Ballpark t-shirt case in Texas?

A woman wearing a "Yankees Suck" t-shirt was threatened with removal from The Ballpark in Arlington last week. And the story is drawing some national attention (ED: Contains video line; I removed video from post because it was playing automatically).



The Rangers have received a number of complaints about the word sucks and consider it impermissible profanity that is offensive to "many people." The woman is not talking about suing, only about wanting the Rangers to change their policy; she concedes that the park is private property (something I continue to dispute). She also makes the obvious-but-often-missed point that teams cannot ensure that no one ever is offended by what they happen to see and hear at the ballpark, especially if it is not in-your-face.

Even if there is no lawsuit, it is nice to have a ballpark-speech story with a singular (and seemingly sympathetic) face and story.

What happens in Delaware...

The possibility of sports gambling in Delaware is one step closer to becoming a reality. In March 2009, Delaware Governor Jack Markell requested an opinion from the Delaware Supreme Court regarding the legality of Delaware’s proposed sports lottery. On Wednesday, the Delaware Supreme Court ruled that the lottery does not violate the Delaware Constitution. Here are some questions you might have regarding this development, with a few answers.

I don’t understand. No lawsuit has been filed. Why is the Delaware Supreme Court giving an opinion on this? I’m having trouble deciding what to have for dinner tonight. Can the Delaware Supreme Court give me an opinion on that?

The Delaware Constitution authorizes the Governor to seek advisory opinions from the Justices of the Delaware Supreme Court regarding the constitutionality of any law passed by the Delaware Assembly. The Governor’s request does not need to be connected to any ongoing or potential litigation. Rather, as was the case here, the request can be made to “enable the Governor to discharge the duties of the office with fidelity.” The Opinions of the Justices are not binding in later litigation, but will likely be persuasive. And, to answer the second question, unless you’re the Governor and one of your dining options may violate the Constitution, you are out of luck.

What is the Delaware sports lottery?
Delaware introduced a football lottery back in 1976. That original lottery offered two types of parlay games. In the first game, players had to correctly select the winner of 7 NFL games in a given week. In the second game, players had to correctly select the winner of 3 or more NFL games with the point spread. The lottery lasted less than a year because the lottery commission had difficulty picking the correct point spread, which led to significant losses for the state.

Governor Markell pushed for a new sports lottery to help Delaware deal with its budget deficit. As proposed, the new Delaware sports lottery will consist of three games: First, a single game lottery, where players try to pick the winner of an NFL game with a point spread. Second, a total lottery, where players pick whether the total scoring in an NFL game will be over or under the total line. Third, a parlay lottery, where players pick the winner of multiple NFL games and/or multiple over/unders. In other words, the sports lottery allows people to bet on NFL games. As of now, it appears that the lottery will also use NBA games. If the sports lottery becomes a reality, Delaware will be the only state east of the Mississippi with legalized sports betting.

Did the NFL challenge the original Delaware sports lottery?

Yes. The NFL brought two broad claims in federal district court in Delaware against the original Delaware sports lottery. First, the NFL claimed that the sports lottery was an illegal form of gambling that violated the Delaware Constitution. Second, the NFL argued that the lottery violated the NFL’s trademarks, misappropriated the NFL product, and amounted to a “forced association with gambling.” In a 1977 opinion, Judge Walter Stapleton declared that the lottery did not violate the Delaware Constitution. He also rejected the bulk of the NFL’s intellectual property claims, but did require the lottery to make clear that the games were not affiliated with the NFL.

Why did the Justices of the Delaware Supreme Court determine that the new sports lottery is legal?

The Delaware Constitution prohibits all forms of gambling, except lotteries under state control that are used for the purpose of raising funds. Thus, the key question facing the Justices was whether the proposed sports lottery constituted a legal type of “lottery,” or an illegal type of gambling. This was precisely the issue addressed by Judge Stapleton in 1977, so the Justices relied heavily on his opinion. The Delaware Constitution does not define the term “lottery,” so the court relied on the definition used by Judge Stapleton, which explained that a lottery has three elements: a prize, consideration, and chance.

