NCAA Rule Change Ignores Players' Best Interests

A few weeks ago I wrote an article taking the NCAA to task for failure to provide an adequate amount of time for underclassmen in men’s basketball to “test the waters” before having to remove their name from the NBA draft if they wished to retain their college eligibility. It is obvious that the constraints this rule provides on the amount of time individuals have in making this decision are intended to benefit colleges yet do not reflect a modicum of interest in what’s right for the student-athlete.

Just recently the NCAA, in their infinite wisdom behind the lobby of the ACC basketball coaches, made a rule change for 2012 further restricting the date by which student-athletes must renounce their NBA aspirations if they intend to return to school from May 8th (currently) to April 10th (new rules)—not surprisingly the day before the NCAA's spring basketball signing period.

The rationale for this policy change, as described by the coaches who sponsored this rule, was to make sure that student-athletes could focus on academics during the spring while also giving coaches a better idea of their roster for the coming season before the recruiting period closes. While I would always applaud a commitment to academics, coaches and the NCAA don't seem to have any concern about missing class time for conference and NCAA Tournament games as schools take teams on the road for much of the month of March.

What I glean from this rule change is that making a bad career decision is fine, just do it quickly so that a school knows whether or not they need to recruit your replacement.

Anyways, for a wonderful opinion piece on this topic, read the article that fellow advocate for student-athletes Marc Isenberg has posted on his Money Player blog here.

Recent BCS-Related Developments

For those following the on-going saga regarding the legality of the Bowl Championship Series under federal antitrust law, there have been several developments this week that may be of interest.

First, the Honolulu Star-Advertiser reported on Tuesday that the State of Hawaii is considering whether to join the forthcoming antitrust suit that Utah Attorney General Mark Shurtleff intends to file against the BCS. Hawaii AG David Louie reportedly discussed the issue at length with Shurtleff during a recent meeting of state attorneys general, and his office is working on an agreement with Utah to share related materials. Hawaii would be a logical state to join in such a suit, given that its flagship university is in a non-BCS conference, and received a disproportionately small share of revenue for its 2008 Sugar Bowl appearance.

Second, Christine Varney, an Assistant Attorney General in the Antitrust Division at the U.S. Department of Justice, sent a letter on Tuesday to NCAA President Mark Emmert, inquiring as to the NCAA's position on the BCS. Varney's letter began by stating that "serious questions continue to arise suggesting that the current [BCS] system may not be conducted consistent with the competition principles expressed in federal antitrust laws." The letter then went on to ask the NCAA to explain why it does not offer a playoff for the Football Bowl Subdivision, and whether the NCAA believes the BCS currently serves the best interests of "fans, colleges, universities, and players." The letter closes by stating that the NCAA's views on these issues will help the Justice Department determine how to proceed with respect to the BCS, a clear signal that the federal government continues to investigate the legality of the system.

It will be interesting to see how the NCAA responds to the Justice Department's letter. The six BCS conferences possess an inordinate amount of power within the NCAA, and will presumably pressure the organization to remain agnostic regarding a playoff in its response. However, the NCAA membership at large would stand to benefit significantly if a playoff were implemented in the Football Bowl Subdivision, given that the NCAA would undoubtedly retain a share of the revenues it generates (as it does for the NCAA Division I men's basketball tournament). In the unlikely event the NCAA came out in favor of a playoff, pinning the blame for the lack of a playoff on the obstinate leadership of the six power conferences, it could inflict a significant blow to the BCS's chances of surviving this latest round of political pressure.

Finally, CNN is reporting that Utah Senator Orrin Hatch "demanded" the Justice Department further consider a potential lawsuit against the BCS during Attorney General Eric Holder's appearance before the Senate Judiciary Committee on Wednesday. AG Holder reported stated that he did "not disagree" with Senator Hatch's characterization of the BCS as a "mess" that provides distinct advantages to certain "privileged conferences."

All in all, one has to wonder how much longer the BCS leadership will continue to defend the system in the face of increasing political pressure, especially given the fact that the six BCS conferences would stand to earn hundreds of millions of dollars more per year under a playoff system.

