Friday, 31 May 2013

D.C. Circuit Sides with Comcast in Dispute with Tennis Channel

This week's D.C. Circuit ruling siding with Comcast in its carriage dispute with Tennis Channel came as little surprise. It ruled that the Federal Communications Commission failed to justify its conclusion that the cable provider (known as a "multichannel video programmer distributor" in today's parlance) discriminated against the Tennis Channel (not owned by Comcast) by placing it in a more expensive tier than the Golf Channel and Versus (now the NBC Sports Network). The ruling is available here.

For cable services, the ruling will come as a big relief. The opinion concluded that the FCC's determination Comcast's disparate treatment of the Tennis Channel by tiering it in a more expensive package was not discriminatory under sec. 616 of the 1992 Cable Act, and rejected the Commission's factual basis for making that determination. Judge Williams, writing for the court, stated that the FCC failed to provide "adequate evidence" to bolster its claims of discrimination. He did not address the more fundamental argument made by Comcast -- that the statute, or at least its application, was a First Amendment violation of the free speech rights of the cable provider. Basically, the court found that there were valid reasons for placing the Golf Channel and Versus on a lower, cheaper and more widely distributed tier than Tennis Channel and that there was no evidence that this differentiation was based on the fact that Tennis Channel was not a part of Comcast. Additionally, there was no evidence presented that Comcast would gain any financial benefit by placing Tennis on that same tier of service as the others, noting that no expert witnesses, or written studies were provided. That lack of evidence of any potential financial game was crucial in the court's determination. So, the court essentially rejected the FCC's emphasis on the similarities of the programming on the Golf, Versus and Tennis Channels and the disparate treatment of them, without anything more.

There were two concurring opinions. Judge Edwards discussed procedural issues (not the focus here), but Judge Kavanaugh produced an analysis of sec. 616 in terms of antitrust jurisprudence, with a passing reference to First Amendment standards. As to the antitrust issue, he opined that sec. 616 violations should be based on the same standards of proof as antitrust claims involving vertical concentration because sec, 616(a)(3) requires that the FCC enact regulations that prevent the cable operators from discriminatory conduct which "unreasonably restrains" the ability of the unaffiliated service to fairly compete.  In so doing, he found that there was no per se violation and there was no evidence of undue market power on the part of Comcast (a point that is debatable, given the general monopoly nature of cable operators). Therefore such vertical restraints (as found with the connection between Comcast and Golf/Versus) was presumptively pro-competitive.

Judge Kavanaugh then pushes what I think is a speculative connection between antitrust the First Amendment principles. He states: "applying sec. 616 to a video programming distributor that lacks market power would violate the First Amendment as it has been interpreted by the Supreme Court." Cases that generally applied an intermediate scrutiny test that has been upheld by the "monopolistic characteristics" of cable programmers and the need for access. I am not convinced at the connection and there is no specific mention of such a connection in Turner v. FCC,  512 U.S. 622 (1994) which upheld mandatory carriage requirements under an intermediate scrutiny test. He also that technological changes have weakened any undue market power of cable operators, inferring that the today, unlike the 1990s, cable regulations such as sec. 616 would be harder to justify today.

The majority did not wade into this territory, but nonetheless gave Comcast a big win. It would be more difficult for independent sports channels to provide discrimination, at least in the DC Circuit.

Thursday, 30 May 2013

"Atheists reject Christianity not because it is unreasonable, but because they don’t want it, or theism more generally, to be true"

Here is one of four answers regularly offered by Christians (and others) for the failure of atheists to recognize the reasonableness of Christian belief (the other three, as well as a continuation of this one, will be blogged later). Edward Feser gets special mention:

(i) Atheists reject Christianity not because it is unreasonable, but because they don’t want it, or theism more generally, to be true.

Those attempting to explain atheist non-belief as a product of wishful thinking sometimes quote atheist philosopher Thomas Nagel, who in his book The Last Word, says:

It isn’t just that I don’t believe in God, and naturally, hope there is no God. I don’t want there to be a God; I don’t want the universe to be like that.[i]

But is this the view of most atheists? Surely the Christian message is one of hope. It provides numerous attractive reassurances, especially about death and justice. In particular, it promises that we can be reunited with our dead loved ones beyond the grave, that we and they can live in joy forever, and that people will ultimately get their just deserts. These are appealing beliefs for most of us.

Indeed, that Christianity is not, as a rule, the sort of thing people want to be true is fairly obviously contradicted by the manner in which Christians tend to promote it. They often place at least as much emphasis on how wonderful it would be if Christianity were true as on any intellectual case that might be made in its support.

Wishful-thinking-based explanations for the failure of individuals to appreciate the reasonableness of Christian belief also run into trouble with those tortured individuals who struggle valiantly to keep their faith but lose it nonetheless. Their rejection of Christianity does not appear to be motivated by wishful thinking. Quite the opposite.

Atheists don’t want to believe in eternal damnation

But perhaps we have overlooked the less attractive thoughts involved in Christianity, thoughts that might yet motivate an irrational rejection? In his book The Last Superstition, the Christian philosopher Edward Feser quotes Nagel in support of his view that many secular intellectuals reject religion because they don’t want it to be true. Feser adds:

Atheism, like religion, can often rest more on a will to believe than on dispassionate rational arguments.  Indeed, as the philosopher C.F.J. Martin has pointed out, the element of divine punishment – traditionally understood in the monotheistic religions as a sentence of eternal damnation in Hell – shows that atheism is hardly less plausibly motivated by wishful thinking than theism is.  For while it is hard to understand why someone would want to believe that he is in danger of everlasting hellfire, it is not at all hard to see why one would desperately want not to believe this.[ii]

On Feser’s view, the presence of this unappealing thought in Christianity shows that people are as likely to disbelieve Christianity as a result of wishful thinking as they are to believe.