The question then became, does the sports lottery contain the necessary element of chance? There are (just in case you thought this would be simple) two competing tests to answer that question. Under the English rule, also known as the “pure chance” rule, no element of skill may be involved. Under the American rule, also known as the “dominant factor” rule, chance does not have to be the only factor, but must be the dominant or controlling factor.

Given that the majority of states (and Judge Stapleton) follow the American rule, the Justices adopted the “dominant factor” American test. For what it’s worth, it probably also helped that Delaware is in America. That led to the next question—is chance the dominant factor in betting on NFL games? To answer that, the Justices again relied on Judge Stapleton, who determined that chance was a significant factor because games are often decided by unpredictable factors such as “the weather, the health and mood of the players and the condition of the field.” As Judge Stapleton added, “no one knows that may happen once the game has begun.”

Interestingly, because Judge Stapleton’s opinion was limited to the parlay games of the original lottery, the Justices only concluded that chance was the dominant factor in the parlay games offered by the new sports lottery. Citing a lack of evidence, they did not offer an opinion as to the chance element present in the single-bet games, noting that the point spread may provide the requisite chance element, but may just “manage the money flow.” So, for now, the only form of sports gambling that the Justices have explicitly blessed is parlay games. Other forms of gambling—including single games—may also be legal, but the state will have to prove that chance is the predominant factor in those games.

I live in New Orleans. We have a casino in the middle of the city and drinks named after dangerous weapons and natural disasters. Surely we can have a sports lottery, too. Right?

Wrong. The Professional and Amateur Sports Protection Act (“PASPA”), passed by Congress in 1992, prohibits all states from operating any form of sports gambling operation, except those states operating sports wagering schemes between 1976 and August 31, 1993. Delaware, along with Nevada, Oregon, and Montana, fall within that exception.

But, all hope is not lost. The State of New Jersey, seeking to start its own sports lottery, recently filed a lawsuit challenging the legality of PASPA. According to the lawsuit, “PASPA represents a substantial intrusion into States’ rights and restricts the fundamental right of States to raise revenue to fund critical State programs. Moreover, it blatantly discriminates between the States.”

The NFL recently allowed its teams to sign licensing deals with state-sponsored lotteries, so they must be fine with the Delaware sports lottery, right?

Not quite. The NFL has approved team licensing deals with state-sponsored lotteries, so their anti-gambling stance seems to have softened, at least where it will provide an influx of revenue to their teams. But, the NFL has not softened on their anti-sports gambling stance. What’s the difference? Gambling on the NFL impacts the integrity of the game; playing scratch-off games does not. Here is how Commissioner Roger Goodell phrased it in his letter to Governor Markell urging him not to go forward with the Delaware sports lottery:

Professional sports involve athletic contests that must not only be honest, but be perceived by the American public as honest. NFL owners and players have worked hard from the league’s inception nearly 90 years ago to protect its integrity. There is no issue of greater importance to the league. That is why the NFL’s position on legalized sports gambling has remained consistent for decades. State-promoted gambling not only adds to the pressure on our coaches and players, but creates suspicion and cynicism toward every on-the-field mistake that affects the betting line.

The NFL prides itself on the parity they have achieved throughout the league and on their “on any given Sunday” mentality (which, I suppose, has now become an “on any given Sunday, Monday, Thursday, and, late in the season, Saturday”). The beauty of sports—and the NFL in particular—is that we don’t know who is going to win the game until they play it. The NFL wants to ensure that nothing interferes with that unpredictability. (Note that this unpredictability is precisely why Judge Stapleton determined that chance is the predominant factor in predicting the outcome of an NFL game.)

Of course, many argue that the NFL would be quite happy if Delaware and other states legalized gambling on NFL games. Gambling drives a tremendous amount of interest in games and keeps people watching even when the result of the game is no longer in doubt. Others point to the fact that the NFL’s position on the Delaware lottery is hypocritical. The NFL has a billion dollar television contract with ESPN, a company that provides predictions of NFL games with the point spread. As Governor Markell noted in his response to Commissioner Goodell: “the notion that the NFL has aggressively and actively fought against betting on its games is belied by the very programming the NFL indirectly endorses and from which it handsomely profits.”

