What does that mean?

As someone that lives in Portland, and worked directly within the MLB to Portland effort, it can mean much. It can also place the actual award just out of fingers reach.

The term “conditional award” came into vogue during the early 2000s when MLB was looking to relocate the Montreal Expos. The phrase is fairly straight forward. A franchise is awarded a city, based on the condition that a stadium meeting league parameters is provided.

As I mentioned, this can give a considerable amount of leverage to sports boosters and the city advocates looking to land a team. It allows the targeted city the ability to more easily pass funding measures needed to build from scratch, or renovate facilities to meet league conditions.

I also mentioned that it can place a franchise just within reach. In this economy, focusing on public funding of stadia development is exceptionally difficult. Even with a conditional award, the political capital needed to pass funding can be daunting, even if there are clear attempts to safeguard the host municipality from picking up the tab, should something go badly (league folding, targeted revenue streams to pay back bonds below threshold, etc).

Stay tuned to see what happens over the next two weeks as MLS gets closer to announcing the winning cities.

In other news…

Thank goodness, it’s nearly over. Manny Ramirez and Dodgers have agreed on parameters for a two-year, $45 million contract.

It seemed somewhat humorous at the time, but now ends tragically. A minor league player traded for bats has tragically died of a drug overdose.

In more tragic news, the Coast Guard has suspended the search for Oakland Raiders linebacker Marquis Cooper, free agent Corey Smith, whose boat capsized off the coast of Florida.

Business of Sports Network staffer Devon Deeple files this organizational report on “The Evil Empire”.

The NHL trade deadline is at 3:00pm ET today, and when all is said and done, should have the fingerprints of the recession all over it.

Tune in today to MLB Network at 5pm ET and witness Ken Griffey, Jr.’s return to the Seattle Mariners.

The Detroit Tigers have extended their working agreement with the Triple-A Toledo Mudhens.

Helio Castroneves tax-evasion trial enters Day Two.

Chris Paul is unveiling a new Jordan Brand shoe for Nike in New Orleans.

Curt Warner is asking the Cardinals for a two-year, $23 million deal.

Matt Vasgersian of MLB Network lets the F-Bomb fly during rehearsal.

This isn’t good. Radium has been found in some ballfields at Great Kills Park on Staten Island.

Mark Cuban is laying down the law with the Mavericks.

‘Duk at Big League Stew reminds us just how over-inflated tickets to New Yankee Stadium will be.

And finally, John Rowady, the president of rEvolution files this guest article on The Biz of Baseball in which he makes the case that companies that have lucrative sponsorship deals with sports franchises, and are receiving federal TARP monies can make the case that it is still a good investment, even in the recession.

Maury Brown is the Founder and President of the Business of Sports Network, which includes The Biz of Baseball, The Biz of Football, The Biz of Basketball and The Biz of Hockey. He is contributor to Baseball Prospectus, and is available as a freelance writer. Brown’s full bio is here. He looks forward to your comments via email and can be contacted through the Business of Sports Network.

I wrote about this in 2006, but I revisit the matter today: uniform advertisement in Major League Baseball is very near to happening, and the World Baseball Classic gives you the platform to ease into it. Why are we on the cusp? Here’s why:

The reason is, of course, the gloomy economy.

When times are tough, you can always count on reevaluating old taboos. As the need for the almighty dollar makes owners and league executives redefine what is pure and what is not, aspects like uniform advertisement, or revisit the sacrilegious idea of ads on the sides of bases, become more likely.

There are examples of some prior taboos being broken in sports today.

This is nothing new. Anyone that’s watched European League soccer will have seen it. Or, for baseball fans, watching the Caribbean World Series recently on MLB Network could see it. It’s just a matter of time, folks.

Speaking of the World Baseball Classic, we it as one of our “Focus On” series today on the Business of Sports Network.

Not only does he dance with the stars, and is one of open-wheel racing’s premier drivers, Helio Castroneves likes to dance with the IRS.

Benjamin Hill and Alan Schwartz tear apart the “salacious memoir” of Matt McCarthy’s “Odd Man Out”.

Sadly, the Munich massacre in ‘72 isn’t the last time terrorism and sports intermingle as gunmen in Pakistan killed 8 Sri Lankan Cricket players.

He’s turning into one of my favorite writers. Shawn Hoffman of Squawking Baseball has a fantastic interview with John Coppolella, the Director of Baseball Administration for the Atlanta Braves.

Rich Lederer of Baseball Analysts looks at 2006-2008 to see which teams in MLB have spent the most efficiently.

Here’s the updated World Baseball Classic rosters.