It may be true, as a general rule, that the fact that a thought is unappealing makes it less likely it will be believed. However, there is an obvious exception to this rule. The exception is when the unappealing thought takes the form of a threat: believe or else.

I once received an email chain message claiming that if I forwarded the message to two friends I would receive good fortune, but if I failed to forward the message I would be cursed with bad luck. The appealing thought that I would receive good luck if I did as instructed was obviously intended to incentivize action. But then so too was the unappealing thought of bad luck if I didn’t. The email waved both a carrot and a stick at me, the stick providing me with at least as much incentive as the carrot.

A recipient of the traditional Christian message is presented with an infinitely more impressive carrot and stick. The carrot includes a promise of everlasting life for those who truly believe; the stick involves the threat of eternal damnation for those who don’t.

Feser is correct that an atheist like Nagel won’t want it to be true that hell awaits those who fail to believe. But then neither do I want it to be true that, as a result of my failing to forward that email message, I will receive bad luck. It does not follow, in either case, that the unpleasant character of the threat functions, on balance, as a disincentive making it less likely the message’s recipient will do as they are instructed (believe the Christian message; forward the chain email).

On the contrary, the inclusion of such threats makes it more likely the recipient will do as instructed, not less. I binned that email message not because of the unappealing threat that it contained, but despite the unappealing threat it contained. Feser is mistaken: those who fail to believe the Christian message do so not because of threats of eternal damnation, but despite them.

There is a further weakness to this particular diagnosis of why it is that atheists fail to recognize the reasonableness of theism or Christianity. A great many Christians, including theologically sophisticated Christians, reject the doctrine of eternal damnation. So, even if the unpleasantness of the thought of eternal damnation did have the off-putting effect Feser claims, it would only put people off those varieties of Christian or theistic belief that involved the doctrine. Assuming the atheist recognizes that they can embrace theism without embracing the doctrine of eternal damnation, why should that unappealing character of the latter doctrine should put them off theism per se?

To conclude: (i) it would appear that the unappealing character of the thought of eternal damnation functions, on balance, not to disincentivize Christian belief, but to incentivize it, and (ii) in any case, belief in theism does not require one to believe in eternal damnation, so [even setting aside (i)], the unappealing character of the thought of eternal damnation does not, as it stands, provide a very convincing explanation for the (as Feser sees it) atheist’s irrational rejection of theism.

[i] (Thomas Nagel, The Last Word (New York: Oxford `University Press 1997). p130).
[ii] The Last Superstition (South Bend, Indiana: St Augustine’s Press, 2008) p. 10.

Wednesday, 29 May 2013

NFL Draft Heads to May

By pushing the NFL Draft back two weeks in 2014 to May 8th-10th, the league showed no favoritism to agents, prospective players, team personnel, or the fans--they all are negatively affected.

1. Agents

While no sympathy will be offered by the general public to agents, pushing the draft back extends the time during which they pick up expenses for their clients.  Traditionally, agents will absorb the costs of pre-draft training which will include combine prep, living expenses, travel, and an assortment of other "benefits."  Now, while powerhouse firms can easily assume the marginal additional expense, agents often spend between $10,000 and $20,000 on each client.

Obviously, for agents with fewer clients or alternative revenue streams, the additional weeks of "investment" in their clients becomes a burden.  Much like the summer of 2011 when the lockout extended the time during which agents covered their client's expenses, there was a clear distinction between what larger agencies were able to cover versus smaller firms or individual agents.

And, let's not pretend that poaching between agents doesn't occur.  This gives more time for agents to continue to recruit the clients of others.  [I won't even get into the role of runners and the impact that Jay-Z/Roc Nation could have during this period.]

2. Players

There is no real benefit to the potential draftable players, other than extended an already difficult time period.  Since the NFL is not changing the dates of the Combine, preparation for elite prospects will still start immediately after the bowl season.  There will still be a rush to sign with an agent, have them pick up training costs, and begin immediate preparation for the Combine.  These players will need to be in peak form for All-Star games, the Combine, perhaps for their school's Pro Days, and then there will still be another 6 weeks before the draft--more than enough time to slip, either physically or with a mistake.
And this extends the time that unsigned free agents have to patiently wait for teams to fortify their rosters with rookies (i.e. cheap labor) before they are able to resign with an NFL team.

3. NFL Personnel

Again, no one cares if a scout or assistant GM needs to go without sleep for another two weeks but this maneuver extends the time under which these individuals are under exorbitant amounts of pressure.  The extra two weeks provides no additional insight into a player's potential so there is no evaluative benefit to this additional time.

4. The Fans

Hey, look, another two weeks of your favorite draft prognosticator telling you who your favorite team will select in the 6th Round!  A colossal waste of time--unless you listen to Mike Mayock who, and I'm partial because he's a Boston College alum, is fantastic.

For the future, either the NFL Draft should revert back to April, or the League Year should also be pushed back--thereby moving the Combine, the start of free agency, and other calendar items. However, as it stands today, does anyone see any winners in this move?

