Should Bud Selig be Fired? *(by Marquette Law School)*

At the Adjunct Professor Blog, Mitchell Rubenstein (St. John's) rebukes the Marquette School of Law for retaining MLB Commissioner Selig as an Adjunct Professor. The Marquette press release is here. Prof. Rubenstein writes:

I think this is a total disgrace to law professors and am disappointed in Marquette Law School. No doubt Mr. Selig is an accomplished professional and no doubt that he can be an asset to any school by an occasional lecture about some of his experiences. But it is quite another thing to teach a class to students learning to be lawyers and to evaluate students, i.e., grade them. Law school is not business school and I am sorry to say that this appears to be a publicity stunt by Marquette Law School.

The position of an adjunct professor is certainly the most precarious at most law schools (other than that of the dean), so some angst at this hire is understandable. Adjunct professors -- practicing lawyers, typically, who join the faculty to teach one class (or two) -- serve at the pleasure of the Associate Dean for Academic Affairs, without the security of tenure or a long-term contract. They are relatively poorly compensated (rarely, I would guess, earning their hourly billing rate for time spent), yet engage in heavy-lifting activities like writing exams and grading student papers. Yet because they also have full time jobs in practice, they miss out on many of the speakers, workshops, and other activities that add to the joy of law teaching. To the extent that Prof. Rubenstein's blog speaks for adjuncts, his chagrin at any reduction in the qualifications for such teachers is possible to understand.

Yet the degree of criticism here seems extreme. First, to the extent that the critique is based on Selig's lack of qualification to grade students, it seems that he will be co-teaching a class with full-time Professor Matt Mitten. My guess is that Prof. Mitten, certainly qualified to do so, will be doing most (if not all) of the actual grading in the course.

Prof. Rubenstein also objects to a non-lawyer teaching legal classes. My personal view on this is that diversity in instruction is beneficial to all kinds of students, including law students. While bar exam courses should probably be taught only by faculty with legal experience and education, upper level electives like Sports Law may give students a better educational experience if those with real industry experience are involved. Selig has supervised labor negotiations, imposed discipline under a CBA, and no doubt hired hundreds of thousands of dollars worth of legal services. Would there be any objection to an accountant teaching a class on accounting to JD students? Or an M.D. teaching a class on medicine for lawyers? In my view students can learn a lot from someone who has hired lawyers.

More on Cameron Newton

Isaac Newton’s Law of Gravitation holds that every massive particle of the universe attracts every other massive particle. To state it another way, or according to Cam Newton (no relation), “When God be blessin’, the devil be messin’.”

For perhaps the most gifted quarterback to come out of the NFL farm system in a decade, both of these principles mean that success breeds a flurry of rumor mongerers, two-bit accusers looking for their five minutes of fame, and former coaches with axes to grind all intent on bringing down the latest star in the mythically pristine world of college athletics. And one other unlikely culprit: the vaunted New York Times.

It was the Times that first published the attack piece on Maurice Clarett in the off season after Clarett helped Ohio State win the National Championship. It was this article that snowballed into the NCAA investigation, culminating in Clarett’s suspension from Buckeyes football, his need to try to enter the NFL early, and his ultimate downfall. In that article, the Times was outraged that freshman Clarett was allowed to retake a midterm when his African American history professor insisted that he do more than skate through classes without learning the material.

Six months ago, the Times wrote no less than three major articles exploring whether Kentucky basketballer and first round draft pick Eric Bledsoe had really deserved a good grade in his Birmingham, Alabama high school Algebra II class. This article also prompted an NCAA investigation as well as one conducted and paid for by the Birmingham School Board, both of which cleared Bledsoe of any shenanigans.

Now the New York Times claims “credit,” along with ESPN, for “breaking” the Cam Newton story in which, so far, no one has proven anything resembling the alleged impropriety had actually happened. Indeed, the Times has already been taken to task for reporting that one of the key whistleblowers in the case had talked to one of the accused principals when at least one of the parties now denies that took place.