Business of Sports Network staffer Jordan Kobritz opines about Andy Oliver of Oklahoma State University and the problems with the NCAA player agent rules.

Stan Kasten is currently sitting in the GM chair after Jim Bowden resigned, but Mike Rizzo and Tony LaCava have the best shot at landing the Nationals’ GM opening.

For those who can’t get enough Tim Lincecum, Major League Baseball 2K9 hits stores today.

There’s player movement in the NBA.

Sweet Lou is P.O.d at ESPN’s Steve Phillips.

Rob Neyer weighs in on the Manny debate.

MLS to Portland and a new Triple-A baseball stadium faces an advisory committee vote.

Fire Jim Bowden breaks down Trader Jim’s ten best moves as a GM.

And finally, as someone commented on The Biz of Baseball, Fat mascots > skinny mascots.

Maury Brown is the Founder and President of the Business of Sports Network, which includes The Biz of Baseball, The Biz of Football, The Biz of Basketball and The Biz of Hockey. He is contributor to Baseball Prospectus, and is available as a freelance writer. Brown’s full bio is here. He looks forward to your comments via email and can be contacted through the Business of Sports Network.

Oh, and BusinessofSportsNetwork.com, the portal for all four online resources. Today marks the beginning of the next phase for the Business of Sports Network, as the portal  has now become the catch-all for sports outside the lines that doesn’t fall under baseball, basketball, football, and hockey. We hope you’ll visit.

Enough of that, here’s what Saturday offers:

Tiger Woods came back to the PGA Tour this week, which must have breathed a sigh of relief for the PGA, but mostly NBC and the Golf Channel. Don’t believe me? See the ratings while Tiger was away injured.

Rich Lederer of the excellent The Baseball Analysts asked if I had end of year salary information for the past few years. That got me to publishing 2002-2008’s final salary figures… well, sort of. I’m missing 2004. Just waiting for a fantastic national baseball reporter to get back from vacation to see if I can fill in the gap.

Business of Sports Network staffer Jordan Kobritz says the case against Barry Bonds long ago passed the demarcation line between  prosecution and persecution.

The World Baseball Classic is seeing players drop like flies due to injury. The latest sees Grady Sizemore having groin problems, which opens the door for Shane Victorino.

Following the news earlier this week that the White Sox will be streaming Spring Training games for free, the Los Angeles Dodgers announced Friday that the club will provide live video streams of 11 Spring Training games exclusively on dodgers.com.

Bill Gilbert, who has worked on the preparation of arbitration cases for 17 years, files this wrap-up of this year’s salary arbitration class.

It’s another day of Spring Training, which means just one more day of the saga between Manny Ramirez and the Los Angeles Dodgers.

Johan Santana is injured, and it appears, it may be more serious than had been initially reported.

The guy goes under the moniker Joliet Jake, and has been known to be a bit paranoid from time to time over at the Bucco Blog, but the notion of micro-payments for sports content may not be as “Oliver Stone” as one thinks.

Peter O’Malley thinks that MLB can’t ignore the steroid issue, but the money quote has more to deal with Scott Boras. “I remember when we had to sign Fernando [Valenzuela],” O’Malley says. “You think Scott Boras is tough. You should have dealt with Dick Moss. I remember our approach: firm, but fair. And it worked.” For anyone that has had the pleasure of talking with Dick Moss, it’s an unbelievable ride into the history of the MLBPA and one of the first “super agents.”

Forget about the International Softball Federation buddying up with International Baseball Federation in an effort to bring baseball back for the 2016 Summer Olympics.

Bay Bridge Baseball goes after Fangraph’s Dave Cameron, and in the process, seems to have not read what Cameron had to say (or for that matter, what Rob Neyer said) about the Rocky Mountain News folding.

NFL free agency is in high gear. Ask Haynesworth, Winslow. Also, Matt Cassel is involved in a trade-and-sign.

Baseball Prospectus has updated PECOTA

Will Carroll asks, “On the Mend?”

Finally, who is this guy at the Wizards game last night?

Maury Brown is the Founder and President of the Business of Sports Network, which includes The Biz of Baseball, The Biz of Football, The Biz of Basketball and The Biz of Hockey. He is contributor to Baseball Prospectus, and is available as a freelance writer. Brown’s full bio is here. He looks forward to your comments via email and can be contacted through the Business of Sports Network.

When Danica Patrick won the Indy Japan 300 two weeks ago, she accomplished something Dale Earnhardt, Jr. hasn’t been able to do in two years: Win a motorsports race.