Tuesday, 28 May 2013

Interview I gave after my talk at West Midlands Faiths Forum last September (conference on the riots)

New Sports Law Scholarship--Pt. 2

Recently published scholarship includes:
Ben Einbinder, What FINRA can learn from Major League Baseball, 12 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 333 (2012)
Harry Epstein & Daniel Gandert, The Court’s yellow card for the United States Soccer Federation: a case for implied antitrust immunity, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2011)
David Falk, Note, Are professional sports leagues’ control over their member teams and owners in doubt?, 43 RUTGERS LAW JOURNAL 337 (2012)

Gabriel Feldman, Antitrust versus labor law in professional sports: balancing the scales after Brady v. NFL and Anthony v. NBA, 45 UC DAVIS LAW REVIEW 1221 (2012)

Heather M. Field, Throwing the red flag: challenging the NFL’s lessons for American business, 38 JOURNAL OF CORPATION LAW 381 (2013)

Nicholas Fram & T. Ward Frampton, A union of amateurs: a legal blueprint to reshape big-time college athletics, 60 BUFFALO LAW REVIEW 1003 (2012)

Nabeel Gadit, Note, An end to the NCAA’s exploitation of former student-athletes: how O’Bannon v. NCAA highlights the need for an inalienable reversionary interest in the right of publicity for former student-athletes, 30 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 347 (2012)

Matthew Gallagher, The changing face of the “sport of kings”: a brief history of thoroughbred horse racing in the United States, its recent decline, and the legal implications surrounding racing partnerships and syndicates in the current landscape, 19 SPORTS LAWYERS JOURNAL 275 (2012)

Robert M. Gallman, Comment, Enhancement or recovery? The scientific and legal paradox of performance-enhancing substances, 15 SMU SCIENCE & TECHNOLOGY LAW REVIEW495 (2012)

Ephraim Glatt, Defining “sport” under Title IX: cheerleading, Biediger v. Quinnipiac University, and the proper scope of agency deference, 19 SPORTS LAWYERS JOURNAL 297 (2012)

Samantha Glazer, Note, Sporting chance: litigating sexism out of the Olympic intersex policy, 20 JOURNAL OF LAW & POLICYY 545 (2012)

Robert A. Gottfried, Reasonable relocation: antitrust implications of restrictions on movement of professional sports teams, 19 SPORTS LAWYERS JOURNAL 109 (2012)

Jeremy P. Gove, Note, Three and out: the NFL’s concussion liability and how players can tackle the problem, 14 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 649 (2012)

Linda S. Greene, Head football coaches: ending the discourse of privilege, 2 WAKE FOREST JOURNAL OF LAW & POLICY115 (2012)

Nathaniel Grow, Decertifying players unions: lessons from the NFL and NBA lockouts of 2011, 15 VANDERBILT JOUNRNAL & TECHNOLOGY LAW 473 (2013)

Rockwell T. Gust IV, Comment, The California Workers’ Compensation Act: the death knell of NFL players’ “concussion” case?, 44 UNIVERSITY TOLEDO LAW LAW REVIEW 245 (2012)

David Haddock et al., League structure & stadium rent seeking—the role of antitrust revisited, 65 FLORIDA LAW REVIEW 1 (2013)

Courtney D. Hall, Comment, Fishing for all-stars in a time of global free agency: understanding FIFA eligibility rules and the impact on the U.S. Men’s National Team, 23 MARQUETTE SPORTS LAW REVIEW 191 (2012)

Tim Hance, Note, Threading American Needle: defining a narrow relevant market for rule of reason analysis in sports antitrust cases, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 247 (2011)

Angela J. Hattery, They play like girls: gender and race (in)equity in NCAA sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY247 (2012)

Marcus Hauer, Note, The constitutionality of public university bans of student-athlete speech through social media, 37 VERMONT LAW REVIEW 413 (2012)

Jeremy D. Heacox, Comment, Wisconsin Legislature employs halftime adjustment: how Wisconsin’s “new” Indian mascot law changes the outlook for future challenges to the use of discriminatory nicknames, mascots, and logos in Wisconsin schools, 22 MARQUETTE SPORTS LAW REVIEW 651 (2012)

Diane Heckman, Batter up: a look at the Supreme Court’s lineup, including the interaction with the new chief umpire on the bench, as Title IX marks its fortieth anniversary, 22 MARQUETTE SPORTS LAW REVIEW461 (2012)

Kris Helge, The success of a nation’s soccer team: a bellwether regarding a nation’s electronic information infrastructure, the legal regulations that govern the infrastructure, the resulting citizen-trust in its government and its e-readiness in Nigeria, the DPRK, China, Japan, South Korea, the Netherlands and the United States, 39 NORTHERN KENTUCKY LAW REVIEW 467 (2012)

Aishlin P. Hicks, Note, Unsportsmanlike conduct: female sportswriters as targets for sexual harassment, 23 HASTINGS WOMEN’S LAW JOURNAL 219 (2012)

Joseph M. Hnylka, California drops the ball: the lack of a clear approach to recklessness in sport injury litigation, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 77 (2011)

Justin R. Hunt, Note, To share or not to share: revenue sharing structures in professional sports, 13 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 139 (2012)

John Imhoff, Comment, Bouchat v. Baltimore Ravens, 56 N.Y. LAW SCHOOL LAW REVIEW 1619 (2011-2012)

Trevor Jack, Note, Blue field of dreams: a BCS antitrust analysis, 39 JOURNAL OF COLLEGE & UNIVERSITY LAW 165 (2013)

Aiden Johnson, Note, Update: The curious case of Oscar Pistorius & Caster Semenya, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 89 (2012)

