November 9th, 2011

W&M Students React…

The SELS blog is pleased to announce a new feature to our blog. When any big events happen in the sports and entertainment law world, we will be asking students to give us their reactions. For our first edition of this feature, we will post W&M law students’ reactions to the Penn State Scandal. Feel free to give your two cents in the comments section.

Pat Slebonick – a 2L at W&M and a former division 1 football player
First off, I think that in general, athletes and coaches are held to a higher moral standard than the general public.  Regardless of the common perception of us, we are required to conduct ourselves in a better manner than the average member of public.  For example, if a college football player is arrested for drunk in  public etc. then their mug-shot will be on the front page of the local and probably regional newspapers.  If it is a star then national newspapers and ESPN will quickly carry the story.  There will be significant embarrassment for you, your family, and your team.  An average student at a college may be listed in the “arrest list” on the back page of a local newspaper.  I think because of our notoriety athletes are already held to a higher standard than the law requires.  It is probably appropriate for us to have a higher standard of conduct because of our roll in communities and societies.  Children grow up idolizing their favorite athletes and coaches; with this great power we also have a great responsibility.  If you live a life where you are idolized by so many people, especially children, then I think that you have a moral obligation to hold yourself to a higher standard.
As you can see above, I don’t think athletes and coaches are able to  evade the law because of their position already.  They often find themselves being made examples of or receiving harsher penalties than their peers who engage in the same activites.  There are also many times where athletes are falsely accused then later exonerated simply because of their high-visibility. For an example of a coach losing his job over a DUI, see Latrell Scott former head coach of University of Richmond. Not many people would be fired from employment (unless it was a driving job) for one or two DUIs. For a player who was (likely) falsely charged despite sworn affidavits by bouncers and bar owners of his innocence see Jared Jefferies (LSU).  Plaxico Burress (former NY Giant) was given a significantly heavier sentence then the average person who was charged with illegal handgun possession in NYC.  Then there are of course countless examples of athletes who are arrested around the country every day.  See “badjock.com” if it still exists.  Forgive me if it is something other than a list of athletes/coaches who have been arrested.
All that being said, I think the Jo Paterno should have reported such allegations to the Police.  I think that within many systems and organizations he would have sufficiently met his responsibility by disclosing this information to his immediate supervisor.  Effectively he is a middle-manager.  He has many bosses.  He is in charge of the football players, coaches and that is it.  He would be similar to a department head in many corporations.  I believe that it was the perogative of his supervisors to report this to the state police.  I can see how once the matter was under investigation by his bosses he had fulfilled his duty.  Either way as such a public figure he is held to a higher moral standard and will clearly be chastized for not doing so.  I’m not sure how many people would go straight to the police after their boss takes the investigation.
Joe Paterno should have made sure that the even was reported to the police.  If his boss failed to report it then he should have stepped in and done so himself. But I am not clear about whether his boss reported the incident or not.  Insofar as his boss failed to protect the children then I believe he morally had a duty to act.  However, the person who reported the incident (an assistant coach now at PSU) may even be more responsible.  He was the witness who caught the act, I believe it was probably his responsibility to report the incident.
Although athletic departments may “Adopt” new rules for reporting incidents, I’m not sure there will be any substantive change to how this works.  This is a (hopefully) unique case that no athletic department is likely to have a specific policy for.  My understanding is that most criminal activity must be reported to certain people in the department and then it is the departments responsibility to handle.  In some cases the coach may be given the ability to discipline a player however he/she sees fit.  This is probably the best way to continue handling these matters.
Baker Coon – a 2L at W&M and a Middlebury Alum
Joe Pa accomplished great things for Penn State.  But men who accomplish great things are not always good men.  I don’t necessarily believe that sports figure heads should be held to a higher standard than regular people – but I believe ALL people should frequently be held to a higher standard than the law requires in the world we all inhabit – the world where morality is frequently unambiguous.  Ultimately, this is not a “sports” issue so much as it is a power issue.  Those with power are charged with the responsibility to protect those without it.  The abused children in this case were essentially powerless compared to Joe Pa.  He could have prevented the horrific injustice that occurred inside his athletic facility easily.  I think everything I just wrote can be summed up very simply: Desmond Tutu famously said “If you remain neutral in situations of injustice, you have chosen the side of the oppressor.”  The message is simple; those who do the bare minimum, or those who say “it’s not my fight,” are the very same people who empower the wrongdoers.  Wrongdoers would be much more fearful and hesitant to do their wrongs if more of the neutral people were willing to fight against them for it.  True, the real “wrongdoer” here is Sandusky.  But Sandusky was essentially licensed by Joe Pa and others who chose not to stop him.
Joseph Alden Figueroa – a 1L at W&M and a UVA alum
I idolize Joe Paterno.  I did not go to Penn State, but my Dad went to Grad School there, and he often spoke quite highly of the man.  I picked that up very quickly, and as a huge fan of college football, he became a symbol to me.  A symbol of success, of excellence; of how a mentor to young people is supposed to act.

I am ready to believe JoePa.  I am ready to give him the benefit of the doubt.  I am willing to forgive him.  I am willing to believe he should stay at Penn State.

And that is exactly why he must go.

Paterno has announced that he will retire at the end of the season.  Even if this is a half-measure, it is a necessary conclusion to this ordeal that Paterno no longer coaches Penn State.

What happened was unacceptable.  It was reprehensible.  Something needed to be done about it.  And Paterno established himself over the decades as someone with a pristine record, someone who leads by example, someone who does the right thing for the sake of doing the right thing.  We do not know how much he knew about the incident in 2002.  Perhaps he did the best a head coach could do given the circumstances.  But the reason I idolize the man is that he is more than a Head Coach.  He is a legend.  He is the King of Penn State, State College, and quite possibly the entirety of Central Pennsylvania.  He should be held to a higher standard.  If he knew that something related to the sexual harassment of a child, he needs to do more than the legal minimum.  He needs to establish a high standard as someone who oversees the development of young people, and he failed that high standard by not seeing the prosecution of this man to fruition.

This argument goes beyond Joe Paterno and higher standards.  If you are a platoon leader in the Army, and something wrongful happens on your watch, you lose your post. Period.  These are the consequences of moral culpability, even if it does not rise to criminal culpability.

The legal principle of Res Ipsa Loquitor (the thing speaks for itself) seems apt here.  Children were hurt beyond any measure of acceptable behavior.  Some of these actions occurred directly under Paterno’s leadership.  The Grand Jury spoke of at least one child who was assaulted after the alleged Penn State incident took place, after JoePa and Penn State could have reported this man to law enforcement.  No matter what he knew, he is to be held responsible for such actions.  The thing speaks for itself: there must be consequences for the lack of action.  My idol must go.

Paul Wolfgramm Jr. – a 1L at W&M and a Penn State Alum

In my business classes, professors consistently used the example of Penn State to discuss marketing and corporate branding. Penn State prides itself on its network, and on its model for producing above average ‘school spirit,’ which drives zealous student participation in university activities, like buying football tickets, and alumni loyalty, measured in donations. Joe Pa was always identified as a central figure in Penn State’s brand image. The professors who taught me this perspective are the same people advising Penn State’s highest levels of administration. So, regardless of Joe Pa’s coaching ability, he had extreme value to Penn State’s administration as head coach, because of the revenue that his name generated for the university.

