Saint Louis University Sports Law/Business Conference

Saint Louis University's John Cook School of Business is hosting a sports law/business conference April 15-16. The schedule for the event includes panels devoted to sports agents, intellectual property, gambling, and a host of other topics. Speaker bios can be found here. For practicing attorneys, CLE credit is also available.

Fan speech and fan violence

The Dodgers begin a three-day series against the Giants in San Francisco tonight, with all thoughts on Bryan Stow, the Giants fan who remains in a coma after being assaulted by two as-yet-unidentified Dodgers fans following a March 31 Giants-Dodgers game in Los Angeles. The Giants have announced "World Series-level" security measures for the games. Meanwhile the Dodgers have been publicizing heightened measures (including using uniformed and armed off-duty police offers for security) when the team returns to LA on Thursday. This apparently includes reconsideration of a plan to offer (and to publicize) half-price alcohol at several weekend games, after media outlets and others lambasted the team.

My concern is that efforts to crack down on fan violence require cracking down on fan conflict. And that may, inadvertently or otherwise, lead to a crackdown on fan speech. Consider the statement from LAPD Chief Charlie Beck threatening the removal and arrest of fans who come to "antagonize" other fans or fans of the other team. But a lot of things may antagonize other fans--including my cheering too loudly for or against a team or cheering in a way that some fans do not like of wearing t-shirts or carrying signs critical of the other team. Even something as seemingly innocuous as "Remember Bryan Stow" could be seen as antagonizing or intimidating Dodger fans in the Giants' ballpark. After all, by all reports the only thing Stow did was wear Giants gear and root for them during the game. It is just too easy, in the name of preventing the outlying and unusual instance of violence, cut potential problems off at the start by steering the widest possible path and exercising a quick trigger against speech before any greater problems can occur. While that is a laudable goal, it likely will entail exercising a quick trigger against so-called "antagonistic" speech that is fully protected, in no way fighting words, and highly unlikely to lead to any actual violence.

But teams recognize that they will be criticized far more harshly if there is another instance of fan-on-fan violence than if they preemptively cut off the expression of some obnoxious fans.

That is my simplest answer to the question that Mike and others answered for a Cincinnati Enquirer piece on whether Pete Rose should be in the Hall of Fame.

Mike argues (at least in the excerpt presented in the article) that the problem is that MLB, not a court order, imposed the lifetime ban. and Rose did not receive due process. First, I just do not place the same emphasis on Due Process that Mike does. MLB is a private entity, not a state actor, and it can give as much or as little process as it wants to give. Second, MLB was in the process of providing process--an investigation by a third party presented to a decisionmaker (Giamatti); whether that would have satisfied the Fourteenth Amendment is beside the point (although I believe it would have).  (Ed: I misunderstood Mike's quotation; as he explained in an e-mail, he was not speaking of whether Rose received process, but of the process that would be necessary to reinstate Rose so as to ensure fairness to and equitable treatment of other players who have received similar bans. Not sure I agree with this point, but I withdraw the above comments).

I still disagree that the decision coming from MLB rather than following a judicial decision holds any weight. Most notably, of course, the Black Sox were acquitted, an acquittal that Commissioner Landis ignored. Again, private actor working with a lesser standard of persuasion--I have no problem with that. Finally, and most importantly, MLB did not impose the ban based on a finding that Rose had bet on baseball. Rose willingly accepted the ban as part of an agreement that halted the investigation (a consent decree or plea agreement, if you will), no doubt to avoid a formal finding that he had bet on baseball. This left Rose with plausible deniability, which he rode for fifteen years until the publication of his book.

I do agree with Mike on one point--that Rose killed his chances with his admission in the book. The problem with this truth is that people (particularly media types--I never took this view) had been pleading with Rose for fifteen years to come clean (remember the Jim Gray interview during the 1999 World Series), with the argument of "if he just comes clean, all will be forgiven." Well, he came clean and, as Mike notes, things just got worse. Maybe he waited too long.

Lastly, a quick response to George Will's point in this same article, that MLB has a problem that three all-time greats--Rose, Barry Bonds, and Roger Clemens--will not be in the Hall of Fame. Will makes the category error of lumping them together--a position I argued against previously. Bonds and Clemens (and we can throw Mark McGwire in here) will not get into the Hall because of morality-tinged votes by the Hall voters, otherwise left to their own consciences and preferences. Neither Bonds nor Clemens has been banned or otherwise sanctioned by MLB. Nor is it clear that either has done anything to warrant such a sanction; whether either broke any rule of MLB is, at best, murky. Any MLB punishment would have to come under the Best Interests power, rather than on a finding of a violation of a specific rule. And a judicial decision against either one (in their perjury prosecutions or in the various defamation cases involving Clemens) is not likely to change that. We can question whether voters should make such moral choices in their Hall votes.