Kendall K. Johnson, Enforceable fair and square: the right of publicity, unconscionability, and NCAA student-athlete contracts, 19 SPORTS LAWYERS JOURNAL 1 (2012)

Cassandra Jones, Book Note, Reviewing Deborah Brake, Getting in the Game: Title IX and the Women’s Sports Revolution, 22 MARQUETTE SPORTS LAW REVIEW 613 (2012)

Richard T. Karcher, Broadcast rights, unjust enrichment, and the student-athlete, 34 CARDOZO LAW REVIEW 107 (2012)

Richard T. Karcher, Redress for a no-win situation: using liquidated damages in comparable coaches’ contracts to assess a school’s economic damage from the loss of a successful coach, 64 S.C. LAW REVIEW 429 (2012)

Joseph B. Kenney, Comment, Showing on-field racism the red card: how the use of tort law and vicarious liability can save the MLS from joining the English Premier League on racism row, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 247 (2013)

Jordan I. Kobritz & Jeffrey F. Levine, Don Fehr leads the NHLPA: does the NHL have anything to fear?, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL178 (2011)

Jordan I. Kobritz et al., Don Fehr trades his ball for a puck: will he continue to score?, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 521 (2012)

Shane Kotlarsky, What’s all the noise about: did the New York Yankees violate fans’ First Amendment rights by banning vuvuzelas in Yankee Stadium?, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 35 (2013)

Katherine Kraschel, Note, Transcending space in women’s only spaces: Title IX cannot be the basis for exclusion, 35 HARVARD JOURNAL OF LAW & GENDER 463 (2012)

Liz Larson, Note, More than just spelling: How differences in international labor laws create barriers to expansion of the American National Sports Leagues into Europe intercollegiate sports, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 288 (2011)

Benjamin I. Leibovitz, Comment, Avoiding the sack: how Nebraska’s departure from the Big 12 changed college football and what athletic conferences must do to prevent defection in the future, 22 MARQUETTE SPORTS LAW REVIEW 675 (2012)

Amanda Leone, Comment, Buying influence in college athletics: how much does it cost to put in your two cents?, 23 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 221 (2013)

Michael H. LeRoy, An invisible union for an invisible labor market: college football and the union substitution effect, 2012 WISCONSIN LAW REVIEW 1077 (2012)

Michael H. LeRoy, Federal jurisdiction in sports labor disputes, 2012 UTAH LAW REVIEW 815 (2012)

Clinton R. Long, Promoting competition or preventing it? A competition law analysis of UEFA’s financial fair play rules, 23 MARQUETTE SPORTS LAW REVIEW 75 (2012)

Joseph M. Long, A contextual study of the non-profit duty of obedience: the National Collegiate Athletic Association, 23 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 125 (2013)

James P. Looby, Reasonable accommodations for high school athletes with disabilities: preserving sports while providing access for all, 19 SPORTS LAWYERS JOURNAL 227 (2012)

Brian Lovell, Note, Eighteen years old and ready for driving, cigarettes and war, but not basketball: why the NBA is committing a foul on the age eligibility rule, 26 JOURNAL OF CIVIL RIGHTS & ECONOMIC DEVELOPMENT 415 (2012)

Rohani Mahyera, Comment, Saving cricket: a proposal for the legalization of gambling in India to regulate corrupt betting practices in cricket, 26 EMORY INT’L LAW REVIEW 365 (2012)

Heather M. Mandelkehr, Comment, When toning shoes strengthen nothing more than likelihood of lawsuit: why the Federal Trade Commission needs guidelines regarding proper substantiation of fitness advertisements, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 297 (2013)

Samuel G. Mann, Note, In name only: how Major League Baseball’s reliance on its antitrust exemption is hurting the game, 54 WILLIAM & MARY LAW REVIEW587 (2012)

Michael LAW Martin, It’s not a foul unless the ref blows the whistle: how to step up enforcement of the UAAA and SPARTA, 19 SPORTS LAWYERS JOURNAL 209 (2012)

James Masteralexis et al., Enough is enough: the case for federal regulation of sport agents, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 69 (2013)

James T. Masteralexis & Steve McKelvey, This tweet sponsored by…: the application of the new FTC Guides to the social media world of professional athletes, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 222 (2011)

Alfred D. Mathewson, Remediating discrimination against African-American female athletes at the intersection of Title IX and Title VI, 2 WAKE FOREST JOURNAL OF LAW & POLICY 295 (2012)

Amy C. McCormick and Robert A. McCormick, Race and interest convergence in NCAA sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY 17 (2012)

Eric M. McGregor, Comment, Hooray beer!?: how the reemergence of alcohol sales at campus stadiums will affect universities, 23 MARQUETTE SPORTS LAW REVIEW 211 (2012)

Ryan McLaughlin, Note, Warning! Children’s brains are in danger: legislative approaches to creating uniform return-to-play standards for concussions in youth athletics, 22 INDIANA INTERNATIONAL & COMPARATIVE LAW REVIEW 131 (2012)

Sunday, 26 May 2013

5 Sports Law Questions & Answers for the Mississippi Sports Hall of Fame

I'm honored to be the Distinguished Visiting Hall of Fame Professor of Law at Mississippi College School of Law, where I taught full-time from 2005 and 2008. I now teach a sports law course there every May and I remain active in the Mississippi sports and legal communities. I consider Mississippi my other home state.