Graham Spanier, university president, Gary Schultz, vice president of finance and business, and Tim Curley, athletic director, seem to have the same level of culpability because they together discussed the appropriate sanctions that should be placed on Sandusky in regard to his on-campus activities. This all inclines me to be suspicious of Spanier, Schultz, and Curley, all administrators, who have an obvious motivation to preserve the reputation of Penn State’s brand, perhaps more than their motivation to provide justice to Sandusky’s alleged victim(s).

Mike McQueary is likely to have been explicit about what he witnessed Sandusky doing when McQuery reported to Joe Pa, Curley, and Schultz, because he was visibly disturbed by what he had witnessed, suggesting a desire for justice. He was also the most junior member of Penn State’s administration, reporting to more senior members. This tells me that McQueary did not want to ‘rock the boat’ with frivolous concerns, motivating him to be explicit with his superiors. Also, McQueary would not have gained from ruining Sandusky, a retried Penn State assistant coach. This, and the discovery of new victims all incline me to believe that McQueary’s witness testimony is authentic.

Joe Pa blew the whistle by informing his administrative superior, Curley. Joe Pa, while a wise football mind, is an old man (and he has been for a while). He is prone to forgetting players names, and other lapses of memory. His capacity as a head football coach has been diminishing for years, requiring increasing reliance on his assistant coaching staff. Joe is a simple man who devotes all of his physical and mental energy to the demands placed on him as a coach, and his multiplicity of charitable projects. I believe that Joe Paterno was told by Schultz, who oversaw University police, that the matter was being investigated and taken care of, and that Joe should confine his world to coaching and charity, as he has for 40+ years. Joe Pa preaches nothing but ethical leadership, “success with honor,” so I have little doubt as to his moral character. As to whether he should have gone further to alert authorities about Sandusky’s alleged misconduct, I believe Joe Pa was only guilty of trusting his administrative superiors. He believes in the good of people, and it was not his place to launch a rogue investigation into the acts of a retired employee when he was convinced that the matter was in responsible hands. I am sad that the legacy of one of sports’ greatest coaches is now tarnished by this scandal, but it will serve as an important lesson for a school that once considered ethical culture as a competitive advantage over other schools.

Jim Ogorzalek – a 1L at W&M and a Notre Dame Alum

I guess I’m a romantic. Somewhere deep down inside I just want to believe that NCAA athletics (football in particular) is not just a business, that it’s not just the NFL by another name. And if this fantasy was true anywhere—if there was any school in America that still adhered to a higher moral code—many of us romantics would have expected it to be where Joe Paterno was. The old patriarch’s nickname, “JoePa”, even carries fatherly connotations. We counted on him to be in control, to expect more from his players, and to demand more from himself. And yet, assuming the facts indeed are as they seem to be that Paterno knew about the horrible allegations relating to his assistant coach and did no more than inform his superior, JoePa failed us.

You see, romantics like me believe that there is still some moral growth to be found in athletics and that collegiate athletics serve the important purpose of transforming adolescents into adults. Specifically in football, a coach is charged with using football to turn boys into men.

I don’t know enough about the law to comment on Paterno’s legal obligations. But I think I qualify as a person who—holding himself up as a good man—may comment on that.

The problem being ignored here, as I see it, isn’t why Paterno did not take the information to the police (though this is a legitimate question for anyone who believes they would have acted in a more noble way). Rather, the question I have is why JoePa, the Prince of Penn St., the King of State College, the true patriarch of college football, didn’t have the courage to stand up to his friend and his superiors (though I have to wonder whether anyone in Pennsylvania was actually more powerful than Paterno) and demand that this horrific situation be dealt with properly.

A true man stands up for children who are sexually abused. A true man would have no difficulty in confronting a friend or colleague when he receives the type of news that Paterno allegedly received.

A true coach does this so that his players know how a true man acts.

I guess JoePa wasn’t that true coach after all…

Rachel K. McDonough – a 1L at W&M and a BC alum

If this were the Catholic Church, and not the Penn State football program, I don’t think there would even be a debate. Those who knew and did not alert the authorities, must be held accountable, no matter how many wins they had.

Nate Yu – a 1L at W&M and a USC alum

From a public relations perspective, Penn State handled this as poorly as possible. It is appalling, really.

For starters, the UNIVERSITY PRESIDENT issued an immediate statement that said the university supports the former defensive coordinator unconditionally. Unconditionally? Really? So if all of the allegations were true, and if all of the cover up was true, Penn State would still suppor them? Interesting.

Furthermore, the president’s statement made no mention–zero mention–of the victims involved. How about some empathy, which does not necessarily have to mean admitting fault. But let’s show some humanity. (For the record, the president is either resigning by the end of the night or being ousted by a board of trustees vote).

Legal issues aside, the handling of the PR was embarrassing. The steps from here are obvious: clean house. That includes Paterno. It’s baffling why they are going to let him finish the season. I’m as big of a football fan as there is, but Joe Pa’s legacy and the Penn State football season mean nothing considering the circumstances.

Dave Johnson – a 1L at W&M and a John Hopkins alum

The only reason that Joe Paterno should receive any sort of benefit of the doubt in this situation is because he is not on trial and is innocent until proven guilty of having done something to further or cover the abuses of Sandusky. On re-reading the grand jury recommendation, it does not seem that any further incidents (that we are aware of) occurred at the Penn State facilities. So, maybe as far as JoePa was concerned, the university had taken care of the issue – EXCEPT Sandusky continued to hang around the facilities. As a former long-standing coach, he maintained an office and continued to have access up until about two weeks ago.

As a man who, in his statement today, professed to always be about protecting the best interest of “the university and young men who have been entrusted to my care,” I would think that a little extra follow-up on Paterno’s part would be warranted. Perhaps he fulfilled his legal duty, but let’s not forget that it seems that he did so to the bare minimum. JoePa himself wishes he had done more, and maybe morally he should have. Unfortunately, NCAA football is a business and he went to his boss. It might be a very good indicator of where his allegiances lie, given that In his statement today, he even placed the university before the players.

We know very little at this point. Maybe we’re all worked up without knowing that Joe Paterno tried very hard to make the information he had known to the appropriate people. As a former youth hockey coach (for a program similar to Sandusky’s), my perspective is skewed by the belief that the children should be protected first. By speaking up in the first place, I believe (whether legally valid or not) that Paterno took it upon himself to represent those children and protect their interests. It may be too naive to believe that he (and the graduate assistant, and everyone else who witnessed the sexual abuse in each of the numerous circumstances) assumed something akin to a duty of care for the children, but if he did not do so legally, they certainly did so morally. He intervened on the behalf of Victim 2, but, as far as we’re aware, did not see his own good intentions through to resolution. That said, we only have a grand jury recommendation, so our facts are sparse and we’re roasting a lot of people right now in the pyre of public opinion. The available information points to a failure on the part of many people – many of them failures under the law. For now, Paterno deserves the legal benefit of the doubt. In the moral arena, he is not afforded the same protection.

Children within our legal system are largely reliant upon adults for their protection. As a coach helping young men become adults, steering them through a formative part of their life, no one should know that need better than a coach like Paterno. He may have fulfilled the law. He did not fulfill his own personal and moral mission. Hopefully, no further children suffered because these individuals did not try to go further to prevent Sandusky from causing further harm.