But there is one thing Junior does that leaves Patrick in his exhaust. Junior is a veritable marketing machine, ranking third on the list of athlete endorsers with earnings in excess of $25 million last year, according to Forbes. Patrick earned $5 million, which put her fifth on the list of female endorsers, behind Maria Sharapova, Michelle Wie, Serena Williams and Annika Sorenstam.

Why the disparity between men and women endorsers? There are a number of factors. Women are still viewed as sex symbols, rather than athletes. In fact, Patrick leads Junior 1-0 in another, more dubious, category: Appearances in Sports Illustrated’s annual swim suit issue. (Note: There’s no evidence Patrick received a shot of HGH to enhance her profile, ala Debbie Clemens.)

There’s also the fact that most sports fans are men. But that majority – 60-40 in motorsports, for example – does not account for the difference in endorsement earnings between the sexes, a chasm that is deeper and wider than the Grand Canyon.

Another often whispered and seldom acknowledged fear among corporations is the “lesbian factor,” which is more often than not a death knell for the female athlete as endorser. Even in the 21^st century, successful women athletes confront the presumption that their testosterone levels exceed their estrogen levels. That presumption has been perpetuated for decades and is reinforced by the Jan Stephenson’s (golf) and Anna Kornikova’s (tennis) of the world – women athletes who weren’t successful on the field of play, but by exploiting their physical assets, proved to be more successful endorsers than their colleagues.

Tennis star Maria Sharapova has dispelled that belief, at least to some extent. The Russian beauty raked in the most endorsement money last year, $23 million according to Forbes, while also holding down the #1 ranking in her sport early in the year.

Patrick isn’t alone in the paucity of endorsement money earned by female athletes. Lorena Ochoa, the leading money winner on the LPGA Tour last year with $4.4 million in earnings, has accomplished something not even Tiger Woods has done, winning ten tournaments in fifteen starts. But while Tiger leads all athlete endorsers, earning in excess of $100 million per year, Ochoa’s $10 million in off-the-course income comes mainly from endorsements in her native Mexico.

Unlike Patrick, the 26-year-old Ochoa hasn’t posed for SI, doesn’t thirst for the limelight, and allows her brother, Alejandro, who resides in Guadalajara, to negotiate her sponsorship deals, rather than aligning herself with a U.S. marketing firm.

A bigger test for the strength of female endorsers looms on the horizon. Candace Parker, the star of Tennessee’s women’s basketball team, recently signed a professional contract with the Los Angeles Sparks of the WNBA. Parker is talented, having led the Lady Vols to two national championships, well-known even before playing her first professional game, good-looking, and…ahem… presumed to be heterosexual. She’s engaged to former Duke star Sheldon Williams, who currently plays for the NBA’s Sacramento Kings. Parker recently signed her first two endorsement deals, multi-million dollar agreements with Gatorade and Adidas. More sponsorship opportunities are sure to follow.

Regardless of whether a female athlete is born in the U.S. or in a foreign country, takes off her clothes or keeps them on, plays golf or drives a race car, she still lags her male counterpart in endorsement revenue by tens of millions of dollars. Perhaps we are merely witnessing the evolution of the perception of women from wives, mothers and homemakers, to athletes, and ultimately, to endorsers.

Or maybe the corporate world is populated by too many male decision makers who aren’t convinced that female athletes can move product. Perhaps Parker will be the first to prove she can sell as much product as her male counterparts. If that happens, she should expect to be compensated as much as a man.

• “[Your Business] At Wrigley Field” Still Being Considered – The Biz of Baseball
• Lawsuit Challenging Marlins Stadium Set For July – The Biz of Baseball
• Robin Ventura to Sub For Steve Stone this Weekend – The Biz of Baseball
• Kenney Outlines Funding for Wrigley Field, Renovation – The Biz of Baseball
• McNamee’’s Lawyers Sending PIs to Investigate Clemens - The Biz of Baseball
  
• Financial Book on the Cubs Expected This Week – The Biz of Baseball
• Following Up on MLB’s Indiana Jones Promo Tie-In – The Biz of Baseball
• MLBPA Looking Into Collusion with Free Agents – The Biz of Baseball
• SEE IT: 2008 MLB Draft Order. ESPN2 to Broadcast – The Biz of Baseball
• Biz of Baseball Organizational Report – Pittsburgh Pirates - The Biz of Baseball
• Pretty In Pink: Swisher, Danks, and Hall to Dye Facial Hair – The Biz of Baseball
• MLB Pushes Upcoming Indiana Jones Flick – The Biz of Baseball
• 2008 All-Star Game to Be Highest Revenue Maker Ever – The Biz of Baseball
• Interview – Kurt Badenhausen – Senior Editor Forbes – The Biz of Baseball

UPDATE (Late March, 2010) This was my first entry made regarding autism, 5 days after our son was diagnosed as being on the ASD scale. Here is what we’re are doing for April of 2010 From Matt Kemp to Alyssa Milano to Peter Gammons, Sports and Entertainers Offer Assistance for Autism Awareness

There is no category for this topic here. There is baseball, basketball, hockey, football, and auto racing, but there is nothing for topics of far more importance.

