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1. open thread: new england patriots vs. miami dolphins, week 16

   
   
   batches of rain are already moving through the area. there's a small line that should push through this afternoon with the main assault expected this evening -- with a little luck after the game. the latest forecast predicts winds slightly lesser than previous reports from 20 mph down to 15 mph. the boston herald's john tomase reports that your new england patriots will honor the 2007 world series champion boston red sox before the game. sox owner john henry, and players david ortiz, curt schilling and kevin youkilis will be in attendance. a little extra mojo can't hurt. -- vs. -- new england patriots vs. miami dolphins gillette stadium, dec. 23, 4:15 p.m. still no word on the head referee or his crew. believe it or not, i'm heading to the game. i've been very fortunate this year acquiring tickets. my only regret is that i will not be here for the open thread. that mean we need you, our faithful readers, to run with the ball again. if you've alread created an account, you can comment below. (please follow our community guidelines.) it's so close, you can almost taste it. but first we have a division rival and defender of the only undefeated season in league history. let's hear it out there! enjoy the game, and go patriots!!
   
   




2. the war of words begins

   
   
   bill belichick fires a salvo back at matt walsh on cbs news tonight: for him to talk about game planning and stategy and play calling and how he advised coordinators, it's embarrasing, it's absurd. he didn't have any knowledge of football. he was our third video assistant. and this: on matt walsh saying he was told by superiors to avoid detection: "i never told anybody to do that. all i can tell you is what the facts are. you look at the tape. you see him filming the game. you tell me how discreet it is." finally: on videotaping signals after the league's 2006 memo: "i made a mistake. i was wrong. i was wrong." the strategy is clear - discredit walsh as a low level, peripheral, support employee with little to no knowledge of football operations.  oh, let's not forget this statement from mike martz, head coach of the rams during the xxxvi superbowl: "i was stunned at matt walsh’s allegation that he was on the sideline in new england patriots apparel during our walk-thru. i find that insulting, disturbing and a slap in the face to both our team security and nfl security, who both do outstanding jobs. i promise you that if he was on the sideline, he was not in new england patriots apparel because he would have been identified. there is a boatload of information out there that i won't cut and paste in here, but it's clear to me the campaign to discredit walsh has begun and it'll be a "he said, she said" kind of thing.  who you believe depends on where you sit in this whole mess.  hate the patriots?  walsh is credible and the victim.  love the patriots?  walsh is a disgruntled employee looking for his 15 minutes of fame. belichick continued to tape after being instructed, in a 2006 nfl memo, it was against the rules.  he was caught and both himself and the organization were punished.  i've already written that i believe the nfl totally botched this thing and are circling the wagons because noone wants our fine government investigating.  ross tucker, a writer for si.com and former offensive lineman had this to say: "bending rules is a fact of life in the nfl," tucker writes. "from ballboys allowing the opposing team's footballs to get soaked, to hotel employees scouring rooms for game plan sheets after a team heads to the stadium, there are several ways to get in on the act. seemingly no organization, no matter how accomplished or destitute it may be, is immune from the win-at-all-costs mentality. some teams cheat and never get caught. others simply refrain from breaking the rules but bend them right to the breaking point." hmm...  what a tangled web we weave.  who you believe is a matter of where you sit.  bring it on, arlen.  let's clear this thing up.
   
   




3. sports law blog on facebook

   
   
   if you are among our readers who use facebook to stay in touch with classmates and friends, jason chung of the project on law and mind sciences at harvard law school has created a facebook group devoted to sports law blog. our thanks to jason for putting it together and we hope you check it out if you are a facebook user.
   
   




4. unsere fuЯball-kommentatoren: und wieder ?mit? dabei sein

   
   
   fuЯball ist zwar im laufe der jahre immer schneller geworden, doch das spiel bleibt in seiner schlichten schцnheit erzдhlbar. auЯer von unseren fernseh-kommentatoren, die einen neuen trick entdeckt haben, um sich um vollstдndige, wesentliche sдtze zu drьcken. faz.net - homepage | politik | gesellschaft | wirtschaft | finanzmarkt | sport | feuilleton | reise | wissen | auto | computer
   
   




5. authority through morality: nike can terminate michael vick's endorsement contract

