More Support Last Weekend for the Anti-BCSers

In my post a week ago today about the quest for determining a national champion in college football ["The BCS System: Could it be an illegal restraint on trade?" (9/4/05)], I questioned both the fairness and the reliability of the BCS computer selection process, which takes into account, among other things, the rankings in various polls.

Well, here are the results of the college games this past weekend in which the polls just didn't get it right...again:

1. No. 6 Ohio State lost to No. 16 Penn State (who's coach for some reason is not considered "old" this year)

2. No. 10 California lost to No. 20 UCLA

3. No. 14 Wisconsin lost to unranked Northwestern

4. No. 17 Arizona State lost to No. 25 Oregon (by 2 touchdowns)

5. No. 21 Michigan lost to unranked Minnesota.

At first glance, 5 inaccurately predicted games by the polls doesn't appear to be too many. But the flip-side is that the polls accurately predicted only 11 games! Do the math and last weekend the polls only had a 68% accuracy rate. What's even more interesting is that out of all 11 games that the polls got right, only one game (No. 5 Georgia vs. No. 8 Tennessee) involved two ranked teams playing against each other. The other 10 games were situations in which a ranked team beat an unranked team without a very good record -- So in other words, predicting this past weekend for the polls should have been pretty easy. Ironically, the toughest games in which to predict the outcome were those games listed above and the polls were wrong in each case, which arguably undermines the reliability of the BCS system.

Gene Doping: Human Genetic Technologies and the Future of Sports

Information about an event:

Please join us Oct. 11 for the inaugural talk in our new Genetics Perspectives on Policy Seminars (GenePOPS) series, designed to explore and illuminate some of the critical issues at the intersection of human genetics and public policy. Hosted by the Genetics and Public Policy Center, a partnership between Johns Hopkins University and The Pew Charitable Trusts, GenePOPS will feature some of the nations leading scientists, medical practitioners, policymakers, patient advocates, and ethicists as they discuss issues as wide ranging as genetic privacy, reproductive genetics, gene doping in sports, and safety and efficacy of commercial genetic tests.

Our first program features a panel discussion of the science, ethics, and regulation of genetically enhanced athletic prowess. Are the scientific tools available today to use gene therapy or germline modification to boost athletic performance, and if so, should they be used? Would the procedure be detectable through existing tests?

What kinds of pressures would athletes feel to use gene doping if it were available? Would parents be likely to choose genetic athletic enhancement for their children?

Tuesday, Oct. 11, 2005
Kenney Auditorium, Johns Hopkins University
1740 Massachusetts Ave., N.W.
4:00 p.m., reception to follow

PANEL:
Dr. Kathy Hudson, Director, Genetics & Public Policy Center (moderator)
Ms. Melissa Dalio Mierke, Exercise Physiologist and USA Triathlon National Champion
Dr. Tom Murray, Director, The Hastings Center (Chair, Ethical Issues Review Panel, World Anti-Doping Agency)
Dr. Bengt Saltin, Director, Center for Muscle Research, Copenhagen University (Member, Scientific Board, World Anti-Doping Agency)
Dr. H. Lee Sweeney, Chair and Professor of Physiology, Department of Physiology, University of Pennsylvania

Contact:
Rick Borchelt (202.663.5978); rborche1@jhu.edu )
Audrey Huang (202.663.5979); ahuang18@jhu.edu

Please RSVP to Rick or Audrey at the contact information above.

My New Law Review Article "It's Not About the Money"

Ever wonder why Ricky Williams signed an unprecedented incentive-laden rookie contract? Or why Nomar Garciaparra and the Boston Red Sox could never agree on a contract extension? Or why Jermaine O'Neal re-signed with the Indiana Pacers because he thought the team would retain Isiah Thomas as head coach, even when everyone else knew that Thomas was about to be fired by Larry Bird? Or why some players take hometown discounts, or why some value organizational loyalty, even when challenged with evidence that challenges their underlying beliefs?

