Sports Hypocrisy All Our Own

The hypocrisy of organized sporting institutions (particularly those that were founded as "amateur" associations) is not limited to FIFA, nor to European-based fiefdoms. But one of the elements that enables FIFA's and the Olympic Organizing Committee's, continuing high-handed corruption is the lack of a governing body to, well, govern them.

Not so in the United States, where the NCAA is facing attacks in several judicial bodies by the individuals who have made it and its member schools billions of dollars, the same folks that the NCAA insists on calling scholar-athletes.

The Through the Looking Glass logic of the NCAA is hard to deny, particularly after the recommendation of its football rules committee this month that offensive teams be charged with a delay of game penalty for snapping the ball within the first ten seconds of the play clock. You read that right: delay of game for playing too quickly. The proposed rule has been dubbed the "Saban Rule" after Alabama head coach Nick Saban, who supports the rule apparently because "run and shoot" offences provide opponents with the opportunity to actually compete with a school that routinely has the best recruiting class in the nation. Whether the fact that only one of every five college coaches support the change matters more to the NCAA than what Saban desires remains to be seen.

While court action is unlikely with regard to the Saban Rule, the NCAA does face serious challenges in several other areas which may well force its hand with how it administers college sports. First came former UCLA basketball player Ed O'Bannon's law suit against the NCAA and its corporate partners EA Sports and the Collegiate Licensing Company seeking compensation for players who either appeared in video games or in televised broadcasts while in college.

O'Bannon's case has slogged its way through the legal system and reached a tipping point in late December 2013 when U.S. District Court Judge Claudia Wilken certified a class of former college players (comprised of O'Bannon and other named plaintiffs including Bill Russell) that sought licensing fees from EA Sports and CLC, but ruled that they could not proceed as a class on their claims against the NCAA for the use of their likenesses in televised broadcasts.

The ruling may appear a victory for the NCAA, but it still faces the claims made by the individual plaintiffs in the case, and it could have to face the daunting prospect of trying to resolve not one but hundreds of individual cases brought in all 50 states instead. Just as importantly, because the certification of the class against EA Sport and CLC would give the former athletes the rights to their own images while in college, the NCAA sought the stay of a ruling regarding a similar class in another class action which was denied by the United States Supreme Court.

In the back-and-forth between lawyers after Judge Wilken's ruling was issued, the NCAA repeated its mantra regarding "student-athletes" and the many benefits to which they are entitled in yet another attempt to justify the fact that it and its member schools make billions of dollars from the labor of their football and basketball players (and pay their coaches millions of dollars at the same time). 

Meanwhile, Northwestern University football players have taken steps to organize and join a union. The critical issue in that case, is, of course, whether football players are employees of the university or are merely (wait for it ...) student-athletes. The NLRB held hearings last week in Chicago in the case, in which Northwestern introduced a number of witnesses to testify that its athletes (who, with their 97% graduation rate, are probably more "students" than at most U.S. universities) receive academic support and are limited in the amount of time that they are allowed to practice or otherwise participate in their sport.

Former Northwestern quarterback Kain Colter, who is leading
the effort of its football players to organize (photo from Deadspin).

If past cases are any indication, the players may have a tough go of it. An effort by graduate assistants at Brown University to organize last decade was denied by the NLRB, which found that the assistants were primarily students, not employees, and reversed a prior decision of the Board to the contrary. But left unanswered is the question of why one cannot be both. "I don't know that there's anything inconsistent with being a student and an employee," noted Craig Becker, the AFL-CIO's general counsel.

The ultimate decision in the NLRB case may rest on the next Presidential election, as it's unlikely that it will be submitted to the consideration of the entire Board until 2016. Just as in Brown case's George W. Bush's Board reversed precedent regarding the organizing efforts of graduate assistants at private institutions, so too the next Board is likely to be comprised of a majority of pro-union or pro-employer members depending on whether a Republican or Democrat next sits in the White House.

Regardless of the outcome in that case, however, the O'Bannon case is likely to have a more immediate impact, both because it appears to be nearing it apex (trial is scheduled for this June) and because it will likely hit the NCAA where it hurts the most - its pocketbook and that of its member institutions. It's hard to see the NCAA's position regarding compensation of players for the use of their likenesses as anything other than archaic, last ditch attempt to cling to the same arguments that Major League Baseball made and ultimately lost long ago regarding its reserve clause, which essentially made players indentured servants to their mother clubs.

