Thursday, April 30, 2009
National Sports Law Student Writing Competition
Marquette University Law School has announced a new writing competition open to students from any law school. Winners get published in the Marquette Sports Law Review and get to attend the National Sports Law Institute fall conference for free. The deadline for submission is July 17, 2009. The announcement is here.
Wednesday, April 29, 2009
"Tort Law and Journalism Ethics"
That's the title of my new law review article that will be published in Loyola University Chicago Law Journal. It can be downloaded from SSRN. You'll appreciate this paper if you're tired of a 21st Century press that disregards individual privacy, infiltrates the news with sensationalized stories, and blames their inaccurate reporting on "getting the story out there first" (in particular with respect to participants in the sports and entertainment industries).
I advocate that the justification for the First Amendment privilege becomes less compelling as the press continues to lose credibility and journalists fail to adhere to ethics principles they were taught in journalism school. The paper provides an in-depth analysis of Supreme Court precedent and explains how journalism ethics codes can be incorporated into tort defamation and privacy law standards without compromising the First Amendment. Journalism ethics and the First Amendment go hand in hand; they must co-exist in order to serve the social policies and objectives that support the First Amendment privilege.
I advocate that the justification for the First Amendment privilege becomes less compelling as the press continues to lose credibility and journalists fail to adhere to ethics principles they were taught in journalism school. The paper provides an in-depth analysis of Supreme Court precedent and explains how journalism ethics codes can be incorporated into tort defamation and privacy law standards without compromising the First Amendment. Journalism ethics and the First Amendment go hand in hand; they must co-exist in order to serve the social policies and objectives that support the First Amendment privilege.
Irish blasphemy law proposal
There is a proposed amendment to Irish defemation legislation including an updated blasphemy Libel law. Go here.
As TheObserver and Gary C point out. The article says:
"Minister for Justice Dermot Ahern proposes to insert a new section into the Defamation Bill, stating: “A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €100,000.”
“Blasphemous matter” is defined as matter “that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.”
Where a person is convicted of an offence under this section, the court may issue a warrant authorising the Garda Síochána to enter, if necessary using reasonable force, a premises.
As TheObserver and Gary C point out. The article says:
"Minister for Justice Dermot Ahern proposes to insert a new section into the Defamation Bill, stating: “A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €100,000.”
“Blasphemous matter” is defined as matter “that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.”
Where a person is convicted of an offence under this section, the court may issue a warrant authorising the Garda Síochána to enter, if necessary using reasonable force, a premises.
The Big Questions
I will briefly be on TV this Sunday morning - BBC 1's "The Big Question". I am a "front row" audience member, which means I will be asked a couple of questions. The "big question" for that bit of the show is something along the lines of "Would Britain be a better place if it was a Christian society?" On the panel will be: Lord Carey (former Arch-bishop of Canterbury), Anne Atkins, a druid lady (called Emma, I think), and Prof. Peter Atkins.
So, would it...?
So, would it...?
Tuesday, April 28, 2009
Bohemian Rhapsody
Also from Greg's website and many others is this, which had me snorting my cornflakes. It's also weirdly touching. Stick with it...
Athiest cartoon
Sticking with atheist theme, thought you might enjoy this. From this excellent blog. Incidentally, I am on Dave Mabus's spam email list too. But I can't get cross as the guy is clearly genuinely mentally ill.
Free hugs from your friendly neighbourhood atheists
Thanks to Josh Kutchinsky for link.
http://www.nytimes.com/2009/04/27/us/27atheist.html?_r=1
More Atheists Shout It From the Rooftops
By LAURIE GOODSTEIN
Published: April 26, 2009, New York Times.
CHARLESTON, S.C. — Two months after the local atheist organization here put up a billboard saying "Don't Believe in God? You Are Not Alone," the group's 13 board members met in Laura and Alex Kasman's living room to grapple with the fallout.
The problem was not that the group, the Secular Humanists of the Lowcountry , had attracted an outpouring of hostility. It was the opposite. An overflow audience of more than 100 had showed up for their most recent public symposium, and the board members discussed whether it was time to find a larger place.
And now parents were coming out of the woodwork asking for family-oriented programs where they could meet like-minded nonbelievers.
"Is everyone in favor of sponsoring a picnic for humanists with families?" asked the board president, Jonathan Lamb, a 27-year-old meteorologist, eliciting a chorus of "ayes."
More than ever, America's atheists are linking up and speaking out — even here in South Carolina, home to Bob Jones University , blue laws and a legislature that last year unanimously approved a Christian license plate embossed with a cross, a stained glass window and the words "I Believe" (a move blocked by a judge and now headed for trial).
They are connecting on the Internet, holding meet-ups in bars, advertising on billboards and buses, volunteering at food pantries and picking up roadside trash, earning atheist groups recognition on adopt-a-highway signs.
They liken their strategy to that of the gay-rights movement, which lifted off when closeted members of a scorned minority decided to go public.
"It's not about carrying banners or protesting," said Herb Silverman, a math professor at the College of Charleston who founded the Secular Humanists of the Lowcountry, which has about 150 members on the coast of the Carolinas. "The most important thing is coming out of the closet."
Polls show that the ranks of atheists are growing. The American Religious Identification Survey , a major study released last month, found that those who claimed "no religion" were the only demographic group that grew in all 50 states in the last 18 years.
Nationally, the "nones" in the population nearly doubled, to 15 percent in 2008 from 8 percent in 1990. In South Carolina, they more than tripled, to 10 percent from 3 percent. Not all the "nones" are necessarily committed atheists or agnostics, but they make up a pool of potential supporters.
Local and national atheist organizations have flourished in recent years, fed by outrage over the Bush administration's embrace of the religious right. A spate of best-selling books on atheism also popularized the notion that nonbelief is not just an argument but a cause, like environmentalism or muscular dystrophy.
Ten national organizations that variously identify themselves as atheists, humanists, freethinkers and others who go without God have recently united to form the Secular Coalition for America , of which Mr. Silverman is president. These groups, once rivals, are now pooling resources to lobby in Washington for separation of church and state.
A wave of donations, some in the millions of dollars, has enabled the hiring of more paid professional organizers, said Fred Edwords , a longtime atheist leader who just started his own umbrella group, the United Coalition of Reason , which plans to spawn 20 local groups around the country in the next year.
Despite changing attitudes, polls continue to show that atheists are ranked lower than any other minority or religious group when Americans are asked whether they would vote for or approve of their child marrying a member of that group.
Over lunch with some new atheist joiners at a downtown Charleston restaurant serving shrimp and grits, one young mother said that her husband was afraid to allow her to go public as an atheist because employers would refuse to hire him.
But another member, Beverly Long, a retired school administrator who now teaches education at the Citadel , said that when she first moved to Charleston from Toronto in 2001, "the first question people asked me was, What church do you belong to?" Ms. Long attended Wednesday dinners at a Methodist church, for the social interaction, but never felt at home. Since her youth, she had doubted the existence of God but did not discuss her views with others.
Ms. Long found the secular humanists through a newspaper advertisement and attended a meeting. Now, she is ready to go public, she said, especially after doing some genealogical research recently. "I had ancestors who fought in the American Revolution so I could speak my mind," she said.
Until recent years, the Secular Humanists of the Lowcountry were local pariahs. Mr. Silverman — whose specialty license plate , one of many offered by the state, says "In Reason We Trust" — was invited to give the invocation at the Charleston City Council once, but half the council members walked out. The local chapter of Habitat for Humanity would not let the Secular Humanists volunteer to build houses wearing T-shirts that said "Non Prophet Organization," he said.
When their billboard went up in January, with their Web site address displayed prominently, they expected hate mail.
"But most of the e-mails were grateful," said Laura Kasman, an assistant professor of microbiology and immunology at the Medical University of South Carolina.
The board members meeting in the Kasmans' living room were an unlikely mix that included a gift store owner, a builder, a grandmother, a retired nursing professor, a retired Navy officer, an administrator at a primate sanctuary and a church musician. They are also diverse in their attitudes toward religion.
Loretta Haskell, the church musician, said: "I did struggle at one point as to whether or not I should be making music in churches, given my position on things. But at the same time I like using my music to move people, to give them comfort. And what I've found is, I am not one of the humanists who feels that religion is a bad thing."
The group has had mixed reactions to President Obama , who acknowledged nonbelievers in his inauguration speech. "I sent him a thank-you note," Ms. Kasman said. But Sharon Fratepietro, who is married to Mr. Silverman, said, "It seemed like one long religious ceremony, with a moment of lip service."
Part of what is giving the movement momentum is the proliferation of groups on college campuses. The Secular Student Allianc e now has 146 chapters, up from 42 in 2003.
At the University of South Carolina , in Columbia, 19 students showed up for a recent evening meeting of the "Pastafarians," named for the Church of the Flying Spaghetti Monster — a popular spoof on religion dreamed up by an opponent of intelligent design, the idea that living organisms are so complex that the best explanation is that a higher intelligence designed them.
Andrew Cederdahl, the group's co-founder, asked for volunteers for the local food bank and for a coming debate with a nearby Christian college. Then Mr. Cederdahl opened the floor to members to tell their "coming out stories."
Andrew Morency, who attended a Christian high school, said that when he got to college and studied evolutionary biology he decided that "creationists lie."
Josh Streetman, who once attended the very Christian college that the Pastafarians were about to debate, said he knew the Bible too well to be sure that Scripture is true. Like Mr. Streetman, many of the other students at the meeting were highly literate in the Bible and religious history.
In keeping with the new generation of atheist evangelists, the Pastafarian leaders say that their goal is not confrontation, or even winning converts, but changing the public's stereotype of atheists. A favorite Pastafarian activity is to gather at a busy crossroads on campus with a sign offering "Free Hugs" from "Your Friendly Neighborhood Atheist."
A version of this article appeared in print on April 27, 2009, on page A1 of the New York edition.
http://www.nytimes.com/2009/04/27/us/27atheist.html?_r=1
More Atheists Shout It From the Rooftops
By LAURIE GOODSTEIN
Published: April 26, 2009, New York Times.
CHARLESTON, S.C. — Two months after the local atheist organization here put up a billboard saying "Don't Believe in God? You Are Not Alone," the group's 13 board members met in Laura and Alex Kasman's living room to grapple with the fallout.
The problem was not that the group, the Secular Humanists of the Lowcountry , had attracted an outpouring of hostility. It was the opposite. An overflow audience of more than 100 had showed up for their most recent public symposium, and the board members discussed whether it was time to find a larger place.
And now parents were coming out of the woodwork asking for family-oriented programs where they could meet like-minded nonbelievers.
"Is everyone in favor of sponsoring a picnic for humanists with families?" asked the board president, Jonathan Lamb, a 27-year-old meteorologist, eliciting a chorus of "ayes."
More than ever, America's atheists are linking up and speaking out — even here in South Carolina, home to Bob Jones University , blue laws and a legislature that last year unanimously approved a Christian license plate embossed with a cross, a stained glass window and the words "I Believe" (a move blocked by a judge and now headed for trial).
They are connecting on the Internet, holding meet-ups in bars, advertising on billboards and buses, volunteering at food pantries and picking up roadside trash, earning atheist groups recognition on adopt-a-highway signs.
They liken their strategy to that of the gay-rights movement, which lifted off when closeted members of a scorned minority decided to go public.
"It's not about carrying banners or protesting," said Herb Silverman, a math professor at the College of Charleston who founded the Secular Humanists of the Lowcountry, which has about 150 members on the coast of the Carolinas. "The most important thing is coming out of the closet."
Polls show that the ranks of atheists are growing. The American Religious Identification Survey , a major study released last month, found that those who claimed "no religion" were the only demographic group that grew in all 50 states in the last 18 years.
Nationally, the "nones" in the population nearly doubled, to 15 percent in 2008 from 8 percent in 1990. In South Carolina, they more than tripled, to 10 percent from 3 percent. Not all the "nones" are necessarily committed atheists or agnostics, but they make up a pool of potential supporters.
Local and national atheist organizations have flourished in recent years, fed by outrage over the Bush administration's embrace of the religious right. A spate of best-selling books on atheism also popularized the notion that nonbelief is not just an argument but a cause, like environmentalism or muscular dystrophy.
Ten national organizations that variously identify themselves as atheists, humanists, freethinkers and others who go without God have recently united to form the Secular Coalition for America , of which Mr. Silverman is president. These groups, once rivals, are now pooling resources to lobby in Washington for separation of church and state.
