In 1992, Native-American activist Suzan Harjo, on behalf of herself and six others, petitioned the Trademark Trial and Appeal Board (TTAB) to cancel six trademark registrations granted to the Redskins beginning in 1967. (Although team had used the name “Redskins” since 1933, it did not attempt to register the trademark until 1967.)

The gist of Harjo’s argument was that the TTAB had erred in registering the trademark because it violated section 2(b) of the federal Lanham Trademark Act, which prohibits the registration of a mark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  The Redskins (who do business as Pro-Football, Inc.) defended on grounds that the trademark was not offensive and that such an interpretation of the Lanham Act unconstitutionally violated the team’s rights under the First and Fifth Amendments to the United States Constitution.

In 1999, seven years after the initial claim, the TTAB ruled in favor of Harjo, finding that the trademarks “may be disparaging of Native Americans to a substantial composite of this group of people,” and “may bring Native Americans into contempt or disrepute.”  Consequently, it scheduled the cancellation of the offending marks.  The ruling was appealed to the United States District Court for the District of Columbia, which in 2003 ruled that the complainants had failed to establish that the marks were in fact disparaging and that in any event their failure to bring the claim in a timely fashion—25 years passed between the first registration and the initial complaint—resulted in it being barred by the equitable doctrine of laches.

On the appeal of that decision, the Court of Appeals for the District of Columbia ruled in 2005 that the laches defense was valid for six of the seven petitioners, but remanded the action to the District Court for a determination whether or not the defense was valid as applied to petitioner Mateo Romero who was only one year old when the mark was first registered in 1967.  It retained jurisdiction over the “disparagement” claim without ruling whether the TTAB or the District Court were correct.

Upon reconsideration the District Court concluded that the laches defense applied to Romero as well, given his understanding of the issues involved prior to reaching the age of majority and his failure to object to the registration until almost eight years after reaching the age of majority.  This conclusion was upheld by the Court of Appeals in May of 2009, and it was this decision that the Supreme Court decided today not to review.

There are apparently plans, however, to re-file the challenge to the registration but this time using Native American challengers who have just reached the age of majority.  The earlier Circuit Court of Appeals decision suggested that such plaintiffs would not be barred by the laches defense.  Such a case will presumably reopen the question of the propriety of the Redskins trademark.

Of course a reprisal of the original TTAB ruling would not prevent the Washington team from continuing to use the name “Redskins.”  It would, however, prevent the team (and the NFL) from excluding others from making use of the name.

A subsequent post will examine the historical background of the team name, Washington Redskins.

The first Marquette alumnus to play in the NFL was Edward Lewis “Bo” Hanley, a Milwaukee native who played wingback for the Detroit Heralds in 1920, the league’s inaugural season when it was known as the American Professional Football Association.   The 5’7”, 150 pound Hanley was born in Milwaukee in 1887, and was thus 33 years old during the 1920 season, his only year in the NFL.  When the Green Bay Packers entered the NFL in 1921, their center was 29-year old Marquette alumnus, Richard John Murray, the second Marquette student to play in the NFL.  “Jab” Murray, as he was known, was a native of Ocanto and was 6’1” tall and weighed a hulking 219 pounds. 

The last Marquette player to join the NFL ranks was defensive back John Martin Sisk, Jr. who played for the Chicago Bears in 1964.   Sisk—whose father starred at Marquette in the 1920’s and with the Bears in the 1930’s—had played at Marquette as a freshman and then had transferred to the University of Miami when the school dropped football.   The last two Marquette football players to appear in the NFL were Minnesota Viking safety Karl Kassulke, who transferred to Drake University after Marquette dropped football and who entered the NFL in 1963, and Dallas Cowboy defensive lineman, George Andrie, who remained at Marquette for his senior year after the school dropped football and was then drafted by the Cowboys.  Both Kassulke and Andrie appeared in the Pro Bowl during their careers—Andrie did so on five occasions–and both appeared in the Super Bowl, albeit on the losing side.  Both players retired after the 1972 season.

However, the greatest of the Marquette alumni in the NFL was clearly LaVern “Lavvie” Dilweg, who played left end for the Milwaukee Badgers and the Green Bay Packers from 1926 to 1934, winning first team all-pro honors six times.  The 6’3,” 200 lb., Dilweg was born in Milwaukee in 1903.  He grew up in city of his birth and was a star football player at Washington High School in the late 1910’s and early 1920’s.  He continued his football career at Marquette where he won All-American honors as an end who played both defense and offense. 

After two years in the college, Dilweg enrolled in the Marquette Law School from which he graduated in 1927.  The diploma privilege had not yet been extended to Marquette, but Dilweg took, and successfully passed, the bar exam during the summer following his graduation.  Having exhausted his college football eligibility prior to his third year of law school, Dilweg played for the NFL’s Milwaukee Badgers while attending law school during the 1926 season. 

Dilweg was one of five former Marquette players on the Badgers roster that season.  Unfortunately, the professional Badgers, who featured eight rookie starters, were generally outclassed by their opponents in 1926.  The team finished with a record of 2-7, and folded before the official end of the season, bringing to a close Milwaukee’s official presence in the NFL.

In 1927, Dilweg signed with the Green Bay Packers and at the same time began the practice of law in Green Bay where he was to reside for the rest of his life.  During Dilweg’s years with the team, the Packers were one of the premier teams in the NFL, and he was one of its top stars.  After finishing second in 1927, and fourth in 1928, the Packers reeled off three consecutive NFL championships, and would have won a fourth in 1932, but for the NFL rule that ties did not count in the standings.  In 1932, Green Bay finished 10-3-1, but lost the title to the 7-1-6 Chicago Bears.   (Under modern rules, which treat ties as a half-win and half-loss, Green Bay would have been awarded the 1932 championship.)  Between 1929 and 1932, the Packers were a combined 44-7-3, with an undefeated 12-0-1 season in 1929. 

In 1933, the NFL was divided into two divisions and the Packers level of play declined somewhat.  In both 1933 and 1934, they finished third in the NFL’s Western Division.   At the end of the 1934 season, Dilweg retired from football at age 31 to devote himself to his law practice and his other business interests.  He did, however, keep his hand in the sport by refereeing Big Ten football games on a regular basis until 1943. 

In addition to his law practice, Dilweg was involved in the construction industry in Green Bay, as well as numerous other business and civic activities.  He served as a director of the Green Bay Blue Jays baseball team which was a member of the Class D Wisconsin State League, and from 1934 to 1943, he was in charge of the Green Bay Home Owners Loan Corporation (HOLC), a New Deal housing agency. 

A strong supporter of Franklin Roosevelt, Dilweg was active in Democratic Party politics in Wisconsin.  In 1943, he was elected as a Democrat to the United States House of Representatives from Wisconsin’s 8^th District.  His election marked only the third time since 1848 that the voters of Green Bay’s district had elected a Democrat to Congress.  By all accounts his celebrity as a former Green Bay Packer star contributed to his victory.  In the House, he served with a former Marquette Law School classmate, John B. Bennett of Michigan (’25), who was also elected in the fall of 1942.

Unfortunately for Dilweg, his stint in the House of Representatives turned out to be only a single two-year term as he went down to defeat with President Franklin Roosevelt as the Republican Party carried Wisconsin in the 1944 elections.  (Ironically, Bennett, a Republican, was also defeated in 1944, but he was later returned to Congress for nine additional terms.)

After leaving Congress , Dilweg resumed the practice of law in Green Bay but also maintained an office in Washington, D.C.  In 1961, he was named by President Kennedy as a member of the Foreign Claims Settlement Commission.  Dilweg died in Florida in 1968, just prior to his 65^th birthday.  He is a member of the Green Bay Packers Hall of Fame, and his grandson, quarterback Anthony Dilweg, played in the NFL from 1989 to 1991 and with the Packers from 1989 to 1990.

The photo accompanying this post is of the Marquette Golden Avalanche preparing to play in the first Cotton Bowl in 1937.

The Redskins’ owner, West Virginia native George Preston Marshall, declined to sign black players because he was concerned that his success in establishing the Redskins as the team of the American South would be undercut if the team was racially integrated.  (In the 1950’s, NFL teams individually negotiated their network television deals, and the value of the Redskins’ TV rights was enhanced, Marshall believed, by its popularity in the South, which had no major league football teams at that time.)  Others believed that Marshall’s own “Southern” views on race were a factor in his decision. 

Marshall persisted in this view, even though the once-powerful Redskins had become one of the patsies of the NFL by the late 1950’s.  Between 1959 and 1961, the team finished last or next to last in the NFL Eastern Division each season with a combined record of 5 wins, 30 losses, and 3 ties. 

Even a series of terrible seasons could not persuade Marshall to expand the racial base of his team.  It took pressure provided by the Kennedy Administration in early 1961 to finally force Marshall’s hand.  The Administration viewed it as a matter of public embarrassment that the NFL team in the nation’s capital was still engaged in Jim Crow hiring practices.  While there was nothing illegal about Marshall’s policy — there were no employment discrimination laws in the District of Columbia in 1961 — the Administration did have a certain type of leverage.  The Redskins were scheduled to begin play in the new federally owned and funded District of Columbia Stadium (later known as Robert F. Kennedy Stadium) during the 1961 season. 

