Tuesday, June 30, 2009

Should NCAA Adopt Rooney Rule?

On our blog, dre cummings and Roger Groves have written extensively about the Rooney Rule, an internal NFL rule which requires that NFL teams interview minority candidates for head coaching positions and which (as Cumberland law prof Marcia McCormick wrote about on Workplace Prof Blog earlier this month), now also requires that teams interview minority candidates for senior football operations positions. Thought it's difficult to show "causation" there has been a marked increase in the number of African-American head coaches since the league adopted the Rooney Rule. For some terrific background on the history and goals of the Rooney Rule, check out Temple law prof Jeremi Duru's article in the Virginia Sports and Entertainment Law Journal and dre cummings' article in the Thurgood Marshall Law Review.

Interestingly, the NCAA has not adopted the Rooney Rule. Over on NCAA Double-A Zone blog, Marta Lawrence has a good piece on the NCAA's position. Here's an excerpt:

* * *

While the Rooney Rule has worked to help diversify the NFL coaching ranks, NCAA President Myles Brand and Vice President of Diversity and Inclusion Charlotte Westerhaus maintain a similar rule for college athletics won't work.

"The 'Rooney Rule' is an interviewing rule," writes Westerhaus in a recent blog post. "More candidates than ever before were interviewed last fall without an interview mandate similar to the 'Rooney Rule' and without the possibility of sanctions for noncompliance. What was the end result? Only four African Americans were hired as head football coaches of color in Division I FBS. This simply is not good enough.

"The NCAA is not opposed to equal opportunity within the interview process. But what is needed now is an end to side-stepping the crux of the hiring dilemma. Interviewing is not hiring. What is needed is more hires of head football coaches of color, not mandated interviews and the continued perpetuation of false hope."

* * *
To read the rest, click here. To read a law review article advocating that the NCAA adopt the Rooney Rule, see Michael Nicholas' article in the Virginia Sports and Entertainment Law Journal.

Monday, June 29, 2009

More on American Needle

As Mike noted below, the Supreme Court granted cert today in American Needle v. NFL and will review the Seventh Circuit’s holding that the NFL and its teams act as single entity when promoting NFL football through licensing teams’ intellectual property. We have been tracking and discussing this case since the district court ruled for the NFL back in October 2007 (and then debating it in the Tulane Mardi Gras Moot Court Competition), and I wanted to emphasize one point as we continue to follow this case through the Supreme Court: The NFL—and other professional sports leagues in the U.S.—have a tremendous amount to gain from the Supreme Court’s decision, but not much to lose.

First, let’s start with a little background. The Seventh Circuit’s opinion is an outlier. Until American Needle, every appellate court (and virtually every court) to address the issue held that professional sports leagues are not single entities and are thus subject to scrutiny under Section 1 of the Sherman Act. The Seventh Circuit went against the grain, stating in American Needle that the single entity status of sports leagues “should be addressed…one facet of a league at a time,” and concluding that the NFL acts as a single entity when collectively licensing NFL teams’ intellectual property.

Both American Needle and the NFL then filed petitions for cert with the U.S. Supreme Court. American Needle’s argument is simple—the Supreme Court should hear the case and reverse it because the Seventh Circuit’s holding conflicts with over 50 years of case law in other circuits. The NFL’s argument is more complex. Because it won the case before the Seventh Circuit, the NFL is seeking an expansion, not a reversal, of the decision. The NFL is thus arguing that professional sports leagues are single entities for all purposes, and thus should be completely exempt from Section 1 scrutiny. In the alternative, the NFL claims that professional sports leagues should be deemed single entities with respect to all of their “core venture functions.” Of course, the NFL will then claim that virtually every decision they make constitutes a “core venture function.”

I will address the merits of the underlying arguments over the next few months, but let’s get back to my original point. An expansion of the Seventh Circuit’s holding would be a huge win for professional sports leagues. Depending on the scope of the Supreme Court’s decision, leagues could be free to make decisions regarding the location and ownership of teams, contraction of franchises, television restrictions, intellectual property licensing, etc., without fear of attack under Section 1 of the Sherman Act. Taken to its most unlikely extreme, the Supreme Court could extend the single entity protection to cover all decisions made by a league, including salary caps, player drafts, free agency rules, and other player restraints.

Despite what some are saying, however, a reversal of the Seventh Circuit’s decision would not be a catastrophic loss for the NFL. Over at profootballtalk.com, Mike Florio claims that
the stakes are high. If the Supreme Court rules that the league and its teams do not constitute a single entity for antitrust purposes, then all exclusive marketing arrangements likely would be scuttled. For example, EA would likely lose exclusive rights to the team names and logos for the Madden video game — and the league would lose the extra money that comes from exclusivity.

I think Mike does great work over there, but his observation on this one is a bit misleading (but, Marc Edelman has a great comment in that post). The issue before the Supreme Court is not whether the NFL’s exclusive licensing arrangement is legal under the antitrust laws. The issue is whether the licensing arrangement should even be subject to scrutiny under the antitrust laws. If the NFL wins, they escape Section 1 scrutiny. If the NFL loses, their arrangement will then be analyzed under the rule of reason, where a court will weigh the procompetitive benefits of the agreement versus its anticompetitive effects.

There is no reason to believe that the Supreme Court’s rejection of the single entity argument makes it any more (or less) likely that American Needle would prevail in the underlying antitrust case (or that a suit against the exclusive deal with EA would be successful). Rather, it only subjects the NFL to the same antitrust scrutiny they have been subjected to for the last 50 years. American Needle could win the underlying case, but only if it could prove that the anticompetitive effects of the NFL’s exclusive apparel licensing deal outweighed its procompetitive benefits.

Thus, while a win for the NFL in the Supreme Court would have significant implications, a loss merely gets us back to the way we were before the Seventh Circuit’s outlier in American Needle.

God Look-a-Likey

If there is a God I imagine he looks and sounds alot like this ...

Those curious numbers and letters in the backgrounds spell out the meaning of life - if you can decode them.

U.S. Suprme Court Grants Cert in American Needle v. NFL

Earlier this morning, the Supreme Court released its order list, which included notice that it has granted cert in American Needle v. NFL. The Seventh Circuit held earlier this year that the NFL can enjoy single entity status -- and thus immunity from Section 1 of the Sherman Antitrust Act -- for limited purposes (namely, apparel sales). Until American Needle, leagues with franchises that are separately owned had traditionally been viewed as joint ventures, and thus subject to Section 1. Although U.S. Solicitor General Elena Kagan recommended that the Court not grant cert, it has done so anyway. It should make for a very important and interesting case.

For other Sports Law Blog coverage on American Needle, click here. For other news from the Supreme Court today, check out the outstanding Supreme Court of the United States Blog.

Friday, June 26, 2009

Catching Up with Links

* Brandon Jennings, a 19-year-old who earned over a million dollars playing basketball in Italy last season, was drafted 10th overall by the Milwaukee Bucks in last night's NBA draft, ahead of a number of high-profile college players. Significance? Some believed that Jennings risked hurting his draft status by playing abroad and away from the TV coverage that players receive at top college programs. I never found that concern particularly persuasive, since NBA teams regularly scout Europe and other parts of the globe, and I presume teams are most interested in drafting the best available player or the player best fitting team needs--rather than the most well-known player (and fans' recognition of drafted players didn't help the Cavs after drafting Trajan Langdon at #11 in 1999 or the Bobcats after drafting Adam Morrison at #3 in 2006 or the Nets after drafting Ed O'Bannon at #9 in 1995 etc.). For more on Jennings, see Jeff Goodman's "Jennings' Experiment Pays Off."

* Steve Wieberg and Marlen Garcia have an interesting piece connecting the "one and done" phenomenon of college basketball (where a player attends college for one year in order to satisfy the NBA's eligibility restriction) and corruption at several marquee college programs.

* Contained within the seemingly ubiquitous coverage of Michael Jackson's death, Chad Finn of the Boston Globe has a good feature on a chain of events that began in 1985 with the Sullivan Family, which owned the Patriots, financing Jackson's "Victory" tour and ended with Bob Kraft buying the Patriots (which in turn lead to Bill Parcells, Bill Belichick, and three super bowls).

* Jeff Levine has a good piece on the Biz of Hockey on the Coyotes/NHL recent litigation.

