LEVELING THE PLAYING FIELD: How the Law Can Make Sports Better for Fans.
How rich sports makes poor sports
THERE IS A SENTENCE IN PAUL WEILER'S Leveling the Playing Field that telegraphs his pitch. Weiler is talking about the goal of his proposals to reform professional sports. "Just as we know from other areas of institutional governance," he writes, "sports leagues have to be designed in a fashion that not only fairly distributes the existing financial pie but also generates an expanding pie--again for the benefit of fans as well as owners and players."
That's the economic catechism in a nutshell--the assumed beneficence of an expanding pie. Weiler doesn't show exactly how this bigger pie will benefit fans, and that's the point. To the economic mind the assertion is true by definition, and no further discussion is required.
But perhaps it is. Perhaps the standpoint of the fan is different from that of owners and players--and of policy experts like Weiler. Perhaps it requires a different metric. Just possibly fans want a better game, which is not the same as more money sloshing through the proceedings--which is what economists mean by an expanding pie.
That is the question raised by (though not in) Weiler's book. Though it deals overtly with professional sports, actually it is about much more. The standpoint he embraces--the conventional Anglo-American economic model--has become the lingua franca of public policy and debate. Whether the issue is medicine or antitrust, prisons, schools, or even the protection of the earth, the question increasingly is not, "What do we need to do?" Rather it is, "How can we make this part of life look more like what the economics textbooks say?"
In sports the point comes through with special clarity. Sports derive from a realm of value that lies outside the preoccupations of the market. (So too do the crafts and professions generally, but less obviously so today.) Teamwork, loyalty, a pride in craft for its own sake, a rootedness in place--economists regard such qualities as Medieval relics, and clogs in the cosmic gears of market efficiency. Yet they remain important for the rest of us; and so the language of the market jars in a way it doesn't when the subject is say, lignite production or microchips. We feel more confidence in asking whether the agenda implicit in the model is going to take us where we really want to go.
Weiler will make many more confident still. He makes a number of good suggestions, and his heart is in the right place. But ultimately he ends up demonstrating why economics doesn't have all the answers, and why increasingly it misses the point. When it comes to money, folks, sometimes we've just got to say no.
Pie aside, pro sports are a mess. Players whine over seven-figure salaries; corporations saturate the proceedings with ads; billionaire owners shake down local taxpayers for stadiums and arenas; and the rich--both individual players and entire franchises--get richer, while those in the middle get crumbs from the table. Fans meanwhile have to pay over $45 a seat, on average, to take the kids to an NBA game, not counting parking, and concession prices that rival those at Dean and Deluca.
Sports are a metaphor for life all right; and it's little wonder that people from the sports world seem to gravitate increasingly to Washington these days. They've had a lot of practice. (Usually they come as conservatives who, having gotten rich in taxpayer-financed arenas, proceed to rail against the use of taxes to help anyone else.) As in politics, moreover, the common denominator to the many ills is money. The more there is, the worse things seem to get; and this raises problems for a belief system that regards the accumulation of money--the expanding pie--as the first good from which all others flow.
Weiler is a professor at Harvard Law who is a frequent expert source for sports reporters and a consultant in labor disputes. He is the kind of person whose views help shape both what happens in the sports business and how the media portrays what happens. This makes Leveling the Playing Field significant as a window on the kinds of changes that are within the framework of respectable opinion at this time.
The book is divided into two sections. The first deals with what one might call the "social" issues, such as gambling, drug use, and violence by players. The second deals with money issues, the ones that fall within the scope of labor law and antitrust (Weiler's specialties) at least. As a text and primer on the issues, Leveling the Playing Field does an admirable job. If you have puzzled over the difference between a hard and soft salary cap, or wondered why the antitrust laws affect major league baseball and basketball differently, or why big-money NBA stars such as Michael Jordan and Patrick Ewing sought to &certify their player's union as a blow against the owners, then Weiler's your mall.
There is also a rich lode of fact and lore. Many fans probably are not aware, for example, that in an early incarnation of major league baseball the players actually owned the teams. They may not be aware either that Robert Moses, the late and infamous New York City highway czar, was the real villain in the move of the Brooklyn Dodgers to Los Angeles. (Walter O'Malley, the late owner, has gotten most of the blame. But O'Malley wanted to bold a new ballpark near a mass transit hub in Brooklyn. Moses wanted one in Queens near his beloved freeways, and he killed the deal.)