The stadium was under the control of the Department of the Interior, and Interior Secretary Morris Udall threatened to withhold the right to use the new stadium unless the Redskins agreed to sign African-American players.  After initially trying to call the Interior Department’s bluff by pointing out that it had hired virtually no black forest rangers, Marshall conceded, but only after Udall agreed that the integration requirement could be pushed back until the 1962 season.  Marshall’s cause had not exactly been helped by the support he received from the American Nazi Party, whose members picketed outside of the new stadium carrying signs saying, a bit ironically, “Keep Our Redskins White.” 

The 1961 Redskins were even worse than normal, finishing with a record of 1-12-1 with their sole win coming in the season’s final game against the expansion Dallas Cowboys.  As a result of their league-worst record, they were entitled to the first pick in the 1962 college draft, which, consistent with the deal, they used to select black Heisman Trophy winner, Ernie Davis, a running back from Syracuse.

Davis had also been drafted by the Buffalo Bills of the rival American Football League, and Marshall was apparently concerned that he might not be able to sign Davis.  The two previous Heisman Trophy winners, Billy Cannon (’59) and Joe Bellino (’60), ended up with AFL teams, so the Redskins shortly after the draft traded the rights to Davis to the Cleveland Browns for star African-American halfback Bobby Mitchell.  Davis tragically died of leukemia before ever playing with the Browns, but Mitchell starred throughout the 1960’s for the Redskins.

Ask any Redskins fan to name the first black Redskin and he or she will almost surely answer “Bobby Mitchell.”  While that is the conventional answer, it is only part of the correct answer.  Moreover, the correct answer turns out to require a more specific definition of what one means by “first black Redskin.”

As it turns out, on the day that the Redskins tabbed Ernie Davis (December 4, 1961), they also selected African-American fullback Ron Hatcher of Michigan State in the eighth round of the draft.  Prior to the announcement of the trade of Davis, Hatcher signed with the Redskins, thus becoming the first African-American player ever signed by the team.  (Marshall, predictably, declined to be photographed with Hatcher at the time of his signing.)

Therefore, shouldn’t “Ron Hatcher” be the answer to the question “Who was the first black Redskin?”  Well, not exactly.  As it turns out, Hatcher played with the team during the exhibition season, but was one of the last two players cut before the opening of the 1962 season, so, while he rejoined the team later in the year, he was not on the Redskins roster on opening day.  Presumably, the “first black Redskin” is the first African-American to play for the Redskins in a regular season game.

After signing Hatcher and trading for Bobby Mitchell, the Redskins had acquired two additional black players during the 1961-62 off-season:  halfback Leroy Jackson and guard John Nisby.  Jackson was the Browns’ first-round draft pick in 1962, and his draft rights were packaged with Mitchell and sent to Washington in exchange for the rights to Davis. He was then signed by Washington.  Nisby was acquired in March from the Pittsburgh Steelers in an odd trade that sent 27-year-old Pro Bowl guard Ray Lemek from Washington to Pittsburgh for 26-year-old Pro Bowl guard John Nisby.  (Lemek and Nisby had been teammates on the Eastern Conference team in the 1961 Pro Bowl.)  Here Washington traded a white player for a black one.

All three of these men, Mitchell, Jackson, and Nisby, appeared in the first regular-season game of 1962, which was played in Dallas on September 16, and all three played important roles in the team’s first game as an integrated eleven.  Jackson ran back two kick-offs for a total of 48 yards, and Nisby played his expected role as the anchor of the offensive line as he began another Pro Bowl season at guard.  Mitchell, however, was truly spectacular as the Redskins came from behind to tie the much improved Cowboys, 35-35. 

Mitchell caught touchdown passes of six and 81 yards from quarterback Norm Snead and scored a third touchdown on a 92-yeard kick-off return in the third quarter.  For the game he caught 6 passes for 135 yards and led the team in total offense. 

Consequently, the answer to the question of the identity of the first black Redskin is three-pronged:  Bobby Mitchell, Leroy Jackson, and John Nisby.  But given his performance in the game, it is understandable that Mitchell is the one player that fans remember as the Jackie Robinson of the Washington Redskins.

The Law of Sports is extremely difficult to locate; in fact, it appears that there is no known copy in the United States. This work was reviewed in the London Journal in 1896, and the following description of the work can be found on page 152 of Volume 13 of Fores’s Sporting Notes and Sketches,(London 1896) under the heading of “Notes on Novelties”:

The Law of Sports by W. M. Thompson and J. D. A. Johnson, LL.D., is a useful pamphlet, the copious information therein contained being summarised into the smallest possible space. The legal points connected with the game laws, fishing, hunting, racing, and gambling, being (so to speak) “in a nutshell.” Hearnden, New Inn Chambers, is the publisher.

Fores’s Sporting Notes and Sketches, which can be found in the New York Public Library, was a magazine containing articles ”descriptive of British, Indian, Colonial, and Foreign Sport.”  Because Fores’s description makes no mention of team sports like cricket, rugby, or association football or of individual competitor sports like golf and tennis, it is conceivable that the Thompson and Johnson work is devoted only to what are often called “field sports.” 

If that is so, there are many older works on those topics, including George Putnam Smith, The Law of Field-Sports, which was published in 1886 by the New York publisher O. Judd Company, and Henry John Rous’ The Laws and Practices of Horse Racing (London 1866), which earned its author the appellation “the Blackstone of Horse Racing.”  Works on the law of hunting date back at least to the 18^th century.  Thomson Gale, The Game Laws was published in its 7^th edition in 1807.

Students of sports history primarily remember him as the winning pitcher in one of the most famous games in baseball history, the New York Giants 5-4 victory in the 1951 one-game play-off with the Brooklyn Dodgers that determined the Senior Circuit’s representative in that year’s World Series.  This was the game that featured Giants outfielder Bobby Thomson’s dramatic walk off  home run in the bottom of the ninth inning, the so-called “Shot heard ‘round the world.”  Jansen had pitched a scoreless top of the ninth for the Giants.

During his nine-year major league career, Jansen won 122 games and lost 89 with an earned run average of 3.58, solid but not exceptional totals.  However, his career began in a blaze of glory.  After winning 30 games in 1946 for the San Francisco Seals of the minor league Pacific Coast League (a feat matched only once by any professional pitcher at any level during the subsequent 63 years), Jansen was purchased by the New York Giants.  After going 21-5 as a rookie, he recorded 18, 15, and 19 wins over the next three seasons, before compiling a 23-11, 3.04 record in the Giants championship year, 1951.

What almost no one remembers is that Jansen was also the name plaintiff in an early right of publicity case that contributed to the development of personal publicity rights as a form of “property” at a time when the future of that right was quite uncertain.  But for an even more significant decision handed down the same year in the same state, historians of the right of publicity might remember Jansen’s case as one of the most significant decisions of the post-World War II era.

In the summer of 1952, a number of New York vendors were placing cardboard photographs of New York Giant baseball players in bags of popcorn and packaging them with chewing gum.  (Presumably, they were doing this with Dodger and Yankee players as well.)  This practice was separate and apart for the baseball cards that were sold that summer by the Bowman and Topps companies that were packaging the cards with chewing gum under licenses obtained from major league players.

On August 14, 1952, with their team sitting in second place, eight games behind their archrival Brooklyn Dodgers, Jansen and six of his teammates (Bobby Thompson, Sal Maglie, Wes Westrum, Montia Kennedy, Dave Koslo, and Bill Rigney ) obtained a show cause order from New York Supreme Court Justice Samuel M. Gold requiring the Hi Lo Packing Company, Inc. (rendered Hilo in the subsequent judicial decision) and Theatre Concessions, Inc. to show why they should not be barred from continuing their practice of placing the plaintiffs’ photographs in bags of popcorn that were sold to the public without permission from the players.

Jansen and his colleagues also demanded $50,000 in damages.  Even though Jansen had won 96 games for the Giants the previous five years, postwar major league salaries were so low that players usually had to work at regular jobs in the office season.  Jansen was no different, and each fall and winter he worked in a pharmacy in Jackson Heights, New York.  There is little doubt that the extra money would have come in handy.

As luck would have it, at the Polo Grounds the next day, Jansen blew a 2-1 lead in a game with the Boston Braves when he allowed three unearned runs in the ninth inning.  (Jansen himself and Bobby Thompson both made errors that inning.)  In fact, after he filed the lawsuit, Jansen’s career went into a tailspin.  He failed to win another game during the 1952 season and never again had a winning season in the major leagues.  (Presumably, this was just a coincidence.)

Jansen and his teammates were represented by Jonah J. Shapiro, a well-known New York sports and entertainment lawyer.  By the time the case went to trial, Harry Horowitz’s businesses Model Airplanes, Inc. and Hit Parade, Inc. had been joined as defendants, at least one of whom was packaging player photographs with chewing gum without permission from the players.

