Evaluating Judge John Roberts' Analogy of Justices to Umpires

Sports Law Blog readers John M. Powers, Jr., an attorney at the Henderson Law Firm in Phoenix (and also a former minor league baseball player), and recent Dartmouth grad Will Li brought to my attention Judge John Roberts' opening remarks to the Senate Judiciary committee, and specifically his analogy comparing justices to umpires.

Judge Roberts stated:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

It is an interesting analogy by the man who will likely become the next Chief Justice of the United States Supreme Court, and who will remain so for perhaps the next 30 or 35 years. And it is from a man who understands sports. Back in July, we discussed how Judge Roberts--the captain of his high school football team--is a sports fan and a sports lawyer (he was the NCAA's lead counsel in NCAA v. Smith, 525 U.S. 459 (1999), from which he secured an impressive 9-0 victory, with the majority opinion authored by Justice Ruth Bader Ginsburg). So we know that his reference to umpiring is based on some appreciation for sports, and not an artificial attempt to sound "normal" during his Senate confirmation hearing (something that, of course, Judge Robert Bork failed to do in his Senate confirmation hearings back in 1987).

But is Judge Roberts' analogy accurate? Let's look more closely at his exact remarks, of which there are three key statements.

Roberts' Statement 1: "Judges are like umpires. Umpires don't make the rules; they apply them."

A rhetorically-appealing comment, no doubt, but not entirely accurate in practice. Granted, a literalist would agree with Judge Roberts: umpires and judges don't "make the rules," they just apply them.

But what happens when, say, one MLB umpire intentionally employs a different strike zone than is enunciated by umpiring rules? Angel Hernandez is one such umpire. He often draws the ire of fans and players for his uniquely-wide strike zone. In using a modified strike zone, is Hernandez merely applying the standard MLB strike-zone according to his own interpretation, or is his interpretation so far off that he is essentially replacing the standard rule with his own rule? If Hernandez' strike zone is indeed "different" from the rules, then isn't he "making the rules" rather than applying them?

Now, one might argue that umpires don't "make rules" such as strike zones because there are two deterrences that should disuade them: 1) the Questec Umpire Information System tracks the quality and accuracy of umpiring, and that data is used by the MLB in ranking umpires; and 2) umpires are evaluated at the end of each season by MLB, and the lousy ones can lose their jobs, or suffer less severe sanctions, such as not being invited to umpire playoff games. For that latter reason, Hernandez presumably can't be as bad as some of his critics allege, or otherwise he wouldn't have been an MLB umpire over the last 12 years. In that respect, his unique strike zone appears more like interpretation than invention.

But that just begs a question for Judge Roberts: if umpires are indeed like Supreme Court Justices, then where is the "Questec system for Justices," and how are bad Justices held accountable? Unfortunately for Judge Roberts and his analogy, there is obviously no "Questec for Justices," and since Justices receive life-time appointments, bad Justices aren't held accountable. Now sure, trial and appellate judges risk their decisions being overturned on appeal, but U.S. Supreme Court Justices don't share that fear: their word is the last one on any given subject. And that, of course, illuminates how Justices and umpires are engaged in disassociated activities: Justices write opinions that are subjectively-evaluated without repercussion, while umpires apply rules that are objectively-evaluated with repercussion.

Evaluation of Statement 1: Thumbs Down
Inaccurate in both concept and practice, and it ignores how deterrence and supervision distinguish Justices from umpires: Justices enjoy almost dictatorial power over the law--and that enjoyment lasts for the remainder of their lives--while umpires must watch out for their jobs if they stray too far from the rule book.

So let's turn to Statement 2.

Roberts' Statement 2: "The role of an umpire and a judge is critical. They make sure everybody plays by the rules."

Judge Roberts, the rules according to who? His generic statement fails in its application: judges and umpires can apply rules in ways that create uncertainty and unfairness. For instance, if umpires exist to ensure that everybody plays by the rules, then how come NFL line judges often refrain from calling offensive holding, even when they see it? And why do NBA officials not call fouls on superstar players with the same frequency that they call them on regular players (i.e.,"the Michael Jordan rule")? And why do NBA officials tend to call more fouls on visiting teams than on home teams? Are umpires really then, as Judge Roberts contends, "making sure everybody plays by the rules" or only some persons, some of the time, and in some places?