I don’t know what happened to cause Newton, Cam not Isaac, to attend Auburn as opposed to Mississippi State. I do know the story reported by the Times makes no logical sense though I recognize people sometimes act illogically against their best interests. Mainly, I am troubled by an institution like the New York Times spending its resources and energy in trying to out college athletes, kids really, toiling in a system we all know to be the pinnacle of hypocrisy.

Sins Of The Father

The sports-law world may be about to undergo a debate of biblical proportions.

Auburn, the number two team in the land and, Cameron Newton, its Heisman leading quarterback are, as most of you know, the subjects of investigations both within and outside the NCAA. Cameron Newton’s father, a pastor at Newton, Georgia’s The Holy Zion Center of Deliverance, is accused of possibly conspiring with a former Mississippi State football player to solicit a $180,000 payoff in exchange for delivering his son unto the Mississippi State football program. Pastor Newton, whose congregation supposedly was in desperate need of funds to refurbish its time-worn church, denies the charges as does a former football player. No one suggests either Auburn or Cam Newton knew anything about these alleged acts, even if they prove to be true.

Current NCAA Commandments hold such conduct to be mortal sins justifying excommunication or worse for everyone involved.

The question is an old one: should the sins of the father be held against the son. The bible itself is split on the issue. Exodus 20:5 speaks of “a jealous God, punishing the children for sin of the fathers . . .” Three books later, at Deuteronomy 24:16, we learn: “Fathers shall not be put to death for their children, nor children for their fathers.”

What shall it be then? Even if the allegations prove true, and those who know Pastor Newton say he is a good man who would never participate in such unholy activities, do we punish the gifted son, if he was indeed an innocent, for the acts of the wayward dad? I think not. We should listen to the Prophet Ezekiel at 18:20: “The son will not bear the punishment for the father’s iniquity.”

Cheering speech, again

The Cavs, the NBA, and the Cleveland Police Department are taking steps in preparation for LeBron James' return to Cleveland on December 2. These include trying to limit the anti-LeBron messages fans chant, wear, and display:

The team has done research on the various crude and offensive James T-shirts in circulation locally, and officials will be stationed at entrances to make sure no fans enter with such shirts or signs that disrespect James or his family members. They'll also be in the stands, authorized to take away inappropriate apparel. Fans who have such shirts will be required to remove them and then will be given a Cavaliers-branded T-shirt to wear instead. All inappropriate signs also will be confiscated and officials will be on the lookout throughout the game for inebriated fans or fans who are preparing to throw things onto the court.

"We don't want to create a police state," said Tad Carper, the Cavaliers' senior vice president of communications. "We've always had a real energetic, super-charged home crowd and we want to encourage that for every game, including Dec. 2. We want people to enjoy themselves and express themselves, but we don't want fans to cross the boundaries of decency. We're not going to allow profanity and things like that. We'll have no tolerance for anyone trying to cross those boundaries."

Note the imprecision in this all--is it about profanity and decency or is it about disrespect (and what constitutes disrespect for James and his family? What makes something "inappropriate"? Why shouldn't fans have some leeway to harshly criticize a person they see as a traitor to the city? I am not sure who owns/operates the Cavs' arena, so this may be a moot point as far as the First Amendment is concerned. But I will be interested in hearing how this plays out.

Sportsmanship, ethics, and cheating

I generally do not care for the work of Selena Roberts (formerly of The Times, now of Sports Illustrated). She was one of the worst of the Mike Nifong apologists during the Duke lacrosse case and she pushed the "maybe-they-didn't-commit-rape-but-it-doesn't-matter-because-they-hired-a-stripper-so-they-deserved-what-happened-to-them" line even after. Her SI columns see few shades of gray in the world.