This, being my personal blog, has been about commentary on sports. It has never been about my views on matters outside of that.

And, it has never been a place where you would find anything personal. Today, that changes as I find myself placed in a new cause. It is one that touches myself, my family, and as I will outline below, a growing and alarming number of families.

Over the past year, our youngest son has not been developing at the rate that most children do. At first, we chalked this up to him just not accelerating at the rate of our first son, who was ahead of the curve. Now, coming up on the age of three, we saw that he was not communicating, even on rudimentary levels such as pointing when he wanted something. Only when prompted would he respond verbally to a very small list of known words. Things that we initially thought were cute were really signs of something else. There was the jumping up and down when he was excited, spinning in circles, and the one we thought was the funniest… never calling me “Daddy”, but rather, “Mamma. “

Given these signs, we met with his pediatrician and from there, other specialists. The diagnosis was that our son is autistic.

As my wife and family come to grips to this news, we now find ourselves in a life altering experience. The good news is that with early detection, one-on-one and what is called “mainstream” therapy, we can hope that our son will eventually be a productive part of society. What was alarming to me was the incredible trend of more and more being diagnosed within the ASD spectrum. There was a point where the word “autism” would elicit confused stares. Now, nearly everyone in America has a family member or friend touched by ASD.

Based upon this, I am challenging all that have a platform to do so, to link to this news below, or pass it along. Call it the sports autism challenge, whatever. The hope is that by getting this news to as many as possible in the hope that others can be educated.

The following information comes by way of the Autism Society of America:

• 1 out of 150 children in U.S.
• 1 out of 90 boys
• Affects four times as many boys as girls
• Lifetime cost of caring for a child with autism: $3.5 to $5 million
• Current annual cost to U.S.: $35 billion
• Estimated annual cost by 2010: $90 billion
• 1.5 million Americans affected

Researching has found information that will be valuable to my wife and I, and some indications that we now see as classic traits of autism spectrum disorder that are within our son’s behavior. Passing some of these behavioral traits along may help you, or someone you know, get their child to their pediatrician for an evaluation. Early detection is critical as the earlier a child is enrolled in therapy, the better the odds are that when they grow older they will be able to function in society.

Here are some signs to look for in the children in your life:

• Lack of or delay in spoken language
• Repetitive use of language and/or motor mannerisms (e.g., hand-flapping, twirling objects)
• Little or no eye contact
• Lack of interest in peer relationships
• Lack of spontaneous or make-believe play
• Persistent fixation on parts of objects
• Reaching a development milestone only to see regressively disappear
• Odd dietary behaviors, such as eating only starches
• No fear of danger

How can you help? Donate. Spread the word.

To Donate:

Donate to the Autism Society of America

As I said, there is no category here for social causes. However, this is the one time it seemed appropriate and a responsibility to do so. If you know someone with autism, please leave your comments.