My new law review article "It's Not About the Money: The Role of Preferences, Cognitive Biases and Heuristics Among Professional Athletes" attempts to answer these and other questions. This article represents the first ever application of behavioral law and economics to professional athletes in contemplation of contract offers. The first half of the article explores the salience of law and psychology in traditional law and economic choice models, and the second half discusses the role of cognitive biases and heuristics in specific contractual decision-making by pro athletes, including in the instances described above, but also in the contractual decision-making of Kris Benson, Tommy Salo, Barry Larkin, Teemu Selane, Matt Morris, Fred McGriff, Donyell Marshall, Matt Harpring, Fred Smerlas, Kurt Gibson, Alonzo Mourning, Eddie Guardardo, Sean Jones, Kelly Holcomb, Mike Greenwell, Jamal Crawford, Pedro Martinez, John Flaherty, Jason Christansen, and Bruce Matthews. Why did so many of them not take the most lucrative contract offer? How was their decision-making affected by either alternate preferences (e.g., playing in a warm weather city), or cognitive biases and heuristics? [as a matter of background, cognitive biases are subconscious mental errors triggered by simplified informational processes and heuristics are convenient, if unfinished predictive cues employed by the human brain.]


I will post more extensively on It's Not About the Money next week, after I have selected a law review for publication. But for a sneak preview, check out the abstract and you download the article (for free, by hitting the "New York, USA" download icon depicted to the left). I hope you all download it and give a read. As it is in draft stage, I would very much welcome any feedback at mccann[at]post.harvard.edu.

Another "Mature" Phenom Drafted Out of High School

In today's edition of the Florida Times-Union, Jason Schneider wrote an article about Dwight Howard, Orlando Magic's 2004 first round draft pick out of high school ("NBA's Magic has a new poster boy," 10/7/05). As far as his ability, Schneider notes that he's the first rookie to average a double-double (12 points per game, 10 rebounds per game) since 1991-92 and the first direct-from-high school rookie to start all 82 games. In addition, Howard was unanimously selected to the All-Rookie team and he finished third in the Rookie of the Year voting. But Howard is more than just a basketball talent. Here's an excerpt from Shneider's article [edited by me in italics with David Stern's comments]:

"Howard spent the offseason visiting students at Orlando-area schools, talking about everything from math to religion. He sponsored a basketball camp in his hometown of Atlanta. [Oh great, here's Exhibit A in the next antitrust lawsuit challenging our draft age eligibility rules.] He went to the Philippines, Hong Kong, China and Taiwan as part of a promotional tour for the NBA over the summer. [Note to self: Find out if he broke curfew any time while touring these countries.] .... 'He handles everything pretty well,' coach Brian Hill said. 'He has a maturity that is beyond his years.' [NO!!! I thought we informed our coaches not to say these things!] It's that maturity, combined with his ability, that is making Howard a media darling."

Dwight Howard is yet one more example in support of Michael McCann's research that there is no logic to the argument that high school players lack the maturity to play in the NBA, which is the NBA's justification for implementing the new age eligibility rule.

While the anti-competitive effects of a draft age eligibility rule banning high school players from the draft arguably outweigh the pro-competitive effects of such a rule under a "rule of reason" analysis, the first hurdle for the player is to establish that the rule is not exempt from the antitrust laws. If the alleged restraint on trade is a "mandatory" subject of collective bargaining, as that term is defined under the National Labor Relations Act, then the rule is exempt from antitrust scrutiny. There appears to be a misconception about the meaning of this term and that a subject is "mandatory" just because it has been collectively bargained for by the union and the league.

Under the NLRA, a mandatory subject refers to "wages, hours and working conditions". The term "wages" include salary, bonuses, etc.; "hours" refers to time spent on the job; and "working conditions" are factors that influence the work environment such as work rules, safety and seniority. If a subject is not mandatory, then it is "permissive" and the employer is not required to negotiate that subject in good faith with the union. The logic behind all of this is that mandatory subjects go to the "heart" of what's important to the work force (not the employer) and that the employer can't unilaterally implement standards of its own without negotiating these items with the union. For example, employees might insist that they be provided with a minimum wage scale or a minimum standard of safety equipment that the employer would not otherwise provide, or that employees receive certain benefits upon reaching the age of seniority. The other aspect at work here is that it's supposed to be a quid pro quo labor negotiation (i.e. the work force gives up something in return for getting something from the employer), which I believe is lacking when the union is (purportedly) negotiating on behalf of amateur players. When a union negotiates with the league over the draft age requirements for prospective players, the existing player/members of the union are not giving up anything, but they are definitely getting something from the league in return for it.