On The Bench
Though moderate and judicious, Weiler is basically a player's man. The owners take the larger share of hits, and not without reason. For decades they exploited players shamelessly, and continue to show a chronic aversion to the high road. There is Michael Eisner for example, head of Disney-ABC, which owns the Anaheim Angels baseball team. Eisner tried to suspend Tony Phillips, the team's second baseman, who was caught trying to buy cocaine from an undercover cop. Yet months later Eisner awarded the biggest contract in TV history--$1.25 million per episode--to Tim Allen, the star of ABC's sitcom "Home Improvement," the TV show, even though Allen recently had served 18 months in jail for selling cocaine.
It's not hard to see why players get their backs up. Weiler gives particular attention to the stadium shakedown scams, which represent money grubbing of the rankest order. Did Paul Allen, the Microsoft billionaire and owner of the Seattle Seahawks football team, really need the taxpayers of Washington state to front $325 million to build a new stadium? Does George Steinbrenner, owner of the New York Yankees, really need charity from the taxpayers of New York, many of whom don't even follow baseball?
Another practitioner of this low-grade avarice, of course, was George W. Bush. As part-owner of the Texas Rangers baseball team, Bush managed to overcome his principled opposition to taxes long enough to campaign for a local tax increase to build a new stadium for his team. Then his group sold; and Bush's $600,000 stake turned into some $15 million. (The stadium deal inspired a local Republican attorney to say of Bush, "He's not an entrepreneur. He's a welfare recipient.")
Such episodes do not inspire confidence in the captains of American business, which team owners generally are. At least the stadium machinations are somewhat out in the open. We can only imagine what transpires when these same people write their soft money checks to the major political parties--or in Bush's case receive them. Yet while the owners are the protagonists, it is only fair to point out that the players happily pocket the resulting loot. Instead of objecting to these deals on principle, the players use them to justify their own outrageous pay. "You've got owners who threaten to leave town unless they get a new stadium," said Keyshawn Johnson, a wide receiver for the Tampa Bay Buccaneers. "Please, don't give me that [expletive] about a contract I signed."
I have a hunch that many players do have reservations. In the mid-1980s, Larry Bird, in his sly hick manner, grumbled publicly about the way television controlled the pace of the game, with constant time-outs for ads. He was quickly quieted; you don't mess with the pie. As readers of this magazine already know, labor unions, like the business groups they oppose, gravitate to the lowest common denominator of self-interest. So the players, as a group, generally go for the money, just as the owners do.
Still, players and owners have this essential difference. If the pro leagues did not exist, many of the players would be on playgrounds anyway. The owners would not be wheeling and dealing with Rotisserie teams. A reporter for The Boston Globe asked Jerome Allen, a former college star trying to catch on with the Celtics, why he kept battling the odds. "It is the easiest job in the world," Allen said. "I love to play. I would play basketball for free."
That is the truly weird thing about the pro sports morass. The games are sinking into a money sewer. Yet most players really would play for much less, if everyone else was making less too. They demand more because the money is there, not because they really require that much to play. In this they are much like corporate CEOs, who demand outrageous pay packages because compliant boards are willing to offer them.
There is a third party in the drama, of course: the agents. Weiler does not deal with these, and it's a major omission. They are the true Iagos in the script, the whisperers and fomenters who make certain that things go from bad to worse. Agents get a cut of every contract they negotiate; they are like contingency lawyers without the redeeming social benefit of encouraging safer products. The necessity of dealing with some of those creeps could bring out the worst in most of us. If Dante were writing today, the fourth ring of his Inferno might well contain owners and agents, rolling their weights of lucre in a semi-circle, beating up against one another and shouting imprecations, only to circle back and shout again.
Weiler's failure to discuss agents, by the way, is an omission that sports writers generally make as well. They rarely report on agent machinations, nor mention how much the agent gets from behemoth player contracts. Agents are prolific gossips and quote machines, and my guess is that sports writers look the other way to stay on their good side.
The only party without representation in these tawdry proceedings is the fans. Weiler doesn't propose to change that. Instead he offers expert advice on ways to alter the machinery to make things better for the fan. On the whole his proposals are sensible, as far as they go. On the social issues he advocates drug testing for players, for example, and argues that the sports leagues should treat crimes such as spousal abuse as seriously as they do the use of drugs. On the economic front--his forte--he proposes a "stadium cap" on subsidized stadiums to go along with the salary caps on players' pay. He also urges floors on team payrolls, so that particular owners can't field patsies and then make a bundle from their share of the league's national broadcast revenues.
Other proposals struck me as less promising. I'm not sure that individual gambling licenses, with all proceeds reported to the IRS, are going to solve the epidemic of sports gambling. I'm also not convinced that concern about cocaine and other illegal drugs is overblown because players have other personal habits--such as over-eating--that also diminish performance. He is right, however, that performance-enhancing drugs, such as androstendiore, are at least as bad for sports as are performance-diminishing ones like cocaine.
