The Faculty Lounge

Babe Ruth’s Candy Bar

The distinguished sportswriter and baseball biographer Jane Leavy has a new book out on Babe Ruth. It’s called The Big Fella: Babe Ruth and the World He Created. Leavy’s book is a New York Times best seller, just like her biographies of Sandy Koufax and Mickey Mantle.

Brian Lamb interviewed Leavy on his CSPAN program Sunday night. During the interview she told the interesting story of the legal battle between Babe Ruth and the makers of the Baby Ruth candy bar.

The candy, which is still made today, became a tremendous commercial success at the exact moment that George Herman “Babe” Ruth Jr. became the biggest superstar in baseball history. The timing was probably not a coincidence.

Otto Schnering—owner of the Curtiss Candy Company of Chicago—insisted that the candy’s name referred to former President Grover Cleveland’s daughter, Ruth, who was born in 1891. But the only thing that rang true about Schnering’s claim was that the Cleveland baby was known as “Baby Ruth” at the time of her birth. The rest of his story did not hold up.

It’s Not Just Football

If recent history is any guide, the National Football League’s AFC and NFC championship games on Sunday afternoon will be viewed by over 60 million people. Viewership for the Super Bowl on February 3 will likely exceed 100 million. When combined with gate receipts and merchandising, the television viewership translates to massive revenues for NFL owners. In 2017 alone the NFL generated $14 billion in revenue, the most of any professional sports league in North America.

But no one can confidently predict what football’s long-term future holds. Yesterday ESPN’s website posted a fascinating and important piece on the disappearing insurance market for football. The article, which is titled For the NFL and all of football, a new threat, is authored by Steve Fainaru and Mark Fainaru-Wada. In 2014 they wrote the book League of Denial: The NFL, Concussions, and the Battle for Truth, which detailed the NFL’s unconscionable campaign to conceal the scale and gravity of the health threat posed by sports-related concussions.  

The ESPN article explains how the rising tide of concussion-related lawsuits has driven insurers to flee the football marketplace. As Fainaru and Fainaru-Wada explain:

The Court Martial of Jackie Robinson

Seventy-four years ago tonight 2nd Lieutenant Jack Roosevelt Robinson, an African-American army officer from California, refused to move to the back of a military bus at Camp Hood, Texas. Robinson’s courageous and principled decision set off a legal controversy that nearly changed the course of American history.

Justice Scalia on Arbitrary Sports Rules

On Sunday Russia defeated Spain in the World Cup, pulling off one of the biggest upsets in soccer history. After 90 minutes of regulation play and 30 minutes of extra time, with the teams deadlocked 1-1, the game came down to a penalty kick tiebreaker. Five Russian and five Spanish players took turns trying to kick the ball past the goalies from 12 yards out. By the time the shootout ended, the Russians managed to score 4 goals, one more than the Spanish squad. When Russia’s goalie blocked Spain’s fifth and final penalty kick, all of Russia erupted in celebration.

The match’s outcome revived a long-standing debate over the fact that FIFA, the governing body of international soccer, breaks ties (or “draws,” in the parlance of international football) through penalty kick shootouts. The tiebreaker format strikes many as inconsistent with the team-oriented nature of soccer, particularly because the shootout involves an individual contest between a kicker and a goalie. Consequently, soccer purists view penalty shootouts as an arbitrary way to end a match, especially one as important as a World Cup elimination game.

But are the critics right that soccer shootouts are arbitrary? The late Justice Antonin Scalia would likely have said that the critics have missed the larger issue. He believed that all sports rules were arbitrary by their very nature, a point he made in an interesting Supreme Court case.

Head Trauma, OSHA, and Professional Sports

Despite the growing evidence of the dangers of sports-related head trauma, a major professional sports league continues to brazenly deny the extent of the risk posed to its players. Yesterday the Washington Post published an important op-ed by Ken Dryden titled, “The National Hockey League is skating around the brain-injury problem.” In his essay, Dryden blasts the NHL for questioning the scientific evidence of a connection between athlete head injuries and chronic traumatic encephalopathy (“CTE.”). The NHL’s minimization of brain injuries coincides with a timely new article in the Arizona Law Review that makes a persuasive case why even a modest intervention by the Occupational Safety and Health Administration could transform professional football and give rise to a safer workplace for players. The same logic would seem to apply to professional hockey. 