November 9th, 2011

Penn St. and Possible NCAA Sanctions

Lost in the fallout of this scandal (and rightfully so as the focus is on the incredible misdeeds of Penn St. officials) are the potential implications for the football program and the student-athletes on the Penn St. University Football team. NCAA President Mark Emmert issued a statement last night. It reads:

“This is a criminal matter under investigation by law enforcement  authorities and I will not comment on details. However, I have read the  grand jury report and find the alleged assaults appalling.  As a parent  and an educator, the notion that anyone would use a position of trust to  prey on children is despicable. My thoughts and concern goes out to the  alleged victims and their families.”

So the question becomes, especially based off this statement, will the NCAA become involved? Will the Athletic Department and/or Football Program be subject to sanctions as well? From the plain language of his statement, President Emmert seems to say that the NCAA is not yet involved. But his statement certainly does not state that they won’t become involved later on down the road. If we look back at some of the recent NCAA infractions committed by big-name programs, many have started with criminal investigations. The Ohio St. tattoo parlor incident comes to mind immediately. The reason Jim Tressel was “tipped off” about the player’s trading merchandise for tattoos was that the owner of the parlor was being investigated by the FBI. Since that incident cost Tressel his job for “dishonest” conduct, it seems like a proper comparison.

Ohio St. has not been formally “sanctioned” by the NCAA Infractions Committee, and has self-imposed the following penalties: Vacating all 2010 wins including a Sugar Bowl victory over Arkansas, the suspension of the players involved, two years of NCAA probation and of course the dismissal of Head Coach Jim Tressel. That incident and this incident are not at all comparable in terms of wrongdoing, but are they comparable under NCAA Rules?

Without looking at the NCAA Bylaws (nor do I recommend anyone doing so, can’t imagine it’d be very interesting), it is difficult to see any obvious violations. As much as this sounds like a troubling conclusion, there were no material benefits conferred upon players, recruits or anyone else that afforded Penn St. a competitive advantage. No one took money or violated those specific rules. NCAA rules have to do with competitive advantages after all. In many ways, it is simple a criminal matter.

Now, there is a dishonesty provision in the NCAA bylaws that covers coaches. It’s the provision that helped sink Tressel and did sink Bruce Pearl (men’s basketball) at Tennessee. But that dishonesty had to do with duties imposed by the NCAA. For Tressel, it was lying on compliance forms. For Pearl, it was lying to NCAA investigators about impermissible recruiting practices. Here, no one at Penn St. seemed to have lied or engaged in other dishonest conduct to the NCAA based on an NCAA duty. It’s the same reason why neither Joe Paterno nor the Assistant Coach who witnessed and reported the act to Paterno are currently subjected to criminal liability. Both reported to their immediate supervisors, which is the only legal duty applied to them by the sexual abuse reporting statutes. It may not be the answer we all like, but it seems to the correct one under the rule of law.

Now, I don’t believe that Penn St. will completely escape NCAA inquiry and subsequent sanctions. My bet is they will be put on some type of probation in which the new administration and coaching staff (because everyone there will be gone within weeks) are subject to enhanced review. Any “minor violation” by the football program or the athletic department is likely to bring down significant penalties, but as far as what the NCAA can do about this incident, I think the answer is not that much. And before you get outraged, let me explain why:

Not a single player on the Penn St. Football Roster did anything wrong. Every individual student-athlete associated with that team has fully complied with all obligations thrust upon them. They’re also in the middle of a very good season, leading the conference, but that doesn’t really matter. This same argument would apply if they were 0-9 instead of 8-1. They agreed to play football for a staff that represented high moral character and “doing things the right away.” Just because that staff did not live up its promise does not mean that the players should be punished. And if the NCAA were to come down hard on Penn St and punish the program athletically, the players would be the ones harmed. This coaching staff is certain to be gone very soon. (In fact, some of the non-implicated assistant coaches are likely to suffer huge hits from their careers based on this incident. They will lose their jobs, and aren’t guaranteed to find others, while it seems like only two members of the staff had any reason to know something was wrong, but that’s another issue altogether.)

NCAA sanctions and penalties are unlikely to affect the ones who truly committed the illegal/immoral/unethical acts, so I think the NCAA’s best course would be to put Penn St. on some sort of probation as alluded to above, but forego major sanctions, allowing the players and the next staff’s to compete going forward. We can only imagine what it must be like for those players to be in the middle of this firestorm that they had no role in. Let’s not punish those who did nothing wrong, even where others did nothing but wrong.

November 8th, 2011

Penn St. and Joe Paterno

We would be remiss if we did not mention the unfortunate incident(s) at Penn State University. The scandal has spread far beyond the world of NCAA Football, into both the legal realm and the consciousness of the entire nation. The details of the events surrounding this situation are available from many sources, so we will not spend time recounting them. Suffice it to say, there was significant wrongdoing, and the blame should probably be spread amongst multiple actors/entities. Charges were recently leveled against not only the alleged wrongdoer, but also two Penn St. Administrators.

The big news from today was that legendary Penn St. football coach Joe Paterno was scheduled to address the media at 12:30. First, Penn St. indicated questions would be limited solely to its upcoming game with Nebraska (where Penn St. has an opportunity to solidify its position at the top of its division in the Big 10 race). Then reports indicated that Paterno would address all questions, which would undoubtedly focus exclusively on the scandal. At some point this morning, Penn St. officials decided not to allow Paterno to take the podium and canceled the news conference. (Also in that article is links to 3 articles further analyzing the situation).

Paterno’s son Scott said the decision was made by University President Graham Spanier and motivated by the “legal circumstances” that accompany this situation. How true that assessment is, I cannot say, but I do believe that this is not the right move for the Penn St. Administration. At this point, significant damage has already been done, and the attention surrounding this incident is NOT going away. Shielding the interest parties from the media is only going to continue to increase the outrage. At this point, their best bet is to get Paterno and the President out in front of the cameras and get passt the first stage of this story.

Currently, much of the discussion in the sports world is about Paterno’s role: How much did he know? When did he know? Why didn’t he do more? Joe has to answer those questions. He had already been cleared of criminal wrongdoing. (As far as a civil suit, who knows what will happen, but in all likelihood there will be several lawsuits and Penn St. will probably have to settle. The bad publicity from a public trial would be reason enough to settle.)

The earlier report has since been updated to say that a potential departure of Joe Paterno is in the works. The New York Times is now reporting that Paterno could be out in weeks, or even days. Such a precipitous fall for a man who as of a few days ago was considered one of the greatest figures in college sports. More is certain to surface in the coming days, but for now it looks really, really bad for everyone involved.

November 8th, 2011

Tubby Smith Costing Gophers More than Basketball Games

By Nathan Yu

Tubby Smith’s tenure so far at Minnesota has been interesting. If you view his accomplishments as a Gopher from the viewpoint of the rest of Smith’s career, it is somewhat disappointing. Tubby is national champion and a former National Coach of the Year. But if you view it from the Gophers’ side, it is a little more encouraging; Tubby has taken ‘Sota to two NCAA tournaments and one NIT tournament. Encouraging, that is, until Tubby goes out of control and causes you to pay a $1 million verdict to someone  who never even worked for the university or its basketball program.

