a series of protocols to deal with head injuries, including the creation of a new 7-day disabled list for concussed players.  And then last week, the league announced that it intends to ban home plate collisions beginning in 2014.  While such steps will not completely eliminate MLB's risk of potential legal liability, they do reflect a concerted effort on behalf of the league to lessen the chance that future players experience a significant head injury.

Friday, 13 December 2013

Alan Milstein's Role in ESPN's 30 for 30 on Maurice Clarett (Airs Tomorrow Night)

Alan Milstein and Maurice Clarett, September 2003
10 years ago, an Ohio State football player named Maurice Clarett filed an antitrust lawsuit against the NFL over its eligibility restriction, which required that players be three years out of high school before they could be eligible for the NFL draft.  Clarett was too young to satisfy the rule.  He was one of the best running backs in college football and had he been eligible for the 2004 draft, would have been a first round pick.

Clarett's lead attorney was Alan Milstein, who crafted--in my opinion--a brilliant argument against the rule.  There were other great lawyers on Clarett's team including Jeffrey Resnick and Michael Dube. I had the honor of also being on Clarett's legal team and working for Alan.  It was an extraordinary opportunity for me, especially as a 27-year-old lawyer.  It was my break into sports law.

Alan argued successfully before U.S. District Judge Shira Scheindlin that the rule, which was borne through a memo written by then-Commissioner Paul Tagliabue in the early 90s, had not been collectively bargained with the NFLPA and did not primarily affect NFL players' hours, wages and other working conditions.  The legal jargon made sense on a more practical level: Clarett, a college player, was not challenging anything about NFL employment (he didn't object to wage restrictions, rules for rookies, the draft itself etc).  He only challenged the rule that barred entry.  His inclusion in the draft would have primarily affected one person: not an NFL player, but rather the guy who wouldn't be drafted because of Clarett's inclusion in it.  That player, presumably, would have been the last player selected in the draft--the last pick of the seventh round, #255 overall.  That guy is also known as "Mr. Irrelevant."

Because the NFL's eligibility rule was not collectively-bargained, it was subject to Section 1 of the Sherman Act and was deemed an unlawful conspiracy among the 32 NFL teams.  Those teams were competing businesses for purposes of antitrust law, and had joined hands in an anti-competitive conspiracy: to impose a bright-line rule on eligibility where talent and merit were ignored, arguably because college football was a free minor league system for those NFL teams.  Judge Scheindlin's order in February 2004 meant that Clarett would be in the 2004 NFL draft, to be held that April.

Clarett (along with USC sophomore wide receiver Mike Williams, who relied on Judge Scheindlin's order) was then focused on getting ready for the 2004 draft as an eligible player.  At the time, we were very confident he would be a first round pick and no later than a second round pick. Our understanding was that the Patriots and Cowboys were especially interested in Clarett.  Had Clarett played for Bill Belichick or Bill Parcells, his career and life may have turned out quite differently.

But then the NFL sought an expedited appeal before the U.S. Court of Appeals for the Second Circuit.  Even though expedited appeals are rarely granted and are usually reserved for emergencies--someone is on death row etc.--the Second Circuit granted a hearing.  At the hearing, I knew within about 10 seconds that we had lost.  I believe it was (then) Judge Sonia Sotomayor who interrupted Alan with an, "I don't know why you are here" type remark.  Not a good sign and it was indeed predictive: the 2nd Circuit reversed Judge Scheindlin.  We then worked quickly on drafting a petition to the U.S. Supreme Court, but our petition was declined.  Clarett and Williams had to sit out a year until the 2005 NFL draft.  In many ways, that set Clarett on the wrong course, though he has since turned his life around in a big way.

Clarett, the Clarett case and Clarett's life after the case are the subject of an ESPN 30 for 30 to be aired tomorrow night.  It is called Youngstown Boys.  I have not yet seen it, but my understanding is Alan is interviewed extensively in it. I look forward to watching it.

You can read more about the Clarett case and its context in the history of sports law in my article on Justice Sotomayor and Sports Law

Thursday, 12 December 2013

Sports rules and essentialism

Travis Waldron at Think Progress has some good thoughts on the decision by MLB to outlaw home-plate collisions by prohibiting runners from running through the catcher and prohibiting catchers from blocking the plate. Essentially, home plate now is treated the same way as every other base--fielders can block the plate only if making a play on the ball and runners must slide. The move is driven by safety considerations--not only concussions, but also injuries such as the broken leg that Giants catcher Buster Posey suffered in 2011 or the infamous collision between Pete Rose and Ray Fosse that changed (for the worse) Fosse's career).

Not surprisingly, this has caused handwringing among those who insist this will change the very nature of the game, including some who liken it to eliminating tackling in football. Waldron has great responses to all of these arguments. And his responses call attention to two analytical ideas in thinking about sports rules and whether and how to change sports rules to make games safer.

One is essentialism--which aspects of a sport are "essential" to the sport, such that if you remove or alter them, you are changing the nature of the game. Many of you will remember this as one point of departure in PGA v. Martin, where the Court divided on whether walking the course was part of what made golf golf. My view is that few rules or plays are ever so essential to a game; most are simply the way things always have been done and can be changed without altering "the game." Certainly tackling is essential to tackle (as opposed to touch or flag) football. But home-plate collisions are not essential to baseball; if they are, one would have to explain why similar collisions are banned at the other three bases.

Second is distinguishing what we can control from what we cannot control in the search for increased safety. Waldron highlights the fact that the most common cause of concussions in catchers is foul tips, which leads to the argument that the next move is to ban foul balls. That's stupid, of course. We can't ban foul balls because we can't control foul balls, which are an incidental rather than intentional part of the game. No batter tries to foul a ball off the catcher's head and no pitcher tries to get the batter to foul the ball off the catcher's head; it just happens sometimes. But catchers do try to block home plate and runners do try to barrel catchers over (see Rose, who has had some typically inane things to say about this). It thus is possible to prohibit the conduct by both sides that leads to these collisions.

Tuesday, 10 December 2013

College football and the Brandenburg Concerto

[Update: Reports are stating that police have identified the man in the picture and want to interview him, in part to find out how (and if) he caused the events in East Lansing.]

Students at Michigan State University celebrated their football team's Big Ten championship last weekend the way many sports fans do: Setting things on fire. Police responded to a large civil disturbance and reportedly responded to at least 57 fires throughout the city. In many cases, the favored object to burn was a couch.

So what, you ask? Well because of the guy pictured at right, who attended the Big 10 Championship game in Indianapolis sporting that sign. Ku-xlarge According to the East Lansing Police Department Facebook page, they are looking for information on his identity. And rewards of up to $20,000 are being offered for information on the overall disturbance.

So the obvious question: Could this guy be charged with anything for holding up that sign? Could any prosecution satisfy  Brandenburg v. Ohio and the requirement that the  lawless action in East Lansing be imminent and likely to arise from his holding up a sign from a football stadium in Indianapolis?

Understanding the FANS Act

A piece of sports-related legislation was proposed in the U.S. House of Representatives and Senate last month: the Furthering Access and Networks for Sports (FANS) Act.  The bill was first introduced in the House by Rep. Brian Higgins (D-NY), with Senators Richard Blumenthal (D-CT) and John McCain (R-AZ) following suit in the Senate a week later (this is the second piece of legislation implicating professional sports proposed by Senator McCain this year).  The FANS Act features two main sections, the first dealing with blackouts of televised sporting events, and the second with baseball's antitrust exemption. 


The first part of the FANS Act is intended to reduce the frequency with which live sporting events are blacked out on local television networks and over the Internet.  While all four major U.S. professional sports leagues engage in blackouts to some extent, the NFL's policies have generally drawn the most criticism.  Traditionally, the NFL mandated that a game be blacked out in the local television market of the home team unless the stadium was sold out at least 48 hours in advance.  The NFL modified this restriction last year in the face of mounting pressure, now allowing games to be aired locally when as few as 85% of the tickets have been sold.  Meanwhile, the NBA, NHL, and MLB primarily utilize blackouts in connection with their pay-per-view cable (NBA Full Court, NHL Center Ice, and MLB Extra Innings) and Internet packages (e.g., MLB.tv), through which viewers purchase the right to watch every league game.  These packages typically prevent fans from watching any game on a pay-per-view basis if it is being broadcast locally on either network television or via a regional sports network (RSN).  The NHL's and MLB's blackout rules are the subject of pending antitrust litigation in the Southern District of New York.

The FANS Act attempts to force the leagues to modify their blackout policies by retracting the Sports Broadcasting Act of 1961 (SBA) for any league that engages in unauthorized blackouts.  The SBA currently provides a limited antitrust exemption to the four major professional sports leagues allowing them to collectively sell the broadcast rights to their games to over-the-air, broadcast networks (i.e., NBC, ABC, CBS, and Fox).  The SBA was passed at the behest of the NFL after the league's plan to sell a package of league games to CBS was struck down by a federal court in 1961.  The SBA does not apply to the leagues' contracts with cable stations, however, which courts have held do not fall within the SBA's protection of "sponsored telecasting."  See, e.g., Shaw v. Dallas Cowboys Football Club, 172 F.3d 299 (3rd Cir. 1999).

Section 3(a) of the FANS Act would eliminate the SBA's antitrust immunity for any league that allows its games to be blacked out on network television.  Meanwhile, section 3(b) of the bill revises a passage in the SBA authorizing blackouts of a team's home games in its local market.  These changes would have by far the greatest impact on the NFL, which is not only the biggest beneficiary of the SBA -- given its multi-billion dollar deals with NBC, CBS, and Fox -- but is also the only league that blacks out its network broadcasts in local markets based on the home team's ticket sales.  Thus, these provisions of the FANS Act appear to be intended to motivate the NFL to continue to relax its blackout restrictions.  As Senator Blumenthal explained, "they know the legislation is looming if they engage in blackouts. It’s a not-so-subtle pressure.”

The blackout portion of the FANS Act would have a much more limited impact on the NBA, NHL, and MLB.  Not only do these leagues derive a much smaller share of their television revenue from the over-the-air networks, but they also do not typically blackout a home team's games from its local market on network television.  Therefore, the biggest impact of the FANS Act on the other three leagues would be with respect to their Internet blackout policies.  Specifically, section 3(c) of the FANS Act would prevent the leagues from blacking out games that are being aired on over-the-air network television (but not cable) from their Internet packages, but only if the game is unavailable on the fan's local television station.  For example, MLB's agreement with broadcast network Fox permits the station to televise up to four baseball games every Saturday, with different regions seeing different games.  Thus, under the FANS Act, MLB would lose its protection under the SBA if it continued to prevent fans from watching games on the Internet that were not available on their local Fox affiliate.  But MLB would still be able to blackout whichever game is airing on a fan's local Fox affiliate from his MLB.tv Internet subscription. 

