The club “made more by spending less.” What an amazing concept! –And that’s even with a significant drop in attendance. Also, the club won more games when they reduced their payroll by $21M. I wonder if college athletic departments might learn something from this when 95 of the 120 Football Bowl Subdivision schools are reporting deficits, yet they continue to justify the $2, $3, $4 and now $5 million head coaches’ salaries (and $500k to $750K for assistant coaches) on the basis that it will lead to more wins.

At the Law and Society Association Annual Meeting in May in Chicago, I will be part of a roundtable on Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. Participants include myself and Aaron, along with Mark Graber (Maryland Law), Neil Siegel (Duke Law and Political Science), Mitchell Berman (Texas Law), and Bruce Weber (journalist and author of As They See ‘Em: A Fan’s Travels in the Land of Umpires). Topics will include the judge-umpire analogy (including discussion of Aaron’s arguments), the nature of judging and sports officiating, and the adjudicative nature of instant replay–all issues near to my heart.

And, to answer Mike’s question: I would argue that the President (alone or in conjunction with Congress) is the commissioner, while federal judges (including the SCOTUS Justices) are the umpires. Part of the problem I have come to have with the analogy is it conflates constitutional with statutory adjudication and decisionmaking. The President and Congress make statutory law that courts are expected to interpret and construe (consistent with congressional intent) and apply, just as the Commissioner makes the rules of baseball for the umpires to apply.

The lawsuit stems from December 2008, when the NFL suspended both Williams and four other players for testing positive for the diuretic bumetanide, a banned substance contained in the dietary supplement StarCups, the label of which omits mention of bumetanide. Simplifying the case quite a bit, Williams claims that the testing and subsequent suspension violate Minnesota law’s protections for confidentiality and for failure to timely notify of drug test results. The NFL contends that Minnesota law should not govern a dispute that should arise under the agreed-upon terms and conditions of the NFL-NFLPA collective bargaining agreement. Last month, in a separate hearing, a Minnesota judge–Judge Gary Larson–partially rejected the NFL’s arguments. Now the parties are in trial before Judge Larson.

Here’s an excerpt of the Bloomberg piece — it focuses on the NFL’s arguments and it includes my comments regarding how the NFL views the case:

To read the rest of the Bloomberg article, click here. I wrote a column on this topic back in December 2008. Gabe Feldman also has written about the case, most recently last month.

The Harvard Committee on Sports and Entertainment Law and Harvard Journal of Sports and Entertainment Law are pleased to announce the 2010 Spring Sports Law Symposium at Harvard Law School. The event will take place on Friday, March 26, 2010, and is open to the public, free of charge.

The theme for the symposium is Operating in the Shadow of Upcoming Collective Bargaining Negotiations. Each of our panels and keynote address will shed light on the key issues facing each league as it approaches the expiration of its collective bargaining agreement. In addition to discussing the key issues that will need to be resolved to avoid a labor stoppage in each league, we will explore how the labor uncertainty is affecting current operations within each league, and how any sort of a labor stoppage might affect the short-term and long-term interests of each league. In exploring each of these issues, we will draw from our panelists varied backgrounds to fully understand what is at stake for the leagues, teams, unions, players, and other entities close to the game.

Schedule of Events

Sports Legacy Institute Kickoff Lunch - 12:00-1:00 (Pound 334/335)
NFL Panel - 1:15 - 2:30 (Pound 101)
NBA Panel - 2:45 - 4:00 (Pound 101)
Keynote Address - 4:15 - 4:45 (Pound 101)
MLB Panel - 5:00 - 6:15 (Pound 101)
Cocktail Reception - 6:30 - 8:00 (Austin West Rotunda)

Sports Legacy Institute Kickoff Lunch - 12:00-1:00 (Pound 334/335)

Chris Nowinski, President and CEO, Sports Legacy Institute
Sean Morey, NFL Player
Pete Kendall, NFL Player
Isaiah Kacyvenski, Retired NFL Player
Christian Fauria, Retired NFL Player
George Atallah, Assistant Executive Director for External Affairs, NFLPA
Moderated by Professor Peter Carfagna, Harvard Law School

NFL Panel - 1:15 - 2:30 (Pound 101)

Adolpho Birch, Vice President of Law and Labor Policy, NFL
David Feher, Partner, Dewey & LeBoeuf
Woodie Dixon, General Counsel and Director of Salary Cap, Kansas City Chiefs
Neil Cornrich, President, NC Sports
Sarah Stuart, Senior Counsel, Reebok
Moderated by Professor Michael McCann, Vermont Law School