Rewind back a couple of years to when Tubby first signed on to Minnesota. He was recruiting assistant coaches to join his staff, and he had a couple of conversations with then-Oklahoma State assistant coach Jimmy Williams. The talks were going so well that Tubby allegedly offered Williams a spot on the staff. Tubby said he had the final say on hiring for his staff. The offer was worth roughly $200,000 per year. Williams,  elated at the idea of returning to Minnesota where he had previously coached, reportedly accepted the offer. Williams then hired a realtor to place his Oklahoma property on the market and turned in his resignation papers to Oklahoma State. Sounds nice and peachy so far, right?

Not so fast. Tubby apparently did not have the final say on the hiring of assistant coaches. Instead, the athletic director (A.D.) had the authority to clear all potential hires (who would have thought?). When Tubby gave the athletic director Williams’s name for some routine checks, the A.D. discovered that Williams was tied to some NCAA improprieties back in his days with Minnesota (everything comes full circle, doesn’t it?). The A.D. vetoed Tubby’s decision and sent a letter to Williams with the bad news (thanks for your interest!).

Williams sued Tubby for negligent misrepresentation and fraud. The jury ruled in favor of Williams and awarded a nice amount of compensation. Here is text directly from the verdict and settlement summary:

“Hennepin County jurors returned a verdict in favor of the plaintiff…awarding $1,247,293 for reliance on Smith’s representation that he had final authority to hire him as an assistant men’s basketball coach. The jury determined Smith falsely represented he had final authority to hire assistant basketball coaches and failed to use reasonable care or competence in obtaining information regarding his hiring authority or communicating it to Williams or asserting it as his own knowledge without knowing if it was true. Jurors also determined Williams was not negligent in relying on Smith’s representations.” Williams v. The Bd. of Regents of the Univ. of Minn., 2010 WL 2679834 (Minn. Dist. Ct.).

The school appealed the decision, but the appellate court denied their appeal and affirmed the lower court’s decision. And now, the school plans to appeal again to the Minnesota Supreme Court. You can never have enough litigation.

I think everyone would agree that Tubby is liable in this case. He told Williams he had hiring authority; Williams acted on that information; Tubby’s knowingly misrepresented his authority; and Williams was out of a job because of his reliance on the information. The school now is going to argue that the punishment ($1.2 million) is unjust/unreasonable. I do not think this is a strong argument. I don’t know what the terms of the contract were in terms of years of employment, but let’s say it was, on the conservative side, a three-year deal. That means Williams was out of $600,000 directly by nullifying that contract. Well, what if Williams could have been offered a more lucrative deal from another school? Minnesota took that opportunity away from Williams. Minnesota also may have hurt Williams’s employment chances in its publicizing of Williams’s past conduct (although, presumably, another employer would have discovered that information). But I think Minnesota should, from a policy standpoint, be punished (punitive damages) for their conduct. You simply cannot make such a costly mistake; the man quit his other job and sold his home!

On another note, what does this say about the autonomy of coaches at big programs? Did Tubby assume he could push Williams through the hiring process simply because he was Tubby Smith and he gets his way? Which coaches would have, or have, done the same? Coach K? Calipari? Boeheim? Did it make a difference that Williams’s past violations were committed at Minnesota and not at another school? It would be interesting to see a change of facts and how the athletic director would have handled the situation, which may also end up changing whether a lawsuit is brought.

Nathan Yu is a regular contributor to the SELS Blog. He can be reached at nyu@email.wm.edu.

November 3rd, 2011

Another Wrinkle on the NBA Labor Dispute

There has been some dissension in the ranks of the NBA Players Association in recent days. It began with reports questioning the loyalty of President Derek Fisher; he was alleged to have had a “secret” meeting with NBA officials in which he compromised their position by suggesting that the parties agree on a 50/50 split of Basketball Related Income. BRI, we remember, is the major sticking point in the negotiation with the Union making it clear they do not wish to go below 52/48 split in favor of the players. Yesterday, the situation got even more interesting when longtime NBA veteran Jerry Stackhouse strongly criticized Fisher and Union head Billy Hunter in an ESPN interview. A few excerpts:

  • “But I don’t want him negotiating my contract. I want an agent who knows the lingo negotiating my contract. Derek Fisher, he doesn’t negotiate his own contract. He has an agent. So why would I want him negotiating something even bigger than his contract? This [Collective Bargaining Agreement] is something more important to everybody”
  • “We don’t do that [negotiate contracts or make business decisions]. Players are emotional. Players get emotional. So no, I don’t necessarily, particularly want Derek Fisher or any of the executive committee negotiating a contract for me.”

This brings up an interesting dynamic that is almost always present in sports labor negotiations: the owners and the league are much better equipped to negotiate a complex labor agreement than the players. Of course, the Union employs its own lawyers, but its executive committee is compromised of NBA players. That committee is who makes the substantive decisions. They decide whether 50/50 is appropriate. Not to offend any professional athletes, but many of these individuals have not even completed their college educations. Kevin Garnett has been intimately involved in this negotiation, and he didn’t even attend a single day of college. I’m sure he is a bright guy but there is no way he has the skills and ability to effectively negotiate against seasoned NBA executives and lawyers. There is always a degree of self-interest involved, but it seems clear that executive and lawyers, whose job it is to evaluate the economic strength of business deals. The players job is, obviously, to play. It’s implausible to expect the players to be properly prepared for these negotiations.

This is true throughout professional sports. Labor relations within sports are different than within other industries for several reasons, this being one. It’s also different because the NBA is not a single entity, as an airline would be in their labor negotiations. The NBA is compromised of 30 individually owned franchises (actually 29 because New Orleans is technically owned by the NBA right now). Those 30 franchises each have their own individual objectives for the CBA. There are small-market and large-market teams in vastly different positions right now. This is likely another factor as to why this deal has been so difficult to finish.

Another fundamental difference is that players get to to negotiate their salaries individually, whereas in a traditional labor relationship, the collective bargaining agreement includes salaries for the worker represented by the union. Much like the variant positions held by different franchises, players also have unique concerns. Lebron James is going to come out of this fine regardless. the 11th man on the Golden Stat Warriors roster is probably more likely to favor a quick resolution and resume getting paychecks. Since his salary is much lower, the time missed is a much bigger deal.

The NBA labor situation is very complex on several levels and these events are further evidence of that fact.

 

November 1st, 2011

Using the Courts

By Sam Mann

There are lots of reasons for people and/or organizations to use the court system. Sometimes there is a legitimate dispute that cannot be solved outside. Other times one party is making a frivolous claim against another. Some parties are being forced into court by circumstances against their will. Still other times, the courts are a weapon to achieve settlement. This week in the world of sports, the courts have been an active participant.

First, the Los Angeles Dodgers Bankruptcy. As you might remember, the Dodgers filed for bankruptcy after Major League Baseball rejected its massive, but still questionable television deal with FOX (questionable because of the up-front loans owner Frank McCourt stood to obtain as part of the deal). Last week, the court delayed the trial about a month, with nearly all commentators indicating that this would give the parties an opportunity to settle. The LA Times is now reporting that McCourt is nearing an agreement to sell the Dodgers, for a price that could exceed $1 billion. McCourt seems to have finally recognized that even if he wins in Bankruptcy Court, as both MLB and FOX have filed adversary actions opposing McCourt’s attempt to auction off the Dodgers television media rights, he won’t be able to retain the team much longer. Part of this is because he does not have the capital to invest in the team (hence the bankruptcy) and also because he entered into a divorce settlement with his former wife to the tune of $130 million. Court documents in the LA Times report indicate that even with a new TV deal, McCourt would have liquidity problems as early as 2013.