OTHER NEWS ACROSS THE BUSINESS OF SPORTS NETWORK

• On Baseball Prospectus: Not Quite Catching All the Action – The Biz of Baseball
• BREAKING NEWS: MLB Drug Testing Policy Updated – The Biz of Baseball
• Curse? Red Sox T-Shirt in Slab of New Yankee Stadium – The Biz of Baseball
• MLB Drug Policy Oversight Will Not Be Wholly Independent -The Biz of Baseball
• Yahoo! & MLB.com Reach Video Distribution, Ad Sales Deal - The Biz of Baseball
• Red Sox Celebrate Home Opener In Style – The Biz of Baseball
• Red Sox to Raffle Off World Series Rings. Volvo C30 – The Biz of Baseball
• The Official “Red Sox Nation”? Stop the Bus, I Need Off. – The Biz of Baseball
• See It: NBA D-League Schedule Set – The Biz of Basketball
• NBA.com Shatters Traffic Record. Kobe Bryant & Pau Gasol Lead in Rankings – The Biz of Basketball
• CBS’ ‘Shinning Moment’ Down 6% from Last Year – The Biz of Basketball
• Nike and Kobe Bryant Launch Hyperdunk Basketball Shoe – The Biz of Basketball
• Walsh: Isiah Thomas To Coach End of Season. Any Changes Before Draft – The Biz of Basketball
• Emails Show Sonics Ownership Pushed as Early as April ‘07 to Relocate to Oklahoma City – The Biz of Basketball
• Bobcats Trade Stadium Naming Rights for New TV Deal – The Biz of Basketball
• Are NCAA Final Four Teams Actually Losing Money? – The Biz of Basketball
• It’s Awesome Baby! Vitale, Ewing, Olajuwon Among 2008 Naismith Hall of Fame Class – The Biz of Basketball
• Biz of Football Editor of Content Bill Jordan’s 2008 NFL Mock Draft – The Biz of Football
• Bears and United Airlines Reach Naming Deal for former Cadillac Club at Soldier Field – The Biz of Football
• Former Ram and Cardinal Sharpe Pleads Guilty to Four Drug Charges – The Biz of Football
• Detroit’s Fox Theatre Tower to Shine Red Throughout Red Wings Playoff Run – The Biz of Hockey
• Detroit Red Wings Announce Winners of ‘Are You In?’ Video Contest – The Biz of Hockey
• As Credit Crunch Hits, Purchase of Lightning Drags Out – The Biz of Hockey
• Republican and Democratic National Convention Leaders Have Friendly Wager on NHL Playoffs -The Biz of Hockey

Money talks, bullshit walks. That coarse and yet so fine phrase, born of poker, soon became the byword of the business arena, particularly when delivered by the man with the money to the schnook with the big idea. But what happens when money comes as part and parcel with bullshit, as is so often the case?

A couple of weeks ago Major League Baseball Advanced Media (MLBAM) and the Players Association (MLBPA) lost a court case to CDM Fantasy Sports, a Missouri corporation legally named CBC that markets, distributes and sells fantasy sports products, including fantasy baseball games accessible over the Internet. Ho hum, you might say; just another argument about money in which John Q. Public has no rooting interest.

Not so. This truly fascinating case, in which Mary Ann L. Medler, United States Magistrate Judge, ruled on August 8, was about more than “Who owns facts?” — specifically here, whether a fantasy baseball game could depict the names and statistics of active players without paying for the privilege. In background a Greek chorus might have intoned not only “Who owns sports?” but also “Who owns fame?”

Without doubt a transaction takes place between and among owner, club, and fan.

The club offers its credible intent to play hard and, often if not reliably, win.

The owner provides (with the aid of the general public, silent partner in all of sport) an arena for entertainment on site and via broadcast that augments spectators’ experience of the contest. He, in concert with other owners, also provides a league structure in which a championship may be contested and determined. Owner and players, in short, combine to make the game.

What does the fan contribute, besides his cash for a ticket, concessions, and parking when he goes to the game, or his inert fanny and eyeballs when advertisers bombard him at home? The fan may be said to own nothing yet give everything, for not only fortune but also fame are at one end of that two-way street in which the fan’s approbation and reward are at the other. The athlete may provide the accomplishment but the fan creates the fame; neither Organized Baseball nor the players seem fully cognizant of the vital role played by the proles.

The fan, the ordinary Joe, has no property or intellectual rights in the game of baseball. But as Judge Medler averred, he cannot be made to pay in one context for something that a purported vendor acknowledges is free to all in another. Are player statistics property, or are they public information? If I say 511, .406, or 73, do you know the players I am referencing (Cy Young, Ted Williams, Barry Bonds, respectively)? How about the uniform numbers 3, 7, 24, and 44 (most famously Babe Ruth, Mickey Mantle, Willie Mays, and Henry Aaron)?

In the legal proceeding neither MLBAM nor the MLBPA contended that numbers associated with players were anything but common facts in the public domain, beyond the proprietary interests of anyone who might look for the protection of copyright, trademark, or patent. If a company wished to depict the line below in a fantasy game it was OK with them:

G AB R H 2B 3B HR RBI SB CS BB SO BA OBP SLG
161 591 129 195 38 2 41 117 16 2 97 65 .330 .430 .609

If, however, an “unlicensed” (i.e., nonpaying) fantasy league like CBC combined that line with the name “Albert Pujols,” well then it was violating the player’s “right of publicity,” depriving him of the benefit of his good name and constricting his future earnings. Mind you, the MLBAM/MLBPA position was not opposed to such conjoined use by newspapers, television, or internet media, as these uses were clearly First Amendment protected instances of free speech and, besides, provided free publicity that tended to boost rather than crimp player and league revenues.