Can the NFL prevent the Delaware lottery from using the schedule and scores of NFL games?

Unlikely. Judge Stapleton ruled in 1977 that use of NFL scores and schedules by the original Delaware sports lottery was a fair use, as long as no NFL trademarks were used and a disclaimer made clear that the games were not authorized by the NFL. Thus, expect the new lottery to refer to the matchups by city names—for example, Philadelphia vs. New Orleans, instead of the Eagles vs. the Saints.

On a scale from 1 to 10, what impact will this have on Brett Favre’s possible un-retirement?

6.

The StarCaps Saga Continues

As you might recall, five NFL players—Kevin and Pat Williams of the Minnesota Vikings and Charles Grant, Deuce McAllister, and Will Smith of the New Orleans Saints—were suspended for four games last year after testing positive for bumetanide. Bumetanide, a diuretic, is banned under the NFL Policy on Anabolic Steroids and Related Substances (the “NFL Policy”) because it can be used to mask the presence of steroids. The players claimed that they inadvertently ingested the bumetanide when they took StarCaps, an over-the-counter weight-loss supplement. Bumetanide is not listed as an ingredient in StarCaps, but the players proved that bumetanide was present in the StarCaps they consumed.

The players then appealed their suspensions to the NFL. Despite proof that the players did not intend to take bumetanide and did not know they were doing so, the NFL denied the players’ appeal because the NFL Policy makes the players responsible for whatever enters their body. As the NFL Policy states: “Players are responsible for what is in their bodies, and a positive result will not be excused because a player was unaware that he was taking a [banned] substance.”

The players then challenged the suspension in federal court in Minnesota (after a series of legal maneuverings in state court), where Judge Paul Magnuson granted a preliminary injunction blocking the suspensions until a full trial could be held. That trial was scheduled for June 15th in St. Paul, Minnesota. On Friday, however, Judge Magnuson ruled on the parties’ summary judgment motions. Here are some questions raised by the latest development in this case, with a few answers.

1. Who won the case??
Most of the headlines have declared this case a victory for the NFL, but here’s what Peter Ginsberg, attorney for Kevin and Pat Williams, had to say: "This gives my clients a terrific case, and Judge Magnuson kept alive the heart of our case.”

So, who is right? Well, to some extent, they both are. On the one hand, Judge Magnuson’s decision reaffirmed the sanctity of the NFL’s strict liability drug policy. The players raised a unique challenge to the NFL’s Policy. The players did not simply argue that it was unfair that they were punished for unknowingly taking a banned substance. Rather, the crux of the players’ argument was that the NFL knew that StarCaps contained bumetanide but failed to disclose this fact to the NFL players or the NFL Players Association. The players claimed that this constituted a breach of fiduciary duty, endangered the health of the players, and “fatally tainted the suspensions so that enforcing the [suspensions] would unfairly punish the players and condone the improper behavior and breaches of duty by the NFL, in violation of public policy and the essence of the CBA.” Judge Magnuson rejected these claims, noting that “there is no doubt that it would have been preferable for the NFL to communicate with players specifically about the presence of bumetanide in StarCaps. The NFL’s failure to do so is baffling, but it is not a breach of the NFL’s duties to its players.” Judge Magnuson also held that it is “not a breach of fiduciary duties to tell players all supplements are risky and that players should not rely on any supplement’s list of ingredients because that list may be incomplete.”

On the other hand, the decision was not a complete victory for the league. Pat and Kevin Williams also argued that the NFL Policy violated Minnesota state law. Judge Magnuson sent those claims back to be decided by Minnesota state court. So, while it may not be the “heart” of the Williams’ claim, part of their claim is still alive and will be decided by a local state court judge.

And, of course, the case isn’t quite over yet. The NFL has already filed a notice of appeal.

