Vol. 11 No. 6 (June 2001) pp. 278-282.

LEVELING THE PLAYING FIELD: HOW THE LAW CAN MAKE SPORTS BETTER FOR FANS, by Paul Weiler. Cambridge: Harvard University Press, 2000. 367pp. Cloth $29.95. ISBN: 0-674-00165-6.

Reviewed by Jack E. Call, Department of Criminal Justice, Radford University

Most of us who are sports fans see sports as a diversion. We follow our favorite sports and players because the play is exciting and fun to watch and the games themselves are relatively uncomplicated. This is a diversion because it is NOT work. Most of us sports fans are aware, of course, that there is another side to sports-the business side-that is not so uncomplicated. In the last forty years or so, professional sports have witnessed the rise of extremely complicated rules concerning free agency, arbitration, revenue sharing, salary caps, lockouts, and the like. Many of us sports fans are surprisingly unknowledgeable about most of the rules concerning such matters. In part, this is because there are four major professional sports and the complicated, detailed rules on the business side of those sports seem to change radically every five or six years. In the final analysis, however, I suspect that the reason why most of us sports fans do not know a great deal about the business rules of professional sports is because learning the ins and outs of those rules is hard work-and we turn to sports as a diversion from work.

Some of us sports fans who have been unwilling to expend the mental effort required to keep abreast of periodic changes in the business rules of professional sports sometimes wish we had been willing to be more diligent in learning about these matters. We realize that there is much about our beloved sports that we would understand better if we only understood the business rules better. However, we had made a conscious decision not to invest time in reading the newspaper and magazine articles discussing these things. The proposals put forth by owners and players were extensive, detailed, and boring, plus they kept changing. What we would have liked was an understandable account of the results of these negotiations after they were completed. It would also be good if this account placed the latest results in historical perspective and allowed us to compare the business rules of professional baseball, football, basketball, and hockey. If that is the way you have felt, then LEVELING THE PLAYING FIELD is the book you have been awaiting.

The author of LEVELING THE PLAYING FIELD, Paul Weiler, is a law professor at Harvard Law School. In addition to sports law, he teaches labor law and entertainment law. His understanding of those two other areas of the law greatly informs his understanding of sports law. His goals in LEVELING THE PLAYING FIELD are broader than my comments in the previous paragraph might suggest. His book is divided into three sections: The Integrity of Sports, Owners Versus Players, and Owners Versus Owners-And Fans.

THE INTEGRITY OF SPORTS: In this section, Weiler deals with the "moral" issues confronting professional sports:

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disciplining of players for misconduct, honoring the civil rights of athletes, dealing with gambling, dealing with drug use, and dealing with athletes as role models.

After discussing several recent high profile incidents of player misconduct, such as Latrelle Sprewell's assault on his coach and Roberto Alomar's spitting on an umpire, Weiler recommends that players be suspended for their misconduct during the regular season, rather than during playoffs, regardless of when their misbehavior occurs, because players suffer greater financial harm when their suspension results in a loss of a proportion of their salary. He also recommends that players be punished more severely for assaulting fans than for assaulting coaches and other players. [The nature of these recommendations brings out an important feature of this book. The book's subtitle is a bit misleading. Much of the law discussed and suggested in the book is private law-the rules created through negotiations between owners and players' unions. However, some of Weiler's most important recommendations, especially dealing with the economics of professional sports, involve changes in public law].

In his chapter on honoring the civil rights of athletes, Weiler discusses (briefly) the history of racial discrimination in professional sports and concludes that, notwithstanding a history of "invidious" racial discrimination, professional sports have probably made more progress in this area than have other segments of our society. He also discusses accommodation of disabled athletes in sport and recommends that they be permitted accommodations that do not give them an unfair advantage over other athletes in their sport. This is essentially the approach adopted (after the publication of this book) by the Supreme Court in the Casey Martin case, an outcome that Weiler recommended.

In his chapter on gambling in sports, Weiler sees gambling as a larger social problem that can be controlled best (inside and outside of sports) by instituting a system in which all gambling could be done only with the use of a national gambling credit card. The card would be purchased from the government, with limits on how much a person could spend and lose on gambling every year (what Weiler calls an individual gambling cap). He also discusses the Pete Rose case, the most notorious recent case of gambling by a sports figure, and chastises major league baseball for failing to distinguish between betting on one's own team to WIN and betting on that team to LOSE. He even argues that many baseball contracts, in effect, sanction a form of betting on one's own performance by including incentive clauses that provide higher compensation for achieving certain levels of accomplishment.

In chapters on drug use and athletes as role models, Weiler concludes that athletes are role models because many people do look up to them and that is an important part of what makes sports popular and financially successful. This both justifies and demands that sports deal with immoral behavior by athletes, including recreational drug use. Sports generally deal harshly with drug use by athletes. Where it has gone wrong is in failing to deal as harshly with other types of immoral behavior by athletes, especially domestic assault.

OWNERS VERSUS PLAYERS: The development that did more than anything else to transform the economics of professional sports was the development of player unions. Players in all four

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professional sports began to get really serious about organizing themselves around the same time-in the 1950's and 60's. Initially, the players saw their efforts as aimed at the creation of players' associations, rather than unions. However, as their efforts to improve the economic status of players were met with intransigence by the owners, the players began to see the need for true collective bargaining efforts.