A few days ago, I answered 5 sports law questions for Rick Cleveland, the executive director of the Mississippi Sports Hall of Fame & Museum. Topics include NFL concussion litigation, Bountygate, legality of the Bowl Championship Series, the NCAA banning Twitter hashtags and O'Bannon v. NCAA.  Here's an excerpt:

Part of the problem is that the NFL and NFLPA have a strained relationship, to put it mildly, partly due to the lockout and partly due to years of not trusting one another.

Part of the problem is also that the NFL commissioner has tremendous, non-reviewable powers, and that the players accepted those powers in collective bargaining.  Had the lockout not dragged on right up until the 2011 season, I suspect the players would have had more time to negotiate more due process.  But they didn’t, so the commissioner’s authorities remain quite strong.

To read the rest, click here.

Friday, 24 May 2013

Reposting for Heythrop students - stats on philosophy graduates (and religion too)

If you are wondering what kind of degree programme is likely to boost your general smarts, consider these figures.

Go here. This is one of several graphs from the above article. Based on GRE test performance (Graduate Record Examination) of graduate programme applicants. Quantitative (math) skills on the vertical axis, verbal skills on the horizontal (other graphs include the third component - "analytical writing", at which philosophers also excel, dramatically outperforming all others).

Philosophy graduates are pretty damn smart, the various figures suggest, compared to graduates with other degrees, including most - perhaps even all - sciences (though were they smarter to begin with, or did their degree programme make them smarter, compared to other degrees?). Check the article. Here's the original table of GRE scores of US students completing a variety of degrees.

Notice religion also does very well.

This data suggests (but falls a long way short of establishing) that if we want to produce graduates with general, across-the-board smarts, physics and philosophy are disciplines to encourage [and possibly also that accountancy and business administration should be discouraged (this confirms all my prejudices, I am pleased to say!)].

Note some very weird stats on this graph, such as business administration's woeful performance, doing less well than even "art and performance" on quantitative skills and verbal skills (which is staggering). And accountancy grads less good on quantitative skills than philosophy grads (!) and the worst performers of all on verbal skills. Both business and accountancy are also weak on the analytic writing component.

Of course, as the new business-friendly, market-led Tory vision of degree provision kicks in, we'll probably see philosophy departments up and down the country closing and business administration degrees expanding. Brilliant.

P.S. Just added a second graph comparing analytical writing and verbal. Check out e.g business administration. And where's philosophy?

"Sport as Speech" and Non-Sport as Speech

I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.

Two further thoughts on the paper.

1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is yet another reason for figuring out what qualifies as sport.

2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?

Wednesday, 22 May 2013

New sports law scholarship -- Pt. 1

I'm finally getting caught up with recently published scholarship, and since it's been a while since I've posted these updates, I'm breaking up the list into parts over the next few days:
Tara M. Allport, Comment, This is hardcore: why the court should have granted a writ of mandamus compelling mandatory condom use to decrease transmission of HIV and STDs in the adult film industry, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 655 (2012)
Phoebe A. Amberg, Comment, Protecting kids’ melons: potential liability and enforcement issues with youth concussion laws, 23 MARQUETTE SPORTS LAW REVIEW171 (2012)
Brenda L. Ambrosius, Note, Title IX: creating unequal equality through application of the proportionality standard in collegiate athletics, 46 VALPARAISO UNIVERSITY LAW REVIEW 557 (2012)
Trisha Ananiades, Penalty on the field: creating a NCAA sexual assault policy, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 463 (2012) 
Paul M. Anderson, Title IX at Forty: an introduction and historical review of forty legal developments that shaped gender equity law, 22 MARQUETTE SPORTS LAW REVIEW 325 (2012)

Thomas A. Baker III et al., Consent theory as a possible cure for unconscionable terms in student-athlete contracts, 22 MARQUETTE SPORTS LAW REVIEW 619 (2012)

Talor Bearman, Note, Intercepting licensing rights: why college athletes need a federal right of publicity, 15 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 85 (2012)

Eric D. Bentley, He tweeted what? A First Amendment analysis of the use of social media by college athletes and recommended best practices for athletic departments, 38 JOURNAL OF COLLEGE & UNIVERSITY LAW 451 (2012)

Amy L. Bernstein, Comment, Into the red zone: how the National Football League’s quest to curb concussions and concussion-related injuries could affect players’ legal recovery, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 271 (2012)

Erin E. Berry, Respect for the fundamental notion of fairness of competition: the IAAF, hyperandrogenism, and women athletes, 27 WISCONSIN JOURNAL OF LAW GENDER & SOCIETY 207 (2012)

Annie Bersagel, Is there a stare decisis doctrine in the Court of Arbitration for Sport? An analysis of published awards for anti-doping disputes in track and field, 12 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 189 (2012)

Andrew C. Billings, Talking around race: stereotypes, media, and the twenty-first century collegiate athlete, 2 WAKE FOREST JOURNAL OF LAW & POLICY 199 (2012)

Michael Birch, Take some land for the ball game: sports stadiums, eminent domain, and the public use doctrine, 19 SPORTS LAWYERS JOURNAL 173 (2012)

Kevin B. Blackstone, The whitening of sports media and the coloring of black athletes’ images, 2 WAKE FOREST JOURNAL OF LAW & POLICY 215 (2012)

Jessica Blumert, Note, Home games: legal issues concerning the displacement of property owners at the site of Olympic venues, 21 CARDOZO JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 153 (2012)

Brian Bodansky, Note, Kicking the penalty: why the European Court of Justice should allow salary caps in UEFA, 36 FORDHAM INTERNATIONAL LAW JOURNAL 163 (2013)