But that has nothing to do with Rose. Voters are not judging his morality or ethics. Rose appears to have violated a specific rule and accepted punishment for that; that punishment carried the collateral consequence of Hall ineligibility.

If all three being out of the Hall is a problem for MLB and the Hall, the sources of the problem are very different.

Enforcement and Infractions: The NCAA Governing Process

The West Virginia University College of Law Sports and Entertainment Law Society will host a special panel presentation on Tuesday, April 12th at 12 noon entitled "Enforcement and Infractions: The NCAA Governing Process." This panel will feature:

(a) Oliver Luck, Athletic Director at WVU, former NFL quarterback, former president MLS Houston Dynamos, and father of Stanford QB Andrew Luck;

(b) Ralph Cindrich, prominent football agent, attorney and owner of Cindrich & Co;

(c) Keli Cunningham, current Director of Compliance at WVU and former compliance assistant for the Big East Conference; and

(d) andré douglas pond cummings, Professor of Law at the West Virginia University College of Law and former sports agent to NFL athletes.

This panel will tackle the thorny issues that attend complying with and enforcing NCAA regulations in a modern and evolving sports culture in the United States, from a variety of perspectives. With NCAA infractions news constantly being reported, and in light of HBO's recent "Real Sports with Bryant Gumbel" where "pay for play" was debated and booster payments to football recruits, including "the money handshake" was exposed, this timely panel will undoubtedly shed light on the NCAA's successes and failures in enforcement and its infractions policymaking.

The panel is free and open to the public and will be webcast live.

Should Pete Rose be Eligible for the Hall of Fame?

With Pete Rose turning 70 this week, John Eradi of the Cincinnati Enquirer interviews several persons, including George Will, James Reston, Jr., and me, about whether Rose's lifetime ban should be lifted, which would make him eligible to be voted into the Hall of Fame. I'm generally of the view that he should be made eligible for a vote -- let the hall of fame voters have the choice -- and then he would almost certainly be rejected. I don't, however, see Baseball doing anything here -- Rose's book, My Prison without Bars, was probably the last straw.

Here is an excerpt:

* * *

Here are some of the comments of the three national commentators:

Law professor Michael McCann, who is sports law institute director at Vermont Law School, SI.com columnist at Sports Illustrated and co-founder of Harvard Law School's "Project on Law and Mind Sciences," believes that Hall of Fame voters should have a chance to consider Rose on their ballots.

He said an exception could be carved out for Rose to be removed from the permamently ineligible list, because it was Baseball -- not some court order or decision -- that placed him on the list to begin with. If Baseball approached it in a deliberate way, and was mindful of all parties' due process in the matter, the exception could be made.

But McCann doesn't think Rose will make it.

"The (2004) book ('My Prison Without Bars,' in which Rose admitted he bet on baseball), "may have cost him that shot," McCann said. "He did himself a disservice. ... Like all things in sports and in life, it's the coverup that really upsets people."

National editorial-page columnist George Will: "Gambling is the scarlet sin in baseball, (going back to 1919). ... Forgiveness is a virtue, but there's a difference between people forgiving him in their hearts and Baseball forgiving him (for the purpose of clearing his way to the Hall of Fame). Clearly, Baseball is in a pickle. The all-time home run leader (Barry Bonds) and one of the greatest pitchers ever (Roger Clemens) and the all-time hit leader (Rose) are not going to make it. It is a blow to the Hall of Fame ... To get Rose in (posthumously), you'd have to pair him with Shoelesss Joe, and even then it would take a Solomonic commissioner (to explain it)."

Historian James Reston Jr., author of "Collision at Home Plate: The Lives of Pete Rose and Bart Giamatti."

"I think Rose dishonored the game and himself. I don't think he should be in (the Hall of Fame Gallery, where the plaques are displayed), but I think Cooperstown is one of the most important museums in America, and that the whole Pete Rose thing of performance on the field and the scandal ... should be prominently displayed. It's a great way to (give exposure) to why betting on baseball is such a cardinal sin."

Reston said he agreed with the original drafting and enforcing of baseball's rule on betting that there is no distinction to be drawn between betting on ones team or against it.

"The central point is that when I buy a ticket am I seeing an authentic display of skill?," he said. "There can't be any hidden factors, whether it's (steroids) or somebody with a bet on the outcome."

