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The State of Sports Law and Policy Views from a Labor Law Professor William B. Gould IV* I want to congratulate both the faculty and students involved in the preparation of this program.1 It is a very impressive program, and I feel honored that I was invited to be one of the speakers here. I want to particularly say how honored I am to be here on the same program with my former student and research assistant, Ken Shropshire, of whom we are very proud at Stanford Law School. Also Dan Silverman, the former regional director of the Board in New York City who took the papers to court and obtained an injunction in the spring of 1995,2 getting the players back to the field and resulting in a settlement, which brought the longest Major League Baseball strike in history to a conclusion.3 Labor law has many facets to it. We can see this in the sports world, particularly just this past week4 with the sexual harassment judgment against Isiah Thomas and Madison Square Garden,5 which has highlighted the employment discrimination part of it. This represents one end of a continuum when women began to first litigate about the right to have access as journalists in male locker rooms in professional sports.6 This week’s $11 million judgment is in the form of punitive damages7 and made available ironically in light of some of the things we are reading about now as a result of the Hill-Thomas hearings that led to the Civil Rights Act of 1991 amendments.8 These developments, I think, are a mirror image of the attempt by women to climb in a world that has been dominated by men and to replicate in many ways the attack on the color bar first initiated by Jackie Robinson in the twentieth century when he joined the Brooklyn Dodgers in the spring of 1947.9 Today10 we are not where we should be in terms of equal opportunity in sports, particularly in baseball as we see the decline of black American players.11 I think today we can say there is something new and something old in professional sports and much of the amateur arena, which has become close—perhaps perilously close—to the world of professionals to which most of elite college athletes aspire. The business of sports (make no mistake: it has always been a business) presents ever-changing issues and areas. 116 William Gould The beginning of professional sports in the United States was, of course, in 1869 when the Cincinnati Red Stockings, the predecessors of today’s Cincinnati Reds,12 emerged in the context of a league competition, that is, league control of competition. Football, though it owes its origins to the 1869 Princeton-Rutgers game,13 followed the professional model slowly but was still regarded as a brutal sport at the turn of the previous century and perhaps, as was discussed this morning,14 today as well in light of the public’s insatiable demand for violent hits that leave many of these stars debilitated. We read about this in connection with NFL issues. There the professional model was slower to develop; the National Football League did not come into existence until 1920.15 Of course, the game of basketball, in which Isiah Thomas is now a defendant in the sexual harassment New York Knickerbockers case, was not even created as a game until more than two decades after baseball ’s professionalism.16 So it is hardly surprising that in a country where the secretary of defense in the Eisenhower administration said, “What’s good for General Motors is good for America,”17 we witnessed almost unbridled commercialism win out both at the professional and so-called amateur level. Virginia law professor, G. Edward White, said it well when he said, “From its earliest modern decades, professional baseball, the national pastime, was thought of as a business, a form of entertainment for profit but implicitly presented as a much more engaging spectacle than a circus, or an opera, or a play.”18 Other sports followed in its wake. Yet as Professor White notes in other passages, it is something more because of the excitement bound up with uncertainty.19 Most sports today, baseball and football in particular, are more popular than ever. Because these leagues abound in cash with ever-increasing revenues due to attendance, television, globalization, or recently, the Internet, it often is said that the problems...

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