The impact of this provision would be extremely limited.  Not only would the change have no impact on fans who subscribe to a league's cable pay-per-view package (e.g., MLB Extra Innings), but it would also do nothing to prevent the leagues from continuing to blackout games aired locally on an RSN from a fan's cable or Internet pay-per-view package.  Moreover, MLB and Fox had already gone one step further than the FANS Act, announcing in 2012 that they would cease to black out Fox's Saturday Games of the Week from both MLB Extra Innings and MLB.tv beginning in 2014.  Thus, it is unclear if the FANS Act would have any appreciable impact on the NBA, NHL, or MLB.

Meanwhile, although the FANS Act would potentially have a significant impact on the NFL, the league could nevertheless decide to preserve its blackout restrictions even if the legislation were to be enacted.  Indeed, the FANS Act would not actually force the NFL to change its blackout policies, but instead would simply condition the league's continued antitrust protection under the SBA on such a modification.  The NFL might thus decide that the odds of an antitrust challenge to its network television deal are so low, or that its prospects for winning such a suit under the rule of reason are strong enough, as to warrant maintaining its blackout policy despite the passage of the FANS Act.  Along these lines, each league's collective sales of television rights to cable networks such as ESPN have seldom been challenged under antitrust law, despite the lack of protection afforded to those deals by the SBA. 

Baseball's Antitrust Exemption

While the blackout restrictions in the FANS Act are fairly complex, the second half of the bill is perhaps even more difficult to decipher.  It purports to eliminate baseball's historic exemption from antitrust law, at least as applied to MLB (the bill appears to leave the immunity in place for the minor leagues, as discussed below).  In particular, the bill would amend the Curt Flood Act of 1998 (CFA), which repealed baseball's antitrust exemption simply in one respect: by allowing current major league players to file antitrust lawsuits against MLB. 

The FANS Act proposes to further limit baseball's antitrust immunity by revising a series of passages in the CFA that were intended to confirm that the 1998 legislation did not alter baseball's antitrust status in any respect other than for suits filed by MLB players.  For example, the FANS Act would amend section (a) of the CFA as follows (the crossed out text reflects what would be struck from the CFA by the FANS Act):
(a) Subject to subsections (b) through (d), the conduct, acts, practices, or agreements of persons in the business of organized professional major league baseball directly relating to or affecting employment of major league baseball players to play baseball at the major league level are subject to the antitrust laws to the same extent such conduct, acts, practices, or agreements would be subject to the antitrust laws if engaged in by persons in any other professional sports business affecting interstate commerce.
This revision would appear to largely revoke baseball's antitrust exemption by broadly exposing the activities of MLB to antitrust law (as is the case for the NFL, NBA, and NHL).  However, subsequent language in the FANS Act makes the intended effect of this modification less clear.  In particular, the bill would also amend section (b) of the CFA as follows (subsections (b)(1) and (b)(2), unaffected by the FANS Act, would preserve baseball's antitrust immunity for the minor leagues):
(b) No court shall rely on the enactment of this section as a basis for changing the application of the antitrust laws to any conduct, acts, practices, or agreements other than those set forth in subsection (a). This section does not create, permit or imply a cause of action by which to challenge under the antitrust laws, or otherwise apply the antitrust laws to, any conduct, acts, practices, or agreements that do not directly relate to or affect employment of major league baseball players to play baseball at the major league level, including but not limited to


(3) any conduct, acts, practices, or agreements of persons engaging in, conducting or participating in the business of organized professional baseball relating to or affecting franchise expansion, location or relocation, [or] franchise ownership issues, including ownership transfers, the relationship between the Office of the Commissioner and franchise owners, the marketing or sales of the entertainment product of organized professional baseball and the licensing of intellectual property rights owned or held by organized professional baseball teams individually or collectively
By retaining the language in section (b)(3) of the CFA relating to expansion, relocation, and franchise ownership, this portion of the FANS Act would seemingly maintain MLB's exemption for those critical areas, while simply retracting the immunity for broadcasting and other merchandise licensing purposes.  Thus, it is unclear whether the bill's sponsors intend to broadly revoke MLB's antitrust immunity (as suggested by their revision of section (a) of the CFA), or if they only seek to apply the antitrust laws to MLB's broadcasting and other licensing policies (as seemingly suggested by their revision of section (b)(3)).  Indeed, both sections (a) and (b) of the CFA incorporate one another by reference, so it is unclear which of the two provisions would be given priority should the FANS Act be enacted.

I suspect that the drafters of the FANS Act intend for the bill to broadly revoke MLB's antitrust immunity.  Not only does the proposed revision to section (a) of the CFA appear to reflect such an intent, but the preamble to the bill states in part that the FANS Act would "require the application of the antitrust laws to Major League Baseball."  If that is the case, however, then it would be cleaner and clearer to simply excise subsection (b)(3) of the CFA in its entirety.

The drafters may have opted to retain the remaining language in subsection (b)(3) of the CFA in order to further protect minor league baseball, and specifically its expansion, relocation, and ownership restrictions.  Elsewhere, the FANS Act leaves intact subsections (b)(1) and (b)(2) of the CFA, which explicitly state that the antitrust laws do not apply to minor league baseball or its relationship with MLB.  These sections were originally inserted into the CFA following a massive lobbying campaign orchestrated by the minor leagues, which feared that the 1998 legislation would disrupt their relationship with MLB.  The drafters of the FANS Act may have thus left the remaining portion of subsection (b)(3) in place to placate the minor league lobby.  However, if that was the intent of the legislators, it would be much more effective if they inserted some language into subsection (b)(3) clarifying that it only applies to the minor leagues.

Alternatively, it is possible that the FANS Act is only intended to address the blackout and related licensing issues, and thus that the second half of the bill only seeks to expose MLB's broadcasting and merchandising practices to antitrust law.  If this is the case, then the drafters could accomplish this goal much more clearly by simply stating that baseball's antitrust exemption does not apply to MLB's broadcasting or other intellectual property licensing activities.  Ironically, MLB did not even assert its antitrust exemption in the pending litigation challenging its blackout policies in the Southern District of New York, potentially rendering the current bill unnecessary should its intended effect be more narrow.  Indeed, the only reported court decision on record, involving a dispute surrounding the Houston Astros' local radio broadcast agreements, held that the exemption does not shield baseball's broadcasting activities.  Henderson Broadcasting Corp. v. Houston Sports Ass’n, 541 F. Supp. 263 (S.D. Tex. 1982).

Regardless of the legislators' intent, as currently drafted the FANS Act's treatment of baseball's antitrust exemption is unclear.  I would expect this portion of the bill to be fine-tuned considerably should it advance through the legislative process.

Prospects for Passage 

Passage of the FANS Act does not appear to be particularly likely, as the four leagues will presumably lobby vigorously against the bill.  That having been said, of its two parts, the blackout section of the FANS Act would seem to have a stronger chance at passage than does the baseball antitrust exemption portion of the bill.  While the leagues can be expected to fight the blackout provision, that lobbying effort could be offset to some degree by the broadcast networks themselves.  Indeed, backers of the bill reportedly consulted with various television networks when drafting the legislation.  The value of CBS and Fox's broadcast packages with the NFL would rise (even if only incrementally) if the networks were assured of being able to broadcast each home team's game in its local market regardless of the number of tickets sold.  That fact, along with general fan discontent with blackouts, could potentially enable supporters of the FANS Act to overcome the leagues' inevitable lobbying campaign against this portion of the bill.

Meanwhile, the legislation's attempted revocation of MLB's antitrust exemption appears less likely to pass.  Unlike with the blackout issue, there is no obvious, well organized constituency to counterbalance MLB's likely lobbying efforts against this portion of the FANS Act.  Moreover, while baseball's antitrust exemption is certainly anomalous, there is no immediately pressing, nationwide public concern that will be remedied by its repeal.  Thus, barring some unforeseen development, it appears unlikely that the FANS Act will mark the end of baseball's nearly century old antitrust immunity.

Monday, 9 December 2013

Handout on utilitarianism (for A Level Religious Studies etc.)



Jeremy Bentham

Jeremy Bentham  [1748-1832], the father of utilitarianism, famously declared that

" . . . actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure, and the absence of pain; by unhappiness, pain, and the privation of pleasure."

Utilitarianism is a form of consequentialism – it says that only the consequences of an act are morally relevant.

Bentham says that the right thing to do in any given situation is to act to produce the happiest outcome – the happiest outcome  according to Bentham, is that which produces the most pleasure and the least pain.

Bentham himself developed a “felicific calculus” factors such as intensity and duration of pains and pleasures could be fed to calculate the right course of action.

A simple example of such a utilitarian calculation – should I steal that child’s sweets? Doing so might give me the pleasure of eating them. But it would deprive the child of the same pleasure and cause her considerable unhappiness to boot. On balance, stealing the sweets will cause less happiness than not stealing them. So the right thing to do, on this simple utilitarian calculation,  is not to steal the sweets.

The happy-drug counter-example

One glaring problem with the simpler forms of utilitarianism is that they seem prone to an obvious sort of counterexample. What if we could make everyone feel wonderfully happy by constantly injecting them with a happy-drug? Would that be the right thing to do, morally speaking?
No. Turning everyone into blissed-out drug zombies would be wrong. Making people “feel good” may be of some moral importance. But it’s not of overriding importance.

John Stuart Mill
Higher and lower pleasures

One way in which a utilitarian might respond to this sort of counterexample is to distinguish between higher and lower pleasures. J.S. Mill does precisely this. An intense, drug-induced reverie may be agreeable. But it produces a pleasure of a very shallow sort compared to, say, the pleasures of the intellect - which, according to Mill, include the appreciation of poetry and philosophical debate. Doping people up to the eyeballs may induce an intense sort of pleasure, but it deprives them of the opportunity to enjoy higher, more important pleasures. Which is why it would be the wrong thing to do.

So unlike Bentham – pleasures differ not just quantitatively but qualitatively as well.

            This distinction between higher and lower pleasures may get the utilitarian off the hook so far as the “happy-drug” objection goes, but it strikes many as objectionably elitist and paternalistic. Is the pleasure of engaging in philosophical debate or listening to Mozart reallysuperior to that of filling ones belly with chocolate ice-cream? Aren’t such distinctions mere snobbery?
Mill thought not. He argues that only those who have experienced both the higher and lower pleasures are in any position to judge which are best, and those who have had the luxury of experiencing both tend to prefer the higher.
But is this true? Actually, many of those in a position to enjoy both kinds of pleasure like to be seen to enjoy the higher while secretly over-indulging their taste for the lower.

Transplant case

Another classic counterexample to utilitarianism is the transplant case. Suppose you’re the doctor in charge of six patients. The first has a minor medical condition easily cured. The others have failing organs and will soon die without transplants. No replacement organs are available. But then you discover that the first patient can provide perfect donor organs. So you can murder the first patient to save the rest. Or you can cure the first and watch five die. What is the right thing to do?
            A simple utilitarian calculation suggests you should kill one patient to save the rest. After all, that will result in five happy patients and only one set of grieving relatives rather than one happy patient and five sets of grieving relatives. Yet the killing of one patient to save the rest strikes most of us very wrong indeed.

