« Copyright Classics | Main | Harcourt Podcast on Actuarial Justice »

April 04, 2006


Feed You can follow this conversation by subscribing to the comment feed for this post.

Eh Nonymous

Indeed. There's a doctrine of finality in sports. Of course, the res judicata effect of a settled contest, while generally binding on certain calculations such as playoff results, does have its limits.

Compare your on-field (flagrant foul) and off-field moral (gambling) violation examples to the outcome when a college team is discovered to have fielded ineligible players. Wins can be taken back, victories declared null, and trophies confiscated.

Disqualification is only used in a limited number of circumstances. The results of most matches are as fixed and unchangeable as if they were combatant status review tribunals.


Yes, this comment (and a related point made over lunch by my colleague, Todd Henderson) suggests that finality might be the rule where we do not think the on-site referee has enough information or authority to make a call in the game itself. If the Little Leaguer is underage, or the college player was mis-recruited, the penalty cannot come on the field so it comes off the field, as it does with gambling. It's not a bad theory, but an imperfect predictor.

Greg Lastowka

Hi Saul --

I really appreciate your posting these thoughts. Have you read Johan Huizinga's Homo Ludens (1950)? It is an investigation of the place of play within culture, and one of its significant contributions was the observation that play spaces, like religious spaces, tend to be organized by separate rule structures and separate localities within which the standard rules of society are displaced.

What is interesting is that Huizinga, in chapter four of his book, observes that courtrooms are consistent, structurally, with his conception of play spaces. I've been wondering if there is more to be explored in that connection between legal rules and play rules. See e.g. John Barnes, who in his book Sports and the Law in Canada (1996) makes reference to the "law game" as distinct from, but bound up with, the sports game:

"Sports maintain internal rules and structures to regulate play and organize competition. In sports law, the wider legal system impinges on this traditionally private sphere and subject the politics of the sports game to the politics of the law game. The result is a double drama as the deep human concern for play combines with the concern for social justice."

I've been trying to find some legal writing that looks at this connection between play rules and legal rules in a sophisticated way, but I honestly haven't found much. It seems most legal scholarship on "sports law" is highly practical and concerned with the practice of law in the context of professional sports.

p.s. There is movement afoot to take games more seriously as objects of academic study. See, e.g., this new journal:

Kimball Corson

That is, if we do not tag Barry out on drug use when he is using, it is our error and not his until he is caught. That is reasonable enough, under the finality rule. But are we then permitted the inference that he must have been using all the time so his record is tainted. Not without proof, I submit. If the leagues don't police the games, who should bother? While it might make record comparisons tougher, so what? Besides, fan banter and debate on such matters enhances interest in the game, so is this not the best of all worlds? Too much teaches us that to cheat and get caught is one thing, but to cheat and get away with it is really to win. After all, this is America.


What Barry Bonds has accomplished in Major League Baseball has an influence that often is greater than any parent has over his or her child athlete and that child's decision to use performance enhancing products. For this reason alone: not only should Barry Bonds be banned from Major League Baseball for life, he should be denied entry into Baseball's Hall of Fame, and finally his statistics for the recordbook must be restricted to those years when he was not using performance enhancing drugs or growth hormones.


I just can't take sports seriously enough to care whether a player takes enhancing drugs. It shouldn't even be an issue; it's just a game. Look at professional wrestling. They all do drugs. If the players wants to risk his health, it is his to risk. Don't we watch sports to see those great plays? It's the journey, people, not the record books. Have you ever seen Babe Ruth play? No. Then why do you care about his records? You probably don't. There's no emotional attachment there. Players come and go, so do their records. It's just not that big a deal. It's a game.

Robert Garrick

Dean Levmore writes: "I might point out that it is in the nature of sports to leave results unchanged once a game has ended."

Not true. Games, championships, and even entire seasons are reversed and expunged from the record all the time in almost all sports at the high school and college levels.