Jansen’s suit was technically not a right of publicity action—that term would not be coined until the following year.  His action was brought under Section 51 of the New York Civil Rights law which was usually characterized as the New York “privacy statute,” and which provided as follows:

Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without [such person's] written consent …  may … sue and recover damages for any injuries sustained by reason of such use.

The defendants responded by filing a motion to dismiss on the grounds that the plaintiffs players had failed to state a cause of action, because the baseball players, as public figures, had “waived” their right to be left alone, which was, they argued, the sole purpose of the statute.  At issue were the implications of the decision of New York’s highest court, the Court of Appeals, in Gautier v. Pro-Football, 304 N.Y. 354, which had been decided on July 15, 1952, less than a month before Jansen and his teammates filed their action.

In that case, Gautier, an animal trainer, sued the Washington Redskins and others for allowing his act, performed at the half-time of an NFL game in 1948, to be televised by the ABC television network which was also broadcasting the game.  The court ruled in that case that no violation of Section 51 had occurred.  Although the court’s rationale was a bit convoluted, there was language in the opinion that seemed to suggest that professional entertainers, like animal trainers and presumably major league baseball players, waived their right to sue for invasion of privacy under Section 51 because they clearly sought out the public spotlight.

The hearing on the motion to dismiss occurred on November 14, 1952, before a Judge Cavagan.  In a brief opinion, 202 Misc. 900 (1952), Cavagan agreed with Jansen’s attorney that the Gautier decision had not ruled out actions under Section 51 when the likenesses of baseball players were clearly being used to aid in the sale of non-baseball related items.  In that regard, he found the present case similar to, and still controlled by, an earlier New York case, Lane v. Woolworth Co., 171 Misc. 66, aff’d 256 A. D. 1065 (1939), in which the actress Judy Lane had successfully argued that Section 51 prevented Woolworth’s from including her photograph without her permission in inexpensive lockets sold in its five and ten cent stores.

Judge Cavagan’s ruling was appealed by the defendants, but the ruling was affirmed by the Appellate Division of the Supreme Court slightly more than a year later, on November 17, 1953.  In a memorandum opinion, the five-judge court unanimous confirmed the decision of the lower court without further elaboration.  282 A. D. 935 (1953).

However, by the time that the appellate division issued its ruling, the United States Circuit Court of Appeal for the Second Circuit had handed down its landmark right of publicity decision in Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (1953), another case in which lawyer Jonas J. Shapiro served as counsel.  In Haelen, the court ruled that baseball players had not just a right of privacy under Sec. 51 but also a common law property right in their name and images.  As a result, the Haelan decision rendered the final decision in the Jansen case less significant than it might have been.  Without Haelan, Jansen’s case likely would have seemed much more important and might well have played a much more visible role in the development of the right of the publicity in its formative era.

It is also not clear if Jansen ever benefitted directly from the decision in his case.  By the time the final decision was handed down, he was pretty much finished as a pitcher.  In 1954, he pitched in only 13 games for the Giants (after averaging 39 games per season the previous seven years), and on July 12, 1954, he was unceremoniously released by the Giants and had to return to the minor leagues.  It seems unlikely that anyone was going to rush to get in line to pay Larry Jansen for the right to put his photo in popcorn bags after the 1953 season.

As a case, Jansen v. Hilo Packing Company has not been completely ignored.  It has been cited in six subsequent judicial opinions, including the landmark right of publicity decisions Palmer v. Schonhorn Enterprises, Inc., 96 N. J. Super 72, 232 A.2d 458 (Ch. Div. 1967) and the recent C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E. D. Mo. 2006).  It has also been cited in six law review articles and the Restatement 2d of Torts.

In many ways, the case of Jansen v. Hilo Packing resembles the baseball career of Larry Jansen.  At one point, it looked like both the pitcher and the case were headed for historical significance.  Instead, they both ended up as important parts of the respective historical records of major league baseball and the right of publicity, but in the end neither turned out to be of Hall of Fame caliber.

Valdivia and her fifteen-year-old brother attended the game without an adult companion.  After catching the ball, the Miami resident was escorted by Florida Marlins employees to the Philadelphia clubhouse, where she was given cotton candy and talked into exchanging the home run ball for a different baseball autographed by Howard.  Upon learning of these events, her family retained lawyer Norm Kent and formally requested that the ball be returned.  The team refused to give the ball back for almost three months, but decided to do so after Kent filed suit on Monday, October 5.

Although the Phillies have so far refused to comment on their decision to return the ball, they most likely did so to avoid the bad publicity that would follow widespread reporting that the team had taken advantage of a twelve-year-old fan.  What is more interesting is that the Phillies appear to have accepted that the ball did belong to Valdivia, rather than to the home team Florida Marlins or Major League Baseball.  Had they believed the latter, they could simply have requested that the Marlins retrieve the ball for them, and they would not have had to barter with the young girl. 

Historic home runs balls have become objects of great value in recent years, and the “ownership of balls batted into the stands” issue has been much discussed.  However, the legal aspects of the matter have rarely been understood even though it is not really a complicated question.  The right to such baseballs can be established through the application of basic property law principles. 

The first task is to establish the owner of the ball before it is hit into the stands.  Ordinarily, this is the home team, which is obligated to provide baseballs meeting major league specifications.  The baseballs are given to the umpires prior to the game, but neither that action nor the use of the balls in pre-game practice or in the game itself reflects a transfer of ownership, as evidenced by the fact that any leftover baseballs are returned to the home team when the game is completed.

Logically, a fan retrieving a ball hit into the stands is legally entitled to keep the ball only if the home team’s ownership rights have been somehow transferred or relinquished.  Ownership rights are transferred only by abandonment, gift, or sale.  If there is no abandonment, gift, or sale, there is no change in ownership. 

Although it is often stated that baseballs are abandoned once they leave the playing field, there is no legal basis for such an assertion.  At football and basketball games at all levels and at amateur baseball games, fans are expected to return balls that travel into the area where spectators are seated.   To lose control of an owned object is not tantamount to abandonment.  If two boys are playing catch and an errant throw lands in a neighbor’s yard, they may not have the legal right to retrieve it on their own (because of trespassing laws), but that does not mean that they have abandoned their property rights to the ball.

Moreover, abandonment as a theory will not work in situations where representatives of the home team go into the stands immediately after the ball lands for the purpose of retrieving it.  Obviously, the owner is not abandoning the ball if its agents are trying to get it back.  Only if no effort is made to retrieve the ball, and it appears that the owner has relinquished any intention of reclaiming it, can the ball be said to be abandoned.  Consequently, if the fan has a legal claim to a ball that the owner wishes to retrieve, the claim cannot be based upon a theory of abandonment. 

A better argument than abandonment is the argument that the ball is a “gift” from the home team to the fan.  Gifts require both donative intent (the intention to make a gift) and actual or constructive delivery.  Otherwise, the change of possession represents either a bailment or theft, but in neither of those situations is there a change of legal ownership. 

One could argue that when a fan enters the seating area of the stadium, the home team “prospectively” gives him or her any ball hit into the stands that he or she might retrieve.  However, there are problems with the gift analysis.   Although prospective interests can be the subject of gifts — I can give away a five percent interest in the profits (ha!) from my next casebook — the law of gifts normally requires that the donor control the object of the gift at the time of delivery and that the object of the gift can be defined with specificity.  There is also a fine line between gifts of prospective benefits, which are enforceable, and promises to make a gift in the future, which are not. 

Of course, if the home team decides not to make an effort to retrieve a particular ball hit into the stands and instead allows the fan that recovered it to keep it, one can argue that a gift has been made at that point.  However, this rationale provides no legal protection for the fan in cases where the owner or its representatives are in the stands demanding the return of the ball.

The better analysis is that the ball belongs to a fan as a matter of contract.  When one purchases a ticket to a professional baseball game, the buyer is led to believe that he is purchasing a number of entitlements — among which are the right to watch the ensuing game without interference and the right to sit in the seat identified on the ticket.  Because of the longstanding practice, dating back at least to the 1920’s, of allowing fans to keep balls hit into the stands at professional baseball games, the “right” to keep such balls, I would argue, has become an implicit part of the contract between the team owner and the ticket buyer. 

When you purchase a ticket to a baseball game, part of what you are purchasing is the right to keep any ball, hit fair or foul, that you retrieve when it passes into the stands.  Every baseball fan knows this.  To demand the return of a ball at this late date would constitute a breach of contract.  Even if the fan were not entitled to the return of the ball itself, if it were improperly taken away, the fan would be entitled to the cash equivalent of the ball’s value.

This analysis would not prevent a team from announcing a new policy that all balls batted into the stands must be returned if requested, but it seems highly unlikely that any team owner would adopt such a policy, which would surely anger fans and give them reasons not to purchase tickets.

So the Phillies were actually right.  The ball did belong to Jennifer Valdivia.  It was hers under the terms of the contract between young Jennifer and the Marlins that was created when she purchased her ticket.  What the Phillies did wrong was to try to defraud a young girl whose family knew how to find a lawyer who understood the sports memorabilia market.

The Miami Herald story reporting the return of the ball and a video of an interview with lawyer Norm Kent can be found here.