While the NCAA has a valid point that players do receive at least the opportunity to receive a higher education through their scholarships, the value of that education so pales in comparison to the billions of dollars flowing to the NCAA and its members that it is difficult to perceive that as adequate or just compensation in the 21st Century. While O'Bannon's case against the NCAA may or may not ultimately succeed, one suspects that the recent movement toward paying football and basketball players some amounts in addition to their tuition and room and board may be an avenue to at least limit whatever future financial bleeding may result from his case and thousands of others that will follow if it is successful.

Patriotic Correctness Redux

I am not a fan of Ozzie Guillen. Nor of Fidel Castro or Hugo Chavez, despite what some of my more conservative friends may think. And unlike my attitude towards Rick Pitino, I don't see those inclinations changing anytime soon.

Nevertheless, I am perplexed by tone of the criticism by Major League Baseball and head shill Bud Selig (you can add him to that list in the first paragraph as far as I'm concerned too) to a statement that Guillen recently made regarding Castro that led to a five game suspension from his new job as manager of the Miami (formerly Florida) Marlins.

In an interview with Time Magazine, Guillen, who has a notoriously large mouth which one foot or the other often seems to occupy, allegedly made comments that supported Castro. While initially saying that he "love(s) Fidel Castro" even Guillen immediately saw the danger in that comment and amended it somewhat.  "I respect Fidel Castro," Guillen said. "You know why? A lot of people have wanted to kill Fidel Castro for he last 60 years, but that mother____ is still here."

Let me be clear: while I am not privy to Guillen's contract with the Marlins, I assume that the team is perfectly within its rights to suspend him for the comments he made as not in the best interest of the team. In fact, given Guillen's past history of stupid utterances reflecting his homophobia and, indeed, expressing his admiration for Castro, I would be astonished if Guillen's contract did not have a clause allowing him to be disciplined or terminated for comments deemed detrimental to the club.

While Guillen has (unconvincingly) tried to explain his comments by saying that he was thinking in Spanish and talking in English during the interview (so, Spanish for the word "love" really means "hate"?), I think we're missing something a little more fundamental here. 

It's clear that Selig didn't see Guillen's punishment as sufficient to quell the uproar in Miami over his comments. So, instead, he went out of his way to proclaim Guillen's opinions as, essentially, un-American in a transparent attempt to pander to the city's Cuban-American community (and to avoid losing their support at the turnstiles, on which Selig is banking to turn around the moribund franchise and fill its brand-new $515 million ballpark).

In his statement, Selig intoned, in part: "As I have often said, baseball is a social institution with important social responsibilities. All of our 30 Clubs play significant roles within their local communities, and I expect those who represent Major League Baseball to act with the kind of respect and sensitivity that the game's many cultures deserve."

So, basically, whatever your largest potential audience is in any location, pander to them. Only offer opinions with which they agree. And that bit about social responsibilities? Well, as long as the First Amendment isn't included, we're all for them.

Selig's hypocrisy is compounded, of course, by the fact that he took no action, and made no proclamation, about Guillen's comments regarding Castro in 2008. And most significantly, by his own appearance in Havana, seated beside Fidel himself, in 1998 at an Orioles-Cuban All-Star team exhibition.

Orioles owner Peter Angelos, Fidel Castro, and Bud Selig.
I know what you're thinking. It's not Photoshopped.

And so, we have the 2012 Selig, trying to sell tickets in Miami to the Cuban-American community by denouncing Guillen as not meeting MLB's "important social responsibilities" while we gaze at the 1998 version of Selig sitting next to the man Guillen is criticized for admiring. Why? 

Money. It was okay for Bud to sit next to Fidel in 1998 because, well, because Bud thought it the best way for baseball to make a few bucks at the time. And, now, it's okay for Bud to eviscerate Guillen for admiring the man he once sat next to because, well, because Bud thinks that's the best way for baseball to make a few bucks.

At least Joesph McCarthy had an ideological basis for his witch hunt. Trampling an entire nation's First Amendment rights in the name of freedom, while horrifying and divisive, had a patina of patriotism. Selig's trampling of an individual's rights has no such gloss. It's just business as usual for Bud, according to what he believes is best for his business. And if that pesky Constitution gets in the way? Well, just place yourself on the side of "social responsibility" and everything will be fine.

Well, that was good timing

Since I had already tipped my hand regarding what this post would be about, Michael Bradley certainly helped make it a little more newsworthy with his late equalizer in the U.S. men's World Cup match against Slovenia. Bradley played much more positively than against England, probably because that's what his Dad asked him to do. His Dad, of course also happens to be the U.S. coach, Bob Bradley. And that's where it gets interesting, at least from my perspective as both a coach who has coached his children and as an employment lawyer.