PLANTINGA'S BELIEF-CUM-DESIRE ARGUMENT REFUTED

The journal Religious Studies is going to publish this paper. Thanks to everyone who commented - it was very useful. Final version of the paper is available here.

Wednesday, June 24, 2009

Sign Sense About Science statement on libel law

Please sign this petition if you can, and encourage others to do so - it's a critical moment: the Government needs to see momentum is building behind this campaign, that it is not going away.

Go here.

The New Anti-Tobacco Legislation, Sports Events and Commercial Speech

The Family Smoking Prevention and Tobacco Control Act signed by President Obama's earlier this week contains provisions that should be of more than passing interest to those involving sports sponsorship. As has been widely reported, the legislation (found in 111 P.L. 31, 123 Stat. 1776) asserts Food and Drug Administration jurisdiction over tobacco products and will finally give that agency the power to regulate tobacco products. Additionally, and significantly for those in the sports industries, the legislation prohibits tobacco-related sponsorships of sports and entertainment events.

This legislation serves as a crowning achievement of the efforts by anti-smoking advocates to stop individuals, notably teenagers, from starting the habit. These advocates can feel justly proud of their accomplishment. A great deal of this legislation makes sense, especially giving the Food and Drug Administration jurisdiction over tobacco and the increase in warnings to be found on such products. However, as someone who lauds the goals of a smoke-free America, some of the advertising restrictions may be constitutionally suspect and will likely be challenged.

The law codifies previous bans on outdoor advertising within 1,000 feet of schools and playgrounds and certain print advertising to black-and-white text. In a limitation directly involving sports, the legislation prohibits manufacturers, distributors, or retailers from distributing or causing to be distributed any free samples of smokeless tobacco "to a sports team or entertainment group;" or "at any football, basketball, baseball, soccer, or hockey event or any other sporting or entertainment event determined by the Secretary [of Health and Human Services] to be covered by this subparagraph."(sec. 102a)

In its introduction, the legislation notes that "[t]hrough advertisements during and sponsorship of sporting events, tobacco has become strongly associated with sports and has become portrayed as an integral part of sports and the healthy lifestyle associated with rigorous sporting activity."

While tobacco company sponsorship has gradually decreased for major sporting events, a ban on sponsorships could jeopardize the viability of smaller events in jeopardy. Such a limitation, along with the billboard advertising restrictions -- could also affect the commercial speech rights and may be unconstitutional.

I come to this conclusion with great reluctance, because in the past, I advocated a ban on tobacco advertising (see SUNY v. Fox -- The Dawn of a New Age of Commercial Speech Regulation of Tobacco and Alcohol, 9 Cardozo Arts & Entertainment Law Journal 61 (1990). But since then, commercial speech protection has increased because the Supreme Court has applied the prevailing standard with greater scrutiny. That standard, known as the Central Hudson test is a complex variant of the “intermediate” scrutiny test found in time, place and manner restriction cases and requires that the government’s interest in regulating the commercial speech must be “substantial;” the regulation “directly advances the governmental interest asserted;” and the regulation “is not more extensive than is necessary to serve that interest.” In recent years, the courts have questioned governmental regulation of commercial speech involving liquor regulations and billboards, applying the last two prongs of the test was heightened scrutiny. In a case closely on point, the court, in 2001, concluded in Lorillard v. Reilly that a Massachusetts regulation banning "outdoor" advertising for tobacco products as the law failed the fourth part of the Central Hudson test. Some members of the court expressed interest in scrapping Central Hudson in favor of a strict scrutiny test. I wonder if the sponsorship ban in this legislation would be able to survive the "intermediate scrutiny-plus" standard of Central Hudson as applied by the courts over the last decade.

Constitutional challenges to portions of this law are likely and the sports industry should pay attention.

Monday, June 22, 2009

Does The New Women's Professional Soccer League Have A Business Model For Success?

In the late 1990s, sports consulting firms such as Game Plan LLC advised their clients to adopt centrally-planned league structures. Just ten years later, however, these structures have become relatively obsolete. Not only has the WNBA converted to a more traditional structure, but also the centrally-planned XFL, MISL and WUSA have gone entirely out of business.

On March 29, 2009, the WUSA's founders launched a new women's soccer league--Women's Professional Soccer. Not surprisingly, this new league has adopted a more traditional approach.

In a recent law review article, former professional soccer player Elizabeth Masterson and I argue that the new women's professional soccer league is more likely to succeed than its predecessor, the WUSA, because of the virtues intrinsic in the traditional league structure.

In addition to touting the business advantages of traditional sports leagues, Elizabeth and I explain three reasons why we believe the once alleged antitrust advantages of the centrally-planned league are no longer relevant today:
  • First, the 2002 First Circuit case Fraser v. Major League Soccer held that the single-entity defense to antitrust law is unlikely to apply to any centrally-planned sports league that allocates a share of specific team revenues to individual investor-operators.
  • Second, Fraser v. Major League Soccer also held that the labor practices of a professional sports league, irrespective of its structure, cannot violate antitrust law so long as the league competes in a worldwide market for player labor and thus lacks market power.
  • Finally, the more recent Seventh Circuit case American Needle v. National Football League extends the potential insulation from antitrust liability to certain business activities of even traditionally structured sports leagues. (Of course, some of us at Sports Law Blog, including myself, believe the American Needle opinion was poorly decided.)
For those interested in learning more about why the recent movement back to traditionally structured sports leagues makes sense, check out Elizabeth Masterson and my full article: Could the New Women's Professional Soccer League Survive in America? How Adopting a Traditional Legal Structure May Save More than Just a Game.

Donald Fehr Stepping Down

The Street & Smith Sports Business Journal posted a link to an article by ESPN stating that Donald Fehr will be stepping down as Executive Director of the MLBPA "no later than the end of March." Pending board approval, his replacement will be current General Counsel Michael Weiner.

Alister McGrath vs Stephen Law: Does The Natural World Point To God?


Debate - With CFI UK Provost Stephen Law and Alister McGrath, author of The Dawkins Delusion, Dawkins' God, and A Fine-Tuned Universe: The Quest For God In Science And Theology.

Thursday October 29th, 2009. 7pm.

Conway Hall, 25 Red Lion Square, Holborn London WC1R 4RL - Main Hall. 7pm. £5 on the door (£3 Humanist organizations) Free to Friends of CFI.

Professor Scott Rosner on the 1992 Cable Act and Sports Broadcasting

Professor Scott Rosner, the associate director of the Wharton Sports Business Initiative at the University of Pennsylvania, has an engaging op-ed in the San Diego Union-Tribune on sports broadcasting. The op-ed is excerpted below.

* * *

There are four main ways to receive home video service in the United States: traditional over-the-air broadcast, cable, satellite and now over lines from new competitors such as AT&T and Verizon, who have invested billions in infrastructure and marketing. This kind of competition is good because it means lower prices, more innovation and better customer service. It translates into lower bills for consumers as well as an increasing number of HD and non-HD channels, better DVR technology and bundled service. Consumers win as a result of this highly competitive marketplace.

That is, unless you are a sports fan living in San Diego or Philadelphia. The 1992 Cable Act has program access requirements that promote competition and diversity in video programming. The law prevents cable companies from acting in an unfair or anti-competitive manner when selling the huge amount of cable channels and programming that they own.

So why isn't what is happening in San Diego and Philadelphia illegal? In fact, it would be except for a technicality. At the moment the Federal Communications Commission is reviewing the rule that allows this to occur – the “terrestrial loophole” in the federal Cable Act. By their own admission, cable companies are taking advantage of this outdated exception to program-access laws. The loophole makes the law applicable only to satellite-delivered programming and not to programs delivered via a terrestrial signal. It's a technicality that serves no rational purpose.

* * *
To read the rest, click here.

Friday, June 19, 2009

UFO speakers

I am looking for good UK-based speakers knowledgeable about alien-related matters - UFOs, SETI, etc. Can anyone recommend anyone?

No wackos obviously - I need credible people with some genuine expertise...

Gig on Sunday

I am playing with Ropetrick at the Perch pub in Binsey, nr. Oxford (by Port Meadow) this Sunday (21st June), 1 o'clock. It's part of an all-day music thing going on at the pub.

Wednesday, June 17, 2009

Legal Fallout of New York Times story on Sammy Sosa

I have a column up on SI.com on the legal fallout of news that Sammy Sosa was--according to the New York Times--one of the 104 names on the list of steroids users. Here's an excerpt.

