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Why Study Sports Law?

By Jeffrey Standen

Recently over at some of my favorite websites geared to sports economists, an interesting discussion arose over whether or not and why a trained economist should spend his days studying sports. The biggest downside to the study of sports is that, apparently for an academic economist, the subject of sports economics veers dangerously close to career suicide. The upside? Here are the initial thoughts, posted by economist Justin Wolfers on the Marginal Revolution site. Although you can judge for yourself, Wolfers basically says sports is interesting, fun, culturally significant and (probably most importantly) produces lots of decision-points that are transparent and thus ripe for study. (Wolfers also says sports-lingo is great for classroom analogies, but this sort of thing is considered a problem in law teaching, not a virtue.) Other economist-bloggers have weighed in. See here, here (suggesting that, because sports research is fun, others think it can't be work) and here (sports economics is instructive).

That's fine for sports economists. But more importantly, what about me? Should an academic lawyer study sports? Is it okay to have fun at work? In other words, will I make tenure?

1. First, some frank career advice for want-to-be sports law professors. If you are poking around for a job as a law professor, either as a newbie or a lateral transfer, it is clearly to the better if you do not sell yourself as a specialist in sports law. The best bets? Unless you're a hugely well-credentialed faculty candidate, go for one of the business areas, such as commercial law, securities law or taxation. These are always need subjects for law schools and most professors don't want to teach them. If you think you can swim with the big fish and are willing to court failure (or banishment to a low-tiered law school), then go ahead and declare yourself ready to write in federal courts or constitutional law or criminal procedure. Fun areas, lots to read and write, but everyone is here or wants to be here. A candidate in constitutional law, for instance, competes for a position both with other novice candidates and with entrenched professors who have long had their covetous eye on that open course. Finally, if you don't have the credentials for one of the big ponds and just can't in good conscience bring yourself to teach business law, you might try to get lucky with a hot "boutique" subject, such as intellectual property or environmental law. Although you'll have precious few potential job openings, you will get a favorable reception and face diminished competition. But representing yourself as a specialist in sports law? Sports law is a very small boutique, but it's not hot. No big fishes swim here: most of the sports law scholarship is descriptive at best. No law faculty in America, in assessing its needs for the coming hiring season, will put sports law on the list. Career suicide? You can't kill a career you won't even get started.

2. So how did I come to sports law? I spent the first half of my career (that's assuming I live to at least 100) specializing in criminal procedure, writing the long articles for the big publications. Great field, until the O.J. Simpson verdict coupled with a series of Supreme Court decisions on the federal sentencing guidelines killed my faith in the system (that would be OJ) and my interest in sentencing law (that would be the Supremes). I went from caring deeply to not at all. What to do? I considered resigning my post and returning to my first professional love (litigation practice: I like to argue), but cooler brain regions prevailed, so I decided to cast about for a new academic field. Feminist jurisprudence seemed full-up, so here I am, thanks to an agreeable dean and a lifelong interest in sports. I suspect my story is not unusual: many tenured-up professors like me sneak in to sports law from the side door. For beginning law professors who want to write about sports law, often they will hide their true interest, promising overworked hiring committees a lifetime's interest in business law or civil procedure or something. Sports law is presented as an insignificant part of the teaching package, only to become the primary focus of scholarship a little down the road, when one hopes hiring committees have lost their institutional memory and have no members in common with the tenure committee. So these professors sneak in too.

No one comes through the front door into academic sports law.

3. So why do it at all? Why devote your career to teaching, studying and writing sports law? We lawyers cannot simply piggyback on the economists here. Lawyers study law, we don't model human behavior (we just presume it), and so sports presents no special opportunity to cull data. Even worse, the collection of rules and statutes that apply solely to sports (such as Title IX) that are properly described as "sports law" are few and unrelated. Law professors usually refer (quite inexactly) to all kinds of legal doctrines as "sports law" to the extent those legal doctrines affect sports (such as the application of antitrust law to sports leagues). Thus sports law in this looser sense is little more than the application of all of law (theoretically) to sports situations. A legal subject that theoretically includes all of law is no subject at all. So to profess to make "sports law" one's particular field of study usually means, for most law professors, that they study some distinct area of law (antitrust, labor, first amendment) as that distinct area applies to sports issues. These folks are not really studying and professing sports law, not as it might be, as a separate and intellectually coherent body of law. To profess sports law per se, in a conception that imagines it as a distinct body of law, requires some substantial justification.

4. Here's my justification: I profess sports law because it needs it. Sports law is exactly what its critics charge: an incoherent, undeveloped, underwritten, poorly described afterthought in the law school curriculum. There is no "sports law" because no one's done the work to adequately develop it. Perhaps its current plight suggests that no coherence is possible, that sports law is and will remain a discrete series of issues resistant to abstraction and generalization. But the same might have once been said of the law of commerce or the law of the environment. There seems to be enough similarity in the organization of our sports leagues and even the structure of our games to generate a similar uniformity of structure in the relevant legal doctrine. Sports leagues and competitions entail a unique blend of cooperation and competition and thus might deserve a unique set of legal doctrines. It may take me well past my 100th birthday to make progress, but I do hope to be part of the effort to create the law of sports.

5. And sports is fun.

Full post as published by The Sports Law Professor on January 14, 2008 (boomark / email).