As the court summarized the opposing positions, “… the Players’ Association and Advanced Media clarified that they are not claiming that CBC cannot use players’ playing records or biographical data; that they are challenging CBC’s use of players’ names in conjunction with its fantasy baseball games; that they are claiming that the identities of players are represented by their names; that they are concerned with protecting the players’ names; and that they are claiming that CBC uses players’ names in its fantasy baseball games in violation of the players’ right of publicity.” In response to this view, “CBC stated that its position is that players’ names and playing records, as used in its fantasy baseball games, are preempted by copyright law; that CBC’s use of players’ names and playing records in its fantasy baseball games does not violate the players’ claimed right of publicity; and that even assuming, arguendo, that CBC’s use of players’ names and playing records violates the players’ right of publicity, the First Amendment controls.”

Unlike the right of privacy, which is a personal right, the right of publicity is generally regarded as a property right. Indeed, the right of publicity is a curious notion of startlingly recent birth. Conceptually it may be said to go back to King Kelly’s 1887 contract with the Boston Red Stockings, to whom he had just been traded by Chicago White Stockings. The contract called for $2000 in salary, in line with the league-wide salary cap, but also provided $3000 for the use of his likeness for advertising and promotional purposes. In reality, this was just a ploy to evade the salary limitations and induce Kelly to abide by the trade. As J. Gordon Hylton, Professor of Law at Marquette University, wrote, “What Kelly authorized was technically neither a trademark nor a copyright matter, but a waiver of what we today call his ‘right of publicity.’ The early history of the right of publicity is extremely murky, but this particular agreement seems to imply … that Kelly’s club could not use his image for commercial purposes without his permission. It would be interesting to know if early baseball card manufactures paid players for the use of their images. Honus Wagner’s ability to stop the printing of cigarette cards with his photos in the first decade of the 20th century also suggests that something like the right of publicity was recognized prior to 1910.”

However, the term was never used in a legal context until 1953. As Judge Medler wrote in her opinion, “A fairly recent concept, according to the Sixth Circuit in ETW Corporation v. Jireh Publishing, Inc., 332 F.3d 915, 929 (6th Cir. 2003), this right ‘was first recognized in Haelan Laboratories, Inc. v. Topps Chewing Gum. Inc., 202 F.2d 866 (2nd Cir. 1953), where the Second Circuit held that New York’s common law protected a baseball player’s right [Wes Westrum] in the publicity value of his photograph, and, in the process, coined the phrase ‘right of publicity’ as the name of this right.’ Subsequently, in Zacchini, 433 U.S. at 573, where a performer in a ‘human cannonball’ act sought to recover damages from a television broadcast of his entire performance, the Supreme Court recognized that the right of publicity protects the proprietary interest of an individual to ‘reap the reward of his endeavors.’”

The poor devil Zacchini won his suit because his act, his sole means of livelihood, was expropriated. “However,” Judge Medler wrote, “CBC’s use of Major League baseball players’ names and playing records in fantasy baseball games does not go to the heart of the players’ ability to earn a living as baseball players; the baseball players earn a living playing baseball and endorsing products; they do not earn a living by the publication of their playing records. See Zacchini, 433 U.S. at 576. Moreover, CBC’s use of Major League baseball players’ names and playing records [unlike the complete depiction of Zacchini’s human-cannonball shot] does not give CBC something free for which it would otherwise be required to pay; players’ records are readily available in the public domain.”

On the free-speech front, the judge continued, “CBC argues, in the event it has violated the players’ right of publicity, that speech is involved in its fantasy games; that this speech does not differ from raw statistics published in newspapers; that the speech involved in its fantasy games is expression which is protected under the First Amendment; and that the First Amendment trumps the right of publicity in the circumstances of this case. The Players’ Association and Advanced Media argue that CBC’s games do not involve speech or the expression of ideas; that what is at issue in this matter is not speech; and that, therefore, the First Amendment does not apply.”

Wrong. Again from the ruling: “Speech which does not use ‘a traditional medium of expression’ does not receive less protection than more traditional means of speech…. As such, the First Amendment has been applied to flag burning, nude dancing, and wearing a jacket with obscenities. Id. (citations omitted). Moreover, the fact that expression appears in a novel medium does not preclude its being subject to First Amendment protection.”

An earlier landmark case in this area of nontraditional free speech involved the World Wrestling Federation (in Titan Sports v. Comics World, 87-0178). In 1989 Judge Peter K. Leisure ruled in the Southern District of New York that a poster bound into various wrestling magazines was not an infringement of the wrestlers’ right of publicity, even though the poster was bound and stapled into the center and could not be viewed without removing it from the magazine, which itself of course was first-amendment protected. “The constitutional protection of the freedom of the press does not stop at 8″ x 11,” the judge ruled.

