Kevin Garnett Says No to Boston Celtics: Selfish or Understandable?

Yesterday afternoon, I was annoyed to hear that Minnesota Timberwolves star Kevin Garnett does not want to be traded to the Boston Celtics. In fact, he told his agent, Andy Miller, that if traded to Boston, he would exercise an opt-out in his contract next summer to become an unrestricted free agent.

"What is this guy's problem? Why doesn't he like Boston? Why wouldn't he want to play for the NBA team with the most championships? What's good enough for Larry Bird and Bill Russell isn't good enough for a guy who has never played in, let alone won, the NBA finals?"

Those were my initial reactions, albeit as a diehard and perhaps embittered Celtics fan. Although I had mixed feelings about the rumored trade of Garnett to Boston in exchange for Al Jefferson, the #5 pick, Gerald Green, and Theo Ratliff's contract, the thought of Kevin Garnett playing along side Paul Pierce had me thinking playoffs, and a return to something better than mediocrity and way better than whatever adjective can describe the current Celtics.

But then I thought about it more objectively. Why shouldn't Garnett maximize his rights under his contract? In effect, he's using the threat of an opt-out clause as a de facto no trade clause, since no team will likely give up what's needed to convince the Timberwolves to deal him unless that team can be certain that Garnett would be more than a one-year rental.

And what's wrong with that? He and his agent likely negotiated the opt-clause in part for the very situation described above: getting traded to a lousy team that plays in a cold weather locale and that may very well have management and coaching changes within the next 12 months. That doesn't sound like a particularly appealing prospect for a 31-year-old who is probably now thinking about his legacy, which will undoubtedly be judged in part by whether he wins or at least competes for an NBA title--particularly when the Phoenix Suns are also said to be interested in him.

Let's take this a step further. For all the money Garnett earns--and it's a lot, $21 million a year--his job has a serious drawback that few us have to deal with in our jobs: his employer can trade him to some place where he doesn't want to go, and to work for an employer that he doesn't want to work for. So when Garnett tries to prevent a possible trade to the Boston Celtics, he's enjoying a benefit that most of us have in our jobs, and he only enjoys that benefit because he is really good at his job; most NBA players have no such contractual rights. James Joyner on Outside the Beltway has a piece on this subject today. Here is an excerpt:

There aren’t many lines of work where you sign a contract with one company in one location and can be suddenly be shipped to another company, forced to move across the country–or even to Canada–and suffer the family disruption, tax implications, and other consequences at the whim of ownership. There have been instances where a player is traded three times in a single season.

Presumably, the argument is that players have agreed to those terms of employment as part of the collective bargaining process. Still, professional sports leagues operate as closed shops and there’s simply no way to earn a living.

. . .

[I]t’s unlikely anyone is going to feel sorry for the plight of professional athletes making multi-million dollar salaries. Still, the amateur draft, trade rules, and other limitations on player autonomy are quite unusual. Indeed, the only comparable labor situation that comes to mind is that of military personnel, especially in the days of conscription.

Fans have the expectation that players will display extraordinary loyalty to their teams, including extending taking a “home town discount” of millions of dollars when free agency (otherwise known as, “the right to work for whomever will hire you under whatever terms you can negotiate just like everyone else”) and “putting the needs of the team above personal goals.” Yet these same fans seem to have no problem with trading these players for better ones if the opportunity arises.

So should we criticize Garnett for what may seem like "selfish" behavior or should we empathize with him for what may also seem like understandable behavior?