2. What are the Minnesota state law claims?
Pat and Kevin Williams brought claims under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) and the Minnesota Consumable Products Act (CPA). The DATWA is one of the most comprehensive and pro-employee drug testing state laws in the country. It sets forth a series of mandatory procedures designed to protect Minnesota employees and to ensure safe and reliable drug testing in the workplace. One of the provisions of DATWA forbids an employer from disciplining an employee for a first time drug offense without first giving the employee and opportunity to participate in a drug counseling program. Another provision of DATWA permits an employee to submit information to the employer that might explain the positive test result. The CPA prevents an employer from disciplining an employee for using “lawful consumable products…off the premises of the employer during nonworking hours.”

The Williamses thus claim that the NFL violated their rights under state law by:
1) Suspending them without giving them an opportunity for counseling;
2) Failing to give them an opportunity to explain the reason for the positive test; and
3) Suspending them for using a legal substance in the offseason.

3. What are the NFL’s potential responses to the state law claims?
The NFL will likely make two broad arguments.

First, they have already indicated that they will argue that the Labor Management Relations Act (“LMRA”) preempts the state law claims. Judge Magnuson held that the LMRA preempted every common law state cause of action involving the NFL collective bargaining agreement, because, as a general principle of law, the LMRA preempts state law claims that are “inextricably intertwined” with consideration of the terms of a collective bargaining agreement. Judge Magnuson held that the DATWA and CPA claims were not preempted because those state statutes establish rights and obligations that are independent of the collective bargaining agreement. In other words, the NFL and NFLPA were not permitted to agree to terms in a collective bargaining agreement that violate state law.

The NFL will likely argue that federal labor law permits the NFL and the NFL Players Association to maintain a national drug policy that applies equally to all 32 NFL teams and their employees throughout the United States. The NFL policy is designed to protect its employees and sets up procedures to ensure safe and fair drug testing. Thus, the NFL will likely claim that any suits brought under state laws designed to provide similar protection for employees—such as DATWA and CPA— should be preempted.

Second, if the preemption argument fails, the NFL could challenge the merits of the underlying state claims. Interestingly, according to Judge Magnuson’s opinion, the NFL concedes that its steroid testing procedures do not comply with the strict letter of Minnesota state law. But, the NFL “argues that the differences are negligible and do not require the Court to invalidate the Williamses’ positive tests for bumetanide.” Of course, we wouldn’t expect the NFL to announce that they think they’re going to lose the case, so let’s take a look at some of the arguments the NFL might make. I’ll take them in the order of the claims listed in question 2. The NFL can argue that:

1) Suspension without opportunity for counseling
The purpose of the counseling and treatment requirement in the DATWA is to ensure that Minnesota employers provide assistance to employees with substance abuse problems and chemical dependencies. Issues dealing with substance abuse and the use of recreational drugs are covered in the NFL Policy and Program for Substances of Abuse. That policy does provide for treatment for a first time offender. The situation here, of course, involved use of a performance enhancing drug (or, more specifically, a performance enhancing drug masker). Treatment and rehabilitation concerns for users of performance enhancing drugs are not as heightened (or, at a minimum, are different) than the concerns for users of addictive recreational drugs. The NFL can thus argue that the counseling requirement in DATWA was not intended to apply to users of performance enhancing drugs.

On a more technical note, the DATWA provision states that an employer cannot punish an employee based on a “test result that was the first positive result on a test…” The NFL could argue that the suspensions were based on the admissions by the five players that they used bumetanide, and not on the positive test results. It may seem like a stretch, but courts have narrowly interpreted the requirements of the DATWA and other similar state statutes.


2) Failure to provide opportunity to explain positive test
The NFL did give the Williamses an opportunity to explain the reason for the positive test. But, the reason given (inadvertent use) was not a valid defense under the NFL Policy;

3) Suspension for use of a legal substance
Bumetanide is only legal with a prescription, and the Williamses did not have a prescription. Also, the CPA allows employers to restrict use of legal substances if the restriction “relates to a bona fide occupational requirement and is reasonably related to employment activities.” The NFL can argue that prohibition of performance enhancing (or masking) substances, even if legal to the general public, clearly relates to a legitimate requirement of the NFL.

