- Lester Munson, Legal Analyst
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The Super Bowl is behind us. The Winter Olympics are ahead of us. Pitchers and catchers report next week. It all comes and goes with the seasons. But sports and the law? That's a never-ending, year-round pursuit. No offseason for Courtside Seat. On Thursday, we start with
Strange BCS bedfellows
Facing frustration, stalemate and outright defeat on numerous fronts -- that isn't the only way of looking at his first year in office, but it seems to have some currency in the media of late -- you'd think President Obama and his administration would be looking for an easy win, maybe some change and some hope, right about now.
We have just the thing for them.
It's a sure thing that would allow the Democrats to seize the initiative, to work in a genuinely bipartisan way with the Republicans and to produce a popular and beneficial change for the nation. It is, of course, the Bowl Championship Series, an issue that Obama discussed repeatedly during the campaign in 2008 but has left on the back burner ever since.
He's been stymied so far in his efforts to close Guantanamo Bay and enact health care reform, but Obama can easily deliver on his promise to "throw [his] weight around" and establish a college football playoff system.
Are there more important issues for Obama and the nation's leaders? Yes, of course. But if they look hard at the BCS and establish a college football playoff, they can manage to actually accomplish something.
The issue is obvious. The BCS is a monopoly that has seized control of the market for championship college football and has deliberately distributed its profits in a way that benefits the 73 schools in the six BCS conferences and hurts the 56 schools in the other five major-college football conferences.
In the past four years, according to research done by Sen. Orrin Hatch, R-Utah, the BCS has distributed an average of $6.7 million to each of its preferred schools and an average of only $1.1 million to the other schools.
On the merits of that money inequity alone, without even considering the injustice of undefeated teams being barred from a chance at a national championship, it is an obvious antitrust violation, a use of the power of the cartel to benefit some at the expense of others.
At this point, the only action from the Obama administration on the BCS situation has been a four-page, single-spaced letter written by a lawyer in the Department of Justice in late January describing the issue in terms only a law professor would enjoy. The letter suggests in the homely prose of a law review that the issue is "important" to "interested parties" and that the administration is trying to "determine whether to open an investigation into the legality of the current system under the antitrust laws."
But, of course, Obama was a law professor. With a nod from the president to his Justice Department and its antitrust division, an investigation could be quick and conclusive. The BCS would be in serious jeopardy.
And do not underestimate the "R" after Hatch's name. He's a Republican -- a Republican with a history of bipartisan achievement.
The next step would be something Obama clearly enjoys: a summit meeting of all who are involved. Imagine. A Democratic president talking with leaders of both parties and actually accomplishing something. It would be good politics. It would be good practice. It could be a rehearsal for agreements and action on other issues.
For at least a few days, frustration, stalemate and defeat might be replaced by hope and change.
It could happen.
Sex, lies and polygraphs
Michael Irvin came out firing when Nicole Alicia Mustafa sued him last week and demanded money damages for an alleged sexual assault. In his countersuit, Irvin says Mustafa is a "morally bankrupt individual" who is guilty of "extortion" and "destroying the hard earned career of a highly acclaimed sports broadcaster."
Relying on a waiver of prosecution that Mustafa signed during a police investigation of her claims, Irvin and his lawyers claim he is a victim of a pattern of "unsuccessful individuals" who "attack celebrities of Irvin's stature to try and make a quick buck."
But before he goes much farther in his attacks on Mustafa, Irvin might want to take a look at a dramatic video of Mustafa taking and passing a lie detector examination that seems to confirm her allegations of a forcible rape in the Seminole Hard Rock Hotel and Casino in Fort Lauderdale, Fla., on July 4, 2007.
Leonard Bierman, a nationally known polygraph expert, conducted the examination in September 2007, and, with the written authorization of Mustafa and her attorney, discussed it with ESPN.com.
As Mustafa described the details of the incident, Bierman says, she was "terribly distraught" and vomited twice. "She was clearly upset," Bierman says. "The greatest actress in Hollywood could not have done what [Mustafa] did in the examination. It was genuine."
With an unknown male holding her down on a bed in Irvin's hotel room, Mustafa told Bierman, Irvin raped her and forced her to have oral sex with the other man.
To confirm his findings, Bierman sent the polygraph charts to four other lie detector experts.
"It was unanimous," Bierman says. "All agreed she had been truthful in her description of what happened. There was no misstatement, no misrepresentation and no deceit."
If there is ever a trial on the issues of the Mustafa-Irvin dispute, the results of a lie detector examination cannot be used as evidence. But if a polygraph concludes that Mustafa told the truth, it is an indication that a judge or a jury could reach the same conclusion. Irvin might want to consider the possibility as he decides on his next steps.
The profession of amateurism
Persisting in its claim that it does not have monopoly control over college sports and cannot be sued for antitrust violations, the NCAA has suffered embarrassing defeats in recent years in cases involving an attempted pay scale for assistant coaches in men's basketball and shortages in grants-in-aid (scholarships) to Division I football and basketball players. In both cases, the NCAA righteously denied its monopoly status and claimed it was acting fairly. Later, despite the denials and the claims, the organization paid out large sums in judgments and settlements to the coaches and players.
But the Ed O'Bannon class-action lawsuit, which attacks the NCAA's lucrative licensing contracts and is currently pending, might be the organization's worst nightmare. After a favorable ruling from a federal judge in San Francisco this week, O'Bannon and his attorneys will now be able to examine contracts and deals that the NCAA has steadfastly kept private.
The NCAA's deals for apparel, video games and television advertising produce enormous income. Most experts agree that the contracts produce more than $4 billion each year. O'Bannon and the players he represents seek their fair share of the income.
O'Bannon, a former star basketball player at UCLA, is in the early stages of his quest, seeking to discover comprehensive information on what the NCAA has been doing with the images and likenesses of Division I athletes. As the case progresses, O'Bannon's lawyers will refine their claims and formulate a specific set of demands to impose on the NCAA for the players.
"We can soon begin collecting evidence from the NCAA, taking depositions, and uncovering everything that it wanted to hide and to keep from the public's and athletes' view," said Jon King, one of the lawyers representing the athletes, to USA Today after the judge in San Francisco denied the NCAA's attempt to have the lawsuit dismissed.
It seems obvious that the players should share in the bounty, but the NCAA asserts it is taking the moral high ground, protecting the ideal of "amateurism" in college sports in its rules that prevent players from sharing in the profits they produce.
Most economists who analyze the NCAA's rules see a cartel that is maximizing its profits and cutting its costs when it refuses to pay players either for their work or for the use of their images in licensing.
More importantly, Walter Byers, the executive director of the NCAA from 1951 to 1987, famously observed, "Collegiate amateurism is not a moral issue. It is an economic camouflage for monopoly practice."
It's hard to imagine a group of otherwise brilliant university presidents gathered at an NCAA meeting and somehow concluding that they are doing the proper and equitable thing when they stand between student-athletes and the profits they have earned. Is it arrogance? Is it hubris? Is it just the money?
Whatever it is, the O'Bannon case appears to be a brand-new ballgame now, as the athletes and their lawyers dig into the NCAA's once-secret files.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
9hEric D. Williams