SPANISH FOOTBALL NEWS BRIEFS & SPANISH CUP FINAL TALK

The highlight of the weekend will be tomorrows SPANISH CUPfinal between SEVILLE FC - GETAFE, but today we have some newspieces picked up around various media sources that give us an updateon how the transfer market is moving.Ivory Coast International & MONACO player, YAYA TOURÉ, isvery close to signning with FC BARCELONA according to "Sport".Barça officials will tie the "fine details" with player

Supreme Court decision in TSSAA v. Brentwood Academy (Updated)

The Supreme Court of the United States today decided Tennessee Secondary Sch. Athletic Association v. Brentwood Academy, involving a First Amendment and Due Process challenges to the enforcement of a high school athletic association's anti-recruiting rule against a private school. We previously have discussed this case here, here, and here. A copy of the opinion can be downloaded here (via SCOTUSblog).

As I predicted on these pages, the Court unanimously rejected Brentwood's constitutional arguments. Justice Stevens wrote the opinion for the Court, joined by all members of the Court except Justice Thomas, except as to Part II-A of the opinion, which was joined only by Justice Souter, Ginsburg, and Breyer (see below).

I have not had a chance to read the opinion carefully yet (will do so tonight and may talk more about it). On the First Amendment issue, Justice Stevens took two approaches. The one that commanded a majority relied primarily on the fact that Brentwood voluntarily joined TSSAA and thus voluntarily agreed to abide by the anti-recruiting rule. The Court relied on precedent controlling government-employee speech, which generally gives government greater control over what its voluntary employees can say. Such rules only must be "necessary to managing an efficient and effective state-sponsored high school athletic league." The Court said it needed no empirical data to "credit TSSAA's common-sense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics."

As for the due process claim, the Court detailed the TSSAA proceedings and found that Brentwood received all the process it was due.

There are three interesting features of the decision, notable for what they tell us about the present and future of broader constitutional doctrine:

First, Justice Thomas concurred only in the judgment, declining to join any part of Justice Stevens' opinion. Thomas argued that the Court's 2001 holding in Brentwood I, which held that the TSSAA was a state actor, was wrong and should be overruled.

Second, as noted, Justice Stevens lost his majority for Part II-A of the opinion, which Justice Kennedy, the Chief, and Justices Scalia and Alito refused to join. In that part, Stevens relied on precedent upholding limits on coercive face-to-face solicitation by attorneys and other professionals, namely Ohralik v. Ohio State Bar Assn (1978), likening personal athletic recruitment to hard-sell lawyer solicitations and arguing that both should be subject to closer regulation. That Justice Kennedy and the other three declined to join that part of the opinion suggests that some members of the Court would like to expand protection for commercial speech.

The third relates to a back-and-forth in the comments to the post about the oral arguments. There was discussion of how the speech at issue fits in the heart of the First Amendment and whether the First Amendment protects the free flow of information about Brentwood's sports teams. At the start of Part II-A (for a plurality), Stevens says the following:

The anti-recruiting rule strikes nowhere near the heart of the First Amendment. TSSAA has not banned the dissemination of truthful information relating to sports, nor has it claimed that it could.

Stevens clearly wanted to make this case about face-to-face contact and not the content of Brentwood's speech, emphasizing the "difference of constitutional dimension between rules prohibiting appeals to the public at large . . . and rules prohibiting direct, personalized communication in a coercive setting.

In other words: If Brentwood put the identical information and statements in its broadly disseminated promotional materials, it could not be subject to regulation. The fact that Justice Kennedy, et al., did not join at least that idea is a bit surprising to me.

Additional Comments and Commentary: Moved to Top

Eugene Volokh has thoughts on the decision, particularly the divide among the justices as to the applicability of Ohralik to justify a total ban on pre-enrollment communication with students. Volokh suggests that if the risk of coercion is enough to support the TSSAA rule, then a broad swath of speech--not only one-to-one, but also appeals to the public at large--could be subject to regulation, because some risk of coercion is present in much communication. Volokh also questions why Ohralik should control since the coach here communicated with the students by letter, not face-to-face. The Court has distinguished direct-mail solicitations, including targeted solicitations by attorneys, from oral solicitations. Even assuming risk of coercion or undue influence, why is the letter from a coach not more like the mail solicitation from an attorney, rather than the oral, face-to-face solicitation from an attorney?