Returning to baseball, a sport in which the conclusion is not scripted, Judge Medler added: “A defendant’s making a profit does not preclude its receiving First Amendment protection…. The court finds, therefore, that CBC’s deriving a profit from its use of the names and playing records of Major League baseball players in its fantasy baseball games does not preclude such use from having First Amendment protection.”

Baseball has always been, in the words of long departed Cubs’ owner Phil Wrigley, “Too much of a sport to be a business and too much of a business to be a sport.” Amen.

As I suspected he might, George Herman Ruth paid me another nocturnal visit last week, after Barry Bonds hit home run number 715 and consigned him to third place on the all-time list. As I had mentioned in this space (I Dreamed I Saw Babe Ruth Last Night, May 12, 2006), I had questions ready for him, but he knew what he wanted to say and would brook no interruption from this mere mortal.

“You know, this Barry Bonds thing didn’t bother me a bit. Not before he hit 715, not now. Henry Aaron already had my record, and I didn’t exactly disappear after he passed me, did I? There will be others to come, too, maybe Rodriguez or this Pujols kid. Folks are missing the point here: Henry wasn’t really chasing me, no more than Barry’s now chasing him. Barry is being chased — by Father Time, like I was.

“I was through as a ballplayer by 1934, when I thought I was 40 (later on somebody dug up my birth certificate and it turned out I was I was born a year later than I had always been led to believe). I had 708 home runs by the end of that season, my last with the Yankees, and that was enough for me; the home run record had been mine since mid-1921, when I hit my 139th to pass Roger Connor. Oh, I could still hit better than most — I probably could have socked 800 home runs if that designated-hitter rule had been around, and I could have hit .600 if all I wanted was to be a dinky singles hitter like Cobb — but I couldn’t cover ground in the outfield any more. I wanted to stay in baseball more than I ever wanted anything in my life. But in 1935 there was no job for me, unless I agreed to play. That’s why I took to the field that one last time for the Boston Braves: I thought the deal was that if I brought the fans to the ballpark by playing every now and then, they’d name me the manager soon enough. Didn’t work out that way, though, and I’ve got to admit it embittered me. I would sit by the phone, waiting for the call that never came.

“I hit six home runs in that spring of 1935, before I walked away. The final three came in the same game, at Pittsburgh in late May. I really caught that last one, number 714, sent it clear over the roof at Forbes Field, and no one had ever done that. Guy Bush was on the mound for the Pirates, the same pitcher that we’d just clobbered when he pitched for the Cubs in the last World Series I played in. Now I didn’t much like anyone on that Cubs team, the way they shortchanged mark Koenig, who used to be our shortstop, and the way they razzed me. So when I hit this ball over the roof in Pittsburgh, it kinda tickled me that I hit it off Bush. In fact, I hit my second home run that day off him too, cause he was just a relief pitcher, on the skids in 1935 like I was. But as I hobbled around third base, I looked over there at him and he kind of looked at me. He tipped his cap, sort of to say, ‘I’ve seen everything now, Babe.’ I looked back at him and saluted and smiled. Let bygones be bygones, I say. I’ve got nothing against Bush, nor against Charlie Root, the Cub pitcher when I called the shot.

“Aw, everybody knows that game — October 1, the third game of the 1932 World Series. But right now I want to settle all arguments: I didn’t exactly point to any one spot, like the flagpole. Anyway, I didn’t mean to. I just sorta waved at the whole fence, but that was foolish enough. All I wanted to do was give that thing a ride … outta the park … anywhere.

“I’d had a lot of trouble in ’32, and we weren’t any cinches to win that pennant, either, because Lefty Grove was trying to keep the Athletics up there for their fourth straight flag, and sometime in June I pulled a muscle in my right leg chasing a fly ball. I was on the bench about three weeks, and when I started to play again, I had to wear a rubber bandage from my hip to my knee. You know, the ol’ Babe wasn’t getting any younger and Jimmie Foxx was ahead of me in homers. I was eleven behind him early in September and never did catch up. I wouldn’t get one good ball a series to swing at. I remember one whole week when I’ll bet I was walked four times in every game. Believe me, Barry Bonds wasn’t the first one they pitched around.

“Anyway, we got into Chicago for the third game — we’d taken the first two in NewYork. They were in front of their home folks, and I guess they’d thought they better act tough: that’s where those Cubs decided to really get on us. Then in the very first inning I got a hold of one with two on and parked it in the stands for a three-run lead and that shut ’em up pretty well. But they came back with some runs and we were tied 4-4 going into the fifth frame.

