Brooklyn Law Review to Publish My Article

Yesterday I accepted an offer from the Brooklyn Law Review to publish It's Not About the Money: The Role of Preferences, Cognitive Biases and Heuristics Among Professional Athletes in Volume 71 (forthcoming, 2006). I am grateful to all of the law reviews that extended offers, and I am very excited to publish my article in the Brooklyn Law Review, which, over the last year, has published articles written by Professor Jonathan Macey of Yale Law School, Profesor Elizabeth Warren of Harvard Law School, Professor Samuel Hayes of Harvard Business School, and Professor Lawrence Solum of the University of Illinois College of Law (and Legal Theory Blog), among other distinguished authors.

As you can imagine, I'm quite thrilled to be included in this group of authors, particularly in my first year of teaching. I hope you get a chance to download and read my article. I am indebted to my former sports law and sports business professors, Professor Paul Weiler of Harvard Law School and Professor Stephen Greyser of Harvard Business School, for their invaluable advice and inspiration as I wrote the article. The article is still in draft form, and I would welcome any feedback by e-mail (honestly -- it's great to have constructive feedback; that's the only way to make the piece better).

Here is the download icon:






And here is an excerpt from my piece (and this excerpt pertains to Ricky Williams):

Optimism bias likewise provides a useful mode of heuristic analysis by which to gauge decision-making among professional athletes, and how they may not always utilize rational choice. As discussed in Section II, optimism bias reflects the tendency of individuals to assume that general risks do not apply with equal force to themselves. Thus, when contemplating employment opportunities, might professional athletes overestimate the probability of positive outcomes and underestimate the probability of negative outcomes?

Evidence for optimism bias sometimes emerges when professional athletes weigh the relative risk of incentive-laden contracts versus guaranteed contracts, with the former naturally offering greater potential for reward—and loss. For instance, consider the choice of New Orleans Saints’ running back Ricky Williams in 1999 to agree to an eight-year contract worth between $11 million and $68 million, depending upon his capacity to reach certain incentives. At the time, Williams was the fifth overall selection in the 1999 NFL Draft and was negotiating his first NFL contract. As a useful juxtaposition to Williams’ decision-making process, consider that of fellow rookie running back Edgerrin James, who was selected by the Indianapolis Colts with the fourth overall selection and was likewise negotiating his first NFL contract. In striking contrast to Williams’ incentive-laden contract, James agreed to a seven-year contract worth between $44 million and $49 million, with incentives primarily affecting Williams’ potential to void the last year of the contract.

For two players selected at almost the same point in the NFL Draft, the Williams and James contracts appeared of exceptionally disparate values. In fact, performance projections estimated that Williams would earn at least $30 million less than James over the course of the contract. Indeed, for Williams to obtain much of his annual salary, he needed to amass at least 1,600 rushing yards each season, a feat that had only been accomplished by 15 players in the NFL’s 134-year history, and only once by a Saints’ running back in the franchise’s 33-year history. As a result of his apparent “bad gamble,” Williams bore the brunt of considerable ridicule.

In explaining his decision, Williams reasoned that because he believed that he should have been the number one overall selection in the NFL Draft—and thus have warranted a more lucrative contract—the only way for him “to make that kind of money” was to agree to such a heavily-leveraged contract. As to the contract’s seemingly quixotic performance thresholds, Williams appeared undeterred, reasoning that if he performed to his potential, he would readily attain them. Further suggestive of optimism bias, Williams maintained this confidence even after seriously spraining his ankle a week prior to the start of his rookie season. Separately, Williams rationalized the contract by stating that he would use off-field promotional earnings to offset any opportunity costs triggered by unobtainable incentives (without apparently realizing that such off-field earnings would have been available irrespective of contract type).

As predicted by most observers, Williams’ decision proved remarkably unwise. Though he ranked among the top 10 running backs in rushing yards during his first three seasons, he failed to reach most of the onerous performance standards necessary for incentive payment. As a result, he earned far below his market value. This proved most evident in his third season, when despite setting his franchise’s fourth-highest single-season record for rushing yards, and despite being named his team’s “most valuable player,” he earned only $389,000. To put this figure in perspective, consider that thirty-three of his fifty Saints’ teammates earned more that season, or that James—who rushed for fewer yards—earned slightly more than $7 million.

The costly effect of Williams’ optimism bias begs an important question for assessing decision-making among professional athletes: How can player representatives diminish optimism bias and other cognitive biases when their clients seek patently unfavorable terms?