He had harsh words for Baseball's higher-ups and the Hall of Fame, however, for treating Rose as a "persona non grata."

One can give Rose the full treatment in Cooperstown without having to issue a formal forgiveness for purposes of giving him a plaque, Reston said.

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To read the rest, click here.

Panel Discussion: Ethics in Athlete Representation

On Friday, April 15th at 6:00 pm Suffolk Law School will be hosting a panel discussion entitled "Ethics in Athlete Representation” and will focus on the ethical dilemmas amateur athletes, agents, and Universities face in today’s society.

If you’re able to attend this free event, RSVP at this link.

The panel will feature:

Greg Bedard (Moderator): NFL Columnist for the Boston Globe.

Josh Luchs: Former NFL Agent who was the subject of the Sports Illustrated Cover Story in October 2010. “Confessions of a Former Agent” revealed the dishonest practices between Agents and soon-to-be professional athletes.

Darren Heitner: CEO of Dynasty Athlete Representation and Creator of SportsAgentBlog.com. Mr. Heitner just recently became a certified agent and his website is well respected amongst the Sport Law Community.

Michael “Mook” Williams: Current Consultant/Agent for National Sports Management and Certified NFLPA Agent.

Warren K. Zola: Professional Sports Counseling Panel Chair at Boston College. Mr. Zola's primary responsibility in this job is assisting Boston College student-athletes in their transition from college to the professional ranks.

New Sports Illustrated Column: Closing Arguments in Barry Bonds Trial

Later today, closing arguments will take place in USA v. Barry Bonds. I preview the arguments and what to expect from the jury for SI. Here's an excerpt:

3. What are the prosecution's chances for landing a conviction?

The odds are stacked against the prosecution. Despite the years they have had to prepare for this trial, prosecutors struggled to make the case that jurors should believe -- beyond any reasonable doubt -- that Bonds knowingly lied under oath.

Most damming, purportedly compelling government witnesses -- Kimberly Bell, Steve Hoskins and Ting -- contradicted one another and collectively gave the impression of a case built on unreliable memory, uncertain credibility and indirect evidence.

Should Bonds be found not guilty, the prosecution's decision to call Ting to the stand will be second-guessed for a long time. If prosecutors knew that Ting would blatantly contradict other witnesses, including in regards to conversations with Steve Hoskins and whether purported changes to Bonds' body were caused by steroids, why did they put him on the stand? If they didn't know of his testimony, why didn't they know? If Ting knowingly lied on the stand, then he should be charged with perjury. We'll see if that happens.

The jury also received mixed testimony regarding whether Bonds fully understood that Anderson provided him with substances that were classified as "steroids" under the law and Major League Baseball rules. If Bonds did not know that he was taking "steroids," then he did not commit perjury in saying that he never used steroids. A better characterization of the operative definition of "steroids" may have aided the prosecution.

Also, while jurors heard a recording that featured Anderson and Steve Hoskins discussing steroids and Bonds, the recording, limited by inferior sound quality, lacked the impact that was suggested by its transcript. A reading of the transcript may have proved more persuasive.

The government can still secure a conviction. Kathy Hoskins was a believable witness. The defense, moreover, declined to offer any witnesses or evidence to rebut her incriminating statements. If the jury reasons that Kathy Hoskins was telling the truth about Anderson injecting Bonds, it could decide to convict Bonds on Count Two.

But jurors may be wary of convicting Bonds based on the lone testimony of one, albeit credible, witness. They may also conclude that given the totality of limitations in the government's case, no conviction is warranted. In light of its decision to not call one witness, the defense seems to be banking on the jury viewing the case against Bonds on the whole rather than on the specific pros and cons of each count.

4. So couldn't the defense's decision to not attack Kathy Hoskins's testimony backfire?

Sure. Kathy Hoskins gave jurors every reason to believe her. Plus, during cross-examination, Bonds's attorney Cristina Arguedas was largely unable to connect Kathy with her less credible brother, Steve. Along those lines, jurors may have been expecting the defense to call at least one witness to the stand who would cast doubt on Kathy Hoskins. Without such a witness, jurors might reason that the defense simply had no one to challenge Hoskins. If so, they might find Bonds guilty on Count Two.

But the defense had a difficult decision to make. If they went after Kathy Hoskins, then the trial's focus could have become a referendum on Count Two and Hoskins's credibility. Such a development would have worked in the prosecution's advantage. Kathy Hoskins was prosecutors' best witness and Count Two was their strongest charge. By declining to call any witnesses, the defense instead hoped that jurors will find overall weakness in the government's case and thus find Bonds not guilty on all counts.

To read the rest, click here.