Sunday, March 14, 2010

Final Score: Sports Zero, Lawyers 1,000,000 (and counting) (Nonsportsmanlike Conduct!)

The NCAA Mens' Basketball Tournament -- which would be commonly referred to as "March Madness" -- starts this week.

The Tournament would be commonly referred to as "March Madness" if doing so wouldn't end up with you being sued into oblivion faster than you can say "J.K. Rowling didn't need the profits from that encyclopedia." "March Madness," after all, is a trademark of the NCAA, which got the right to use the phrase as a trademark after CBS stole the phrase from the Illinois High School Association (IHSA).

That's a true story: The IHSA used the phrase March Madness as far back as 1939, only to have a CBS reporter from Chicago then apply March Madness to the NCAA Mens' Tournament, only to then have the IHSA sue over the use of the phrase in a video game -- and lose, because the IHSA hadn't bothered to protect the phrase for about 16 years, so it was available for the NCAA Tournament to use, and license, leading to a cooperative agreement between IHSA and the NCAA whereby they agreed to share the name, and they later agreed to sue some people who tried to use the website url, which is why, today, if you type the phrase "" into your web browser, you'll be magically transported to

And which is also why it's great to be a lawyer: even though my job would be entirely irrelevant, and entirely useless, if everyone just agreed to not use lawyers, as long as one person uses a lawyer, everyone else will need to use one, too, and I am therefore guaranteed job security for all eternity, or until I retire, whichever comes first.

So I'm not using the phrase March Madness to describe The Best Postseason Sporting Event. And I am vigorously defending my copyright on Sticky Waffle Sandwiches, which I see is under attack from my archnemesis... well, one of my archnemeses, as I have many, Dunkin' Donuts.

You may recall that briefly over the summer I toyed with a feature called Mourning Gnus, and as part of that I periodically updated everyone on how I, Thinking The Lions, was the number one destination for people who did a Google search for Sticky Waffle Sandwiches. (If you don't remember that, click here and you'll get all the posts that mentioned this all-important issue.)

I did that back in May and June, after Sweetie packed me a lunch that included... you guessed it... a sticky waffle sandwich.

Then, I found out that Dunkin' Donuts, which has become one of my archnemeses by doing this, has introduced a sticky waffle sandwich on their menu -- they don't call it a sticky sandwich but you know it's sticky; it's a waffle, how could it not be? -- thereby copying me and, more importantly, robbing me of the right to make billions off of Sweetie's invention of this major breakthrough in breakfastry.

Breakfastry: that's a word I just coined and it's my word. Remember that, Dunkin' Donuts.

I should sue Dunkin' Donuts within an inch of its corporate life, the way J.K. Rowling sues anyone who says anything that even remotely sounds like Harry Potter -- because a failure to vigorously protect my trademark will cede the right to use it to Dunkin' Donuts, and eventually, when you type Sticky Waffle Sandwiches into Google, you'll be redirected to the NCAA site. I know how things work.

I should also vigorously defend my trademark in Sticky Waffle Sandwiches because doing so helps guarantee that I'll have more than enough work for my lifetime, keeping me busy in the way that only lawyers can be kept busy: by creating a system of complicated rules that only we can navigate, and then making you pay us to navigate those rules.

Lawyers, as a whole, are an entirely unnecessary occupation. Lawyers are one of those rare groups of people who, if you eliminated them entirely from the earth -- if you snapped your fingers and suddenly there were no more lawyers period -- the world wouldn't be any worse off in any significant respect. If lawyers stopped lawyering today, people would still have disputes and would still need to settle them -- and they would settle them, by filing lawsuits and going to court and otherwise doing the things they do now to settle disputes (having Jerry Seinfeld and his buddies make fun of them on TV), but they'd do it without lawyers, and if everyone realized that, I'd have to go find another career.

Like, say, something in the sitting on a tropical island for a year and telling what that's like category of jobs. (That's a real job, by the way. Aren't you sorry you didn't major in that? I am.)

Things That Are Jobs:




Luckily for me, people keep on doing stuff that lets me sue them, and, if you're wondering how this all relates to sports, beyond the little I'm-not-going-to-refer-to-it-as-March-Madness- intro, rest assured, it does: Because in the world of sports, there are winners, there are losers, there are losers that we pretend are winners because we want to claim that that US "won" the Olympics so we pretend a silver medal is okay to get, and then there are the lawyers, who always win.

