Friday, July 27, 2007

Michael Vick, Barry Bonds, and Michael Rasmussen: Who Gets the Benefit of the Doubt?

Sports is supposed to be a distraction from the world of law and politics, and at least for a few hours it performed that function for Iraqis encouraged by the success of their national soccer team in the Asian Cup (before car bombs exploded in Baghdad, bringing them back to their terrible reality). But 'round these parts I'm hardly the first to notice how much of the sports page is taken up with law these days.

Let's start with Michael Vick. As a vegan and a dog lover, I'm certainly horrified by the acts that Vick stands accused of committing. And despite the presumption of innocence that I would be bound to apply if I were a juror in Vick's case, I strongly suspect that Vick knew what was occurring on his property. As Sherry Colb noted in this FindLaw column five years ago---in another sports-related case---the presumption of innocence does not apply to non-jurors.

Still, where an employee stands accused of committing acts that, while criminal, have no direct bearing on his fitness for the job, there are sound reasons for the employer not to suspend him. This, I take it, was the logic behind permitting Kobe Bryant to continue to play basketball when he was charged with rape. (The charges were ultimately dropped.)

Conversely, if an employee's alleged crime (or other misdeed) does affect his ability to perform, then a credible accusation may be all that should be needed to dismiss him. A day care center would be justified in suspending an employee indicted for child molestation. Likewise, Rabobank was within its rights in dismissing Tour de France leader Michael Rasmussen when it figured out that Rasmussen had been dishonest about his whereabouts when he should have been tested for doping.

But if the decisions to play Bryant and to bench Rasmussen made sense, then the decisions to bench Vick and to celebrate Barry Bonds as he closes in on Hank Aaron's career home run record do not make sense. Is an accusation of dog fighting so much worse than a rape accusation? Are performance-enhancing drugs so much more common in baseball than in cycling, where they appear to be in every racer's water bottle? I offer a (figurative) gold star to any reader who can offer a principle that rationalizes the treatment of these athletes. (The answer "these decisions were made by different people in different organizations," will not be a winning entry. That will be my conclusion if nobody has a persuasive rationalization.)

33 comments:

Sarah said...

Overarching point: In the U.S., these are market-driven decisions. My guess is that in each case the group responsible for deciding on suspension weighs costs and benefits and comes up with an answer. (In Europe, I would speculate, though don't know, that the decisions may be somewhat less market-driven.)

Possible costs:

1. Lawsuits, if the individual is suspended and found innocent. Thus the probability of ultimate conviction is relevant. Ex ante, the chance that Michael Vick will be found innocent seems much less than the chance that Kobe Bryant would be found innocent. Also relevant, I would imagine, are provisions in an individual player's contract and deals worked out with the players' union in the relevant sport as to when players can be suspended. I would guess these provisions vary among leagues.

2. Reduced revenue if the league does not suspend the player (fewer TV viewers, less purchase of gear, perhaps fewer tickets sold, etc.). A relevant factor here might be how horrific the crime is.

On the sports-related side, how horrific steroid use is is determined almost entirely by how a league treats steroid use. Baseball has done an amazingly effective job of ignoring the steroid issue. Cycling, on the other hand, has taken testing seriously, which raises the standards for what they have to do when someone tests positive, in order to avoid being a laughingstock. There also may be an American/European difference here.

On the non-sports side, I think some people view what happened to the dogs as more horrifying than what happened to the woman in Kobe Bryant's hotel room (assuming that both crimes occurred as alleged). Also, it's hard to say what would have happened had the Vick story broken, say, two years ago, because right now the NFL is having a fair amount of trouble with their players being indicted, and is really trying to crack down so that they don't become the 1970-80s NBA. There was a great chart I saw that listed NFL indictments and arrests over the past few years--pretty mindboggling. Pacman Jones, anyone?

3. Reduced revenue if the league does suspend the player. Barry Bonds is increasing interest in baseball. I doubt Michael Vick's suspension will reduce interest in football.

You might not agree with all these possible cost factors, and I'm sure people can think of other factors, but again, the main point is that this is a financial decision, and so I'm not sure there's a simple moral or legal rule we can come up with that will explain these disparate decisions.

Derek said...

I don't really know the details of these cases so this could be way off, but maybe it just has to do with the credibility of the accusations - that is, how justified we are in thinking the person is guilty given what we know at this moment. The Kobe case, *I think*, was one person's word against another's whereas, in the Vick case, there seems to be little doubt that he was involved in dog fighting. Whether or not this works with Rasmussen and Bonds, I don't know. It depends on the specific facts, I guess.