   
   
   a couple of weeks ago, i wrote about the morals clause in michael vick's endorsement contract with nike. despite publicly supporting vick immediately after his indictment, the company suspended vick's contract. the clause's language entitled nike to do so.at the time, however, the exact language of the clause was unknown, and we were left to speculate its possible meaning. we wondered if, for instance, nike could terminate the contract based alone on vick's indictment. another and more contentious possibility would be that nike could terminate the contract based on public outrage directed at vick. that speculation generated some outstanding reader comments, and i appreciate all of those who commented.thanks to the intrepid reporting of cnbc's darren rovell, we now know the language of vick's morals clause. over on sportsbiz, rovell reveals that if vick is indicted or if he "causes harm to company," nike can unilaterally terminate the contract. in other words, nike could have already terminated vick's contract based on his indictment, but has not. instead, it has suspended the contract. it will not pay vick while the contract remains suspended and could still terminate the contract at any time.as rovell discusses, vick's particular morals clause is somewhat unusual, as historically, moral clauses usually require a conviction before a contract can be terminated. on the other hand, as rovell notes, a recent trend in endorsement contracts between athletes and companies has been to characterize an indictment as a sufficient condition for termination (for a related television interview with rovell, click here). for another recent trend on morals clause, check out a harvard law bulletin article on "reverse morals clauses."rovell's article also poses an interesting poll question:nike has suspended vick. knowing this information, do you think it will help their brand at all to terminate him?interestingly, 80% of readers have thus far said "yes." granted, the poll is not scientific, but any thoughts on why folks do not see a suspended contract as a sufficient-enough separation for nike from vick? put another way, is nike doing the right thing by not terminating the contract until more information about vick's potential criminal exposure emerges, or should it have already severed all ties with him?
   
   




6. extreme sports . . . extreme liability?

   
   
   last week's spectacular fall by skateboarder jake brown during the x games in los angeles was a scary sight. as reported, brown scaled a 62-foot tall, 293-foot long "mega ramp" where he attempted two full rotations, a move no one has ever attempted. once he completed the move, he lost control and the momentum carried him away from the ramp wall into open air, where he fell the equivalent for five stories into the wooden base.according to the new york times report, he landed with such force that some thought he died or was paralyzed. fortunately, he was able to walk from the scene, but suffered a bleeding liver, two sprained wrists, a bruised lung and whiplash to his back and neck. still, he was very fortunate.an earlier post by greg on the subject of risk in a hawaii case involving the disappearance of a kayaker, noting correctly, that the old doctrine of assumption of risk in the recreational sports industry. however, this case involves some interesting questions and although brown is a professional athlete in a dangerous sport, i do not think that the organizers of the sports can use the assumption of risk defense to a dismissal to a trial on the liability question.presumably, brown signed a waiver of liability or a release before competing in the event, which precludes a lawsuit in most states. also known as exculpatory clauses, they may be used to establish "express" or "primary" assumption of risk, (source: lexis, by subscription only) meaning that through a contractual agreement, the competitor agrees to accept the risk of harm from the race organizer's negligent conduct and the participant is barred from recovery. it's the consent, rather than the inherent dangerousness of the activity that counts. on the other hand, many states have recognized "secondary" assumption of risk, where the participant acts unreasonably and thus contributes to the injury. this is more risk-oriented and focuses on the acts, rather than the agreement. the law regarding the validity of exculpatory agreements varies from state to state. some states like new york and california have eliminated or merged the concept comparative negligence), others have remained the common law exclusion from liability. but let's assume that the california courts will uphold the validity of such clauses. i don't think such a clause would result in an easy dismissal of a claim. i take "negligent conduct" used in the definition to mean negligent conduct during the race. for example, if there were uninspected areas of the competition area or the ice was not properly cleaned in a speed skating event. here, the article notes that "in action sports, there are no widely recognized governing bodies or organization" to establish policies as to the level of safety of competitors. this differs from other sports, which, for better or worse, have established rules prohibiting certain dangerous conduct, by either the types of equipment worn or penalties for actions that exceed the rules. i know that is far from perfect, given the concussions and brain injury found by retired or current nfl or nhl players, but it gives a blueprint. significantly, courts have ruled that event organizers may have negligence liability if they have not executed emergency plans or requirements that participants wear standard safety equipment. this is the key -- and it could trump assumption of risk, in my view. if extreme sports organizations do not furnish such a blueprint, does it give a license for athletes to push more and more dangerous buttons in the pursuit of victory? if so, does that impose liability?service provider liability (such as for school athletic directors, principals, district supervisors) is different from cases against other competitors or coaches and of course different from an act of negligence during the event itself. the lack of uniform organized standards, takes the liability to another level. call it intent or recklessness or a public policy question. it becomes fundamental to the game itself, rather than the failure of upholding standards.it also places espn, the broadcaster and owner of the x games in a position as a potential defendant. the cable network has a loyal fan base and the highlight of brown walking away from the accident gave both him and the sport publicity. would that attract others to do more and more dangerous activities to bank on this? finally, here's a thought. to avoid this confusion, why not create a presumption of liability, much like the "inherent dangerousness" standard found in strict products liability to control to situations where no quality control standards exist? in other words, does the lack of any safety standards presumes liability? complete elimination of assumption of risk for cases involving injuries to professional athletes is a mistake. but in a sports that generates millions of dollars and is viewed by millions of fans on the most important sports network, the failure to come up with governing standards for competition could result in significant injuries and a lawsuit calling attention to this problems.brown was lucky he would not be a plaintiff in that kind of lawsuit.
   
   


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