* * *

Regardless of the Ninth Circuit's forthcoming decision (or of an unlikely review by the U.S. Supreme Court), a number of people are aware of the remaining 102 names. Any of those persons has the capacity to leak the names, which they might be tempted to do for a variety of reasons. They may, for instance, dislike one or more of the named players and want to settle a score. Or perhaps their intentions are more sinister: they could threaten to disclose a name or names unless compensated in a blackmail scheme.

Officials at the MLBPA and MLB are most likely aware of the names, as are various federal officials, including the agents who seized the computers, as well as judges, clerks, prosecutors and their assistants. Certain player agents and attorneys may also be aware of the list. In short, a lot of people have probably seen the list.

Granted, all of these persons "in the know" are bound by professional duties of confidentially, violations for which can trigger civil consequences. A baseball agent, for instance, could risk fine, suspension, or even decertification by the MLBPA, which certifies agents who have clients on 40-man rosters. The union itself is dissuaded from disclosing the names. Under federal labor laws, the MLBPA and its officials owe duties of trust and competence to each of its players. Should the MLBPA disclose the 104 players' names, the named players would be entitled to sue the MLBPA for breach of duties; they could also file a grievance with the National Labor Relations Board. Players' damages could be shown through reputational harm and potential loss of endorsement deals.

* * *

. . . Sosa is viewed favorably for his charisma and charm. He has also been praised for his community service and generosity, particularly for his charitable work after Hurricane George decimated parts of the Dominican Republic in 1998. Never underestimate the power of reputation to influence whether one is selected for prosecution.

Second, although a person can commit perjury through a written statement, the government may place significance in the fact that Sosa did not verbally make the potentially-incriminating comments. Sosa, in fact, claimed he did not feel comfortable speaking because of his command of the English language. If Sosa's English was not perfect, then did he fully understand the meaning of the written statement? If not, could he have "knowingly" lied?

* * *

To read the rest, click here.

I was interviewed on the Dan Patrick Show this morning to discuss Sosa, along with legal issues concerning Plaxico Burress, Donte Stallworth, and Michael Vick. To listen to the interview, click here.

NHL wins in Coyotes Bankruptcy Litigation

Zach Lowe of The American Lawyer has the details on the NHL's victory. He interviewed me for his story. Here's an excerpt.

* * *

We couldn't wait four our regular sports law column to write about a federal judge's ruling Monday that Canadian businessman Jim Balsillie can't buy the the Phoenix Coyotes out of bankruptcy court and move the team to Canada without permission from the National Hockey League and other league owners.

But first an instant replay: The Coyotes and the team's owners (repped by Squire, Sanders & Dempsey) filed for bankruptcy last month and announced they had struck an agreement to sell the franchise to Balsillie, owner of the company behind the BlackBerry and a Canadian hockey fanatic who has twice tried to bring a seventh hockey franchise to Canada.

The NHL, repped by Skadden, Arps, Slate, Meagher & Flom (one of two go-to firms for the NHL along with Proskauer Rose), objected to the sale, saying the Coyotes never gave the league a heads-up and were violating league rules that required teams to get permission from other owners to relocate.

So, for the first time, a federal judge had to answer the question: Could a sports team use the asset sale procedures of bankruptcy court to sidestep league rules about franchise relocation?

* * *

A ruling in favor of Balsillie would have "opened the door for team owners and prospective buyers to use the bankruptcy process to circumvent league rules," says Michael McCann an associate professor at Vermont Law School and a frequent contributor to the popular Sports Law Blog.

Judge Baum has ordered that an auction be held in September for bidders to make new offers, as long as they agree to keep it in Glendale, according to court records and this write-up in the New York Times. If that auction fails to produce a suitable bidder, the leagues have proposed that the judge order a second auction so owners wishing to relocate the team could bid.

* * *
To read the rest, click here.

Tuesday, June 16, 2009

Gig on Thursday night

I am playing at the Bullingdon Pub (in the Backroom), Cowley Rd Oxford on Thursday night (Ropetrick - last of three bands on, about 10pm-ish I think).

Incidentally, does anyone know how I can contact Christina Odone (religious journalist)? Or any other suggestions whom I should invite to Oxford Lit Fest to debate faith schools with me (Jonathan Sacks cannot do it - I asked)?

For your interest - I have set up a debate between John Polkinghorne and philosopher David Papineau for the Oxford Lit Festival (title: Does the Universe Reveal The Mind of God?). This should be excellent. And also have booked Simon Singh, Ben Goldacre, Richard Wiseman and also maybe someone v famous that I cannot confirm yet (I am really trying hard to sell this, I admit).

More CFI UK events about to be announced too...

Monday, June 15, 2009

Will Roger Goodell Let Plaxico Burress Play?

I have a new column on SI.com, here's an excerpt:

* * *

In [Drew] Rosenhaus' defense, Goodell has thus far declined to sanction Burress, who faces criminal charges for the Latin Quarter Club incident that occurred last November. Although the Giants suspended Burress for the last four games of the 2008 season, Goodell has not sanctioned Burress. If Burress wasn't deserving of a punishment while he awaited a trial scheduled for June, why should a mere delay in the trial suddenly make him more deserving?

Plus, Goodell has normally waited for the disposition of players' legal woes before imposing a punishment. He waited for Michael Vick's guilty plea in 2007, for instance, and did the same for Tank Johnson, who pled guilty to misdemeanor weapon charges, also in 2007. Likewise, Goodell declined to sanction Randy Moss in January 2008 after a restraining order was issued against him. Although he is not obligated to adopt a "presumption of innocence" standard when sanctioning players, Goodell has generally done so.

* * *

Goodell is also not bound by his own precedent, meaning he need not follow a particular script or set of rules gleamed from his earlier punishments. He also needn't worry about his decision to punish being reversed or modified on appeal: under the policy, any appeal goes right back to him.

. . . Goodell, son of the late U.S. Senator Charles Goodell (R-NY) and son-in-law of former White House Chief of Staff Sam Skinner, might be attune to the unusually politicized dynamics of Burress' case. New York City Mayor Michael Bloomberg, a leading advocate of the law used to prosecute Burress, has stressed that Burress should be prosecuted "to the fullest extent of the law" for otherwise there could be "a sham, a mockery of the law." Should Goodell allow Burress to sign a multimillion dollar contract with a team, particularly with the nearby New York Jets, it may be viewed disapprovingly by the Mayor.

* * *
To read the rest, click here.

God, Poetry and Emotion

[I am repeating this post from earlier, as becoming increasingly relevant to recent discussions of "sophisticated" theology]

Following on from the previous post on God and indefinability, I have been thinking a bit more about Sam’s sophisticated theology.

I have been suggesting, rather bluntly (!), that Sam is (unwittingly) falling for, and applying, several rhetorical devices in order to try to deal with the problem of evil. These include:

(i) Playing the mystery card (See my The God of Eth)
(ii) Now you see it, now you don’t
(iii) Pseudo-profundity

I think there are lots more sleights-of-hand and rhetorical devices in play here, too. Perhaps I should go right through them all in detail at some point. My view (again, to state it bluntly) is that, once you’ve unpacked and disarmed all these various ploys and manoeuvres, what remains – the actual content of theism (to the extent that there actually is any content left in “sophisticated” theism once all the sleights-of-hand, etc. have been exposed) - is pretty obviously a load of cobblers.

But perhaps there isn’t any content at all? I’m not sure.

I just read the Book of Job and have been thinking about the poetic and inspirational use of language. Religion makes very great use of it, of course. Lots of “Lo!”s and words ending “-eth”. Here’s a bit:

9:4 He is wise in heart, and mighty in strength: who hath hardened himself against him, and hath prospered?

9:5 Which removeth the mountains, and they know not: which overturneth them in his anger.

9:6 Which shaketh the earth out of her place, and the pillars thereof tremble.

9:7 Which commandeth the sun, and it riseth not; and sealeth up the stars.

9:8 Which alone spreadeth out the heavens, and treadeth upon the waves of the sea.

9:9 Which maketh Arcturus, Orion, and Pleiades, and the chambers of the south.

9:10 Which doeth great things past finding out; yea, and wonders without number.

You get the idea. But, other than bigging up God, what is actually said here? Well this:

“Who hath hardened himself against him, and hath prospered?”