Justice Kennedy's objection to Stevens' reliance on Ohralik reflects an effort to tie the decision more firmly to the voluntary-association rationale and to make clear that the TSSAA could not impose the recruiting ban as a free-standing rule against all schools in the state, including non-TSSAA members. Kennedy argues that Ohralik undermines the understanding that, absent Brentwood's consensual and voluntary membership in the TSSAA, the speech by the head coach was entitled to First Amendment protection. This explains why Justice Kennedy did not sign on to Steven's distinction between face-to-face solicitation and broader general dissemination. For him, the only distinction driving the case was between regulation of voluntary members of an organization and general regulation of a segment of the general public. The attorney regulation cases potentially implies that this case could apply outside the membership/contractual context to a host of face-to-face contact; Kennedy (plus three, plus Thomas) rejected that expansion.

Note the unanimity among the eight justices (put Justice Thomas to the side for now) on an underlying point: The substance of the letter--information about Brentwood's football team and the eligibility (and benefit) of committed pre-enrolled students to participate in spring practice--was generally within the ambit of the First Amendment. What took the speech in this case out of that realm was the context: a) Targeted and potentially coercive and made by a member of a voluntary organization (Stevens and three), b) made by a member of a voluntary organization (Kennedy and three).

Further Update 6/23:

Another take on the case from Tony Mauro at the First Amendment Center.

SPANISH FOOTBALL . VIDEO OF LA LIGA´S TOP GOALS OF 2006/07

SFS has "discovered" this interesting VIDEO of the TOP GOALSfor the 2006/07 season of "LA LIGA". Some excellent goals scored &SFS thought its readers may enjoy it.

Theft or Finders Keepers? AP Reporter Publishes Scouting Report Found on Dugout Floor

Last Thursday, the Arizona Diamondbacks played the New York Yankees at Yankee Stadium for the final game of a three-game series. The Yankees won the game by a score of 7-1, sweeping the series; the teams will not play again this season.

After the game, an Associated Press reporter was walking through the Diamondbacks' visiting dugout. He found a scouting report on the floor. The scouting report was authored by someone on the Diamondbacks' staff and discussed how to pitch to various Yankees:

Alex Rodriguez: "HOT right now. ... Chases a lot of BB's w/2-strikes, both away and in dirt. CH is fine when away. ... (vs. left-handers) Hard in, soft away. Ladder FB w/2-strikes."

Derek Jeter: "Will bunt and H&R. ... Runs early. ... Struggles w/ball down/in and will chase SL away. ... Get ahead. Fairly aggressive so will need to mix pitches and locations 1st pitch."

Bobby Abreu: "HOT right now. ... Good guy to crowd once you're ahead. Hammers 1st pitch FB's away w/RISP."

Johnny Damon: "(vs. right-handers) Struggling w/soft stuff. ... (vs. left-handers) Keep honest w/FB up/in."

Key: FB-fastball; CH-changeup; SL-slider; BB's-balls; ladder-high fastballs, out of strike zone; H&R-hit-and-run.

The reporter published the scouting report in an Associated Press story that was picked up by various publications.

Should he have done so? Didn't the Diamondbacks have a reasonable expectation of privacy for their proprietary information? Or were the Diamondbacks merely irresponsible with their belongings, and thus did not enjoy any legal protection to the information?

There are different ways to examine the issue. My initial reaction was surprise that the property of the Diamondbacks in their dugout would be considered "fair game" (for lack of a better expression) for a reporter to take and publish. This viewpoint was endorsed by the Diamondbacks when they formally complained to Major League Baseball about the "theft":

The Arizona Diamondbacks have contacted Major League Baseball about an Associated Press reporter who discovered their advance scouting report on the New York Yankees in the dugout yesterday and put its contents on the wire. "I am furious," one Diamondbacks executive said. "That is theft."

