37-year-old Bartolo Colon has been an excellent surprise this season for the Yankees. Signed to a minor league contract in the off-season, Colon, who struggled in recent seasons with inconsistency and injuries, is 2-1 with a 3.86 ERA. His strikeouts per 9 innings are up considerably from the previous few seasons - he's striking out a batter per inning, something he hasn't done in years. Why are his Ks up? One reason is that he's throwing the ball 95 miles per hour again. And why is that? Here's one strong explanation:
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Major League Baseball is examining a procedure performed on Yankees right-hander Bartolo Colon last year that involved stem cells being injected into his painful shoulder and elbow, according to The New York Times.
Joseph R. Purita, an orthopedic surgeon in Boca Raton, Fla., told the newspaper he flew to Colon's native Dominican Republic and helped a team of doctors there with the treatment on the 2005 AL Cy Young Award winner. He said he has used Human Growth Hormone in the procedure before, but not in this case with Colon.
HGH is banned by Major League Baseball.
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Purita told the Times he took fat and bone marrow stem cells from Colon and injected them back into his elbow and shoulder.
"This is the future of sports medicine, in particular," he said. "Here it is that I got a guy back playing baseball and throwing pitches at 95 miles an hour."
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Let's assume that Colon did not receive HGH. Is the stem cell surgery itself a source of concern?
There is no question that stem cell surgery has done wonders for a lot of people with serious injuries or disabilities and holds great promise for medicine. And like the innovation of Tommy John Surgery 35 years ago, stem cell surgery might allow pitchers and eventually batters to continue careers that would otherwise be shut down due to injuries, wear and tear or old age. Maybe we'll see more guys playing at a high level into their late 30s and even 40s. More Julio Francos wouldn't be a bad thing. Fans would get to see their favorite players play longer. And players, knowing that they could have 15 to 20 year careers, would likely take longer-term perspectives in how they view issues in collective bargaining.
Of course, steroids can also do wonders for people with various ailments. The same is true of HGH, which helps people recover faster from injuries. Steroids/HGH can also prolong big league careers that would have otherwise ended. But that hasn't stopped Baseball from viewing them as means of cheating.
Does the authoritative moniker "surgery" for stem cell surgery make it more acceptable than injecting someone with a steroid? Or are we okay with stem cell surgery because it takes cells from one part of the body and merely relocates them to another part (as opposed to a steroid which uses as an external substance to change the body chemistry)? Are the lines between medicine and cheating really clear?
Mitchell Berman (Texas) has written the piece I wish I could have: Replay (forthcoming in California Law Review). I read an early draft of the paper and it does a terrific job of applying legal theory to the seemingly trivial issue of replay in football and the standard of review, as well as drawing lessons from replay to apply to the legal system.
Here is the abstract:
This paper aims to resolve a question of superficial triviality: when sports use instant replay technology to review on-field calls, what standard of review should they employ? The conventional view is that on-field calls should be entrenched against reversal such that, if the reviewing official has any doubt about the correctness of the initial call, he should be instructed to let it stand - even if he thinks it very probably wrong. Indeed, in the wake of officiating debacles at last summer’s FIFA World Cup, many observers proposed not only that soccer introduce instant replay, but also that its governing bodies adopt the NFL rule directing that on-field calls be overturned only when the referee sees "indisputable visual evidence" (IVE) that that call was mistaken. In a small nutshell, this essay argues that conventional wisdom in favor of IVE likely rests upon mistaken premises, and offers several concrete proposals for reform.
A lengthy investigation into the optimal standard of review for instant replay in sports might seem frivolous. But it serves a deeper ambition. We are in the early years of sports’ colonization by econometricians, as legal theorists remain watching from the sidelines. That is unfortunate. Formal organized sports are, in effect, legal systems, and legal theorists might find much both to teach and to learn by paying closer attention to competitive athletics. In short, legal theorists would benefit from a sustained engagement with what I have termed, in previous work, "the jurisprudence of sport" As a case study in this nascent field, this essay reveals that the problem of appellate review in sports is surprisingly rich and complex. But it shows more than that. The jurisprudence of sport maintains that sporting practices and norms can teach lessons for ordinary legal systems as surely as the other way around. Illustrating that claim, this essay draws from football replay practices an argument to reform the criminal trial system to accommodate two verdicts of acquittal, not one.
* Possible misstep by Major League Baseball in its taking over of the Dodgers from Frank and Jamie McCourt (the two are embroiled in a nasty divorce): According to attorneys for Frank McCourt, one of the persons assigned to run the Dodgers did not disclose that he used to work for Jamie McCourt until after reviewing confidential financial information about the team. If that's true, expect this to emerge as a key issue should MLB try to sell the Dodgers without Frank McCourt's approval.
* The federal government, apparently not deterred by the disappointing result in the Barry Bonds trial (a conviction on just one count - obstruction of justice - which was the least important count), is stepping up its investigation of Lance Armstrong and his possible use and sale of illegal performance-enhancers. As I explained in an SI column, Armstrong, if charged, could face a wide range of charges, including fraud and racketeering. His case, in other words, would be structured differently than those against Bonds and Roger Clemens, both of whom have faced prosecutions for knowingly lying under oath.
* Brian Baxter of American Lawyer has a great sports law column called The Score. Check it out - tons of great info and insight.
* Sports attorney Jim Juliano has a good sports law newsletter called Legally Speaking.