Evaluation of Statement 2: Thumbs Down
A wonderful ideal that doesn't exist in reality. Maybe Judge Roberts' comment would play over well in the Field of Dreams or that home court in Hoosiers, but not in Fenway Park or Madison Square Garden. In other words, another bland, even misleading precept shared by Judge Roberts. It may sound reasonable and appealing in sound-byte, but it appears incompatible with how things really work in sports. And as former lead counsel for the NCAA, Judge Roberts is presumably aware of that--which makes one wonder about his motivations for using the Justice-umpire analogy.

Lastly, let's look at Statement 3.

Roberts' Statement 3: "The role of an umpire and a judge is critical . . . But it is a limited role. Nobody ever went to a ball game to see the umpire."

I agree with Judge Roberts that nobody ever went to a ball game to see an umpire. But is that really true with judges, and particularly Supreme Court Justices? I appreciate Judge Roberts' humility and his sense that he and his colleagues on the Supreme Court shouldn't be the center of attention, but there's a reason why people wait in long lines to see the Supreme Court in action, regardless of the case. I remember taking a high school trip to Washington D.C. and waiting in a long line--early in the morning--to watch a mere two minutes of oral arguments at the Supreme Court. We didn't know or care what the arguments were going to be about, and we didn't understand them when they occurred, but we wanted to watch the Justices in action. That's why we were there.

Perhaps more telling, people don't write biography after biography about umpires, who are generally unknown and remain so throughout their careers. In fact, it is often said that the best umpires are those who are never noticed. But that's not true of judges, who are frequently the subject of biographies, law review articles, and media. And that is particularly true of Supreme Court Justices--another indicator that judges--unlike umpires--can often be the main attraction, rather than the mere referee. Along those lines, the potential apex of any attorney's career is to become a United States Supreme Court Justice. That's the high-water mark, and less than .0000000000000000001% of attorneys ever obtain it. Thus, for Judge Roberts to suggest that Justices, like umpires, are just there to "regulate the game" ignores the fact that Justices are the game.

Evaluation of Statement 3: Thumbs Down
Inaccurate, much like Statements 1 and 2. Perhaps it reflects Judge Roberts' humility, but it doesn't reflect reality. I recognize that Judge Roberts wants to convey to his critics that he is not going to radically change existing laws, particularly those impacting controversial social issues. But perhaps he might want to try better sports analogies next time. And one would think that the former lead counsel for the NCAA could do a lot better.

Welcome Massachusetts Lawyers Weekly Readers

A gracious thank-you to Attorney David Frank, news editor of Massachusetts Lawyers Weekly, for his article on Sports Law Blog in this week's publication. (Frank, "Couple of Good Sports," Massachusetts Lawyers Weekly, 9/12/2005). David, along with Attorney Scott Gilefsky, co-hosts Sports Court on Sporting News Radio Boston on Sundays from 6 PM to 8 PM.

Here are some excerpts from the piece, which appears on page 5:

So, what do sports and law have in common? For a pair of recent Harvard Law School graduates, the answer is a lot.

Michael A. McCann and Greg L. Skidmore have developed the Sports Law Blog into a nationally recognized website that explores the legal issues in sports through postings and lively e-mail debate amongst readers.

"When the site began, no one expected it to grow," Skidmore, 25, comments. "It was something fun to do and not anything we thought would actually become popular."

Two years after its creation, though, the Sports Law Blog receives between 3,000 and 4,500 visitors per week and has become a must-read for a wide-audience.

Skidmore and McCann, who write all of the postings on the site, say they feel their readership includes individuals from legal and non-legal backgrounds.

"Our hits have skyrocketed this year," 29-year-old McCann notes. "Having an audience that you don't want to lose makes you want to work harder and it gives you a real sense of reward. It's been incredible to have experienced lawyers tell me that they've read an article I've written and feel that I turned a subject on its head" . . .

Recent subjects have included the legal consequences of Red Sox officials banning the displaying of offensive signs and shirts at Fenway Park, the role that insurance plays in baseball and other action sports, and U.S. Supreme Court nominee John G. Roberts Jr.'s views on sports and his work on a Title IX sex-discrimination case.