A wave of donations, some in the millions of dollars, has enabled the hiring of more paid professional organizers, said Fred Edwords , a longtime atheist leader who just started his own umbrella group, the United Coalition of Reason , which plans to spawn 20 local groups around the country in the next year.
Despite changing attitudes, polls continue to show that atheists are ranked lower than any other minority or religious group when Americans are asked whether they would vote for or approve of their child marrying a member of that group.
Over lunch with some new atheist joiners at a downtown Charleston restaurant serving shrimp and grits, one young mother said that her husband was afraid to allow her to go public as an atheist because employers would refuse to hire him.
But another member, Beverly Long, a retired school administrator who now teaches education at the Citadel , said that when she first moved to Charleston from Toronto in 2001, "the first question people asked me was, What church do you belong to?" Ms. Long attended Wednesday dinners at a Methodist church, for the social interaction, but never felt at home. Since her youth, she had doubted the existence of God but did not discuss her views with others.
Ms. Long found the secular humanists through a newspaper advertisement and attended a meeting. Now, she is ready to go public, she said, especially after doing some genealogical research recently. "I had ancestors who fought in the American Revolution so I could speak my mind," she said.
Until recent years, the Secular Humanists of the Lowcountry were local pariahs. Mr. Silverman — whose specialty license plate , one of many offered by the state, says "In Reason We Trust" — was invited to give the invocation at the Charleston City Council once, but half the council members walked out. The local chapter of Habitat for Humanity would not let the Secular Humanists volunteer to build houses wearing T-shirts that said "Non Prophet Organization," he said.
When their billboard went up in January, with their Web site address displayed prominently, they expected hate mail.
"But most of the e-mails were grateful," said Laura Kasman, an assistant professor of microbiology and immunology at the Medical University of South Carolina.
The board members meeting in the Kasmans' living room were an unlikely mix that included a gift store owner, a builder, a grandmother, a retired nursing professor, a retired Navy officer, an administrator at a primate sanctuary and a church musician. They are also diverse in their attitudes toward religion.
Loretta Haskell, the church musician, said: "I did struggle at one point as to whether or not I should be making music in churches, given my position on things. But at the same time I like using my music to move people, to give them comfort. And what I've found is, I am not one of the humanists who feels that religion is a bad thing."
The group has had mixed reactions to President Obama , who acknowledged nonbelievers in his inauguration speech. "I sent him a thank-you note," Ms. Kasman said. But Sharon Fratepietro, who is married to Mr. Silverman, said, "It seemed like one long religious ceremony, with a moment of lip service."
Part of what is giving the movement momentum is the proliferation of groups on college campuses. The Secular Student Allianc e now has 146 chapters, up from 42 in 2003.
At the University of South Carolina , in Columbia, 19 students showed up for a recent evening meeting of the "Pastafarians," named for the Church of the Flying Spaghetti Monster — a popular spoof on religion dreamed up by an opponent of intelligent design, the idea that living organisms are so complex that the best explanation is that a higher intelligence designed them.
Andrew Cederdahl, the group's co-founder, asked for volunteers for the local food bank and for a coming debate with a nearby Christian college. Then Mr. Cederdahl opened the floor to members to tell their "coming out stories."
Andrew Morency, who attended a Christian high school, said that when he got to college and studied evolutionary biology he decided that "creationists lie."
Josh Streetman, who once attended the very Christian college that the Pastafarians were about to debate, said he knew the Bible too well to be sure that Scripture is true. Like Mr. Streetman, many of the other students at the meeting were highly literate in the Bible and religious history.
In keeping with the new generation of atheist evangelists, the Pastafarian leaders say that their goal is not confrontation, or even winning converts, but changing the public's stereotype of atheists. A favorite Pastafarian activity is to gather at a busy crossroads on campus with a sign offering "Free Hugs" from "Your Friendly Neighborhood Atheist."
A version of this article appeared in print on April 27, 2009, on page A1 of the New York edition.
Sunday, April 26, 2009
Standing Stone, Arran
Shot up to Isle of Arran (Scotland) for 4 nights with family after US trip. It's a fantastic place. Just don't go in the midge season. My photos at flickr.
CFI UK - Science and Reason
The Science and Reason event attracted over 100 and was very successful. Mary Warnock could not come, and so I replaced her with Dr Raj Persaud, who was excellent (many commented afterwards on how good he was).
Simon Singh's and Jack Cohen's talks were fascinating. If you have not joined yet I would encourage you to join the "For Simon Singh and Freedom of Speech" facebook page.
And of course the Centre for Inquiry UK facebook page for email notice of our events.
Monsters from the Deep is on 7th November. There will be another event in meantime as well.
Friday, April 24, 2009
What's the point of a family if it all ends in death?
I found this very interesting. This chap thinks there is no point in having a family if we all die. An after life is required.
Actually, going off on a slight tangent, I do sometimes wonder whether it is morally acceptable to have children. Life can be great, but there is also a great deal about it which is absolutely horrific and terrifying, including the prospect of disease, and inevitable decay and death. What right have we to introduce beings who are then faced with that horror (which is crippling for many)?
When I was doing the B.Phil, a fellow student - very able - wrote her thesis defending the claim that it is morally wrong to bring children into the world without their permission (which they obviously can't give). I did not get to read her thesis or look at her arguments, but once you start to think about it, certain arguments do suggest themselves.
Actually, going off on a slight tangent, I do sometimes wonder whether it is morally acceptable to have children. Life can be great, but there is also a great deal about it which is absolutely horrific and terrifying, including the prospect of disease, and inevitable decay and death. What right have we to introduce beings who are then faced with that horror (which is crippling for many)?
When I was doing the B.Phil, a fellow student - very able - wrote her thesis defending the claim that it is morally wrong to bring children into the world without their permission (which they obviously can't give). I did not get to read her thesis or look at her arguments, but once you start to think about it, certain arguments do suggest themselves.
Wednesday, April 22, 2009
Jeremy Tyler: High School Junior Basketball Phenom to Play Professionally in Europe
The NBA's one-and-done rule requires that a player be 19 years of age plus one year removed from high school (with "from high school" meaning having graduated from high school or one's class having graduated) in order to be eligible for the NBA draft. It's presumed that a player will attend college in that "one year removed" and save for Brandon Jennings, it's held true. Jennings, in contrast, has opted to play professionally in Italy while waiting to become eligible for the 2009 NBA Draft (he's likely going to be a top 10 pick). In addition to living in a rent-free luxury apartment in downtown Rome, among enjoying many other perks, Jennings is reportedly earning around $1 million this year, after tax, between basketball and endorsement income (in fact, he stands to earn more in endorsement income this year than any pick from the 2008 NBA Draft, save for the top three players selected, Michael Beasely, Derrick Rose, and O.J. Mayo).Pete Thamel of the New York Times reports that high school junior Jeremy Tyler, thought to be the best young big man since Greg Oden, has also decided to play professionally in Europe. But Tyler plans to play in Europe a year earlier than his "one year removed." Indeed, he intends to spend what would be his senior year in high school playing professionally in Europe, most likely in Spain. Tyler's decision is consistent with the NBA's age limit, as his high school graduating class will graduate in June 2010 and thus Tyler will be eligible for the 2011 NBA Draft, where he's projected by some to be the top pick.
Tyler has apparently decided that he'd like to earn income off of his talents as soon as the market lets him, rather than waiting for an artificial two-year delay, during which time he could get hurt. Some may worry about whether Tyler's emotionally "ready" to turn pro, though I hope those same folks worried about Freddy Adu and Michelle Wie turning pro at younger ages, and I hope they are equally worried that many European pro players are younger than Tyler -- Danilo Gallinari, the Knicks' first round pick last year, was a pro in Europe at 15; fellow Celtics fans may remember Jiri Welsch, he too was a pro at 15 in Europe. Similarly, we don't hear people too concerned about Dakota Fanning and the Olson Twins and the many other child stars earning income off of their talents.
Here are a couple of excerpts from Thamel's story:
For the rest of Thamel's story, click here. For additional perspectives see The Week and Money Players.* * *Tyler, 17, would become the first United States-born player to leave high school early to play professionally overseas. He is expected to return in two years, when he is projected to be a top pick, if not the No. 1 pick, in the 2011 NBA draft.
Tyler, who had orally committed to play for Rick Pitino at Louisville, has yet to sign with an agent or a professional team. His likely destination is Spain, though teams from other European leagues have shown interest. A spokesman for Louisville said the university could not comment about Tyler.
“Nowadays people look to college for more off-the-court stuff versus being in the gym and getting better,” Tyler said. “If you’re really focused on getting better, you go play pro somewhere. Pro guys will get you way better than playing against college guys.”
His decision is perhaps the most important one since Kevin Garnett jumped straight to the N.B.A. from high school in 1995.
* * *But Brandon Jennings, a point guard from Los Angeles, became the first player to graduate from high school, skip college and play professionally in Europe. (Whether Jennings would have qualified academically to play at Arizona, where he had signed a letter of intent, is unknown.) He is in his first season with Lottomatica Virtus Roma in Italy and is projected as a high pick in the N.B.A. draft in June.
Tyler took Jennings’s path and added a compelling twist, perhaps opening the door for other elite high school basketball players to follow.
Sonny Vaccaro, a former sneaker company executive, orchestrated Jennings’s move and has guided Tyler and his family through the process.
“It’s significant because it shows the curiosity for the American player just refusing to accept what he’s told he has to do,” Vaccaro said. “We’re getting closer to the European reality of a professional at a young age. Basically, Jeremy Tyler is saying, ‘Why do I have to go to high school?’ ”
Vaccaro said he was unsure how much money Tyler would make, though it will most likely be less than the $1.2 million Jennings made in a combination of salary and endorsements this season. Vaccaro said Tyler would make a six-figure salary, noting that the economic crisis in Europe could hurt his earnings.
Vaccaro made his name by signing Michael Jordan to Nike in the mid-1980s and has advised numerous elite players over the years. “I believe he’ll be a 10-time All-Star with his ability,” Vaccaro said of Tyler.* * *
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 a month ago about a Taylor-like situation happening and the legal fallout.
Tuesday, April 21, 2009
Catching Up with Links
* Joshua Knipp and Michael Miller -- two students at Wake Forest University School of Law -- have posted on SSRN a draft of their interesting paper Finding a Balance: Advocating a Long-Term Solution to the NCAA's Battle with Technology in Recruiting.
* The annual Sports Lawyers Association Conference is coming up on May 14 in Chicago. For more information, click here.
* Max Eppel of Sports Agent Blog has a good feature piece on soccer agents and transfer windows.
* Jason Peck of Sports Agent Blog reports on the recently-held College Sport Research Institute conference (Day 1, Day 2).
* National Sports and Entertainment Law Society Blog has a number of good posts up.
* Marc Isenberg at Money Players writes about the NCAA reducing the time period underclassmen basketball players can test their NBA market value.
* I'll be at the NFL Draft this weekend -- if any Sports Law Blog readers are there, please let me know, it would be good to meet you in person.
* The annual Sports Lawyers Association Conference is coming up on May 14 in Chicago. For more information, click here.
* Max Eppel of Sports Agent Blog has a good feature piece on soccer agents and transfer windows.
* Jason Peck of Sports Agent Blog reports on the recently-held College Sport Research Institute conference (Day 1, Day 2).
* National Sports and Entertainment Law Society Blog has a number of good posts up.
* Marc Isenberg at Money Players writes about the NCAA reducing the time period underclassmen basketball players can test their NBA market value.
* I'll be at the NFL Draft this weekend -- if any Sports Law Blog readers are there, please let me know, it would be good to meet you in person.
Monday, April 20, 2009
Condoms, Catholics and HIV - more
On a previous post on the RC position on using condoms, some have objected that it would be unreasonable for the RC Church to agree to say "You ought not have gay sex, but if you are going to, use a condom."
The suggestion is there is something inconsistent about saying such a thing. After all, we would not say "You should not rob houses, but if you do, don't cause more damage than you need to" or "You should not rape, but if you do, use a condom".
It's true that these are not things we would say. But why not?
There is a subtle distinction we need to make here.
Sometimes it is perfectly reasonable to say: You ought not to X, but if you are going to X, do Y. Other times less reasonable.