The term "working conditions" does not refer to conditions to obtaining employment, such as having a master's degree or having obtained a certain age. In the sports context, an example of a working condition would be whether players will play on artificial turf vs. natural grass. While the general concept of a draft is arguably a mandatory subject because the draft in and of itself has a direct impact on the wages a player is going to receive based upon the round drafted, I have yet to hear a convincing argument as to what a draft age requirement has to do with wages. [Another example of a mandatory subject would be the service time requirements for arbitration and free agency in baseball because that obviously impacts a player's wages.] If the draft age eligibility rules do not constitute "wages, hours or working conditions," then it's a permissive subject and not exempt from the antitrust laws. This is where the Clarett decision is wrong, and he should have be allowed to present his case to a jury.

ATP Madrid Suspends Doubles Tournament in Response to Lawsuit Filed Against ATP Tour

The L.A. Times reported yesterday that the ATP Masters Series-Madrid is “suspending the doubles portion of their event” in reponse to a lawsuit filed on Sept. 1 by doubles players against the ATP. Mike and Bob Bryan, the winners of last year’s doubles tournament in Madrid, are part of the lawsuit. Tournament officials said the doubles competition scheduled for October 17-23 “would be canceled if there was no resolution to the lawsuit and planned on donating 50% of the prize money to the ATP players’ retirement plan.” According to the Bryans’ attorney, John Sullivan III, the move is “mind-boggling, especially on top of the fact we’ve been negotiating in good faith. ... It’s consistent with what we’re alleging.” But ATP Masters Series Madrid organizer Gerard Tsobanian stated: “We consider that the lawsuit filed by these 45 doubles players makes no sense and therefore it is not coherent for us to organize the doubles draw this year in Madrid with these same players while they are in the middle of a lawsuit against the ATP, of which we are members.”

After Wimbledon, the ATP announced fundamental changes to the rules concerning how players qualify for doubles tournaments. Under the new rules, doubles players will be required to qualify for the singles tournament before being eligible to compete in doubles tournaments, regardless of how successful they have been in doubles tournaments. However, because of the special requirements to excel at the highest level of doubles, most of the top doubles players do not play the singles events and thus lack the necessary experience in singles play. The players claim the ATP, controlled by self-interested tournament directors, have unfairly changed the system to favor singles players over doubles players, upsetting long traditions in the sport and completely divorcing entry requirements from past competitive success in doubles. The players were surprised to say the least about the announcement, especially given that the Players' Council (comprised of mostly singles players and a few doubles players) voted 8-0 against the reform. According to Mike Bryan, "the players voted against it and the tournaments passed it anyway, so it's a pretty corrupt system."

The ATP governs the professional tennis tour and was formed to, among other things, "promote and protect the future of the sport of professional tennis" and to give tour players a voice in their sport. The lawsuit claims that the ATP's efforts to purportedly "enhance" doubles is in fact a concerted effort by tournament directors to run the best doubles players out of the game and turn the doubles circuit into nothing more than an exhibition marketing tool for tournament directors to promote their singles tournaments. The lawsuit also alleges that the ATP's directors have violated their fiduciary obligations to the players by enacting rules that prevent doubles players from competing, contrary to the express wishes of the players.

This is a very unique case and it will be interesting to see how it unfolds.

Don't Wear That! David Stern's Paternalism Strikes Again with Dress Code

Apparently tired of watching grown men wear jeans while boarding airplane flights (I guess it offends some in the NBA's league office), the NBA will institute a strict dress code this season for all team-related activities, including air travel, entering the stadium, and public appearances. Players will have to wear "business casual," meaning a sports coat and slacks; jeans are outright prohibited. Violation of the dress code will trigger unspecified monetary fines. The dress code has not yet been formalized, although that is expected in the coming weeks.

As a product of over 12 years of Catholic schooling, I understand that "proper attire" is something valued by many in society. But aren't NBA players adults, and not children? Can't they decide to wear jeans, on their own, and not be loathed by those around them? And isn't it demeaning to institute a "dress code" for adults? And, perhaps most importantly, isn't it a tad troubling that NBA players--77 percent of whom are African-American--"need supervision" on what they wear -- does that not risk striking a very pernicious message?

Of course, many pro sports teams already impose a dress code, and there is historical tradition for such imposition. Vince Lombardi was renowned for mandating that his Packers' players adhere to a strict dress code. And since the 1972 Reds instituted a dress code, a number of Major League Baseball teams have done so (although the 2004 Boston Red Sox--"The Idiots"--seemed to do okay without one). Even the American Pool Players' Assocation requires a dress code (although, amusingly, the picture featured on the American Pool Players' Association dress code page shows a guy wearing jeans, with his shirt untucked and his top three buttons not buttoned, while standing next to a woman also dressed leisurely).