For more on the story, Massachusetts Lawyers Weekly is available in most book and magazine stores in Massachusetts. If you live there, we hope you pick up a copy.

For those of you have just discovered Sports Law Blog, either through David's piece or otherwise, please take a look at a sampling of our works, which we compiled a couple of weeks ago for a story on the Blog by Mark Hyman in Street and Smith's Sports Business Journal.

Perhaps most importantly, we thank all of our readers and those who contribute comments and e-mails. We are truly grateful for your contributions to this website.

Do Colleges and the NCAA Have a Heightened Duty of Care for Student-Athletes with Sickle Cell Trait?

Jennifer Price and Dusty Luthy have an extensive piece in the Columbia Missourian on the recent deaths of two college football players: Devaughn Darling of Florida State University (died at age 18 in February 2001) and Aaron O'Neal of the University of Missouri (died at age 19 in 2005). (Price & Luthy, "Autopsy Results Probed," Columbia Missourian, 9/11/2005). Both players died immediately after partaking in rigorous training sessions that were supervised by their teams' coaching and training staffs. The sessions were also conducted in very hot and humid conditions, and both players complained of chest pain and dizziness while exercising.

In futilely attempting to treat their infirmed players, neither Florida State University nor the University of Missouri were aware of a critical piece of information: Both Darling and O'Neal carried the sickle cell trait, meaning they inherited from one parent a normal hemoglobin gene (hemoglobin is a protein within red blood cells that carries oxygen throughout the body), and a sickle hemoglobin gene from the other parent. In practice, sickle cell trait can have little or no effect on a person's life activities, although some with sickle cell trait may develop blood in their urine, and others may feel pain while flying in unpressurized planes at high altitudes. Sickle cell trait should be distinguished from sickle cell disease, which refers to when a person inherited a sickle hemoglobin gene from each parent. Sickle cell disease may cause a blockage of blood flow, a phenomenon that can trigger serious complications, such as stroke, kidney damage, and lung blockage. Importantly, since a person with sickle cell trait inherited a normal hemoglobin gene, his sickle cell trait cannot develop into sickle cell disease. In striking contrast to the dire effects of sickle cell disease, the primary drawback to sickle cell trait pertains to child-rearing: when both a man and woman with sickle cell trait have children, their children have a 25 percent chance of being born with sickle cell disease.

As noted in the preceding paragraph, serious health complications are thought to be rare with sickle cell trait. Nevertheless, David Craig, the medical examiner of Devaughn Darling, concluded that while there was no definitive cause of death, Darling had developed red cell sickling in most of his blood vessels. This condition can lead to a fatal cardiac arrest: “Although rare, sudden unexpected death has been associated with healthy, athletic males with sickle cell trait." Craig's observation suggests that the stress imposed on Darling's body during practice may have morphed his sickle cell trait from a benign condition into a deadly infirmity. Valerie Rao, the medical examiner of Aaron O'Neal, concluded otherwise with her examinee: lymphocytic meningitis, and not sickle cell trait, had caused his death. However, subsequent medical opinions disagreed with Rao, contending that she too quickly dismissed the salience of sickle cell trait in O'Neal's death, particularly given Craig's examination of Darling.

The notion that athletes with sickle cell trait may be at great risk is a developing theme in medical and science literature. Indeed, new research suggests that taxing training conditions can exacerbate the danger of sickle cell trait. According to Michael Bergeron, an applied physiologist at the Medical College of Georgia and American College of Sports Medicine fellow, "given the right conditions of strenuous exercise, dehydration and heat strain, sickling can occur and that can lead from mild symptoms of discomfort to severe pain to significant organ damage and ultimately to death.” Similarly, Dr. John Kark, M.D., a former professor at Howard University Medical School and a leading expert on sickle cell research, contends that those with sickle cell trait have a multiple-fold increase of dying from sudden death whenever engaged in strenuous, high-heat activities (such as military boot camp or demanding football practices).