Act and Rule Utilitarianism

Some utilitarians attempt to deal with this kind of case by distinguishing between act and rule utilitarianism.

Act utilitarianism – each action should be judged solely on its ability to produce the greatest happiness.

Rule utilitarianism - we should follow those rules that will produce the greatest happiness.

A rule utilitarian might say that “Do not kill the innocent” and “Do not punish the innocent” are rules that increases happiness overall. So we should always follow these rules, even on those rare occasions (such as the transplant case) when following them does reduce happiness.

Mill’s Rule Utilitarianism

J.S. Mill suggests that we should be rule utilitarians except where we face a dilemma generated by two rules. Then we should appeal directly to the principle of utility itself.

For example: “do not steal” and “do not allow people to starve” are rules that will generally produce greater happiness. But where I can feed a starving person only by stealing food for them, I must break one or other of these two rules. Under these circumstances, I must then revert to act utilitarianism and judge which action will produce the happiest outcome.

So Mill and Bentham differ in that:

1. Bentham is an act utilitarian whereas Mill favours a form of rule utilitarianism
2. Bentham does not distinguish between higher and lower pleasures, Mill does.

A criticism of rule utilitarianism

Why I should follow the rule even in a situation where the result is less happiness? It seems ridiculous to insist that I should tell the truth to the serial killer who demands to know where my children are hiding, even if telling the truth does in generallead to increased happiness. Indeed, it would surely be wrong for me to tell the truth under such circumstances. But it seems that is not something the rule-utilitarian can allow (or can Mill deal with it?)


Nozick’s Experience Machine

Here’s one last apparent counter-example to utilitarianism from the contemporary philosopher Robert Nozick. Suppose a machine is built that can replicate any experience. Plug yourself in and it will stimulate your brain in just the way it would be stimulated if you were, say, climbing mount Everest or walking on the Moon. The experiences this machine generates are indistinguishable from those you would get if you were experiencing the real thing.
For those of us that want to experience exotic and intense pleasures. this machine offers a fantastic opportunity. Notice it can even induce higherpleasures - the pleasure gained from engaging in a philosophical debate or listening to a Beethoven symphony need be no less intense for being experienced within a virtual world.
            Many of us would be keen to try out this machine. But what of the offer permanently to immerse yourself in such pleasure-inducing world?
Most of us would refuse. Someone who has climbed Everest in virtual reality has not really climbed Everest. And someone who has enjoyed a month-long affair with the computer-generated Lara Croft has not really made any sort of meaningful connection with another human being.
The truth is we don’t just want to “feel happy”. Most of us also want to lead lives that are authentic. Someone who (like Truman in The Truman Show) had unwittingly lived out their whole life within a carefully controlled environment might subjectively feel content and fulfilled. But were they to be told on their deathbed that it had all been a carefully staged illusion - that there had been no real relationships, that their “achievements” had all been carefully managed - then they might well feel that theirs was, after all, a life sadly wasted.
Again, it seems that “feeling good” is not, ultimately, what’s most important to most of us. Nor, it seems, is arranging things to maximize the feeling of happiness always morally the right thing to do. Secretly plugging everyone into a deceptive, Matrix-like pleasure-inducing virtual world would surely be very wrong indeed.

Sunday, 8 December 2013

Legal Aftermath of Jameis Winston not being charged with rape

Last week, Florida State quarterback Jameis Winston was cleared in a controversial rape investigation. I wrote about the legal aftermath in an analysis for Sports Illustrated and also spoke with Tom Goldman of NPR's Morning Edition.   In addition, Maggie Gray, B.J. Schecter and I discussed the news in a video for SI.com:

Saturday, 7 December 2013

Breaking News from the San Jose v. MLB Lawsuit

Ahead of next Friday's case management conference, the parties in the San Jose v. MLB lawsuit filed a joint case management statement last night (for earlier coverage of the suit click here).  While the parties laid out their positions on the strategic issues I discussed last month, the biggest piece of news coming out of the filing is that MLB now alleges it has already formally rejected the Oakland Athletics' proposed move to San Jose.  This is the first time that MLB has acknowledged issuing a decision on the matter.

In particular, MLB states in the filing (available here) that Commissioner Bud Selig sent the Athletics a letter on June 17, 2013 (one day before San Jose filed its lawsuit), notifying the team "that he was not satisfied with the club’s relocation proposal."  Consequently, MLB contends in the filing that the city's sole remaining claim for relief is rendered moot, because the league provided a decision within the two-year window allegedly anticipated by the city when it entered into the land option agreement with the Athletics, and thus did not wrongfully interfere with the agreement by unduly delaying its resolution of the matter.

Unfortunately, the court filing does not include a copy of the June 17th letter, so it is unclear how definitively Commissioner Selig rejected the proposed relocation.  It is of course possible, and perhaps even likely, that MLB would reconsider the move in the future.  Meanwhile, MLB states in the filing that it is waiting for the city to agree to an appropriate confidentiality order before supplying it with a copy of the communication, suggesting that the letter will not see the public light of day for quite some time (if ever).  In any event, this is the first indication that MLB has reached a long-awaited decision in its more than four-year consideration of Oakland's proposed move to San Jose.

With respect to the issues to be discussed before Judge Whyte next week, both San Jose and MLB urged the court to retain its supplemental jurisdiction over the remaining state law claim, on the basis that the judge is already familiar with the issues in dispute in the case.  However, while the city argues the court should allow discovery to commence immediately for the claim, MLB asks the court to temporarily stay the claim in deference to the Stand for San Jose, et al., v. City of San Jose litigation proceeding in California state court.  In that case, the plaintiffs are challenging the legality of the city's land option contract with the Athletics on several grounds (both environmental and procedural).  MLB alleges that should the option agreement be declared invalid in the Stand for San Jose litigation, then the city's sole remaining ground for relief in the suit versus MLB (alleging that MLB wrongfully interfered with the option agreement) will be rendered moot.

Meanwhile, San Jose predictably encouraged the court to immediately certify the antitrust issues in the case for appeal pursuant to Federal Rule of Civil Procedure 54(b), while MLB argued that an immediate appeal was unwarranted.  MLB contended that bifurcating the litigation is unwarranted because the remaining state law claim in the case arises out of the same factual relationship as the dismissed claims, and thus that they should all be appealed together upon completion of the district court proceedings.

While it will be interesting to see how Judge Whyte elects to proceed with the remaining claims following the hearing next Friday, the biggest news coming out of yesterday's filing is undoubtedly that MLB now alleges that it has already ruled on Oakland's proposed move to San Jose. 

Thursday, 5 December 2013

Fan warning cards

Deadspin reports, with photo.

Assuming this is real, it raises every issue I have ever written about with respect to fan expression. Any "NBA Fan Code of Conduct" must comport with the First Amendment, at least at publicly funded or publicly owned arenas. Since little fan speech actually runs afoul of any known First Amendment categories, such an eviction would not satisfy constitutional scrutiny.

Friday, 29 November 2013

The Evil God Challenge and the "classical" theist's response

On another blog, FideCogitActio, some theists of a "classical" stripe (that's to say, like Brian Davies, Edward Feser) are criticisng the Evil God Challenge (or I suppose, trying to show how it can be met, or sidestepped). The main post includes this:

In book I, chapter 39, Aquinas argues that “there cannot be evil in God” (in Deo non potest esse malum). Atheists like Law must face the fact that, if the words are to retain any sense, “God” simply cannot be “evil”. As my comments in the thread at Feser’s blog aimed to show, despite how much he mocks “the privation theory of evil,” Law himself cannot escape its logic: his entire argument requires that the world ought to appear less evil if it is to be taken as evidence of a good God. Even though he spurns the idea that evil is a privation of good, his account of an evil world is parasitic on a good ideal; this is no surprise, though, since all evil is parasitic on good (SCG I, 11). Based on the conclusions of several preceding chapters, Aquinas contends that ”God is goodness, and not simply good [Deus autem est bonitas, non solum bonus]. There cannot, therefore, be any non-goodness in Him. Thus, there cannot possibly be evil in God.” He adds that

“since God is His own being, nothing can be said of Him by participation…. If, then, evil is said of God, it will not be said by participation, but essentially. But evil cannot be so said of anything as to be its essence, for it would lose its being, which is a good (Sic autem malum de nullo dici potest ut sit essentia alicuius: ei enim esse deficeret, quod bonum est)….”
This exposes one of the other key defects of Law’s notion of an evil God: insofar as that “god” would be the cause of all lesser evils, it would be the most evil thing, but the more evil a thing is, the less substantial, the less existent it is, and thus the less potent it is. If Law wants to take seriously the theological terms which he’s trying to hoist by their own petard, he would have to agree that a maximally evil god is not only ontologically incoherent, but also the worst possible candidate for being The Creator of All (though I am anticipating the upcoming argument). God could not be essentially evil, and thus could not be the exemplary evil which grounds the evil of all created things. As we already knew, Law is just blowing smoke.

My responses thus far:

You have missed the point, just as Feser did, which is that it makes no difference to the EGC whether or not an evil god is an incoherent concept. As I spelt out repeatedly (on both Feser’s bog and also in my original paper): if you would rule out an evil god *in any case* just on the basis of the amount of good that exists notwithstanding any conceptual incoherence involved in the concept (which was not even established, but hey ho) then you should rule out the good god on the same basis. At least deal with my argument rather than a straw man.

Feser’s response to the EGC is probably the weakest I have come across – it’s actually dealt with in my paper, which he clearly did not even bother to read properly. A better response, thought still inadequate, is to try sceptical theism (as Craig, in effect, did).

I wonder which “classical” position you personally have in mind, given I’ve come across several variants. Perhaps something like this one: if your God can unleash vast and horrific suffering for no good reason whatsoever (other than it’s God’s non-personal nature to do so) and yet still qualify as “good” as you define the term, then the problem of evil is solved!

To this I now add:

The "evil is a privation" move might appear to solve the problem of evil at a stroke - define "good" such that what God creates - the cosmic cheese, as it were - is always "good", and define "evil" as holes or "privations" in that cheese, and voila: no problem of evil! "Hey that young kid's slow and horrific death by cancer is just a privation of good, so no evidence against theism there!" But of course this does not really deal with the problem. The holes in the cheese clearly exist, and were created by God, and we might ask why the cosmic cheesemaker made them, and indeed made them so horrifically large.

What if "good" is defined thinly, such that "good" applies trivially to God plus whatever God creates, no matter how horrific and agonizing it might be. This suggestion deals with the problem of evil, though in a way that will probably leave a lot of Christians, etc. somewhat perplexed (and perhaps concerned about  questions such as: (i) Why should an impersonal cosmic sluice through which all stuff pours - all of which qualifies by definition as "good" no matter how agonizing and pestilential much or even all of it happens to be - deserve our worship? (ii) Would someone's [e.g. Jesus] having gone round behaving like Caligula [or Satan] be any evidence at all against his being divinely "good" [apparently not!]).