I can see why the Diamondbacks and perhaps also the Yankees might feel that a private team document accidentally located on the ground of a team dugout should not be removed from the premises or used in a publication without their permission. Under that interpretation, the taking and subsequent use of the scouting report might be construed as misappropriation, the unauthorized or improper use of a party's confidential information or intellectual property, or trespass to chattles, the intentional dispossession of another's property. Beyond tort law implications, one might even characterize the taking of the scouting report from the dugout as criminal behavior: theft is the illegal taking of another person's property without that person's consent, and if we are to believe the anonymous Diamondbacks' official above, then the team appears to believe that they have been a victim of a reporter's theft.

Continuing along this pro-team/anti-reporter interpretation, while I recognize that reporters are rewarded for breaking stories, might baseball officials equate what the reporter did to going through someone's else thrash? Of course, the more precise analogy would be going through someone else's thrash on that person's property, as according to the U.S. Supreme Court in California v. Greenwood, 486 U.S. 35 (1988), garbage placed at the curbside is public property--but you get my point. Similarly, when one walks through a department store, there is no expectation that a shirt located on the ground is thrash; if you pick up that shirt, you are still expected to buy it, and if you leave the store without doing so, you will have shoplifted.

Aside from the law, consider our expectations for those involved in this story: the Associated Press is a venerable and trusted news organization, and its reporters are presumably expected to ascribe to their organization's culture; it's not like a reporter from Star Magazine or--dare I say it--a blogger found the juicy info.

On the other hand, why should the Diamondbacks receive protection from their own carelessness? That was the reaction of Jimmy Golen, a buddy of mine who writes for the Associated Press and who also has a law degree from Yale Law School, when I asked him what he thought [note: Jimmy is not the AP reporter at question; he covers the Red Sox and Patriots, among other Boston teams]:

If I remember correctly, the issue is whether the Diamondbacks would have a reasonable expectation of privacy for proprietary information left on the floor of the visitor's dugout at Yankee Stadium, after the last game of their only visit to New York. I would argue that, unlike the digging through the trash example, they don't. It seems to me that if you are extremely careless with your secrets, you lose the protection of the law; if not, you should.

If you disagree, let me ask you if you'd feel otherwise if the scouting reports were picked up by a Yankee employee (whether cleaning staff or uniformed personnel) and leaked to the AP? Or used by the Yankees for their own, nefarious ends? What if they were leaked by a disgruntled Diamondbacks scout without authorization?

What if -- not to get too grandiose on you -- they weren't the Diamondbacks' failed plans to win in New York but the Bush Administration's failed plans to win the war in Iraq, left behind in a Pentagon bathroom where the media has access? Should the principle be different because it's "just sports"?

Those are some great points in favor of the Associated Press. To amplify one of his remarks, consider the significance of the game and series being over when the reporter found the scouting report; the Diamondbacks' occupancy and related possessory rights of the dugout presumably end at some point after the game ends. What do you think?

LIVERPOOL & ATLETICO DE MADRID STUDY THE FERNANDO TORRES TRANSFER OPTION

Spanish paper "AS" has picked up the English daily news piecefrom the "The Times", that LIVERPOOL has sent a delegation toMadrid to meet & sit down with ATLETICO DE MADRID directivesto discuss FERNANDO TORRES.Torres is the Nº1 objective in Liverpool´s coach Rafa Benitez teamplanes for the 2007/08 season. The offer maybe LUIS GARCIA plus26M€, but Benitez perhaps wishes to keep Garcia, even though

SPANISH FOOTBALL TRANSFERS, RUMOURS & GOSSIP

Many FC BARCELONA directives are voicing their disillusion with theperformance of Portugues International DECO. According to "Sport"the player is no longer considered vital in the schemes of things &the door may open to other clubs to make an offer for the midfielder.SFS feels that perhaps the Barça environment is a bit "pissed off" withlosing the Spanish League & are just letting out steam. SFS