Not surprisingly, both Darling's and O'Neal's deaths triggered legal action. Last year, Darling's parents filed a wrongful death suit against Florida State University, alleging that the school had failed to treat their son after he complained of dizziness and chest pains. As a matter of background, a wrongful death lawsuit usually entails an allegation that a person was killed as a result of the negligence on the part of the defendant. The Darlings and Florida State University settled, with FSU agreeing to pay the Darlings $2 million. As to O'Neal, his parents recently filed a wrongful death suit against the University of Missouri, alleging that the Missouri athletic staff were negligent in waiting too long and doing too little to respond to O'Neal's symptoms. As noed above, neither FSU nor the University of Missouri were aware the players had sickle cell trait.

The schools' lack of awareness as to the players' sickle cell trait may pertain to NCAA philosophy. Namely, the NCAA appears unconcerned by the risk of sickle cell trait to student-athletes. In fact, it describes sickle cell trait as a “benign condition that does not affect the longevity of the individual” and not a barrier to “outstanding athletic performance.” Moreover, the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports does not recommend that colleges ask applicants if they have sickle cell trait.

Adding to the question of legal liability is the sociological question of race. Sickle cell trait and sickle cell disease disproportionally afflict African-Americans and, to a lesser extent, those of Arabian, Indianan, Turkish, and Greek ancestry. In fact, one in 12 African-Americans has the sickle cell trait, and 1 in 500 has sickle cell disease. For that reason, apparent indifference by team and NCAA officials to the health concerns of athletes with sickle cell trait might trigger questions of racial insensitivity. Of course, the counter-argument is that coaches have a vested and selfish interest in seeing all of their players healthy; otherwise, their team may not perform as well. Moreover, even if limited resources forced coaches into calibrating levels of therapeutic care among players, such levels would presumably be based on expected performance, rather than on race -- the team's star player would likely get the best care (since the coach wants him back and back healthy ASAP), while the team's version of "Rudy" would likely get the worst.

It will be interesting to watch if potential tort liability and sociological concerns encourage colleges and the NCAA to modify their treatment of players with sickle cell trait. It appears plausible that colleges will soon begin to request that information from student-athletes prior to their engagement in team practice, particularly if those practices require heavy exertion in warm, humid weather. In addition to obtaining such information, college trainers and medical staff might modify their standard operating response to players with sickle cell trait that exhibit any dizziness, stomach aches, or related conditions. In other words, there would be an elevation of the "legal duty" owed by colleges to their student-athletes who carry sickle cell trait.

Moreover, though the NCAA was not sued by either Darling or O'Neal, one suspects that their official position on sickle cell trait -- that it is not a threat or an impairment -- might trigger liability should future deaths arise that involve sickle cell trait. On the other hand, there remains a scientific debate as to whether sickle cell trait actually increases the likelihood of death for those players, and perhaps colleges and the NCAA will resist acting until that debate is resolved.

It's Not About Being an Attorney

Syndicated columnist Bob Novak has a seething piece on Real Clear Politics in which he argues that because DHS Secretary Michael Chertoff and FEMA Director Michael Brown are attorneys, they have incompetently handled Hurricane Katrina. He doesn't offer any reasoning as to why the legal training of Chertoff and Brown is somehow relevant to their performance, but he begins and ends the column with the same conclusion: get the lawyers away from the relief efforts and things will get better.

Novak's premise is absurd. Sure, Secretary Chertoff and Director Brown have failed rather spectacularly, but so have a number of others who aren't attorneys. Louisiana Governor Kathleen Babineaux Blanco isn't an attorney (she holds a B.S. in business education from the University of Louisiana), and neither is New Orleans Mayor Ray Nagin (who I think has done some good things and has at least spoken candidly)--he holds a B.S. in accounting from Tuskegee University and an M.B.A. from Tulane University. And how about President Bush and Vice-President Cheney, the duo from whom the buck ostensibly stops? Neither are attorneys (Bush holds a B.A. from Yale and an M.B.A. from Harvard, while Cheney holds bachelors and masters degrees from the University of Wyoming). The same can be said of top White House strategist Karl Rove, who attended the University of Utah.