We should be on the look out for some "moving the semantic goalposts" here. As defined above "good", is a pretty thin notion. Once the theist attempts to give more substance to the concept of divine "goodness" (beyond saying e.g. "good" = God and whatever he does), the evidential problem of evil is likely to re-emerge.

E.g. is God's "goodness" a sound basis for supposing he won't constantly lie to and deceive us for no benevolent reason"? If not, how can the theist reasonably believe any divine pronouncement or revelation? If so, why is God's "goodness" not similarly a sound basis for supposing God won't unleash untold agony for no benevolent reason [which re-introduces the problem of evil])?

The temptation for the theist caught in this dilemma will be to assert the content when it suits them ("But of course God doesn't lie regularly - he is good!") but then whip it away whenever the problem of evil raises its threatening head ("Oh how unsophisticated of you - you fail to realize I refer to God in the classical sense!")

Tuesday, 26 November 2013

Football and limiting rules

In breaking down and defending the infield fly rule, I rely on the concept of limiting rules--special rules designed to recalibrate cost-benefit disparities that appear if some plays are left to the game's ordinary rules. I identify four features that, when present, show the need for limiting rules. I also discuss situations in which the absence of one or more feature shows that a limiting rule is not necessary. In a work-in-progress (hopefully forthcoming), I apply this model to football, focusing on several plays from the last two Super Bowls to consider situations that do or do not call for limiting rules.

But on Slate's Hang Up and Listen Podcast (go to around the 51:00 mark), Josh Levin identifies a play that exposes another hole in the rules that might justify a limiting rule. A defensive team trailing in the final minutes commits a penalty on a play on which the offense had gotten a first down; the penalty stopped the clock, even though the clock would have continued to run without the penalty.  In other words, it functionally gave the trailing defensive team a free timeout, forcing the offense to run more plays in order to run out the clock. This, Levin argues, incentivizes teams to intentionally take penalties to stop the clock and give themselves extra, an idea discussed on Football Commentary almost a decade ago. This arose with 2:14 remaining in last Thursday's Saints-Falcons game (the trailing Falcons committed defensive holding on a play) and arguably gave the Falcons a chance to get the ball back one final time (although they did not score) and still lost.

This seems like a game situation in which a limiting rule is warranted, as it is defined by all four features: 1) the play produces a significantly inequitable cost-benefit disparity, as the trailing defensive team can stop the clock and give itself more time to get the ball back, to the detriment of the leading offensive team, which receives no benefit from the play; 2) the defense entirely controls the play, as the offense can do nothing to stop an intentional penalty or the clock from stopping, even by declining the penalty; 3) the cost-benefit disparity arises because the defense intentionally commits a penalty, something teams do not want to do under ordinary rules and practices and something that rulemakers probably do not want them doing; and 4) the opportunity to gain those advantages incentivizes the defense to make this move regularly.

In fact, the NFL recognized this gap iand tried to stop it with a limiting rule. The problem seems to be that the limiting rule has not gone far enough.

This play sits at the intersection of three rules.
     1) Under Rule 4-3-2(f), when the clock is stopped following a foul by either team, the clock starts as if no foul had occurred. So if the clock would have kept running but for the foul, the clock starts as soon as the ball is ready; if the clock would have stopped but for the foul, it starts on the next snap.
     2) But Rule 4-3-2(f) contains three exceptions: The clock starts on the snap when the foul occurs in the last two minutes of the first half, last five minutes of the second half, and when a specific rule prescribes otherwise.  R. 4-3-2(f)(1), (2), (3). 4-3-2(f)(2) covered the Saints-Falcons game.
     3) Finally, there is a specific rule prescribing otherwise:  Rule 4-7-1 prohibits teams from "conserving time" by committing certain acts, including "any other intentional foul that causes the clock to stop." R. 4-7-1(f). The penalty for this act is a 10-second run-off and the clock starts when the ball is ready.

Rule 4-7-1 is a limiting rule. It closes a gap in the rules by imposing the outcome that would have resulted on the play--clock runs, including the ten seconds it would have taken for the ball to be spotted--and putting us in the same place as if the had not been called. By imposing that outcome, the limiting rule eliminates any incentive to commit intentional penalties and thus to act in a way contrary to the game's expectation. The problem is that the limiting rule does not go far enough--it is limited to the final minute of each half, so it does not reach intentional fouls that occur with slightly more time remaining, even if those time-conservation incentives are as present. That seems to have been the case in the Saints-Falcons game. The rule also does not address unintentional fouls, meaning a trailing team might gain that significant cost-benefit advantage, even if only accidentally.

The answer is to expand the limiting rules. Perhaps Rule 4-7-1 should be extended to the final three minutes (at least of the second half), when a leading team is already in time-wasting mode and the trailing team is in time-conserving mode. The increasing sophistication with which NFL coaches understand and strategize those final minutes--discussed weekly on advanced metrics sites--suggests teams have an incentive to begin doing this earlier than the one-minute mark.

Better still, eliminate the exceptions in Rule 4-3-2(f) for the final five minutes of the game.  Instead, the clock always should start for the next play as if no foul had occurred on the previous play; if the clock would have continued running, it should keep running (as would have happened in the Saints-Falcons game). Rule 4-7-1 then could perform the narrower function of disincentivizing intentional fouls by imposing an additional cost--a 10-second run-off-- for any intentional fouls committed to stop the clock. In either case, the trailing team would no longer receive (intentionally or unintentionally) the equivalent of a time-out by committing a penalty, thereby presumably removing the incentive to commit the intentional foul.

This is a fun question, because it illustrates how rules collide. Although Levin says in his commentary that he spoke with people from the NFL and they did not see this as a big problem. My best guess on that is two fold. First R. 4-3-2(f)(1) and (2) probably were designed to create more excitement in close games, by allowing the clock to stop more, allowing for more plays, and, perhaps, more comebacks. That purpose has now run into possible gamesmanship in taking penalties, but the league may consider the balance between excitement and gamesmanship properly struck.

Monday, 25 November 2013

NHL Concussion Litigation

Will Leeman et al v. NHL threaten the NHL? My take for SI.com.

Freakonomics and sports rules

The new Freakonomics podcast discusses "spontaneous order," illustrating it with discussion of the rules and enforcement regime of ultimate frisbee, which is played (even competitively) without officials. Fun discussion.

Saturday, 23 November 2013

Update on the San Jose v. MLB Lawsuit

Following the release of the district court's opinion in the San Jose v. Major League Baseball lawsuit last month, many assumed that the city would seek an immediate, interlocutory appeal.  (For earlier Sports Law Blog coverage of San Jose's suit and the ongoing dispute regarding the proposed relocation of the Oakland A's, click here.)  As Howard Wasserman noted at the time, though, it was unclear whether San Jose could in fact immediately appeal the decision.  Because the court's opinion was largely premised on baseball's well-established antitrust exemption, Judge Whyte's decision did not present a "substantial ground for difference of opinion" as required under 28 U.S.C. 1292(b), and as a result it did not appear that San Jose could immediately pursue an interlocutory appeal in the case.  Indeed, nearly than a month and a half later the lawsuit is still pending in the Northern District of California.

However, Judge Whyte has signaled that he may be willing to allow the city to appeal the decision shortly.  In a hearing scheduled for December 13th, the judge has asked the parties to be prepared to discuss two primary issues: (1) whether the court should retain supplemental jurisdiction of the remaining state law claims in light of the fact that the federal claim in the case was dismissed, and (2) whether a final judgment should be entered with regards to the previously dismissed claims pursuant to Federal Rule of Civil Procedure 54(b), a provision that allows courts to enter final judgment in a case once some, but not all, of the claims in the suit have been resolved.  Under Rule 54(b), the court must determine that there is "no just reason for delay" in entering final judgment for the dismissed claims. 

Presumably, San Jose will seek to persuade the court to retain jurisdiction over the remaining state law claims -- so that it can begin to pursue discovery in the case in an attempt to obtain some leverage over MLB -- while at the same time urging Judge Whyte to enter a final judgment on the dismissed claims so that the city can appeal them to the Ninth Circuit Court of Appeals.  Meanwhile, MLB will likely contend that the court should not retain supplemental jurisdiction over the remaining state law claims, but instead dismiss them outright.  However, should the court opt to retain jurisdiction over the state law claims, I would expect MLB to argue that it should then refrain from issuing a final judgment under Rule 54(b), in hopes of avoiding the prospect of simultaneously litigating the case on two separate tracks.

Assuming the court decides to enter a final judgment -- either under Rule 54(b), or following the dismissal of the remaining state law claims -- San Jose's immediate prospects on appeal do not appear to be particularly strong, given that the Ninth Circuit has previously affirmed the dismissal of a suit raising similar franchise location issues under baseball's antitrust immunity.  Portland Baseball Club, Inc. v. Kuhn, 491 F.2d 1101 (9th Cir. 1974).  Nevertheless, a pending appeal would continue to give the city some leverage over MLB in any negotiations regarding the A's proposed move to San Jose.  Perhaps more importantly, pursuing an immediate appeal would also expedite the city's timetable for a potential Supreme Court appeal.  The prospect of the Supreme Court reconsidering baseball's prized antitrust immunity would undoubtedly be a significant cause for concern for MLB, and could finally convince the league to approve the A's relocation.

Friday, 22 November 2013

RIP: Michael Weiner

One of the advantages of being actively engaged in the "sports law" community is the benefit of meeting some tremendously intelligent and charismatic individuals.  Our society lost one of those people yesterday when Michael Weiner finally succumbed to brain cancer.

Weiner, the MLB players' union executive director, took over in December of 2009 following the departure of Donald Fehr.  A fierce labor attorney, Weiner displayed the ability to advocate for the players while swiftly earning the respect of the owners, Commissioner Bud Selig and all involved in the business of baseball.

Many of us were lucky enough to have met Michael, serving on a panel at a law school conference or shaking his hand at the annual Sports Law Association's conference.  For those of you who didn't have the benefit of meeting or hearing Michael speak, spend some time researching what he accomplished over his all too short tenure with the union.  And when first pitch comes around this spring, please don't forget to tip your cap....

Thursday, 21 November 2013

On rules and sport

Great commentary from Neil Buchanan at Dorf on Law on the arbitrary nature of the rules of sport, with a special focus on whether football is still "football" under the new player-safety rules.

American Needle's Lesson for the New Jersey Sports Wagering Case

News broke late last Friday that the U.S. Court of Appeals for the Third Circuit had denied New Jersey's request for an en banc hearing in the on-going sporting wagering lawsuit.  After losing at both the District Court and Court of Appeals level, the state is now down to its last option - the U.S. Supreme Court.  Previous statements from the New Jersey side indicated that Gov. Chris Christie is inclined to take the case to the Supreme Court.  If so, the state will file a petition for writ of certiorari within the next 90 days.  Like all petitions, the chances that the Supreme Court opts to take the case are slim.