NBA Panel - 2:45 - 4:00 (Pound 101)

Jeffrey Mishkin, Partner, Skadden, Arps, Slate, Meagher & Flom
Hal Biagas, Executive Vice President of Management, Wasserman Media Group
Michael Zarren, Assistant General Manager and Team Counsel, Boston Celtics
Matthew Hong, Senior Vice President and General Manager, Turner Sports
Robert Tilliss, CEO, Inner Circle Sports
Moderated by Professor Peter Carfagna, Harvard Law School

Keynote Address - 4:15 - 4:45 (Pound 101)

Robert Manfred, Executive Vice President for Labor Relations, MLB

MLB Panel - 5:00 - 6:15 (Pound 101)

Daniel Halem, Senior Vice President, General Counsel for Labor, MLB
Derek Jackson, Vice President and General Counsel, Florida Marlins
David Prouty, Chief Labor Counsel, MLBPA
Timothy Slavin, Assistant General Counsel, MLBPA
Joseph Rosen, Partner, Brown & Rosen
Moderated by Jimmy Golen, Associated Press

Cocktail Reception - 6:30 - 8:00 (Austin West Rotunda)
Presentation of the Paul C. Weiler Award

My panel included Phoenix Suns president of basketball operations and general manager Steve Kerr, ESPN The Magazine editor-in-chief Gary Belsky, and several other excellent panelists. It was an awesome discussion. I could detail points of our discussion and audience questions (which included a question asked by Indianapolis Colts team president Bill Polian), but ESPN’s Kevin Arnovitz already does, and quite well, in his column on the panel.

For a review on the entire event, check out Henry Abbott’s excellent recap.

Academic papers were presented at the event, and one will clearly attract a good deal of interest. University of Chicago Professor Tobias Moskowitz and Sports Illustrated senior writer Jon Wertheim have co-written a paper on the presence of omission bias among referees. The paper is titled, Whistle Swallowing: Officiating & the Omission Bias.

As Kevin Arnovitz details in his recap of the paper, an omission bias in this context refers to a referee’s willingness to make an incorrect call rather than make an incorrect non-call. Brian Robb of ESPN’s Celtics Hub also has an extensive piece on the paper, which will be part of a book that Moskowitz and Wertheim publish in the near future.

So, the $80 million question comes down to this — was the “egregious nature” of Arenas’ conduct “so lacking in justification as to warrant” a league-imposed 50 game suspension and the termination of his contract?…The closest precedent we have for this case is the infamous choking incident involving Latrell Sprewell.

For the Wizards to terminate Arenas’ contract, they would likely have to convince David Stern (and perhaps an arbitrator) that Arenas’ conduct was more egregious than Sprewell’s. Would they have a compelling argument? Perhaps. Let’s compare the two. Arenas violated a specific written NBA rule prohibiting the possession of guns on NBA property (on a team that changed its name from the Bullets to the Wizards to avoid an association with gun violence). Sprewell violated a rule that was so obvious (”don’t choke your coach”) the NBA did not feel the need to write it down. Arenas compounded the situation by joking about the incident on twitter and in a pre-game team huddle on the court. Sprewell, after being wrestled away from his coach by his teammates, retreated to the locker room to cool off, and then returned to the court 20 minutes later to throw a punch at Carlesimo (and was later charged with reckless driving and served three months under house arrest during his suspension). Arenas had a prior gun offense — he was suspended in 2004 for failing to properly register a gun. Sprewell had a prior fighting offense — two years before the choking incident, Sprewell fought with his teammate Jerome Kersey. After the fight, he threatened to return with a gun (fret not, he only returned with a two-by-four).

Hasn’t Jackson’s banishment from baseball actually served to keep him in front of the baseball public for so many years? Does the average fan know as much about Tris Speaker, Nap Lajoie, Honus Wagner (if not for the baseball card) as they do about Jackson? Perhaps Rose can make more money selling his autograph because the controversy keeps his name before the public.

Ed is onto something about Rose remaining in the spotlight (and able to make money) because of his banishment–at least from 1989 until 2004, when he could play the aggrieved victim of unfair treatment (remember his Jim Gray interview at the 1999 World Series). That all ended when he published his book in 2004 and admitted (although without really apologizing for) what everyone already knew. He has rarely been heard from since.