Furthermore, his call for college football to institute a playoff system to determine the champion of what most people still call Division 1A football has fared no better.  Although such a change has admittedly not been a top priority of Obama’s administration, he did quite openly throw his support with those opposing the current BCS championship system (based on polls and giving priority to the teams that make up the six so-called BCS conferences)  both during the campaign and after he was elected. 

Support for Obama’s position seemed to congeal at the end of the 2008-09 college season when the BCS formula left undefeated University of Utah out of the BCS championship game and undefeated Boise State and Texas Christian University (which would finish the season ranked #7 in the country in the AP poll) out of BCS bowl games altogether.

On January 9, 2009, eleven days before Obama’s inauguration and the day after one-loss Florida defeated one-loss Oklahoma for the BCS championship, Rep. Joe Barton of Texas, the ranking Republican on the House Energy and Commerce Committee, introduced a bill that would prohibit as a “deceptive practice” the promotion of a postseason NCAA Division I football game as a national championship game unless it was the final game of a traditional playoff.   Barton represented a district that abutted Fort Worth, the home of TCU, and his bill was co-sponsored by fellow Texas Republican Michael T. McCaul and the peripatetic former Black Panther Bobby Rush (D-IL), whose constituents include Barack and Michelle Obama.  

Six days later, Democrat Neil Abercrombie of Obama’s native Hawaii proposed a somewhat less dramatic approach when he introduced a nonbinding resolution calling for a playoff system and for a Justice Department investigation into the legality of the BCS system under the federal antitrust laws.  Abercrombie’s resolution was endorsed by Lynn Westmoreland (R-GA), Jim Matheson (D-UT), and Michael K. Simpson (R-ID), all of whom represented districts lacking teams in BCS conferences.  The following day, a third bill was introduced, this time by Republican Gary Miller of California.  Rather than label the BCS system a fraud (as Barton’s bill would do) Miller’s proposal denied all federal funds to schools in the Division I Football Bowl Subdivision unless the championship game resulted from a playoff system.   

However, the movement to force the NCAA to adopt a playoff system quickly ran out of steam once the new president was inaugurated.  Although  Barton and Miller endorsed each other’s bills and Abercrombie’s resolution, and Abercrombie signed on as a co-sponsor of Miller’s bill (but not Barton’s), only two other congressmen, Ken Calvert (R-CA) and  John Carter (R-TX), subsequently endorsed any of the above legislation.  Barton and Miller’s bills both died in committee in January while Abercrombie’s resolution was apparently tabled in March.  Hearings conducted in May by the House Energy and Commerce Committee’s Commerce, Trade and Consumer Protection Subcommittee attracted almost no attention.

The idea that Congress might intervene on behalf of a playoff was briefly revived in July when Sen. Orrin Hatch of Utah, the ranking Republican on the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights held hearings on the legality of the BCS system.  Although Hatch’s hearings primarily focused on the possibility of the Justice Department prosecuting the NCAA under the federal antitrust laws, they appeared also to revive the idea of direct congressional intervention.  During the Hatch hearings, Congressman Barton, who had earlier denounced the BCS as a form of Communism, predicted that if the NCAA did not adopt a playoff system by the start of the next season, Congress would intervene and impose one itself. 

Well, the NCAA did nothing, and Congress followed suit.   The president, presumably, was busy with other matters. 

Given the reluctance of Congress to interfere with the sports industry, even after 50+ years of investigatory hearings, in matters of franchise relocation, expansion, pay television, and performance-enhancing drugs, it would have been shocking had it been moved to act in regard to what is clearly a matter of style rather than substance. 

But now that he has two strikes, the president should be careful before he takes another swing at the sports industry.

[Thanks to John Foust for bringing several misspellings in the original version of this post to our attention.  Eds.]

Does everyone agree with this analysis?

In 2005, the NCAA indentified the University of North Dakota as one of eighteen member colleges and universities that used racially offensive Native-American-themed nicknames for their athletic teams.  After considerable wrangling with the University, the NCAA ruled that if the University chose to continue the use of the Fighting Sioux nickname, mascot, and logo, it would suffer a number of penalties, including a prohibition against hosting NCAA post-season events.  At the same time, the University’s efforts to move from Division II to Division I were frustrated by the refusal of the Summit League (an NCAA Division I conference which included North Dakota State and South Dakota State and which had previously shown great interest in adding North Dakota as its twelfth member) to act upon its application until the matter of the nickname was resolved.

The issue was further complicated by the decision to imbed the Fighting Sioux logo into the structure of the University’s lavish Ralph Englestad Arena.

The Englestad Arena, primarily an ice hockey and winter sport facility, was constructed during the controversy, and the pro-Fighting Sioux mascot builders placed the logos in such a way that it would be almost impossible to remove them without significantly damaging the building.

When the University refused to budge on the nickname issue, the NCAA brought suit.  In October 2007, the two parties settled the suit with an agreement that the University would change its nickname and logo unless it could secure the approval of both of the state Sioux tribes (the Dakota and the Lakota) for the continued use of the logos for at least thirty more years.  This settlement was similar to the one reached in Florida under which the Seminole Tribe authorized the continued use of the Seminole nickname by Florida State University.  Under the terms of the settlement, the school had until February 2010 to secure the permission of the two tribes.

The settlement triggered an intense campaign on the part of the University and most white North Dakotans to convince the state’s Native-Americans that it was in their interest to support the continued use of the Fighting Sioux name and mascot.  While many seemed to be favorably disposed to the idea anyway, other complained of what they viewed as unfair, and racially tinged, pressure.

The Sioux population of North Dakota primarily resides on two reservations, Standing Rock and Spirit Lake.  On April 22, 2009, the Spirit Lake Sioux voted in a non-binding referendum to support the perpetual use of the name by a vote of 774-378. The magnitude of the vote convinced the Spirit Lake Tribal Council to endorse the University’s position.

However, on the Standing Rock Reservation, the tribal leadership voted not to support the continued use.  Although there was reportedly strong support for the nickname among the rank and file Standing Rock Sioux, Standing Rock tribal chairman Ron His Horse is Thunder, an outspoken opponent of the mascot and nickname, refused to allow a referendum on the issue.

As racial tensions increased in the face of the resistance of the Standing Rock leadership, the North Dakota State Board of Higher Education decided to intervene.  Ostensibly concerned about the University’s Summit League application, on May 14, the Board voted 8-0 to order the University to cease using the Fighting Sioux name and logo after October 1 unless it had secured the support of both reservations by that date.  (Presumably, if the University chose to resist this directive, it would face the cutoff of state funds.)  The effect of the Board edict was to shorten the period in which tribal approval could be obtained by four months.

Although His Horse is Thunder and his supporters showed no signs of backing down, the chairman and several of  his allies on the tribal council faced reelection in July 2009.  Among those challenging His Horse is Thunder for the position of chairman was Charles Murphy, a Fighting Sioux supporter and a former tribal chairman. 

In the July 17 primary Murphy significantly bested His Horse is Thunder, receiving 567 votes to 223 for the incumbent.  (In fact, His Horse is Thunder finished only two votes ahead of the third place finisher, Avis Little Eagle.)  However, because Murphy did not receive an absolute majority of the votes cast, he and His Horse is Thunder squared off on September 30 in the run-off in a campaign that focused on the mascot and nickname issue.  On what appeared to be the next-to-last day for the Fighting Sioux mascot, Murphy soundly defeated his opponent for the tribal chairmanship by a convincing margin of 64 to 36 percent.  In addition to Murphy, several new tribal council members were elected, but where each of these stands on the mascot question is not entirely clear.  Murphy and his newly elected colleagues do not take office until October 14.

The following day, the magnitude of Murphy’s victory prompted the State Board of Higher Education by a 6-1 vote with one abstention to give the University an additional month to resolve the issue.  A further extension will be granted if the Standing Rock Reservation schedules a referendum on the issue, so long as the referendum is held before the end of November.

Although there is no guarantee that the tribal council will agree to a referendum or that it will reverse its position on the nickname even if the results of the referendum are favorable to the University, Murphy’s large majority certainly improves the chances that the Fighting Sioux mascot will survive.

So far, no one has suggested that the University of North Dakota borrow a page from the book of Wisconsin’s Carthage College, one of the eighteen schools on the 2005 NCAA list.  Previously known as the Redmen (a synonym for Indians), Carthage changed its nickname to the Red Men (apparently a reference to men that are painted red, or possibly to devils or Communists).  If the University of North Dakota ultimately has to give up the Fighting Sioux name, perhaps it should, with a tip of the hat to Johnny Cash, Shel Silverstein, and Title IX, change the name of its athletic teams to the University of North Dakota Fighting Sues.  Stranger things have happened.

Not only was Brand the first college president to appointed to head the NCAA, he also possessed impeccable academic credentials.  He held a Ph.D. in Philosophy from the University of Rochester, and had previously been a faculty member at the Universities of Pittsburgh, Illinois-Chicago, and Arizona.  Although he was a fan of sports, he had never been an athlete or a coach of any consequence.  (He played freshman basketball and lacrosse at small college RPI but apparently wasn’t good enough for the varsity.)  Moreover, he had proved his ability to stand up to the goliath that is college sports when as president of Indiana University he fired highly successful basketball coach Bobby Knight for repeatedly boorish behavior.