Maynard on "How the NCAA Infringes on the Freedom of Families"

_{Goldburn P. Maynard Jr. (Louisville) has published in the Wisconsin Law Review Online his essay "They're Watching You: How the NCAA Infringes on the Freedom of Families."  Here is an excerpt:}

_{This Essay argues that the NCAA’s surveillance of the family and enforcement of its rules amount to a sumptuary restraint on the families of talented NCAA athletes. In order to keep its cartel in place, the NCAA must bar not only the athlete but everyone in his family from extracting any value from his talent. Luxury purchases are in effect barred for poor families. This is where the NCAA’s enforcement and investigative arms step in. Disproportionately, the families of black athletes are put on notice that any signs of extravagant consumption (that is, beyond the level they should be able to afford) will lead to investigations and potential suspensions. At the moment when these families should be happiest, they have to worry lest they give off any appearance of living beyond their means. I argue that the NCAA’s rules disproportionately disadvantage poor individuals of color. This underscores the inherently unjust nature of the college sports system and the complicity required to keep it in place. * * *}

_{The NCAA’s rules affect all athletes, but they disproportionately disadvantage black ones. Once we limit the college athletic arena to the big sports (i.e., football and basketball) and the revenue generating schools, the statistics are stark. A recent study by Shaun Harper found that black men made up only 2.5 percent of undergraduate students enrolled across all 65 such institutions, but they comprised 56 percent of basketball teams and 60 percent of football teams. The study also showed that 16 percent of those coaches at these schools were black. The average salary for the 65 athletics directors in the major conferences was $698,755, but just 14.7 percent of them were black. And none of the commissioners of those conferences, who earned on average $2.58 million annually, were black.}

Citations omitted. The full essay is available here.

The essay draws on financial history, sports law, family law, theories of punishment/discipline and critical race theory to provide a new spin on a topic that may be familiar to many sports fans. In a footnote, the author acknowledges that the University of Louisville is currently subject to NCAA sanctions and has weathered quite a few NCAA scandals (see, e.g., here). It is not lost on me that I’m a professor at a school currently suffering sanctions.  Professor Maynard writes, "Fortunately, the NCAA has made itself so unpopular that no one should suspect that there is a causal connection" between his employer and his criticism of the NCAA.

The Baseball Rule

Today is Major League Baseball’s opening day, a tradition that dates back to the 19th century. But this season is unique because it will likely be safer for fans than any other in the sport’s modern history.

Race, law, and the Super Bowl

The Super Bowl is the National Football League’s championship game, an advertising extravaganza in which 100 million television viewers are expected to watch the New England Patriots and the Philadelphia Eagles compete for the Lombardi trophy.

However, the Super Bowl was not always the NFL’s championship game. In its earliest days, the Super Bowl pitted the NFL champion against the champions of a completely different league: the American Football League. The rivalry between the NFL and AFL is not only an interesting chapter in sports history, but also a turning point in the racial dynamics of professional football, one with ramifications that are still felt today.

Super Bowl Week OpEd

As the Super Bowl approaches, Phil Cook and I have an OpEd running in the Raleigh News & Observer and other venues. Below is a taste, but you can read the whole thing here. Our paper on this topic, forthcoming in Law & Contemporary Problems, is available here. 

Why ban payment to kidney donors but not football players?

BY PHILIP J. COOK AND KIMBERLY D. KRAWIEC 

February 01, 2018 01:06 PM

Super Bowl week rivets national attention on America’s most popular and lucrative sport, professional football. If stories of concussion and permanent injury to players make some fans uneasy, there is always the reassuring fact that the players volunteer for the job and are well compensated – so well compensated that there are untold thousands of young men who would gladly take their place.

Football is so ingrained in our culture that we generally accept this situation without much scrutiny. However, our research got us thinking about the stark contrast with another risky but valuable activity – kidney donation.

About 6,000 people per year donate one of their two kidneys. This selfless act has some risk to the donor, both from the surgery and years later when there is a chance the remaining kidney will fail. In return, kidney donors are rewarded with the knowledge they helped save the life of a loved one. They receive nothing tangible. Indeed, federal law bans compensation for kidney donors, as do the laws of all other countries except Iran (really).

So, why do we pay football players to entertain the public, but are unwilling to pay kidney donors to save lives?

The stakes in both cases are high, but much higher in kidney donation. The total value of NFL teams is about $60 billion. If, in some unlikely future, the risk of serious permanent injury to players led to a ban on professional play, that value would be destroyed.