Update: Mike McCann is interviewed today by David Moltz of Inside Higher Ed on the Justice Department's letter to the NCAA.

Update #2: The PlayoffPac blog discusses the relevance of the NCAA's views on the playoff matter, noting that NCAA bylaws prohibit any outside entity from establishing its own championship tournament.

A Primer on Referee/Umpire/Sports Official Bias

The issue of possible bias among referees, umpires, and sports officials is timely. Late last month, ESPN Dallas/Fort Worth ran a story highlighting how the Dallas Mavericks have fared in the playoffs when NBA referee Danny Crawford was part of a three-person crew. While the numbers set forth in the ESPN article were eye-catching, they were far from conclusive. In a 2009 article (here or here), I analyzed every Dallas Mavericks game during a seven year period, not merely the team's playoff games. I did not find any NBA referee to exhibit bias against the Mavericks when considering all games.

In the second of a trilogy of micro-level NBA referee bias-related journal articles, I investigated allegations made by former Miami Heat coach Pat Riley against two NBA referees (and found no bias on the part of the referees). The resulting paper was published yesterday in the Journal of Quantitative Analysis of Sports. Below is an excerpt that highlights some of the research being done on the issue:

"The presence of bias among referees, umpires, and judges in sports has been part of a growing body of research. Among basketball referees, the analysis of bias has been conducted on the basis of omissions (Moskowitz and Wertheim, 2011), race (Price and Wolfers, 2010), profit-maximizing motives (Price, et al., 2010), point spreads and home court advantage (Shmanske, 2008), aggressive play (Anderson and Pierce, 2009), spectator influence (Lehman and Reifman, 1987), and personal animosity (Winston, 2009; Rodenberg and Lim, 2009). Outside of basketball, Parsons et al. (2011) found evidence of racial bias by baseball umpires, Brimberg and Hurley (2009) pinpointed a home bias among ice hockey referees, Emerson, et al. (2009) focused on judging bias in Olympic diving, and Morgan and Rotthoff (2010) unearthed some evidence of sequential order bias among gymnastics judges. In soccer, referee decision making has been investigated as a function of crowd noise (Nevill, et al., 2002) and social pressure (Garcicano, et al., 2005; Dohmen, 2008). Evidence of referee bias on the basis of nationalism has been investigated in rugby (Page and Page, 2010) and figure skating (Zitzewitz, 2006; Fenwick and Chatterjee, 1981)."

NOTE - If there are any like-minded researchers looking to collaborate, please drop me an email or touch base at the upcoming Sports Lawyers Association conference in Washington, DC. I have found this quasi-legal research line to be fascinating and, in turn, fertile for extensions.

Frank McCourt sued by former law firm for unpaid bills

I recently examined Major League Baseball's decision to take over the Dodgers from Frank McCourt, who has encountered a number of problems.  David Frank of Massachusetts Lawyers Weekly now looks at Bingham McCutchen, a Boston law firm that used to represent McCourt, suing McCourt to collect hundreds of thousands of dollars in unpaid legal fees.  Bingham McCutchen wants a Massachusetts state court to declare that the firm met its standard of care in representing McCourt.  Bill Shaikin of the Los Angeles Times has additional coverage.

Men's sports and Title IX

Universities complying with Title IX by cutting smaller, non-revenue men's sports is not new. In fact, I always have thought of it as a brilliant strategy. The university cuts small men's sports with impunity, able to claim that its hands are tied, that it has to do this to ensure Title IX compliance, and that if anyone is to blame, it is Title IX (this argument undergirds many of the new arguments to "reform" Title IX). The strategy sets small men's sports against women's sports, even though they are similarly situated in all of this. They get put in a supposed zero-sum game. Meanwhile, schools continues to funnel a disproportionate amount of athletic funds to football and men's basketball (an average of 78 % according to one women's-sports advocate, although I have no way of knowing if that number is accurate).