Unfortunately, Brand turned out to be a disappointment for those who hoped that he might usher in an era of real reform in college athletics.

He leaves the NCAA pretty much as he found it, an economic powerhouse characterized by sharp distinctions between rich and poor, with the rich reaping the benefits of ever-increasing television revenue and exploiting the skills of young athletes, only a few of whom are able to continue their careers at the professional level.  When he assumed office the schools with the strongest commitments to men’s football and basketball were engaged in a seemingly endless “arms race” characterized by larger and larger stadiums and arenas, and by high profile coaches paid more and more money each year.  At the time of his death, the arms race continued unabated.

Media outlets have responded to Brand’s death by emphasizing his commitment to reform.  According to the Indianapolis Star, “Brand elevated academics [and] put athletics in perspective.”   Sports Business Daily reported he left a “legacy focused on academic reform in the NCAA,” while the Associated Press praised the fact that he “worked to change the perception that wins supersede academics and earned accolades for his efforts.”  Kind words, but words that should acknowledge that if these were his goals he largely failed in such efforts.

When one asks what Brand actually accomplished as director of the NCAA, it is difficult to point to any truly significant reform.  While it is true that he continued the process of tightening academic standards for athletes and placing greater emphasis on graduation for athletes, it would be disingenuous to claim that during his years at the helm student athletes were held to the same academic standards as ordinary students, for it is clear that they were not.

While there is no consensus among academic reformers as to what NCAA rule changes are necessary, a reform-minded director might have pushed for:

• Salary caps for coaches.
• Requirements that coaches be members of the faculty.
• A return to earlier limitations on the number of regular season games in football and basketball.
• Greater revenue-sharing of broadcast income among all NCAA members regardless of the division in which they participated.
• The repeal of the advantages given to members of the so-called BCS conferences in regard to the determination of the national college football champion.
• Abolition of the distinction between Division I, FBS teams and Division 1, FCS in college football.
• Reductions in the number of athletic grants-in-aid available to NCAA members.
• A new classification system that grouped schools on the basis of their enrollments rather than the size of their athletic budgets.
• Congressional approval of an antitrust exemption for college athletics that would remove doubts regarding the legality of “anti-commercial” regulations.

It is of course true that the president of the NCAA could not unilaterally implement such changes, but there is no evidence that Brand ever committed himself to such innovations.  In spite of all of his talk about academic integrity and amateurism, he was basically a supporter of the existing system.   While Brand denounced “commercialism gone wild” in one of his final speeches, he was always careful to point out that he was not an opponent of commercialism in college sports.  In fact, he regularly encouraged NCAA schools to seek out new forms of revenue.  As he frequently put it, college sports could not survive without commercial activity.

In his final remarks at the 2009 NCAA convention (read in his absence by aid Wallace Renfro), Brand warned against the “extremes of unrealistic idealism” as well as the dangers of excessive commercialism.

Myles Brand was a capable president of the NCAA, and he may well have been an improvement over his predecessors, but he was never the visionary reformer that some of his fans made him out to be.   We are still waiting for the first “idealistic” president of the NCAA.

During his confirmation hearings, Chief Justice John Roberts famously likened the judicial role to that of a baseball umpire. The increased prevalence of video evidence makes it likely that judges will find another sporting analogue for their role – that of the instant replay official in the NFL. (Indeed, many have already done so.) This Essay explores the analogy. In so doing it seeks not only to consider its appropriateness in a narrow sense (much as many commentators considered the appropriateness of the Chief Justice’s analogy), but also to conduct something of a comparative analysis and thereby to use it as a vehicle for illustrating some general characteristics of a process of decisional review.

This is a fun and — only six days until the Packers’ season opener! — timely article.

The national debate triggered by Vick’s arrest and conviction revealed that most middle and upper class Americans viewed dog-fighting as barbaric and properly criminal.  On the other hand, it also made many aware for the first time that there were racial, socio-economic, and regional dimensions to the debate.  While few openly called for the repeal of all dog-fighting laws, it became clear that many African-Americans and rural whites, particularly Southerners and those with lower incomes, did not view dog fighting as a particularly serious offense.  Many in these groups still find it a fascinating and exhilarating spectator sport, and, consequently, view the laws against it as trivial and unfair.  From their perspective the issue was not so much one of animal rights but the ability of the majority to impose their cultural views on a relatively powerless minority.

Although dog-fighting has been illegal in every state for some time now—Vick’s home state of Virginia outlawed “commercialized” dog-fighting and betting on dog-fights at the end of the 19^th century—the sport once had a long and surprisingly upper class pedigree.  Queen Elizabeth I was a great fan of dog-fighting and prevented Parliament from outlawing the sport during her reign.  Dog-fighting, along with bear baiting, cock fighting, gander pulling, and other blood sports were quite popular in colonial Virginia and helped to unite individuals of different races and economic classes, including slaves and their masters.

Even after dog-fighting was outlawed, at least in the South there was a long tradition of law enforcement officials looking the other way, or sometimes joining in the activity.  (In that regard, it was like “moonshining.”) To this day, the kindred sport of cock fighting remains legal in Virginia (so long as it is done solely for the enjoyment of the spectators and no money changes hands), and a recent effort to abolish it in the Old Dominion failed, in part because the state’s farmers are among the nation’s leading breeders of fighting roosters.  More over, hunting, fishing, and horse racing continue to be perfectly legal although it is hard to believe that the animals involved derive much pleasure from the sport.

I spent a good part of the summer in my hometown of Pearisburg, Virginia (pop. 2200).  While I was there, the topic of conversation frequently turned to Michael Vick.  Although the town has a black town councilman which it elected in at large voting, it is predominantly white and very conservative.  Almost without exception, however, everyone seemed to view seemed to feel that Vick had gotten an extremely raw deal.

While it is true that the town is overwhelming populated by fans of Virginia Tech (Vick’s alma mater), I don’t think that that was the reason for their views.  (They would have felt the same, I think, even if he had played for UVa or West Virginia University.) For what they viewed as at best a minor infraction against an animal, Vick was punished as though he had committed a serious offense against another human being.

I am sure that nothing would please Michael Vick more than for the public to completely forget about his dog-fighting experiences.  However, as the focus of civil rights disputes increasingly shifts from issues of race to issues of culture, Vick may be a symbol of resistance for those who embrace rural, lower class Southern values instead of those of the middle-class majority.

To date, no U.S. or foreign court or arbitral tribunal has directly considered whether mandatory blood testing of athletes for banned performance-enhancing substances, including synthetic human growth hormone (rhGH), violates any internationally or nationally recognized individual rights to privacy or bodily integrity. To determine how this issue is likely to be resolved in litigation or arbitration, this article reviews the developing U.S. law and private international law established by arbitration awards regarding the legality of drug testing at the various levels of athletic competition as well as the compelled taking and testing of a person’s blood outside the context of athletics.

Janie Kim and Matt Parlow make a thoughtful contribution to the debate with a new paper on SSRN entitled “Off-Court Misbehavior: Sports Leagues and Private Punishment.”  Here is the abstract:

This Essay examines how professional sports leagues address (apparently increasing) criminal activity by players off of the field or court. It analyzes the power of professional sports leagues and, in particular, the commissioners of those leagues, to discipline wayward athletes. Such discipline is often met with great controversy — from players’ unions and commentators alike — especially when a commissioner invokes the “in the best interest of the sport” clause of the professional sports league’s constitution and bylaws. The Essay then contextualizes such league discipline in criminal punishment theory — juxtaposing punishment norms in public law with incentives and rationales for discipline in professional sports — and analyzes the legal and cultural limitations to this approach.

As Kim and Parlow point out, one of the troubling aspects of league-administered punishment for off-court misconduct is that the procedures and standards seem so informal and ad hoc compared with those of the criminal justice system.  This raises legitimacy problems for league punishment — all the more so when the league itself is perceived to have unclean hands (see, e.g., MLB and steroids).

The baseball antitrust exemption has turned out to be one of the great anomalies of American law.  First recognized in the Supreme Court’s Federal Baseball decision in 1922 at a time when “commerce” was understood much more narrowly than it would be in the post-New Deal world, the exemption took on a life of its own in the 1953 Toolson decision when the Supreme Court acknowledged that professional baseball was commerce after all but that it was leaving the matter of invalidating the exemption to Congress.  In 1972, the Court reasserted the exemption in Flood v. Kuhn, and Congress reaffirmed it in 1999 in the Curt Flood Act in regard to all matters covered by the exemption except major league labor relations.

While there is no question that the Major League Baseball antitrust exemption still exists, it is not at all clear what aspects of the baseball business are protected by the exemption.  Does it apply to any undertaking by Major League Baseball, or is it limited to certain baseball-specific activities? Comments made by my colleague Matt Mitten in an interview presented elsewhere suggest that Matt believes that the exemption applies to all aspects of the professional baseball business.

