Tag Archives: sports

I Speak Out for Athletes Everywhere

22 Oct

As many of you know, I’m not a fan of the wide world of sports. But I am a fan of labor unions, and in that capacity, I have noticed that there have been quite a few lockouts over the past couple of years—four in 14 months, to be exact. I assumed that was because of the general shittiness of the sports bosses. It is, but there’s another factor, as Dave Zirin reports here: the shittiness of the sports bosses’ lawyers.

A law firm called Proskauer Rose is now representing management in all four major men’s sports leagues, the first time in history one firm has been hired to play such a unified role. In practice, this has meant that in four sets of negotiations with four very different economic issues at play, we get the same results: lockouts and a stack of union complaints with the National Labor Relations Board. It’s been great for owners and awful for players, fans, stadium workers and tax payers.

Proskauer Rose partner Howard Ganz represents the NBA and Major League Baseball, and fellow-partner Bob Batterman has led negotiations for the NFL and the NHL. As Sports Business Daily reported, “Batterman and Ganz provide advice on strategy, as well as on issues that can emerge during talks, such as the legality of using replacement players.”


Proskaur Rose’s love affair with corporate power is not confined to representing professional sports owners. They boast on their website of having “one of the world’s pre-eminent private equity practices.” They are Bain, if Bain was smart enough to remain in the shadows. The firm’s other prize clients are a Murderers Row of Big Oil titans including BP America, Chevron, and ExxonMobil. Incidentally, this culture of representing polluters and union busters with pride and without societal concern seems reflected in the firm’s internal culture. Proskauer Rose is now being sued by their former Chief Financial Officer Elly Rosenthal, who accused the law firm of firing her following sixteen years as CFO after she took leave for breast cancer treatment. (Remember Elly Rosenthal the next time you see the NFL festooning its players in pink for Breast Cancer Awareness Month.)

As it happens, I know Proskauer Rose quite well. Years ago, when I led the grade strike at Yale, the administration hired Proskauer to represent them in an unfair labor practices suit we brought against the university (Yale had tried to break the strike by threatening us with mass firings, expulsion, which would have meant deportation for international students, and negative letters of recommendation.) My most vivid memory of that case was of the lead attorney Saul Kramer (the other one was this tool) yelling at me at the witness stand, reading aloud statements I had made in a meeting where I called for massive disruption—I think I may have even used the word anarchy—of the campus.

Proskauer, it should be noted, played the leading role in making sure that faculty at private universities could not be unionized. That eventually became a Supreme Court case, and old Saul was involved in that one too.

Anyway, these guys are now trying to screw over football players, basketball players, hockey players, and more. Again, not my cup of tea, but they’re workers and it’s a union. And though some people think they’re too rich to be in a union, as Bhaskar Sunkara noted over the summer, that kind of faux populism can put you in some bad company.

It’s a struggle between management and labor and management has made plenty of money milking a player like Lin for all he was worth—international media interest, jersey and ticket sales, the Cablevision deal, not to mention that without him the Knicks might not have even made the playoffs.

Big salary haters get it wrong when they factor the fans into the equation. Talking about Jeremy Lin’s “greed,” acting like he’s taking something from someone else when he’s got a motherfucking family to feed, may be a good way to sound like a populist. But it actually puts you in the operative position of siding with an owner who is way richer than Lin will ever be. That’s the kind of populism that put Bush in office.

Say we do manage to lower player salaries or restrict their mobility—who’s saying we’re going to get lower ticket prices or anything but higher margins for already wealthy owners?

So what’s to gain from the politics of resentment? It’s the same type of politics that fuels anger at teachers, firefighters, and other public sector employees. “Why them?” is the petty loser’s version of “Good for them. Why not me?”

And if Lin’s still earning a bit too much for our tastes, instead of waiting for him to funnel his bounty into the community and name youth basketball camps after himself, why not just tax his (and his boss’) income at a higher rate? We can take some of the money, trustee our favorite sports teams, and give away shares to players and fans jointly.

Lower ticket prices, better swag, less hating.

Don’t hate the sportsman; hate the sports.  And Proskauer Rose.

H/t Gordon Lafer for having put these pieces together and alerted me to Zirin’s piece; Gordon was also one of the leaders of our union drive and the driving force behind our ULP suit against Yale. If it weren’t for him, we’d have never had a suit.

Justice Scalia: American Nietzsche

27 Jun

This is Part 2 of my series on Justice Scalia, Diva of Disdain.  Part 1 is here; an introduction to the whole is here.

Like many originalists, Scalia claims that his jurisprudence has nothing to do with his conservatism. “I try mightily to prevent my religious views or my political views or my philosophical views from affecting my interpretation of the laws.” Yet he has also said that he learned from his teachers at Georgetown never to “separate your religious life from your intellectual life. They’re not separate.” Only months before Ronald Reagan nominated him to the Supreme Court in 1986, he admitted that his legal views were “inevitably affected by moral and theological perceptions.”

And, indeed, in the deep grammar of his opinions lies a conservatism that, if it has little to do with advancing the immediate interests of the Republican Party, has even less to do with averting the threats of judicial tyranny and judicial anarchy. It is a conservatism that would have been recognizable to Social Darwinists of the late nineteenth century, that mixes freely of the premodern and the postmodern, the archaic and the advanced. It is not to be found in the obvious places—Scalia’s opinions about abortion, say, or gay rights—but in a dissenting opinion about that most un-Scaliaesque of places, the golf course.

Casey Martin was a champion golfer (he’s now an ex-golfer) who because of a degenerative disease could no longer walk the eighteen holes of a golf course. After the PGA Tour refused his request to use a golf cart in the final round of one of its qualifying tournaments, a federal court issued an injunction, based on the Americans with Disabilities Act (ADA), allowing Martin to use a cart.