Meanwhile, the ban on compensation for living kidney donation currently costs thousands of lives and billions of dollars in taxpayer money every year. The waiting list for a kidney now includes 100,000 patients, who for the most part are kept alive by renal dialysis at federal government expense. If they survive long enough, typically more than five years, in this debilitated state, they may hope to rise to the top of the list and receive a kidney from a deceased donor.

. . . 

Millions of Americans, not just NFL players, work in occupations that have a substantial risk of serious injury. Loggers, fishermen and others accept these risks in exchange for compensation. Extending that list to include kidney donors is just common sense.

PHILIP COOK IS TERRY SANFORD PROFESSOR EMERITUS OF PUBLIC POLICY AND PROFESSOR OF ECONOMICS AND SOCIOLOGY AT DUKE UNIVERSITY’S SANFORD SCHOOL OF PUBLIC POLICY. KIMBERLY KRAWIEC IS THE KATHRINE ROBINSON EVERETT PROFESSOR OF LAW AT DUKE LAW SCHOOL.

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too: Wrap-Up

In this series of posts, I’ve discussed a new draft that Phil Cook and I are circulating, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?. Our claim, which I laid out in my first post, is that there is a stronger case for compensating kidney donors than for compensating participants in violent sports. If this proposition is accepted, one implication is that there are only three logically consistent positions: allow compensation for both kidney donation and for violent sports; allow compensation for kidney donation but not for violent sports; or allow compensation for neither. Our current law and practice is perverse in endorsing a fourth regime, allowing compensation for violent sports but not kidney donation.

A common argument in support of the ban on kidney donation is that if people were offered the temptation of substantial compensation, some would volunteer to donate against their own “true” best interests. This argument is often coupled with a social justice concern, namely that if kidney donors were paid, a large percentage of volunteers would be poor and financially stressed, and for them the offer of a substantial financial inducement would be coercive. In sum, a system of compensated donation would provide an undue temptation, and end up exploiting the poor.

To these arguments we offer both a direct response, and a response by analogy with violent sport. My posts have touched on a few key points. First, the medical risks to a professional career in football, boxing, and other violent sports are much greater both in the near and long term than the risks of donating a kidney. On the other hand, the consent and screening process in professional sports is not as developed as in kidney donation. The social justice concerns stem from the fact that most players are black and some come from impoverished backgrounds.

Note that these arguments focus on the donors’ welfare, and ignore the welfare of people in need of a kidney. A comprehensive evaluation of amending NOTA to allow compensation requires that both groups be considered. Such an evaluation, conducted by Philip Held and colleagues, reached the following conclusion about a regime in which living donors were offered enough compensation ($45,000) to end the kidney shortage: “From the viewpoint of society, the net benefit from saving thousands of lives each year and reducing the suffering of 100,000 more receiving dialysis would be about $46 billion per year, with the benefits exceeding the costs by a factor of 3. In addition, it would save taxpayers about $12 billion each year.”

As stated by Held et. al., “dialysis is not only an inferior therapy for end-stage renal disease (ESRD), it is also almost 4 times as expensive per quality-adjusted life-year (QALY) gained as a transplant.” This means that the Medicare (which pays for the bulk of ESRD treatments) dollars currently spent on dialysis could be reallocated to compensating kidney donors, saving lives and tax dollars in the process. 

As I said, even a series of posts gives only an introduction to our arguments and evidence, so download the full paper here.

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Paying Kidney Donors, Football Players, And Boxers: Informed Consent And It’s Limits

Paying Kidney Donors, Football Players, And Boxers: Exploitation, Race, Class

Paying Kidney Donors, Football Players, And Boxers: Exploitation, Race, Class

In prior posts, I introduced the question, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?, and argued that the medical risks to a professional career in football, boxing, and other violent sports are greater than the risks of donating a kidney and that the consent and screening process in professional sports is not as developed as in kidney donation.

Although the primary focus of our paper is on the medical risk associated with living kidney donation, we also briefly discuss concerns about exploitation, coercion, race, and class, again with an analogy to violent sports. Living kidney donors in the United States have above-average incomes (after adjusting for sex and age). In a new regime in which donors were paid a substantial fee, it is predictable that the influx of volunteers would have below-average incomes. The prospect of financially stressed individuals attempting to make ends meet by “selling” a kidney raises a red flag for some ethicists. A compensation regime would expand the choice set for those in comfortable circumstances, but those in desperate circumstances might feel compelled to sell a kidney; in that sense, the option of selling could be seen as “coercive.” Furthermore, a system that in part depended on the poor to supply kidneys could be seen as “exploiting” the poor.

