Monday, August 30, 2010

testing Post

MAINEiacs Head Coach JF Houle joined the Jeff and Matty on The Weekend Warm Up Presented by Mr Sparky America's On Time Electrician

Monday, June 1, 2009

NASCAR Drug Testing Unconstitutional

NASCAR’s drug testing policy was called into question when driver Jeremy Mayfield was suspended indefinitely on May 9 after testing positive for a banned substance.

On paper, a drug policy in NASCAR makes sense, more so than in stick and ball sports where the risks of using banned substances apply primarily to the record books. You would be hard pressed to argue that Manny Ramirez under the influence of a female fertility drug compromises the safety of his teammates or opposing players. But when racecars are traveling bumper to bumper and three wide at 200 miles per hour, a driver under the influence of any substance that affects performance can endanger the lives of fellow drivers, pit crew members, officials and fans.

Formerly, NASCAR would only conduct tests based upon “reasonable suspicion.” Beginning this year, all drivers and crew members are subject to testing prior to the season and randomly during the season. But NASCAR’s drug policy is one-sided, heavy-handed, lacking in transparency and void of the basic procedural safeguards we have to come to associate with freedom and constitutional protections.

First, there is no published list of banned substances that drivers should avoid. NASCAR is free to determine which substances it believes may affect safety on the racetrack. The Association defends its secretive policy, maintaining that a list of banned substances is “restrictive,” which is another way of saying it doesn’t like to be told what to do. And in fact, it seldom has been. NASCAR is a privately held company – owned and operated by the France family – and has been the oversight body for stock car racing for more than 60 years.

But with no list to go by, drivers are left to guess which substances are safe to ingest and which ones they should avoid. Is aspirin on the list? Poppy seed bagels? How about coffee and Diet Dew? Surely a jittery driver hyped up on caffeine is a danger at Talladega. And say goodbye to a pre-race ritual of twinkies. Ever see what an excess of sugar can do to the senses?

Second, the policy doesn’t provide for an appeal. All decisions by NASCAR are final.

Third, the policy doesn’t contain a prescribed list of penalties. NASCAR suspended Mayfield indefinitely for a first offense, but admits that it could have suspended him permanently. Although NASCAR may consider reinstatement, such action is conditioned on the driver completing a rehabilitation program prescribed by the governing body.

Mayfield insists that he wasn’t given a copy of the failed test prior to his suspension and he has no idea what substance he tested positive for. The driver does admit to taking a combination of a legal prescription drug, which he refused to identify, and Claritin-D for allergies. If his story sounds familiar, it should. Few athletes who have tested positive for banned substances admit to it, even when confronted with irrefutable evidence.

NASCAR is notorious for handing down inconsistent penalties, leaving itself open to allegations of favoritism. If a star driver, say, four-time Sprint Cup Champion Jeff Gordon, had tested positive instead of a bit player like Mayfield, would NASCAR have taken similar action?

The question isn’t merely academic. Gordon recently admitted to taking lidocaine for recurring back pain. According to the FDA, possible side effects of lidocaine include nausea, drowsiness, mental/mood changes, ringing in the ears, dizziness, vision changes, tremors, numbness, slow pulse, trouble breathing, seizures and chest pain. Sounds like a substance that can create a safety issue on the racetrack to me.

Mayfield claims he did nothing wrong and will refuse to enroll in a rehab program. His attorney has been making noises about suing NASCAR and he may have a case. Courts are loath to interfere with the operations of a private organization, but some courts have made exceptions, especially when an organization violates concepts of fairness. One obvious issue in this case is the fairness of punishing Mayfield for conduct he didn’t know in advance was prohibited.

Players’ unions in sports are oftentimes viewed as obstructionist and overly protective of athletes’ rights in the face of overwhelming evidence of wrongdoing. But as the situation with Mayfield suggests, without a union, athletes are subject to the whims of management. If only we had a happy medium.

Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached at

Wednesday, May 13, 2009

PED's in MLB no longer Selig's Fault

For years, Bud Selig has been taking heat from the media and the public on the issue of PED’s in baseball. And for years, the commissioner has fended off his critics with a combination of fact, fiction and bluster, maintaining that he did everything he could to rid the sport of chemical enhancers. Selig has never passed up an opportunity to detail the efforts he and the owners have made to eliminate PED’s, only to be thwarted at every turn by the players and their union.