I am not sure that this is true.  A quarter of a century ago the federal district court for the Southern District of Texas ruled that the baseball antitrust exemption did not extend to restrictions on broadcasting.  (Henderson Broadcasting Corp. v. Houston Sports Ass’n, Inc, 541 F. Supp. 263, 265-72 (S.D. Tex. 1982))  So far as I can tell this decision has never been overruled or even directly contradicted by a decision of a different court. Although the Supreme Court has provided no definitive answer, the conventional wisdom appears to be that the exemption applies only to matters central to the “business of baseball.”  This was the standard adopted in the relatively recent case, Major League Baseball v. Crist, 331 F.3d 1177, 1183 (11th Cir. 2003).

Of course this interpretation just replaces one question with another.  We still have to ask what aspects of the baseball business are “central” to its operation, and as of yet, we have no definitive answer.  Clearly territorial monopolies, minor league salary caps; and restrictions of minor league player mobility are central to the operation of baseball, but what else falls into this category?

Now Major League Baseball has gone and entered into a contract with Topps, Inc., giving that company the exclusive right to use Major League team names and logos with in the production of baseball cards. Topps’ primary competitor in the baseball card market, Upper Deck, can still issue baseball cards of players under its non-exclusive license with the Major League Baseball Players Association, but it will not be permitted to use team names or symbols on its cards.  As a practical matter, this will probably force the company out of the baseball card business, at least until Topps’ exclusive license expires.

It is hard for me to see how the production of baseball cards by an independent company could constitute an activity “central to the business of baseball.”  There was a time when baseball cards were a primary way that fans, particularly young fans, learned about the teams and players of Major League Baseball, but in the age of the Internet, it is hard to believe that baseball cards are in anyway a necessary component of marketing Major League Baseball to the public (if they ever were).  Consequently, the new Topps monopoly will likely to be found to be subject to antitrust challenge.  Whether or not the challenge will succeed is a topic for a different post.

On an entirely personal note, I have extremely fond memories of the old Topps baseball card monopoly that existed from 1956 to 1980.  In that period, only Topps produced baseball cards, and the cards were printed on cheap cardboard, packed to the gills with information about the pictured player not otherwise readily available, and packaged with super sweet sticks of bubble gum.  Even with the gum, they were incredibly inexpensive—a penny a card until the late 1960’s, and less than two-cents a card until the late 1970’s.

There were almost no baseball card shops in that era, so cards had to be purchased by the pack in regular stores that sold candy.  If you were missing a player’s card that you felt you needed, you had to buy more packs or else figure out a way to trade with a friend who had a card of the player you wanted. Many kids learned the rudiments of negotiation from such exchanges.

In fact, the only problem with the old Topps monopoly was that it wasn’t a true monopoly.  Fleer, which competed with Topps in the larger bubble gum market managed to sign a few well-known players including a handful of stars—Ted Williams, Maury Wills, and Wilmer “Vinegar Bend” Mizell (who was later a congressman from North Carolina) for example—but the company never had enough players under contract to produce its own bubblegum based player set.  In 1962, the year he was the National League’s Most Valuable Player, the only way to get a Maury Wills baseball card was to find one on the back of a Post Cereal box.

Because the Topps monopoly only applied to cards packaged with bubblegum or its equivalents cards could be marketed with other products, although that rarely happened.  (The Post experiment of putting baseball cards on cereal boxes only lasted for three years.).  In that era, no one thought of simply marketing the cards alone.

If the new Topps monopoly can somehow bring back the magic to baseball card collecting, then it will be a restraint of trade that we should gladly accept.

Had the case gone to trial, it could have raised complicated First Amendment questions relating to the ability of a municipally owned stadium to regulate unpopular political speech and symbolic gestures on the part of its patrons.

The ejected fan, Bradford Campeau Laurion, shown above, a 29-year old resident of Queens, New York, was represented by the New York Civil Liberties Union. Under the reported terms of the settlement Campeau received $22,000, $12,000 of which went to the NYCLU for legal services.

Although the details of the incident are still a matter of dispute, Campeau has consistently asserted that he was not trying to make a political statement and that he left his seat during the playing of God Bless America only because he was desperate to go to the bathroom after drinking two beers. Campeau was attending the game with a friend who was a Yankee season ticket holder.

When Campeau left his seat he was confronted by a New York City police officer who insisted that he would have to remain in his seat until the song was finished. Campeau claims that he told the policeman, “, ‘I don’t care about God Bless America. I just need to use the bathroom” and that in response to that statement the policeman and one of his colleagues pinned his arm behind his back and escorted him to the front entrance of Yankee Stadium where he was evicted into the street. According to Campeau, on the way out the policemen told him to “get out of their country if I didn’t like it.”

The officer told a different story, insisting that the ejection had nothing to do with the song. According to his account, Campeau was observed “standing on his seat, cursing, using inappropriate language and acting in a disorderly manner, while reeking of alcohol.” According to the officer, he “decided to eject him rather than subject others to his offensive behavior.” The accuracy of this description is disputed by Campeau and his friend, the season ticket holder.

The settlement contained no confession of liability and, in fact, included a stipulation whereby the plaintiff agreed that the City and the Yankees had the right to regulate the conduct of fans during the singing of God Bless America and at other times. Although Campeau insisted that he was unaware of the policy, the Yankees had, prior to the game Campeau attended, adopted a policy of requiring patrons to remain in their seats during the playing of the National Anthem and God Bless America.

In spite of this concession, New York Civil Liberties Union Executive Director Donna Lieberman pronounced that “[t]his settlement ensures that the new Yankee Stadium will be a place for baseball, not compelled patriotism.” Christopher Dunn, NYCLU associate legal director and lead counsel in the case added: “Neither the Yankees nor the NYPD can force people to engage in acts of political loyalty. As a result of our lawsuit, fans can now go to a ballgame at Yankee Stadium knowing they will not be subjected to NYPD-enforced patriotism.”

A more cynical observer might conclude that the point of the case is that one should plan on going to the bathroom in Yankee Stadium during the playing of God Bless America. The bathrooms should be easily accessible, and if you get thrown out for leaving your seat you can cash in your ticket for $10,000.

This article provides an overview of the nature and scope of judicial review of Olympic and international sports arbitration awards, primarily those rendered by the Court of Arbitration for Sport (based in Lausanne, Switzerland) and their review by the Swiss Federal Tribunal pursuant to the Swiss Federal Code on Private International Law. It also describes and compares U.S. courts’ review of international sports arbitration awards pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards as well as domestic sports arbitration awards. Both Swiss and U.S. courts are permitting CAS arbitration awards to establish a developing body of private international sports law that displaces national laws. The author concludes that this is the appropriate jurisprudential view because it is necessary to have universally accepted legal rules and dispute resolution processes for Olympic and international athletic competition, and for the governance of global sports competition to be fair and equitable on a worldwide basis.

The article is forthcoming in the Pepperdine Dispute Resolution Journal. 

In March, after 384 days off the field, Ronaldo entered a soccer stadium again, this time wearing the shirt of São Paulo’s Corinthians for a match in an agricultural town of 95,000 deep in Brazil’s interior. Despite lumbering back some 20 pounds overweight, Ronaldo has scored five goals in seven appearances and tapped into a huge fan base in a nation where soccer is called a second religion. There’s already talk about putting the striker back on Brazil’s national team.

Brazilian soccer star Ronaldo plays for the Corinthians on Tuesday in Brazil.  The rough-and-tumble Brazilian leagues may look to be a huge step down for Ronaldo, who once stayed in five-star hotels from London to Istanbul. But by the accounts of those close to him, the 32-year-old, whose full name is Ronaldo Luís Nazário de Lima, is living a fairy-tale rebound that could happen only in his home country.

The striker’s greatest moment of glory came playing for Brazil in the 2002 World Cup, when he scored twice against Germany’s almost unbeatable goalkeeper Oliver Khan to take the title.

Knee injuries have three times upset Ronaldo’s career. In 2000, he snapped a right-knee tendon, sidelining him for over a year. Last February, his other knee gave in during a match in Italy, and the striker rolled on the ground in tears.  According to Ronaldo’s doctor, Joaquim Grava, Ronaldo’s injury, known as a patellar tendon rupture, is rare but curable with surgery and 10 months of rest. Returning to soccer, says Dr. Grava, is a matter of willpower and grueling therapy.

According to his agent, by last fall Ronaldo was on the mend and entertaining multimillion-dollar offers from the sort of up-and-coming teams in Europe and the Persian Gulf who are always interested in marquee names — even old and bruised ones.

In an unexpected turn, Corinthians made an offer to keep Ronaldo in Brazil. Corinthians couldn’t afford a European-size salary. The club pays him $175,000 a month (still a huge fee by Brazilian standards) and sweetened the deal by sharing sponsorship earnings, and giving Ronaldo 50% of ticket sales from any foreign matches.

Is this a fairy tale or a good negotiation lesson all around?

Cross posted at Indisputably.

That a major league team might be relocated in time for the 1953 season was a frequent topic of Hot Stove League conversation following the conclusion of the 1952 season.  Although no major league team had switched its base city since 1903, the Congressional hearings on baseball conducted by the Celler Committee in 1951 and 1952 had revealed considerable dissatisfaction with the current major league line-up which featured 16 teams in ten cities, none of which were west of St. Louis.  There were three teams in New York, two each in Boston, Chicago, Philadelphia, and St. Louis, with single teams in Cincinnati, Cleveland, Detroit, Pittsburgh, and Washington.  With little support among current owners for increasing the number of major league teams, the logical alternative was to move some of the teams from the multiple-team cities to cities that currently had only minor league baseball.

Much of the speculation focused on St. Louis. 

While St. Louis had been the fourth-largest city in the United States in 1902 when the American League’s Milwaukee Brewers moved there to compete with the National League’s Cardinals under the new name of the Browns, St. Louis’ growth had not kept pace with that of other cities in the first half of the twentieth century.  Many observers questioned the wisdom of continuing to have two teams in the Gateway city.  On September 23, 1952, the New York Times reported that the St. Louis Cardinals might be Milwaukee bound because of disagreements regarding their lease of Sportsman Park which was owned by their American League counterparts, the Browns.  (Milwaukee’s new Milwaukee County Stadium made the city a particularly attractive destination for a baseball team needing a new home.)  A December 23, 1952, story in the Washington Post predicted that it would be the St. Louis Browns, not the Cardinals, that would be moving to Milwaukee within the next two or three years.  (The Browns were then owned by Bill Veeck, the former owner of Milwaukee’s minor league team, the Brewers.)

The situation came to a head dramatically on January 28, 1952, when Cardinal owner Fred Saigh pled “no contest” to charges of income tax evasion in federal court in St. Louis and was sentenced to 15 months in prison.  Fearing that his fellow owners would strip him of his franchise, Saigh immediately agreed to give up control of the Cardinals and to sell his 90% ownership stake in the team.  At that point several Milwaukeeans, anxious to have major league baseball return to their city, undertook to bring the Cardinals to Wisconsin.

A January 30, 1953, New York Times article identified Fredrick C. Miller of the Miller Brewing Company, as one of several individuals reportedly interested in purchasing the Cardinals.  Actually, by that date, Saigh had already offered to sell the Cardinals to Miller for $4.5 million dollars, but Miller had balked at the price.  The Milwaukee Journal reported that same day that Miller had declined Saigh’s initial offer, but the paper was optimistic that a deal could still be worked out.  Almost immediately after Miller declined Saigh’s initial offer, a “Milwaukee syndicate” (which may have included Miller) made a “feeler offer” for the team that Saigh rejected.  Potential buyers from Houston and St. Louis were also bidding for the team, and on January 31, the Associated Press reported that several “undisclosed groups” had made offers to purchase the club but that Saigh intended to sell to St Louis interests.

In spite of the reports that he intended to keep the team in St. Louis, Saigh continued to negotiate with the Milwaukee group which offered $4.1 million dollars for the Cardinals during the first week of February.  On February 14, Saigh was apparently close enough to accepting the Milwaukee offer that Cardinal front office employees were told that if they wished to move with the club to Milwaukee their moving expenses would be paid by the team.   However, his reluctance to sell the team to owners who would move the club away from St. Louis led Saigh to put the Milwaukee offer on hold while he continued to search for a local buyer.

No one has convincingly explained Saigh’s refusal to sell the team to the Milwaukee buyers.  On February 21, the United Press reported that a week earlier Saigh had been close to agreeing to transfer the Cardinals to the Milwaukee ownership group.  According to the UP Saigh had advised the Anhauser Busch representatives that he was about to close a deal with the Milwaukee group, and if the St. Louis-based brewery wanted the team it would have to act immediately.  And it did, offering Saigh $3.75 million for the team, a figure less than the Milwaukee offer, but apparently large enough to satisfy Saigh.  The same day, the Wisconsin State Journal, a Madison daily, quoted Saigh as saying that once he had an outside bidder willing to pay a fair price for the club, he offered it to Anheuser-Busch at the same price.  The outside bidder was not identified but the way the story is positioned on the paper’s sports page, it seems clear that most readers would know that the buyer was from Wisconsin.

Saigh may well have been using outside bidders from Milwaukee (and possibly other cities) to establish a market price for the team and to convince local bidders that even though he was being forced to sell the team, he was not going to sell it for a fire-sale price.  By mid-February he clearly intended to sell the Cardinals to a St. Louis buyer if one could be found who was willing to pay close to the team’s actual value.  And when he found such a bidder in Auggie Busch, he sold him the team.  This was Saigh’s own explanation and one accepted by most sports journalists at the time.

However, it is also possible that Saigh, desperate to extricate himself from an embarrassing situation, was worried that his fellow owners might veto the sale of the popular Cardinals to individuals who planned to move the team.  Although the Cardinals had attendance issues in St. Louis, they were one of the most widely-followed teams in the United States and had an extraordinarily large fan base in the South and in the states of the western plains.

If this had been the case, and had Saigh sold the team to the Milwaukee buyers anyway, then it seems likely that the owners would have failed to approve the sale.  A second possible obstructionist scenario would have involved the minor league Milwaukee Brewers (owned by Lou Perini who also owned the major league Boston Braves).  Under the terms of the National Agreement (the contract arrangement that bound together the major and minor leagues) the Brewers could have invoked their territorial rights to block the movement of another organized baseball team into their territory.  If either of these scenarios had occurred the new Milwaukee owners would have had strong reasons to bring suit against organized baseball under the federal antitrust laws.  Such an action almost surely would have been brought in federal court in Wisconsin, where a sympathetic judge and jury were likely to be found.

If such a suit had been filed in 1953, what would have been the result?

One might think that organized baseball would have been insulated from such a lawsuit because of its antitrust exemption.  However, in January and February of 1953, the baseball antitrust exemption was anything but secure.  The Toolson v. New York Yankees decision that would confirm the exemption would not be handed down until the following November, and many observers in 1953 expected the baseball antitrust exemption to go the way of the insurance and manufacturing antitrust exemptions and other pre-New Deal limitations on the scope of the Sherman Act.

Four years earlier, the prestigious United States Second Circuit Court of Appeals had ruled in the case of Gardella v. Chandler that Major League Baseball was no longer exempt from the federal antitrust laws, and baseball had decided not to challenge that ruling by bringing the matter before the Supreme Court.  Moreover, when dealing with broadcasting issues involving Major League Baseball and the National Football League in the early 1950’s, the Justice Department had consistently taken the position that the Sherman Act clearly now applied to organized baseball, at least in regard to broadcasting issues.

On the other hand, in December 1952, the Ninth Circuit Court of Appeals had ruled that the antitrust exemption created by the 1922 Supreme Court decision in Federal Baseball was still valid.  On February 20, 1953, just as Fred Saigh decided to reject the Milwaukee offer to purchase the Cardinals, the Sixth Circuit reached a similar decision upholding the continued validity of the exemption.

The confusion was resolved that November when the Supreme Court ruled 7-2 in Toolson v. New York Yankees that the baseball antitrust exemption survived, at least until Congress chose to repeal it.  However, Toolson and its two companion cases involved issues related to the operation of minor league baseball, an institution somewhat irrationally valued by many Americans and whose continued existence could be threatened by the application of the antitrust laws to the web of restrictions on players and team owners that made it viable.  None of the three touched on the issues of territorial exclusivity or the relocation of major league franchises.  While the Milwaukee case would have arisen too late to be consolidated with Toolson, the existence of a franchise relocation case hovering in the background might have prompted several of the Supreme Court justices to view the issues in a different light.

Had the owners nixed the transfer and had the Milwaukee interests sued Major League Baseball under the Sherman Act, the entire history of baseball and antitrust might have turned out differently.

As it turned out, Milwaukee baseball fans quickly forgot about the Milwaukee Cardinals.  On March 18, 1953, only a month after Fred Saigh turned down the Milwaukee offer, Lou Perini, the owner of the woeful Boston Braves, announced that the Braves were moving immediately to Milwaukee and would play there during the 1953 season.  (Because Perini also owned the Milwaukee Brewers, there was no issue of territorial exclusivity.  The minor league Brewers were quickly dispatched to professional baseball-less Toledo, which was happy to take the team.)

Almost as quickly as the disappointing saga of the Milwaukee Cardinals ended, the glorious saga of the Milwaukee Braves began.  Playing in their new stadium, the Braves quickly shattered the all-time major league attendance record and within four years were playing the New York Yankees in the World Series.  The Cardinals did not make it back to the World Series until 1964.

Although the major league owners readily approved the transfer of the Braves from Boston to Milwaukee, it is not necessarily the case that they would have approved the transfer of the Cardinals.  In 1952, the American League owners rejected St. Louis Browns owner Bill Veeck’s various proposals to move the Browns to Milwaukee, Los Angeles, Miami, or Baltimore, but Veeck was especially disliked by his fellow owners, who may have opposed his proposals on purely personal grounds.  Although the Cardinals were not drawing exceptionally large crowds in the early 1950’s, they were not an economic basket case like the Boston Braves or the Browns.  (In 1952, the Cardinals averaged just under 12,000 fans per game, fourth best in the National League. The Braves, in contrast, averaged only 3600 fans and the Browns only 6600.)