In the case of Williams, a fatal negotiating defect may have existed to prevent such diminishment, as his representative, Percy Miller, had never before represented a professional football player. Indeed, Miller himself appeared the victim of optimism bias, as he dauntlessly assigned the drafting of technical, contractual language to a personal aide who had never before drafted a contract. Nevertheless, more seasoned agents may prove capable in discouraging players from desiring detrimental agreements. In the alternative, and as vividly illustrated by Williams, professional athletes may fail to internalize critical components of the decision-making process, and thus ultimately pursue the non-optimal strategy.

The NFL's Wonderlic test proves to be a helpful scouting tool

Each year hundreds of college football players take the NFL's Wonderlic Personnel Test, a 12-minute standardized test with 50 questions designed to measure cognitive ability. The exam is given to college players during private interviews with teams, visits to college campuses or at the annual scouting combine in Indianapolis. The burghsportsguys blog published an interesting article written by Sam Walker of the Wall Street Journal that explains why the NFL gives the exam to prospects as part of its scouting process; the article also provides a summary of the Wonderlic score averages for the NFL's 32 teams based upon average scores of players currently on each team's roster for drafted players who entered the league in the past seven years (The NFL's Smartest Team 9/30).

When you look at a sampling of the types of questions presented on the exam, one has to question its usefulness in scouting a player's ability to catch a ball or knock an opposing player on his can:

1. When rope is selling at $.10 a foot, how many feet can you buy for sixty cents?

2. RESENT and RESERVE -- Do these words: 1) have similar meanings; 2) have contradictory meanings; 3) mean neither the same nor opposite.

However, some teams do in fact place a high priority on Wonderlic exam scores in scouting college players for the draft. Walker highlights the Tampa Bay Buccaneers, which placed 4th among all teams: "[I]f you're wondering why Tampa Bay is second in the NFL in rushing yards, here's a possible explanation: The average test mark for the offensive line is a 30 and for guards a 34, which is four points higher than a typical attorney's score. 'I'm not surprised,' says Buccaneers general manager Bruce Allen. 'I trust my guards more than most attorneys.' "

Walker notes that NFL teams are less interested in raw athleticism than a player's ability to line up correctly and follow the proper dance steps:

If the coach calls "zero type wing ride," for instance, each player has to know instantly what to do, where his teammates will be going and how to adjust to the other team's behavior. In this environment, low test scores can be a sign that a player may be a "repetition guy," who needs to see something over and over before it sinks in. "You need to 'get it' quick," says Mr. Allen of the Buccaneers. "We don't have a lot of patience in the NFL right now." Floyd Reese, the general manager of the Tennessee Titans, says players who score high on Wonderlic are often better suited to carry out his team's complex defense. Over a period of years, he says, the playbook has grown thick with coverages, combinations and alignments, some of which haven't been used in a year. "Woooh, it's thick!" Mr. Reese says. "I don't know if I could memorize it now. Out of college, no way." In general, Mr. Reese says he prefers smart players who might lose the occasional physical battle over gifted athletes who struggle to learn the system and make silly mistakes.

"We've made a religion of it in the last few years," says Rams coach Mike Martz [The Rams scored the highest of all NFL teams]. "So long as he plays at a high level, we'll always choose a guy that is smarter." To make this offense tick, lineman have to master multiple protection "packages" and some receivers have to learn four positions. It's so complex that the Rams don't even have a playbook: Mr. Martz calls it a "system book" instead. "It's like algebra," he says. "Once you learn the equation, you can solve problems." It seems to work. In six years this offense has led the team to two Super Bowls, set an NFL record for total yards in a season and produced three MVP awards.

I can see how the Wonderlic test could be useful to NFL scouts because it measures a player's cognitive ability -- an important tool for any player in any sport. Contrast the NFL's Wonderlic exam with the Athletic Motivation Inventory (AMI) exam given to baseball prospects and provided by the Major League Baseball Scouting Bureau, which, to me, is highly suspect in terms of its usefulness for scouting purposes. It attempts to measure such qualities as leadership or trust solely in athletic terms. The AMI exam poses a series of statements with multiple-choice responses ("always, sometimes, never" or "true, false, in-between"):

I always do exactly what the coach tells me to do.
In athletics one must "either push or be shoved."
I can put up with a conceited fellow athlete fairly well.
During competition it's easy for me to really hate my opponent.
I get tired just thinking about a long, hard practice session.
Athletic competition started just ten years ago.
I enjoy getting into arguments about athletics.

Darko Milicic Arrested: A Statistical Anomaly Among NBA Players?

Detroit Pistons forward Darko Milicic was arrested on Wednesday for driving with a suspended license in Michigan. (Stan Donaldson, "Pistons Darko Milicic Arrested for Driving with a Suspended License," Detroit Free Press, 10/13/2005). Milicic's license had been suspended earlier this year for two unpaid traffic tickets. Under Michigan law, a first offense for driving with a suspended license carries a maximum fine of $500 and a maximum sentence of 93 days in jail.

Milicic's arrest initially proves surprising when compared to arrest trends among NBA players. Back in July, my study on arrest propensity among NBA players and age/education revealed that those NBA players least likely to be arrested are international players (with prep-to-pro players the second least likely, and those with college degrees the most likely). Specifically, though 12.2% of all NBA players are international, only 1.2% of arrested NBA players are international. In striking contrast, while 41.1% of all NBA players spent four years in college, a startling 57.1% of arrested NBA players spent four years in college.

So why did Milicic--a native of Serbia-Montenegro--buck the trend? Why isn't he like his well-behaved international brethren?

Perhaps the problem lies in the question. The term "international player" may be unsatisfactorily vague. There are 193 countries on Earth; if a player is from any of 192 of them, then the NBA conveniently classifies him as "international." It stands to reason that there are dramatic sociological and anthropological variances among those 192 countries, and any data generated from the collective behavior of players from those countries may not prove predictive. Along those lines, an NBA player from Serbia-Montenegro may embrace very different values and beliefs than one from Zaire, Brazil, or South Korea. Or maybe he does embrace similar values and beliefs, but only because of similar upbringing or shared faith, and not (perhaps) because of national origin. Who knows? The point is that the phrase "international player" is likely an inaccurate metric for analytical study, and judging Milicic against other "international players" may not be fair or meaningful.

Doping & the Child

In April this year, I published a brief commentary about the American Academy of Pediatrics statement on performance-enhancing drugs in sport. This commentary was extended and published in the Sept 10 issue of The Lancet. Full reference as follows:

Miah, A. (2005, Sept 10). "Doping and the child: an ethical policy for the vulnerable." The Lancet 366: 874-876.

UNESCO, Bioethics & Doping

I just saw this press release for the UNESCO General Conference:

15-09-2005 12:00 pm UNESCO’s supreme decision-making body, the General Conference, which meets every two years, will hold its 33rd session from October 3 to 21 at the Organization’s Headquarters in Paris. The session coincides with UNESCO’s 60th Anniversary celebrations and a special ceremony will take place on October 5.

Over 2,000 participants will attend the General Conference including a large number of ministers and several heads of state and of government. (A detailed calendar will be made available shortly.)

Three international standard-setting texts figure on the agenda of the General Conference: a Preliminary Draft of a Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions; a Draft International Convention against Doping in Sport; a Draft Declaration on Universal norms on Bioethics.

The General Conference will examine and adopt the Programme and Budget for 2006-2007 and prepare the Draft Programme and Budget for 2008-2009. The Conference will also name a Director-General for the next four years and renew half the membership of the Executive Board.

Many other subjects will also be examined, including an assessment and future prospects for the Education for All programme, as well as a strategy for establishing a global tsunami warning system.

In conjunction with the work of the General Conference, a round table on Education for All, aimed at education ministers will be held on October 7-8. A second round table on basic science will be organized for science ministers on the afternoon of October 5. A Youth Forum will take place before the start of the General Conference from September 30 to October 2.


I wonder if there is any connection between the bioethics declaration and the doping in sport convention. I suspect not, but would like to be wrong!

Were the Texas Rangers Negligent in Failing to Control Kenny Rogers?

My dean, Jim Rosenblatt, alerts me to a recent personal injury lawsuit filed by Larry Rodriguez, a cameraman for Dallas-Fort Worth television station KDFW, against both the Texas Rangers and their pitcher, Kenny Rogers, for civil liability arising from Rogers' attack of Rodriguez on June 29, 2005. Following the attack, Major League Baseball suspended Rogers for 20 games, and he has also been arraigned on misdemeanor assault charges related to the incident.

This case presents an interesting issue in tort law: Did the Texas Rangers have a legal duty to prevent Rogers from attacking the cameraman, particularly when the Rangers might have known of Rogers' unique proclivity for violence (i.e., Rodriguez claims that Rogers had shown previous signs of anger, and the Rangers did not act)? In other words, were the Rangers negligent in their supervision of Rogers? Did they assume the risk by not taking earlier actions to regulate Rogers' behavior, as well as actions to prevent Rogers from close, physical contact with media?

As a general matter, an employer may be liable for the actions of an employee through the principle of vicarious liability, which arises when the negligent actions of an employee are within the scope of his/her employment. Vicarious liability is premised on the notion that employers are in the best position to monitor their employees, and the law should create economic incentives for employers to safeguard against their employees' tortious behavior. For that reason, employers have powerful incentives to conduct employee training, as well as to conduct early intervention should an employee engage in improper behavior -- otherwise, those employers may be held liable, particularly if the "reasonable" employer would have conducted such training or engaged in such intervention. Vicarious liability is also premised on a separate, and far more pragmatic notion: employers typically have "deeper pockets" than their employees, and courts prefer redress for wrongfully injured plaintiffs through economic redistribution (rich company pays off injured person) rather than personal retribution (injured person seeks revenge against poor employee).

As you can imagine, there exists a great deal of debate as to which activities are "within the scope of employment" and which are not. In the case of Rogers, however, his attack occurred during pre-game stretching, an activity which appears almost certainly within the scope of his employment. Therefore, the two key questions are: 1) To what extent were the Rangers aware of Rogers' alleged proclivity for violence, and did they do anything about it?; and 2) Are the Rangers' "standard operating procedures" for employee training and early intervention sufficiently similar to other pro sports teams and particularly baseball teams?

At first glance, the first question does not appear to generate an answer adverse to the Rangers' interests. Granted, in July 2003, Rogers was suspended five games for throwing at Milton Bradley of the Cleveland Indians. But that doesn't prove much; many pitchers have thrown at batters and been suspended, and I don't believe that is evidence of proclivity for violence. Also, back in 1995, Rogers said that he would sit out the season rather than accept a one-year contract offer from the Rangers. Those comments may have damaged his reputation as a "team player," but, again, they prove irrelevant in determining proclivity for violence. If anything, actually, Rogers appears to be well respected by his teammates: In a 2004 interview with the Chicago Tribune concerning which athlete would make a good President of the United States, Rogers' teammate, Jeff Zimmerman, nominated Rogers, saying, "Kenny Rogers is very influential in the clubhouse. I really, really respect what he has to say." (Jimmy Greenfield, "What Major Leaguer Would Make a Good President?," Chi. Trib. 9/24/2005).

There may be one notable exception, however: On June 17, 2005--a mere 12 days before his attack of Larry Rodriguez--Kenny Rogers attacked a water cooler after not pitching well against the Washington Nationals. On the other hand, attacking a water cooler and attacking a human being seem quite distinct, and I'm not sure the Rangers should have perceived his water cooler attack as a forerunner to a human attack.

As to the adequacy of the Rangers' standard operating procedures for ensuring safety, it might prove revealing that in July 2004, Rangers' reliever Frank Francisco threw a chair at a fan, which led to criminal liability -- particularly given its recency, that incident might undercut the Rangers when advocating their player control effectiveness. Then again, there does not appear to be other evidence that casts the Rangers as uniquely bad in their safety training or intervention activity; perhaps the Francisco and Rogers incidents are sufficiently isolated.

We'll continue to monitor Rodriguez v. Rogers & the Texas Rangers.

NASCAR Gets Tough On Multi-Car Owners

In Sunday's sports section of the Florida Times-Union (10/9/2005), Don Coble writes that NASCAR is planning to limit multi-car teams in the future in order to make it more competitive for single-car and prospective owners. While NASCAR has a rule in place that currently prohibits an owner from owning more than two teams, apparently owner Jack Roush gets around that rule by making Mark Martin, Geoff Smith and his mother, Georgetta Roush, car owners for three of his five teams. Roush isn't the only multi-car owner -- Hendrick Motorsports has five cars, and Joe Gibbs Racing has three cars.

According to NASCAR chairman, Brian France:

"We don't like the fact that the independent teams, or, in particular, a new owner looking at coming in the door, have a daunting task to compete, and the concept of having to have five teams, three teams.....That means the opportunities aren't there for young drivers, it means opportunities aren't there to create the next Rick Hendrick and have the success. It ultimately means that we don't field as many competitive cars as we'd like to field."

NASCAR president Mike Helton added:

"Jack Roush has absolutely played by the rules.... We don't care if Jack's got five, six or 10 cars if it were good for the sport. But we don't think it's good for the sport, and we have to address that, and that's a big move for us."

What is "good for the sport" is oftentimes a difficult question to answer. Sometimes the answer differs depending upon whose perpective is being considered. Obviously, the more cars a particular owner has in a race, the better the odds are for that owner to win the race. Therefore, presumably the single car-owner is at a disadvantage because more multi-car operations means there are more cars in the event for the single car-owner to compete against.

But does the NASCAR fan really care whether there are multi-car owners? Indeed, maybe the fans would rather have multiple drivers on the racetrack affiliated with one name they are familiar with such as a Roush or a Hendrick Motorsports. Or do multi-car operations have an adverse impact on the fans by bringing into question the propriety of the competition among the drivers -- In other words, does a Roush driver really have an incentive to beat another Roush driver in the same race? [Would baseball fans care if George Steinbrenner owned two baseball teams?] Or maybe it doesn't even matter to the NASCAR fan who the owners are and how many cars they have in a race.

In any event, it will be interesting to see how NASCAR resolves this issue.