Lawyers have had dramatic, readily-apparent impacts on sports, and then they have had not-so-dramatic, not-so-apparent, but equally (if not more so) important impacts on sports. And sometimes it's not so clear which is which.

Take the Casey Martin lawsuit. Back at the turn of the century, lawyers used the Americans With Disabilities Act to get Casey Martin the right to use a golf cart on tour. That lawsuit was met with outcries both for and against, with people announcing it would be the end of golf, and people announcing it was a new day in the world, a day when anyone could dream of playing a professional sport even if they were completely unable, physically, to do so.

And the earth-shattering result of Martin's court-ordered and Congressionally-mandated permissive use of a golf cart on the PGA Tour was... nothing much. Martin finished in 179th place on his only year on the PGA Tour, having to then go back to Q-School to qualify for the tour again, and not doing so. (Q-School is the qualifying event for those who hope to get onto the PGA Tour, a series of tournaments a player must go through to get on the tour.)

In the end, all that lawyering was for nothing. The PGA spent hundreds of thousands of dollars defending that case, and in the end, the result was that all the golfers who would have finished at 179th or lower were pushed one slot back -- meaning all the bad golfers were a little tiny bit worse off, and the effect on the golf world was nil.

That's one reason why I so frequently say that lawyers, as a whole, are not necessary to the functioning of society -- not necessary so long as everyone would agree not to use them. If one person uses a lawyer, everyone else has to or they're at a disadvantage. The Casey Martin case shows that all that lawyering was unnecessary, and counterproductive: Not only would Martin and the PGA have resolved their differences even without teams of lawyers making their arguments for them, but the end result was a tempest in a teapot, with Martin winning the chance to play on the Tour using a cart, but never having much impact on golf anyway.

That doesn't stop lawyers from changing the games you play, and the games you watch, in greater or lesser degrees. Consider how lawyers affected the outcome of the NFL's last two seasons, through maneuvering involving the Giant Williamses of Minnesota.

Defensive linemen Kevin Williams and Pat Williams -- no relation to each other, apparently -- tested positive for banned substances in training camp in 2008. The Giant Williamses said that the substance (bumetanide), which can be used to mask steroids, was used by them not for that, but to meet their weigh-in goals and get a $400,000 bonus.

The Williamses acknowledged taking bumetanide, via an over-the-counter weight loss product they took the night before the weigh in. (They say.) The NFL acknowledged that bumetanide, which is on the NFL's banned substances list, isn't on the weight-loss product's label.

So the NFL suspended the Giant Williamses for four games.

Remember -- that positive test was in 2008. The media announced recently that the Giant Williamses might, soon, serve the four-game suspension that the NFL imposed.

In 2008.

What happened was, as you'd guessed, the lawyers rolled in. The Giant Williamses had a lawyer who claimed that the NFL violated Minnesota's state law requiring notice of a positive drug test within three days of the test. Note how the Giant Williamses do not dispute they failed the test, or that the test was improperly administered: They simply said that the NFL didn't tell them soon enough that they'd failed.

That claim, plus some others about inconsistent punishments, has been enough to let the Giant Williamses play in the 2008 and 2009 season, reaching overtime in the 2009 NFC Championship Game, all the while without ever serving that four-game suspension.

That four-game suspension is important if you are, say, a Packer fan. The Packers finished one game behind the Vikings in 2009, heading to a loss in Arizona in the wild-card round instead of relaxing at home singing Pants On The Ground like the Vikings did in the recently-concluded playoffs. Had the Giant Williamses been suspended for four games, the season might have gone differently for the Packers and the situation may have been reversed -- sending Minnesota to Arizona... and Minnesota had lost badly to Arizona on the road in the regular season.

Minnesota also made the playoffs in 2008 as a wild-card, so lawyers helped shape the NFL's postseason for two years running -- helping put Minnesota in and keeping the Packers out of the NFC Championship this past year.

Lawyers don't just destroy, no matter what you might think; it's not true that all law schools have a secret shrine to Shiva. (Only the accredited law schools do.) Lawyers can also make you rich off your football career even if you never actually had a football career per se: a lawyer can make your virtual football career generate real money.