Doctor: You ought not to drink, but if you are going to, avoid spirits.
Nothing unreasonable about that. Jolly good advice for certain medical conditions! In fact, if the doctor thought you were likely to drink, it would be irresponsible of him not to add the caveat "but if you are going to....".
If you want a moral example:
Animal rights activist: You ought not to keep pets, but if you are going to, treat them humanely.
That's a reasonable position, and certainly consistent.
This seems odd though:
You ought not to rape, but if you are going to, use a condom.
But why? It is not inconsistent, I think. But it seems a silly thing to say because:
(i) anyone who rapes doesn't give a stuff about their victim, and so won't bother protecting them with a condom. So it's a pointless request (hence rather ridiculous, if safeguarding the victim is the aim). Ditto the remark to potential burglars (if they do have some concern for victims, they'll keep damage to a minimum anyway; if they don't, the advice is pointless). And
(ii) in the animal rights case, the activist recognizes you may not share their fairly unusual moral position, and so it is reasonable for them to add that even if you don't agree with them about keeping pets, you should still treat your pets humanely. But it is odd to add something similar about rape/burglary, as presumably the rapist/burglar knows what he does is wrong.
Note that for the RC Church to say "You ought not to have homosexual sex, but if you are going to, use a condom" would involve (i) no inconsistency, and, indeed, (ii) not even any of oddness of the sort that attaches to the parallel remarks about rape and burglary.
There may be other reasons why the RC feel they should not say such a thing, but to suggest that it's never reasonable to say "Don't do X, but if you are going to, do Y" is just a mistake.
Indeed, "Don't do X, but if you are going to, do Y" is often a reasonable thing to say, and in these above cases where it isn't, what makes it unreasonable does not make it unreasonable for the RC to say "Don't have gay sex, but if you do, use a condom."
POSTSCRIPT 21ST APRIL. A further thought: Note that the RC Church itself issues such qualified moral pronouncements:
You should not sin, but if you are going to sin, make sure you go to confession afterwards!
Note this applies no matter how serious the sin! (WZ: Also note that it is directed specifically at Catholics, just as you suppose the sexual prohibition is).
The suggestion is there is something inconsistent about saying such a thing. After all, we would not say "You should not rob houses, but if you do, don't cause more damage than you need to" or "You should not rape, but if you do, use a condom".
It's true that these are not things we would say. But why not?
There is a subtle distinction we need to make here.
Sometimes it is perfectly reasonable to say: You ought not to X, but if you are going to X, do Y. Other times less reasonable.
Doctor: You ought not to drink, but if you are going to, avoid spirits.
Nothing unreasonable about that. Jolly good advice for certain medical conditions! In fact, if the doctor thought you were likely to drink, it would be irresponsible of him not to add the caveat "but if you are going to....".
If you want a moral example:
Animal rights activist: You ought not to keep pets, but if you are going to, treat them humanely.
That's a reasonable position, and certainly consistent.
This seems odd though:
You ought not to rape, but if you are going to, use a condom.
But why? It is not inconsistent, I think. But it seems a silly thing to say because:
(i) anyone who rapes doesn't give a stuff about their victim, and so won't bother protecting them with a condom. So it's a pointless request (hence rather ridiculous, if safeguarding the victim is the aim). Ditto the remark to potential burglars (if they do have some concern for victims, they'll keep damage to a minimum anyway; if they don't, the advice is pointless). And
(ii) in the animal rights case, the activist recognizes you may not share their fairly unusual moral position, and so it is reasonable for them to add that even if you don't agree with them about keeping pets, you should still treat your pets humanely. But it is odd to add something similar about rape/burglary, as presumably the rapist/burglar knows what he does is wrong.
Note that for the RC Church to say "You ought not to have homosexual sex, but if you are going to, use a condom" would involve (i) no inconsistency, and, indeed, (ii) not even any of oddness of the sort that attaches to the parallel remarks about rape and burglary.
There may be other reasons why the RC feel they should not say such a thing, but to suggest that it's never reasonable to say "Don't do X, but if you are going to, do Y" is just a mistake.
Indeed, "Don't do X, but if you are going to, do Y" is often a reasonable thing to say, and in these above cases where it isn't, what makes it unreasonable does not make it unreasonable for the RC to say "Don't have gay sex, but if you do, use a condom."
POSTSCRIPT 21ST APRIL. A further thought: Note that the RC Church itself issues such qualified moral pronouncements:
You should not sin, but if you are going to sin, make sure you go to confession afterwards!
Note this applies no matter how serious the sin! (WZ: Also note that it is directed specifically at Catholics, just as you suppose the sexual prohibition is).
Local News "Seeks the Truth"
I want to commend the Louisville Fox affiliate, WDRB-41, for its decision not to air, or even report on, its interview with Karen Sypher, the woman Louisville coach Rick Pitino asserts has attempted to extort him. According to an ESPN report late last night:
Karen Sypher recently did a lengthy interview with the Louisville Fox affiliate, WDRB-41, but the station reported Saturday night that it "has decided not to relate details of her claims at this time."
WDRB news anchor Candyce Clifft, who conducted the interview with Karen Sypher, said the station has chosen not to air it because "we couldn't substantiate the claims she was making." Clifft said the claims against Pitino were "of a personal nature, not related to his recruiting or coaching. That's all I'm at liberty to say."
Clifft said Sypher approached WDRB with the information.
Clifft said she interviewed Sypher for nearly two hours on-camera, in the presence of WDRB's general manager and news director. Afterward, the station had an independent polygraph expert administer a lie-detector test to Sypher -- a test she agreed to do before the interview.
Clifft said that the polygraph test could have any of three results: pass, fail or inconclusive. She said Sypher's test fell into the inconclusive range. Clifft said there were some questions she asked that Sypher did not answer conclusively or convincingly, which heightened the station's concerns about the veracity of her information.
Coupled with the fact that there were no criminal complaints filed or charges
levied, the station decided not to air the interview.
"I don't know if we'll ever air all or any of the interview," Clifft said. "Right now there
are no plans to do that."
The local Fox affiliate, and the reporter who conducted the interview, made journalism ethics a priority over national publicity in being the first source to reveal questionable allegations involving Rick Pitino that are unrelated to his coaching responsibilities. Since Pitino is a public figure, the Fox affiliate could have easily hid behind the First Amendment, which certainly would have protected them from a defamation lawsuit.
Another news source will gladly put journalism ethics aside in favor of profiting from tabloid journalism and feed the public with a sensationalized story, probably even before the day is over....
State action and the Yankees Lawsuit
In writing and speaking about fans' speech rights, the speech part always has seemed, to me, easy--of course someone can wear a t-shirt reading "Yankees Suck" and of course someone can jeer a player for making an error. And of course someone cannot be compelled to participate in a patriotic ritual such as singing "God Bless America." The harder part (at least at professional sporting events) has been whether the First Amendment is even in play when the controlling actor--the teams--are not obviously state actors. The lawsuit by the fan who was kicked out of Yankee Stadium in 2008 spends a lot of time in the Complaint trying to deal with, and overcome, that problem.
Two preliminary issues make this case both easier and more difficult than others. First, old Yankee Stadium was owned by the City of New York (the Complaint alleges the City bought it in the early 1970s) and rented to the Yankees, on (as usual) fairly favorable terms. This does not resolve the issue, but it makes for less gray area than if the stadium were privately owned but publicly funded or owned by hybrid entity. Second, this case involves three groups of defendants, each subject to different rules of state action and liability: a) the Yankees, who promulgated the forced-patriotism policy); b) the officers who removed the plaintiff from the park; and c) New York and Police Commissioner Kelly, who obviously acted under color of law, although the theory of liability is not entirely clear from the complaint.
Let's consider each in turn:
The Yankees:
Eight paragraphs are devoted to the connections among the City, the Yankees, and the Stadium. It describes the costs that the City has incurred in operating the old Stadium and building the new Stadium, the benefits the City has received (in terms of either rent or percentage of revenues), the favorable terms of the lease to the Yankees, and the close involvement of the City in managing the stadium, including (relevant here, although not mentioned in the Complaint) providing the security that enforced the policy, and in helping procure funds for the new stadium. All of this goes towards establishing the Yankees as a state actor under two theories: symbiotic relationship or entwinement.
Under the former test, a private entity may become a state actor when it shares a "symbiotic," mutually beneficial relationship--where the government incurs some costs and obligations, the government and private entity both benefit, and the "integral connection" suggest a degree of state involvement in the private entity's unconstitutional conduct. The key here is whether Burton and symbiotic relationship has any vitality left (Mike Dorf has suggested it doesn't, I remain somewhat optimistic). Burton famously involved a privately owned whites-only restaurant operating in a city parking facility. In those pre-Civil Rights Act days, the Court used this test to hold that the restaurant was was violating the Fourteenth Amendment, because, essentially, the city was benefiting from private discrimination (because rents were tied to profits and the restaurant was profitable because it discriminated) and the restaurant was benefiting from using public property to discriminate. Here, those mutual benefits come about not because of race discrimination, but because of rules that arguably violate the First Amendment--but the same idea applies. Rents are tied to attendance and attendance depends (at least somewhat) on keeping most fans happy by not forcing them to be confronted by counter-speech that offends them, thus the team's decision to limit some fan speech by making fans remain in place during GBA
Under the second test (which is new, but created in the First Amendment context), courts look to entwinement between government and private entity in carrying out the conduct. So it may be relevant, for example, that uniformed police officers (who appear to be on duty) are enforcing the Yankees' rules in this public space (more on that below).
The Officers
The two Doe officers were in uniform, although their precise duty status is unclear. According to the Complaint, they were hired through the NYPD's "Paid Detail Program," through which private entities (and several other New York sports teams have used this program) are able to hire NYPD officers to provide security at events. Such officers are in uniform and carrying their service firearms, and subject to NYPD regulations, although there apparently are no specific guidelines about officer conduct while working under the program. The officers also are subject to control by the private entity and are deemed to be "working directly for the vendor." So there seems to be public/private entwinement in the supervision and control of the officers assigned to work the game.
The Complaint also alleges that the officers at least "appear" to be on duty and thus clothed with the authority that comes with being police officers, perhaps a greater authority (and thus a greater ability to enforce Stadium rules) than an off-duty, non-uniformed officer or a private security officer. In fact, the Complaint alleges that the purpose of the Paid Detail Program is to provide a "highly visible police presence" at such events--presumably with the goal of ensuring greater control; in other words, to make it appear that the authority of the NYPD was behind the enforcement of the team's speech-restrictive policies. That suggests the officers were working at the game in their roles as police officers and thus did act under color of law in removing the plaintiff from the park.
New York City and Commissioner Kelly
State action is easy here--New York City always acts under color of law and Kelly is being sued for establishing (or at least signing off on) the Paid Detail Program that put the officers in place to enforce this speech-violative Stadium policy, an official act as the policymaker for the NYPD. The Complaint is a bit under-developed in alleging conduct by the City or Kelly (as a supervisor) that could establish liability, but a knowledgeable reader (the court and opposing counsel) will understand that, because the officers were present at the Stadium and acting pursuant to a policy, that pulls the policymaker and the City into the case.
Two preliminary issues make this case both easier and more difficult than others. First, old Yankee Stadium was owned by the City of New York (the Complaint alleges the City bought it in the early 1970s) and rented to the Yankees, on (as usual) fairly favorable terms. This does not resolve the issue, but it makes for less gray area than if the stadium were privately owned but publicly funded or owned by hybrid entity. Second, this case involves three groups of defendants, each subject to different rules of state action and liability: a) the Yankees, who promulgated the forced-patriotism policy); b) the officers who removed the plaintiff from the park; and c) New York and Police Commissioner Kelly, who obviously acted under color of law, although the theory of liability is not entirely clear from the complaint.
Let's consider each in turn:
The Yankees:
Eight paragraphs are devoted to the connections among the City, the Yankees, and the Stadium. It describes the costs that the City has incurred in operating the old Stadium and building the new Stadium, the benefits the City has received (in terms of either rent or percentage of revenues), the favorable terms of the lease to the Yankees, and the close involvement of the City in managing the stadium, including (relevant here, although not mentioned in the Complaint) providing the security that enforced the policy, and in helping procure funds for the new stadium. All of this goes towards establishing the Yankees as a state actor under two theories: symbiotic relationship or entwinement.
