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The Donaghy Sentencing and its Discontents

By Jeffrey Standen

At least two well-devised descriptions of former NBA referee Tim Donaghy's impending criminal sentencing and its ramifications are on the web. Lester Munson of ESPN.com, who seems to know everything (I say in awe, not sarcasm) supplies all the information one could want on the relevant sentencing issues here. Michael McCann of SI.com, who seems to have an academic position everywhere (I'm lucky I hold even one, just barely), explores the possibilities of a Congressional response here. Well done, men. That frees TSLP up to do no further research and supply no further information (yes, Munson and McCann work for TSLP Worldwide Global, of which SI and ESPN are mere subsidiaries).

So here's a content- and information-free comment on the latest turn in the Donaghy episode. To lead off with my conclusion, Tim Donaghy obviously has a problem, but so does everybody else. So far, the NBA has (in part) responded to the scandal like a cornered porcupine, repeatedly lashing out at Donaghy. The supposedly circumspect federal Congress is acting like an officious school principal, threatening the dread Congressional hearings. Folks, the Olympics are soon upon us; how about a little Olympian detachment? Put another way, could everyone please stop posturing and posing and instead discuss this issue like an adult?

1. The most childish behavior comes from the Congress. According to McCann, a certain representative from Illinois has threatened to open hearings to revisit the scandal and, in a broader vein, the examine the integrity of NBA basketball itself. We saw much the same behavior from a Senator from Pennsylvania with respect to the Patriots' videography practices. What's the federal hook, the justification for all this special federal intrusion into the privately owned and operated world of professional sports? Why it's the much-referenced but seldom-discussed federal antitrust exemptions for professional sports. So let's call the Congressional bluff. Is the antitrust exemption a big deal? Nope, not any more.

2. Major League Baseball enjoys the remnants of a very old and very flawed Supreme Court decision, discussed here. That decision today is so full of limits and statutory loopholes that it takes a skillful lawyer (that means not me) to figure out to what it does continue to apply. Let the Congress (finally) abrogate that decision, an action the U.S. Supreme Court has repeatedly suggested, and nothing will change. MLB no longer needs that decision; it can use the "nonstatutory labor exemption" to the antitrust laws (which basically renders the league-union collective bargaining agreement paramount in defining permissible collective action) to run its entire operation. The threat to revoke MLB's judicial protection? Empty.

3. The NBA obviously does not participate in MLB's judicial exemption, so in an attempt to justify this nascent Congressional concern over the integrity of NBA games, the member of Congress who is threatening a hearing has apparently hinted at abridging the Sports Broadcasting Act of 1961 (SBA). What a joke. First of all, why does every public move by the Congress and the leagues have to involve threats and counterclaims? My middle-schooler can resolve disputes in a more mature fashion. Second, would the federal Congress really do this? Would a scandal, even one as significant as Donaghy's, in actuality move our supposedly august and deliberate federal legislature and executive to amend federal law on the broadcasting of sports? It's a juvenile form of punishment, and I'll believe it when I see it. Why does the Congress feel compelled to treat its subjects (you know, the rest of us, we humble citizens) like miscreant children? Who works for whom here? Third, even if the Congress idiotically followed through on its threat, nothing would change. It's an empty threat, as I'll discuss next paragraph. Commissioner Stern should respond to reasonable and legitimate inquiries reasonably. He should respond to contrived, idiotic threats like this one by calling the Congressman an idiot or by calling Ron Artest. (Just kidding on the last point! Don't investigate me please.)