Deborah L. Brake, Going outside Title IX to keep coach-athlete relationships in bounds, 22 MARQUETTE SPORTS LAW REVIEW 395 (2012)

Andrew W. Breck, Note, Keeping your head on straight: protecting Indiana youth athletes from traumatic brain injuries through “return-to-play” legislation, 9 INDIANA HEALTH LAW REVIEW 215 (2012)

Jacquelyn L. Bridgeman, The end game: envisioning equality for women and girls in sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY 267 (2012)

Garrett R. Broshuis, Comment, Deterring opportunism through clawbacks: lessons for executive compensation from minor league baseball, 57 ST. LOUIS UNIVERSITY LAW JOURNAL 185 (2012)

Zak Brown, Note, What’s said in this locker room, stays in this locker room: restricting the social media use of collegiate athletes and the implications for their institutions, 10 JOURNAL OF TELECOMMUNICATIONS & HIGH TECH LAW 421 (2012)

Maggie Jo P. Buchanan, Note, Title IX turns 40: a brief history and look forward, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 91 (2012)

Timothy J. Bucher, Game on: sports-related games and the contentious interplay between the right of publicity and the First Amendment, 14 TEXAS REVIEW ENTERTAINMENT & SPORTS LAW 1 (2012)

Alexander Bussey, Stretching copyright to its limit: on the copyrightability of yoga and other sports movements in light of the U.S. Copyright Office’s new characterization of compilations, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 1 (2013)

Erin E. Buzuvis & Kristine E. Newhall, Equality beyond the three-part test: exploring and explaining the invisibility of Title IX’s equal treatment requirement, 22 MARQUETTE SPORTS LAW REVIEW427 (2012)

David S. Cerra, Note, Unringing the bell: former players sue NFL and helmet manufacturers over concussion risks in Maxwell v. NFL, 16 MICHIGAN STATE UNIVERSITY JOURNAL OF MEDICINE & LAW 265 (2012)

Walter T. Champion & Danyahel Norris, Obama vs. Bush on steroids: two different approaches to a pseudo-controversy—or is it really worthy of note in a state of the union address?, 36 THURGOOD MARSHALL LAW REVIEW193 (2011)

Jeremy Corapi, Note, Red card: using the National Football League’s “Rooney Rule” to eject race discrimination from English professional soccer’s managerial and executive hiring practices, 23 FORDHAM INTELLAW PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 341 (2012)

Nathan Crown, Hart v. Electronic Arts, Inc.: the District of New Jersey tackles college athletes’ publicity rights, 19 SPORTS LAWYERS JOURNAL 345 (2012)

George B. Cunningham, Occupational segregation of African Americans in intercollegiate athletics administration, 2 WAKE FOREST JOURNAL OF LAW & POLICY 165 (2012)

Paul A. Czarnota, The World Anti-Doping Code, the athlete’s duty of “utmost caution,” and the elimination of cheating, 23 MARQUETTE SPORTS LAW REVIEW 45 (2012)

Christopher David & Cameron Ruiz, You can’t win if you don’t play: the surprising absence of Latino athletes from college sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY227 (2012)

Lindsay N. Demery, Note, What about the boys? Sacking the contact sports exemption and tackling gender discrimination in athletics, 34 THOMAS JEFFERSON LAW REVIEW 373 (2012)

Nicholas A. Deming, Note, Drafting a solution: impact of the new salary system on the first-year Major League Baseball amateur draft, 34 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 427 (2012)

Javier Diaz, Comment, Beware of deadly flying bats: an examination of the legal implications of maple bat injuries in Major League Baseball, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 311 (2012)

John Dillon, Comment, Major League Baseball team bankruptcies: who wins? Who loses?, 32 LOYOLA-L.A. ENTERTAINMENT LAW REVIEW297 (2012)

William A. Drennan, Taxing commercial sponsorships of college athletics: a balanced proposal, 73 OHIO STATE LAW JOURNAL 1353 (2012)

Thomas M. Duncan, Comment, Driving Americans’ perception of recreation: awaiting the Park Service’s long-term solution to address snowmobile access in Yellowstone National Park, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 699 (2012)

Dennis Durao, An endangered species: professional sports team physicians, 15 QUINNIPIAC HEALTH LAW JOURNAL 33 (2011-2012)

Chika Duru, Out for blood: employment discrimination, sickle cell trait, and the NFL, 9 HASTINGS RACE & POVERTY LAW JOURNAL 265 (2012)

N. Jeremi Duru, Call in the Feds: Title VI as a diversifying force in the collegiate head football coaching ranks, 2 WAKE FOREST JOURNAL OF LAW & POLICY143 (2012)

Hart v. Electronic Arts: First Amendment Does Not Trump the Right of Publicity

In adopting and applying the transformative use test for balancing the First Amendment against the right of publicity, yesterday the Third Circuit ruled in Hart v. Electronic Arts that the First Amendment does NOT trump college players' right of publicity in the context of video game use of their likenesses.  The court's 62-page opinion is here and it is a fascinating read for those of you who, like me, have an interest in right of publicity law.

Courts that have rejected professional athletes' right of publicity claims in various contexts (such as fantasy league use and parody trading card use) have sometimes highlighted the fact that "they are already handsomely compensated."  While in my view this has no relevance in evaluating a professional athlete's right of publicity claim, the Third Circuit in a footnote (pg. 23 of the opinion) points out that it is obviously inapplicable to right of publicity cases involving amateur athletes:
We reject as inapplicable in this case the suggestion that those who play organized sports are not significantly damaged by appropriation of their likeness because "players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsement and sponsorship arrangements." (citations omitted)  If anything, the policy considerations in this case weigh in favor of [the athletes].  As we have already noted, intercollegiate athletes are forbidden from capitalizing on their fame while in school.