Under the former test, a private entity may become a state actor when it shares a "symbiotic," mutually beneficial relationship--where the government incurs some costs and obligations, the government and private entity both benefit, and the "integral connection" suggest a degree of state involvement in the private entity's unconstitutional conduct. The key here is whether Burton and symbiotic relationship has any vitality left (Mike Dorf has suggested it doesn't, I remain somewhat optimistic). Burton famously involved a privately owned whites-only restaurant operating in a city parking facility. In those pre-Civil Rights Act days, the Court used this test to hold that the restaurant was was violating the Fourteenth Amendment, because, essentially, the city was benefiting from private discrimination (because rents were tied to profits and the restaurant was profitable because it discriminated) and the restaurant was benefiting from using public property to discriminate. Here, those mutual benefits come about not because of race discrimination, but because of rules that arguably violate the First Amendment--but the same idea applies. Rents are tied to attendance and attendance depends (at least somewhat) on keeping most fans happy by not forcing them to be confronted by counter-speech that offends them, thus the team's decision to limit some fan speech by making fans remain in place during GBA
Under the second test (which is new, but created in the First Amendment context), courts look to entwinement between government and private entity in carrying out the conduct. So it may be relevant, for example, that uniformed police officers (who appear to be on duty) are enforcing the Yankees' rules in this public space (more on that below).
The Officers
The two Doe officers were in uniform, although their precise duty status is unclear. According to the Complaint, they were hired through the NYPD's "Paid Detail Program," through which private entities (and several other New York sports teams have used this program) are able to hire NYPD officers to provide security at events. Such officers are in uniform and carrying their service firearms, and subject to NYPD regulations, although there apparently are no specific guidelines about officer conduct while working under the program. The officers also are subject to control by the private entity and are deemed to be "working directly for the vendor." So there seems to be public/private entwinement in the supervision and control of the officers assigned to work the game.
The Complaint also alleges that the officers at least "appear" to be on duty and thus clothed with the authority that comes with being police officers, perhaps a greater authority (and thus a greater ability to enforce Stadium rules) than an off-duty, non-uniformed officer or a private security officer. In fact, the Complaint alleges that the purpose of the Paid Detail Program is to provide a "highly visible police presence" at such events--presumably with the goal of ensuring greater control; in other words, to make it appear that the authority of the NYPD was behind the enforcement of the team's speech-restrictive policies. That suggests the officers were working at the game in their roles as police officers and thus did act under color of law in removing the plaintiff from the park.
New York City and Commissioner Kelly
State action is easy here--New York City always acts under color of law and Kelly is being sued for establishing (or at least signing off on) the Paid Detail Program that put the officers in place to enforce this speech-violative Stadium policy, an official act as the policymaker for the NYPD. The Complaint is a bit under-developed in alleging conduct by the City or Kelly (as a supervisor) that could establish liability, but a knowledgeable reader (the court and opposing counsel) will understand that, because the officers were present at the Stadium and acting pursuant to a policy, that pulls the policymaker and the City into the case.
Saturday, April 18, 2009
Reaction to Thomas among FIU factulty
Not surprised this is happening: The director of women's studies at FIU is organizing protests against the hiring of Isiah Thomas as men's basketball coach, relating to Thomas having been found liable (along with the Knicks and the team owner) for the sexual harassment of a Knicks employee.
I was surprised we did not hear more from these faculty members early in the week, from when the rumors of the hiring began on Sunday until the press conference on Wednesday. But it all happened so quickly, no one had time to get a statement or protest organized. But this is a legitimate objection to the hiring, one I mentioned initially and one that I hope gave the administration genuine pause before making this move. This is the one element of risk (more than Thomas' ability as a basketball coach and recruiter, where he cannot be much worse than recent past coaches) that could come back to bite the university.
Women's studies is planning to hand-deliver a copy of the FIU Sexual Harassment Policy to Thomas at the men's basketball office--a cute, but somewhat in-your-face, publicity stunt if the goal is genuinely to engage Thomas on this issue. They also want to organize a teach-in on sexual harassment and discrimination, with the hope that Thomas, athletics department administrators, and the new FIU president (who will be announced in a couple of weeks) will participate.
I was surprised we did not hear more from these faculty members early in the week, from when the rumors of the hiring began on Sunday until the press conference on Wednesday. But it all happened so quickly, no one had time to get a statement or protest organized. But this is a legitimate objection to the hiring, one I mentioned initially and one that I hope gave the administration genuine pause before making this move. This is the one element of risk (more than Thomas' ability as a basketball coach and recruiter, where he cannot be much worse than recent past coaches) that could come back to bite the university.
Women's studies is planning to hand-deliver a copy of the FIU Sexual Harassment Policy to Thomas at the men's basketball office--a cute, but somewhat in-your-face, publicity stunt if the goal is genuinely to engage Thomas on this issue. They also want to organize a teach-in on sexual harassment and discrimination, with the hope that Thomas, athletics department administrators, and the new FIU president (who will be announced in a couple of weeks) will participate.
Thursday, April 16, 2009
Two Sports Law Talks at Mississippi College School of Law
If any of you are in the Jackson area, I'lll be giving a talk today at Mississippi College School of Law from 11:30 a.m. to 1:00 p.m. on recent sports law issues and careers in sports law. It will be in Room 251 and directions to the law school can be found here. There is also a Facebook page on today's event. My thanks to Madeline Hankins and the rest of the law school's Sports and Entertainment Law Society for putting this together.
Tomorrow I'll be giving the key note address at the law school's alumni and reunion weekend from 7:00 to 7:30 p.m. at the TelCom Center in downtown Jackson. My topic will be "What Recent Sports Law Developments Can Teach Us About Legal Professionalism." The event costs $35 to attend. For more information, click here.
Tomorrow I'll be giving the key note address at the law school's alumni and reunion weekend from 7:00 to 7:30 p.m. at the TelCom Center in downtown Jackson. My topic will be "What Recent Sports Law Developments Can Teach Us About Legal Professionalism." The event costs $35 to attend. For more information, click here.
Hip Hop Law Blog
The West Virginia University College of Law Sports and Entertainment Law Society is proud to announce the launch of a new blog that will add texture and content to the entertainment law and interconnected sports law space: HipHopLaw.com. Go to:
http://hiphoplaw.com
A recent post by Professor D. Aaron Lacy suggests that the NBA Dress Code, adopted back in 2005, might constitute race discrimination in the workplace. See:
http://hiphoplaw.blogspot.com/2009/04/is-nba-dress-policy-pretext-for-racial.html
Comments, commentary and reasoned disagreements are welcomed.
http://hiphoplaw.com
A recent post by Professor D. Aaron Lacy suggests that the NBA Dress Code, adopted back in 2005, might constitute race discrimination in the workplace. See:
http://hiphoplaw.blogspot.com/2009/04/is-nba-dress-policy-pretext-for-racial.html
Comments, commentary and reasoned disagreements are welcomed.
Wednesday, April 15, 2009
Finally! Fan challenges speech restrictions at publicly owned ballpark
A lawsuit was filed in the Southern District of New York yesterday by a baseball fan named Bradford Campeau-Laurion, who alleges that he was kicked out of Yankee Stadium last summer by two uniformed NYPD officers for trying to go the men's room during the Seventh Inning Stretch and the playing of God Bless America. (H/T: One of my civ pro students). He thus violated a Yankee/Yankee Stadium policy, enacted explicitly because the Yankees and others purportedly found people stretching during the Stretch "disrespectful."
Named defendants include New York City, Police Commissioner Raymond Kelly, three Doe officers, and the Yankees. The complaint is loaded with allegations designed to establish that the Yankees are a state actor, primarily through the symbiotic relationship test and the exchange of benefits between the team and the city in ownership and usage of both the old Yankee Stadium and the new one. Campeau-Laurion alleges violations of the First and Fourth Amendments and their state constitutional equivalents, federal and state public-accommodations laws, and various state torts. Interestingly, the plaintiff is represented by the NYCLU and two students at NYU's Civil Rights Clinic (I might have done a clinic in law school if I could have gotten a case this interesting).
You all know that I have argued ad nauseum that such a claim should succeed and that restrictions or regulations of fan speech, including forced participation in rituals such as GBA, violate the First Amendment. So I buy everything the complaint is putting forward. The Yankees should be deemed a state actor, at least for purposes of operating a publicly owned ballpark over which they have near-exclusive use and control; in any event, here you have the NYPD (through an official program that provides uniformed officers for stadium security) directly involved in enforcing the policy, so state action is pretty obvious. As for the First Amendment argument, people in a public forum cannot be forced to participate in patriotic and symbolic rituals by having to remain in place during that ritual; they necessarily have the right to "symbolically counter-speak" against that ritual by getting up and walking out.
This could be fun to watch.
Named defendants include New York City, Police Commissioner Raymond Kelly, three Doe officers, and the Yankees. The complaint is loaded with allegations designed to establish that the Yankees are a state actor, primarily through the symbiotic relationship test and the exchange of benefits between the team and the city in ownership and usage of both the old Yankee Stadium and the new one. Campeau-Laurion alleges violations of the First and Fourth Amendments and their state constitutional equivalents, federal and state public-accommodations laws, and various state torts. Interestingly, the plaintiff is represented by the NYCLU and two students at NYU's Civil Rights Clinic (I might have done a clinic in law school if I could have gotten a case this interesting).
You all know that I have argued ad nauseum that such a claim should succeed and that restrictions or regulations of fan speech, including forced participation in rituals such as GBA, violate the First Amendment. So I buy everything the complaint is putting forward. The Yankees should be deemed a state actor, at least for purposes of operating a publicly owned ballpark over which they have near-exclusive use and control; in any event, here you have the NYPD (through an official program that provides uniformed officers for stadium security) directly involved in enforcing the policy, so state action is pretty obvious. As for the First Amendment argument, people in a public forum cannot be forced to participate in patriotic and symbolic rituals by having to remain in place during that ritual; they necessarily have the right to "symbolically counter-speak" against that ritual by getting up and walking out.
This could be fun to watch.
Michigan's Contractual Liability if Paulus "Transfers" to Play QB
It certainly has been a rough year for Michigan football. The team was simply handled by a then-underrated Utah, embarrassed by mid-major Toledo, all the while beset by its coach's messy divorce from his former school. The latest news from Ann Arbor is that, in spite of its recruitment of heralded quarterback Tate Forcier, the team may be led next year by Greg Paulus.
Paulus is well known as a three-year starting point guard (and fourth year bench player) for the Duke Blue Devils. While considering a move to Michigan, he is also reportedly being evaluated for an NFL contract by the Green Bay Packers. That a player's choice is between playing college football for a new school or NFL football for a pro team certainly seems to undercut the NCAA's much ballyhooed notion of amateurism. That said, were Paulus to enroll at Michigan as a "graduate student", say in the one-year M.S. in Kinesiology, NCAA rules might allow him to play one season of football.
Under the NCAA's "five-year rule," an athlete may compete in college athletics for no more than four seasons in a single sport for the first five years after graduating from high school. Paulus has no remaining basketball eligibility, but could compete in another sport for one more year. And under Rule 14.1.9.1, the "One-Time Transfer Exception," a graduate student may under some conditions use any remaining eligibility at a new institution without sitting out the year ordinarily required for college transfers.
Under the NCAA's "five-year rule," an athlete may compete in college athletics for no more than four seasons in a single sport for the first five years after graduating from high school. Paulus has no remaining basketball eligibility, but could compete in another sport for one more year. And under Rule 14.1.9.1, the "One-Time Transfer Exception," a graduate student may under some conditions use any remaining eligibility at a new institution without sitting out the year ordinarily required for college transfers.
A liberalized version of Rule 14.1.9.1 was at one point overridden in part by Division I schools. The one-time transfer rule is limited by Rule 14.5.2.2.10(a), under which a player can only compete in bowl subdivision football, if transferring from an institution that offers that level of football, when the player has at least two years of football eligibility remaining.
Does Paulus meet that test? Although he has four years of football eligibility remaining, the five-year rule would cut off three of those years (even if he remained at Duke), so under the five-year rule it would seem like he has only one actual year remaining and would thus not qualify for the one-time transfer exception. However, if the 5-year rule were ignored or viewed separately from the four-years-of-eligibility rule, then I suppose he would have four years remaining.
Let's assume that, as most media coverage suggests, Paulus would in fact qualify to play for the Wolverines next year (or that he received a waiver from the NCAA). Though possibly permissible under NCAA bylaws, allowing his transfer would certainly be cynical. In addition it could potentially expose the Michigan Wolverines to a (perhaps challenging) breach of contract or fraud claim. The "mission statement" of the Michigan Athletics department contains the following provision under the theme "integrity":
We follow the intent and the letter of each rule by which we have agreed to abide. We are honest in our dealings with student–athletes, coaches, staff, opponents, and governing bodies.
If the NCAA's basic purpose is to maintain athletics as an integral part of the educational mission of universities, the intent behind any of its rules has to be interpreted in that light. For a player to select a new school after participating in top-tier athletics for four straight seasons seems contrary to the intent of the NCAA's amateurism ideal. Players at Michigan who have competed to play quarterback -- including new recruits -- might have a legitimate claim to having been the victims of fraud or breach of a representation made as part of the student-athlete contract.
Isiah Thomas, FIU Basketball Coach?
Beginning when I was around 16, I wanted to be a college basketball coach. I was a student manager in college, worked as a coach at summer basketball camps throughout college, and my first job after college was as assistant coach at a D-III school in Chicago. Basically, I was trying to set up the career trajectory that Nets Coach Lawrence Frank followed about 10 years later--short Jewish kid from NJ becomes manager at Big Ten school, parlays it into coaching career. It seems to have worked out slightly different for him than it did for me.
This biographical detour is to say that, 15-20 years ago, I was perfectly happy with the notion that D-I basketball coaches made (at a minimum) five times as that of the ordinary humanities professor--in fact, I was hoping to have one of those paying-five-times-as-much jobs. I noted how out-of-whack coaches' salaries were, but bought the now-largely-challenged economic arguments about the real financial value college sports brings to the university. Of course, I never envisioned an economic downturn this severe that would affect universities (particularly mine) this severely. Nor did I envision my life at a small, underfunded public university in a state with no income tax and no significant commitment to higher education.
All of which is to express genuine bafflement and uncertainty at the news that FIU has hired Isiah Thomas to be its men's basketball coach, with a press conference to announce the hiring today. In no particular order, a jumble of thoughts:
1) It certainly is putting FIU on the college-sports map, at least for now. We lead PTI last night. The last time FIU was part of a national college-sports story was after the brawl with Miami during a football game.
2) I do not know right now how much Thomas is making, but I imagine there was a premium to get him and his name down here--not U-Conn/Jim Calhoun territory, but certainly more than Thomas' predecessor and probably more than the average coach at this level. This seems troubling at a university that just eliminated entire departments and has spent the past several years (and likely will spend the next few years) slashing its budget, including the budget of the College of Law. True, if we are serious about college sports, we have to spend money--but is this the right time.
3) More important is the question of whether this is worth the money, no matter how much Thomas is making. Thomas has not been a good coach (with the Knicks and Indiana Pacers) and his record as GM/Owner suggests that he is not a particularly good judge of talent, although he did make some good draft moves. He also ran the old CBA out of business, so his management skills are questionable. The school has hired his name. But the 17-year-olds he will be recruiting know him only as the guy who ran the New York Knicks into the ground, not as a Hall-of-Fame, championship-winning college and NBA player. So what are we getting for this money? No one knows for sure.
4) Then there is the fact that in 2007 Thomas and the Knicks were hit with an $ 11 million punitive-damages verdict for Thomas' sexual harassment of a female Knicks employee (the case settled before compensatory damages were determined). FIU AD Peter Garcia's response to that (in the ESPN link above) was, basically: I know Thomas and he is a wonderful husband and father, it's in the past, and everyone makes mistakes (although some mistakes are larger than others). This seems like an awful lot of baggage to carry into the job. And it calls into question how well he can or will control his program and his players, especially on the always-dicey issue of relations between student-athletes and the rest of the student body.
If it sounds as if I am rooting against this, not at all. I hope Thomas turns FIU into a mid-major power--the Gonzaga of the South; it would be psychically, if not financially, good for us. I am not optimistic right now, but I can be convinced. And I certainly will go to some games to check it out. But this is a tremendous financial--and legal--risk for the school to take and a bad time to be financially risky.
This biographical detour is to say that, 15-20 years ago, I was perfectly happy with the notion that D-I basketball coaches made (at a minimum) five times as that of the ordinary humanities professor--in fact, I was hoping to have one of those paying-five-times-as-much jobs. I noted how out-of-whack coaches' salaries were, but bought the now-largely-challenged economic arguments about the real financial value college sports brings to the university. Of course, I never envisioned an economic downturn this severe that would affect universities (particularly mine) this severely. Nor did I envision my life at a small, underfunded public university in a state with no income tax and no significant commitment to higher education.
All of which is to express genuine bafflement and uncertainty at the news that FIU has hired Isiah Thomas to be its men's basketball coach, with a press conference to announce the hiring today. In no particular order, a jumble of thoughts:
1) It certainly is putting FIU on the college-sports map, at least for now. We lead PTI last night. The last time FIU was part of a national college-sports story was after the brawl with Miami during a football game.
2) I do not know right now how much Thomas is making, but I imagine there was a premium to get him and his name down here--not U-Conn/Jim Calhoun territory, but certainly more than Thomas' predecessor and probably more than the average coach at this level. This seems troubling at a university that just eliminated entire departments and has spent the past several years (and likely will spend the next few years) slashing its budget, including the budget of the College of Law. True, if we are serious about college sports, we have to spend money--but is this the right time.
3) More important is the question of whether this is worth the money, no matter how much Thomas is making. Thomas has not been a good coach (with the Knicks and Indiana Pacers) and his record as GM/Owner suggests that he is not a particularly good judge of talent, although he did make some good draft moves. He also ran the old CBA out of business, so his management skills are questionable. The school has hired his name. But the 17-year-olds he will be recruiting know him only as the guy who ran the New York Knicks into the ground, not as a Hall-of-Fame, championship-winning college and NBA player. So what are we getting for this money? No one knows for sure.
4) Then there is the fact that in 2007 Thomas and the Knicks were hit with an $ 11 million punitive-damages verdict for Thomas' sexual harassment of a female Knicks employee (the case settled before compensatory damages were determined). FIU AD Peter Garcia's response to that (in the ESPN link above) was, basically: I know Thomas and he is a wonderful husband and father, it's in the past, and everyone makes mistakes (although some mistakes are larger than others). This seems like an awful lot of baggage to carry into the job. And it calls into question how well he can or will control his program and his players, especially on the always-dicey issue of relations between student-athletes and the rest of the student body.
If it sounds as if I am rooting against this, not at all. I hope Thomas turns FIU into a mid-major power--the Gonzaga of the South; it would be psychically, if not financially, good for us. I am not optimistic right now, but I can be convinced. And I certainly will go to some games to check it out. But this is a tremendous financial--and legal--risk for the school to take and a bad time to be financially risky.
Tuesday, April 14, 2009
A Few Good Links
* Darren Heitner at Sports Agent Blog has a good breakdown of how sports bloggers might be impacted by the Associated Press' new strategy to crack down on lengthy excerpts of AP stories on blogs.
* William Rothstein of National Sports and Entertainment Blog has a good write-up on Professor Erin Buzuvis' recent talk at Vermont Law School on Title IX. Professor Buzuvis is the author of Title IX Blog and we're grateful to her for her time at our law school.
* Kyle Veazey of the Jackson Clarion-Ledger interviews me on former Mississippi State football coach Jackie Sherrill's defamation lawsuit against the NCAA.
* William Rothstein of National Sports and Entertainment Blog has a good write-up on Professor Erin Buzuvis' recent talk at Vermont Law School on Title IX. Professor Buzuvis is the author of Title IX Blog and we're grateful to her for her time at our law school.
* Kyle Veazey of the Jackson Clarion-Ledger interviews me on former Mississippi State football coach Jackie Sherrill's defamation lawsuit against the NCAA.
Monday, April 13, 2009
Edwin Valero: Would an Exception Knock Out the Rule?
Whether it Would be Smart for New York State to Lift Its Medical Suspension of Lightweight Champion & Knockout Artist Edwin Valero
In 2004, undefeated Venezuelan junior lightweight prospect Edwin (El Inca) Valero applied for a license to box in New York State after scoring 12 first round knockouts in his first 12 professional fights. On the strength of his knockout streak, Valero was then becoming one of the hottest prospects in boxing. Valero, however, had a skeleton in his closet: a head injury sustained in a 2001 motorcycle accident. Evidence of Valero’s head injury went undiscovered, or was otherwise ignored, before three bouts in California and nine in his native Venezuela, but was revealed during a MRI that he underwent for his New York State license. Valero was subsequently denied a license to box in New York and, until April 4, 2009, had not fought again in the United States. Undeterred, Valero continued his boxing career in both Japan and South America, becoming an international sensation in the process.
At the end of March, Valero, now 25-0 (25 KOs) and a junior lightweight and lightweight world champion, was granted a license to box in Texas in advance of his April 4, 2009 bout with Antonio Pitalua for the vacant World Boxing Council lightweight title. That Texas granted Valero a license was not entirely surprising to boxing cognoscenti as Texas has a history of thumbing its nose at the suspensions of other states’ commissions. Indeed, Texas was the same state that granted former undisputed heavyweight and cruiserweight champion Evander Holyfield a license to box after New York State placed him on administrative suspension in 2005. However, in light of Texas’ decision to license Valero, the question is begged as to whether a boxer such as Valero, who at age 27 is an undefeated two division world champion and seemingly entering into the prime of his career following a second round stoppage of Pitalua, should have the denial of his license reversed by the New York State Athletic Commission (hereinafter the “Commission”) or otherwise be permitted to box in the United States by other influential commissions...
See full article at: http://www.8countnews.com/news/125/ARTICLE/1535/2009-04-13.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. ©
In 2004, undefeated Venezuelan junior lightweight prospect Edwin (El Inca) Valero applied for a license to box in New York State after scoring 12 first round knockouts in his first 12 professional fights. On the strength of his knockout streak, Valero was then becoming one of the hottest prospects in boxing. Valero, however, had a skeleton in his closet: a head injury sustained in a 2001 motorcycle accident. Evidence of Valero’s head injury went undiscovered, or was otherwise ignored, before three bouts in California and nine in his native Venezuela, but was revealed during a MRI that he underwent for his New York State license. Valero was subsequently denied a license to box in New York and, until April 4, 2009, had not fought again in the United States. Undeterred, Valero continued his boxing career in both Japan and South America, becoming an international sensation in the process.
At the end of March, Valero, now 25-0 (25 KOs) and a junior lightweight and lightweight world champion, was granted a license to box in Texas in advance of his April 4, 2009 bout with Antonio Pitalua for the vacant World Boxing Council lightweight title. That Texas granted Valero a license was not entirely surprising to boxing cognoscenti as Texas has a history of thumbing its nose at the suspensions of other states’ commissions. Indeed, Texas was the same state that granted former undisputed heavyweight and cruiserweight champion Evander Holyfield a license to box after New York State placed him on administrative suspension in 2005. However, in light of Texas’ decision to license Valero, the question is begged as to whether a boxer such as Valero, who at age 27 is an undefeated two division world champion and seemingly entering into the prime of his career following a second round stoppage of Pitalua, should have the denial of his license reversed by the New York State Athletic Commission (hereinafter the “Commission”) or otherwise be permitted to box in the United States by other influential commissions...
See full article at: http://www.8countnews.com/news/125/ARTICLE/1535/2009-04-13.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. ©
Florida Coastal Symposium
This Friday, we are hosting our annual sports law symposium titled, “NCAA Coaches’ Contracts: Diversity and Negotiating Value in the 21st Century”:FRIDAY, APRIL 17, 2009
10:30 am - 2:30 pm
Room 405
10:30 am - 2:30 pm
Room 405
Opening Remarks: Stuart Herman, President of Sports Law Society at Florida Coastal School of Law
10:30 a.m. - noon: Maximizing Value for the Coach
Panelists will discuss the various issues that arise in negotiating and structuring college coaches contracts from the perspective of both the university and coach, including compensation and the various types of compensation, for cause termination, tax ramifications, and liquidated damages/buyout clauses.