But it is back in the public eye again, with the story in Sundays New York Times about the University of Delaware cutting its men's track program in order to ensure future compliance with Title IX, even though there is no present threat or risk of non-compliance or a lawsuit (Delaware is about to add a women's golf team). Instead, several track team members have filed a complaint with the Office for Civil Rights in the Department of Education (headed, by the way, by a former law school classmate), claiming the decision to cut their program was gender-discriminatory.

I was cheered to read one comment in The Times story, from a former captain of the Delaware track team, who is quoted as saying "How did we ever get to a place where a program that is supposed to be about creating opportunities for women is now being used in a way to create no opportunities for women and to cut men?" He clearly gets it.

Miami Book Presentation

Forgive me a bit of shameless self-promotion:

This Tuesday, May 3, at 8 p.m., I will be doing a talk on my book, Institutional Failures: Duke Lacrosse, Universities, the News Media, and the Legal System, at Books & Books, the wonderful independent bookstore in Coral Gables. This is part of the book series sponsored by FIU's School of International and Public Affairs. Recent events--namely the district court's decisions allowing some of the players' civil claims to go forward against Duke and the City of Durham and the indictment of Crystal Mangum for murder in her boyfriend's stabbing death--have suddenly put this case back in the news.

If you are in Miami Tuesday, I hope you can stop by.

When Somebody’s “0” Does Go

In one of the most sensational months of professional boxing in recent history, the undefeated records of two of boxing’s hottest young contenders, middleweights James (Stone Cold) Kirkland and David LeMieux, and those of two of its mostly highly regarded young champions, Andre Berto and Juan Manuel (Juanma) Lopez, all came to an end in dramatic fashion. 

While it is widely perceived that a boxer’s “0” makes them that much more marketable, the way in which the first loss is suffered and the implications of same are ultimately what makes the difference in the eyes of a boxer’s promoter or manager and the boxing public.  

What kind of protections do boxing’s promoters and managers create for themselves in the event that the first loss makes them lose faith in their previously undefeated charges or alters their plans for them? 

A quick look at the most standard types of contractual provisions to address a boxer’s first loss, and all other losses, follows. 

The Right to Terminate Following a Loss or Draw   

Is it not uncommon to see language in a boxing promotional or management agreement that empowers a manager or promoter to terminate the agreement, at his sole discretion, in the event that the boxer “shall fail to have been declared the winner” of one or two matches during the term of the agreement. As it sounds, this provision means that if a boxer is either the recipient of a loss or a draw, he may soon be a free agent if his manager or promoter so decide. While a boxer may view this provision as a right for manager or promoter to kick him when he is down, think of it from a manager or promoter’s point of view; do they want to continue to be contractually and financially obligated to someone that might reveal themselves as a dog in a given loss.
 
With the possible exception of Kirkland, who was steamrolled in one round by the underrated Nobuhiro Ishida, it would not appear that any of this month’s losers truly showed themselves to be unworthy of a continued relationship with their promoter or manager. Each of them lost after spirited efforts, and each of them is either a big enough draw or a proven enough entity to jump right back into the mix. LeMieux may need some rehabilitation and confidence building fights, as he is young and was previously unproven at the top level of the sport, but he is a draw in his native Quebec and an explosive, TV-friendly puncher. Berto and Lopez were both top level young champions who had proven themselves and their worth on several occasions prior to their respective losses, and during their losing efforts themselves, and could jump right back into important bouts. Even Kirkland was a popular, TV-friendly attraction who had blown through the middle and upper-middle echelon of the middleweight division in an explosive, Tyson-esque manner before being chinned by Ishida. Therefore, provided that the aforementioned boxers’ teams all had termination provisions that could be activated by a boxer failing “to have been declared the winner” in their agreements, they all have to think long and hard before releasing such talent. 