We believe that using words like “coercion” and “exploitation” to characterize the introduction of a new option by which poor people (and others) could earn a substantial amount of money provides more heat than light on this situation. The legitimate ethical concern is that so many Americans are poor, with inequality increasing over time. But that observation does not support a ban on compensation, which in fact limits the options available to the poor and thereby makes a bad situation (their lack of marketable assets) worse. But for anyone not persuaded by this argument, we note that these social-justice concerns apply with at least equal force to compensating boxers; most American professional boxers were raised in lower-income neighborhoods, and are either black or Hispanic.

As more has become known about the dangers of the repeated head trauma, similar arguments regarding football have become more prominent. About 70% of NFL players are black, and Pacific Islanders are also overrepresented as compared to the American population. Accordingly, much attention has been paid to the concussion crisis as a race and class problem. As one observer recently noted, “What’s a little permanent brain damage when you’re facing a life of debilitating poverty?” In reality, NFL players are better educated themselves, and come from better educated homes, than is average for Americans, in part because the NFL typically recruits college students. Still, some NFL players, like some would-be kidney donors, come from poverty.

Of course, this is only a taste of our arguments and evidence, so read the full paper here. In my next post, I’ll recap and wrap up.

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Paying Kidney Donors, Football Players, And Boxers: Informed Consent And It’s Limits

Paying Kidney Donors, Football Players, And Boxers: Informed Consent And It’s Limits

In prior posts, I introduced the question, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?, and argued that the ban against paying kidney donors cannot rest on the basis of medical risk when we pay professional athletes to incur far greater risks. Today, I will talk about the consent process and the extent to which we might expect the system to protect participants – whether organ donors or professional athletes – from making bad choices against their own interests in exchange for the lure of money.

We believe that if NOTA were amended to allow payments to donors, potential kidney donors could be protected against being unduly tempted through the existing structure of screening, counseling, and delay, perhaps with some additional protections to prevent hasty decisions. On the other hand, it is not clear that NFL recruits have such protections in place.

Whether and when sane, sober, well-informed, adults should be banned by government authority from choosing to engage in an activity that risks their own life and limb is an ancient point of contention. There are a variety of hazardous activities that are permitted with no legal bar to receiving compensation. Included on this list are such occupations as logging, roofing, commercial fishing, and military service. Also included are violent sports such as football, boxing, and mixed martial arts (MMA). These examples illustrate a broad endorsement of the principle that consenting adults should be allowed to exchange (in a probabilistic sense) their physical health and safety for financial compensation, even in some instances where the ultimate product is simply providing a public entertainment.

One potentially distinguishing feature of kidney donation is that the harm is not the result of an accident, but rather of the deliberate action (of the surgeon and medical team). But this is also the case with fighting sports and with egg donors, who are compensated.

It is helpful to deconstruct the decision to donate a kidney under both the current regime (no compensation) and a hypothetical regime (in which the donor would be financially compensated). A well-developed organ procurement process in the American system seeks to ensure that potential donors are fully capable of making a good decision. Potential kidney donors are not only provided with full information, but also screened for mental and physical disability. While there is the possibility of “mistakes” (a decision to donate against the true best interests of the individual) under both a compensated and uncompensated system, the screening, consent process, and delays should minimize the chance for the kind of errors that behavioral economics has demonstrated are common. There is nothing intrinsically irrational about a willingness to assume medical risk in exchange for a substantial amount of money. But the quality of the choice may be influenced by a variety of factors, and we recommend some “nudges” designed to overcome the most common causes of faulty decision-making under such circumstances.

The same concerns that apply to the quality of kidney donor decisions also apply, and more obviously, to the decision to sign a contract to play in the NFL. Yet the consent and screening process in professional sports is not as developed as in kidney donation. Players are provided with little information about the risks, and indeed, the longer-term risks (including the risk of CTE in middle age) have not been well quantified, but appear to be far higher than for kidney donation. The payoff in both financial terms and status is also very high, and in part conveyed immediately. Any counseling or screening that might occur is up to the player to pursue.