Moderator, Rick Karcher - Assoc. Professor of Law and Dir., Florida Coastal School of Law Center for Law and Sports
Robert H. Lattinville - Partner, Stinson Morrison Hecker LLP
Terry Don Phillips - Athletic Director, Clemson University
Randall W. Spetman - Athletic Director, Florida State University
Bennett H. Speyer - Member, Eastman & Smith LTD
Moderator, Rick Karcher - Assoc. Professor of Law and Dir., Florida Coastal School of Law Center for Law and Sports
Robert H. Lattinville - Partner, Stinson Morrison Hecker LLP
Terry Don Phillips - Athletic Director, Clemson University
Randall W. Spetman - Athletic Director, Florida State University
Bennett H. Speyer - Member, Eastman & Smith LTD
Noon - 1:00: Lunch provided
1:00 - 2:30 p.m.: Ethnic and Gender Issues in NCAA Hiring
Panelists will discuss the topic of diversity in the hiring of college coaches, including the following issues: (1) Does the Rooney Rule have application in college to increase minority football head coaches at NCAA's highest level? (2) How does the NCAA view the challenges and solutions regarding minority and gender equity? (3) Are boosters unduly influential in hiring and firing coaches to the disproportionate detriment of minority coaches? and (4) Is Title VII a viable remedy?
Moderator, Roger Groves - Associate Professor of Law, Florida Coastal School of Law
N. Jeremi Duru - Associate Professor of Law, Temple University, Beasley School of Law
Kristen Galles - Civil rights attorney and Title IX expert
Floyd A. Keith - Executive Director, Black Coaches and Administrators
For speaker bios click here.
The event is free and open to the public.
To register, please email rkarcher@fcsl.edu.
CLE credits approved.
Sunday, April 12, 2009
2009 Scholarly Conference on College Sport
Robert Hayden and Che Mock of the University of North Carolina pass along the following message. We wish Richard Southall and everyone else at the College Sports Research Institute the best for this year's conference, which looks to be a great event.
The College Sport Research Institute, with support from the University of North Carolina Sport and Entertainment Law Association will be hosting the 2009 Scholarly Conference on College Sport at the William and Ida Friday Center for Continuing Education at UNC-CH, this Thursday through Saturday.
The Scholarly Conference will provide an open forum for independent, organized and focused cross-disciplinary research on college sport in the United States. Attendees will be presented with completely unique information and experiences through prominent keynote speakers, panel discussions, and two days of juried academic presentations.
There are multiple legal presentations that will be taking place on Friday and Saturday, including "The Tax Exempt Status of the NCAA," "Title IX and Sexual Harassment," and "Recognition on a College Athlete's Right of Publicity."
Details about scheduled presentations and information about the conference can be found on the conference website at www.csriconference.org. The conference program can be found in its entirety at http://www.csriconference.org/docs/Program.pdf.
* * *
The College Sport Research Institute, with support from the University of North Carolina Sport and Entertainment Law Association will be hosting the 2009 Scholarly Conference on College Sport at the William and Ida Friday Center for Continuing Education at UNC-CH, this Thursday through Saturday.
The Issues in College Sport Symposium will be held on Thursday, April 16th from 8:30 a.m. to 4:30 p.m., and will feature three panel discussions and a keynote speech about relevant issues in college sport. In addition to the chance to hear the panels, attendees will have the opportunity to talk with lawyers and panelists such as Jay Bilas, Of Counsel at Moore & Van Allen Law Firm of Charlotte, NC and Jeremy Bloom, who famously pursued an injunction against the NCAA to allow him to continue his college football career while receiving endorsements for freestyle skiing (Bloom v. National Collegiate Athletic Association, No. 02CA2302, 2004 WL 964322 [Colo. App., May 6, 2004]).
There are multiple legal presentations that will be taking place on Friday and Saturday, including "The Tax Exempt Status of the NCAA," "Title IX and Sexual Harassment," and "Recognition on a College Athlete's Right of Publicity."
Details about scheduled presentations and information about the conference can be found on the conference website at www.csriconference.org. The conference program can be found in its entirety at http://www.csriconference.org/docs/Program.pdf.
For those unable to attend this year's event, next year's edition of the conference is scheduled for April 14-17, 2010, at the Friday Center.
The myth of a "scientific controversy" about ID
Here in Washington at the CFI World Congress. The next one, in two years time, might well be in London.
Many interesting talks, particularly from a panel of Muslims. Here's one set of statistics I took from scientist Lawrence Krauss. He searched the 10 million peer reviewed science papers published over last 12 years. 115 were on "intelligent design"; however most were on engineering. Only 11 actually on ID. Of those, 8 were critical of the science behind ID and the other 3 were conference proceedings. In other words, there was not one peer reviewed article supporting ID. There is, in short, no "scientific controversy" about ID. The idea that we should be "fair" and "open-minded" by "teaching the scientific controversy" in classrooms is just bullshit.
Of course, Krauss knows the ID brigade say that the journals are biased against them. So he looked at books. There were 150 books on amazon on ID. But there were 165 on alien abduction. As Krauss says, if we are going to teach ID to kids in science class on this basis, then there's as much reason to teach them the "scientific controversy" about about alien abduction.
I stopped over in NY on the way here and stayed at the Olde Carlton Arms Hotel on E 25th (photo), which I thought was great - thanks Wholeflaffer for recommendation. Walked over 20 miles going round Manhattan on Thursday, taking photos. When I got back to Hotel Friday afternoon the building across the street had caught fire and the FDNY were out in force.
Thursday, April 9, 2009
Colts Redux? Can the Preakness be Seized?
Many remember the ill-fated attempt in the mid-1980s by the city of Baltimore to utilize eminent domain to seize the Colts under a law passed by the Maryland Legislature. Colts' then-owner Robert Irsay moved the team in the dead of night to take a deal offered by Indianapolis. In an eerie echo of this, the Governor of Maryland is seeking legislature to seize the Preakness, the second jewel of horse racing's triple crown. An excellent blog by the Wall Street Journal's law blog outlines the difficulties of the case in detail and links to a number of newspaper articles giving background on this dispute.
The issue is not a relocation. Rather, it is the effect of a bankruptcy filing by the race's owner, Magna Entertainment Corp. and potential of a sale of its assets, including the race track and the intangible property of the race itself. Assuming that the legislation is passed and eminent domain is utilized, the question is what effect the action would have in the Chapter 11 filing in the bankruptcy court. That is a more complicated matter than the attempt to seize the Colts as pre-emption issues could be paramount (assuming that the seizure is constitutional).
The issue is not a relocation. Rather, it is the effect of a bankruptcy filing by the race's owner, Magna Entertainment Corp. and potential of a sale of its assets, including the race track and the intangible property of the race itself. Assuming that the legislation is passed and eminent domain is utilized, the question is what effect the action would have in the Chapter 11 filing in the bankruptcy court. That is a more complicated matter than the attempt to seize the Colts as pre-emption issues could be paramount (assuming that the seizure is constitutional).
Wednesday, April 8, 2009
Virginia Law Softball Tourny
The 26th Annual Virginia Law Softball Invitational tournament was held last weekend. The series of softball games, featuring both men’s and co-rec divisions, raised $20,000 for Children, Youth and Family Services, a Charlottesville-based nonprofit. Out of the 112 teams that participated in the tournament from 46 law schools across the country, Florida Coastal won the championship in the men's division and Appalachian School of Law won the co-rec division. Congratulations to the members of the winning teams and to all of the law students who participated in the tournament and raised that money for such a worthy cause.
Tuesday, April 7, 2009
New Sports Law Scholarship
Recently published scholarship includes:
Mark R. Bandsuch, The NBA Dress Code and other fashion faux pas under Title VII, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2009)Kimberli Gasparon, Comment, The dark horse of drug abuse: legal issues of administering performance-enhancing drugs to racehorses, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 199 (2009)
Scott Hollander, Note, Super Bowl hero to bank account zero, 26 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 899 (2009)
Michael Huntowski, Casenote, Blades of steal? The fight for control of sports clubs’ websites and media rights in Madison Square Garden, L.P. v. NHL, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 123 (2009)Andrew Imbriglio, Trading future health concerns for a cortisone shot today: informed consent and the need for regulation of cortisone in professional sports, 12 QUINNIPIAC HEALTH LAW JOURNAL 141 (2008)
Gene A. Marsh, A call for dissent and further independence in the NCAA infractions process, 26 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 695 (2009)Mitchell Nathanson, The sovereign nation of baseball: why federal law does not apply to “America’s game” and how it got that way, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 49 (2009)
Hayden Opie, Survey: a global perspective on the most important cases affecting the sports industry, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 99 (2009)
Gustavo A. Otalvora, Note, Alfonso Soriano is getting robbed: why the Eighth Circuit Court of Appeals made a bad call in [C.B.C. Distrib.], 2008 UNIVERSITY OF ILLINOIS JOURNAL OF LAW, TECHNOLOGY & POLICY 383
Jennifer M. Recht, Note, Performance enhancement: what the Israel Baseball League can learn from the agreement between Major League Baseball and Japan, 32 SUFFOLK TRANSNATIONAL LAW REVIEW 191 (2008)
Michael Ryan, The European Union and fan racism in European soccer stadiums: the time has come for action, 20 FLORIDA JOURNAL INTERNATIONAL LAW 245 (2008)
Monday, April 6, 2009
Professor Alfred Yen on UConn Scandal
Boston College Law School Professor Alfred Yen has a terrific piece on Madisonian.Net concerning the alleged recruiting violations at UConn. Here's an excerpt.* * *
Instead, Connecticut appears to have completely flouted important rules in a way suggesting that such behavior was routine. How else could those involved have failed to stop and consider the wrongfulness and consequences of their behavior? Could they have done something like this only once, and “by accident”? It is only too easy to suspect that Calhoun and his staff knew exactly what they were doing, that it was wrong, and that is was necessary to maintain Connecticut’s long record of competitive success. Perhaps even more disturbing is the notion that Connecticut presumably did not have to do this to succeed. Its basketball program is one the most successful in the entire country, one to which top recruits would presumably flock in exchange for a valuable college degree. Did Connecticut correctly think that it would take “something extra” to get the best young basketball players to enroll? For years, baseball treated allegations about steroids as a problem of individual miscreants. Baseball officials maintained that the sport was generally clean, and that drastic action wasn’t necessary to clean things up. Even after baseball declared steroids illegal, the sport did not take systemic, forceful action until prominent players made fools of themselves in front of Congress unsuccessfully denying their use of steroids. The public now generally believes that steroid use was the widespread, tarnishing the competitive integrity of the entire sport and devaluing the achievements of players who did not break the rules. Indeed, nothing has confirmed this suspicion more than the recent revelation that Alex Rodriguez, who (like Connecticut) did not have to cheat, somehow felt it necessary to do so.
* * *
For the rest of the piece, click here.
Review of de Botton's The Pleasures and Sorrows of Work
I found de Botton’s new book The Pleasures and Sorrows of Work in the bookshop at the Oxford Literary Festival on Saturday, so I bought it, and have now read it.
It’s a series of essays on the theme of work, each chapter focussing on a different profession. The book is filled with black and white photos taken by a photographer who accompanied Alain on his travels around the world. I loved the photos.
The essays are largely descriptive, peppered with lots of references demonstrating the vast range of de Botton’s literary, historical and philosophical knowledge. Chapter one describes the arrival of a ship down the Thames, which then unloads at Tilbury container docks. We get details of the ship’s course, some reflections on how little most of us know about how the goods we use daily actually get to our local shop from far away lands, and impressions of the vast scale of the facilities and their grandeur. De Botton ponders on the question: why people don’t come down and look at these amazing structures? He concludes it is “an unwarranted prejudice which deems it peculiar to express overly powerful feelings of admiration towards a gas tanker or a paper mill – or indeed towards almost any aspect of the labouring world.”
After we hear about the ship spotters who record the great vessel’s comings and goings, the chapter ends. The next looks at work in a logistics park. Other chapters look at biscuit manufacture, careers counselling, accountancy, entrepreneurship, and so on.
De Botton is fully aware that his style will strike many as rather pretentious, and even has an occasional joke at his own expense – explaining how, after waxing lyrical on some work-related theme, a guard had told him to “fuck off”. It’s admirable that he doesn’t take himself too seriously.
Is it a good book? Actually, yes it is (see below).
