Friday, August 22, 2008

What’s Next? Olympic Beer Pong?

[Hi all. I’m a newcomer to Dorf on Law, so I’ll briefly introduce myself: I graduated Columbia Law School in 2007, clerked on the Ninth Circuit this past year, and I’ll soon be joining the appellate litigation group of a New York City law firm. I’m grateful to Mike for giving me this opportunity, which I’m very excited about. I’ll try my best to match the quality of others’ posts, but please note that they do not review or edit my writings, so all errors are my own.]

According to this story in the New York Times, the International Table Tennis Federation is exploring sexier uniforms for its athletes in order to draw more spectators. Assuming that that this strategy would be successful, should the ITTF seriously pursue tighter, more revealing outfits?

The downside is apparent. When management---ITTF executives, team leaders, etc.---believe that the financial health of the sport is dependent on the attractiveness of the athletes, there is a risk that players who are less beautiful or who are unwilling to flaunt their bodies will face institutional hurdles to their participation in the sport. For example, coaches may choose to coach better looking athletes with less talent because they hope to get paid more from those athletes’ future endorsement deals. Universities may recruit better looking athletes in the hopes of increasing ticket revenues. Self-conscious individuals may choose to forego participation in a sport that puts their looks on display. This conflicts with basic notions of what sports are about. Athletes should be chosen to compete based on their talent and work ethic so that the best players will have the opportunity to win, regardless of their personal circumstances or looks.

Professional sports organizations and franchises are, however, businesses, not meritocracies, so it is rational for them to support a worse player over a better one if the worse player will generate more revenue. Of course, the same can be said of other biases. Sadly, in the current climate, the hiring of an identifiable Muslim by a business may have a negative effect on workplace morale or customer satisfaction because of irrational prejudices, so an employer might be tempted to “rationally” discriminate.

Fortunately, federal law forbids employment discrimination on the basis of religion. By contrast, my very quick and dirty research revealed that appearance-based discrimination is only actionable under federal law if it can be tied to a protected class status: race, color, religion, sex, national origin, disability, or age. (Commenters: corrections and elaborations are welcomed.) So employees who are rejected because they are simply unattractive---not because of their color, sex, etc., but because of their bone structure or body shape---are out of luck (under federal law).

But just because it wouldn’t be legally problematic, it doesn’t mean it isn’t normatively objectionable. As I see it, the problem with the ITTF is that it is leading a top-down (no pun intended) move toward sexier uniforms, as opposed to simply acquiescing in the non-concerted choices of individual athletes. I don’t think the ITTF needs to force players to wear drab clothing. If players independently choose, without encouragement by executives, to wear outfits that make them look sexier, so be it. This will still likely lead to professional benefits for the athletes who choose to dress attractively, but at worst the ITTF would be complicit in these market biases, not an enthusiastic proponent. Instead of marketing its athletes' bodies, the organization should publicly emphasize the thrills of table tennis, such as they are. If the ITTF needs to resort to t&a to generate interest in table tennis, can anyone really be expected to take the sport seriously?

-Posted by David Crowley