In short, to the extent that the ban on compensated kidney donation is grounded in a concern that the lure of money may cause donors to disregard the risks of the procedure and subsequent long-term effects, that concern applies with even more force to participation in violent sport.

This, of course, is just a taste of our analysis and evidence, so read the full paper for more.

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Related articles

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Yesterday, in If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too, I introduced a new paper, written by Phil Cook and me, arguing that the case for paying kidney donors is much stronger than the case for paying participants in football, boxing, and other violent sports, and promising to follow up with subsequent posts outlining our arguments and evidence. 

Today, I’ll discuss the central argument in our paper: the medical risks to a professional career in football, boxing, and other violent sports are much greater both in the near and long term than the risks of donating a kidney. Injuries in such sports are common, and retired players are very often disabled by the long-term effects of these injuries as well the cumulative effect of thousands of blows to the body.

One challenge in making a meaningful comparison between the risks entailed in kidney donation and the risks entailed in participation in contact sports is that the latter may stretch out for many years and involve not one choice (donate or not) but rather a series of choices regarding participation. While it is difficult to quantify these effects in a way that provides a natural comparison with kidney donation, we provide some statistics that suggest that, for example, a man who signs a contract to play in the NFL for a year is consenting to be exposed to far greater medical risks than someone who volunteers to donate a kidney.

We focus our analysis on football, because the epidemiology of injury and disability is better developed than for fighting sports. It is worth noting, however, that there has always been concern about the risk posed by fighting sports, and that concern has accelerated in recent years, due to a better understanding of the long-term effects of head trauma. As a result of these risks, medical associations around the world, including the American Medical Association and various state medical associations, have called for limitations or bans on boxing and MMA.

As to kidney donation, we analyze both the post-operative risk from surgery and the post-recovery chance of death or disability resulting from loss of function of the remaining kidney. Both risks – while greater than zero -- are quite low, both in an absolute sense and in comparison to the typical risks of participation in violent sport. For example, post-operative complications (most of them minor, such as bleeding or wound infection) are present in 7.3% of cases, and donors face a higher cumulative incidence of end stage renal disease than nondonors – 0.31% versus 0.04%. While that risk is thus significantly elevated for donors, it remains very low in an absolute sense, representing an increased chance of about 1 in 400.

With respect to football, we discuss injury rates at the youth, high school, collegiate, and professional level. While that data is far too extensive to fully discuss here, I’ll provide a few highlights:

• In 2016, the 2,274 active players in the NFL experienced 2066 injuries during the preseason and regular season, 244 of which were concussions. That’s .073 concussions per player-season – about equal to the rate of surgical complications (most commonly, minor complications, such as bleeding or wound infection) in kidney donation.
• Official injury reports and survey information suggest that for a substantial majority of former players, injuries ended their career or contributed to the decision to end their career. Nine of 10 former players have nagging aches and pains from football when they wake up, and for most the pain lasts all day. For those age 30-49, the ability to work is impaired by injury.
• A recent postmortem study of a sample of donated brains of former NFL players found that 110 of 111 indicated either mild or (more commonly) severe CTE.

This last point requires some explanation, because the findings do not imply that 99% of former NFL players will have CTE. The brains in the study were voluntarily submitted for examination by family members who were often motivated by a desire to know the cause of their loved ones dementia or other neurological problems. But the 111 brains do represent 8.5% of the 1300 former NFL players who died during the period that these brains were donated. That places something of a logical lower bound on the prevalence of CTE. Presumably the true prevalence is much higher than 8.5%.

While it is not possible to do a precise “apples to apples” comparison of the medical risks associated with kidney donation` and the risks associated with a professional football career, it seems clear that the acute risk of injury and of long-term disability are far higher for the football player. As discussed above, most NFL veterans live out their lives following retirement with serious physical and mental disabilities. The vast majority of kidney donors lead entirely normal lives following recovery from the initial operation.

In other words, the ban against paying kidney donors cannot rest on the basis of medical risk when we pay professional athletes to incur far greater risks. This is just a short preview of the evidence on medical risk, so read the whole paper, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Having concluded that simply advocating for compensated kidney donation was not sufficiently controversial, Phil Cook and I are now turning our sights on professional sports – specifically, professional football and boxing. In a piece just posted to SSRN, we contrast the compensation ban on organ donation with the legal treatment of football, boxing, and other violent sports in which both acute and chronic injuries to participants are common. While there is some debate about how best to regulate these sports in order to reduce the risks, there appears to be no serious debate about whether participants should be paid. Indeed, for the best adult football players, college scholarships and perhaps a professional contract worth multiple millions are possible.