Despite Selig’s protestations to the contrary, the owners dragged their feet in trying to eliminate steroids from baseball. When the bosses look the other way, and in some instances overtly encourage the use of performance enhancers, it’s difficult for the worker bees to keep their hands out of the substance jar. But we can finally say that it’s not the commissioner’s fault that there are still players in baseball using banned substances.

This isn’t 2002, before there was a drug testing program in baseball and the likes of Jose Canseco, Mark Maguire, Sammy Sosa, Barry Bonds and who knows how many hundreds of others were juicing. This isn’t 2003, when the results of a test survey to determine the extent of drug use in baseball were supposed to be anonymous, and Alex Rodriguez’ name was leaked from a list of 104 players who tested positive.

This is 2009, when MLB, as Selig is only too proud to proclaim, has the strictest drug testing program in all of team sports, and imposes the stiffest penalties for testing positive of any sport this side of the Olympics; when notice of that drug policy and those penalties is posted in every Major League clubhouse. And yet players are still ingesting banned substances, as evidenced by the fact that Manny Ramirez tested positive for a prohibited substance during spring training this year.

Ramirez is just the latest MLB player to take a seat in drug-suspension purgatory. If you think he’ll be the last, you also think the federal government will soon embrace fiscal responsibility. Won’t happen. Many people, including this correspondent, have called for stricter penalties for those caught using, including a one-and-done policy. But even the ultimate penalty won’t eliminate PED’s in baseball. Want proof? How long have we had the death penalty? And that has eliminated murders, right?

Illegal drug use in baseball is a matter of individual choice, and as long as the cheaters are ahead of the testers - and it will always be thus - some players will be willing to take their chances. There’s too much money to be made and too little time to make it.

The responsibility to stamp out drugs in baseball rests not with the owners or the commissioner, but with the players and their twin enablers, the MLBPA and the agents, neither of whom appears willing to fulfill their fiduciary responsibilities to their clients on the issue of PED’s. From fighting the commissioner and owners in negotiations, arbitration and court, to spinning fairy tales for the players when they’re caught red-handed, the union and the agents have been the ultimate co-conspirators.

For all the money the players make, not to mention all the money members of the Scott Boras Fraternity make, you’d think they could afford to employ someone who would guard against players ingesting anything that wasn’t “certified kosher.” It may not be fair to single out one agent, but Boras has had his share of clients snared by the drug police. Boras’ list of scofflaws includes Ramirez, Barry Bonds, Alex Rodriguez, Kevin Brown, Garry Sheffield, Eric Gagne, Ivan Rodriguez and Rick Ankiel, among others.

Ramirez will lose approximately $7 million during his suspension – deducted over the four years his 2009 salary will be paid - but will still earn almost $38 million under the terms of his two-year contract with the Dodgers. So, what exactly is the penalty for getting caught using - shame and embarrassment? No bust in the Hall of Fame? Some players obviously prefer the money to their reputations and eternal enshrinement.

And as long as that remains true, PED’s in baseball will be a reality. But the pendulum has swung. It’s no longer Bud Selig’s fault.

Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached at

Wednesday, April 15, 2009

Do Golfers Need Glasses

Golfers are a strange lot. I’ve never understood the attraction in chasing a little white ball around a mile-and-a-half expanse of land for half-a-day, trying to putt the ball into a hole in the ground, something even golfers would admit is difficult and frustrating. There seems to be enough stress in everyday life without voluntarily spending time on a golf course.

Now, there’s another reason to be skeptical of golf and golfers. In an online survey commissioned by the Callaway Golf Company, 78% of respondents said they would rather play a round of golf at Augusta National, home of the Masters, than have a date with 2009 SI Swimsuit cover girl, Bar Refaeli. The survey results are great news for sports business, especially the golf industry and companies such as Callaway.

According to Darren Rovell of, the survey was taken by people who say they “play golf.” If ever there was a reason not to play golf, this may it. How, exactly, can a red-blooded male choose playing golf over a date with a supermodel? On the other hand, the poll results may not come as a surprise to many wives and girlfriends who have become golf “widows,” giving up their weekends – and their husbands and boyfriends - to the golf course.