It’s a rhetorical question. The answer is clearly supposed to be “No one! So fear him! He gets angry!” It’s a veiled threat. But the actual answer is pretty obviously “Loads of people (me included!)”

And there are also some scientifically inaccurate claims, such as that the earth is set on pillars.

Now the sophisticated theologian will tell us not to take these passages so literally. But then what’s left? Just the expression of a sort of reverential, “Oh wow!” attitude. This text is designed to press our emotional buttons and get us reverberating in tune with it (three key emotions being awe, reverence and fear).

Being reasonably emotionally literate, I know when my buttons are being pressed. Spielberg is a master, of course. At the end of E.T., I can see exactly how Spielberg is manipulating me emotionally through very careful control of the music, script, etc. It’s almost formulaic. Yet I still start blubbing.

I get exactly the same feeling reading the Bible - and especially this passage from Job. The emotional and psychological manipulation is pretty transparent, I think. You can almost feel your buttons being pressed.

There is a mystery about why there is anything at all. We are awestruck by nature. And rightly so. Religions take these basic feelings of awe and mystery and build on them – using poetic, inspirational language.

But when you strip away the poetry and get down to the actual content of a particular religion, what’s left?

Claims, which, shorn of all the emotional button-pressing, and jotted down on the back of an envelope, are pretty obviously ridiculous.

Imagine writing down the core claims of Christianity – including the resurrection, etc., - in a matter-of-fact, bullet-point style and giving them to say, a Chinese person unfamiliar with Western religion. Their likely reaction would be, “You believe that? Why?!" The claims just don't work any more once stripped of all the emotional and other psychological packaging.

On the other hand, remove these claims from a religion and what's left? No content as such: just the reverential, “Oh wow!” attitude (which may also be happy-clappy or self-loathing, etc. etc. depending on which sect you end up in).

It seems the sophisticated theologian who rejects the ridiculous stuff is then just left with little more than the attitude. Of course, they think there’s something more. There still a sort of content left, they suppose. But when you ask them what the content of their belief is, they say – “Well, I can’t say, exactly – you see, it’s, um, ineffable, it’s a mystery.”

Hmm. My suspicion is they have simply projected an ineffable “something” to be the focus of all the emotional, psychological baggage they still find themselves left with.

Sunday, June 14, 2009

Are the 'New Atheists' avoiding the 'real arguments'?

Great article here from Edmund Standing on the "new Atheists" and how they are shot down by sophisticated theologians.

Seems to me Standing has caught Rowan Williams out in a flagrant use of what I call: "now you see it, now you don't".

P.S. "great" should not to be taken to indicate I agree with everything in said article - I don't. But the central point is good, and well made, I think.

Thursday, June 11, 2009

Catching Up with Links

* I was interviewed on Toronto 590 The Fan yesterday to discuss the Phoenix Coyotes bankruptcy saga. Geoff up some great links yesterday on the same topic.

* I had several interviews on Cold Hard Sports to discuss such topics as whether David Ortiz has been slandered by rumors about using steriods and whether the list of 103 players who tested for steriods can be revealed by compulsion.

* Mayor of Wingville discusses a recently-settled gender discrimination claim brought by a man who was not hired by Hooters as a waiter. A few months ago, Marquette law professor Paul Secunda was interviewed by the Mayor about this lawsuit and offered some excellent legal points.

* Interested in becoming an entertainment agent? Check out Entertainment Agent Blog, a creation of Darren Heitner and others from Sports Agent Blog, which we contratulate for being named a top 50 niche blog.

* Professor Christopher Robinette of Widener University School of Law and Torts Prof Blog writes about new developments in the Cowboys' stadium collapse.

* Professor Joel Maxcy of the University of Georgia Department of Kinesiology has started a new blog -- Sports Labor Relations -- and it has some good posts to start.

* Congratulations to Professor Martha Minow on being named the new Dean of Harvard Law School!

Hustlin' Chagaev

An Attempt to Unravel the Confusion Surrounding the Cancellation of the Rematch Between WBA Heavyweight “Champion in Recess” Ruslan Chagaev and “Champion” Nikolay Valuev

On May 30, 2009, Ruslan Chagaev, 25-0-1 (17 KOs), the former Uzbekistani amateur sensation and undefeated World Boxing Association (the “WBA”) heavyweight champion was scheduled for a rematch with boxing’s own “Eighth Wonder of the World,” the seven foot, 300 plus pounds Nikolay Valuev, 50-1 (34 KOs), in Helsinki, Finland. Their first bout ended with Chagaev winning the WBA world heavyweight championship by shutting down the physically imposing Valuev with smart boxing. Had their second bout taken place as scheduled, Chagaev would have had the opportunity to repeat his accomplishment in the first world heavyweight title fight ever held in Finland. However, the Finland Professional Boxing Federation declined to sanction the fight after the weigh-in, after the blood tests submitted by Chagaev purportedly tested positive for hepatitis B. It was the third time that Chagaev had cancelled a rematch with Valuev.

In the aftermath of the cancellation, the WBA Medical Committee held a hearing on the hepatitis B test and its implications. In the balance was whether Valuev should now be regarded as the one and only WBA world heavyweight champion and whether Valuev should then be compelled to defend against the top available challenger, John (The Quiet Man) Ruiz. Valuev won the “vacant” WBA world heavyweight championship with a split decision win over Ruiz on August 30, 2008. The title apparently became vacant after Chagaev was adjudged a “champion in recess” following an Achilles tendon injury after his first defense of the title on January 19, 2008 and before the first scheduled date for his rematch with Valuev. However, both Chagaev and Valuev have successfully defended the WBA title since that time, with Valuev winning a decision over Evander Holyfield on December 20, 2008 and Chagaev winning a six-round technical decision over Carl Davis Drumond on February 7, 2009.

If the above synopsis seems confusing, little additional clarification can be provided from a WBA ruling on February 2, 2009 which stated, in part, that “[i]f Chagaev should incur another injury or impediment that would prevent him from defending against the Champion [Valuev], he will vacate whatever title he may hold and will be correspondingly lowered in his ranking.” To put the ruling another way, whatever title Chagaev may have had as of February 2, 2009, he had to defend it against “champion” Valuev without any further injury or medical problems or he would lose whatever title that he had and would be lowered in the WBA rankings...

To view the full article, please go to: http://www.8countnews.com/news/138/ARTICLE/1656/2009-06-11.html

Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, LLP. He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association. ©

Wednesday, June 10, 2009

Franchise Relocation Fees, Antitrust, in Phoenix Bankruptcy Court

We've given little attention so far to the bankruptcy of the Phoenix Coyotes, pending in federal bankruptcy court in Phoenix. The ongoing dispute over control of the team raises some important longstanding issues relating to franchise relocation and antitrust law. In the hope that the parties will settle before he's forced to issue a decision, Judge Baum has "dropped the hammer" on lawyers from all sides. I've been quoted in several stories over the past month in the National Post (Toronto) on the case:

Judge Stuck Between a Rock, Hard Place: Coyotes Bankruptcy; Would Prefer if NHL, Balsillie worked Out a Deal

Money matters in bankruptcy court

NHL aware of legal ‘morass’: U.S. Antitrust Laws; Court filing notes ambiguous rules for sports leagues

“Confusion” over league powers could weaken NHL Coyote’s case


Law Professors at the Baseball Hall of Fame


Last week, the Baseball Hall of Fame in Cooperstown, NY, hosted its annual "Cooperstown Symposium on Baseball and American Culture". The event featured ten law professors. Congratulations to Patricia Bryan (North Carolina), John Eastman (Chapman), our guest blogger Ed Edmonds (Notre Dame), Kathy Heller (Chapman), Hugh Hewitt (Chapman), Mitchell Nathanson (Villanova), Keith Rowley (UNLV), Alexander Sanders (Charleston), Brad Snyder (Wisconsin), John Tehranian (Chapman), who participated in the event.


Coverage can be found here, here, and here.

The case of the sixth islander

The case of the sixth islander

[another extract from a paper I am writing, this time a thought experiment related to the preceding post].

Suppose five people are rescued from a large, otherwise uninhabited island on which they were shipwrecked ten years previously. The shipwrecked party knew that if they survived they would, eventually, be rescued, for they knew the island was a nature reserve visited by ecologists every ten years.