As the kind of quasi-adult who still reads the sports pages first, I expected Leveling the Playing Field to be a great read. Instead it was slow going. This is partly due to Weiler's methodical and unemotive lawyer style. Even when he gives an anecdote, it somehow doesn't feel like a story. But the main problem, substantively as well as stylistically, is his embrace of economic expertise. Economics is the Big Thing in the legal academy, and this is not necessarily a great thing.
Like most who resort to economics, Weiler seems to assume that it is simply a neutral analytic tool, like a stethoscope. But in practice it functions as a tendentious vocabulary with the agenda built in. Once you have defined sports as a "product" and fans as "consumers"; and once you have agreed that their devotion to their teams is a form of "consumer welfare" and that free agency is the best way to achieve "allocative efficiency," you have not just committed an aesthetic atrocity. You have put yourself on a conceptual conveyor belt that leads you inevitably back to the very problems that you are trying to solve.
You also have divorced yourself from what it means to be a fan in the first place. On the question of free agency--the ability of players to sell their services to the highest bidder once their contract runs out--Weiler has this to say: "If we must choose just between the traditional reserve system and unrestricted free agency, the latter is a far better instrument for improving sports welfare--whether viewed as allocative efficiency in enhancing the quality of the game for fans or distributional equity in sharing games between owners and players."
I don't know many fans who think way in terms of "allocative efficiency." (Personally, I tend to favor inefficiency, such as when pitchers bat; it produces more drama and surprise.) Nor would all agree that when the Dodgers departed Brooklyn "the overall level of sports welfare was enhanced."
The problem here is not just language. It goes to the Johnny-One-Note world view embedded in the language, which reduces all human yearning to a cost-benefit model. In this belief system money serves as both means and measure, so there is no point of reference outside itself. What does "sports welfare" mean? Essentially it's just a literal-minded reckoning of the amount of money that is changing hands. This is the implicit agenda of economics--the accumulation of money--but whether it has anything to do with fans is another matter entirely.
Weiler purports to speak on behalf of us fans. But we enter the script the way we do in economics texts, as abstracted entities rather than as actual people. We are relegated to the role assigned us in the economic master script--as passive consumers of a product called "sports." We never get to speak for ourselves. Thus Weiler can assert with confidence that the free agency has improved our "welfare," and that the sports "product" has improved immeasurably in recent decades. Why? Because we consumers are spending so much more money on it.
In the master script, the expenditure of money is tantamount to speaking, and pretty much the only way we get to speak. The more money we spend, the more approval we have spoken. Well, I'm a fan, and the money I've spent on outrageous ticket prices doesn't say that. It says only that I was smitten at an early age and that love dies hard. It says that, somehow, I still see the face I fell in love with many years ago. Sometimes you pay what you have to and put up with a lot you detest--especially if you have kids and they really want to see a game.
And there's a lot to put up with. Not only are the prices high. The incessant huckstering and promotional frenzy degrades the whole experience. The day I write this, a letter in The Washington Post complains about the electronic noise level at Washington Redskins games. "The repeat spoon-fed cheers and almost nonstop, extraterrestrial noise level is totally out of line," the writer says.
The Trouble With Money
It doesn't take a Ph.D. in economics to see the problem here. (It might help not to have one.) Suppose the money slosh in pro sports were to double tomorrow. Top NBA contracts would be in the vicinity of $160 million over seven years. Average pay in baseball would be $3.2 million. Does anyone think the game would become twice as good, and sports generally twice as rewarding to follow? Or would things get even more bogged down in petulant wrangles over the shares of the pie?
To pose the question is to answer it. Pro basketball is practically parabolic in this respect. By the late 1970s the league was in a sorry state. Fans were losing interest, drug use among the players was rampant. Then Magic Johnson and Larry Bird came along, with their yin-yang personalities and college championship rivalry. More importantly, the hard times bred an unusual level of cooperation. Players and owners agreed on a contract that capped salaries and declared a reasonable split of revenues between the two camps. The result was a decade of euphoric growth in revenue--a bigger pie--which in turn produced the players' strike of 1998, and a money grab the pathologies of which have rippled down to the school yards.
There is an almost Scriptural cycle here--the tendency of material success to produce spiritual and moral failure--that the economic mind has great trouble grasping. Beyond a certain point money can make something worse instead of better; one might say there can be a diminishing marginal utility to an expanding pie. The owners and players get to divvy up the loot; the economic model might work for them. But fans have to experience what's in the pie, as opposed to the monetary representations of it. They get a sneaker hustle so shameless that a former Nike rep called it a "cesspool." They get the giant Coke bottles that deface the light stanchions on the legendary Green Monster wall in left field of Boston's Fenway Park.