In other words, almost all of the decision-makers are not attorneys, and yet Novak's premise is that the attorneys are at fault. Moreover, even if Chertoff and Brown deserve most of the blame, how is their legal training relevant? Novak doesn't say. And why doesn't he say? Because it's not relevant. Brown's failures probably have most to do with his missing qualifications: he's a GOP operative who's loyalty to Bush and friendship with former FEMA Director Joe Albaugh got him the job. I'm not sure why Chertoff has failed, but I don't think his Harvard Law degree has anything to do with it (at least, I hope not).

Lastly, if attorneys are so inept at managing relief efforts, then how come former New York Mayor Rudolph Giuliani--a graduate of NYU Law School and a former US Attorney--did so well in responding to the September 11th terrorist attacks?

I admit: this post is "law" and not "sports," but sometimes you read such an incongruous anti-lawyer piece that you feel compelled to respond.

NCAA v. Yeo: Does the Law Lose its Meaning When Fairness is Ignored?

Eric McErlain of Off Wing has an engaging take on NCAA v. Yeo, which we discussed earlier today:

Can somebody tell me where there might be a scintilla of fairness or justice in this kind of decision? I know competing in intercollegiate athletics are a privilege, not a right, but just whose interest was served by such a non-sensical ruling (on the part of the NCAA, not the court), especially after Yeo declined to participate in NCAA competition for a full year?

His post, entitled "The Monster that is the NCAA," generates interesting reader comments, and be sure to also check out the excellent reader comments generated from our post below.

Although NCAA v. Yeo may be a correct ruling by the Texas Supreme Court, it begs the question of why have laws when the "correct" result is so profoundly unfair? Along those lines, notes McErlain,

As I've written before, if an athlete has to sit out of competition for a year if they transfer, then it is only fair that same rule apply to coaches and university administrators as well. But like Congress, the mandarins of Kansas City wouldn't dream of holding themselves to the same standards of behavior that they demand of the athletes they regulate.

Feasibility of Lawsuits by Athletes Against Coaches and Schools for Lack of Playing Time

Timothy Epstein, an associate at O'Hagan, Smith & Amundsen in Chicago, recently published an excellent law review article entitled "Splinters from the Bench: Feasibility of Lawsuits by Athletes Against Coaches and Schools for Lack of Playing Time." The article appears in Volume 4 of the Virginia Sports and Entertainment Law Journal (2005). It discusses the feasibility of lawsuits brought by athletes against their coaches and schools for lack of playing time--a timely topic in light of NCAA v. Yeo, No. 03-0753, 2005 Tex. LEXIS 606 (August 26, 2005).

Yeo features a superstar college swimmer that ran afoul of the NCAA and it's myriad, and often confounding set of eligibility rules. Specifically, Joscelin Yeo, a native of Singapore, first attended University of California at Berkeley, but then transferred to the University of Texas in 2000 after her UC Berkeley coach took a job there. Pursuant to NCAA rules, UC Berkeley disallowed Yeo from swimming for UT for one year following her transfer (UC Berkeley could have, but didn't, sign a waiver exempting Yeo from that rule). As a result, UT deemed Yeo ineligible to swim for its team; otherwise, it risked sanction from the NCAA. Yeo then did not enroll in UT classes for the fall semester of 2000, instead competing for the Singapore Olympic team. She then enrolled in classes for the spring semester of 2001, and when fall 2001 semester started, Yeo and UT assumed that she had satisfied the one-year wait, and she started swimming for UT. They were wrong: because Yeo did not enroll in classes in the fall, that semester did not count toward her one year wait. The NCAA then ruled that she was ineligible to swim for the rest of the spring + the number of events she partook in the spring. But then it gets worse: UT tried to get around the added penalty by simply adding early events in the spring 2002 season. Berkeley complained, and, with sanctions looming, UT again deemed Yeo ineligible.

Understandably frustrated with the whole process, Yeo then sued the NCAA, claiming that UT never provided her notice of a hearing or a hearing in its decision. She won her trial, with the court granting a temporary restraining order and permanent injunction, thus allowing her to compete. The NCAA appealed, and lost, with the appellate court finding that (1) Yeo had already established an outstanding athletic reputation not only in her native Singapore, but throughout the world; (2) if NCAA rules did not forbid it, said fame would allow her to immediately reap the benefits of marketing and endorsement monies, while her athletic abilities would allow her professional compensation as a member of Singapore's national team; and (3) UT represented to Yeo that if she were to transfer to Berkeley, UT would not endanger Yeo's NCAA eligibility. Based on these facts, the appellate court ruled that Yeo had established an athletic reputation prior to attending Berkeley and competing under NCAA regulations, which was "a protected interest for purposes of due course of law." The appellate court did acknowledge that the due process protection that Yeo should have received was fact-specific, though, "depending on that athlete's specific situation and reputation." In other words, exceptional athletes like Yeo enjoy greater protection than other, not as noteworthy competitors.

