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McLoughlin Take 2: Sports vs. Law matters sorted out

Friday, July 15, 2011
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Some things weighing on me this week:

- Is he an idiot, the young guy who gave back Jeter’s 3,000th-hit ball, said to be worth hundreds of thousands on the memorabilia market?

- Is New York’s attorney general pandering to Giants and Jets fans, threatening the NFL with an antitrust investigation if the lockout is not solved?

- And, if he’s not just pandering, is it too late for Attorney General Eric Schneiderman to do anything about the Dodgers moving out of Brooklyn in 1958?

My go-to guy in all matters of Sports vs. The Law is Paul Finkelman, the President William McKinley Distinguished Professor of Law and Public Policy at Albany Law School. He does scholarly treatises on Constitutional law, American legal history, but more significantly, Finkelman is a sports nut who wrote a paper entitled “Who Owns the Home Run Ball?” and was an expert witness in the lawsuit over the ownership of Barry Bonds’ 73rd home run ball.

Finkelman’s verdict on the attorney general’s intervention in the professional football lockout: Not guilty of pandering. Schneiderman says he is investigating whether the lockout violates New York’s version of the federal Sherman Antitrust Act. Even though two of the three teams, the Jets and the Giants, play in New Jersey, the AG says lots of New Yorkers will lose their jobs as ticket takers and parking attendants and already places like Albany are poorer because training sessions are canceled. We will not lose the $17 million a season laughingly predicted by those kidders at the Center for Economic Growth when the Giants landed at U-Albany, but just imagine how many thousands of chicken wings will go uneaten in those Western Avenue taverns this summer.

“I think he is on good legal grounds,” says Finkelman. “He can make a pretty good argument that the NFL owners are acting in concert and the lockout is a restraint of trade, of commerce and a lot of New Yorkers are getting hurt. Two of the training camps are on SUNY campuses and what other states — maybe California, Texas and Ohio — will get hurt as bad as New York? If it were just the Giants locking out their players, that would be different but the owners are joining hands to shut down the game and shut down interstate commerce.” And Finkelman says there are few words in the language like “antitrust” to make football team owners sit up straight in their luxury boxes and take notice. Baseball teams are exempted, of course, because Justice Oliver Wendell Holmes ruled in 1922, in Federal Baseball Club of Baltimore vs. The National League, that baseball is not subject to antitrust laws because it is not interstate commerce (he had a sense of humor akin to that of the Center for Economic Growth). The interstate trips from game to game were just “incidental” to the game, said Holmes and the Supreme Court. “One of the dumbest decisions ever by that court,” said Finkelman.

“Look, [Schneiderman] does not want to sue the NFL,” he says. “He just wants to get the owners’ attention and maybe get the talks moving. And that would be a good thing, wouldn’t it.” Then, there’s the matter of Christian Lopez, the 23-year-old guy who caught the home run that lifted Derek Jeter over the 3,000-hit mark.

“No, he is not an idiot,” he says. “Matter of fact, I think it was pretty nice what he did, giving up the ball and pretty classy on the Yankees’ part, giving the guy what was it, $80,000 worth of free tickets and stuff? But tell you what, given Derek Jeters’ income

bracket, he should get out his checkbook and write the kid a check for $250,000 or whatever it is the ball is worth. Now, that would be a real classy thing to do.” So let’s get back to the attorney general and whether, given his interest in sporting justice everywhere, he can right the horrible wrong foisted on Dodgers fans by Walter O’Malley, the man who ruined my childhood. I told Finkelman how I and many others had been harmed by the westward movement of ’da Bums — I believe lawyers call it “cause of action.” I clearly suffered emotional damage which has carried over into adulthood.

“Does not make any difference,” according to Finkelman, who also admits to being a long-suffering Dodgers fan. “The Dodgers’ decision had nothing to do with the antitrust laws. Any business can up and move anywhere it wants to. Get over it.”

 
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