Fans also get stadiums and arenas named for corporations. When the Boston Garden became the Fleet Center, Candlestick Park became 3-Com Park, and RFK Stadium in Washington became Fed Ex Field, that too was part of the expanding pie, because the corporations paid. ($205 million in the case of Federal Express.) How does one measure the scar to civic culture and to memory that results from this kind of commercial defacement? Economists don't factor it into their reckonings of "allocative efficiency," but they should.
Then too there's the effect upon the games themselves. There are still good players and great games. Pedro Martinez, the Boston Red Sox pitcher, with his slight physical stature and Little Leaguer's ardor, provides as much pure baseball joy as I expect to experience in this life. (You can guess where I'm from.) But if you sense that money has taken something out of pro sports, you are not alone. Magic Johnson gave up coaching the L.A. Lakers, for whom he had starred, after a short stint, lie couldn't stomach the attitude the money slosh had bred. "When somebody says something to you [i.e. a player], you can either take it or leave it," Johnson said. "You don't have to respond and they know that. Things like coming to practice on time and all that, they just don't care."
I have a feeling that Weiler senses some of this. His instincts are basically good. But the argot tends to trap one in its own assumptions--and you have to talk this way to be taken seriously in the public policy realm. That means we won't begin to find answers--to the pathologies of pro sports or to economic problems generally--until we disengage from conventional "economics" with its tendentious language and circular logic. To fans, sports are not a "product" They are games; and it is not possible to speak for fans unless one is willing to speak as one.
This means, among other thins, withdrawing consent from the role of "consumers" that the policy experts have assigned us. We fans should not have to sit by passively during bargaining sessions waiting to find out how much money we are going to pay and how much more degradation we are going to have to endure. If the players can have a union and the owners can have a league, why can't fans have a union too? Ultimately we pay the players' salaries and the owners' profits. We pay for the stadiums and the TV broadcasts and the ads that fill them. (Actually non-fans do too, as Weiler points out, since the costs are built into the prices of many things we buy.) Shouldn't we have a real voice in what we pay for?
Let The Fans Bat
I'm not talking about government regulation here. I'm talking about the opposite--a place at the table. If fans had a seat at the table, a whole range of new solutions could be on the table. We could talk about ticket price caps, concession price caps, advertising-saturation caps, and TV time-out caps as well as salary caps. We could talk not just about who pays for the stadiums, important as that is, but also about such things as the Astroturf carpets that fill them. We could restore the civic poetry of stadium names--the Boston Garden, the Polo Grounds, Ebbetts Field, Candlestick--in place of the grim commercial realism of Enron Field and 3Com Park, which are the capitalist equivalents of Stalingrad and Leningrad. (Sports writers could decline to use these corporate names, and should.)
Not least we could talk about the rules of the game. The baseball owners--to take just one example--continually have compromised the game to produce more home runs. They have lowered pitchers mounds, flattened the seams on the balls, moved in fences, shrunk the effective strike zone to a wisp. (We can be thankful they haven't gone to aluminum bats--yet.) Owners may own the leagues; but we fans in some sense own the games. If baseball truly is the "National Pastime," then shouldn't we Americans whose time it passes have a voice in what passes?
The single best way to achieve this is so simple it could happen tomorrow: Fans should be able to own teams themselves. Not just billionaire fans such as Daniel Snyder, the new owner of the Washington Redskins, who is busy trying to buy a championship (which is a problem in itself). I mean ordinary fans who could pitch in relatively modest amounts.
This is not a fantasy. If there is a professional sports team in America that exemplifies what sports are supposed to be about, it is the Green Bay Packers football team. Though based in a relatively tiny city, the Packers have become a legendary franchise. There have been Super Bowl victories, and players describe a "family" feeling on the team. It is not coincidental that the Packers have a unique ownership structure. There is no big-shot owner. In Green Bay the fans own the team through a nonprofit corporation.
If anything can save pro sports in this country it is an arrangement like that. Yet the Green Bay Packers could not join the NFL today. None of the major leagues will permit a franchise with a broad fan ownership. They want you only if you are an individual owner and your goal is to make money--that is, to expand the pie. That's a dead end. The answer is not to return to the old days when owners could exploit the players. It is, rather, to focus on the game rather than the pie which fans would do. The whole endeavor could be scaled down, money-wise, with no loss to the games or fans and probably with a great gain for both.
There is a scene in the movie "North Dallas Forty," about the Dallas Cowboys football team, in which a massive lineman, flames: "When we call it a game, you call it a business. And when we call it a business, you call it a game." He was fight. The balance has tilted too far towards the money and we've got to tilt it back. So let's chuck this "sports welfare" and "allocative efficiency" business and play some ball.
JONATHAN ROWE is a contributing editor of The Washington Monthly.
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|Article Type:||Book Review|
|Date:||Oct 1, 2000|
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