MLB is extremely motivated to “win” and have McCourt sell for multiple reasons. First, and foremost, this whole ordeal has been a black mark on baseball’s leadership. While the Texas Rangers bankruptcy last year could be chalked up to overspending and the financial collapse that lowered Tom Hicks’s level of wealth (both somewhat legitimate reasons), the Dodgers financial apocalypse is much less explainable. It seems clear that MLB should never have approved McCourt’s bid to buy the Dodgers to begin with. He purchased the team with an absurd amount of debt, somewhere around $420 million, and it was questionable whether he ever had the financial capabilities to effectively run the Dodgers. There was also the Brian Stow incident and pending lawsuit, as well as the contention that McCourt and his family misappropriated Dodger funds for their own personal benefit. MLB recently filed a motion in Bankruptcy Court alleging $190 million worth of misconduct.

Add to all of this that Dodger fans have turned against McCourt, and it seems like there is no way out for a man who can reasonably be called one of the worst owners in sports history. Chalk this one up to a party being forced into court against his will, rather than a legitimate dispute. The next piece of news is more of a dispute between interested parties.

Yesterday, West Virginia University instituted a declaratory action against the Big East Conference in the latest development of the conference realignment saga. You can find the complaint in PDF form here.  It’s an interesting read, as it becomes very clear how West Virginia plans to avoid its obligations to the Big East.

A brief summary of the events leading to the lawsuit. The Big East is slowly dying as a football conference. First Pittsburgh and Syracuse left for the ACC. The Big East responded by saying it would hold the two to the 27 month waiting period for withdrawal in the Big East bylaws, to which all conference members approved. Neither Syracuse of Pitt has formally challenged the waiting period, though officials from both have quietly wondered if it might be altered. Then TCU, which was supposed to join the conference next school year, withdrew for the Big 12 before ever competing as a Big East member. Unlike Pitt and SU, they were not to be held to 27 month waiting period. Then last week, WVU accepted an invitation to join the Big 12. The Mountaineers took a slightly different tact than the previous schools intending to leave and announced that the school is gone as of July 2012, regardless of anything the Big East had to say about it.

Those are the facts that lead to this lawsuit, but before we list West Virginia’s main argument, it is appropriate to impute some commentary here. As a Big East fan (as a result of my strong affinity for Syracuse), I have observed the entire trajectory of the league from its early football days. The Big East is a basketball conference that tried to play football. For a while it did so pretty successfully. In the 90s, Miami, Virginia Tech and even my Orangemen had nationally competitive programs. But then the league started to fracture and it did so for two reasons: structure and leadership. Former Commissioner Mike Tranghese was an effective and well respected leader, but even he could not overcome the structure of the league. It was started as a basketball league, and included several universities that do not even play major college football(currently 8 non-D1A football schools). For anyone who has followed conference realignment, it is all about football. But the Big East has never embraced that. Its leaders have come from Providence College, a tiny basketball-only school. Its 8 basketball-only members have votes over football matters. This “unique” structure was always prone to football catastrophe. As a Syracuse fan, I have worried about its football future for a decade, because the conference is instable by its very nature. When Miami, Virginia Tech and Boston College bolted, the league was weakened but not debilitated. Unfortunately, Tranghese retired and John Marinotto took over. Marinotto may be smart, and he might be the greatest guy in the world, but he is not a good conference commissioner. He and the league have consistently been reactive, clinging to its BCS automatic qualifier status, unwilling to be proactive and strengthen the league. As a result, its more attractive members were always eligible to be stolen by another conference. This was true in 2001 with Miami and true last week with West Virginia. Keep all that in mind, as we go through WVU’s complaint.

WVU’s argument rests on a few key points: first, that the Big East bylaws are no longer applicable to them because of material breach on the part of the conference. As ammo for this argument, the school points to the inactivity of the Big East and its crumbling state as a football conference. With just 5 football playing members still “committed” there is no doubt that the conference is in trouble. Thus, WVU is arguing that its obligations under these by-laws are null and void.  It further states that its performance, namely staying in the conference, is impossible or unreasonably burdensome, and its purpose for entering the contract has been frustrated. This is fancy contract law language for the Big East has screwed up, in WVU’s eyes, so much so that WVU no longer has to do what it agreed to under the bylaws (a contract).

Though they allege other, somewhat creative theories, the second theory is that even if they were wrong on point 1, the 27 month waiting period was waived for TCU and thus the Big East cannnot force WVU to abide by it. The problem with this argument is that TCU was never officially a member of the conference.

Conference and school administrators across the country will be watching closely to see how the court is going to come down, if in fact a ruling is ever given. More than likely this suit was filed to put pressure on the Big East to settle with West Virginia, and then in turn Pitt and Syracuse. In the end, that is the most sensible outcome. It makes very little sense for either side to go through two “lame-duck” years solely because the by-laws say so. The Big East needs to act soon, and apparently it has invited 6 new schools to join, and its future prospects don’t involve any of those 3 school, so why insist on keeping them around when there is no long-term benefit to it?

October 26th, 2011

Follow-up: NBA labor and MLB Television

By Sam Mann

I was listening to an interview with Billy Hunter, head of the NBA Players Association, and wanted to comment on a few issues that came up. (The interview was with Bill Simmons, available on ESPN and Grantland.com). One of the main points of contention from Simmons, playing devil’s advocate to Mr. Hunter, was that consumer behavior is evolving, and is much different now than it was in 1998 (when the owners also locked out the players) or even just a few years ago. Basically, with the advent of NBA.tv, the iPad, internet viewing programs and the NBA package on cable/satellite, it is much harder to convince fans to come to games. Season ticket packages are harder to sell, particularly for non-premium seats in the upper deck. For a lot of teams to generate revenue, they need to put butts in the seats. A significant portion of receipts for each gave is non-ticket revenue. Concessions and other on-site revenue are shared differently than revenue from media contracts, which may be a reason why small market teams are struggling.

Simmons contended that the NBAPA has yet to embrace the changing economic nature of the NBA, specifically as it relates to this point. While the league is still bringing in revenue with their television deals, streaming internet, etc., these differences have a stark effect on the economic state of the league. While I don’t have the numbers in front of me, it is at least reasonable to believe that the NBA has to adjust their economic model going forward. From everything I have read (and heard) on the negotiations, the NBAPA is operating on the assumption that market forces are the same as they have ever been and that basketball does not face an uncertain economic future. And while ratings have been excellent recently, and the league was very popular back when it actually operated, that does not mean that NBA economics are stable.

Here is my (updated) take on where we are headed with this labor deal. It seems reasonably clear that the players won the last two rounds. The owners are not going to stand for the public perception that they have not “won” this labor deal. To win, I believe they are prepared to miss a full season. In the previous deal, the players were entitled to 57% of Basketball Related Income (BRI). The owners are saying the split has to be 50/50 before they can negotiate on the other points, while Hunter indicated that the NBAPA’s last proposal was somewhere around 53%. The highest I can see it settling at is 51%, and that is probably only with a hard salary cap, which the players are definitely against.