The right of publicity claim in the O'Bannon/Keller consolidated case is pending appeal on the opposite side of the country in the Ninth Circuit.  The district court in that case has already ruled that the First Amendment does not trump the players' right of publicity in the context of video game use.  It would surprise me if the Ninth Circuit does not ultimately uphold the district court's ruling.  But even if the Ninth Circuit were to reverse the district court, it would result in a split of circuits on this question.   The bottom line, therefore, is that this is a highly significant and ground-breaking decision by the Third Circuit in favor of college players. 


Tuesday, 21 May 2013

Correction to Believing Bullshit, chpt 2.

Here's an endnote I am adding to a chapter I am contributing to the upcoming Handbook on Humanism (edited by AC Grayling and Andrew Copson [Wiley Blackwell publisher]). I now realize I got something wrong in chapter 2 of my book Believing Bullshit, so might as well set the record straight publicly. Here's the endnote of the chapter I am now writing for the new book [n.b. YEC = Young Earth Creationism]:

Elsewhere I have said that because Ken Ham’s theory makes no predictions – takes no risks – regarding the fossil record, so it cannot be confirmed by the fossil record. See “But It Fits!” in my Believing Bullshit (Amherst NY: Prometheus Press, 2011). I now realize I did not get this quite right. Were we to start excavating fossils that were clearly stamped “Made by God in 4,004 BC”, etc., that might indeed confirm – even strongly confirm – YEC, despite the fact that YEC does not predict such a discovery. True, such a discovery may not be probable given YEC, but, given the discovery is nevertheless considerably more probable on YEC than otherwise, it would still confirm YEC to a significant degree. 

So here's what I should have said in Believing Bullshit (from the new chapter):

There’s a popular myth about science that if you can make your theory consistent with the evidence, then you have shown that it is confirmed by that evidence - as confirmed as any other theory.

Proponents of ludicrous belief systems often exploit this myth. It is exploited by Ken Ham. It may also exploited by those who reinterpret their preferred scripture or prophecy in order to make it “fit”.

Of course, achieving “fit” and achieving confirmation are not the same thing.

As we saw earlier, a theory can be strongly confirmed by making a risky prediction - by predicting something that would not be particularly likely if the theory were false.

The theory of evolution and common descent, in its fully developed form, does indeed make many such risky predictions – predictions that turn out to be true. That means it is strongly confirmed.

Take the fossil record, for example. The theory predicts fossils will be dug up in a very specific order. It predicts, among other things, that, because mammals and birds are a comparatively late evolutionary development, their fossils will never be discovered within the earlier, pre-Devonian sedimentary layers (which contain over half the fossil history of multicellular organisms). If the theory of evolution were false and YEC true, on the other hand, there would be no particular reason to expect a complete absence of mammal and bird fossils in those earlier deposits (indeed, YECs wouldn’t be at all surprised had such fossils shown up). Yet, among the countless thousands of fossils excavated each year, not a single example of a pre-Devonian mammal or bird has ever been found. That’s some coincidence if the theory of evolution is false. (Note this is just one example of how the theory of evolution is strongly confirmed. There are numerous others.[i])

By contrast, Ken Ham’s brand of YEC studiously avoids making such risky predictions regarding the fossil record. Whatever order the fossils are dug up is of no consequence to YEC. Mammals and birds in the pre-Devonian - fine. No mammals and birds in the pre-Devonian – no problem. For this reason, while the ordering of those fossils that have been excavated does strongly confirm the theory of evolution, it does not strongly confirm YEC.[ii][iii]

[i] See for example the talk Origins archive entry by Douglas Theobald, 29+ Evidences for Macro-evolution Part 1: the Unique Universal Phylogenetic Tree. Available online at

[ii] Elsewhere I have said that because Ham’s theory makes no predictions – takes no risks – regarding the fossil record, so it cannot be confirmed by the fossil record. See “But It Fits!” in my Believing Bullshit(Amherst NY: Prometheus Press, 2011). I now realize I did not get this quite right. Were we to start excavating fossils that were clearly stamped “Made by God in 4,004 BC”, etc., that might indeed confirm – even strongly confirm – YEC, despite the fact that YEC does not predict such a discovery. True, such a discovery may not be probable given YEC, but, given the discovery is nevertheless considerably more probable on YEC than otherwise, it would still confirm YEC to a significant degree.

[iii] Also notice that each new assumption Ham introduces to try to explain away the evidence against YEC has the effect of reducing the prior probability of his overall theory. Ham succeeds in endlessly protecting YEC against empirical refutation only by endlessly reducing the prior probability that YEC is true.

Heythrop College, University of London - my open day welcome talk

I have been teaching philosophy at Heythrop College for seventeen years. This was my first full-time teaching appointment after leaving Oxford. Unlike many academics keen to climb the career ladder - and who consequently tend to migrate from one institution to another at the beginning of their careers - I have stayed put. I have stayed here at Heythrop for my entire career. Why? 

The answer lies in what I discovered when I arrived here. I quickly discovered just how unique and valuable an institution Heythrop College is.

We are small, which means that students and staff are known to each other. This is no vast and anonymous academic factory. This is a friendly place populated with familiar faces.