Phil and I will likely spend part of the winter break as television viewers contributing to the NFL teams’ collective $56 billion valuation. But our position on paying kidney donors saves us from hypocrisy. If, however, you are one of the many, many people who believe it is unethical to compensate kidney donors, then you should be out protesting the NFL. And don’t even think about watching the latest boxing or MMA matches.

Over the next couple of posts, I’ll outline the gist of our argument and evidence. We focus on the core argument for a ban on compensation for kidney donation, namely the paternalistic concern that even well-informed adults will sometimes be enticed by a financial reward to donate a kidney when in fact that is not in their “true” self-interest. In this view, the allure of money, especially for those who are in debt and struggling to make ends meet, will overcome good sense, leading to “exploitation” and even “coercion” to which people with less income and education are particularly vulnerable. But the same concerns apply with still greater force to participation in violent sports. Whatever one concludes about the ethics of regulating risky choices, and the problematic aspects of choices involving money and risk, the current circumstance – ban compensation for kidney donors, permit compensation for participation in violent sports – appears difficult to defend.

Over the next few days, I’ll touch on these key points: the medical risk to participants, the consent process, social justice concerns, and social welfare considerations. The medical risks to a professional career in football, boxing, and other violent sports are much greater both in the near and long term than the risks of donating a kidney. On the other hand, the consent and screening process in professional sports is not as developed as in kidney donation. The social justice concerns stem from the fact that most players are black and some come from impoverished backgrounds. Finally, the net social benefit from compensating kidney donors – namely, saving thousands of lives each year and reducing the suffering of 100,000 more receiving dialysis – far exceeds the net social benefit of entertaining the public through professional sports.

Download the piece here. And check back in over the next few days for subsequent posts.

Perry Wallace (1948-2017)

Michael Bressman sends along the sad news that long-time American University law professor Perry Wallace has passed away.  Though people in the academy knew Wallace as a scholar of environmental and corporate law, he blazed other paths as a young man.  In 1967 he was the first African American basketball player in the SEC, when he played for Vanderbilt University, where he was an engineering student.  The Washington Post has a moving reviewing of a Andrew Maraniss'  2014 biography of Wallace, Strong Inside: Perry Wallace and the Collision of Race and Sports in the South.  Cribbing now a little from the review, as it discusses an away game he played in Oxford, Mississippi, at Ole Miss:

Wallace recalls people in the crowd screaming, “We’ll lynch you, boy!”

Shortly before halftime came a blow “so fast that no one knows who threw the elbow,” Maraniss writes. It drew blood, to the delight of some of the spectators. When halftime ended, Wallace was left alone in the locker room with a bag of ice and a swollen eye. He was “shaken not just by the physical blow but by the relentless taunting. . . . He could hear the Ole Miss crowd react when his teammates returned to the court without him: “Did the nigger go home? Where’s the nigger? Did he quit?”

Wallace, who had become the first black player in the Southeastern Conference two years earlier, returned to the game and helped Vanderbilt win, but no one from his team accompanied him back to the court. “He understood more clearly than ever that his journey as a pioneer was one that he would be making alone.”

Wallace was drafted by (my beloved) 76ers but he went a different path -- to Columbia Law School, where he graduated in 1975, then to Washington, DC, in the executive office of Mayor Walter Washington, then to George Washington University where he taught and served as assistant director of the Department of Experimental Programs, and then to the Department of Justice as a trial lawyer for five years.  Wallace began teaching at the University of Baltimore in 1985 and moved to American University in 1992.

The Nashville Tennessean has a lengthy obituary, which quotes from one of Professor Wallace's high school teammates on Wallace's strength and optimism: "But through it all, he said that being bitter can eat you alive. And I thought that was so noble of him, because a lot of the bitterness that he might have had during that time has subsided now. It's over and done with and he didn't allow it to change him as a person."

Coach Smith, R.I.P.

This post may seem strange coming from a life-long Dukie, but I want to note the passing of Dean Smith, the long-time coach of basketball at UNC.

College basketball often seem to reek. One can look at the immense amount of money that is earned, little of which seems to benefit the stars. Corrupting commercial ventures seem to become more important than traditional academic values. What should be a student-centric activity places the financial supporters of the university in the good seats and the students near the rafters or behind the goals.