But I will explain first why this sort of thing doesn’t do much for me. I guess what I find unsatisfying about this sort of writing (and I am not singling out just de Botton - I think it's a whole genre that I'm talking about) is that, while saying so much, it says so little.
Read the book, and then ask yourself: what is the central argument of this book? What are its conclusions?
Above all ask yourself: what has been clearly and unambiguously stated here with which someone might conceivably disagree?
The answers are – there isn’t really any argument, there are few conclusions, and those conclusions that are drawn, once shorn of the impressive filigree of historical references and literary flourishes, turn out to be fairly obvious and uncontroversial.
There’s a clear contrast here with a thinker like e.g. Peter Singer. While de Botton is terribly posh and TV-friendly, Singer is Australian-accented and rather unglamorous in appearance (sorry Peter).
Singer too writes beautifully, but his is the style of someone who doesn’t want his style noticed. It’s deliberately transparent: you look right through it, at first noticing just the ideas, only later registering the beautifully precise and clear way they have been articulated (Dawkins too has this gift).
Like de Botton, Singer is a deeply passionate thinker. But Singer also dares to expresses a controversial point of view. Read Singer and you have little choice but to engage your brain. He pokes you in the ribs with his arguments, challenging you to find the flaws. We know exactly what he thinks and exactly why he thinks it. He stings like a Socratic gad-fly – pricking our consciences, making us feel uncomfortable.
I have little idea, after reading this book, what de Botton actually thinks about anything, beyond mundane stuff with which we can all agree.
The book is like a very agreeable soufflé. It looks philosophically formidable and impressive, but when we put our fork into it we find it makes few if any claims with which we can critically engage. This suits the appetites of many middle class readers of course. It’s light and fluffy to read, requiring little effort on our part. We can enjoy this wonderfully crafted intellectual creation, and can then congratulate ourselves on finding it so effortless to digest.
I just prefer something a bit more substantial to get my teeth into. I'm not sure there’s a single meaty, controversial idea in the book.
Now, that’s to convey something of my irritation with the book, and with this genre generally. But let me be clear that by no means does that make it a bad book.
The thing is, I have just been judging the book by standards that are really not appropriate.
Point is, it’s just not intended as that sort of book. De Botton is no Singer, but then he doesn’t pretend to be. This text should perhaps be approached more like a book of poems. Getting us to look at the world around us in a slightly different way. Reminding us of the miraculous in the everyday, of the genuinely fascinating stuff that’s right under our noses. There can be genuine value in that. And de Botton is very good at it.
So – it is a good book! Just not the sort of book I enjoy (I don’t like poetry much either).
Of course, de Botton must have many interesting opinions with which we can disagree – opinions about religion, say, or about politics. I wonder what they are. Personally, I’d much rather hear about those opinions, and about why de Botton holds them. But (in this book at least) de Botton seems guarded about airing his views on such substantive issues. Whether this is because he wants to remain on good terms with all his readers, or because he considers such talk vulgar, or because he is just a very private person, or some other reason, I don’t know. Personally, I just wish he would.
It’s a series of essays on the theme of work, each chapter focussing on a different profession. The book is filled with black and white photos taken by a photographer who accompanied Alain on his travels around the world. I loved the photos.
The essays are largely descriptive, peppered with lots of references demonstrating the vast range of de Botton’s literary, historical and philosophical knowledge. Chapter one describes the arrival of a ship down the Thames, which then unloads at Tilbury container docks. We get details of the ship’s course, some reflections on how little most of us know about how the goods we use daily actually get to our local shop from far away lands, and impressions of the vast scale of the facilities and their grandeur. De Botton ponders on the question: why people don’t come down and look at these amazing structures? He concludes it is “an unwarranted prejudice which deems it peculiar to express overly powerful feelings of admiration towards a gas tanker or a paper mill – or indeed towards almost any aspect of the labouring world.”
After we hear about the ship spotters who record the great vessel’s comings and goings, the chapter ends. The next looks at work in a logistics park. Other chapters look at biscuit manufacture, careers counselling, accountancy, entrepreneurship, and so on.
De Botton is fully aware that his style will strike many as rather pretentious, and even has an occasional joke at his own expense – explaining how, after waxing lyrical on some work-related theme, a guard had told him to “fuck off”. It’s admirable that he doesn’t take himself too seriously.
Is it a good book? Actually, yes it is (see below).
But I will explain first why this sort of thing doesn’t do much for me. I guess what I find unsatisfying about this sort of writing (and I am not singling out just de Botton - I think it's a whole genre that I'm talking about) is that, while saying so much, it says so little.
Read the book, and then ask yourself: what is the central argument of this book? What are its conclusions?
Above all ask yourself: what has been clearly and unambiguously stated here with which someone might conceivably disagree?
The answers are – there isn’t really any argument, there are few conclusions, and those conclusions that are drawn, once shorn of the impressive filigree of historical references and literary flourishes, turn out to be fairly obvious and uncontroversial.
There’s a clear contrast here with a thinker like e.g. Peter Singer. While de Botton is terribly posh and TV-friendly, Singer is Australian-accented and rather unglamorous in appearance (sorry Peter).
Singer too writes beautifully, but his is the style of someone who doesn’t want his style noticed. It’s deliberately transparent: you look right through it, at first noticing just the ideas, only later registering the beautifully precise and clear way they have been articulated (Dawkins too has this gift).
Like de Botton, Singer is a deeply passionate thinker. But Singer also dares to expresses a controversial point of view. Read Singer and you have little choice but to engage your brain. He pokes you in the ribs with his arguments, challenging you to find the flaws. We know exactly what he thinks and exactly why he thinks it. He stings like a Socratic gad-fly – pricking our consciences, making us feel uncomfortable.
I have little idea, after reading this book, what de Botton actually thinks about anything, beyond mundane stuff with which we can all agree.
The book is like a very agreeable soufflé. It looks philosophically formidable and impressive, but when we put our fork into it we find it makes few if any claims with which we can critically engage. This suits the appetites of many middle class readers of course. It’s light and fluffy to read, requiring little effort on our part. We can enjoy this wonderfully crafted intellectual creation, and can then congratulate ourselves on finding it so effortless to digest.
I just prefer something a bit more substantial to get my teeth into. I'm not sure there’s a single meaty, controversial idea in the book.
Now, that’s to convey something of my irritation with the book, and with this genre generally. But let me be clear that by no means does that make it a bad book.
The thing is, I have just been judging the book by standards that are really not appropriate.
Point is, it’s just not intended as that sort of book. De Botton is no Singer, but then he doesn’t pretend to be. This text should perhaps be approached more like a book of poems. Getting us to look at the world around us in a slightly different way. Reminding us of the miraculous in the everyday, of the genuinely fascinating stuff that’s right under our noses. There can be genuine value in that. And de Botton is very good at it.
So – it is a good book! Just not the sort of book I enjoy (I don’t like poetry much either).
Of course, de Botton must have many interesting opinions with which we can disagree – opinions about religion, say, or about politics. I wonder what they are. Personally, I’d much rather hear about those opinions, and about why de Botton holds them. But (in this book at least) de Botton seems guarded about airing his views on such substantive issues. Whether this is because he wants to remain on good terms with all his readers, or because he considers such talk vulgar, or because he is just a very private person, or some other reason, I don’t know. Personally, I just wish he would.
The End of Christian America
The End of Christian America is the title of this Newsweek article.
The percentage of self-identified Christians has fallen 10 points in the past two decades. How that statistic explains who we are now—and what, as a nation, we are about to become.
Thanks to "Ace".
The percentage of self-identified Christians has fallen 10 points in the past two decades. How that statistic explains who we are now—and what, as a nation, we are about to become.
Thanks to "Ace".
The headmistress's story
Interesting article in the Independent about how a headmistress lost her job - the local council failing to stand up to misguided religious extremism appears to be the culprit. Here.
Faith and unreason: The headteacher hounded from her job
Erica Connor took a failing school and turned it into a beacon of academic achievement and racial harmony. So why was she driven from her job by religious extremists and misguided officials? Tim Walker hears her story
Thanks to anticant for this...
Faith and unreason: The headteacher hounded from her job
Erica Connor took a failing school and turned it into a beacon of academic achievement and racial harmony. So why was she driven from her job by religious extremists and misguided officials? Tim Walker hears her story
Thanks to anticant for this...
Saturday, April 4, 2009
Should the Cardinal get a peerage?
Theos article concludes:
It almost goes without saying that having a legislative chamber that is made up by appointment is problematic, though not without some advantages. In this strange but not ineffective system, Cormac Murphy O’Connor could make a valuable contribution. The aggressive reaction of secularists towards such a development not only exposes the illiberal nature of their position but, worse than that, bears the hallmarks of an old but unattractive British habit: anti-Catholicism.
Topical given my debate with Prof Trigg yesterday...
Friday, April 3, 2009
Examining Josh Nochimson's Role in Alleged UConn Scandal
I wrote about the alleged UConn scandal involving Nate Miles last week, a scandal that has raised serious questions about UConn men's basketball coach Jim Calhoun's possible knowledge and involvement in recruiting violations.Today, Michael Rosenberg of the Free Press writes a provocative column and interviews Alan Milstein, who, in addition to writing excellent pieces for Sports Law Blog and speaking at great sports law panels, is representing Detroit Pistons star (and former UConn star) Rip Hamilton in his lawsuit against former UConn student manager-turned NBA agent Josh Nochimson. Here are some excerpts:
* **
[Calhoun] hasn't refuted any of the facts in Yahoo! Sports' investigative report. He hasn't denied that Josh Nochimson, a professional sports agent and former UConn student manager, provided all sorts of extra benefits to recruit Nate Miles of Toledo -- which constitute major NCAA violations.
He hasn't denied that he and his assistant coaches were in constant contact with Nochimson. And he can't deny that because Yahoo has a paper trail that includes 1,565 calls and text messages between UConn coaches and Nochimson.
Calhoun is mostly setting off smoke bombs and looking for a place to disappear. He says the NCAA rule book is "508 pages" and "someone could've made a mistake." But these are not obscure rules, and it is simply not credible to say it was one big unhappy accident.
Calhoun called the Yahoo! report "a blog story, I guess" -- an obvious attempt to make it seem like some know-nothing wrote the story in his basement. Calhoun neglected to mention that he knows the two Yahoo! journalists who wrote the story, Adrian Wojnarowski and Dan Wetzel, quite well, and has for more than 15 years.
Yahoo!, by all appearances, caught UConn cheating.
* * *
And that's not even the worst of it.
Nochimson, the agent/booster/illegal recruiter, has been accused of stealing more than $1 million from Pistons star Rip Hamilton, a former UConn star. Nochimson was Hamilton's business manager.
Yet Calhoun still won't distance himself from Nochimson. There is ample evidence to suggest UConn continued using Nochimson even after Hamilton accused him of stealing all that money.
"It certainly bothers Rip," Alan Milstein, Hamilton's attorney, told me. "I'll say that."
Calhoun says Nochimson is "a good kid, worked hard."
Why does he say this? Why is Jim Calhoun still sitting in a boat with a man who is accused of stealing a million bucks from one of Calhoun's favorite players?
Maybe it's because Calhoun knows if he has a falling-out with Nochimson, then Nochimson might flip on him and talk to the NCAA.
Maybe Josh Nochimson knows too much.
* * *
Notes for my debate with Trigg today...
Here are my notes from my 10 minute talk on secualrism today in the Great Hall at Chrsitchurch. I was debating with Prof Roger Trigg. Thanks to all who came - was very well attended!
What is a secular society?
NEUTRALITY. By a secular society I mean a society in which the state takes a neutral view on religion. A secular society aligns itself with no particular religious, or anti-religious, point of view.
FREEDOMS. A secular society also protects freedoms: the freedom to believe, or not believe, to worship, or not worship.
Note that an atheist state, such as Stalin’s Russia or Mao’s China, is not a secular state. A secular state does not privilege atheist beliefs. It is neutral on the issue of which, if any, religion is true.
AGREED NEUTRAL PRINCIPLES. Most importantly, a secular society is founded on principles framed independently of any particular religious, or atheist, commitment: principles to which we can sign up whether we are religious or not.
Very many religious people are secularists. They value the kind of religious freedoms that such a society guarantees.
Secularism, as most secularists understand the term, is not the view that we should gag religious voices in public sphere – prevent religious opinions being heard. That would be a caricature of what I, and I think most people in this room, mean by “secular”.