Jackson remains relevant today because he is a singular figure, based on a combination of his greatness and his banishment. He remains more relevant than the other seven banned Black Sox because he was the best player and the only one unquestionably left out of the Hall of Fame because of the ban. He remains more relevant than his other Hall-worthy contempories (Lajoie, Wagner, et al.) because we still have something to talk, argue, and make movies about–whether he did anything wrong and whether the ban should be lifted and he should be redeemed with induction to the Hall (or at least a chance to play in an Iowa cornfield).

Will we remember Rose 90 years from now more because he has been banned than we will remember Hall contemporaries (say, Reggie Jackson or Tony Perez)? Maybe. Will we remember him more than if he just were let into the Hall? Maybe. One distinction could be between record-holders and “other” Hall-of-Famers. Rose was nowhere near the best player of his (or any other generation) or even the best hitter, but he does hold a significant career batting record. So perhaps, even without gambling, we would remember Rose more than we do Perez, just as we remember Ty Cobb more than we do Lajoie.

Sean W.L. Alford, Comment, Dusting off the AK-47: an examination of NFL players most powerful weapon in an antitrust lawsuit against the NFL, 88 NORTH CAROLINA LAW REVIEW 212 (2009)

Jeffrey Benz, Common issues in international sports arbitration, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 165 (2009)

Kristan Bryant, Note, Take a knee: applying the First Amendment to locker room prayers and religion in college sports, 36 JOURNAL OF COLLEGE & UNIVERSITY LAW 329 (2009)

Christian Dennie, Tebow drops back to pass: videogames have crossed the line, but does the right of publicity protect a student-athletes likeness when balanced against the First Amendment?, 62 ARKANSAS LAW REVIEW 645 (2009)

N. Jeremi Duru, This field is our field: foreign players, domestic leagues, and the unlawful racial manipulation of American sport, 84 TULANE LAW REVIEW 613 (2010)

Virginia A. Fitt, Note, The NCAAs lost cause and the legal ease of redefining amateurism, 59 DUKE LAW JOURNAL 555 (2009)

Michael Gerton, Note, Kids play: examining the impact of the CBC Distribution decision on college fantasy sports, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 153 (2009)

Mike Leach, A legal education applied to coaching college football, 42 TEXAS TECH LAW REVIEW 77 (2009)

Michael Lenard, The future of sports dispute resolution, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 173 (2009)

Richard H. McLaren & Geoff Cowper-Smith, The Beijing Summer Olympic Games: decisions from the CAS and IOC, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 69 (2009)

Matthew J. Mitten, Judicial review of Olympic and international sports arbitration awards: trends and observations, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 51 (2009)

Jennifer A. Mueller, Note, The best defense is a good offense: student-athlete amateurism should not become a fantasy, 2009 UNIVERSITY OF ILLINOIS JOURNAL OF LAW, TECHNOLOGY & POLICY 527-560

Chad M. Oldfather & Matthew M. Fernholz, Comparative procedure on a Sunday afternoon: instant replay in the NFL as a process of appellate review, 43 INDIANA LAW REVIEW 45 (2009)

Christopher Pruitt, Debunking a popular antitrust myth: the single entity rule and why college footballs Bowl Championship Series does not violate the Sherman Antitrust Act, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 125 (2009)

Scott Rosner & Deborah Low, The efficacy of Olympic bans and boycotts on effectuating international political and economic change, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 27 (2009)

John Ruger, From the trenches: the landscape of sports dispute resolution and athlete representation, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 157 (2009)

Michael S. Straubel, Lessons from USADA v. Jenkins: you cant win when you beat a monopoly, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 119 (2009)

Geoff Varney, Note, Fighting for respect: MMAs struggle for acceptance and how the Muhammad Ali Act would give it a sporting change, 112 WEST VIRGINIA LAW REVIEW 269 (2009)

Jeremy A. Wale, Adequate protection of professional athletes publicity rights: a federal statute is the only answer, 11 THOMAS M. COOLEY JOURNAL OF PRACTICAL & CLINICAL LAW 245 (2009)

Adam Wasch, Children left behind: the effect of Major League Baseball on education in the Dominican Republic, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 99 (2009)

Maureen A. Weston, Doping control, mandatory arbitration, and process dangers for accused athletes in international sports, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 5 (2009)

Dr. Glenn M. Wong, Kyle Skillman & Chris Deubert, The NCAA’s Infractions Appeals Committee: Recent Case History, Analysis and the Beginning of a New Chapter, 9 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 47 (Fall 2009)

Brian P. Yates, Whether building a new sports arena will revitalize downtown and make the team a winner, 17 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 269 (2009)