In an effort to obtain additional information about the survey, I contacted Callaway. I was interested in whether the company collected information about the respondents, including such things as their age, income level, how often they play golf, whether they are married or single, and their gender. Unfortunately, a spokesperson said he hadn’t heard about the survey and neither had his supervisor. He admitted, however, that he would have responded with the majority, perhaps understandable given his employer.

Admittedly, Augusta National is a gorgeous expanse of land. But in spite of its history, aura, and exclusivity, it’s still just a golf course. And any golf course pales in comparison to the lovely Refaeli.

Ironically, Augusta National is the same club that refuses to allow female members, regardless of how much money they have or what they look like. The National Council of Women’s Organizations picketed the Masters in 2003 in an effort to force the club to open its doors to distaff members. When the heat became too hot for the tournament sponsors, Augusta National purchased its own TV time on CBS and broadcast the Masters sans advertising.

But the club membership refused to knuckle under and the NCWO got tired and went home. When they did, the advertisers returned. Women are allowed to play the Augusta National course - with restrictions - but aren’t allowed to step foot in the hallowed clubhouse.

In analyzing survey results, it should be noted that polling is an inexact science, especially when done by amateurs. The wording of the question can influence the result. For example, in the Callaway survey, the question doesn’t suggest the nature of the relationship with Refaeli. What exactly is the meaning of the word “date?” Where would the date be held? What would the parties be doing? For how long? Who else would be present? On the other hand, golfers think they know what they’re getting – or at least, what they’ve dreamed about – if they play a round of golf at Augusta National.

According to the National Golf Foundation, there are an estimated 26.2 million golfers in this country, 45 percent of whom are between the ages of 18 and 39. Another 33 percent are considered seniors (over the age of 50). If the survey was limited to senior golfers, that might explain the results, at least in part. Still, it’s hard to reconcile the survey results with a photo of Refaeli. “Nearly 80% of respondents choose round of golf over date with supermodel” isn’t a headline that goes down easily with the morning coffee.

More realistic is the headline in a recent story in The New York Times on golfer Steve Wilson, a 39-year- old Mississippi gas station owner and amateur golfer who shot an opening round 79 at the Masters. The article was titled, “A Bad Day on the Course Beats Any Day Pumping Gas.” Now that’s a headline even I can buy.

Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached

Tuesday, March 31, 2009

The "Real" March Madness

The term “March Madness” was first coined by Henry V. Porter in 1939 to describe the excitement surrounding the Illinois state high school basketball tournament. The words are currently used in reference to the college tournament, as fans focus on the players and the games for three weeks in March and April. But the real madness associated with college basketball is how much money is being made and how little of it goes to those who make it all happen – the players.

Of course, players are considered “amateurs,” if nowhere else but in the eyes of the NCAA. This convenient un-truth allows the governing body and its member institutions to profit from cheap labor, not unlike what U.S. corporations do when they outsource jobs to foreign soil. Not content to avail themselves of the cheap labor in this country, colleges and universities also import cheap labor from foreign countries, as a number of top programs recruit players from abroad.

And everyone but the so-called student-athlete is getting a piece of the action. The NCAA defends the current system by pointing out that players receive a scholarship, worth as much as $40,000-50,000 per year at some private schools. But students at those same schools – some of which operate athletic budgets in excess of $100 million annually - are getting a free education for playing in the band or running track, activities that don’t bring in enough revenue at most schools to purchase a music book or a pair of running shorts.

Not so with men’s basketball. The NCAA is in the midst of an 11-year, $6 billion contract with CBS to broadcast a number of championships; but virtually all of the money is related to men’s basketball, specifically the March/April tournament. The New York Times recently reported that the NCAA can opt out of the contract with CBS after the 2010 season. By opting out, the NCAA would forfeit three guaranteed years for the opportunity to sign a more lucrative deal with another suitor, most likely ESPN. Although the economic climate is dismal, ESPN’s dual revenue model – subscription fees along with advertising – gives it a huge bidding advantage over traditional networks.