As the rescued party recount their stories, they include amazing tales of a sixth member of their party shipwrecked along with them. This person, they claim, soon set himself apart from the others by performing amazing miracles - walking on the sea, miraculously curing one of the islanders who had died from a snakebite, conjuring up large quantities of food from nowhere, and so on. The mysterious sixth islander also had striking and original ethical views that, while unorthodox, were eventually enthusiastically embraced by the other islanders. Eventually, five years ago, the sixth islander died, but he came back to life three days later, after which he ascended into the sky. He was even seen again several times after that.

Let’s add some further details to this hypothetical scenario. Suppose that the five islanders tell much the same story about the revered sixth member of their party – while differing in style, their accounts are broadly consistent. Indeed, a vivid and forceful portrait of the sixth islander emerges from their collectively testimony.

Interestingly, the stories about the sixth islander also include a number of details that are clearly awkward or embarrassing for the remaining islanders. Indeed, they all agree that two of the surviving islanders actually betrayed and killed the sixth islander. Moreover, some of the deeds supposedly performed by the sixth islander are clearly at odds with what the survivors believe about him (for example, while believing the sixth islander to be utterly without malice, they also attribute to him actions that are clearly cruel, actions they then have a very hard time explaining). These are details it seems it could hardly be in their interests to invent.

Such is their admiration for their sixth companion and his unorthodox ethical views that the survivors try hard to convince us that both what they say is true, and that it is important that we too should also come to embrace his unorthodox views. Indeed, for the rescued party, the sixth islander is a revered cult figure, a figure they wish us to revere too.

Now suppose we have, as yet, no good independent evidence for the existence of the sixth islander, let alone that he performed the miracles attributed to him by the rescued party. What should be our attitude to these various claims?

Clearly, we would rightly be sceptical about the miraculous parts of the testimony concerning the sixth islander. Their collective testimony is not nearly good enough evidence that such events happened. But what of the sixth islander’s existence? Is it reasonable to believe, solely on the basis of this testimony, that the sixth islander was at least a real person, rather than a delusion, or deliberately invented fiction, or whatever?

Notice that the evidence presented by the five islanders meets three criteria discussed above.

First, we have multiple attestation: not one, but five, individuals claim that the sixth islander existed (moreover, we are dealing with the alleged eye-witnesses themselves, rather than second or third hand reports, so there is no possibility of other having tampered with or amended the story to suit themselves).

Secondly, their reports contain details that are clearly highly embarrassing to (indeed, that seriously incriminate) the tellers. This raises the question – why would the islanders deliberately include such details in a made-up story – a story that e.g. is clearly in tension with what they believe about their hero, and which, indeed, also portrays them as murderous betrayers?

Thirdly, why would they attribute to the sixth islander unorthodox ethical and other views very much discontinuous with accepted wisdom? If, for example, the sixth islander is an invention designed to set them up as chief gurus of a new cult, would they attribute to their mythical leader views unlikely to be easily accepted by others?

Now there’s no doubt that there could have been a sixth islander who said and did some of the things attributed to him. But ask yourself: does the collective testimony of the rescued party place the existence of the sixth islander beyond reasonable doubt? If not beyond reasonable doubt, is his existence something it would at least be reasonable for us to accept? Or would we be wiser, at this point, to reserve judgement and adopt a sceptical stance?

[nb. the following is for Sam's interest]


Sticking to the story despite the threat of death


Another difference between the two scenarios that might be exploited is: Those who made such claims about Jesus were prepared to, and on occasion did, die for their beliefs. No such threats are issued to the six islanders. Some may claim this is a key difference between the two sets of testimony that gives the testimony about Jesus much greater credibility.

Let’s suppose at least some of those with whom the Jesus testimony originated were prepared to die for their belief. That would at least raise the credibility of their collective testimony somewhat. But by how much?

Again, let’s adjust our hypothetical scenario so that the islanders are now threatened with death if they do not renounce their claims about the sixth islander (imagine, if you like, that they are unlucky enough to be rescued by a brutal totalitarian regime highly unsympathetic to such tales). The islanders stick to their story, and are executed as a result. How reasonable is it, now, to suppose that there was a sixth islander?

Still not terribly reasonable, I would suggest.

It is, of course, deeply puzzling why the islanders would be prepared to die for their beliefs if those beliefs were not true. If the islanders made the story up, surely they would have renounced it to save their own skins. But if they did not make it up, and yet the story is not true, then they would have to have collectively been the victims of some sort of deceit or delusion about the miraculous sixth islander. Yet that is scarcely credible either.

And yet – given the highly miraculous nature of much of what they recount about the sixth islander, surely it is still not clear that he existed, let alone performed any of the miracles attributed to him.

The fact that it is deeply puzzling why the rescued party would go to their deaths defending beliefs that they knew not to be true, and no less puzzling how they could collectively have become deceived or deluded about a miraculous sixth islander, still leaves us largely clueless about what really happened.

Tuesday, June 9, 2009

MLB's First Year Player Draft This Evening - A Thought About Free Agent Compensation

The first three rounds of baseball’s First Year Player Draft will take place this evening. The first round of the draft will be shown live on MLB Network. There will be five selections in the first round that constitute compensation for Type A free agents that were signed during the off-season. The list is as follows: Number 17 - Diamondbacks from Dodgers for Orlando Hudson; number 24 - Angels from Mets for Francisco Rodriguez; number 25 - Angels from Yankees for Mark Teixeira; number 27 - Mariners from Phillies for Raul Ibanez; and number 32 - Rockies from Angels for Brian Fuentes.

There will be 16 selections taken in the supplemental round between rounds 1 and 2 linked to free agent compensation. The list of these choices are as follows:

33 - Mariners - signing of Raul Ibanez by the Phillies; 34 - Rockies - signing of Brian Fuentas by the Angels; 35 - Diamondbacks - signing of Orlando Hudson by the Dodgers; 36 - Dodgers - signing of Derek Lowe by the Braves; 37 - Blue Jays - signing of A.J. Burnett by the Yankees; 38 - White Sox - signing of Orlando Cabrera by the Athletics; 39 - Brewers - signing of C.C. Sabathia by the Yankees; 40 - Angels - signing of Mark Teixeira by the Yankees; 41 - Diamondbacks - signing of Juan Cruz by the Royals; 42 - Angels - signing of Francisco Rodriguez by the Mets; 43 - Reds - signing of Jeremy Affeldt by the Giants (beginning of the Type B free agent compensation); 44 - Rangers - signing of Milton Bradley by the Cubs; 45 - Diamondbacks - signing of Brandon Lyon by the Tigers; 46 - Twins - signing of Dennys Reyes by the Cardinals; 47 - Brewers - signing of Brian Shouse by the Rays; 48 - Angels - signing of Jon Garland by the Diamondbacks.

The other compensation choices in rounds 2 and 3 for Type A free agents are:

56 (second round) - Dodgers - signing of Derek Lowe by the Braves; 60 - Diamondbacks (second round) - signing of Juan Cruz by the Royals; 61 (second round) - White Sox - signing of Orlando Cabrera by the Athletics; 73 - Brewers (second round) - signing of C.C. Sabathia by the Yankees; 104 (third round) - Blue Jays - signing of A.J. Burnett by the Yankees.

One interesting point to me is the compensation for the three Type A players signed by the New York Yankees. Teixeira was ranked ahead of both Sabathia and Burnett by the Elias Sports Bureau. Because of the rankings, the Blue Jays received picks 37 and 104. The Brewers received picks 39 and 73, and the Angels received picks 25 and 40. The Yankees still have a first round choice, number 29, because they failed to sign Gerrit Cole, their first round selection last year.

With the able assistance of third year Notre Dame Law student Johnny McDermott, Johnny and I have been able to take a look at all of the compensation selections back to 2000. For instance in 2006, the Yankees chose Joba Chambelain with the 41st pick (round 1 - supplemental) as compensation from the Phillies for signing of Tom Gordon. Gordon is now in his 21st major league season. The next pick went to the St. Louis Cardinals from the Giants who signed Matt Morris. The Cardinals selected Chris Perez. Morris is off to a tough start this year with the Pirates. Huston Street, who was sensational with the Athletics in 2005 when Oakland promoted him to the big leagues after only one season in the minors, was selected by the A’s in 2004 as compensation from the Orioles for the signing of Miguel Tejada. For these examples of successful selections, however, one looks at many, many names of players who did not make a contribution to the team that selected them or are still in the minors. This underscores the significant difference of the MLB draft from the NFL and NBA although one can easily find “busts” in the first round there as well.