The biggest change brought about in sports economics in the last 30 years-through a combination of collective bargaining and antitrust litigation-is elimination of the reserve clause for veteran players. This is another way of saying that veteran players can now become free agents. Although many fans complain that free agency has resulted in obscenely high salaries for players, an equally obscene increase in ticket prices, and a decline in competitive balance, Weiler presents convincing arguments that the high salaries and high ticket prices are the result of increased demand by consumers and that competitive balance has actually increased. However, Weiler also discusses several recent developments in professional sports that suggest that unrestrained free agency is not an economically sound idea. As a result, Weiler advances the notion of establishing "payroll standards." This approach would involve the negotiation by players and owners of a percentage of league revenue that would be expended on player salaries. A salary "cap," designed to insure competitive balance among teams, would also be established. To enforce it, the league would impose a salary tax on teams that exceed the cap, and teams that do not exceed the cap would share the tax.

Weiler also notes, however, the experience in baseball where some teams, most notably the Florida Marlins and Montreal Expos, have concluded that they can still turn a profit by drastically reducing their payrolls. The problem with this is that it undermines competitive balance. Thus, Weiler also suggests imposition of a salary FLOOR in addition to a cap, also enforced through a negotiated salary tax.

OWNERS VERSUS OWNERS-AND FANS: If the advent of player free agency is the most dramatic recent development in the relationship between owners and players, "franchise free agency" fills that position in the relationship owners and owners-and the fans. Weiler uses this term to refer to the trend whereby sports franchises use the threat of moving the franchise to another city as a means of inducing the locality where the franchise is presently located to build a new stadium or arena for the franchise and also allow the franchise to receive the revenue that flows through the facility (including revenues from non-franchise events, such as concerts and trade shows). Localities have typically capitulated to these demands, financing new facility construction through a variety of means-lotteries, increased sales taxes, visitors' taxes, increased taxes on alcohol and cigarettes, and increased taxes on nightclubs and restaurants.

Weiler contends that these extortive tactics by team owners have placed an inappropriate financial burden on local citizens. The solution he proposes is a congressional statute that would prohibit the use of tax funds to build facilities for sports franchises. The one exception to this prohibition would be to permit localities to use taxes on the products stemming from the sporting activity itself, such as taxes on concessions, parking for the facility, ticket prices, and the like. This would mean that any tax revenues used for facility

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construction would come from those persons attending the games, and not from citizens with no interest in the sporting activity. It would result in the use of these taxes (and only these taxes) and other revenues from the facility's operations to finance the construction or improvement of stadiums and arenas. Weiler makes a strong argument that nowhere near all the revenue generated by these facilities would be needed to pay construction costs. He cites the experience of the NFL Carolina Panthers to argue that revenue generated from the sale of personal seat licenses (licenses to purchase season tickets) alone would pay for all or nearly all of the construction costs.

The last major topic addressed by Weiler is the need to protect fans from some of the adverse consequences of the monopolistic position enjoyed by professional sports. The history of professional sports suggests that fans and players all benefit when the major league in any sport faces competition, be it the United States Football League, the World Football League, or the World Hockey Association. Unfortunately, every one of these challenges to the monopolistic position of the National Football League (NFL) and the National Hockey League (NHL) has resulted in merger with the pre-existing, dominant league. In the absence of competition, Major League Baseball (MLB), the NFL, the National Basketball League (NBA), and the NHL have engaged in some practices that have not benefited the fans, either financially or in terms of fans' access to the leagues' product.

The prime example of this involves the broadcast rights to games. The NFL, NBA, and NHL have limited the ability of individual franchises to televise their games, thereby limiting fan access to games and inflating the cost of products advertised on the games that are televised (which command a higher price per game because of the limited number of games those leagues permit to be broadcast). MLB, on the other hand, does not limit the ability of teams to televise their games, but this has resulted in a huge disparity between what some teams receive in local broadcast rights ($60 million for the Yankees and Braves compared with $6 million for the Royals and Expos).

The solution proposed by Weiler is greater revenue sharing amongst teams in baseball and less revenue sharing amongst NFL teams. He does not flesh out many of the details of these new arrangements because he believes it is appropriate for these changes to be worked out through negotiations amongst the owners and players (private law), rather than through changes in public law. He believes that the leagues should be motivated to correct the existing problems in revenue sharing, because "if they solve [them], they will reap the benefits of a more attractive sport" (p. 314).

Weiler's most dramatic suggestions are saved for last and are so revolutionary that even he recognizes (rightfully) that there is very little chance of their being adopted. First, he proposes that, "every sport expand into every city that seeks a franchise and meets objective qualifying criteria" (p. 315). Second, he proposes dividing each sport into leagues of no more than 8-10 teams (while still maintaining some sort of overall governing body that would deal with rules of the sport and schemes for determining a champion in the sport). This is the best way to maximize the benefits that flow naturally from maximum competition. In Weiler's view, it would make most of the other proposals in the book unnecessary, but those earlier proposals are important because his last two

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revolutionary proposals are not politically feasible. Interestingly, Weiler believes that the major obstacle to bringing about these radical changes is that fans do not understand the basics of sports economics and law, as explained in this book. If they did, they would realize that they are the primary victims of the monopolistic practices of professional sports and pressure Congress to "open up" professional sports in the ways Weiler proposes.

CONCLUSION: LEVELING THE PLAYING FIELD succeeds in increasing the serious sports fan's understanding of the critical issues confronting contemporary professional sports and in explaining the economic and labor relations history of the four major professional sports. It suffers from one major shortcoming-there are no footnotes or bibliography. The reasons for this are not explained. Part of the explanation may be that the intended audience for the book is the general public, and it is assumed that they would find footnotes distracting. Of course, notes at the end of the book would not be distracting at all. Another explanation might be that the space taken up by notes and a bibliography would greatly increase the cost of publication of the book and therefore the price of the book. However, there were numerous instances where I found myself interested in the source of statistics or historical information presented by Weiler. If cost was the issue, perhaps Harvard University Press could place this information on its website so Weiler's readers (who were so inclined) could explore further the very important issues Weiler discusses.