The owners argument seems to make sense at first blush. The league as a whole lost somewhere between $200-300 million (the players believe that number to be about half, but nonetheless) last year, and only 8-10 were clearly profitable on a year-to-year basis under the previous collective bargaining agreement. Based on these numbers, the owners should be entitled to retain a larger split of BRI. At the same time, however, the owners are using these losses as an excuse to impose a completely new, much more restrictive system on the league. I agree with some that the solutions have to be creative, as it is clear that the economic model needs tweaking, but I don’t think it needs to be blown apart completely. The players cannot be completely divested of every concession they have won in previous collective bargaining agreements.

There are obvious solutions to some problems as well, yet the “big issues” have gotten in the way of even those. Shorter contracts: no guaranteed contract lasting more than 4 years; incentive-based deals: one idea even called for a mutual arbitration clause allowing either the team or the player to exercise and determine whether the payer’s performance is measuring up to his contract; an equitable split of BRI somewhere between 50-53 (and where it realistically should be anyway); and an out for either of both sides in this next deal (The NBA reportedly wants a 10 year deal but that only makes sense if there is an opt-out, because, as we indicated above, the economic nature of the game and the consumer experience is changing). Of course there are other, more difficult problems to solve, that do require creative solutions. But blowing up this system and instituting a 10 year deal with an absurdly low salary cap does not seem like the answer either.

I will repeat what I said in the previous post on the labor dispute: there are fundamental misunderstandings and mistakes being made on both sides. Neither is right and neither is wrong, and both are stubbornly clinging to their positions for the sake of unity and “holding the line” and other ideals that signify nothing. The point of this is to create and maintain a system that creates good incentives and allows the teams that operate properly to make a profit commensurate with their product. It’s not for every team to make a profit regardless because the system is set up that way (as the owners seem to believe) or for the players to be guaranteed their share regardless of performance or the economic state of the league (as the players seem to think). Negotiation inevitably implies compromise and meeting in the middle. Very rarely does one side “win” as definitively as each side here seem to think they are entitled to.

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Shifting gears for a moment, I want to briefly return to the discussion of baseball’s television ratings. Per CNBC’s Darren Rovell, the World Series did beat Monday Night Football on Monday, but it was the lowest rated Game 5 in World Series history [For the record, that seems really hard for me to believe. I thought this series was gaining momentum, but I guess not]. The numbers from Sunday night really illustrate baseball’s problems: Average age of Game 4 viewers: 53; Sunday Night Football: 42. So even thought MLB beat the NFL Sunday night, they didn’t beat them in advertising terms. And Game 5 was bested in the ratings by Dancing with the Stars and 2 1/2 Men (did Sheen do a cameo or something?)

The reason I bring this all up again is not to kick dirt on Major League Baseball (I love baseball and have watched every game), but because of the increasing importance of television ratings and non-traditional revenue from the internet, cable/satellite packages, etc. As we see in the above NBA discussion, consumer behavior is changing and leagues/teams/players have to respond accordingly. Though baseball’s labor deal is expected to be cooperative and uneventful (ESPN even floated the idea that a deal could be announced by the conclusion of the World Series, which would be the end of this week), both the league and the Players Association should consider what lower television ratings mean for the sport.

October 24th, 2011

MLB’s Television Ratings, or Is Baseball’s Audience Too Old?

By Sam Mann

I promised you a post about MLB’s TV ratings, and I shall deliver. I find tonight to be an extremely opportune time to discuss, because tonight’s numbers will be the ultimate test. Let me explain. It is undeniable that baseball ratings have been decreasing over recent years. It is similarly undeniable that the NFL owns the ratings game and routinely crushes the other sports that go against it. NFL football is so popular, they say, that they could put any two teams on and get superior ratings. Well, tonight we get to test that theory. As we speak, FOX is running Game 5 of what has been a pretty entertaining World Series, while ESPN is carrying Monday Night Football between Baltimore, a well above-average team, and Jacksonville, a well below-average team from such a terrible market that they are the “favorites” to be the first NFL team to move to Los Angeles when the new stadium is built. Basically, if Monday Night Football beats the World Series, especially by a large number, then the pundits are right and the NFL literally can throw out anything on the field and print money. (Although last night’s Game 4 did beat Sunday Night Football on NBC, which may or may not have had anything to do with the 0-7 Colts losing by 55 points. Still, tonight is an interesting test of the same theory)

As I alluded to earlier, baseball’s ratings, particularly for the World Series, have been in a gradual decline for most of the last decade. With the exception of the 2009 World Series, a matchup of huge media markets (defending World Series Champions Philadelphia against the vaunted New York Yankees) ratings for the World Series have been in perpetual decline. According to a Sporting News article running today on this exact subject, last year was the lowest rating World Series ever, and Game 1 of this year’s World Series was down from last year, drawing just 14.2 million viewers (somewhere in the 9.0 ratings range). Fortunately, the series has been close, so total viewership will surpass last year’s Series, but it is still down historically. Even last night, when MLB beat the NFL, the game only rated a 10.7. To put that in context, take a look at Baseball Almanac’s ratings chart:

Year / Series Television Network Rating Share Viewers
World Series TV Ratings
2000 FOX 12.4 21

18,081,000

2001 FOX 15.7 26

24,528,000

2002 FOX 11.9 20

19,261,000

2003 FOX 12.8 22

20,143,000

2004 FOX 15.8 26

25,390,000

2005 FOX 11.1 19

17,162,000

2006 FOX 10.1 17

15,812,000

2007 FOX 10.6 18

17,123,000

2008 FOX

8.4

14

13,635,000

2009 FOX  11.7 19
2010 FOX   8.4 14
Year / Series Television Network Rating Share Viewers

Compare that with 1995, the year after the strike (19.5), 1991 (24.0), 1985 (25.3), 1980 (32.8), etc. Even the bumps, if we can call them that, are pretty explainable. 2009, see above. 2004, the Red Sox miracle run to their first title since 1918. 2001, the first World Series after 9/11, with New York having homefield advantage. Basically, when the Big Boys aren’t front and center, or where there isn’t a miraculous occurrence, it has been bad news for baseball and its television partners.

However, the concerning part is not that overall viewership has decreased, because television has become more fractured and ratings across the board have been decreasing (with the exception of the NFL of course, where last year’s Super Bowl was the second-highest rated program ever). The truly concerning part is the average age of the baseball audience. According to the Twitter feed @tvsportsratings (you bet I’m quoting Twitter, tell them to add a chapter to the next edition of the Bluebook), ratings among males age 18-49 are on pace to be among the lowest ever. The median age of the audience is likely to be in the mid-50s. The NBA Finals median age was 40. As any good Advertising 101 student could tell you, everyone wants to capture that 18-49 male demographic, and baseball isn’t doing it. Their audience is, in a word, way too old. Adding insult to injury is that the Big Bang Theory, a show on CBS about nerdy scientists, rated higher among the prized demographic than Game 2, where Texas won 2-1 in an extremely well-played, dramatic game. Don’t get me wrong, the show is okay, but it shouldn’t be rating higher than the WORLD SERIES!

This all matters for two reasons: 1) the next national television agreement; and 2) the effects of ratings on collective bargaining and competitive balance. As you know if you’ve followed this blog at all, television ratings drive sports these days. College Football is basically destroying tradition, in a sport where they value tradition maybe more than any other, purely for more lucrative television deals. College Basketball recently negotiated an $11 billion dollar television deal, expanding the tournament an extra round to help do so. And most importantly, the NFL structures their salary cap and their revenue sharing system on the basis of their huge national television contracts. Known for its parity, the NFL crowned the Green Bay Packers as their 2011 Champions. Green Bay is of course the home to a media market ranked somewhere between #71-#187, depending on methodology. Either way, really small. As a comparison, the smallest MLB market, Milwaukee, rated #35 & #33 on the two lists. Again, media deals drive sports, and ratings are a primary factor in negotiating these deals.