All of this seemed to be under control when Coach Smith ran the UNC program. His students graduated. He followed the rules and expected all of his staff and players to do likewise. Despite this, (or, I hope, because of it), his teams played the game well. I will not pretend that I was happy when his team beat my Duke team, but I always knew that the contest had been legitimate and that the better team on that day had been victorious.

So, I pause today to remember a great coach, teacher and man. Rest in peace.

Well, at Least We Don't Bite Each Other at Faculty Meetings

Discussions at faculty meetings can get heated, for sure, but they are nothing like the Uruguay vs. Italy match in today's World Cup.  Uruguay's Luis Suarez [thanks, anon] appears to have bitten Italy's Giorgio Chiellini.  Although the ref didn't seem to see the incident, there are some pretty conclusive photos circulating around the internet (see, e.g., here).  And apparently it's not Suarez's first biting incident (see here). Folks are now waiting to see if (or for how long) FIFA bars Suarez from future games.

The NCAA and Taboo Trades

 

“It cannot be said that the Employer’s scholarship players are ‘primarily students’”

The National Labor Relations Board Region 13

Northwestern University (Employer) and College Athletes Players Association (CAPA) (Petitioner)

Case 13-Rc-121359

 

Regular Lounge readers have heard me discuss before my seminar on Taboo Trades and Forbidden Markets.  Although markets in human organs, gametes, sex work, commercial surrogacy, and the like are probably more standard fare in a course of this nature, I think that college athletics and amateurism also have a place, and I normally spend some time each semester on college sports (plus, it’s Duke, what do you expect? There’s probably some requirement that we discuss basketball in class, but no one told me about it, since I always discuss basketball in class anyway)*

This year, though, the landscape feels different to me.  Perhaps I’m just particularly attuned to these cases, given my research interests in the area, but I’m dedicating more class time to college athletics this year and there is certainly a lot more to cover.  Most folks have probably heard by now about yesterday’s NLRB ruling in favor of the Northwestern players.  For those who want to read the full ruling, I’ve uploaded a copy here: Download NU Decision and Direction of Election. 

Northwestern will appeal, of course, but regardless of the ultimate outcome, I find the ruling interesting, both because of the language and reasoning employed by Peter Sung Ohr, director of the board's Chicago regional office, and because of what the ruling might signal about the broader legal environment.  Coupled with progress in the O’Bannon case, the recent antitrust complaint filed by Jeff Kessler (of NFL free agency fame) against the NCAA and five conferences alleging a cartel that illegally caps player compensation, and controversy surrounding head injuries in football, it seems to me that the NCAA is under fire as never before. 

I’ll be back in subsequent posts with more to say about these other cases, but for now I just wanted to highlight a few parts of the NLRB ruling.  Ohr concluded that “all grant-in-aid scholarship players for the Employer’s football team who have not exhausted their playing eligibility are “employees” under Section 2(3) of the Act.” In so finding, Ohr reviewed the football staff, player rules, athletes’ time commitment to the sport, their recruitment and academic life, and the revenues and expenses generated by Northwestern’s football program, all of which makes for interesting reading. I found this excerpt particularly noteworthy (emphasis mine):

[I]t cannot be said the Employer’s scholarship players are “primarily students.” The players spend 50 to 60 hours per week on their football duties during a one-month training camp prior to the start of the academic year and an additional 40 to 50 hours per week on those duties during the three or four month football season. Not only is this more hours than many undisputed full-time employees work at their jobs, it is also many more hours than the players spend on their studies. In fact, the players do not attend academic classes while in training camp or the first few weeks of the regular season. After the academic year begins, the players still continue to devote 40 to 50 hours per week on football-related activities while only spending about 20 hours per week attending classes. Obviously, the players are also required to spend time studying and completing their homework as they have to spend time practicing their football skills even without the direct orders of their coaches. But it cannot be said that they are “primarily students” who “spend only a limited number of hours performing their athletic duties.”

In today’s class, we cover some background reading, including excerpts from a book by my colleague, Charlie Clotfelter, Big Time Sports In American Universities.

 

*Note to Klein, Ramseyer, and Bainbridge: can you do something about all those baseball cases in the book, since that is not a sport that I watch? 