Many employers have anti-nepotism policies that forbid, or at least limit, the hiring of relatives and significant others. The reason is understandable -- prohibiting the co-employment of spouses or children of supervising spouses or parents certainly avoids potential claims of favoritism. Having hard and fast rules prohibiting nepotism in the workplace avoids having to justify decisions regarding relatives of management employees, either to other employees or, worse, in court.

If U.S. Soccer had an anti-nepotism policy, however, the team would likely not be as good as it is (and how good it is can be argued as well). Michael Bradley earned his first cap for the men's national team in 2006; a few months later, after a disappointing showing in Germany, his father was named the interim coach, and later confirmed as the permanent choice. Although Michael was "there first" in terms of tenure on the team, under most anti-nepotism policies he would have to leave the team once his dad became the coach.

While some may assert that Bob Bradley's value to the team is questionable, very few doubt that Michael has become an essential member of the squad, doing the grinding work required of defensive center midfielders in today's game. His goal Wednesday was sparkling, but the work he does in front of the defense or in back of the offense, depending on what is needed at the time, is the stuff that goes largely unnoticed.

Employers with hard and fast anti-nepotism policies may end up like the National Team would be without Michael Bradley -- losing out on essential team members and potential stars merely because of familial relationships. Those that are willing to acknowledge both the value that relatives can add to a business -- in terms of talent and investment in the success of the business, however, by allowing the hiring of relatives may be better off in the long run.

Michael Bradley's teammates clearly think so. Landon Donovan was recently quoted as saying that Michael was a crucial cog in the team. Through communication and, most importantly, hard work, relatives can convince co-workers that nepotism, on the field or at work, can be a positive dynamic.

As Long As We're Keeping Score

This blog was my idea but its name was not. I was casting about for some title that might link the two main subjects that I anticipate will be discussed here (soccer and "the law"), and failing in a rather pathetic and uninspired manner, when Thomas McChesney, our marketing director, suggested Keeping Score.

It was perfect. The book I'm reading now, "Inverting The Pyramid" is a history of soccer tactics and of the game itself. A recurring theme in the early chapters of the book is the struggle between early purists of the game, who maintained that the way it was played, not the final result, should be paramount, and innovators who changed the game first by introducing the application of tactics and then altered their team's approach through their vision and competitiveness.

This debate played out at several different points during the development of the tactics and strategy of soccer, after it had evolved from village-wide melees to the more organized competition that grew out of the Laws of The Game adopted in England in 1863. The visionaries, whether steering their clubs away from the strict dribbling game that first evolved, the short passing game that followed, or the iron-clad 2-3-5 formation that was long the only way that squads lined up until the institution of the "WM", were decried for ruining the game.

Eventually, however, the new way became the established way as teams adopted the successful tactics of the leading managers of the day. The reason in every instance: Keeping Score. It is possible, although not likely, that soccer could have evolved into some form of intricate synchronized swimming on turf. But it did not. Ultimately, the competition was determined not by how pretty a player or team looked according to the aesthetics of the day, but whether they scored more goals than the other team.

But was some of the art of the game lost in the process? No doubt. I've been extremely fortunate as a high school soccer coach to have talented players who have always been able to play an elegant, attacking game that pleases at least me to watch. I suspect that, if push ever comes to shove, I will adopt a more defensive approach for my team if their abilities dictate it, if I believe that gives us the best chance of winning. I hope not.

So it is in the practice of law as well. We are bound by, and should willingly adhere to, principles that have been established, whether in the rules of professional conduct, the rules of civil procedure, or legislative laws or judicial rulings, that dictate what we can and cannot do. Questioning, examining, or even testing those limits can be fruitful, challenging, and rewarding. But if we conduct those exercises while simply attempting to stay on the correct side of those pronouncements without considering the reasons for the rules (the "soul" of the law, if you will) we may be successful lawyers but we will lose touch with who we are and (hopefully) why we became lawyers in the first place.

Don't get me wrong -- I'm not a Luddite and find excitement in change and new ideas. But not just for innovation's sake, nor at any cost. I understand that, whether on the field, in the courtroom, advising a client, or participating any other job, game, or endeavor, our success is largely measured by Keeping Score. I hope through this blog, however, to not just recount successes or failures, but to lend some observations regarding how I think coaches, players, litigants, lawyers, and employers ought to travel the path to that end result as well.