Not surprisingly, the new NBA dress code has already generated opposition from some NBA players. The Hawks' Josh Childress says it is "too much" for the NBA "to ask us to wear suits everywhere, even at a hotel at 2 a.m." Similarly, the 76ers' Allen Iverson laments, "I dress to make myself comfortable. I really do have a problem with [the dress code]. It's just not right. it's something I'll fight for." Despite such opposition, Players' Association president Antonio Davis will not apparently contest the new dress code.

The NBA's desire to control the appearance of NBA players appears consistent with underlying paternalism among NBA officials. This is best detected by Commissioner David Stern's comments to justify an elevated age floor for the NBA Draft. He has repeatedly claimed that prep-to-pro players lack maturity and are ill-prepared for the pressures of NBA life:

"[Stern] saying players need to have 'more life experience to better enable them to adjust.'" From: Rocky Mountain News (Feb. 18, 2005)

"[Stern] said an age limit would 'allow kids another reason to have another year or two to grow, to deal with the stress, the discipline and, really, the life experience that would be helpful. I'd like to think that somebody would react better at 20 than 19.'" Washington Post (May 10, 2005)

"'Because even if they might not get the same intense training from a basketball perspective … they will get a year of experience, a year of life experience, a year of education,' said Stern." Roanoke Times (July 6, 2005)

Interestingly, as we discovered in July, there appears to be an inverse correlation between arrest propensity among NBA players and their age and level of education. That point, of course, turns Stern's argument on its head. Both on and off the court, the evidence shows that the players best suited for the NBA are those who skip college.

Nevertheless, Stern will likely justify the dress code on grounds that it improves the league image, and perhaps he has a point. Then again, a dress code won't remove large tattoos, and that seems to be a more salient concern than whether players wear jeans or khakis on team flights. Moreover, I can't help but think his efforts to improve the league are ignoring the obvious: to the extent the game isn't as good as it was 20 years ago, league expasion--and not player attire or prep-to-pro players (who have done exceptionally well)--seems more explanatory: in 1985, there were 23 teams and many had fewer than 15 players under contract, meaning that with 30 teams today and 15 person rosters, the sheer number of players in the NBA has increased by over 25 percent over the last 20 years. On a practical, this means that a player who was the 8th or 9th guy on the bench in 1985 would likely be a starter today. No wonder why the quality of play has declined: Lesser players are expected to play greater roles. And that has nothing to do with attire or prep-to-pro players.

File under: Another Red Herring Propagated by the NBA.

**UPDATE January 2006**: I have a forthcoming law review article on this topic: The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 University of Pennsylvania Journal of Labor and Employment Law __ (forthcoming, 2006). I invite you to download the draft on the Social Science Research Network ("SSRN") -- the download is free, and all it requires is an SSRN account, which is itself free and which provides you with access to thousands of interesting articles, papers, and drafts.

A Massachusetts Guy in Mississippi

Many thanks to Anita Fritz of the Lawrence Eagle-Tribune for her flattering piece on me today. For those in Massachusetts, it runs on page 3. If you want to know more about one of the guys blogging on this site, here goes:

ANDOVER NATIVE ON TRACK FOR TENURE

By Anita Fritz
October 5, 2005
Lawrence Eagle-Tribune

ANDOVER — Michael McCann, 29, of Andover is on the tenure track at Mississippi College School of Law.

The 1994 graduate of St. John's Preparatory School in Danvers recently joined the law school to teach sports law, consumer law, torts, and behavioral law and economics.

McCann appeared on HBO's "Bob Costas Now" after writing "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft," which was published in Law Review. He was asked to become part of a legal team that represented former Ohio State football player Maurice Clarett in his lawsuit against the National Football League after the lead lawyer read his article containing research he did on high school players entering the NBA draft.

"Clarett was told he was too young to enter the league," McCann said. "Our legal team won the first round in federal District Court, but the decision was reversed in Appeals Court. It's funny, we have child actors and we allow children to become soldiers, but we won't allow a kid to catch a football and receive a paycheck for it."

McCann graduated from Georgetown University in 1998, the University of Virginia School of Law in 2002 and Harvard Law School in 2005. His focus is sports and consumer law and psychology.

His parents, William, a neurosurgeon, and Jill, a real estate agent, live in Andover.

McCann said he's not currently practicing law, although he doesn't rule it out.

"I'm very excited right now with what I have. I'm thrilled and very grateful," he said.