Caleb said...

Going a bit with what Sarah said, I'd suggest it has to do with how far the revelations deviate from public expectations about the players.

As terrible as it is, people may expect basketball players to live "dangerously". There is also (at least in my opinion) a feeling that most big home run hitters in baseball are on some type of performance enhancers.

Few people however (I imagine), expect multi-millionaires to run dog-fighting rings. Similarly (although my point may break down as I remember persistent rumours about doping), people may have expected that cyclists were "clean". (Alternatively, suspending the cyclist might be an attempt to send a signal to the public and reset their expectations).

The further that behaviour gets from expectations, the more likely it is that the player will be suspended.

C.E. Petit said...

Sarah's comment can be boiled down much more simply:

Rasmussen, as a cyclist, will have his case heard eventually by the so-called "Court for Arbitration in Sport." To be generous and polite, the CAS's procedures, personnel, and record compare unfavorably to the judicial system in a stereotypical banana republic, and would put any nation that adopted them wholesale on some State Department watch-list. Under the CAS system, an accusation made by sporting authorities is treated as "guilty until proven innocent beyond a reasonable doubt"... and there is no such thing as scienter, either.

Conversely, Bonds, as a baseball player, is in a sport that falls outside of the CAS system (except in the very rare sanctioned international tournament for national teams). He has full access to the US court system. More importantly, the disciplinary system is embedded in a culture that gives at least lip service — and often more than that — to the concept of "innocent until proven guilty, by at least some standard of evidence," and that tends to allow at least mitigation in the absence of scienter for technical violations.

Sarah said...

Thanks for the simplification--but how does that explain Vick?

Paul said...

Petit,

Rassmusen did not commit a doping violation. He was fired under the ethics clause in his contract. He has no ability to appeal this decision to CAS (though I share your opinion on CAS). His remedy, if any, falls in contact under the laws governing that contract (and any possible arbitration clauses therein).

stats said...

Bonds and Kobe are marquee players and producers. Vick might have been one (supposedly) a few years ago, but most NFL fans have come to the realization that he isn't that good. Vick is more of a gimmick than anything. I wonder if had been puting up Peytonesque numbers and results, would he be suspended?

As for the cyclist, I don't know anything about that sport. He's not Lance Armstrong.

Paul said...

I think the simplification of Sarah's point is that each of these decisions were made using a cost-benefit analysis by the respective decision makers. This, rather than some legal, moral or ethical process or rule is exactly what should be expected by non-judicial bodies. The Vic case, even, has two different economic players - his team and his main sponsor (Nike) - each of whom conducted the analysis and came out with different answers.

I think, as noted in Sherry's cited find-law article, it is simply a mistake to presume that some sort of overarching principal or harmonization as you would hope to find in a legal system should apply outside of such a system.

PG said...

Ex ante, the chance that Michael Vick will be found innocent seems much less than the chance that Kobe Bryant would be found innocent.

Or at least, the chance that the dogs could be harassed and humiliated into dropping criminal charges is much less than the probability a rape accuser would be.

Aron said...

Um, Barry never missed (or failed) a steroids test and has never been indicted for a crime?

Aron said...

A better analogy to Barry Bonds is Lance Armstrong (who is believed by many to have used PED but has never tested positive). And a better analogy to Rassmussen is Rafael Palmeiro (who failed a steroids test and was ostracized from the game). In both cases, the athlete who failed to comply with the sport's testing regime was penalized -- more harshly than required -- while the one who complied was not.

More on Armstrong: http://en.wikipedia.org/wiki/Lance_Armstrong#Allegations_of_drug_use

Aron said...

As for Vick v. Kobe, I think derek's got it right. There was (and is) real doubt whether Kobe was guilty which doesn't appear to be true with Vick. If real doubt emerges, he will be allowed to play.

So you've got a more-or-less internally consistent set of rules for two very different types of alleged wrongdoing. With PED, you trust the sport's testing system and come down hard on those who don't comply with it. With heinous non-sports-related crimes, you decide whether there's a real doubt about guilt.

There are difficulties as to what constitutes a heinous crime and what to do about illegal PED when there is no testing system (like baseball before 2003). But these difficulties don't apply to Barry or Vick (unless you want to argue that dog-fighting isn't heinous or that Barry should be ostracized now for what he did in 2001-2002, even though he is putatively no longer taking steroids).

Do I get the prize?

Paul said...

Except, again, Rassmusen did not commit a doping violation.

Aron said...