HLS's Petrie-Flom Center Seeks to Hire Senior Law & Ethics Associate for New Project with NFL Players Association

I've been asked to post the following hiring announcement by our friends at Harvard Law School's Petrie-Flom Center:

In connection with our work on a sponsored research project with the National Football League Players Association, the Petrie-Flom Center seeks to hire a Senior Law and Ethics Associate immediately. (Please note that this is a distinct position from the one we recently advertised working with Harvard Catalyst on clinical and translational research.)

We are seeking a full-time doctoral-level hire (J.D., M.D., Ph.D., etc. in law, ethics, public health, social science, or other relevant discipline) with extensive knowledge of and interest in legal and ethical issues related to the health and welfare of professional athletes.  The position will be funded for at least two years, with renewal likely for an additional year or more.

View the full job description and apply here.  

For questions, contact [email protected] or 617-496-4662.

Like Blacks after Slavery

In the South in the decades following slavery, everyone appreciated that blacks were denied the opportunity to fully compete in the economic marketplace and denied the full value of their labor. That system was allowed to carry on, however, because it harmed blacks, a politically disfavored race.  Racism, that is, allowed the system to stay in place.

Something very similar is occurring in college sports.  Everyone (almost everyone?) appreciates that the so-called “student athlete” is likewise denied the opportunity to fully compete in the economic marketplace and  denied the full value of their labor.  But this system is allowed to carry on because it supposedly benefits college athletes.  Paternalism towards “student athletes,” that is, allows the system to stay in place.  The South purposefully used anti-black bigotry to protect their exploitation much the same way the NCAA is purposefully using paternalism.

A lot of the tools of exploitation between the two systems is, moreover, eerily similar as my chart indicates (I can’t prove that the NCAA actually looked to the Jim Crow south for ideas but I will be investigating that for sure).

 

Blacks	College Athletes
Anti-Enticement Statutes- employers not allowed to hire another employer's workers away.  This inhibits blacks in hunting for better employment opportunities.	Other schools  can’t poach student after he/she already signs with another school.  This inhibits college athletes in hunting for better employment opportunities.
Emigrant Agent Laws- agents not allowed to recruit labor for out of state jobs or out of   local area jobs.	College athletes cannot have agents search for economic opportunities on their behalf.
Blacks are denied  due process by biased judges, unavailable courts, etc.	College athletes do not have due process rights/ can't appeal unfavorable NCAA rulings
Blacks don't have  legal tools to remedy deceit by employer (black wage workers were often not given wages,  black sharecroppers were often lied to about about how much their crops were worth, etc.)	College athletes don't have legal tools to remedy deceit by coaches.  In high school, kids are made promises about how much playing time they will get,  being able to play certain positions, etc. that often turn out to be false.
Licensing laws: can only work in certain professions if one has a license.  Licenses were often denied to blacks.	Can't sign one's   own name or sale one's own jersey, etc. That is, have skill, can't make money   off it, because they don't have the professional designation (not sure this   is convincing)
Contract   Enforcement Laws: go through w/ agricultural labor contract or face punishment (jail).  Southern states made laws to force completion of a contract.	Contract   Enforcement NCAA rules: go through w/ contract or face punishment (sit out a   year).  Can only transfer to a particular school if coach/school allows   it.  Don’t play, lose your scholarship.    NCAA rules essentially compels service.   Schools, however,   can deny students scholarship after each year. And coaches can leave whenever   they want and take whatever job they want.
Can't vote/ Can't   participate in the making of rules/ Lack of due process	Can't participate   in the making of rules/ No due process
Share cropping,   tenancy, wage earners = largely poor	Tuition,   books, room and board = largely poor
White Solidarity   & Collusion to hold down black wages --> increase their own profits   and solidify white supremacy	School solidarity   & Collusion to limit the money given to amateurs --> increase their   own profits and solidify the dominant position of their schools
One Party   Dominance --> Southern Democrats	NCAA
Both learning   marketable skill/ agricultural skills but not able to profit much from them   at the time.  Blacks - Agricultural	Sports/education
Largely denied   access to unions	Can’t unionize

Also, I think critics of the NCAA should discard the slavery analogy. So, in full,  in my new book project Like Blacks after Slavery: How the NCAA Reproduced the Economic Exploitation of the Jim Crow South (still not sure about that title) I want get rid of the slavery analogy and offer up a much better one:  NCAA = the Jim Crow South’s economic regulation of blacks.

Surprisingly, no one has made this argument before as far as I can tell. And I’ve been doing a lot of research into it.