4. Were these state law claims raised in the earlier preliminary injunction hearings?
No, the state law claims were not at issue during the earlier preliminary injunction hearings and were not addressed by Judge Magnuson during these hearings. The Williamses filed their original complaint on December 4, 2008. That complaint did not contain the DAWTA and CPA claims. Judge Magnuson granted the preliminary injunction on December 11, 2008, before the Williamses raised the state law claims. At the oral argument, the Williamses attorneys did notify Judge Magnuson that they intended to amend their complaint to include the state law claims. These claims were included for the first time in the amended complaint filed by the WIlliamses on January 4, 2009.

5. Does Louisiana have a similar state law that protects Deuce McAllister, Charles Grants, and Will Smith?
Yes and no. Louisiana does have a state law that regulates drug testing of employees, but it specifically excludes drug testing conducted by the NFL. So, pending any appeals by the NFLPA, Judge Magnuson’s decision ended the case for the three Saints.

6. This ongoing litigation cannot be helping the relationship between the NFL and the NFLPA, can it?
I’ll let Judge Magnuson handle this one. Here’s an excerpt from his opinion:
It is clear that this situation arose because the parties to these cases do not trust each other. The NFL does not trust the Union or the players. The players and the Union do not trust the NFL. No one believes that the opposing parties have any common interests. The situation is deplorable and leads to suspicion and the sort of no-holds-barred litigation tactics so clearly on view here.

Other than that, Judge, how are they getting along?

Perjury in Congressional Hearings on College Bowl System and the BCS?

Congress conducted hearings on the college bowl system earlier this month. Now, reporters have raised questions regarding whether bowl defenders committed perjury or acted in contempt of Congress in claiming that most bowl games are organized by charitable groups and that tens of millions of dollars earned by the bowls go to charity. Yahoo.com stories are here and here, and BYU law professor Gordon Smith weighs in at the Conglomerate blog.

NPR on Sotomayor's baseball decision

Audio here.

New Sports Law Scholarship

Recently published scholarship includes:

Scott A. Anderson, A call for drug-testing of high school student-athletes, 19 MARQUETTE SPORTS LAW REVIEW 325 (2008)

Genevieve F. E. Birren & Jeremy C. Fransen, The body and the law: how physiological and legal obstacles combine to create barriers to accurate drug testing, 19 MARQUETTE SPORTS LAW REVIEW 253 (2008)

Jonathan F. Duncan & Kristina V. Giddings, Which Washington: Constitutions in conflict?, 19 MARQUETTE SPORTS LAW REVIEW 231 (2008)

Marc Edelman, Moving past collusion in Major League Baseball: healing old wounds, and preventing new ones, 54 WAYNE LAW REVIEW 601 (2008)

Evan Steele Fensterstock, Comment, Shin v. Ahn applies the primary assumption of risk doctrine to injuries sustained by golfers in the same group: negligence goes unpunished, 43 NEW ENGLAND LAW REVIEW 87 (2008)

Eldon L. Ham, The immaculate deception: how the Holy Grail of protectionism led to the great steroid era: why Congress should revoke baseballs antitrust boondoggle, 19 MARQUETTE SPORTS LAW REVIEW 209 (2008)

Daniel Healey, Fall of the Rocket: steroids and the case against Roger Clemens, 19 MARQUETTE SPORTS LAW REVIEW 289 (2008)

Sarah L. Horvitz, Travis Tygart & Paul A. Turbow, Dopers are not duped: USADA’s assistance to federal prosecutions ultimately protecting clean athletes is not state action, 19 MARQUETTE SPORTS LAW REVIEW 39 (2008)

Dionne L. Koller, From medals to morality: sportive nationalism and the problem of doping in sports, 19 MARQUETTE SPORTS LAW REVIEW 91 (2008)