If New Jersey does indeed seek review by the Supreme Court, the conventional wisdom is that the sports league plaintiff quintet (NCAA, NBA, NFL, NHL, and MLB) would oppose review by SCOTUS given that the leagues have already prevailed twice earlier.  Such opposition could manifest itself in one of two ways: (i) by filing a motion in opposition to New Jersey's petition or (ii) by doing nothing.  However, as we learned in the American Needle v. NFL, et al case several years ago, there is a third option - the sports leagues could join New Jersey in seeking review by the Supreme Court.

Recall the American Needle case single entity antitrust case and its procedural history.  The NFL and its co-defendants prevailed at both the District Court and Seventh Circuit Court of Appeals before moving to the Supreme Court in 2010.  Nevertheless, the NFL decided to request review at the highest level.  In relevant part, here is what the league wrote in their pleading -

"The NFL Respondents are taking the unusual step of supporting certiorari in an effort to secure a uniform rule that (i) recognizes the single-entity nature of highly integrated joint ventures and (ii) obviates the uncertainty, chilling effects, and forum shopping that inevitably result from the current conflict among the circuits."

In other words, the NFL desired the Supreme Court to memorialize their earlier court victories.  With Minnesota and California promulgating sports betting-related legislation and watching the New Jersey case closely, it is possible that the NCAA-NBA-NFL-NHL-MLB plaintiffs may opt to follow the same appellate strategy now.  While the Third Circuit's decision regarding PASPA constitutionality is persuasive nationwide, only a Supreme Court decision would be binding in every circuit. 

Instances of a prevailing party seeking further review of a case are exceedingly rare.  Nevertheless, given the recent history of it happening in another high-profile case involving one of the same litigants, it is a (remote) possibility worth being aware of.

Saturday, 16 November 2013

A parody of C.S. Lewis's The Screwtape Letters (from my book Believing Bullshit) - on the anniversary of his death

Here is the final bit of my book Believing Bullshit.

What follows is a cautionary bit of fiction, inspired by C.S. Lewis's fiction The Screwtape Letters, Letters from a Senior to a Junior Devil, which are fantastically entertaining and often very insightful. I don't claim my mirror letters are as good as Lewis's, but they are offered in the same cautionary spirit.

Just so we are clear, what follows is not supposed to be an attack on religious belief per se. I'm certainly not trying to argue here that all religious folk are victims of deliberate scams, or indeed any sort of delusion. Nor am I attacking the content of any particular religious or other view (incl. some well-known cults).

However, I do think that some religious folk have been encouraged to think in ways that effectively trap them inside a bubble of belief - in an intellectual black hole, as I put it in the book (and plenty of religious folk would agree with me about that, of course). That is the moral of the piece. I am flagging up some of the warning signs of such "black hole" thinking (which, as I go to pains to explain in the book, also crop up in non-religious spheres - atheists too can be guilty, though I also argue that religous belief systems are particularly prone).

I refer in places to specific mechanisms explained in the book, such as "I Just Know!" and Going Nuclear (follow these links if you are interested, or better still buy the book!)
The Tapescrew Letters
Letters from a Senior to a Junior Guru
(Inspired by C. S. Lewis’s The Screwtape Letters)

I have no intention of explaining how the correspondence which I now offer to the public fell into my hands. One or two details have been changed to save reputations, but the letters are substantially unrevised and intact.   
Bear in mind that the author—an eminent guru within some minor, recently invented cult—is a charlatan, as are her colleagues. She cannot be trusted to tell the truth, not even to her nephew. Her views about mainstream religion—and Christianity in particular—are clearly cynical and no doubt unreliable. I leave you to judge what is true and what is not.
The letters contain few clues as to the specific teaching of the cult. There is a limited amount of jargon. “Glub” seems to be the name of some sort of deity or god, “Boogle” the name of some particularly evil and terrifying being, and “doob” a term that members of this cult use to refer to outsiders. Glub and and Boogle may be two facets of a single cosmic being, or two separate, competing beings involved in some sort of cosmic battle—it’s hard to be sure.
Be warned—the letters make pretty depressing and sickening reading. Still, they do usefully reveal just how manipulative and scheming somepeople can be. Thank goodness such deliberate charlatans are few and far between.
Stephen Law
19 August 2010

The Bodgers Centre
2 January 2008

My Dear Woodworm,
How pleased I was to hear of your graduation from our guru training college—and with a distinction too. Great things are expected of you, as I’m sure you’ve made aware. I see you have been assigned to one of our newest recruitment centres—in Oxford. That is also excellent news. There’s plenty of fodder there. But you now need to prove yourself. And that is where I come in. As you know, our Leader prefers Juniors to be mentored by a Senior they know well. As I am your aunt, I have been asked to watch over you and provide assistance wherever I can.
I cannot be there in person, I’m afraid. We are having something of a crisis here at Bodgers—one of our Juniors was caught indulging in some questionable activity with a couple of young recruits and we’re having a hard time keeping a lid on it. It’s all hands to the pump at Bodgers, at least for the next few months. Still, I can correspond with you, and advise wherever I can. Just send me regular progress reports, if you will.
After your intensive training, you will be intimately acquainted with both our aims and methods. And you now possess your own copy of the Handbook (which, I need hardly add, you must guard with your life—it must never fall into the hands of a recruit). We have spent thousands of pounds and a year of our time honing your skills, so you won’t be surprised to hear we now expect results.
Our aim is to ensnare human minds, to make them true and faithful servants of our teaching. Let me focus your attention on our Leader’s opening remarks in the Handbook:
Our aim must be to instil in our patients such patterns of thought that their minds become wholly ours—so that they become impregnable fortresses to anyone else who might try to prise their way in. But we must do this while all the time maintaining the illusion that these ways of thinking are perfectly ‘rational’ and ‘reasonable.’
Creating that illusion, Woodworm, is the clincher, the real trick. We must make minds that are fortresses to those outside and prisons to their occupants. We must forge minds in which we have succeeded in entrenching such effective mental roadblocks and self-perpetuating habits of thought that their owners will never be able to think their way free again. For then they will be our willing servants. But our “patients,” as our Leader likes to call them, must never suspect. The faithful must fall for the illusion that they are the ones whose minds have been set free and that it is everyone else who remains mentally imprisoned!
To become the jailer of another’s mind—what a prospect! An impossible task? By no means. Difficult, yes. But armed with your training, the Handbook, and a firm determination to succeed, let me assure you that you will succeed! I have converted literally hundreds of doobs over the last few years, and I am confident that you will do better still.
Which brings me to our movement’s current Achilles’ heel, and my sternest word of warning. As I say, the key to your success lies in maintaining an illusion—your patients must not suspect, not even for a second, that you are deliberately deceiving and manipulating them, that you intend to become their mental jailer. We have one very obvious disadvantage compared to the promoters of most other self-sealing bubbles of belief. We know we are deceivers. We know exactly what we are doing as we pull our patients’ strings. Your local religious minister may use many of the same techniques as you, but he really believes the doctrines he promotes. He is quite convinced he is doing nothing more than opening people’s eyes to the truth—setting them free. Which means he does not need to fake anything. His voice conveys real warmth. His eyes glisten with genuine fervour. The same is true of the political zealot peddling her leaflets on the street corner. At least she believes the claptrap she peddles. She doesn’t have to pretend.
We, the first generation of Followers, know that the beliefs we are selling are an ingenious fiction concocted by our Leader. While we plan that future generations will be sincere devotees, we, the First Wave, must unfortunately learn to fake that brand of misty-eyed enthusiasm. Take it from me, it’s an illusion difficult to sustain for any length of time.
Knowing you as I do, I think this is what you will find most difficult, the challenge you will have to work hardest to overcome. As that unfortunate incident involving your father’s car made clear, you are not a good liar. And you are prone to overintellectualize. That might have proved an advantage in the academic world of our college, but out there in the real world, it produces pitfalls.
True, because we know we are deceivers, we have a great advantage over our sincere counterparts in other cults. We have studied the techniques necessary to enslave minds coldly and dispassionately—even scientifically—and have thus became far more knowledgeable and skilful than our competitors in their application. But do not underestimate the advantage our counterparts have over us. An advantage that will become quickly apparent to you as you embark on your first project. The truth is, it is only later that the intellectual traps and snares come into play. You will doubtless be eager to apply the bogus arguments, seductive fallacies, and other intellectual sleights of hand that you have mastered so well. But patience, patience! Take that route too quickly, and your victim will smell a rat.
The first step in ensnaring any mind is to focus on your patient’s emotions. Emotion is the unlocked door on which we need only gently push to gain initial entry. Your patient must be seduced into feeling comfortable with you, liking you, admiring you. You must appear to exude warmth and compassion. You must seem to possess both depth and sincerity. You must be able to touch their sleeve, look into their eyes, and make that special connection. If they suspect, even for a second, that you’re a fake, the game is up. Their critical defences will come crashing down and your job will be one hundred times as hard. Fake sincerity—that’s the thing. If only we could bottle it.
Here’s my suggestion. Focus on one patient to begin with. That’s a far more effective way of sharpening your technique. But how to find your first recruit?
My advice is to join some clubs: chess, model making, hiking, dance, acting, that sort of thing. It doesn’t matter what, just so long as there’s plenty of opportunity for one-to-one or small group chat. Strike up conversations with people in cafés and bars. Keep returning to the same places, so that you become a familiar presence. Slowly, you will build a circle of acquaintances. Appear confident and positive. Be fun to be around. And remember—no mumbling into your coffee. Be direct. Above all—make eye contact. Then, without appearing to pry, begin to ask them about themselves. They’ll be more eager to tell than you might imagine. Slowly build up a picture of their emotional life, of their hopes and fears, of what they most care about. Pretend to open up to them, you’ll find that they will then open up even more. The more they come to trust you, the more vulnerable to your wiles they will become. Then, slowly and carefully, begin to draw up your plans.
Good hunting!
Your affectionate aunt,