We just finished the NCAA basketball championships. Go back and look at the history of the championship game. In 1980 Louisville won the tournament by defeating a team now known in the record books as "vacated." And in 1971 UCLA won the tournament by defeating "vacated." The two teams whose appearances were "vacated" had all of their tournament wins leading up to the championship game "vacated" as well, of course.

In high school and in college, it is common for entire seasons to be turned into losses. It happens retrospectively, and often people aren't aware of it. But it's official, and that's how it reads in the record books.

In pro sports, the more common practice is for the results to remain on the books, but to be tainted by history. The record book tells us that the Cincinnati Reds beat the Chicago White Sox in the 1919 World Series. But history tells us not to take that victory seriously.

So it will be with Bonds, regardless of what baseball does. His records, his career, and his team's wins are all tainted, and they will not (and should not) be taken seriously. The same will be true for other likely steroid users and their teams. And most likely the entire 1990-2005 period will be disregarded to a large degree by baseball scholars, assuming that baseball is able to maintain its status as a "serious" sport.

Cornelia Ender was an East German swimmer who won four gold medals in the 1976 Olympics in Montreal. She never failed a drug test, but it's now known that steroids were commonly given to East German athletes and it's assumed that Ender was full of them. Her performance has been properly discounted and her name is rarely mentioned these days. (You don't hear much about East Germany, either.)

Bonds's records will be discounted too, though I suspect he'll be better remembered than Ender, mostly because he's so generally obnoxious.

Frederick Hamilton

The most important issue with the banning of anabolic steroids is their danger. The fact that they indeed work and enhance performance and don't allow for a level playing field is minor compared to their harm. Anabolic steroids cause cancer (liver cancer among others), causes irreversible and rapidly enhanced atherosclerosis (hardening of the arteries, stroke, MI et al). Indeed they build muscle, but at a heavy price. That is why you don't want anyone using them and why especially you don't want young athletes ruining their long term health for the short term gain of athletic glory. A.E. Housman's "To an athlete dying young" is all to applicable to athletes using anabolic steroids. I could go on further about the danger of anabolic steroids as it relates to men and women but as a former NCAA Drug Testing Crew Chief and a doc I can assure you the concern for doping goes way beyond a competitor winning because of better chemistry.

The integrity of the game (football, baseball, track and field, or whatever) is certainly a major issue worth punishing those who use steroids.

Per the recent news, it appears Mr. Barry Bonds may not escape lying to a federal grand jury regarding his drug use. He was given immunity and it appears he spit in the federal courts eye. A little more serious than throwing an illegal spit ball. Time will tell.

If you understand the mentality of competitive athletics you will understand why high achieving athletes will use performance enhancing substances. Sadly, that performance enhancement finds it way into high school and even middle school athletes!!!!

As the head of the U.S. Olympic drug testing program told we NCAA crew chiefs at our training sessions in Colorado Springs, "if a world class sprinter knew he could take a tenth of a second off his 100 meter dash time by eating rabbit shit, he would eat rabbit shit every day". That is the mentality of world class competitors. Ergo to remain competitive all athletes will need the anabolic steroids. They work. They build muscle. They let you stroke 73 home runs in a season. They just have this nasty habit of ruining lives and ruining the integrity of the sport. The use of anabolic steroids and designer steroids is to be vigorously fought at every turn. Those that use them need to held to ridicule. I don't want my competetive son or daughter being forced to use them to compete. As bad as they are for men, they are a hormonally sexual disaster for women.

If Bonds lied to the grand jury, he should be held to account. If the federal prosecutor can prove he lied to the grand jury he should be banned from baseball for life and all his records purged. It is that serious to young people everywhere to allow a Barry Bonds to skate on steroid use.

To paraphrase a recently successful presidential campaign, "it is the health effect on the youth stupid".

a nonamous

hey saul
I appreciate the article.
i also have little power to control games an everything but theyre being stupid there waiting to testify bobnds until he reaches home runs mark. Stupid people.

soup nazi

Nice Artical.

The comments to this entry are closed.