* Mostly not sports law, but if you're a member or prospective member of the Massachusetts Bar, I strongly recommend reading Mass Lawyers Weekly, The Docket blog. Really good stuff there.
It made for an interesting fact-pattern: 1) the athletic director signs the coach to a lucrative contract (or "memorandum of understanding") that contains a $3.2 million buyout; 2) the athletic director quits; and 3) the school fires the coach and says it won't pay him the buyout because, in its view, the athletic director did not have the authority to sign the coach (even though the relevant by-laws suggested he did).
Now the dispute has settled in a way that clearly favors the coach. Here's more:
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Neil Cornrich, Prince’s agent, said in a statement that Prince was “appreciative of KSU’s willingness to structure the settlement in such a favorable manner.”
Cornrich contends the settlement is a “significant financial advantage” for Prince compared to the $3.2 million buyout. Those payments were not scheduled to start for almost five years and would not be fully paid until Dec. 31, 2020.
“Discounted to present value, the $1.65 million settlement figure essentially represents an agreement to pay Coach Prince almost the entire $3.2 million termination payment,” Cornrich said. “Coach Prince will receive these funds upfront and almost nine years earlier than they were originally due.”
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“I think it’s a favorable outcome for Prince,” said Michael McCann, a Vermont law professor who also works as a legal analyst for Sports Illustrated. “For the school, there is a benefit to having closure to litigation. I don’t know what the value of that is, because it’s hard to quantify, but this lawsuit has attracted a lot of publicity that the school doesn’t want.
“It will provide closure, whereas if it goes through litigation, regardless of who wins and loses, you still have the possibility of appeals and public statements. You can certainly see why the school wants to settle it and have some closure even if it means paying Prince a substantial amount of money.”
McCann said the arguments made during a hearing for summary judgment last fall in Riley County District Court appeared to give Prince the advantage.
“It seemed that the athletic director either had authority (to negotiate a coaching contract) or one could presume he had authority, and in either case Prince would likely win,” McCann said.
“I think Prince had the stronger legal argument heading into the case, but there is still a benefit to Prince for settling. It ends all risk of losing.”
I speak with Maggie Gray of Sports Illustrated Video to discuss whether Baseball Commissioner Bud Selig can sanction players for alcohol/DUI related offenses.
To summarize and elaborate on my video remarks:
1) GENERAL COMPARISON WITH STEROIDS Driving under the influence, as a form of human conduct, is much worse than using, buying or even selling illegal steroids or other illegal performance-enhancers. If you drive drunk, you directly can kill or maim others, along with directly cause substantial property damage; if you use steroids, in the vast majority of cases you can only directly hurt yourself (if in fact steroids are really harmful, a point that has drawn debate).
Now, some have written about "roid rage" and people on steroids acting violently, and families/employers of those who commit DUI or use steroids are indirectly impacted by the abusers' conduct.
But I think it's pretty clear that driving under the influence is way worse than using steroids.
2) BASEBALL COMPARISON WITH STEROIDS But when viewed purely from the lens of baseball, are steroids worse than DUI? Steroids are about cheating, DUIs are about off-field conduct. There's some merit to that. But that logic hasn't stopped the NFL, armed with its Personal Conduct Policy, from strictly regulating off-field conduct on grounds that certain misbehavior harms the league image.
3) DO NUMBERS ACTUALLY INDICATE A PROBLEM? While 6 players committing DUIs in the first five weeks of the season is alarming in some media-noteworthy way, keep in mind that a) the 6 DUIs are not connected to each other and occurred in different circumstances; and b) at any given time, there are 750 players on the 30 MLB rosters - 6 out 750 is less than 1%. Is there really an epidemic of MLB players committing DUIs? Could the level of misconduct be the same as previous years, but only this time a few more players than normal were caught for an offense that culprits often get away with?
4) THEORY AND BEST INTERESTS OF THE GAME CLAUSE In theory, Bud Selig invoke his Best Interests of the Game authority to sanction players for the DUIs. The DUIs have clearly embarrassed the game and the collectively-bargained Joint Drug Prevention and Treatment does not mention alcohol, an omission which he could interpret to mean he is not limited by the Policy.
5) REALITY AND COLLECTIVE BARGAINING In reality there are at least 3 reasons why Selig will wait on sanctioning until there is collectively bargained language:
i) The Players Association would greatly resent him acting unilaterally and that could cause labor negotiation problems for Selig and the owners in their discussions with the PA on a new CBA (the current one will expire on December 11, 2011), or at least in terms of developing an alcohol/DUI policy.
ii) The Players Association could file a grievance with an independent arbitrator (under the terms of the CBA), arguing that Selig has overstepped his authority and that alcohol and related arrests need to be mentioned in the Policy.
iii) Selig has to be careful not to violate the Americans with Disabilities Act, which regards alcoholism as an impairment and, in certain situations, can empower an employee for seeking redress when an employer punishes him/her for matters related to alcoholism. See our discussion on Roy Tarpley for more.
* Dan Fitzgerald of Connecticut Sports Law has an excellent piece on the difficult choice undrafted free agents have in choosing between certain opportunities in the United Football League and potential/lockout-uncertain ones in the National Football League.
* Over on The Blackbook Legal Blog, Goutman Jois has some terrific commentaries on the NFL lockout (see here and here for example)
* I speak with the Associated Press about an ethics investigation into the potential conflict of interest of members of an NCAA panel who are looking into the Fiesta Bowl also attending a Fiesta Bowl-sponsored retreat.