T. Matthew Lockhart, Comment, The NCAA should adopt a uniform student-athlete discipline policy, 16 UCLA ENTERTAINMENT LAW REVIEW 119 (2009)

Robert D. Manfred, Jr., Federal labor law obstacles to achieving a completely independent drug program in Major League Baseball, 19 MARQUETTE SPORTS LAW REVIEW 1 (2008)

Richard H. McLauren, Corruption: its impact on fair play, 19 MARQUETTE SPORTS LAW REVIEW 15 (2008)

Robert Moore, The Interaction Between the Americans with Disabilities Act and Drug and Alcohol Addiction in Sports, 16 Sports Lawyers Journal 231 (2009)

Will Pridemore, Book review, Reviewing David Ezra, Asterisk: *Home Runs, Steroids, and the Rush to Judgment, 19 MARQUETTE SPORTS LAW REVIEW 345(2008)

Abbas Ravjani, The Court of Arbitration for Sport: a subtle form of international delegation, 2 JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW 241 (2009)

David G. Roberts, Comment, The constitutionality of the NFL patdown policy after … Johnston v. Tampa Sports Auth. and Sheehan v. The San Francosco 49ers, Ltd., 58 CASE WESTERN RESERVE LAW REVIEW 979 (2008)

Shayna M. Sigman, Are we all dopes? A behavior law & economics approach to legal regulation of doping in sports, 19 MARQUETTE SPORTS LAW REVIEW 125 (2008)

Michael Straubel, The International Convention Against Doping in Sport: is it the missing link to USADA being a state actor and WADC coverage of U.S. pro athletes?, 19 MARQUETTE SPORTS LAW REVIEW 63 (2008)

Judge Sotomayor's Sports Law Opinions

It's official: as Professor cummings predicted earlier this month, the President will nominate Second Circuit Judge and die-hard Yankees fan Sonia Sotomayor to the Supreme Court. Perhaps more than any Supreme Court nominee in history, Judge Sotomayor has a long record of adjudicating major sports law cases, dating back to her time on the district court. Among her notable sports law cases:

Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290 (2nd Cir. 2008) (concurring) (action by league against manufacturer of plush bears with team logos)

MasterCard Intern. Inc. v. Federation Intern. de Football Ass'n, 239 Fed.Appx. 625 (2nd Cir. 2007) (panel member) (action by credit card company claiming breach of contract providing for continued sponsorship of World Cup)

Clarett v. National Football League, 369 F.3d 124 (2nd Cir. 2004) (antitrust action challenging draft eligibility rules)

Gilbert v. Seton Hall University, 332 F.3d 105 (2nd Cir. 2003) (dissenting) (personal injury claim by college rugby club athlete)

Ortiz-Del Valle v. N.B.A., 190 F.3d 598 (2nd Cir. 1999) (panel member) (gender discrimination case by female NBA referee)

Boucher v. Syracuse University, 164 F.3d 113 (2nd Cir. 1999) (panel member) (Title IX claim by female college athletes)

Tasini v. New York Times, Corp., 981 F.Supp. 841 (S.D.N.Y. 1997) (copyright action by freelance writers challenging electronic republication of Sports Illustrated stories)

Silverman v. Major League Baseball Player Relations Committee, 880 F.Supp. 246 (S.D.N.Y. 1995) (unfair labor practice claim against baseball owners)

Jaguar Cars v. National Football League, 886 F.Supp. 335 (S.D.N.Y. 1995) (trademark infringement suit by car company over naming of Jacksonville Jaguars football team)

Pete Rose and the Hall of Fame

A commenter to my post on steroids and the Hall of Fame asks about Pete Rose. I thought it warranted a new post, rather than a comment. I actually wrote about this point three years ago.

Rose should not be in the Hall, because different rules apply. Rose is ineligible for the Hall under Rule 3E, which bars selection of anyone who is on MLB's permanently ineligible list. Rose is on that list because he agreed to be placed on the list (which he did to avoid the now-we-know-was-inevitable finding that he did, in fact, bet on games involving the Reds). There is no character/integrity/sportsmanship debate to be had with Rose--he is out because the rules (properly, I believe) keep him out.