The Right to Re-Negotiate Terms Following a Loss or Draw 

A promoter or manager who aware that he either may be taking on damaged, but marketable, goods at the start of a given agreement, or is simply cognizant of the fact that no one is unbeatable but believes every boxer deserves the chance to redeem themselves, may reserve the right to renegotiate certain terms of their agreements, such as the minimum number of guaranteed bouts, the amount of a monthly stipend, or the minimum purses, in the event that a boxer “failed to have been declared the winner” of a bout or two during the term. While such a provision may result in the boxer having less activity or less income generated under a given management or promotional agreement going forward, it also means that they are not left out in the cold as a free agent after a loss or draw and will be given the opportunity to come back from their setback without a drastic change in the make-up of their team. In sum, a renegotiation could be far better than nothing for a boxer who may otherwise have nowhere else to turn following the loss of his “0.”

The Right to Toll the Term of the Agreement

Perhaps a boxer is unable to fight for several months due to a medical suspension or decides he needs some time to re-evaluate his career and thus takes a year or two off following a loss or a draw. Indeed, Kirkland, Lopez, and LeMieux were all likely placed on medical suspensions since they lost by knockout. One or all of them may wish to take some time off to reevaluate their careers and take inventory. A tolling provision in a promotional or management agreement would cover such scenarios and allow a boxer’s team to continue to benefit from its agreements with him in times of uncertainty. As previously detailed in “Toll Road Back to Ghost Town?,” a typical tolling provision allows a promoter or manager to extend the term of their agreement with a boxer in the event of a postponement of a given fight, or in the event that the boxer becomes injured, suspended, or permanently/ partially disabled. This provision is placed in an agreement to help ensure that the promoter or manager has every opportunity to get a return on his investment in a boxer no matter what happens during the term of their relationship. It can have advantages for the boxer too, as it makes certain that he has a promoter and/or manager to continue his career with following injuries, personal troubles, suspensions, and other events that keep him out of the ring for appreciable lengths of time.

Sore Losers and the Morals Clause

What if, for example, Kirkland decided to go on an anti-Japanese diatribe, including derogatory remarks about the Japanese tsunami victims, following his loss to Ishida rather than just complaint about the stoppage? Or, per actual events, what if the promoter or manager of super middleweight contender Khoren Gevor decide that his attack of referee Manfred Kuechler following his tenth round disqualification loss to Robert Stieglitz on April 9, 2011 makes him more difficult to promote and was generally bad for business? Well, if there was a morals clause in any of Kirkland’s or Gevor’s agreements, the aforementioned antics following their losses could provide another reason for a promoter or manager to unload them. As previously detailed in “Throwing Stones When Living with a Glass Jaw?,” a typical morals clause allows one or both parties to a given agreement the option of terminating the agreement in the event that the other party does something to either bring ill-repute to himself or otherwise does something to sully the other party’s name or image. Anti-Japanese slurs and assaults on referees theoretically qualify as occurrences that would bring ill-repute to someone or sully a party’s name or image. A word to boxers who are virulently disappointed following a loss and cannot think of anything appropriate to either say or do: do your best to keep it to yourself until the press is outside of an earshot. There is no need to put your contractual relationships at risk because of inappropriate words or actions in the ring following a loss.

A smart manager would do his part to both negotiate these protections into his own agreement with a boxer and lessen the impact of any such protections when negotiating a boxer’s promotional agreement. Likewise, a smart promoter would be smart to make the aforementioned protections as strong as he feels a particular situation warrants so that he is not compelled to carry any boxer perceived as dead weight following a bad loss or draw. With these protections available for both their management and promotional agreements, the boxers themselves are best served to simply do their part to show up for each of their bouts in the best mental and physical condition that they can be and give the best effort that can be expected of them. Otherwise, when the 0, 1, or 2 goes, they will increasingly be at the mercy of the whims of those in charge of handling their professional careers.  

This article can also be found on http://www.8countnews.com. Since this article was originally written, another hot undefeated prospect, 2008 U.S. Olympic alternate Roberto Marroquin, lost his "0" in a split decision loss to tough Mexican journeyman Francisco Leal.  Follow Paul Stuart Haberman, Esq. on Twitter at @Standing8Court.