Or, that's the hope of several litigious college students who decided they ought to get something out of the fact that kids everywhere are able to make them (virtually) go for it on 4th-and-57, as I always make my teams do whenever I play video-game football, which I don't do anymore because video-game football got way too complicated for me. As someone who began his video-game football career playing that little Mattel hand-held football game where you were represented by a little red LED, and you had to get past 3 or 4 other little red LEDs, I have no ability or patience for a game in which there are 11 different buttons on one controller, each of which has to be pressed in order to get your player to do something. The last time I played Madden against The Boy, I was mostly a spectator to what the computer had my team do, with my input being limited to never punting.

(I read somewhere, but can't find it, an article that said that John Madden made the game designers put in a feature that punished players who "go for it" on 4th-and-57 and other ridiculous downs and distances. Aside from the fact that, statistically speaking, punting is for suckers and never punting can help you win championships, what business is it of Madden's how I run my virtual team? If he wants to wuss out as a coach, fine, but to make the computer punish me for being gutsy, and to take away the what-if aspect of playing a video game, seems stupid, to me. What's next? Will Madden punish players who opt to play as a losing team, like the Raiders? "You should have picked Dallas," the game will say, and will short-circuit.)

College students who play an NCAA-run sport have to sign a paper that says they won't profit off their likeness or sports career. That's a rule that's only enforced against teams that aren't USC or Ohio State, and people who aren't Tim Tebow (since Tebow was allowed to participate in a commercial on national TV during the Super Bowl, a commercial that even if he didn't get paid for it no doubt helped his profile and will, in the long run, earn him some money.)

But nobody, it turns out, signs a paper saying that everyone else in the world can't profit off of a college student's career and likeness, "everyone else in the world" including video-game makers, who have been putting players into their videogames for years and making billions off of them.

Videogame makers using NCAA teams do not use the players' names, but that hardly matters. Consider a few examples:

The quarterback for the University of Florida in NCAA Football 2009 is, like real-life Tim Tebow, a 6'3" lefty who wears number 15 and is from Florida. (Why a player in a video game has to have a hometown is beyond me, but the NCAA Video Number 15 is from Brandon, Florida, while Tebow is from Jacksonville, Florida.)

The 2005 NCAA Football game had an Arizona player who wore number 9, played quarterback, and was the same height, weight, and even skin tone and hair color as the real-life Arizona State QB at the time, Sam Keller. (Like Real Tebow and Virtual Tebow, Keller and Fake Keller shared the same home state, too.)

(It makes me wonder how long it'll be before we get a back story on Mario and Luigi, who are, so far as I know, sadly without any origins whatsoever.)

Deciding that something had to be done about it, and "something" in America almost always meaning sue, Keller and others have now filed lawsuits against the NCAA for using their likenesses without compensating them -- joining such luminaries as Woody Allen, who also claimed once that his likeness was used without his permission on a billboard put up by American Apparel.

The college guys have something to sue for: The NFL Players Association is paid about $35 million a year for licensing players' images to the video games, and a past lawsuit by NFL players against Madden's game maker netted more than $26 million in a settlement. If you're, say, Ed O'Bannon, that's big bucks.

O'Bannon was a UCLA basketball player who was drafted into the NBA but didn't last long there. After some time playing basketball overseas, O'Bannon finished his bachelor's degree and now works as a car salesman and coaches a Henderson, Nevada high school team.

O'Bannon is the lead plaintiff in a suit against the NCAA seeking compensation for using his likeness -- there are other suits going besides his -- and may gain a lot of money as a result of you using O'Bannon to dunk on your son's videogame counterparts.

(O'Bannon, and the others, are simply examples of the reasoning behind my proposal that college athletes just be paid, already.)

All of which serves as just a few examples of the reason why I'm glad to be a lawyer, and even more glad that society, for some reason, continues to tolerate lawyers and lets us exist instead of forcing us to go get real jobs: because as a lawyer, I have the kind of job that lets me spend Sunday mornings writing about how my job isn't all that demanding, or necessary. I have the kind of job that lets me make money off of people making money off of other people -- people like the NCAA, who make tons of money off of college athletes, and then pay tons of that money to lawyers to keep from having to pay any of that money to the athletes.

And I have the kind of job could let me have an impact on sports without going through this:

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