We are also a specialist collegefocussing on just philosophy and theology.
Wander the corridors of Heythrop and you’ll find people deep in conversations about philosophy and theology. Irrespective of their religious belief - or lack of religious belief – all the students and staff at Heythrop are bound together by shared, deep interested in fundamental questions about reality, morality, and the human condition. Despite our obvious differences, we form a closely-knit intellectual family.

Coming straight from Oxford, I also very much valued Heythrop’s Oxbridge-style one-to-one tutorial system and the opportunity it gives students to really explore a topic with someone who knows it inside out. When the New College of the Humanities was announced, Dominic Lawson wrote in the Guardian newspaper that what the New College was charging 18 thousand pounds a year for was, in essence, the tutorial system offered by Oxford and Cambridge Universities. Lawson said that the Oxbridge tutorial system was "the single most valuable aspect of their educational offering". But Lawson was wrong to claim that the tutorial system is only otherwise available at colleges of Oxford and Cambridge Universities. The tutorial system also form a significant part of Heythrop College’s undergraduate programmes.

Heythrop is a hive of intellectual activity and world-class research is being done, but when I arrived soon learned that the staff also have that rare quality: they actually enjoy teaching. And they are skilled at it too.

These two facts - the fact that we offer an Oxbridge style tutorial system, and the fact that staff here really enjoyteaching – show themselves in the results our students achieve. Yes, we are less well-known than, say, Kings College London or University College London, and so we have more modest entry requirements. Nevertheless, our students do exceptionallywell in their final exams. In fact, Heythrop actually has been known on occasion to achieve a greater number of first class honours degrees in philosophy than of those two better-known London-based colleges.

And of course, if you take your degree at Heythrop, you will be graduating with a degree awarded by the University of London, which is one of the most prestigious and respected universities in the world.

Heythrop is a unique and valuable institution. And philosophy and theology are unique and valuable subjects. Of course these are “challenging times" for humanities degrees.

As a philosopher, I am obviously concerned that, as fees increase and the economy flatlines, prospective students with a passion for philosophy may find themselves drawn by the siren voices of those who say philosophy is an impractical, “head in the clouds” subject of little relevance to real life.

Yet the irony is that, by choosing the subject they love, philosophy students are also choosing one of the most career friendly degrees. The skills it fosters are highly transferable and valued within, for example, the business sector.
In support of this, consider the GRE exam scores of those pursuing fifty different science and humanities degrees in the United States. The GRE exam is sat in the third undergraduate year, and has three parts: verbal, quantitative (mathematical) and analytical. How do philosophers fare?

Out of fifty science and humanities undergraduate degree programmes, philosophy ranks first on the analytic component. No surprise there you might think. You’d expect philosophers to be great analytic thinkers.

But philosophy also ranks firston the verbal component of the GRE exam. It outperforms English, as you see on this graph.

Notice also how well those studying religion do on these tests.

Philosophy also ranks firstout of all humanities degrees on the maths component (with only maths-heavy science subjects scoring better).

Philosophy also ranks firstout of all fifty degree programmes on the law school entry exam.

Philosophy graduates are smart all-rounders. They possess a wide range of highly transferable skills that employers value. Do spread the word about that, please.

Heythrop is an extraordinary place and it’s time the college received the recognition it deserves. That is something we are now working on vigorously. Heythrop is one of British academia’s best-kept secrets and we are going to ensure that it is a secret no longer.

Next year, this college is, believe it or not, 400 years old. Our 400th anniversary gives us an excellent opportunity to promote and celebrate this college. I very much hope to see many of you here to celebrate our anniversary with us.

If and when you join us, you will discover, as I did, just how unique and valuable an institution Heythrop College truly is.

Monday, 20 May 2013

Warren Zola article in Boston Globe Magazine

Warren Zola has an outstanding and provocative piece in this past Sunday's Boston Globe Magazine arguing that college athletes should be paid.  Be sure to check it out.

Saturday, 18 May 2013

"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part V

Sports Law Blog is publishing a 5-part series on the practice of sports law.  The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington.  These posts will appear on Saturdays.  These posts  appear on Saturdays.  First post can be read at this link, the second at this link, the third at this link, and the fourth at this link.  Here is the fifth:


"Pros or Cons" Thoughts For The Modern "Sports Attorney"
Authored by Jason A. Davis, Esq. and Peter R. Jarvis, Esq. (all rights reserved)

Know Your Role

On occasion, an oversized lineman may find the football bouncing into his arms on a fortunate bounce from a fumble to which he may then lumber anywhere from a few to more than he thought he was able, yards into the end zone for an awe-inspiring score. However, this is not his expertise and far from the position assigned which he has spent in years of training, practice and preparation.

So what happens when you find yourself with the "perfect client" but the client needs work in a field in which you lack essential experience? Do you run with it and hope for the best? In the alternative, do you take a look at the clock, use your last time out and confer with the coach?

The prior installments should suggest the answer. Although a lawyer need not have sufficient competence to handle a matter before taking it on, the lawyer must either be prepared to acquire the competence on a timely basis or to bring in someone who already has the competence. And just as quarterbacks do not necessarily make the best tackles, so too a lawyer-client team may be best served if each player fills the role, and only the role, for which that player has the greatest expertise. An attorney's job is to put the client's goals first and foremost. And even from the attorney's selfish point of view, time spent by an attorney to learn what other lawyers already know may be time that the lawyer simply cannot bill to the client. In other words, both Al and Mega may be best served if Al is, and remains, quarterback rather than trying to play eleven positions at once.