Secularism protects our freedom to express religious views in the public sphere. It just refuses to give religious voices a privileged position.
Why have a secular society?
PRAGMATIC. One reason is pragmatic. Secular societies developed in large measure because people recognized the dangers in allying states with particular religions. History has been plagued by horrors caused by competing religious groups trying to wrestle control of states from each other: Catholic and Protestant, Sunni and Shia, Hindu and Muslim. The secular, liberal state was seen as a way of finally bringing that kind of conflict to an end, by all parties agreeing to live under a religiously neutral body that protects all their freedoms equally.
FAIRNESS. Another reason might be fairness. Notice that religious beliefs are also often highly political, potentially having a major impact on society:
Take religious views on:
Homosexuality
The role of women
The state of Israel
Our duties to those less fortunate than ourselves
Medical research
These are all intensely political points of view. Now why should the addition of a religious dimension to certain political beliefs mean that they should be given a privileged role, or deserve special institutionalized forms of power and respect?
• We should not permit plays that mock, or might in some way deeply offend, those with certain religious beliefs.
• Airlines and schools should have no power to ban flight attendants or school pupils from wearing religious symbols, if the individual’s religion, or conscience, requires it.
• Taxpayer’s money should be used to fund religious schools that are then permitted to discriminate against both teachers and pupils on the basis of religious belief.
All of the above claims for special privileges are regularly made. I shall raise a challenge for those who make these claims.
A SIMPLE TEST: If you agree with some of these claims that religion deserves special institutionalized forms of privilege or respect, cross out the word “religious” and write in “political” instead. Then see if you still agree.
So the challenge I am putting to anti-secularists is this:
If you reject the political versions of these claims, why do you suppose the religious versions should be considered differently?
Why does sprinkling a little religious fairy dust on a set of political beliefs mean they should now be given more respect, or even more weight, than other people’s political beliefs?
Unless the anti-secularists can come up with a good answer to this question: they will rightly stand accused of unfairness.
“HELL IN A HAND BASKET” THESIS
One of the most popular answers to this challenge is this: religious belief is important for maintaining the social fabric.
Religion, religion provides our moral compass. Lose that compass. We’re heading for hell in a hand basket.
Prof. Roger Trigg, my opponent today, actually defends a very strong version of this “hell in a hand basket” thesis.
According to Roger, the Christian religion provides the moral foundation of our modern liberal values. Without it, those values may well collapse. Indeed, the Christian faith must actually be woven into the fabric of our State if we are not to risk losing our freedoms and sliding into totalitarianism.
THAT WE NEED CHRISTIAN STATE TO PROTECT US FROM TOTALITARIANISM – THAT IT’S OUR BEST PROTECTION AGAINST TOTALITARIANISM - is a very strong claim. But why should we think it true?
Let’s actually look at the history of totalitarianism is Europe…
Just over one of my lifetimes ago, much of Europe was indeed overrun by Nazi totalitarianism. How did the Christian Churches respond to the growing Nazi menace?
The first German Chancellor after the war, himself a Catholic, said:
I believe that if the bishops had publicly taken a stance from the pulpit a lot could have been avoided. That didn’t happen and there is no excuse for it.
Not very effective in Germany.
What about staunchly Catholic Poland? Surely opposition from the pulpit would have been clear there? In1936, the Catholic Primate of Poland did indeed issued a letter to be read from every pulpit in the country. In it he said:
It is a fact that the Jews are fighting against the Catholic Church, persisting in free-thinking, and are the vanguard of godlessness, Bolshevism and subversion. It is a fact that the Jewish influence on morality is pernicious and that their publishing houses disseminate pornography. It is a fact that Jews deceive, levy interest, and are pimps. It is a fact that the religious and ethical influence of the Jewish young people on Polish young people is a negative one.
The Catholic Church was hardly a staunch opponent in Poland either. Rather sympathetic, in fact.
Indeed, it was the Vatican, we now know, that arranged for thousands of Nazis to flee justice after the war. It was the Vatican that provided Adolf Eichmann, chief architect of the Final Solution, with his fake passport.
What of Fascist Italy? How did the Church resist totalitarianism there? By doing a deal with Mussolini in which Catholicism was recognised as the sole religion of state.
What of the rise of fascism in Spain? How did the Catholic Church fight the totalitarianism of General Franco? By supporting Franco’s overthrow of the democratically elected Government.
Let’s look a little further back in European history. Just four of my lifetimes ago the Catholic Church was itself arranging for the garrotting by the Spanish State of European citizens who failed to believe what the Pope told them. Last victim a school teacher in 1824. The Holy Inquisition worked hand-in-hand with the State to stifle freedom, and used the State as its executioner. As I say, just four of my lifetimes ago.
SOME RESISTANCE…On those occasions when they have resisted totalitarianism, they have resisted atheist totalitarian states, i.e. communist states. Otherwise, the Churches have put up very little, if any, resistance, often supporting the totalitarians.
So if anything, the warning from history is: don’t rely on the Church to protect you from totalitarianism. More often than not, the Church is actually part of the problem.
Is CHRISTIANITY THE ONLY JUSTIFICATION AVAILABLE? Do we need it to underpin and justify our basic freedoms? No.
Ask most political theorists and they will tell you that there are many justifications that have been developed, and that would religious justifications are actually some of the least credible on offer!
THERE IS A REAL DANGER IN ROGER’S VIEW, I THINK. THE DANGER OF MARGINALIZING… A significant and growing number of our citizens – about a third - are not even Christian. If you make the justification of our freedoms and laws explicitly Christian, you then leave a third of our population with no reason to agree to them. For our growing non-Christian population of youngsters, these freedoms and laws will seem increasingly irrelevant. Surely, if we want everyone to sign up to certain core values, wouldn’t it better if a religiously-neutral justification were offered instead?
What is a secular society?
NEUTRALITY. By a secular society I mean a society in which the state takes a neutral view on religion. A secular society aligns itself with no particular religious, or anti-religious, point of view.
FREEDOMS. A secular society also protects freedoms: the freedom to believe, or not believe, to worship, or not worship.
Note that an atheist state, such as Stalin’s Russia or Mao’s China, is not a secular state. A secular state does not privilege atheist beliefs. It is neutral on the issue of which, if any, religion is true.
AGREED NEUTRAL PRINCIPLES. Most importantly, a secular society is founded on principles framed independently of any particular religious, or atheist, commitment: principles to which we can sign up whether we are religious or not.
Very many religious people are secularists. They value the kind of religious freedoms that such a society guarantees.
Secularism, as most secularists understand the term, is not the view that we should gag religious voices in public sphere – prevent religious opinions being heard. That would be a caricature of what I, and I think most people in this room, mean by “secular”.
Secularism protects our freedom to express religious views in the public sphere. It just refuses to give religious voices a privileged position.
Why have a secular society?
PRAGMATIC. One reason is pragmatic. Secular societies developed in large measure because people recognized the dangers in allying states with particular religions. History has been plagued by horrors caused by competing religious groups trying to wrestle control of states from each other: Catholic and Protestant, Sunni and Shia, Hindu and Muslim. The secular, liberal state was seen as a way of finally bringing that kind of conflict to an end, by all parties agreeing to live under a religiously neutral body that protects all their freedoms equally.
FAIRNESS. Another reason might be fairness. Notice that religious beliefs are also often highly political, potentially having a major impact on society:
Take religious views on:
Homosexuality
The role of women
The state of Israel
Our duties to those less fortunate than ourselves
Medical research
These are all intensely political points of view. Now why should the addition of a religious dimension to certain political beliefs mean that they should be given a privileged role, or deserve special institutionalized forms of power and respect?
• We should not permit plays that mock, or might in some way deeply offend, those with certain religious beliefs.
• Airlines and schools should have no power to ban flight attendants or school pupils from wearing religious symbols, if the individual’s religion, or conscience, requires it.
• Taxpayer’s money should be used to fund religious schools that are then permitted to discriminate against both teachers and pupils on the basis of religious belief.
All of the above claims for special privileges are regularly made. I shall raise a challenge for those who make these claims.
A SIMPLE TEST: If you agree with some of these claims that religion deserves special institutionalized forms of privilege or respect, cross out the word “religious” and write in “political” instead. Then see if you still agree.
So the challenge I am putting to anti-secularists is this:
If you reject the political versions of these claims, why do you suppose the religious versions should be considered differently?
Why does sprinkling a little religious fairy dust on a set of political beliefs mean they should now be given more respect, or even more weight, than other people’s political beliefs?
Unless the anti-secularists can come up with a good answer to this question: they will rightly stand accused of unfairness.
“HELL IN A HAND BASKET” THESIS
One of the most popular answers to this challenge is this: religious belief is important for maintaining the social fabric.
Religion, religion provides our moral compass. Lose that compass. We’re heading for hell in a hand basket.
Prof. Roger Trigg, my opponent today, actually defends a very strong version of this “hell in a hand basket” thesis.
According to Roger, the Christian religion provides the moral foundation of our modern liberal values. Without it, those values may well collapse. Indeed, the Christian faith must actually be woven into the fabric of our State if we are not to risk losing our freedoms and sliding into totalitarianism.
THAT WE NEED CHRISTIAN STATE TO PROTECT US FROM TOTALITARIANISM – THAT IT’S OUR BEST PROTECTION AGAINST TOTALITARIANISM - is a very strong claim. But why should we think it true?
Let’s actually look at the history of totalitarianism is Europe…
Just over one of my lifetimes ago, much of Europe was indeed overrun by Nazi totalitarianism. How did the Christian Churches respond to the growing Nazi menace?
The first German Chancellor after the war, himself a Catholic, said:
I believe that if the bishops had publicly taken a stance from the pulpit a lot could have been avoided. That didn’t happen and there is no excuse for it.
Not very effective in Germany.
What about staunchly Catholic Poland? Surely opposition from the pulpit would have been clear there? In1936, the Catholic Primate of Poland did indeed issued a letter to be read from every pulpit in the country. In it he said:
It is a fact that the Jews are fighting against the Catholic Church, persisting in free-thinking, and are the vanguard of godlessness, Bolshevism and subversion. It is a fact that the Jewish influence on morality is pernicious and that their publishing houses disseminate pornography. It is a fact that Jews deceive, levy interest, and are pimps. It is a fact that the religious and ethical influence of the Jewish young people on Polish young people is a negative one.
The Catholic Church was hardly a staunch opponent in Poland either. Rather sympathetic, in fact.
Indeed, it was the Vatican, we now know, that arranged for thousands of Nazis to flee justice after the war. It was the Vatican that provided Adolf Eichmann, chief architect of the Final Solution, with his fake passport.
What of Fascist Italy? How did the Church resist totalitarianism there? By doing a deal with Mussolini in which Catholicism was recognised as the sole religion of state.
What of the rise of fascism in Spain? How did the Catholic Church fight the totalitarianism of General Franco? By supporting Franco’s overthrow of the democratically elected Government.
Let’s look a little further back in European history. Just four of my lifetimes ago the Catholic Church was itself arranging for the garrotting by the Spanish State of European citizens who failed to believe what the Pope told them. Last victim a school teacher in 1824. The Holy Inquisition worked hand-in-hand with the State to stifle freedom, and used the State as its executioner. As I say, just four of my lifetimes ago.
SOME RESISTANCE…On those occasions when they have resisted totalitarianism, they have resisted atheist totalitarian states, i.e. communist states. Otherwise, the Churches have put up very little, if any, resistance, often supporting the totalitarians.
So if anything, the warning from history is: don’t rely on the Church to protect you from totalitarianism. More often than not, the Church is actually part of the problem.
Is CHRISTIANITY THE ONLY JUSTIFICATION AVAILABLE? Do we need it to underpin and justify our basic freedoms? No.
Ask most political theorists and they will tell you that there are many justifications that have been developed, and that would religious justifications are actually some of the least credible on offer!
THERE IS A REAL DANGER IN ROGER’S VIEW, I THINK. THE DANGER OF MARGINALIZING… A significant and growing number of our citizens – about a third - are not even Christian. If you make the justification of our freedoms and laws explicitly Christian, you then leave a third of our population with no reason to agree to them. For our growing non-Christian population of youngsters, these freedoms and laws will seem increasingly irrelevant. Surely, if we want everyone to sign up to certain core values, wouldn’t it better if a religiously-neutral justification were offered instead?
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