The Texas Supreme Court disagreed, though, affirming the principle laid down by the U.S. Supreme Court in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570-571 (1972), that due process protection is afforded to something based on its nature, not its weight. NCAA v. Yeo, No. 03-0753, 2005 Tex. LEXIS 606 (August 26, 2005). As such, the court found that, "the nature of one's interest in a good reputation is the same no matter how good the reputation is."

The court did not stop there, though. Following the determination that Yeo's reputation enjoyed no greater due process protection than anyone else's, the court found Yeo's financial damages to be too speculative. "While student-athletes remain amateurs, their future financial opportunities remain expectations." Further, the court refused to equate the interest in intercollegiate athletic participation to that in graduate education.

The court then concluded with a chilling warning to potential claimants in disappointment lawsuits:

We have twice reminded the lower courts that 'judicial intervention in [student athletic disputes] often does more harm than good.' As the Fifth Circuit has said, judges are not 'super referees'. Along the same vein, the United States Supreme Court has observed: 'Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.' We reiterate this counsel to the trial courts and courts of appeals.

According to Epstein, while this decision strikes a blow to potential "disappointment" plaintiffs, the tremendous "compensation" available to athletes in the form of scholarships, salary, and product endorsement, coupled with the growing amount and sophistication of athletic ability ratings systems and services, suggest these types of lawsuits will likely continue to be filed. For further analysis of this topic see Epstein's article in the latest issue of the Virginia Sports and Entertainment Law Journal (4 VA. Sports & Ent. L.J. 174).

Bioethics in Barcelona

Before I forget, I must mention something about the Barcelona meeting (Ethics and Philosophy of Emerging Medical Technologies, Institut Borja de Bioetica, Universitat Ramon Llull, Barcelona, Spain), since sport appeared in a good handful of papers including:

Keynote paper on Therapy and Enhancement
Professor Ruth Chadwick

Argued in favour of the term 'improvement' rather than enhancement, as a basis for characterising the ethical issues arising from emerging technologies.

Ethical norms for research on biomedical enhancement susing human subjects
Professor Max Mehlman

Max has written considerably on genetic enhancement and regularly uses sport as a case study in his work. The military was also a theme and there are some great analogies between sport and the military.

Honorary session for Lennart Nordernfelt

Thomas Schramme developed a case to inquire into the concept of 'health' the focus of this session and a tribute to Nordenfelt who gave an introduction and reply. Schramme's case discussed Lily, an athlete who wanted to jump 2m. He argued that Nordernfelt's work would argue that her inability to jump this high would qualify as failing to meet a vital goal and that, therefore, we could characterise it as an illness that should be alleviated by medicine. In short, we would characterise her less than healthy.

Schramme rejected the idea that this inability should be characterised as an illness and rejected the idea that the realisation of all vital goals falls within the proper role of medcine. Nordenfelt agreed with Schramme's conclusion, but did not accept that Lily's interest to jump 2m could be described as a vital goal. Being the best is not a reasonable expectation, but being good is.

Athlete or Guinea Pig? Sports and Enhancement Research
Nancy M.P. King and Richard Robeson

Argued that medicine for the athlete should be characterised as enhancement research, but currently it is not. This led to some interesting debates about whether sport technology should go through a more rigorous liability check and whether this should be connected to anti-doping policy. I argue for this in my 2005 piece in the European Journal of Sport Science, though their emphasis is on medical procedures. I wonder whether blood spinning might fall within this category.

Finally, there was my wee paper

Posthuman Medicine & Imagined Ethics
Developed posthuman theory in relation to transhumanism and cyborgology and subsequently argued for the need to consider imagined ethical issues. Used the gene doping case as an example of an 'imagined ethical' debate.