The Bodgers Centre
4 March 2008

Dear Woodworm,
My congratulations! You have assembled an impressive collection of “friends,” built up a picture of their emotional vulnerabilities, and even selected your first patient. A thirty-two-year-old woman somewhat unhappy at work, few close friends, feeling a little lonely, still waiting, with increasing anxiety, for that “special someone” to come along and fill her life with love and meaning. She looks an excellent prospect. You have even let her half imagine that the special someone might be you!
The idea of the dinner party was a masterstroke, Woodworm. A small, intimate setting in which the conversation can be steered gently in the direction you desire without anyone becoming particularly suspicious. Just you, your patient, and two other Juniors playing the role of “friends.” I have no idea why, but sharing food with someone always helps create a special bond. A little wine to lower the inhibitions, just the right questions asked, seemingly in a casual, offhand way: “Do you think that when you’re dead, that’s it?” I particularly approve of “I used to worry about where my life was headed.”
You say your little fake confession of earlier torment caused a tear to appear in her eye. Luckily, you didn’t overdo it. You gave just a hint that perhaps you had a deep secret, a source of inner contentment and security, of which she had managed to catch a momentary glimpse. And, once her curiosity was fired, you changed the subject, so she got not even a whiff of the fact that she’s the fish on your hook. She was intrigued and left wanting to know more.
Most important of all, she left feeling good. She thought she’d communicated in a special way. She felt she had really been given a rare opportunity to address things that had been gnawing away at her. That feeling, Woodworm, that emotion you caused her to have, is our Archimedean point—the fulcrum on which our whole enterprise now turns.
In a few weeks, you will invite her to the Retreat. But not yet. I want to hear you have made real progress in the meantime. First, she must want to know more about that “inner strength” you seem to exude, that quiet certainty you have. Get her wondering where it comes from? If shecould acquire it too? Leave clues. But no details just yet.
Why not? The truth is that the core beliefs of almost any cult or religion, if written down in unvarnished prose on the back of an envelope, will strike anyone unfamiliar with them as ridiculous. “You believe that?” they’ll say, dumbfounded. “Why on Earth do believe that?!”
            That is precisely the reaction you’ll get from this doob if you play your hand too soon. “If only . . .” I often find myself thinking. If only we had access to them when they are children, when their intellectual and emotional defences are so much weaker, while they exhibit such uncritical, sponge-like eagerness to accept whatever a grown-up tells them. One day, I hope, we will have our own schools. Portraits of ourLeader will beam serenely down from ourclassroom walls. Each day will begin with the singing of one of our enervating anthems. The curriculum will devote time every day to the study of ourLeader’s inspiring words. Think of the opportunity such institutions will give us! But it’s early days. We don’t have them yet.
What such schools are after, of course, is usually not, as some of you novices seem to think, the opportunity to churn out mindless automata uncritically devoted to the cause. No, no. Desirable though that would be, it is an entirely unrealistic expectation given the unfortunate fact that the little darlings are exposed to so many rival ideas and pressures outside the school gates. Such ideas and pressures have a powerfully corrosive effect on those in which they’re indoctrinated inside school.
No, it’s impossible for a school to achieve a high degree of mindless acceptance without, say, the assistance of a family with very tight control over to whom their children speak and to what ideas they are exposed, a family that reinforces the indoctrination with further psychological manipulation both inside and outside the home, including subtle or not so subtle threats of complete social ostracism should the child ever leave the faith. This is the kind of assistance most faith schools don’t have.
Today’s post-Enlightenment, secular culture is wonderful in that it offers new movements such as our own a voice in the marketplace of ideas. It thus gives us a chance to enslave the minds of the unwitting. But, at the same time, it puts pressure on us to sign up to certain liberal ideals that are, in truth, a great obstacle to our mission—ideals such as that people should be encouraged to think and question, should make their own judgements, should not to be heavily psychologically manipulated as children, and so on. Which is why we have to pretend that we want only to give young people an “opportunity to explore their spiritual side” and other such nonsense.
Mindless followers are, I repeat, not what the schools of the schools of the mainstream religions usually aim for (though some do). They aim merely to till the soil and sow the seeds of faith, seeds that they hope may one day bloom.
Here’s the real secret, Woodworm—gain access to the mind of a child and you can apply the anaesthetic of familiarity, enough to last a lifetime. To a child, the barmy doesn’t seem barmy. Get the child to feel that our beliefs are actually perfectly natural and sensible and then, when the child grows up, the harsh, barmy edges of doctrine will no longer stand out like a sore thumb. Our thoughts will seem comfortably familiar, particularly if they have been endlessly associated with powerful emotional experiences and rites of passage—weddings, funerals, bar mitzvahs, and so on, For such an adult, ludicrous beliefs no longer seem particularly ludicrous. In fact, such beliefs can feel like “coming home.”
But I digress, Woodworm. Our own schools remain a fantasy for the time being. I mention them only to flag up a further advantage the mainstream religions have over us on the emotional front. Their schools may not churn out true believers. But they do produce minds that have at least been tilled and prepared, that are at least not entirely unreceptive to their doctrines. Indeed, their belief systems have in many cases successfully been woven into the fabric of the societies they occupy. To nonbelievers raised in such a society, accepting even a ludicrous set of beliefs can seem remarkably “natural.”
The harsh edges of our nuttiest doctrines, by contrast, would be blindingly obvious to our patients to begin with, were we to reveal them—which is why you must keep them under wraps for the time being. Our patient is not yet ready. The emotional soil must first be tilled.
But it’s not all bad news, Woodworm. We do have at least some advantages over many of our competitors. Remember that, unlike that of the mainstream religions, our own teaching will seem alien and exciting. While we lack the advantage of our patients having been previously anaesthetized to the utter barminess of what we teach, we do at least have the advantage that our doctrines, presented in the right way, can seem exotic and new.
So let’s proceed slowly with your patient. Don’t reveal too much. Otherwise the frankly ridiculous character of some of the beliefs we peddle will be detected and she’ll be off. But we do want to convey a sense of the exciting and exotic.
Here’s what I suggest. Randomly drop feel-good words like “peace,” “contentment,” “spiritual” and “moral,” into your conversation rather more often than might be expected. Keep working on exuding that sense of inner strength and certainty that you have been faking so effectively. Radiate warmth. Touch her sleeve. Find some excuse to mention, seemingly only in passing, that you meditate. For goodness sake don’t use the word “pray”—that’s far too familiar and fuddy-duddy. “Meditate” will sound far more exotic, far more mystical, to her naïve ears.
We want her to sense that there’s something exhilaratingly differenthidden away inside you—that provides you with a source of inner strength and contentment. Something that, perhaps, she could have too.
The questions will come. . . .
Your affectionate aunt,
Agatha Tapescrew

The Bodgers Centre
23 August 2008

My Dear Woodworm,
Yes, as you say, she is hooked. She has heard you speak the name of our movement and she has not flinched. Most importantly, she has agreed to accompany you to the Retreat to “explore her spiritual side.” Fear not—our people at the Retreat know what they are doing.
The key, of course, is to produce a feeling. I once saw a bishop engaged in a debate on the whether Jesus was “the way, the truth and the life.” The bishop, along with a Christian philosopher, was up against a couple of atheists. The atheists were clearly getting the better of the argument and many of the Christians in the audience were beginning to look uncomfortable. In one or two cases, doubt was creeping in. You could see it in their eyes.
The bishop, as last to speak, was masterful. He forgot about reason and argument and all the trappings of “winning” by intellectual means. He lowered his voice and appealed instead to personal experience—an experience relating to what he called “the meaning of life.”
I’ve seen this done before, but the bishop was particularly good at it. He started with jokes, but then gradually began to speak more softly and with feeling. In our quietest moments, he said, each one of us—yes, even a cynical atheist—is aware, deep down, of a light. It’s an awareness of something fundamentally good, of a yearning to be something better than we are. This something is . . .
 . . . Jesus!
There was much sombre nodding from the Christian Union contingent. I noticed their eyes were now strangely lit up. When the bishop sat down, there was moment of quiet, reflective calm before the applause broke out.
Now, at the time, I made the dreadful mistake of thinking that the bishop had lost the debate. The arguments had all gone against him. Only much later did I realize that the bishop had won—spectacularly so, in fact. The truth is that the bishop was not out looking for new recruits that day. His real aim was to shore up the faith of waverers—to ensure that the application of reason didn’t result in the raising of significant doubt. And in that he succeeded.
How? By invoking a feeling. It all begins with a feeling. No one really comes to sincere belief in religious doctrines on the basis of an argument. They come because of how they feel deep down inside.
Different cults rely on different feelings. Some focus in anger and resentment. Others on feelings of helpless, insignificance or submission. But more often than not, the feelings that really do the trick are hope and, most importantly, joy.
The bishop reminded his Christian brethren of a feeling. It didn’t really matter what it was. It could be a sense of loss or disappointment. Of a “hole” in their life. A sense of justice, or injustice. It might even be something as tacky and sentimental as “the strength to carry on” that Mariah Carey sings about in the song “Hero”:

And then a hero comes along
With the strength to carry on
And you cast your fears aside
And you know you can survive
So when you feel like hope is gone
Look inside you and be strong
And you’ll finally see the truth
That a hero lies in you
Of course, the Muslims and Jews in the audience had such feelings too. But when they looked deep inside, they found Allah, or Yahweh or whatever. And the atheists, puzzled, could find nothing more than a feeling. I could see them sitting there, scratching their heads, wondering what on Earth the bishop was on about.
But of course the bishop wasn’t interested in them. His concern was with only the Christians in the audience. The bishop spoke softly and with sincerity and conjured up a feeling—and then reminded the assembled Christians of what they already knew in their hearts—that this inner light is Jesus. And why did this work? Because calling such feelings “Jesus” is such a familiar part of their cultural landscape. They have so often felt such feelings and had it suggested to them that they are experiencing Jesus, that, when they have such a feeling right now, well that’s just how it seems to them. They know it’s Jesus. They can just seehim there, deep down at the bottom of their soul, glimmering. Nothing could be more obvious to them.
That, my boy, is how the bishop won. At the Retreat, your patient will be isolated and disorientated. Her mind will be messed with. She will be taught a little about Glub. But, much more importantly, we will ensure that she has feelings. The fasting, music, chanting, incense, meditation, ritual, the sense of community, of belonging, of that special, felt connection with others that is so rare nowadays—all these things will combine to produce powerful and unusual feelings in her, particularly feelings of hope, and above all, joy. Then, when she is deep in a reverie of such emotion, you will take our patient by the hand, look deep into her eyes and say, in a calm, steady voice, “My dear, in your quietest moments you’re aware of something, aren’t you? You might try to deny it, but you know there’s something down there, at the bottom of your soul, don’t you? It’s a light, isn’t it? A small, still light. Can you see it there, glimmering, like the evening star? Look closer. . . . Closer still . . . See . . . ? Can you see what it is yet . . . ?
It’s Glub, isn’t it?”
And as she looks more and more closely, the recognition will finally break over her: “Oh my gosh! Yes . . . yes. . . . it really is Glub!”
Once she knows through personal experience the truth and reality of Glub, she will very probably be ours forever. No mere argumentwill ever be able to loosen our grip on her. For whenever any such intellectual threat pops up, we need only gently remind her of what she already knows deep in her heart! When critics present her with rational challenges to her belief, she will quietly and confidently reply with the words of Blaise Pascal: “The heart has its reasons of which reason knows nothing.”
Of course, I am simplifying. The recipe we cook up at the Retreat is a complex and heady brew into which is mixed many other important ingredients.
For example, the patient will be shown the good works our Followers do—the compassion they exhibit, helping out in their local community, providing food to the homeless and so on. That will further lower her guard. “These are good people!” she will think. “So much more generous and caring than the people I have spent my life with up to now.”
And then we will repeatedly ask her the question: “But what if this teaching were true? How wonderful would that be! What a prospect! And you have nothing to lose, do you? So why not make the bet? Why not at least give it a try? Go on take the plunge!”
Chances are, she will take the plunge, particularly if she’s surrounded by others whom she sees joyously jumping in. Who wants to be the sad, solitary frump standing at the poolside when everyone else is in there splashing about in delight? She’ll jump. And then we’re in!
But as, I say, it is above all the cultivation of the feelingthat we must focus on. Without the feeling, she’ll may only take a quick dip. What we require is a lifetime’s immersion.
Your affectionate aunt,