NBA and English Premier League discuss commercial cooperation

The Premier League, the English soccer competition, and the NBA, the American national basketball association, are discussing a commercial cooperation. Both competitions are generally considered to be the most popular sports competitions in het world. Together they want to learn from each other’s strategies and expand to the emerging market of Asia.

According to the Financial Times
, representatives of both competitions have conducted negotiations with respect to this cooperation. David Stern, commissioner of the NBA, admits that the Premier League runs ahead with regard to attracting foreign investors and refers to the Russian, American and Middle East investors in English clubs.

Stern furthermore reveals plans of an expansion of the NBA to Europe and seems strongly convinced that the financial sound NBA-competition will appeal to potential franchise owners outside the United States. From a legal point of view, such expansion raises interesting questions. Marc Edelman, guest contributor on this site, recently published an excellent article on this topic
, in which the differences in operation structure and competition law (and the consequences thereof) are explained. In this article he furthermore focuses on age and education requirements together with the drafts and reserve system.

Considering an expansion of the NBA to Europe, among others, the following issues must be dealt with:
  • Specific regulation on broadcasting rights in the EU: the European Commission has set forth the main principles in relation to broadcasting rights in some recent decisions. The Commission accepted the joint selling of sport media rights by football associations on behalf of football clubs (as opposed to the sale of these rights by the individual clubs themselves), provided that certain conditions were satisfied. These include among others the sale of sport media rights through open and transparent tender procedures, a limitation of the rights' duration and the breaking down of the rights into different packages to allow several competitors to acquire rights.
  • The White Paper on sports: a key document of the European Commission dealing with the strategic orientation of the role of sports in the future EU. This document states several examples of organizational sporting rules that are not likely to offend EU Competition Law, provided that their anti-competitive effects are inherent and proportionate to the legitimate objectives pursued: rules fixing the length of matches or the number of players on the field of play; rules concerning the selection criteria for sporting competitions; rules on 'at home' and 'away from home' matches; rules preventing multiple ownership in club competitions and rules concerning transfer periods.
  • Differences in doping regulation: the WADA code has recently been introduced for all European professional sportsmen. It is being discussed whether the whereabouts imply a breach of the European privacy laws, namely, the right to privacy and family life under the provisions of article 8 of the European Convention on Human Rights of 1950. Legal challenges under Data Protections Laws and the EU Working Time Directive are being considered.

At the moment, professional sports are considered to fall within the scope of the EU Treaty. Discussions on the specific nature of sports, however, are likely to be held in the next months or years. The Commission has agreed, together with the International Olympic Committee and the major international sports bodies, to discuss the specificity of sports on the principle of theme-by-theme discussions. Topics to be addressed include anti-doping, mobility and nationality, volunteering, professional-amateur sport relations and funding. Rumors have spread that the Commission is considering to agree on the very specific nature and to put sports outside of the scope of European regulation. Obviously such specificity would facilitate (the legal problems of) a possible expansion of the NBA.

Extract from paper I am writing on Jesus' historicity

Here is an extract for comments...

A skeptical argument

I want now to show how our two principles - P1 and P2 - combine with certain plausible empirical claims to deliver a conclusion that very few Biblical scholars are willing to accept.

Let me stress at the outset that I am not endorsing the following argument. I present it, not because I am convinced it is cogent, but because I believe it has some prima facie plausibility, and because it is an argument that any historian who believes the available evidence places Jesus’ existence beyond reasonable doubt needs to refute.

1. (P1) Where a claim’s justification derives solely from evidence, extraordinary claims (e.g. concerning supernatural miracles) require extraordinary evidence. In the absence of extraordinary evidence there is good reason to be skeptical about those claims.
.
2. There is no extraordinary evidence for any of the extraordinary claims concerning supernatural miracles made in the New Testament documents.

3. Therefore (from 1 and 2), there's good reason to be skeptical about those extraordinary claims.

4. (P2) Where testimony/documents weave together a narrative about an individual that combines mundane claims with a large proportion of extraordinary claims, and there is good reason to be skeptical about those extraordinary claims, then there is good reason to be skeptical about the mundane claims, at least until we possess good independent evidence of their truth.

5. The New Testament documents weave together a narrative about Jesus that combines mundane claims with a large proportion of extraordinary claims.

6. There is no good independent evidence for even the mundane claims about Jesus (such as that he existed)

7. Therefore (from 3, 4, 5, and 6), there's good reason to be skeptical about whether Jesus existed.

This argument combines our principles P1 and P2 with three further premises - 2, 5 and 6 - concerning the character of the available evidence. These are the premises on which historians and Biblical scholars are better qualified than I to comment upon.

However, premise 5, is, I take it, uncontentious. Clearly, many historians also accept premise 2 (there is a significant number of Biblical historians who remain sceptical about the miracle claims made in the New Testament, and most will surely accept 2) . What of premise 6? Well, it is at least controversial among historians to what extent the evidence supplied by Josephus and Tacitus, etc. provides us good, independent evidence for the existence of an historical Jesus. Those texts provide us with some non-miracle-involving evidence for the existence of Jesus, of course, but whether it can rightly be considered good, genuinely independent evidence remains widely debated among the experts.

So, our empirical premises – 2, 5 and 6, – have some prima facie plausibility. Premises 2 and 5 have a great deal of plausibility, I suggest, and 6 is at the very least debatable.

I suspect a significant number of Biblical scholars and historians (though of course by no means all) would accept all three empirical premises. If that is so, it then raises an intriguing question: why, then, is there such a powerful consensus that those who take a sceptical attitude to Jesus’ existence are being unreasonable?

The most obvious answer to this question is that while many Biblical historians probably would accept that our three empirical premises have at least a fair degree of plausibility, and most of them probably also accept something like P1, few of them accept P2. Indeed, as we shall see below, many of them do in fact reject P2.

Assessing P2


Are there cogent objections to P2? Presumably, some sort of contamination principle is correct, for clearly, in the Ted and Sarah Case, the dubious character of the extraordinary, uncorroborated parts of their testimony about Bert does contaminate the non-extraordinary parts.

However, perhaps, as an attempt to capture the extent to which testimony concerning the extraordinary parts of a narrative can end up undermining the credibility of the more mundane parts, P2 goes too far, laying down a condition that is too strong?

After all, Alexander the Great was said to have been involved in miraculous events. Plutarch records, for example, that Alexander was miraculously guided across the desert day and night by flocks of ravens that waited for his army when it fell behind. Plutarch also suggests Alexander was divinely conceived. Should the presence of these extraordinary claims lead us to reject all of Plutarch’s claims concerning Alexander as untrustworthy? Of course not. As historian Michael Grant notes:

That there was a growth of legend round Jesus cannot be denied, and it arose very quickly. But there had also been a rapid growth of legend around pagan figures like Alexander the Great; and yet nobody regards him as wholly mythical and fictitious (200)

Indeed, no one of note is skeptical about Alexander’s existence.

However, noe of this should lead us to abandon P2. For P2 does not require that we be sceptical about the existence of Alexander. To focus just on Plutarch’s history – the miraculous claims made by Plutarch constitute only a small proportion of his account of Alexander’s achievements. Moreover, regarding the miracle of the ravens, it is not even clear we are dealing with a supernatural miracle, rather than some honestly misinterpreted natural phenomenon. Further, there is good, independent evidence that Alexander existed and did many of the things Plutarch reports (including archeological evidence of the dynasties left in his wake).

So the inclusion of a couple of miraculous elements in some of the evidence we have about Alexander is not much of a threat to our knowledge about him – and P2 does not suggest otherwise. The problem with the textual evidence for Jesus’ existence and crucifixion is that most of the details we have about him come solely from documents in which the miraculous constitutes a very large part of what is said about Jesus, where many of these miracles (walking on water, etc.) are unlikely to be merely misinterpreted natural phenomena, and where it is at least questionable whether we possess any good, independent non-miracle-involving evidence of his existence and crucifixion.

Other reasons for rejecting P2

Even if P2 does not require we be sceptical about the existence of Alexander, perhaps it still sets the bar for reasonable belief too high? In a culture in which miracle claims are rife, perhaps the inclusion of even a significant number of miracle stories within an historical narrative should not necessarily require we adopt a sceptical attitude towards what remains, even if we possess no good independent evidence for its truth. I return to this concern about P2 below (in “Does the cultural difference matter?”).

Historians may also reject P2 on other grounds. They may suggest there are particular features of textual evidence that can still rightly lead us to be confident about the truth of some of the non-miraculous parts, even if the evidence involves very many miracle claims, and even if there is no good independent evidence for the truth of the non-miraculous parts. Several criteria have been suggested for considering at least many of the non-miraculous claims made about Jesus in the New Testament documents to be accurate and indeed to be established beyond reasonable doubt.

The three most popular criteria are the criterion of multiple attestation, the criterion of embarrassment, and the criterion of discontinuity.

The criterion of multiple attestation

Several historians (such as Michael Grant and John Meier) suggest that the fact that a number of different New Testament sources make similar claims in different literary forms gives us some reason, at least, to suppose these claims are true. C. Leslie Milton goes further - he argues that the New Testament gospels draw on three recognised primary sources (Mark, Q and L), and concludes that:

If an item occurs in any one of these early sources, it has a presumptive right to be considered as probably historical in essence; if it occurs in two…that right is greatly strengthened, since it means it is supported by two early and independent witnesses. If it is supported by three, then its attestation is extremely strong.” REF P82.

Milton cites a list of claims that pass this test of “multiple attestation”, insisting they have a “strong claim to historicity on the basis of this particular test, making a solid nucleus with which to begin.” REF P83.

If we already know that Jesus existed and is likely to have said at least some of what he is alleged to have said, this criterion might provide us with a useful tool in attempting to determine which attributions are accurate and which are later fabrications.

But what if we are unsure whether there was any such person as Jesus existed? How useful is Milton’s criterion then? How can we know we are dealing with reports tracing back to the testimony of handful of independent eye-witnesses to real events, rather than, say, a skilled band of myth-makers? Consistency between accounts can indicate the extent to which their transmission from an original source or sources has been reliable, but it cannot indicate whether the source itself is reliable. As Grant notes about the homogeneity of the Gospel accounts of the life of Jesus:

one must not underestimate the possibility that this homogeneity is only achieved because of their employment of common sources, not necessarily authentic in themselves. REF p203

In fact, even if we are dealing with largely consistent reports from several alleged eye-witnesses themselves, the fact that their reports contain a large proportion of extraordinary claims will normally make us highly suspicious even about the non-miraculous parts of their testimony. If, in the Ted and Sarah case, we increase the number of alleged witnesses to Bert’s miraculous visitation from two to ten, we would still, rightly, remain rather sceptical about whether there was any such person as Bert.

The criterion of embarrassment

One of the most popular tests applied by historians in attempting to establish historical facts about Jesus is the criterion of embarrassment. The Jesus narrative involves several episodes which, from the point of view of early Christians, would seem to constitute an embarrassment. C. Leslie Milton asserts that

those items which the early Church found embarrassing are not likely to be the invention of the early Church.

Milton supposes that reports of Jesus’

attitude to the Sabbath, fasting and divorce (in contradiction to Moses’ authorization of it in certain conditions), his free-and-easy relationships with people not regarded as respectable

all pass this test.

Michael Grant also considers Jesus’ association with outcasts, his proclamation of the imminent fulfilment of the Kingdom of God (which did not materialize), and his rejection of his family “because he was beside himself” embarrassing to the early Church, and concludes these attributions are unlikely to be inventions of early evangelists. Meier too, considers the criterion of embarrassment a useful if not infallible criterion. Regarding the baptism of Jesus by John the Baptist – which raises the puzzle of why the “superior sinless one submits to a baptism meant for sinners” (REF p 168) - Meier says,

Quite plainly, the early Church was “stuck with” an event in Jesus’ life that it found increasingly embarrassing, that it tried to explain away by various means, and that John the Evangelist finally erased from his Gospel. It is highly unlikely that the Church went out of its way to create the cause of its own embarrassment” (p169)

The criterion of embarrassment is related to a further criterion – that of discontinuity (they are related because discontinuity is sometimes a source of embarrassment).

The criterion of discontinuity

Many historians assert that if a teaching or saying attributed to Jesus places him at odds with the contemporary Judaism and early Christian communities, then we possess grounds for supposing the attribution is accurate. Again, Jesus’ rejection of voluntary fasting and his acceptance of divorce are claimed to pass this test. Historian Norman Perrin considers the criterion of discontinuity the fundamental criterion, giving us an assured minimum of material with which to begin . C. Leslie Milton concurs that this criterion gives historians an “unassailable nucleus” of material to work with (REF p 84). John Meier considers the criterion promising, though he notes that it may place undue emphasis on Jesus’ idiosyncracies, “highlighting what was striking but possible peripheral in his message” (p173).

Sunday, June 7, 2009

Alan Milstein on Judge Sonia Sotomayor's Nomination

After Ohio State star running back Maurice Clarett won a sweeping victory before U.S. District Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York in his 2004 case challenging the NFL's age eligiblity rule, the NFL appealed Judge Scheindlin's ruling and a three-judge panel on the U.S. Court of Appeals for the Second Circuit heard the oral arguments. Judge Sonia Sotomayor, whom President Obama has nominated to the Supreme Court, was one of the three judges and she wrote the opinion in favor of the NFL. The opinion excluded Clarett and similarly situated players from the 2004 draft.

Alan Milstein, who has litigated on behalf of a number of star athletes, argued the case for Clarett before Judge Scheindlin and later before the three judge panel (I was on Clarett's legal team and aided Alan).

Alan was interviewed by Larry Neumeister of the Associated Press about his thoughts on Judge Sotomayor's nomination by President Obama.

Here is an excerpt from Neumeister's story:
Alan Milstein, who represented former Ohio State running back Maurice Clarett in his effort to enter the National Football League draft as a 19-year-old, remembered "very tough, very tough" questioning by Sotomayer. The appeals court overturned a lower-court judge who was going to let Clarett be drafted.

"It was obvious to me that she and the other panel members had made up their minds about this issue without looking at the briefs or even hearing the arguments," Milstein said. "I don't think she wanted to hear anything I had to say."

Milstein described the appeals court's decision as a heartbreaking denial of opportunity for his client to escape the poor, gang-infested community where he grew up. Still, Milstein said he believes Sotomayor "will make a great justice."

For the rest, click here. For other sports law opinions by Judge Sotomayer, see Geoff's recent post. And for a bit of sports law history, if you would like to read Alan's emergency application to the U.S. Supreme Court for lift of the Second Circuit's stay in the NFL's favor, click here.

Saturday, June 6, 2009

Tony La Russa Reaches Settlement over Fake Twitter Account Lawsuit

Jimmy Golen of the Associated Press interviews several people, including Harvard Law prof Wendy Seltzer and me, over St. Louis Cardinals' Manager Tony La Russa's recent lawsuit against Twitter and subsequent settlement over a guy creating a fake Twitter account, purporting to be La Russa. An excerpt of the story is below.

* * *

Tony La Russa's lawsuit against Twitter was a lot like kicking dirt on the umpire: He got a lot of attention, and he made his point, but he wasn't likely to win the argument.

"His chances are probably slim" if the case went to court, said Michael McCann, a Vermont Law School professor and contributor to the Sports Law Blog. "There were strong indications that this is parody. And given the content of the tweets, I don't think that anybody would think it was actually Tony La Russa that was doing this."

Only four people had signed up to follow the "TonyLaRussa" Twitter account when the real St. Louis Cardinals manager, a lawyer and two-time World Series champion, decided he couldn't ignore the offensive messages going out under his name. He sued the social networking site and the unidentified impostors who made light of drunken driving and the death of two Cardinals pitchers.

The potential court showdown between the manager who pioneered the three-out save and the social networking site that limits users to 140 characters was averted on Friday when the site agreed to pay his legal fees and make a donation to his Animal Rescue Foundation.

* * *

Wendy Seltzer, a fellow at Harvard's Berkman Center for Internet and Society, said the Communications Decency Act protects internet service providers from most liability in these cases. La Russa might have had a better case against the pranksters who posted the material, she said. . . . "If only four people saw that before he managed to make his complaint, it's highly unlikely his reputation was damaged in any relevant community," Seltzer said.

* * *
For the rest of the story, click here. For related coverage of La Russa, see Geoff's interesting post about managers and coaches with law degress.

Message from Simon Singh

I am passing on this message from Singh - please sign statement of support.

1. Court of Appeal and Campaign Launch

I am glad to say that on Monday I will apply to the Court of Appeal in an attempt to overturn the recent negative ruling on meaning in my libel case with the British Chiropractic Association.

Also, Sense About Science have launched a campaign linked to my libel case and focussing on the need to overhaul the English libel system, which is deeply flawed and which therefore has a chilling effect on journalism.

The campaign has issued a statement of support, which has already been signed by an incredible list of people, including James Randi, Richard Dawkins, Ricky Gervais, Sir Martin Rees, Penn & Teller, Stephen Fry, Martin Amis and Steve Jones. It would be terrific if you would also sign up to the statement and (better still) encourage others to sign up. It is conceivable that this campaign could help reform the English libel laws (which unfortunately affect overseas journalists too). Please help us move closer to having a free press.

You can find the statement and sign up at:
http://www.senseaboutscience.org.uk/libelcampaign


2. Fighting Fund

I have had many kind and generous offers of financial help, but at the moment I am able to fund my own legal costs. However, if you would like to help, then please make a donation to Sense About Science, who will need funding to maintain what could be a long battle to reform the libel laws. You can find out how to donate at:
http://www.senseaboutscience.org.uk/index.php/site/project/336


3. Cheltenham and Oxford

I will be speaking at the Cheltenham Science Festival on Saturday 6 June and at Oxford Skeptics in the Pub on Monday. More information at:
http://www.simonsingh.net/Simon_Lectures.php


And finally, a massive thanks to everyone who has been so supportive over the last month. You have genuinely played a crucial role in my decision to go to the Court of Appeal.

Cheerio,
Simon.

Ps. You can find plenty of press coverage about the libel case at the Sense About Science website, but some highlights include:
http://www.channel4.com/news/articles/uk/ouch+dr+singh+hits+back/3194057
http://www.youtube.com/watch?v=wc77Y-XBlj0
http://www.dailymail.co.uk/health/article-1190863/Stars-writer-sues-chiropractors-saying-unproven-treatment-bogus.html
http://www.independentco.uk/news/science/silenced-the-writer-who-dared-to-say-chiropractice-is-bogus-1696408.html
http://jackofkent.blogspot.com/

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Friday, June 5, 2009

apa sih twitter itu?

diambil dari wikipedia, Twitter itu adalah suatu situs web layanan jaringan sosial dan mikroblog yang memberikan fasilitas bagi pengguna untuk mengirimkan "pembaharuan" berupa tulisan teks dengan panjang maksimum 140 karakter melalui SMS, pengirim pesan instan, surat elektronik, atau aplikasi seperti Twitterrific dan Twitbin. Twitter didirikan pada Maret 2006 oleh perusahaan rintisan Obvious Corp

apa sih twitter itu?

diambil dari wikipedia, Twitter itu adalah suatu situs web layanan jaringan sosial dan mikroblog yang memberikan fasilitas bagi pengguna untuk mengirimkan "pembaharuan" berupa tulisan teks dengan panjang maksimum 140 karakter melalui SMS, pengirim pesan instan, surat elektronik, atau aplikasi seperti Twitterrific dan Twitbin. Twitter didirikan pada Maret 2006 oleh perusahaan rintisan Obvious Corp

salam pembuka twitteran

yuhuu... blog ini buat sobat-sobat belajar twitter mulai dari fungsi twitter sampai widget pendukung twitter sobat menjadi keren..... jangan lupa follow twitter saya @ristiae

salam pembuka twitteran

yuhuu... blog ini buat sobat-sobat belajar twitter mulai dari fungsi twitter sampai widget pendukung twitter sobat menjadi keren..... jangan lupa follow twitter saya @ristiae

Hubertus Stelzer


A friend in Bavaria. Other photos on my flickr site.

The Evil God Challenge

My paper The Evil God Challenge - the long, academic version of The God of Eth, has been accepted by Religious Studies.

As it has now been accepted for publication, I am also posting it for anyone to look at. The copyright now belongs to CUP.

Go here.

Be warned - it is 10K words!

Thursday, June 4, 2009

When should Congress be involved with sports?

Mike's post about Congressman Cohen's letter to David Stern urging repeal of the NBA's age limit raises an interesting question. Past efforts by members of Congress on the issue of steroids (hearings, letters to the Union and the Commissioner's Office, etc.) have been derided as political grandstanding and a waste of time and met with a jeering "don't they have better things to worry about than baseball?". Same with criticisms of, and hearings about, the BCS (led, if I recall, by Utah Senator Orrin Hatch).

So some questions: Why the seemingly (for the moment) different reaction to Cohen's letter? Would we see similar criticism of Cohen pushes for hearings on the age limit or some legislation to change the NBA's rules? And if not, why not?

Does the NBA Age Limit Violate Age Discrimination Laws?

New York labor and employment attorney Louis Pechman of Berke-Weiss & Pechman has a very interesting analysis on the possibility of the NBA's age limit violating age discrimination laws. Here is an excerpt from his piece:
Surprisingly lost in the discussion about whether age limits are appropriate for the NBA draft is the fact that many state laws prohibit employment discrimination against individuals who are eighteen or over. As playing in the NBA is employment -- albeit a dream job -- eighteen year olds are deprived of their potential employment and are thus victims of age discrimination. In New York, for example, the New York State Human Rights Law prohibits employers from refusing to hire or employ an “individual eighteen years of age or older… because of such individual’s age.” The NBA, and its players’ union, are subject to compliance with all New York employment laws, as well as other state laws which prohibit discrimination based on age.
For the rest, click here. For a post from earlier today on U.S. Congressman Steve Cohen's request that the age limit be lowered back to its old 18 year old mark, click here.

Wednesday, June 3, 2009

Congressman Steve Cohen Takes Aim at NBA Age Limit

U.S. Congressman Steve Cohen (D-Tennessee) has written to NBA commissioner David Stern and NBPA executive director Billy Hunter asking them to eliminate the NBA's age limit, which requires that a player be 19 years old plus one year removed from high school in order to be eligible for the NBA Draft (the rule was negotiated in 2005; previously, players could join the NBA right after finishing high school). The NBA and NBPA will be negotiating a new CBA in the near future and the age limit will likely be a source of tension between the two bargaining units. There are several stories on Congressman Cohen's request. Gary Parrish of CBS Sportsline has one of them and it's excerpted below.

* * *
U.S. Rep Steve Cohen (D-Tenn.) wrote a letter Wednesday to NBA commissioner David Stern and NBA Players Association executive director Billy Hunter that asks them to eliminate the league’s 19-year-old age minimum for U.S. players to enter the draft.

CBSSports.com obtained a copy of the letter from Cohen's office.

"I am writing to express my deep concern over the policy of the National Basketball Association (NBA) to bar athletes from playing in the league on the basis of their age," Cohen's letter to Stern begins. "The '19 plus 1' policy, which requires American players to be at least 19 years of age and one year removed from their high school graduating class, is unfair restriction on the rights of these young men to pursue their intended career. I also believe that it has played an important role in several recent scandals involving college students who were prevented from entering the NBA upon high school graduation. I ask that this policy be repealed when the NBA completes its new collective bargaining agreement with the NBA Player's Association."

Cohen expanded on his thoughts in an afternoon interview with CBSSports.com. He said that though he represents a district that includes Memphis, the timing of his letter is unrelated to recent news that the University of Memphis men's basketball program has been charged with major violations by the NCAA. Rather, the timing is connected to Thursday's start of the NBA Finals, and Cohen said he has long planned to send his letter this week because he expected two stars who never attended college to be participating on the sports' biggest stage.

"We've been looking at the issue since April, to be honest," Cohen said by phone. "We were expecting a Kobe-LeBron Finals, but we got a Kobe-Dwight Finals, which is just as fine because we've got two players who went straight from high school to the NBA (in the Finals), and it didn't seem to hurt them at all in their development as players."

* * *
For the rest, click here. For empirical research on high school players and the NBA Draft, see my law review article Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft and my study NBA Players That Get in Trouble with the Law: Do Age and Education Level Matter? and my research on points/boards/assists as featured in ESPN The Magazine. Also be sure to see Alan Milstein's comments from a New York Law School sports law symposium two months ago about a legal challenge to the NBA's age limit, and posts on Sonny Vaccaro's remarks about the topic.