But he did not appear for required tests so he did not comply with the testing system.

Paul said...

No, that is not correct. The testing system requires that he miss three tests in an 18 month period for there to be any sanction. He missed two and therefor was in complete compliance.

Your logic would suggest that Marion Jones was "not in compliance" with the testing system since she had a positive A but a negative B. Or that Oscar Pereiro was not in compliance because his TUE was not filed with the UCI properly even though the UCI recognized that while the paperwork was untimely under the rules that it was none-the-less sufficient.

There is a huge difference between those that have actually committed a doping violation under the relevant rules and those who have not. Trying to equate them because one guy got close to committing a violation is specious.

Aron said...

You are missing my argument. This whole discussion is about when penalties beyond formal sanctions should be applied to athletes. I am arguing that athletes who appear for and pass every drug test are given the benefit of the doubt by the public and their employers (even in the face of other evidence against them), while those who do not are not. I am not equating violations with non-violations. Obviously only those guilty of actual violations should be formally sanctioned. But just because athletes are allowed to miss or fail tests doesn't mean the public or their employers (absent contractual prohibition) have to withhold judgment.

Benjam said...

these cases are all distinguishable in important ways. however at the outset we realize that while a court must provide a presumption of innocence, a private employer has discretion, subject to collective bargaining agreements, private contracts and so forth. sports are an entertainment medium so it makes sense that within their discretion, employers cater to public wishes.

the second important point is to understand that vick has been tried in the media and convicted. his only explanation was that he had no idea what was going on in his own home and that excuse doesnt square with common sense or with multiple sworn affidavits that say vick was present at the fights and was a big-time gambler on these fights.

bryant, on the other hand, was found by the press and public opinion to be innocent (or at least to have established reasonable doubt). semen belonging to someone besides bryant was found on the woman and she admitted to having multiple OTHER sexual encounters within a day or two or bryant. there was also evidence that she bragged about the encounter and talked about the size of bryant's penis. not typical of a rape victim.

in both cases, the public will turn out to be correct. the rape charges were dropped and vick is going to jail, and then to hell.

rasmussen was a totally diferent deal. his team was pressured to drop him by race officials, who didnt want their winner stripped of his title for the second year.

the MLB steriod issues is complicated since it wasnt explictly forbidden by MLB until recently and the truth is that MANY players besides bonds were on juice. the public thinks it may not be fair to single out bonds when other players of his era still have their MVP awards (canseco, caminetti) and other records (giambi, palmeiro, mcguire, sosa). on top of that, he hasnt tested positive since the league initiated testing. besides, the public wants to see him break the record.

i think the leagues have made the correct decision in each case, although waiting until rasmussen was about to win before acting was craven and cynical.

the operative principle? give the people what they want, provided each league acts consistantly with all their players. i think MLB, the NFL and the tour have all been very consistent in the way they've handled these cases. to say that there is a double standard between leagues is an unfair way to frame the question. there is no reason why MLB and the NFL need to have identical rules on personal conduct. the relevant question is whether each league enforces its rules even-handedly.

Neil H. Buchanan said...

I strongly second PG's point that "the chance that the dogs could be harassed and humiliated into dropping criminal charges is much less than the probability a rape accuser would be." What happened to Bryant's accuser was simply ugly, ugly, ugly. No one could be expected to continue to press even the most meritorious criminal complaint in the face of death threats, etc. We will, therefore, never know whether he was guilty; but we can certainly differentiate his dropped charges from, for a prominent example, the dropped charges in the Duke lacrosse case.

Paul said...

"Rasmussen was a totally different deal. his team was pressured to drop him by race officials, who didn't want their winner stripped of his title for the second year."

Neither of these things are correct.

Rabbobank received no pressure from ASO. UCI, through it's president McQuaid, had publicly mentioned its dismay at the possibility of a Rassmusen victory. UCI UCI, however, is not a race official.

Also, Floyd Landis remains the winner of the 2006 TdF. That will not change at all (I hope) but at a minimum it will not change until the arbitration panel issues a ruling.

Paul said...

Aron,
If that was your point then drawing a direct comparison between Rasmussen and Palmeiro seems, at best, ill suited to your point.

Aron said...

Rassmussen and Palmeiro are comparable in that both were sanctioned beyond what was required by their sport's testing system. Palmeiro was only required to serve a ten-day suspension but was effectively banned for life. The point is that the public relies on the testing system for evidence of whether the athlete actually doped, but does not feel bound by its leniencies.