4. I've written a brilliant piece of legal guesswork and mumbo-jumbo about the SBA here. In theory, the SBA allows MLB, NBA and NFL teams to join together to market their broadcast rights. In practice, it's needless. First, think of all the teams in leagues other than those three who similarly join together to market their broadcast rights; none of them are included in the language of the SBA (which is limited to MLB, NBA and NFL) but they all get away with collective sales of broadcast rights. If they were sued, I strongly suspect their practices would be sustained under antitrust law under the theory that collective marketing is ultimately pro-consumer (allows for widespread viewership and helps to sustain a competitive league). Second, even with regard to the special leagues protected by the SBA, the terms of the SBA explicitly apply only to "sponsored" broadcasts, by which was meant free, over-the-air network dissemination. Can anyone think of any significant NFL, MLB or NBA broadcast outlet that does not provide free, sponsored airborne broadcasts? Does ESPN ring a bell? In other words, would the federal Congress or a federal appellate court really bring ESPN to its giant knees? (And how would Lester Munson fairly assess ESPN's likely antitrust damages without getting himself fired?) The point is, a great deal of sports broadcasting, arguably even the bulk of it, is conducted today outside of the narrow protections of the SBA, all without a whimper. For the Congress to claim a legitimate interest in the affairs of the NBA by virtue of the SBA of 1961 borders on absurdity. If the Congress does call a hearing, Stern should send a low-level deputy in his place. (Or send TSLP: I'll be happy to smart off at a Congressional hearing on someone else's behalf.) And by the way, it's only a "hearing": why is holding a mere hearing construed as a "threat"? Congress holds a dozen hearings a day. Big deal.

5. I've written about Donaghy's scandal before. As I pointed out then, the NBA's fault in the misbehavior was its curious decision to make referee assignments a secret, thus giving Donaghy a gift-wrapped bundle of valuable insider information to sell to the only people who would pay for such information, namely professional gamblers. In short, the NBA foolishly had made a powderkeg just waiting for someone to light a fuse. Shortly after the scandal broke, and shortly after I wrote, the NBA reversed its policy and now makes referee assignments public. (Yes, the subtextual theme of my blog is that everyone should listen to me, I'm always right.) That's the main reform that was needed, and in my view should go a long ways to preclude a reccurence of such scandals. That's enough. The NBA is done, no matter what some Congressman seeking to see his name in the paper has to say. A single scandal followed by a single, surgical, curative reform. Nicely done.

6. All this talk about greater and more intrusive supervision by the NBA over its referees strikes me as either facile posturing at best, or badly mistaken at worst. It's facile because the claim for heightened supervision is easy to say, requires no thought as to consequences, and assumes that tighter oversight would have revealed how Donaghy or some other referee spent his private time and to whom he spoke on his cell phone. Really? Would some reasonable form of more stringent oversight actually have prevented this episode? Would more detailed disclosure forms or what have you have actually worked to prevent this crime? Shouldn't we think that supposition through before we recommend and the NBA adopts all these intrusive measures, and not afterward? Next, the proposed but unspecified "increased scrutiny" reforms strike me as mistaken or even undesirable. Everyone complains about the quality of refereeing, especially in the NBA. (I know I do, at least when my teams are involved. See here, for abject homerism.) The most obvious solution to sub-standard performance is to hire better people. So here's the NBA's implicit plan: let's impose more onerous and intrusive oversight on our referees, and then go out and attract better ones. Don't employers looking to upgrade their staff usually try to make the jobs more attractive, not less?

7. I like David Stern. Sure, he comes across as a smirking know-it-all sometimes, but that's only because he knows everything and thinks less of others who don't. After the scandal broke, Stern immediately implemented the TSLP-approved institutional reform, thereby obliterating the means of a future rogue referee from doing this again, then labeled Donaghy the outlier that he is, and then did his best to move on. That's exactly the right approach David; now let it go. Let sycophantic Congressman threaten to eliminate some useless, antiquated statute; let legal commentators (even smart ones like McCann and Munson) outline the personal hell facing one Tim Donaghy (if anyone cares; I don't), but for the league itself, learn from this, take the high road, and go back to business. Stern did get in the mud a little bit with his personal attacks on Donaghy, but that's understandable coming from the victim of the crime. But from now on, David, just ignore these schoolyard bullies. They'll grow up eventually.

Full post as published by The Sports Law Professor on July 29, 2008 (boomark / email).