Her latest morality play comes from Connecticut high school football. The coach at Southington High got hold of the opposing team's coded play list, which had fallen off a player's armband during first half. The coach used the play list (how many times seems to be in dispute) during the second half to alert his players to what the opposing team was going to run. Southington won 28-14 (the game had been tied at the half). The coach is D.J. Hernandez, a former UConn captain and the brother of Aaron, who plays tight end for the New England Patriots. Hernandez was suspended for one game. The Connecticut Interscholastic Athletic Conference is reviewing the case. Roberts insists that a forfeit is required. And she takes a parting shot at one CIAC member, who is quoted as saying "It's what we call ethics between coaches and good sportsmanship; I don't believe it's cheating per se."

But did Hernandez cheat? First, I am not sure how much of a role it really plays. Teams often know what the other team is going to run or what their plays are--sometimes through good scouting and game preparation, sometimes because of movement between coaching staffs. Recall the Bucs players claims that they knew exactly what the Raiders were going to run during Super Bowl XXXVII--Tampa coach Jon Gruden previously had coached the Raiders. And, of course, "stealing signs" is part of baseball. This is not precisely the same, obviously. But the "advantage" Hernandez's team gained (knowing what plays were being called) is one that often is sought and gained within the rules of the game.

Cheating to me implies breaking rules. In the absence of a prohibition on using the other team's found play list, this does not seem like cheating. Yes, it is bad sportsmanship and probably unethical--not the kind of behavior we would like coaches to engage in. Roberts compares this to NBA players flopping on charges, or Derek Jeter pretending to be hit by a pitch, or Reggie Bush pushing Matt Leinert across the goal line--all of which Roberts sees as examples of society's (and sport's) moral decline. Actually, I find what Hernandez did worse than any of these, as a matter of sportsmanship. Not sure why--maybe because players cannot get away with any of that if the officials are doing a decent job of calling games in the moment. Hernandez was not going to be caught at this by an official on the ground. So, Roberts is right that we should hope for better from coaches, especially at the high school level. And we could have fun with this question in a game of Scruples. On the other hand, this is far from the greatest ethical/sportsmanship breach in history.

But Roberts wants Southington to forfeit its win, a punishment that seems excessive, because it suggests a level of wrongdoing that, absent a clear prohibition on the conduct at issue, is not present here.

"Law and Economics" - Sports Edition

The Southern Economic Association ("SEA") annual conference starts tomorrow in Atlanta. Of the 100+ sessions being held during the three day event, four sessions are devoted to sports. In the course of preparing for my own presentation, I perused the other sports-related papers and was struck by the relatively large number with legal overtones. Legal and quasi-legal topics to be examined using an economic lens include: (i) gambling; (ii) Title IX; (iii) minimum age rules; (iv) crime; and (v) referee-decision making. Such prevalence evidences the strength of both disciplines (law and economics) when analyzing important sports issues. Several papers being presented at the SEA conference are available for download now on SSRN.

My new Boston College Law Review Article on the BCS and Postseason College Football

I just posted on SSRN a free copy of my forthcoming article in the Boston College Law Review titled, "Antitrust, Governance, and Postseason College Football." Here is the abstract:

This Article examines the compatibility of the Bowl Championship Series (“BCS”) with federal antitrust law and the appropriateness of the federal government using its formal and informal powers to encourage a new format for postseason college football. The Article begins by examining the legality of the BCS under Sections 1 and 2 of the Sherman Antitrust Act. It then discusses the appropriateness of government actors concerning themselves with, and expending taxpayer dollars on, the scheduling of college football games. The Article concludes by offering possible changes to the scheduling structure of postseason college football, with an emphasis on voluntary, efficiency-promoting changes by the colleges, universities, and conferences currently associated with the BCS.

Hope you have a chance to check it out. For another take on this topic, be sure to read Nathaniel Grow's excellent forthcoming article in the Harvard Journal of Sports and Entertainment Law titled "Antitrust and the Bowl Championship Series."