Title III of the ADA states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

By the time the case reached the Supreme Court in 2001, the legal questions had boiled down to these: Is Martin entitled to the protections of Title III of the ADA? Would allowing Martin to use a cart “fundamentally alter the nature” of the game? Ruling 7–2 in Martin’s favor—with Scalia and Thomas in dissent—the Court said yes to the first and no to the second.

In answering the first question, the Court had to contend with the PGA’s claims that it was operating a “place of exhibition or entertainment” rather than a public accommodation, that only a customer of that entertainment qualified for Title III protections, and that Martin was not a customer but a provider of entertainment. The Court was skeptical of the first two claims. But even if they were true, the Court said, Martin would still be protected by Title III because he was in fact a customer of the PGA: he and the other contestants had to pay $3,000 to try out for the tournament. Some customers paid to watch the tournament, others to compete in it. The PGA could not discriminate against either.

Scalia was incensed. It “seems to me quite incredible,” he began, that the majority would treat Martin as a “‘custome[r]’ of ‘competition’” rather than as a competitor. The PGA sold entertainment, the public paid for it, the golfers provided it; the qualifying rounds were their application for hire. Martin was no more a customer than is an actor who shows up for an open casting call. He was an employee, or potential employee, whose proper recourse, if he had any, was not Title III of the ADA, which covered public accommodations, but Title I, which covered employment. But Martin wouldn’t have that recourse, admitted Scalia, because he was essentially an independent contractor, a category of employee not covered by the ADA. Martin would thus wind up in a legal no man’s land, without any protection from the law.

In the majority’s suggestion that Martin was a customer rather than a competitor, Scalia saw something worse than a wrongly decided opinion. He saw a threat to the status of athletes everywhere, whose talent and excellence would be smothered by the bosomy embrace of the Court, and also a threat to the idea of competition more generally. It was as if the Homeric rivals of ancient Greece were being plucked from their manly games and forced to walk the aisles of a modern boutique.

Games hold a special valence for Scalia: they are the space where inequality rules. “The very nature of competitive sport is the measurement,” he says, “of unevenly distributed excellence.” That inequality is what “determines the winners and losers.” In the noonday sun of competition, we cannot hide our superiority or inferiority, our excellence or inadequacy. Games make our unequal natures plain to the world; they celebrate “the uneven distribution of God-given gifts.”

In the Court’s transposition of competitor into customer, Scalia saw the forced entry of democracy (a “revolution,” actually) into this antique preserve. With “Animal Farm determination”—yes, Scalia goes there—the Court had destroyed our one and only opportunity to see how unequal we truly are, how unfairly God has chosen to bestow his blessings upon us. “The year was 2001,” reads the last sentence of Scalia’s dissent, “and ‘everybody was finally equal.’”

Like the Social Darwinists and Nietzsche, Scalia is too much a modernist, even a postmodernist, to pine for the lost world of feudal fixities. Modernity has seen too much flux to sustain a belief in hereditary status. The watermarks of privilege and privation are no longer visible to the naked eye; they must be identified, again and again, through struggle and contest. Hence the appeal of the game. In sports, unlike law, every day is a new day. Every competition is a fresh opportunity for mixing it up, for throwing our established hierarchies into anarchic relief and allowing a new face of supremacy or abjection to emerge. It thus offers the perfect marriage of the feudal and the fallible, the unequal and the unsettled.

To answer the second question—does riding in a golf cart “fundamentally alter the nature” of golf—the majority undertook a thorough history of the rules of golf. It then formulated a two-part test for determining whether riding in a cart would change the nature of golf. The dutifulness and care, the seriousness with which the majority took its task, both amused and annoyed Scalia.

It has been rendered the solemn duty of the Supreme Court of the United States . . . to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?

Scalia is clearly enjoying himself here, but his mirth is a little mystifying. The ADA defines discrimination as

a failure to make reasonable modifications in the policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations that the entity provides.

Any determination of discrimination requires a prior determination about whether the “reasonable modification” would “fundamentally alter the nature” of the good in question. The language of the statute, in other words, compels the Court to inquire into and decide What is Golf.

But Scalia won’t have any of it. Refusing to be bound by the text, he prefers to meditate on the futility and fatuity of the Court’s inquiry. In seeking to discover the essence of golf, the Court is looking for something that does not exist. “To say that something is ‘essential,’” he writes, “is ordinarily to say that it is necessary to the achievement of a certain object.” But games “have no object except amusement.” Lacking an object, they have no essence. It’s thus impossible to say whether a rule is essential. “All are arbitrary,” he writes of the rules, “none is essential.” What makes a rule a rule is either tradition or, “in more modern times,” the edict of an authoritative body like the PGA.

In an unguarded moment, Scalia entertains the possibility of there being “some point at which the rules of a well-known game are changed to such a degree that no reasonable person would call it the same game.” But he quickly pulls back from his foray into essentialism. No Plato for him; he’s with Nietzsche all the way.

It is difficult to reconcile this almost Rortyesque hostility to the idea of golf’s essence with Scalia’s earlier statements about “the very nature of competitive sport” being the revelation of divinely ordained inequalities. (It’s also difficult to reconcile Scalia’s indifference to the language of the statute with his textualism, but that’s another matter.) Left unresolved, however, the contradiction reveals the twin poles of Scalia’s faith: a belief in rules as arbitrary impositions of power—reflecting nothing (not even the will or standing of their makers) but the flat surface of their locutionary meaning—to which we must nevertheless submit; and a belief in rules, zealously enforced, as the divining rod of our ineradicable inequality. Those who make it past these blank and barren gods are winners; everyone else is a loser.

Tomorrow: How and why Scalia is the real affirmative action baby, and how liberals enable him.

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