Regalado, Samuel O., and Sarah K. Fields, eds. Sport and the Law: Historical and Cultural Intersections. Fayetteville: The University of Arkansas Press, 2014. Pp. ix+166. Notes, contributors, and index. $34.95 paperback
Reviewed by Erica Zonder
Sport is a multi-billion dollar industry, and college sport in particular generates staggering amounts of revenue. In 2011-12, the NCAA itself generated revenue of $871.6 million. Therefore it is no surprise that a case like Ed O’Bannon’s has wound its way through the United States court system, with a potential Supreme Court review next. Several years ago, Ed O’Bannon, former UCLA basketball standout, discovered that his likeness was being used in the Electronic Arts (EA) NCAA Basketball game, and he was not being compensated for that use. Sam Keller, former quarterback for Arizona State and Nebraska, had a similar issue with EA’s NCAA Football game. Their separate and now combined case(s) has the potential to change the landscape of “amateurism” in college sport. At the very least, the case has already prompted the NCAA to change their policies in terms of paying for the “cost of attendance,” and eliminated the use of controversial form 08-3a, which perhaps granted the NCAA the right to use such likenesses in perpetuity. There are also antitrust implications to the O’Bannon case, as the plaintiffs allege that this in-perpetuity-use of student-athletes’ likenesses is anticompetitive and exclusionary, and therefore an unreasonable restraint of trade (p. 141). While Daniel A. Nathan rightly points out in his O’Bannon essay, “A Matter of Basic Fairness,” by “not having a crystal ball,” we don’t know what the outcome of the case will be (p. 153); what we do know is that the O’Bannon case is another in a long line of sport-related lawsuits that have changed the landscape of sport, and by extension, arguably “helped to create change in American society” (p. xiv).
Sport and the Law: Historical and Cultural Intersections is a collection of essays that examine the impact of legal decisions on sport and, by extension, society. It is organized into three sections: “The Burger Supreme Court and Sports,” “Antitrust Law and Sports,” and the catch-all “The Impact of Sport on Law.” These sections are not mutually exclusive, and the editors point out that many of the essays “transcend” the theme of their section and further could be placed in multiple sections (p.xiv). Antitrust law in particular is a common theme, as we see in the baseball “trilogy” and Flood v. Kuhn, as well as in Haywood v. NBA (both in Burger section), Gardella v. Chandler and Frantz v. United States Powerlifting (Antitrust section), and O’Bannon (Impact section). The Flood essay is particularly powerful, as author Richard C. Crepeau emphasizes, in “The Flood Case, 1972,” that the impact of the litigation far outweighed the result in that the case was “a good nudge forward” and “part of a larger story of significant and long-range change in labor-management relations in baseball” (p. 41). This speaks to another common theme of the book, the emphasis on the impact of the legal decisions beyond the law itself. The Haywood case is still relevant today, as Sarah K. Fields points out in “Odd Bedfellows,” as the change in the four-year rule for entry into the NBA draft eventually led to the nineteen year-old/one year beyond high school graduation age limit (which is now being challenged). Fields also emphasizes the human side – offering a look at the “surprisingly similar” lives of both Justice Douglas and Spencer Haywood (p. 31).
And this is perhaps the best justification for the aforementioned three-section grouping of this book – the Haywood, Flood and Ali cases grouped into the Burger section (and specifically 1971-1972) particularly emphasize the culture in the United States at the time, in terms of civil rights, protests, and even war, and all three essays offer a look behind the curtain – at the justices themselves – in order to provide context for the resulting decisions. If Justice Blackmun was not an “avid” or even “crazed” baseball fan, would he have found a way past stare decisis and the antitrust “aberration” (pp. 37-38)? Was the Flood decision also influenced by vote trading to postpone “the abortion decision,” i.e. Roe v. Wade (p. 38)? If Justice Harlan’s thinking had not been impacted by reading the Autobiography of Malcolm X, would Muhammed Ali’s objection to fighting in Vietnam been viewed as merely selective and further not sincere? Did Douglas’s and Black’s objections to the Vietnam War play a major role in the Ali decision? These are insights that are not often included when considering these landmark cases and provide welcome context to the decisions.
Just as the Haywood decision still resonates today, so too does the case of Renee Richards. Anne L. DeMartini examines Richards v. USTA and the issues surrounding sex verification testing. And, like Flood, the importance of the result is overshadowed by what came next. The court’s decision in Richards “was not a broad sweeping victory for transgender athletes’ access to athletic participation,” and was, according to Richards herself, an individual decision for her situation” (p. 106). Nevertheless, like Flood in terms of labor relations, it perhaps started a movement. Transgender rights and issues are at the forefront of the nation’s consciousness today, as one needs to look no further than HB2 in North Carolina (the “bathroom bill”) or the 21 transgender women killed in 2015. DeMartini does an excellent job of tying Richards to current day concerns, including the recently-overturned LPGA “female at birth” policy, IOC and NCAA guidelines, Pat Griffin and Helen Carroll’s recommendations for high school athletes, and even Caster Semenya’s (who is not transgender) eligibility for international track competition.
Similarly, in “Clean Up the Abuses,” Arturo J. Marcano and David P. Fidler importantly address issues surrounding the development and subsequent signing of international baseball players, specifically in Latin America, including the lack of an international draft, and further “cost control” changes that serve to actually exacerbate what the authors call the “deliberate targeting of children” by Major League Baseball (p. 133). The “vast majority” of Latin American prospects now receive small bonuses (p. 132), and one wonders if the “ambitious agenda” of the latest MLB Basic Agreement, which also established an International Talent Committee (p. 131) to address these issues, will have a positive impact of the “abuses” that these Latin American prospects face. Like O’Bannon, the MLB in Latin America is truly a work-in-progress with the hope of “more reforms potentially emerging” (p. 133). And, like O’Bannon and Richards, and even issues surrounding powerlifting post Frantz, this in-depth analysis is why this collection of essays is important beyond the law itself, as a way to interconnect “threads that weave the law and American sport and society together” (p. xv).
As the editors Samuel O. Regalado and Sarah K. Fields point out, this book is intended for “both an educated lay and scholarly audience” with the intent to place sports case law into a “detailed historical and cultural context that breathes life to the legal decisions” that had a “profound impact on American sport, law and society,” (p. xv). They succeeded. Most of the essays are heavy on cultural and social significance, or even future implications, while perhaps a little light on the law or legal rulings themselves – which seems appropriate when considering the era(s) of the decisions. This book should be of great interest for sport historians and American studies’ scholars (more so than legal scholars or sport law students), in particular ones with an interest in sport law history, and should be recommended and utilized as such.
Erica Zonder is an Assistant Professor of Sport Management at Adrian College. She earned a J.D. from the University of Michigan and a Masters of Science in Sport Management from Eastern Michigan University. She can be reached at firstname.lastname@example.org and can be followed on Twitter @EricaZonder.