The Bodgers Centre
4 October 2008

My Dear Woodworm,
Everything appears to be going swimmingly. The Retreat has worked its magic. Your patient has a new circle of friends, and is becoming immersed in the new, structured, lifestyle that we had created for her—the endless round of meditation classes, talks, socials and so on.
As we planned, the patient believes she is finding value, meaning and purpose within the social, intellectual and moral framework into which she has now firmly been plugged. She has entered what must seem to her to be an enchanted garden. Of course, the enchantment will eventually wear off somewhat. She will begin to see that it’s not all wonderful inside this cosy world we have created for her. Which is why we must now begin to cultivate another emotion: fear. Even if she comes to see that not everything inside the garden is entirely rosy, she must learn to fear what lies outside its walls. She must eventually become so emotionally dependent upon our garden that the prospect of leaving it must appear to her to be a truly terrible thing. While joy may be what brings them in, it is often fear that keeps them here. Our patient must feel that to leave would be to fall from the light back into darkness—into the cold, lonely, meaningless oblivion from which we have rescued her.
But now to a more specific concern of mine. You write in your last letter of how you have been reasoning with the patient, thereby convincing her of the truth of some of our doctrines. Well, you are a gifted and able thinker. I don’t doubt that this naïve doob, entirely untrained in philosophy and the dark arts of persuasion, is putty in your hands. But you are making a terrible mistake if you place too much emphasis there.
Don’t misunderstand me. Yes, it is desirable that she believes reason is largely consistent with our doctrines, perhaps even supports our doctrines to someextent. But don’t go beyond that. For then she may end up supposing our doctrines rely on reason for their acceptability.
Which, reading between the lines, seems to be precisely what you have been suggesting to her, you fool. Once she believes that it’s onlyreasonable to believe such things because they are reasonable, well then we are in big trouble. The next time some smart aleck doob comes along able to pick apart these dainty confections of intellectual bullshit you have been serving up to her, her faith will crumble in a minute!
You have been teaching her unqualified respect for reason. That is not the right attitude to instil. A better attitude is fear. She should fear applying reason, particularly on her own, unsupervised by an appropriate authority such as yourself who can set her back on track should she err. At the very least, should made to feel uncomfortable or guilty about “going it alone” with reason.
I don’t mean she should be concerned about applying reason generally, of course. There’s no reason for her to think twice about applying reason when filling in her tax return, calculating how many tiles she need for her bathroom or any other mundane matter. There’s no harm, either, in her respecting the role of reason in science. At least up to a point. But get her to acknowledge that there are limits to what reason can reveal. Quote Shakespeare at her—“There are more things in heaven and earth that are dreamt of in your philosophy, Horatio.” That sort of thing. But also imply something further. Imply not just that reason cannot properly be applied beyond a certain boundary, but also that it is wrong even to try. It is arrogant and sinful to attempt to exercise reason and freedom of thought beyond a certain point.
Take a leaf out of this book written by these two Jewish scholars, for example:
We have been commanded not to exercise freedom of thought to the point of holding views opposed to those expressed in the Torah; rather, we must limit our thought by setting up a boundary where it must stop, and that boundary is the commandments and the instructions of the Torah. . . . if a person feels that the pursuit of a particular argument is seriously threatening his or her belief in what is clearly a cardinal principle of Judaism, there exists an obligation to take the intellectual equivalent of a cold shower. . . . [Jewish scholars quoted by Solomon Schimmel in his The Tenacity of Unreasonable Belief(Oxford: Oxford University Press, 2008), p. 47]
Note this idea of setting up a boundary in the patient’s mind. She must feel that, as she approaches this boundary armed with reason, warning bells are going off and red lights are flashing. She must feel that reason, fine in everyday contexts, is downright dangerous when applied to matters of faith.
Remember those Bible Belt church signs that read, “A freethinker is Satan’s slave”? Preachers erect those signs to encourage the belief that, when it comes to thinking freely about matters of faith, Satan will be at our elbow in a moment, leading us away from the Truth. Such preachers want their followers to suppose that, when it comes to their religion (it doesn’t matter about other religions, of course) a freethinker is a fool whose arrogance will lead him to hell. A simple, trusting faith must prevail.
True, we have no Satan or hell with which to threaten our Followers. But we do have the reverse side of Glub: Boogle. Talk about Boogle to her. But remember, fear works best when aimed at something hidden and mysterious. Once the monster in the sci-fi film is seen, its terrifying qualities are inevitably diminished. Monsters from your own Id are always far more terrifying. Boogle must remain a cipher in the shadows. Hint at the existence of Boogle, but be vague. That way, her imagination can take over. Boogle will become her own Room 101.
Actually, none of this is to say that the patient should suppose her powers of reason can never be applied to our doctrines. They can be used, but only in the service of those doctrines, to deepen our understanding of them, notto challenge them! Given the tiresome, post-Enlightenment respect for this overrated thing called “freedom of thought,” people will eventually accuse us of thought-control—“You want to enslave minds, even children’s minds. You want to turn off their ability to think and reason.” To this, we can, truthfully, if very misleadingly, reply: “No we want individuals to be able to reason and think well! In fact, we encouragethem to question! Come along to one of our sessions and you’ll see.” What we don’t mention, of course, is the boundary: the boundary that we have set up in the minds of our Followers, the boundary that is marked by a sign that reads: “By all means think as freely and as often as you want, but up to here and no further!”
And of course, having officially signed up to the virtues of reason and freedom of thought, we have the perfect excuse to endlessly fire off at our opponents what our Leader describes as the Blunderbuss. “Look!” we can say to our new recruits as we let off salvo after salvo of irrelevant or invented “problems” at the unbelievers. “See how theystruggle to answer our questions! Their respect for ‘reason’ is ironic, don’t you think, when they cannot use it to answer us? You see, in the final analysis, both our belief systems are faith positions. Both require a leap of faith!”
Let our opponents try to dig themselves out from under that load of ordure.
Your affectionate aunt,

The Bodgers Centre
12 February 2009

Dear Woodworm,
Your last letter is a source of serious concern. Her brother is visiting for a week, you say. Bad news indeed. And not just because our patient will be reminded of positive features of her old life, her old habits, her old ways of thinking.
The brother is clearly aware that we’re up to something. He is not a religious man. And he has been asking questions, you say. Questions rather more direct and to the point than we usually get.
This man clearly fails to pay the kind of respect that’s usually accorded any sort of “spiritual belief.” The impertinence. This is a critical time for us. Even now the patient could escape our clutches. The arrival on the scene of someone our patient clearly likes and respects, someone who treats our teaching as if it were just a set of beliefs like any other, could wreak havoc.
The brother must be disarmed. You say you have been invited round for dinner to meet him? Here is your opportunity.
As that first glass of wine is poured, he will probably say, ever so innocently, something like this: “So, you are the person that has introduced my sister to these new beliefs she has been telling me such about?” If you are not forthcoming with any details, he will eventually follow this up with a series of simple, straightforward questions, apparently expecting straightforward answers.
Do not, under any circumstances, give them. Our patient is not yet so caught up in our mindset that she will be entirely immune to the patent absurdity that a succinct and unvarnished statement of our teaching is likely to reveal. Yes, we have cast our spell over her, but the magic has not yet fully set.
I suggest you employ the strategy that our Leader calls Moving the Semantic Goalposts. Turn to the Handbookand reread that section with care. Whenever the brother matter-of-factly asks, “So you believe so-and-so, do you?” Suggest, slightly condescendingly, that he has misunderstood our teaching. For example, you might say, “Oh dear! You appear to have taken us literally. That’s not what we mean.” Do not, however, edify him. Do not tell him clearly and succinctly what we do mean. That’s for us to know, and him to find out!
If he tries yet again, just continue to move the goalposts around some more, “Ah, I see you have again misunderstood.” Perhaps add, “Of course, you must remember we are using the language of metaphor and analogy—it’s rather foolish to take such language at face value, you know.”
If he asks exactly what the analogy is, waffle. Use words like “spiritual,” “transcendent” and “ultimate” a lot. Wave your arms around in a vague way and look up, as if you are have some profound insight, and searching for just the right words to convey it, but can’t quite succeed.
In this way, you can endlessly give the brother the run around. True, in some contexts, that you are employing such a sleight of hand with words would quickly become clear. However, some things really are difficult to express properly, aren’t they? Our subjective experiences, for example, can be difficult to articulate. How we feel about something can often only communicated to others in a rather fumbling and imprecise way, which allows much scope for misunderstanding. There’s no denying that saying, “Ah, but that’s not quite what I meant,” is sometimes an entirely reasonable response to a criticism.
Use this to your advantage. Your patient believes she has had an experience of the transcendent, of the “other.” You must stress that our access to what lies beyond is inevitably restricted. We can at best catch only glimpses. It’s all very much “through a glass darkly.” Admit that it’s hard to capture using our everyday vocabulary. And of course, because what she had was a feeling, it very probably isvery hard for her to put into words! So your excuse will look plausible.
If any picture you paint of what lies “beyond” is inevitably vague and impressionistic, then it will inevitably be vulnerable to misinterpretation. But then any criticism of what we teach about what lies beyond can conveniently be put down to some misunderstanding on the part of our opponents.
Indeed, try saying this: “You see, what we ultimately believe is ineffable, is beyond the ability of language to express.”
Trust me—this works. I have applied this same wheeze over an extended period of time without it ever dawning on my opponents what I was really up to. Do the same!
A little character assassination can enhance the effectiveness of Moving the Semantic Goalposts. Remember to imply at every opportunity that her brother is being terribly crude and unsophisticated in his ham-fisted attempts to characterize and criticize what we believe. Notice I said, “imply”! Your patient no doubt loves her brother and may not respond well to a direct accusation. So never explicitly accuse her brother of being an unsophisticated, unspiritual twit. Rather, adopt an air of calm intellectual and spiritual superiority. Be just a little bit condescending. But—and here’s the key—even while adopting that air of superiority, it’s important to keep reminding them both how terribly humbleyou are. Admit that you cannot articulate the essence of that in which you believe, that you are struggling vainly to express in mere human language what you nevertheless know in your heart to be true.
Your humility will be sure to impress the patient, and the contrast between your calmness and the brother’s mounting anger and frustration as you endlessly shift the goalposts about will become more and more obvious to her. You will seem humble and open minded. The brother will increasingly appear dogmatic, unspiritual and, I very much hope, aggressive.
This exercise in character assassination will be nicely rounded off with a suggestion of arrogance—get the patient thinking that her brother is being arrogantly dismissive of things that he doesn’t even properly understand. Remind them both that there are “more things in heaven and earth” than are dreamed of in his philosophy. Shouldn’t her brother be showing a little humility? Notice the delightful switcheroo we pull here. We are the ones claiming certainty, yet we end up appearing humble while he is portrayed as the arrogant know-it-all! You’ll enjoy the delicious irony! But remember—don’t be caught savouring it.
There is a second strategy that will also prove invaluable in dealing with the brother—the Way of Questions. Look it up in the Handbook and study it well. Don’t let the brother be your interrogator. You must become his. For every question he asks you, ask him three back. Get him on the back foot.
Of course you must not come across as inquisitorial. Pretend your questions are merely for “clarification”—you just want to understand more clearly where the brother is coming from, so you can properly address his concerns. But here’s what you actually do: hit him with a series of thorny philosophical puzzles with which he’ll inevitably struggle. I recommend two in particular:
1. Ask him why he supposes the universe exists. Why there is something rather than nothing.
2. Ask him how he is able to know right from wrong. How is he in a position to say that something truly heinous, such as slavery, is wrong? Or, better still, the Holocaust?
If the brother is an atheist, or agnostic, he’s not going to have pat answers to these Big Questions. As you will know from that training in moral and religious philosophy we gave you, they are awfully deep and difficult questions to which there are no simple, easy answers (one of the reasons we provided that training is precisely so you can use it to tie people like this irksome brother up in knots).
The fact is, we don’t have good answers to these questions either. But we pretend we do. We say, Glubis the explanation for why there is anything at all. We say, Glub provides us with our moral compass in this otherwise treacherously uncertain and increasingly morally depraved world.
Our patient will be impressed by the fact that, while her brother struggles with such tricky moral and metaphysical questions, we do not. We offer quiet, calm, simple, certainty. As your patient looks back and forth between—on the one hand—your serene, wise and confident expression and—on the other hand—the look of exasperation creeping across her brother’s face as he struggles and fails to provide an adequate justification for condemning the Holocaust, your job will be more than half done. Indeed, the thought might even cross your patient’s mind that her brother is morally rudderless!
Even if the brother manages to deal successfully with your first round of questions (which, he almost certainly won’t) you can just ask another “clarificatory” question, and then another: “Ah, I see. But then let me ask you this. . . .” “Hmm, that’s interesting, but what do you mean by. . . .” This will tie him up in knots, very probably leaving your patient with the impression that you are the winner in this little intellectual exchange. The truth, of course, is that you never dealt with his penetrating questions. But the chances are your patient won’t even notice this, or even remember what his questions were, after half an hour or so of the Way of Questions!
At the very least, if you combine these two techniques, the patient will be left with the impression that the debate between you and her brother is all square—that neither side can be said to have achieved a decisive victory. And that is all the space we need in which to operate.
Your affectionate aunt,