The real kicker of this whole thing, as alluded to with the NFL, is that the national television contracts are distributed evenly among MLB teams. Local radio and television deals are not, which is part of the reason why the Yankees, Red Sox, Phillies, et al bring in so much more revenue than other terms. The bigger the national deal, the smaller the net effect of those big market advantages. In theory, that would create more competitive balance and more opportunities for small market teams to invest in the draft, scouting, retain their own players, etc. The ratings equation matters for collective bargaining as well. As the NBA is so clearly showing us, when revenue streams start to decrease, labor strife seems to follow. Baseball’s deal runs out in December, and although all reports seem positive, the last thing either party needs is to deal with a week’s worth of stories about how the ratings declining means the future of the sport is in doubt.

For the record, I don’t think the future of baseball is in peril, despite the television ratings. Attendance was up (modestly, but still) and many teams have favorable local media deals. Channeling the NBA again, it does not seem like baseball faces the same attendance, salary structure (surprisingly enough) and player issues. (As I alluded to in my last post, the NBA Players Association has yet to grasp the true economic situation the league faces. In my opinion, baseball is much healthier; partially because the arbitration/player control system artificially depresses salaries for young players and partially because baseball’s owners have been far more fiscally responsible).

Still, it would behoove MLB for the ratings of this World Series to be better than past years. That along with a peaceful Collective Bargaining Agreement ought to create serious momentum for the sport moving forward. Now if we can just figure out how to get Phillies-Yankees in the Series again…

Update: According to CNBC Sports Business Expert Darren Rovell, the World Series did in fact have a higher overnight rating than Monday Night Football. However, it was also the lowest rated Game 5 in World Series History.

October 20th, 2011

Goodbye Hypothetical Basketball Association

Our coverage of the NBA lockout has been lacking, but in our defense, it looks like we will still have plenty of time to catch up. The latest “story” to break (and I use the term story loosely) is that several star NBA players will organize and participate in a “world tour.” The implications of this are two-fold: first, how do events like this, and the various other exhibition games that have been happening over the past few months, operate as negotiation tools in the bargaining process?; and second, does this mean the players a step closer to forming their own league? We will handle the issues one at a time.

1. I have not yet seen any financial numbers on the tour, or really any of the events/exhibitions that have taken place this summer (nor am I sure if any numbers have been made public). My suspicion is that the players are making little if any money off these games. A quick Google search did not really answer any questions. The events that do charge seem to be doing so to donate to charitable organizations, which is very commendable of the players. This is for obvious reasons: these games are a negotiating tool; an effort to win the public over to the players side. (I also think it’s a bit of a miscalculation, but at least players with million dollar deals aren’t pocketing revenue from these games while simultaneously complaining how the system is flawed.)

The theory, if I had to venture a guess, is that the Players Association believes these pick-up games and loosely organized events will keep the players (and their star level) in the public consciousness, so that fans will miss the NBA and yearn to have the league come back. Presumably, this clamor would put pressure on the owners and force them to make more concessions, leading to the favorable deal the NBAPA desires. However, as I alluded to above, I think this is a fundamental miscalculation of the situation.

(Although, for the record, the owners are not reading this situation right either, as apparently they are convinced of two things: one, that this is the NHL and canceling a season will help the profitability of the league rather than hurt its image; and two, that their lack of any discretion in signing big-money, long-term contracts is not just as responsible for the financial predicament the league faces. Seriously, owners have overpaid for average players routinely over the last decade, and now they blame the players for this. What are the players supposed to do? Say, “Actually, I know you’re willing to give me 4 years and $50 million, but I’m actually worth more like $30 million.” Of course not. The owners want the CBA to save them from themselves, which is a ridiculous as it sounds, but that is a whole separate post).

In actuality, the players media tour and barnstorming events have little if any effect on the public or the negotiation process. (I was going to say ZERO effect, but that sounded a little too strong.) Take a quick look at the sports landscape right now: NFL, as popular as ever, despite its own labor issues. College Football, arguably as popular as ever and routinely getting huge ratings and even bigger television contracts (see previous posts for all the realignment stuff, which is only happening because the sport is so insanely popular and profitable). MLB, though the ratings are down a little in the league championship and World Series, is coming off a huge month of September where two improbable pennant chases brought nationwide attention to the game. College basketball is about to start. The NHL, apparently, has started its season (I’m not an NHL guy, though I apparently love parentheticals. They lost me around 2000 or so when scoring effectively stopped, and then really lost me when they skipped a season). The point is, no one is missing the NBA right now.

A quick tour around the country shows very few markets where its absence is being felt. Miami is a no-brainer. The Heat dominated that town last year and the U isn’t very good this year. Same goes for Los Angeles and the Lakers. Chicago? I bet they’re more excited about Theo Epstein to the Cubs and the Blackhawks title defense, but that is at least debatable. New York? Maybe, but the Knicks weren’t any good anyway, and the Giants and Jets aren’t exactly low-profile. Dallas? Two words: America’s Team … and also the Rangers in the World Series. Boston? Have your heard about fried chicken and beer? Or maybe some guy named Brady? Philly? Not a chance; the town, and myself, are still in mourning over the Phillies. Washington, Detroit, Cleveland, Atlanta? NFL is a far bigger deal and their teams all stink in the NBA anyway. We could keep going, but you get the picture.

If anything, you could argue these games are a desperate attempt by the players to hold on to any leverage they might have, although this whole line of reasoning assumes that the agents and NBAPA are pushing the players to participate and organize these events in order to drum up publicity as a potential negotiating tool. Though I don’t necessarily buy it, maybe they are just playing to play, and not even considering the labor ramifications. Either way, it is difficult to make an argument as to how these events will help them at the bargaining table.

2. I’m not sure exactly who mentioned it, but there has been a lot of discussion about whether the players would try to spurn the NBA in the wake of their labor trouble and form their own league. After all, the story goes, the NBA is a “star-driven” league and if fans will pay big dollars for regular season games on a Tuesday night in January for the NBA, they would pay big dollars for a short-season amalgamation of a league comprised of ‘select’ star players without the NBA structure. ESPN is running a story in their magazine this week exploring the possibility (also available online here). Their corporate partner (subsidiary?) Grantland.com ran a feature about the challenges this hypothetical league would face a few weeks ago. The Starting Five, a sports blog, ran their own examination of a hypothetical league in July. Carmelo Anthony has reportedly discussed the possibility with Lebron James. So what are the chances that this could actually happen.

First, the legal side. As the amount of events and exhibitions discussed above indicate, the lockout effectively removes any controls the individuals teams might have over their players. Contract or not, every NBA player is free to participate in any non-sanctioned event they want. FIBA, basketball’s international organizing body, has determined that NBA players can play in other sanctioned leagues as well, provided there are outs in their contracts for when the NBA resumes play. So, on that note, the players are legally able to form an organized league.

So that brings us to structure. Most NBA arenas are owned by teams and even those who aren’t still have valid leases with the teams that occupy them, so it would be impossible to use current NBA venues. However, there are no such restrictions with college gyms or otherwise unoccupied venues. For instance, Kansas City has what is referred to as an NBA-ready building just waiting for a team to become available. A city like Pittsburgh could also easily accommodate a team. However, any league put together hastily (as this one would need to be) is likely to be a better fit in smaller arenas like college gyms. Scheduling would then be an issue, but one that probably could be overcome.

On the other hand, there is very little, if any, chance that a hypothetical league could put together the necessary infrastructure in the next few months. And we haven’t even discussed the funding for such a league yet. The league would have to decide on the number of teams, find owners for those teams, find venues, schedule games, hire coaches, trainers, equipment managers, print and sell tickets and dozens of other tasks that I can’t think of because I’ve never run a professional sports league. And that’s the whole point: none of these guys have ever run a league.

For this to actually happen, the players would have to find a renegade billionaire willing to take a large financial risk, who also had some interest in basketball and some skill in either organizing the league or hiring those who could, on an extremely accelerated timetable. Does this type of person even exist? If he did, would he be interested? Assuming this person is in fact out there, my guess is he or she would want at least some time appreciable amount of time to put together a business plan and attempt to estimate the cost of all those things mentioned in the last paragraph. Then he would need at least 2 months to put everything in place, and when I say 2 months I think I am being generous. So best case scenario, this league could be close to operation at the end of January.

So let’s say, for the sake of argument, this all happens and it’s January 25th. What next, you might ask? David Stern, NBA Commissioner, uses his prodigious power and lifts the lockout. According to federal labor law, when parties have bargained to an impasse, the employers can prescribe labor conditions, subject to reasonableness requirements of course, and resume business. In most industries, pro sports excepted, the business must go on when a collective bargaining agreement expires. If the union does not strike, or the employer does not lock the employees out, they continue to operate under these conditions until an agreement is reached. Of course the National Labor Relations Board and applicable law are a little more complicated then that, but the important takeaway is that the NBA could end the lockout, and every player under contract would be forced to return to the league. (Another potential pitfall: such a hypothetical league would have to start small, maybe 8 or 12 teams. Let’s say 12 players per roster. That’s between 96-144 jobs. The NBA, when it isn’t locked out, contains 30 teams with 15 roster spots each. What are the other 350 players so when their brethren abandons them for this new league?)

Goodbye Hypothetical Basketball Association, because any savvy billionaire who might have otherwise been willing to fund such a league would come to the same conclusion we just did, and realize that no rival league could ever truly arise. At least not a league that is structured anything like the professional sports organizations we currently have in this country. Maybe they mean a barnstorming league which presumably would not require the level of organizational structure contemplated above. It probably wouldn’t be nearly as profitable either. My advice would be not to invest in any “renegade league” quite yet.

I was hoping to get to a quick point about MLB Playoff ratings, but I’ll save that for later.

September 27th, 2011

Holy Toledo: A College Football Controversy (and no, it’s not about the BCS for once)

By Sam Mann

So before we even get into this discussion, in the interest of full disclosure, I am going to admit that as a Syracuse fan I may be biased about this. While it is pretty easy to predict how I will come out on this issue, I think it requires some attention.

Last Saturday Toledo played at Syracuse in a non-conference football game. Syracuse ended up winning 33-30 in a game that, while sloppy at times, was a pretty exciting, back-and-forth game. With 2:00 left in the 4th Quarter, Syracuse scored a go-ahead touchdown to take a 29-27 lead. The extra point try hooked left badly, but the officials on the field called the kick good, making it 30-27. Upon replay, it appeared the kick was no good, but the officials determined the evidence was conclusive enough to overturn the call on the field. Toledo marched down the field and tied the game, but the vaunted Syracuse defense created a turnover in overtime and won the game outright.

Toledo, obviously upset, has decided to handle it with class…wait, check that; they decided to complain loudly. Toledo Athletic Director Mike O’Brien has asked the commissioner of his conference, the MAC, to request that the Big East force Syracuse to vacate the win, presumably to give it to Toledo. MAC Commissioner Jon Steinbrecher has rightfully recognized that there is no bylaw or vehicle for the NCAA or a conference to take a win away from a team, so we can safely assume that no action will be taken.

The national media has also seized upon this series of events as an opportunity to express their disgust. ESPN has labeled it the “Syracuse Controversy” per its ESPNU Experts Show. On yesterday’s College Football podcast, Gene Wojiechowski spent several minutes discussing the topic, and then requested Syracuse to “admit they did not win the game” and vacate it “in the interest of sportmanship.” (See the 29:30 mark in the podcast).

Here are my thoughts on this story: it is unbelievably ridiculous. Though this may be hard to believe, I would feel the exact same way if Syracuse had lost. Bad calls are part of the game. So are physical and mental errors by the players. To unwind every game just because a replay indicates something different would absolutely destroy the game.

First, you can’t assume Toledo would have won the game by kicking the aforementioned field goal. With a 2 point lead, it is extremely possible that Syracuse plays a different defensive scheme, or that Toledo’s play-calling might change. Further, Syracuse had 2 timeouts remaining, which it never called, precisely because of that 3 point lead. Down 2, they certainly would have managed the clock differently.

Secondly, there were other bad calls in that game, trust me. A blatant pass interference penalty missed in the end zone. If you’re going to unwind the Syracuse extra point, let’s unwind that play and give Syracuse the ball at the 2 yard line and assume they score a touchdown. Does that sound fair, equitable or in the spirit of the game? No, not at all. And that is why we cannot and should not change the outcome of games after the fact.

There are examples of this in sports all the time. Missouri and Colorado played a game in 1990 where the refs mistakenly allowed Colorado to have five downs on their final drive and beat Missouri. That game wasn’t overturned or vacated; why should this one? The Pittsburgh Pirates lost an extra inning game to the Atlanta Braves in July where the umpire called a baserunner safe at home, before the runner even touched the plate. The intergrity of that game wasn’t threatened. Neither Neal Huntingdon or Clint Hurdle asked the National League to vacate Atlanta’s win.

Is it unfortunate that the officiating crew, a Big East crew as everyone likes to point out, missed the call? Yes, it is. But if this call happened in the 3rd Quarter and not the 4th Quarter, no one would even be talking about it. I think it’s also insulting to Syracuse and their players to imply that their win is somehow less meaningful or they should give it up because an official, acting outside of their control, made a mistake. Syracuse Coach Doug Marrone didn’t make the call. There is no conspiracy here.

An official made a bad call. The game went on. Toledo executed a nice last-second drive to tie the game at 30. And then Syracuse won the game fairly in overtime by making a big play. Syracuse won, completely within the rules. To try and take that away now would be grossly unfair to all parties. Do you really think Toledo would feel satisfied by getting this win on Tuesday when they walked off the field Saturday thinking they lost? And what would the consequences of such a ruling be? Wouldn’t colleges all across the nation file petitions to change the outcomes of games every week? Would conference commissioner have to set up a review committee to make sure every win was “legitimate”?

The argument is silly, and I for one cannot believe that a professional college sports administrator (Toledo AD Mike O’Brien) would honestly ask for such an action to be taken. It’s just sour grapes for a tough loss. Sorry, Mr. O’Brien, sports, and life for that matter, are not always fair. To complain about it after the fact and ask for the result to be changed shows a fundamental misunderstanding of the way the game is played. You can’t just assume that Toledo would have won. You can’t penalize Syracuse for something out of their control. And most importantly, you can’t set the precedent of changing results after the fact.

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