The NCAA distributes approximately 90% of its revenues to member institutions, and the lion’s share of that amount goes to schools and conferences that participate in the tournament. And the further a team goes in the tournament, the more revenue it receives. Participating schools also benefit from increased merchandise sales. According to the Collegiate Licensing Company, the University of Memphis’ merchandise sales increased by 82% in the most recent fiscal year after the Tigers played in last year’s championship game.

Coaches also share in the gravy train. At $3.5 million per year, Billy Donovan of the University of Florida was, until recently, acknowledged as the highest paid college basketball coach on the planet. His team didn’t make the tournament this year, but he did win back-to-back championships in 2006 and 2007.

The tournament also serves as an audition for coaches seeking higher paying jobs at other institutions. After his Rams were eliminated from this year’s tournament, Virginia Commonwealth University coach Anthony Grant doubled his salary by signing on with Alabama for $2 million-a-year. reported that John Calipari, who was hauling down $2.5 million per year at Memphis, has agreed to an 8-year, $35 million deal at the University of Kentucky, bouncing Donovan out of the top earning spot.

Most schools – Boston College and West Virginia are recent exceptions - are afraid to enforce contracts for fear of discouraging applicants for future coaching positions, leaving coaches free to flee their current schools without penalty, contract law be damned. Not so for players, who generally must sit out a year if they want to transfer to another D-1 institution. And if they are deemed expendable by their coach, a player’s scholarship can be revoked with little recourse.

The system is overwhelmingly weighted against the athletes, but don’t hold your breath waiting for the current environment to change. Players only have four years of eligibility and any challenge to the status quo would take longer than that to wind its way through our legal system.

Madness is definitely the operative word associated with college basketball. Just not in the way most fans think.

Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached at

Wednesday, March 25, 2009

World Baseball Classic is what it is...

The second edition of the World Baseball Classic ended its three-week run amidst a torrent of criticism, most of it undeserved. Critics pan the Classic for a number of reasons, chief among them the timing and lack of interest in the U.S. Baseball purists decree the imposition on Spring Training and the lack of topnotch talent on the rosters of most countries.

Much of the criticism comes from those who don’t understand the impetus behind the event. The WBC was never designed to determine which country has the best talent. The intent was to promote the game worldwide. In that respect, it has achieved as much if not more than its supporters could have hoped for. Game attendance, TV ratings and media coverage around the globe all increased over the first WBC in 2006.

While fans in this country have been lukewarm towards the event, fans in other participating countries have embraced the WBC in ways never dreamed of before the Classic became a reality. The Netherlands defeating the Dominican Republic – twice – to move into the second round of this year’s Classic gave hope to nascent baseball countries around the globe that they, too, can play the game on the world stage.

As a marketing tool, the WBC has been wildly successful. The exposure the game has received from the WBC will undoubtedly increase baseball’s revenues, benefitting owners and players alike. No surprise, therefore, that this is one of the few areas of agreement between MLB and the players association.

Owners and managers have voiced concerns - however muted, given the support of the Classic from the commissioner’s office- about the well being of the players, especially pitchers. And the media has chimed in with both criticism and suggestions on how to improve the event, both in terms of timing and format.

The major misconception about the WBC is that this is a world tournament. That’s hardly the case. Some of the best players decline to participate, for reasons ranging from fear of injury to the outright disapproval of their clubs. Because the Classic is held during Spring Training, with the exception of the Asian teams - who begin practicing for the event months in advance - most players aren’t in regular season shape. Pitchers who do agree to participate are held to set pitch counts. Position players are assured of a certain number of innings or at bats, regardless of the dictates of the games. The result is the tournament is a global version of Spring Training.

And the format – this year’s Classic was double elimination for the first two rounds and single elimination for the final round – isn’t conducive to the sport of baseball. MLB playoffs are best-of-seven affairs (five in the Division Series). But playing a best-of-seven series would extend the WBC beyond the acceptance of even its most ardent supporters.

The timing of the WBC is admittedly horrible. Playing games during Spring Training upsets the natural rhythms and rituals of baseball. But although a number of critics have suggested alternatives – playing the final round of the classic in July, either around or instead of the All Star Game, or after the MLB season ends – those options are even less palatable than the status quo. MLB teams would not be inclined to give up lucrative July dates for the WBC. And playing the WBC after the MLB season ends doesn’t make much sense either, given that the World Series can extend into November. The fact is, there is no perfect time to hold the WBC.