Benjam said...

paul:

first, landis IS going to be stripped of his title but either way, last year's winner is under a cloud and race officials (and the public) did not want a repeat of that. that was the salient point.

second, i listened to a detailed interview with a european racing journalist (yesterday on NPR) and his report was that tour officials put TREMENDOUS behind-the-scenes pressure on the team to drop rassmussen. i cannot independently verify his sources, but he's a tour expert and an experience reporter.

Howard Wasserman said...

Unfortunately, Mike, the "different people in different organizations" explanation is unavoidable, at least in part.

NFL Commissioner Goodell has asserted (and wielded) a broad power to administratively punish players who run afoul of the law-with running afoul defined as the beginning of the process with the initiation of legal process at arrest/indictment/complaint. In Goodell's view, players' off-field conduct does have direct bearing on fitness for the job, because a player's public likeability and reputation affects the popularity of the game on the field. Agree or disagree with the view, it is the prevailing social policy in the NFL power structure right now. NBA Commissioner David Stern has asserted or sought to wield no such authority.

I think there is a good chance that, if Kobe Bryant played in the NFL now, he would be suspended. If Vick played in the NBA five years ago (or the NFL five years ago, for that matter), he would not have been suspended.

As for Bonds: No formal legal process ever has been instituted against him. He has not been arrested, indicted, or formally accused of anything (contra Vick and Kobe). Reports from last season and earlier this season were that MLB Commissioner was waiting for some indictment of Bonds--tax evasion, perjury, anything--to justify a suspension; the indictment never came.

And to distinguish Rasmussen and Bonds on the issue of sport-related misconduct: Bonds has never missed or failed a drug test or otherwise run afoul of the league's steroid policies. As Aron noted, Bonds stands roughly the same position as Lance Armstrong--lots of suggestions and stories, no formal accusations.

C.E. Petit said...

Paul, as an aside, if an athlete challenges terms in his/her sporting contract and that sport falls within CAS authority, the CAS hears the challenge. The CAS isn't only about doping violations; for example, the current controversy over who has the right to receive the transfer fee for Carlos Tevez from West Ham to Manchester United will — it if isn't settled — end up in front of the CAS. Turning back to Rasmussen, that goes directly to whether "firing" him will ultimately be upheld: A US court would probably not do so absent scienter (or at least substantial evidence of carelessness above mere negligence), while mistake of fact would be sufficient in front of the CAS.

That feeds back into Sarah's comment because the regulation of the market mechanism must be considered when one says "this is a market-driven decision." A market-driven decision in a market that can't be second-guessed later on will have a different shape than a market-driven decision in a market that can (and will) be second-guessed later on.

Paul said...

It is not that straight forward. Get a rider contract if you have access to one. Preferably get several. By UCI rules, a dispute between a rider and UCI or a team and UCI is heard at CAS. The disputes between a rider and a team, however, are governed by the language of the contract. Of the several dozen I have read, none included a provision to take disputes to CAS. Instead, every one of them had standard commercial arbitration clauses. With that said, I have only read rider contracts with US teams. That will remain true for a few more days.

Nathan said...

While apparently the different organizations front has been criticized already, I too think it should be given more weight.

No one has brought up the fact that baseball has an incredibly strong (relative to other major sports) players union. Lots of powerful people seem to want Bonds subjected to similar treatment as Michael Vick, but unlike Vick, major leage baseball players get a lot of protection from their union when it comes to the authority of the Commissioner to sanction them.

In the NFL, owners and leage officials have vastly greater power than their MLB counterparts. When an allegation as unnerving as dog fighting comes up, the NFL has the ability to respond more rapidly than the MLB does. See also league sanctions on Tank Johnson and Pacman Jones. The sanctions that they received for their offenses would never happen in MLB.

A similar situation exists in cylcing. In European sports generally the players have little power relative to their teams or leagues. When it became obvious that Rasmussen might actually win the tour, his team couldn't take the risk of another Floyd Landis situation. Taking the high ground preemptively was a better option, and it had the authority to do it.

I think sexism explains the Kobe Bryant situation. The NBA obviously has great authority to sanction players, and is not shy with fines and suspensions (even for players wearing shorts that are too long by provided by their teams). Nonetheless, in our society allegations of rape are always met with intense skepticism, especially when the famous are accused (who would really say no to Kobe Bryant, and she must have just wanted some money were common refrains that I heard in sports bars). And as sports superstars have long been known to be promiscuous, (Magic Johnson was known to enjoy the company of enthusiastic fans even at half time in his personal locker room) the negative publicity for the league was minimal.

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