It is also interesting to speculate what might have happened had the Cardinals, not the Braves, moved to Milwaukee in 1953.  The Browns almost certainly would have stayed put in St. Louis.  Lou Perini, the owner of the Braves, was exploring the option of moving to San Francisco (as well as Milwaukee) in 1953, and presumably would have moved to San Francisco, if not in 1953 then in some year thereafter.  The New York Giants seriously contemplated relocating to Minneapolis in the mid-1950’s, and with San Francisco occupied by the Braves, they would have likely moved to the Twin Cities as their attendance in New York continued to plummet.  Baseball could well have ended up with the Minneapolis Giants and the San Francisco Braves.

Given the well-documented recalcitrance of Robert Moses and Walter O’Malley, the Dodgers would have still moved to Los Angeles in 1957, but the Senators might have stayed in Washington, D. C., particularly if Minneapolis was already taken by the Giants.  Rather than move to Kansas City, the Philadelphia Athletics might simply have relocated down the road to Baltimore, where they probably would have retained the Athletics name.  By 1958, the baseball map would have been basically the same as it actually was, with a team in Minneapolis rather than Kansas City being the only difference, but there would have been some very different uniforms.   Whether the Milwaukee Cardinals would have abandoned the Brew City in 1966 for Atlanta is a question the answer to which no one will ever know.

So, a white-collar defense attorney who was a relative unknown in NFL circles is now leading the NFLPA into an uncertain future that features a collective bargaining agreement that expires in 2011, a year without a salary cap in 2010 (under the terms of the current CBA), and an uncertain (at best) worldwide economic climate.

I don’t know that Smith wasn’t the best choice, but I do know that the other candidates — former players Trace Armstrong and Troy Vincent and sports attorney David Cornwell — had strong ties to the NFL. Armstrong and Vincent both are former NFLPA presidents. Cornwell represented several NFL players in a federal lawsuit against the NFL seeking an injunction preventing the NFL from suspending the players for violating the NFL’s drug policy.

I’m skeptical that this is the right time for the NFLPA to bring in an outsider. The NFLPA is only looking for a new executive director because of the unexpected death of Gene Upshaw, who led the NFLPA for twenty-five years. Smith is seemingly taking a hard line with the NFL on the upcoming negotiations and is already talking of “prepar[ing] for war” and “not go[ing] back” to a salary cap if the 2010 season is played without one. Hopefully, Smith’s presentation went beyond hard-line rhetoric and laid out a plan that will ensure the labor peace and economic prosperity that are Upshaw’s legacies. As a fan of the NFL (the Packers, not the Steelers, sorry Professor Schneider), I hope the players made the correct choice for their executive director.

Matt Mitten

The first problem is use of steroids.  Although performance enhancing drugs are often condemned for giving some athletes an unfair advantage, Matt suggests that unfair advantages are an unavoidable feature of intercollegiate athletics, noting, for instance, disparities in coaching and training facilities.  Moreover, after reviewing the medical evidence, Matt concludes that “currently there are no definitive scientific or epidemiological studies evidencing that a healthy adult’s usage of anabolic steroids in appropriate dosages necessarily will have life-threatening or long-term serious health effects.”  But, of course, the absence of conclusive evidence of danger does not mean that steroids are safe.  Given uncertainty, the question is whether athletes should be permitted to decide for themselves whether to bear the risk.

The second problem is participation by student-athletes suffering from a medical condition (e.g., a spinal or cardiovascular abnormality) that may give rise to increased risks of serious or life-threatening injury.  Again, the question is one of paternalism in the face of medical uncertainty: should the athlete himself or herself be given the right to decide whether to bear the risks?  As with the steroid issue, Matt ultimately concludes that the NCAA and individual universities have “valid legal and ethical authority” to protect student-athletes from themselves.

I don’t believe that any serious observer is recommending that the presence of offending players be somehow expunged from the score sheets of games played in that era.  This would be neither possible nor desirable.  It is also completely without precedent.  Although it has been frequently reported over the years that the midget Eddie Gaedel who played one game for the St. Louis Browns in 1951 was retroactively banned from baseball and his one at bat (a walk) stricken from the baseball records, apparently no such action was taken (although his contract was voided, and he was banned from playing in future games).

There is, however, considerable sentiment for altering the “record book” so that the names of steroid-using players like Bonds, McGwire, Sosa, and Clemens could be expunged from the lists of exceptional performances, or, if not expunged, at least marked with an asterisk.  The agencies that run the world of track and field have been doing this for a very long time.  New world records have bet set, and then unset, once the presence of steroids was detected.

The problem with this approach — the elimination of records set by players who are known to have used steroids — is that while we know the names of some steroid users, we clearly do not know the names of all players whose performances received a significant boost for PEDs.  We probably will never know all of the names.  To merely delete the names of known users would end up rewarding those steroid users who were clever enough to avoid detection. 

My suggestion is that we bracket off an entire era including the years 1993-2003 and either refuse to recognize or place an asterisk by any record that was compiled in whole or in part during this period.  While it appears that steroids and other PEDs had their greatest effect in regard to power hitting, I believe that all records were affected.  While this is unfair to record-setting players who are widely believed to have avoided such substances (like Greg Maddux and Ken Griffey, Jr.), they are the unfortunate victims of the illegal behavior of their contemporaries.  By record setting, I mean performances that place players among the all-time leaders in standard categories.

Such an approach is not entirely without precedent.  I was born in 1952 and throughout my youth and early adulthood, it was widely accepted, though perhaps not officially sanctioned, that the only legitimate major league records were those that had been set in the twentieth century.  Consequently, the record for most wins in a season was Jack Chesbro’s 41, compiled in 1904, not Hoss Radbourne’s 60 (or 59) from 1884, or even  Bill Hutchison’s 44 in 1891.  Similarly, the record for the highest single season batting average was Rogers Hornsby’s .424 from 1925, not Hugh Duffy’s .438 (or .439) from 1894. 

Career records did not seem disabled in quite the same way.  Cy Young’s 510 wins was recognized as the career record, as was Sam Thompson’s record  of 309 career triples, even though both men had played a portion of their careers before 1900.  (Thompson played only a single season before 1900, but Young played ten during which he won 267 games.)  It was also never clear to me if for these purposes the twentieth century began in 1900 or 1901.  It made sense that 1901 would be the first “legitimate” year since everyone at the time thought that the twentieth century began on January 1, 1901, plus 1901 was the year that the American League proclaimed itself a major league and established the two major league set-up that continues to the present.  However, because no record was set in 1900, the issue was moot.

Under my proposal, Barry Bonds would still be recognized as having hit 73 home runs in 2001 and 762 home runs in his career, but the single season record for home runs would be Roger Maris’s 61 in 1961.  (The 60+ home run years of McGwire and Sosa would also be eliminated because they occurred between 1993 and 2003.)  The career home run record would revert to Hank Aaron’s 755, as I would extend the bracketing to career records as well.

Obviously, there is a difference between bracketing off 1889-1899 (or 1876-1899, depending on when one starts the history of major league baseball) and doing the same to 1993-2003 since there was no major league baseball before the nineteenth century.  But the 93-03 period is properly thought of as the lost years of major league baseball.  I know that I try to think about that period as little as possible.

DOPING IN SPORTS: LEGAL AND ETHICAL ISSUES

Federal Labor Law Obstacles to Achieving a Completely Independent Drug Program in Major League Baseball, Robert D. Manfred, Jr

Corruption: Its Impact on Fair Play, Richard H. McLaren

Dopers Are Not Duped: USADA’s Assistance to Federal Prosecutions Ultimately Protecting Clean Athletes Is not State Action, Sarah L. Horvitz, Travis Tygart & Paul A. Turbow

The International Convention Against Doping in Sport: Is it the Missing Link to USADA Being a State Actor and WADC Coverage of U.S. Pro Athletes?, Michael Straubel

From Medals to Morality: Sportive Nationalism and the Problem of Doping in Sports, Dionne L. Koller

Are We All Dopes? A Behavior Law & Economics Approach to Legal Regulation of Doping in Sports, Shayna M. Sigman

The Immaculate Deception: How the Holy Grail of Protectionism Led to the Great Steroid Era, Eldon L. Ham

Which Washington: Constitutions in Conflict?, Jonathan F. Duncan & Kristina V. Giddings

The Body and the Law: How Physiological and Legal Obstacles Combine to Create Barriers to Accurate Drug Testing, Genevieve F.E. Birren & Jeremy C. Fransen

Fall of the Rocket: Steroids in Baseball and the Case Against Roger Clemens, Daniel Healey

ESSAY
A Call for Drug-Testing of High School Student-Athletes, Scott A. Andresen

SPEECH
2008 Joseph E. O’Neil Award Acceptance Speech, Honorable Anne Burke

BOOK REVIEW
Asterisk: *Home Runs, Steroids, and the Rush to Judgment, Will Pridemore

INDEX
Sports Law in Law Reviews and Journals, Brian C. Hartley