But as the commenter notes, Rose was suspended for post-playing conduct. This raises a couple of points.

First, I still agree with the current outcome under Rule 3E. The ineligible list is the ineligible list for Hall purposes, regardless of when or why the suspension occurred.

But note the anomalies. Rose retired as a player in 1986 and would have been on the ballot for the first time (and almost certainly elected) in 1992. Suppose his gambling had not been revealed until 1995? I cannot find whether there is a procedure for removing someone from the Hall if that person is suspended from the game subsequent to his induction. So we could ask whether it makes sense to deny admission to a player based on a suspension for post-playing conduct when we would not remove him from the Hall for the same conduct. Actually, this happened in miniature in the early 1980s, when Willie Mays and Mickey Mantle were barred from any official involvement with MLB because they held PR positions with casinos (although Commissioner Bowie Kuhn had meant the suspension only to apply to formal employment and not to all involvement in the game). The Hall did nothing and the "suspension" was lifted after two years. Worse, under my counter-factual, Rose might not have been removed from the Hall (if no such procedure exists) even if had been discovered, post-induction, that he had gambled as a player.

Second, the commenter implicitly raises a different counter-factual: Suppose there were no Rule 3E (actually, the Rule did not exist until 1991, enacted specifically to ensure that Rose and the rehabilitating Shoeless Joe Jackson did not make it in). Now we squarely have the situation the commenter suggests: Baseball-related, post-playing, against-the-rules conduct, subject to the integrity/sportsmanship/character clause.

I say he still should not get in. First, I would not divide his baseball conduct between playing and non-playing conduct; it is all what he did as part of baseball and whether he violated specific rules of the game. And he did. Note that this makes his tax evasion conviction/prison term irrelevant, because that was non-baseball.

More prominently, Rose violated a specific rule of MLB through acts that go to the basic integrity of the game in a way that steroid use does not. The game's integrity demands that every player go all out to win every game to the best of his ability and effort, for the sake of winning (and the intrinsic values associated with winning), within the established rules of the game. A player who uses steroids or other PEDs is trying to maximize his performance and his success--that is the basic argument in the Zev Chafets piece that I originally linked to. Gambling on games involving one's own team (even if always to win) runs contrary to that understanding of the game's integrity.

Hall of Fame, Steroids, and Cheating

Zev Chafets argues on ESPN that steroid users should not be kept out of the Hall of Fame. His argument is that steroid users are no different than players of past generations, many of whom engaged in questionable activities off the field (consorting with gamblers, the Klan, and gangsters) and were "happy to use any substance they thought would give them an edge" on the field. As to the latter category, Chafets points to Hall of Famers of the past using non-anabolic steroids, amphetamines, monkey testosterone (hey, it was 1899), and other substances. He argues generally that we have to judge one generation against itself, not past generations. So Barry Bonds's greatness, even if steroid-enhanced, must be measured against his contemporaries, many (most?) of whom also were using steroids.

I am generally sympathetic to the argument, so long as it focuses on on-field behavior (I think off-field behavior is irrelevant and, to the extent Chafets relies on past greats' off-field behavior as evidence, I reject the consideration). And I agree that the visceral rejection of the use of science and chemicals to improve performance (while accepting and encouraging other ways of improving performance, including different science and different chemicals) is too short-sighted.

But I think Chafets ignores one point: Steroids are against the rules of baseball (also illegal more broadly, although I do not necessarily care about that), while these other substances were not specifically banned by baseball at the time. Rule 5 of the Hall Rules requires consideration of "integrity, sportsmanship, character," which must be understood as a prohibition on cheating within the game; cheating necessarily means breaking the rules. There is, I would argue, a difference between "doing what was necessary to stand above their peers" when it involved breaking the operating rules of the game (i.e., cheating) and when it did not. So, to the extent players were using steroids in violation of MLB rules, I disagree with Chafets' conclusion; to the extent they were not banned by the game (regardless of what federal law had to say about them), I think he has it about right.