The Bodgers Centre
28 June 2009

Dear Woodworm,
I have not heard from you for a while. Gibbons tells me (yes, I have my spies in Oxford) that you haven’t been into our Oxford centre much over the last few weeks. I very much hope that is because you are beavering away with your patient, whose brother, I anticipate, has now been dispatched?
Let us hope so. If you suspect the patient is having doubts, and if the other techniques I recommended are not proving effective enough to allay them, then let me share with some further thoughts passed on to a select group of us Seniors at one of our Leader’s training sessions held in the South of France last week.
First of all, our Leader says he wants us to focus attention more on morality. He believes we have been missing a trick there. We must get our patients thinking, first of all, that morality depends on religion. That’s to say, get them thinking people won’t be good without religion, that religion provides us with our only moral compass. Take that compass away, and society will eventually slide into moral degeneracy.
Of course, that morality depends on religion is something your patient probably believes already. That is because the mainstream religions hijacked morality long ago. They created the myth that morality is their invention. They took the basic universal prohibitions against stealing, lying, murder and so on, rigidly codified them, added a few idiosyncratic prohibitions of their own (typically concerning sexual practices and foodstuffs) and said “Voila! Religion has created morality! Without us, there is no morality!
Never mind that there’s growing scientific evidence that our morality is in large part a product of our evolutionary history. Never mind that the least religious Western democracies—Sweden, for example—are in many respects the most socially and morally healthy. Never mind that in traditional Chinese society—in which the dominant cultural force was not religion but a secular ethical doctrine, Confucianism—levels of ordinary morality have been much the same as in parts of the world dominated by transcendental religion. Because “morality depends on religion” has been endlessly repeated by religious folk—it is the one mantra they all share—it has, in many corners of the world, become a factoid, an unquestioned part of the cultural landscape. No one really thinks about it. They just accept it. Even many atheists (some of whom, while not religious, nevertheless suppose religious belief is therefore desirable in others—especially those lower down the socioeconomic ladder, who might otherwise burgle their house).
Take advantage of this widespread myth. Say, “Yes, morality does indeed depend on religion.” Then add, “But of course, it has to be the right religion, doesn’t it?”
As I endlessly repeat to you—the key to recruitment is not reason but emotion. However, the fact is that the emotions on which we rely change. As I have already mentioned, we seduce new recruits with joy, but, as they begin to mature into seasoned Followers, we must increasingly come to rely on fear. Fear of loss of friends. Fear of loss of meaning and purpose. Now our Leader wants us to add another fear to the mix—fear of moral oblivion. Get our Followers holding tightly onto nurse, for fear of finding something worse. Our Leader wants our movement to achieve official status. He wants the state to recognise it as an important moral beacon—providing moral guidance to young people who might otherwise fall into degeneracy and sin. This way, we may even receive government funds. Certainly, there will no longer be any official resistance to our starting our own schools.
At the conference (which, I must say, was lavishly catered for—never have I tasted such smoked salmon) our Leader spoke of something else too. What we ultimately want, he forcefully and inspiringly reminded us, is what he calls the Vision Thing.
The vision of which our Leader spoke, is not, of course, avision—of heaven, or a religious figure descending, or anything like that. No, no. Not that there’s anything wrong with our Followers having that sort of vision, of course. Sometimes they do. But our Leader meant something much less trivial. He was speaking of the all-encompassing mindset. He gave us various examples.
Sometimes a conspiracy theorist will become so enmeshed in their theory that they can just “see” that it is true. Wherever they look, they find their theory fits. Of course, what they are really doing is finding a way to make itfit. They interpret whatever they experience in such a way that it “makes sense” on their world-view. They also develop no end of moves to explain away anything that might look like a rational threat to their belief system. Anything that might seem not to fit—that the conspiracy theorist can’t fully make sense of—is put down to the powerful and sometimes mysterious and inscrutable forces and plans of the conspirators. The conspiracy theorist supposes that he is the one whose eyes have been opened to what the rest of us cannot see. He turns on his TV of an evening, and discovers that each news item only further confirms his worst fears about the spread of the Conspiracy. He looks out of the window and sees agents of evil spying on him from that parked car across the street. Eventually, the Conspiracy becomes so obvious to him that he is astonished the rest of us can’t “see it” too, especially after he has pointed it out to us in some detail. So he supposes that we must be part of the Conspiracy. Either that, or our minds have been “got to” somehow. By them.
The Vision Thing is not uncommon in the political sphere, of course. Witness the Marxist who, wherever he looks, finds that Marx’s theories account for what happens. It all fits. It all makes sense. So obvious does it become to our Marxist, in the end, that she’s astonished we cannot see what’s going on in front of our eyes. Have we somehow been blinded by the forces of capitalism? Perhaps our senses have been dulled by the opiate of the masses?
The religious person too, can achieve such an all-encompassing vision. Indeed, people often say that religious faith is something like a perspective on the world, a way of viewing it. We fling open our curtains in the morning and see sunlight. They fling open their curtains and see the glory of God flooding into their room. It’s so obvious to them, they wonder why we can’t see it too. They suppose we must be defective. “Perhaps,” they think, “it is because they have been corrupted by sin? Or led astray by devils?”
The Vision Thing can be produced in all sorts of ways. Sometimes it is a product of long immersion in a political ideology, or some internet-based conspiracy theory mindset. Sometimes it is a result of drug abuse. Sometimes it is caused by a mental illness. Sometimes it happens quite spontaneously. Occasionally, people look at the world and suddenly, apparently for no reason at all, just “see” that it is imbued with a kind of cosmic radiance.
Of course, others look and are suddenly consumed by a very different vision—a vision, say, of the world as the product of some awful cosmic malignancy. Those who have the latter sort of experience—and they are more common than you might imagine—tend to be put on medication. Those who have the former sort of experience tend to put on a dog collar. Had we the advantage of being one of the established, mainstream religions, many of those spontaneously having the first sort of experience would walk in through our doors, already converts!
What we are after with every patient is, our Leader helpfully reminded us, the Vision Thing. Our patients must come to see—with their hearts, if not their eyes—that our teaching is the Truth—that it accords in every last detail with everything they have ever experienced. They must find that it ultimately makes sense of everything.
I am concerned by the lack of communication, Woodworm. Get in touch. Now.
Your aunt,

The Bodgers Centre
14 September 2009

Finally, a missive from you. But I would rather not have received it. The brother, it turns out, is a skeptic – someone who insists on subjecting claims of a supernatural or extraordinary nature to close critical scrutiny before accepting them? And the patient shows signs of becoming one too? She has even signed up for a class in critical thinking? How could you have let this happen, you oaf? Now we discover why you have been so quiet of late. You have failed catastrophically.
Had I been forewarned that the brother is a skeptic, well, we could have made plans. We could have at least prepared to Go Nuclear.But now it is too late.
Remember, at the end of the day, all we have got is a collection of extraordinary claims for which we can provide scarcely a shred of evidence. Other than that we say they are true. That’s it!
Of course, all other cults and religions are in the same boat, yet that has not stopped them from flourishing, sometimes spectacularly so. How do they achieve such extraordinary success? Rule Number One is this: They manage, by one means or another, to obscure the fact that the evidence for what they believe is simply that they say it’s true. Either that, or they succeed in neutralizing this fact by making it seem unimportant. They insist that the truth of what they say is known, not on the basis of evidence, oh no, but in some other, deeperway—“with the heart,” or some other codswallop with which they fob off their respective followers.
Ultimately, you had one simple, basic job to do: to deal with the otherwise obvious thought that the only real reason our patient has got to believe any of this twaddle is that we say it is true. Which is hardly much of a reason, is it? That, Woodworm, is the one thought that, above all, you should have suppressed or neutralized. Yet that is the one thought you have allowed to pop—nay, explode—in the patient’s head, and with devastating consequences!
You say she is now doubting even the “experience” we worked so carefully to cultivate at the Retreat? You say she thinks we have been playing with her mind? She supposes she may merely have felt certain powerful emotions that she mistook to be some sort of revelation? Good grief. We are sunk.
How on earth is our cult to expand if it has to rely on gurus as incompetent as yourself? The consequences of such an error will be serious, my boy. Our Leader does not forgive failure. You were warned.
Your bitterly disappointed aunt,