The bottom line is the WBC is all about the bottom line. It was designed to generate revenue for the owners and players. The WBC isn’t so much a tournament, as it is an exhibition. That doesn’t make it bad, nor does it mean it shouldn’t be held. Just don’t make it out to be something it isn’t or something it was never intended to be.

In the face of mounting criticism, even from the ranks of owners, Commissioner Bud Selig insists the WBC will continue, with the next version scheduled for spring 2013. Give Selig credit for holding firm to his position. We should be appreciating the WBC for what it is, not criticizing it for what it isn’t.

Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached at

Wednesday, March 4, 2009

Oliver Decision One for Common Sense

Andy Oliver started the 2009 baseball season for Oklahoma State University the same way he ended the 2008 season – pitching the Cowboys to a victory. But it was a win in the courtroom that enabled the lefthander to resume his college career on the diamond.

Oliver was suspended indefinitely by the NCAA last May, and in December, the NCAA decreed that the pitcher should sit out 70% of OSU’s 2009 schedule. Oliver’s transgression was a violation of the “no agent” rule in NCAA Bylaw 12.3. The bylaw states that an individual is ineligible for participation in an intercollegiate sport if he or she ever agrees to be represented by an agent, a rule that is virtually impossible to enforce and is therefore more honored in the breach than in the observance.

But Bylaw 12.3.2 creates an exception to the no agent rule by allowing a student-athlete to “consult” with an attorney, with the additional proviso in Bylaw that an attorney cannot discuss a contract with a professional sports team, nor can an attorney be present during such discussions.

In June of 2006, Oliver was drafted out of high school by the Minnesota Twins. His attorney at the time requested that he be present during contract discussions with a Twins representative in the Oliver home. The attorney assured the pitcher and his family that his presence would not endanger Oliver’s college eligibility.

The discussions proved fruitless and Oliver accepted a scholarship to OSU. When Oliver informed his attorney early last year that he would be consulting another “advisor” - code for agent - the attorney sent the pitcher a statement in the amount of $113,750.00 for legal services related to the failed negotiations with the Twins. When Oliver refused to pay the bill, the attorney reported the bylaw violation to the NCAA. After the NCAA suspended Oliver, he obtained an injunction pending the outcome of a trial.

In a decision that, if sustained on appeal, will have far reaching consequences for student- athletes, a Federal District Court in Ohio ruled that NCAA Bylaw 12.3.2 was an attempt to regulate the role of attorneys; that such action was against the public policy of every state in the union and was therefore void. Judge Tygh Tone said the NCAA can’t tell a student-athlete he can consult with an attorney and then tell the attorney how to represent his client, i.e., when he can be present for negotiations and when he should stay in his office.

During the trial, the NCAA countered that the no agent rule was actually designed to protect student-athletes, pointing to Article 2.9 of the NCAA Constitution, which states that “…student-athletes should be protected from exploitation by professional and commercial enterprises.” How that is to be accomplished without adequate legal representation at the most crucial stage of negotiations - especially when the other side is far more experienced and prepared than the student-athlete - the NCAA was unable to say.

The no agent rule is absurd on its face. If an athlete’s parent is an attorney or an agent - or even a former professional athlete – he or she may have adequate representation. But if you failed to choose your parents wisely, you are at an extreme disadvantage when it comes to one of the most important decisions of your young life.

The judge also took a swipe at Bylaw 19.7, which states that the NCAA can impose retroactive punishment on student-athletes and member institutions if a student-athlete is allowed to play under an injunction and that order is later overturned. The bylaw serves as both a disincentive to seek court redress and a reluctance on the part of member institutions to allow a student-athlete to participate in athletic competition until the litigation process is complete.

The NCAA has already stated its intention to appeal Judge Tone’s decision. Critics have taken issue with some of the judge’s language, calling it overly broad and not based on sound legal reasoning. And a number of issues remain unanswered, including whether an agent who is not an attorney can represent a student-athlete to the same extent as an attorney.

But for now, thanks to Andy Oliver, the NCAA can’t deny student-athletes effective legal representation.

Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached at