Update: Tony Allen Charged with Aggravated Battery

Tony Allen, a second-player on the Boston Celtics, has been arrested and jailed by the Chicago Police Department for aggravated battery in connection to the August 28 melee in a Chicago restaurant. Accompanied by teammate Will Bynum and an entourage of about 15 people, Allen is said to have gotten into a heated verbal confrontation with Marktwain Johnson, a patron in a Chicago restaurant. At some point during the argument, Allen allegedly directed someone in his entourage to "F--- him up," and then shots were fired, with one hitting Johnson in the left arm and another in his torso. A melee then broke out, during which Allen is also alleged to have punched Nigel Odum, a member of Johnsons' entourage, leaving him with a broken eyesocket. Johnson has since filed a civil suit against Allen for battery and the restaurant for negligent security.

On October 3, the Chicago Police Department issued a special law enforcement alert to pick up and detain Allen -- a sign, as we discussed then, that the police were collecting evidence against Allen and that charges were probable.

Aggravated battery is an extremely serious charge. First consider the definition of criminal battery: the intentional and wrongful physical contact with a person without his consent, and that contact is injurious or offensive. Aggravated battery takes it a step further: it is a criminal battery accompanied by circumstances that make it especially eggregious, such as the use of a deadly weapon, or the fact that the victim suffered serious bodily harm, or the fact that the victim was in a vulnerable position. Under Illinois law, aggravated battery is a "Class 3 felony," meaning a conviction can carry a maximum punishment of not less than two years and not more than five years in prision. Since Allen has not (to my knowledge) committed any other crimes in the past, it would seem that a conviction for a first-time offender would likely carry a sentence of at least a year and a half and perhaps two years. [correction: see Tony Allen and the Whataburger Incident: The Carrott without the Stick, 5:32 PM -- but no evidence of any conviction or pleading]

Of course (and it goes without saying), but Allen is presumed innocent, and the burden of proving beyond a reasonable doubt is highly difficult to establish, even in fact patterns that seem obvious (classic example: The People of the State of California v. Orenthal James Simpson). Moreover, given the murkiness of what occurred at 3 AM that morning, a prosecutor may encounter extraordinary difficulty proving that Allen committed a crime beyond a reasonable doubt.

Also, do not discount the possibility that Will Bynum may also face charges, although that is purely speculation at this point. We do not know his role in the incident, although if he engaged in physical contact, he too could face battery -- and like the rest of Allen's entourage, if the police want to pin Tony Allen with the blame, they could easily threaten the others with crimes unless they agree to testify against Allen.

For reaction from Celtics fans, check out the outstanding Celtics Blog.

Michelle Wie and LeBron James: Why are They Any Different?

My brother Bill alerts me to a piece in the Wall Street Journal on 16-year-old golf prodigy Michelle Wie declaring pro earlier this month, and how she immediately secured a 4-year, $20 million endorsement deal with Nike. (Stephanie Kang, "Michelle Wie Wins a Deal Helping Nike," Wall Street Journal, Oct. 5, 2005, at B1).

I thought it would be interesting to research the reactions to Wie declaring pro and her endorsement deals:

"Michelle Wie has proven she can play with anyone, male or female. So why leave all that money on the table? She's uncommonly mature and will survive any perceived social crisis." Bob Ryan, Quick Shots, Boston Globe, Oct. 9, 2005, at D2

"It's interesting. People don't want to talk about Michelle Wie's golf game. They want to discuss her presence. Graceful and confident, poised and mature." Doug Haller, Million Dollar Baby, Arizona Republic, Oct. 2005, at 1A

"The crowds following her grew that afternoon and they have not gone away. What they saw was a player with a swing of beauty, a person blessed with poise who was comfortable in the spotlight, mature way beyond her years." Peter Dixon, Wie Ready to Make Big Splash Into Paid Ranks, London Times, Oct. 5, 2005, at 84

"When it comes to the precocious Wie, very little that surrounds her is routine." Fred Lewis, Honolulu Advertiser, Oct. 17, 2005, at 1D

"Precocious pro Michelle Wie would love to qualify for the British Open Championship, . . . " Mixed Response, Perth (Australia) Sunday Times, Oct. 16, 2005

"She's exceptionally mature." B.J. Wie, professor of Transportation at the University of Hawaii and Michelle's dad, quoted by Barker Davis, Wie Goes from Prodigy to Pro, Washington Times, Oct. 6, 2005, at C1

Hmm. It seems that the words "mature" and "precocious" are regularly associated with Wie--a stark contrast to the NBA's "life experience" rationale for imposing an age floor of 19 years of age. So why is Michelle Wie regarded so differently than Kevin Garnett and Lebron James were regarded when they declared for the NBA Draft out of high school? Why does society applaud Wie for her success, but then appears skeptical, even distrustful of premiere high school basketball players--players who are typically two years older than Wie and players who are actually the best behaved group of any group of American NBA players--particularly when they can obtain the same marketing deals that Wie can obtain?

Might society's disparate reaction to Michelle and Lebron have something to do with how it reacts to the following juxtaposition?

More on Umpires and Judges

While I was away, Robert Schwartz penned an excellent op-ed for the New York Times in which he evaluated the analogy between judges and umpires. As he correctly notes, the job of both an umpire is never just to blindly apply the rules or the law; there is a great deal of interpretation needed for both. The key, as he says, is the approach taken to interpretation.

Umpires often have no choice but to use discretion. They cannot invoke the infield fly rule unless an infielder can catch the ball "with ordinary effort." And they must call a balk on a pitcher trying to pick off a runner on first if he does not "step directly" towards the base. Umpires spend years learning how to interpret common legislative terms like "ordinary" and "directly."

So within a certain range, umpires have leeway. But baseball doesn't tolerate an umpire whose judgment is on the fringe. Indeed, the umpire who is overly technical in calling balks, or who sees balks when none occur, is too far outside the mainstream to last.

Earlier this year, the Supreme Court had to decide whether the juvenile death penalty was "cruel and unusual punishment." The majority and dissents used different methods to decide what those words mean. Both had to justify their methods of interpretation; neither could rely solely on the text of the Eighth Amendment.

This nuance, however, seems to be lost on many politicians. "What our legal system demands," said Senator Jeff Sessions of Alabama, "is a fair and unbiased umpire, one who calls the game according to the existing rules." Well, yes, but the best umpires are honest enough to acknowledge that they have an approach to umpiring. The myth of the neutral umpire is no more tenable than that of the neutral justice. When the Senate considers Harriet Miers, the philosophy behind her decision-making is what matters, especially since she doesn't have a minor-league record.

(Schwartz, "Like they see 'em," N.Y. Times, 10/06/05). In the past few weeks, both Miers and umpires have come under fire for sending mixed signals. As Schwartz suggests, the best thing for both to do is to be honest and admit they have an approach to umpiring.

Related Posts:
Evaluating Roberts' Analogy of Judges to Umpires (9/14)
More on Roberts and Umpires (9/16)

Kevin Garnett, 10 Years and 30,000 Minutes Later

Sam Smith of the Chicago Tribune makes an interesting observation in a piece that muses a Dirk Nowitzki for Kevin Garnett trade:

Kevin Garnett has played almost 30,000 minutes in the NBA, which is the twilight for most great players. He's entering his 11th season.

30,000 minutes is a rather striking figure. And Garnett--who in 1995 became the first high school senior since Bill Willoughy in 1976 to make himself eligible for the NBA Draft--has earned over $200 million in salary and endorsement income during those 30,000 minutes. Still just 29 years old (and he will remain 29 for the entire 2005-06 season), Garnett could easily play another six or seven seasons, and perhaps longer. During that time, he could earn another $100 million.

So did Garnett make the right decision to declare for the 1995 NBA Draft straight out of high school? Aside from his overwhelming monetary gains, which seem to confirm that he made the now-obvious right call, Garnett has proven to be one of the two or three best players in the NBA:

• Eight-time NBA All-Star
• 2003-04 NBA MVP
• Six-time All-NBA
• Six-time All-Defensive (2000-05)

Garnett has also proven to be a role model for young persons, evidenced in part by his receipt of the NBA Community Assist Award in 2002. And, like the vast majority of his fellow prep-to-pro players, he's stayed out of trouble with the law, unlike many college grads playing in the NBA.

Just for the fun of it, consider some of the rather skeptical comments made of Garnett in 1995:

"First of all, Kevin Garnett is not ready to play in the NBA. He just isn't close. We're going to assume his coach simply hasn't seen enough NBA games, live, up-close. The kid isn't physically ready to play under the basket in the Big Ten, much less against Hakeem Olajuwon and David Robinson. His skill level isn't high enough; he isn't savvy enough." Michael Wilbon, Prep Star Garnett is NBA's Fool Gold, Washington Post, May 28, 1995, at D14

"Is Kevin Garnett ready for it all? Obviously, hell, no. It is such a fragile proposition -- the thought someone could enter the NBA so young, no matter how gifted and tall and extraordinarily athletic, and be better off in the long term. The years after high school are perhaps the most crucial in human development, particularly for a basketball phenom, who should grow socially and scholastically in college while refining raw skills in the gym against peers. In the pros? He grows up in airports and Hyatts, trying to learn the big time during rare practices in a whirlwind season, assuming the team isn't so rotten that skill growth is impossible." Jay Mariotti, Does Garnett Have Any Idea of What He is Getting Into?, Chicago Sun-Times, June 20, 1995, at 87

"If David Stern arranges anything in his commissionership, he will make sure Garnett, Thomas and the expansion Toronto Raptors are joined in the draft Wednesday. This is perhaps the only way a delicate, perilous hoop experiment -- a 19-year-old out of high school joining the manliest league on Earth -- can work without disaster. In the sporting sense, how tragic if Garnett took the big money, wasn't able to mature and went poof in four years." Jay Mariotti, For Garnett to Succeed, Isiah Must Rescue Him, Chicago Sun-Times, June 27, 1995, at 91

"The NBA and its stressed-out coaches are hardly eager to welcome skinny Joe Smith or the unprepared Wallace or preposterous Kevin Garnett, the high school senior who wants to pull a Moses Malone move. Neither their bodies nor their minds are fully developed. Shawn Bradley is costing the 76ers $44 million. Immaturity has damaged the image of Kenny Anderson and Chris Webber. Jason Kidd did fine, but Grant Hill, who graduated from Duke, was the most successful and respected rookie." Linda Robertson, NBA Riches Have a Cost, Austin American-Statesman, May 19, 2005, at C1

"Emotionally, socially, physically, Kevin Garnett will be immature relative to the guys he will be around. In terms of how he relates to fans, how he relates to girls, how he relates to having all that money. There's nothing good about this." University of Utah coach Rick Majerus quoted by Barry Temkin, Garnett to Gain Riches, Lose Youth, Chicago Tribune, June 27, 1995, at N1

For what it's worth, Garnett averaged 28.7 minutes, 10.4 points, and 6.3 rebounds per game in his rookie year, and was one of 10 rookies selected for the two NBA all-rookie teams. In his second season, he averaged 38.9 minutes, 17.0 points, and 8.0 rebounds per game. I guess the doomsday-sayers weren't quite on target.

One guy, though, apparently saw the forest through the trees:

"If Kevin Garnett were only 5-foot-8, pudgy and going to work on a newspaper delivery truck, I doubt if many sports journalists would fret about his future." Mike Royko, The World is Doing Wrong to Worry That a Teen Shouldn’t Be, Buffalo News, June 30, 1995, at 18C

10 years and $200 million later, Garnett is still just 29 years old, and with the second half of his NBA career staring right in front of him.

Hat Tip: Henry Abbot of the award-winning True Hoop

Judge Dismisses Moore's Suit Against Bertuzzi

A Colorado state court judge has dismissed Steve Moore's lawsuit against Steve Bertuzzi, advising that the proper venue is likely in Canada. Moore sued Bertuzzi for damages stemming from an incident in a March 2004 game, where Bertuzzi punched Moore from behind and pushed him down into the ice. The hit, which violated the rules of hockey,** caused serious injuries to Moore and he has not played hockey since.

The judge ruled that none of the alleged illegal conduct took place in Colorado. A state law passed in 2004 places fairly severe restrictions on the ability of out-of-state residents to sue in Colorado courts. Moore alleged that the incident began with a game in Colorado, during which Moore hit and injured one of Bertuzzi's teammates, and that the hit on him was planned there, but this was not enough. ("Judge tosses out lawsuit against Bertuzzi for hit," ESPN, 10/13/05; Lindsay, "Judge rules Moore case for Canada," 10/14/05).

Perhaps Moore should try Switzerland. As I have said many times, my belief is that the suit should be thrown out in its entirety, as the incident was "part of the game," despite the awful consequences. For more, see these previous posts:

Hockey Fought the Law
Legal Liability for On-Field Actions, Part1 and Part 2

** I want to be careful not to say "illegal." The hit was undoubtedly "illegal" in terms of hockey law, but it is by no means clear that the hit violated the laws of this or any other country.

Thanks to Rick Karcher

Many thanks to Rick Karcher for guest-blogging in my absence the past two weeks. It seems that there has been some good discussion on a wide range of topics. Hopefully we can all work together to get rid of the BCS and have a play-off for college football.

We plan on having more guest-bloggers in the next few months. If you are interested in being one, email us.

My Interview on Tonight's Sporting News Radio Sports Court

I will be a guest on tonight’s Sports Court, a radio program on Sporting News Radio 1510 The Zone AM Boston, and I'll be on from about 8:00 PM to 8:30 PM (EST). We will primarily discuss two topics:

1) My forthcoming article in the Brooklyn Law Review ("It's Not About the Money: The Role of Preferences, Cognitive Biases and Heuristics Among Professional Athletes," 71 Brooklyn Law Review __ (forthcoming, 2006)); and

2) the saga of Eddy Curry, the 22-year old NBA center who was recently traded from the Chicago Bulls to the New York Knicks after he refused to take a Bulls-supervised DNA test pertaining to a possible heart condition (for more, click here. I used to work for Curry's attorney, Alan Milstein).

The radio program can be streamed on-line live at this link. Sports Court is hosted by Attorney David Frank (news editor of Massachusetts Lawyers Weekly) and Attorney Scott Gilefsky. I was interviewed on Sports Court this past summer, and other recent guests include U.S. Rep. Stephen Lynch of Massachusetts, Dr. Charles Steinberg, Executive VP of the Boston Red Sox, and Massachusetts Institute of Technology Professor David Housman. It should be a great show, and I hope you get a chance to listen.