“I told Hartnett, ‘If that bum, Root, throws me in here, I’ll hit it over the fence again.’ Gabby, didn’t answer, but those other guys were standing up in the dugout, cocky because they’d got four runs back and everybody hollering. So I just changed my mind. I took two strikes and after each one I held up my finger and said, ‘That’s one’ and ‘that’s two.’ Gabby could hear me. That’s when I waved to the fence.

“No, I didn’t point to any spot, but as long as I’d called the first two strikes on myself, I hadda go through with it. It was damned foolishness, sure, but I just felt like doing it, and I felt pretty sure Root would put one close enough for me to cut at, because I was showing him up.

“Gosh, that was a great feeling… getting a hold of that ball and I knew it was going someplace … yessir, you can feel it in your hands when you’ve laid wood on one. How that mob howled. Me? I just laughed … laughed to myself going around the bases and thinking, “You lucky bum … lucky, lucky bum.’

“Yeah, it was silly. I was a blankety-blank fool. But I got away with it and after Lou Gehrig homered, behind me, their backs were broken. That was a day to talk about. In batting practice before the game, I had whacked out homer after homer. I hollered to some fans , ‘I’d play for half my salary if I could hit in this dump all the time.’ You see, Yankee Stadium wasn’t a slugger’s park for me or for Gehrig — we weren’t dead-pull hitters. I’ll tell you, I cried when they took me out of the Polo Grounds after 1922. That was some park. I’d hit only 9 home runs at Fenway my last year with the Red Sox, in 1919, but when the Polo Grounds became my home park, I hit 29 of my 54 there, and 32 of 59 the next year.

“I hit my 60 home runs in 1927 — only 28 in Yankee Stadium — before many of the parks had been changed so as to favor the home-run hitter. I hit them into the same parks where, only a decade before, ten or twelve homers were good enough to win the title. They said they livened up the ball for me, and some of the writers called it the jack-rabbit ball. Well, if they put some of the jack in it around the 1927 period, they put the entire rabbit into it in 1961 and at the same time shortened a lot of fences. And most of these new parks they’ve built recently are smaller than the ones they replaced, so I wasn’t surprised one bit when McGwire, Sosa, and Bonds blew past Roger Maris’s 61.

“But make no mistake about San Francisco. This new park may be better for hitters than Candlestick was (Willie Mays sure caught a bad break when the Giants moved there, just as fortune smiled on Aaron when the Braves moved from Milwaukee to Atlanta). But Pac Bell is still tough — no one except Barry consistently hits the long ball there.

“As to the lifetime mark, Henry has held it for 32 years now, since 1974. I held it for 53 years. If Barry wants to hit 756, he should copy what Henry and I did: we extended our careers by shifting leagues. I hit my last six in the National League, and Henry hit his last 20 in the American League.

“Take my advice, Barry. You cover the outfield now about as well as I did in 1935, which ain’t sayin’ much. And gee, it’s lonesome in the outfield. It’s hard to keep awake with nothing much to do, and then have to accelerate like a racecar when a ball is hit in your direction. Do what Henry did and what I wished I coulda done: become a DH.

“And I have just the place for you: Yankee Stadium. Wear the pinstripes — not next year but this summer. Waive your no-trade clause and reward the Giants by letting them get a prospect or two in a trade to New York. While you’re at it, get a two-year extension of your current contract from the Yankees, whose corner outfielders may not come back healthy this year.

“Do this, Barry, and you’ll win the World Series, which you’ve always wanted to do.”

And then I woke up.

John Thornwrites “Play’s the Thing,” a column for the Woodstock Times, in which this piece first appeared. He is the author and editor of many baseball books.

I dreamed I saw Babe Ruth last night
Alive as you and me,
Says I “But Babe, you’re so long dead!”
“I never died,” says he.
“I never died,” says he.

“In your casket, by God,” says I,
Him standing by my bed,
“They laid you out for all to see.”
Says Babe, “But I ain’t dead.”
Says Babe, “But I ain’t dead.”

“Bonds and Aaron passed you, Babe;
They passed you, Babe,” says I.
“Takes more than them to beat my mark,”
Says Babe, “I didn’t die.”
Says Babe, “I didn’t die.”

And standing there as big as life,
And smiling with his eyes,
Babe says, “What they forgot to beat
You now mythologize.
You now mythologize.”

“From San Diego up to Maine,
Where fans still seek the truth,
And players love the old ball game,
Says he, “You’ll find Babe Ruth.”
Says he, “You’ll find Babe Ruth.”

Barry Bonds is at this writing closing in on Babe Ruth’s longtime record of 714 home runs, the last signpost on the rocky road to his ultimate destination, Henry Aaron’s mark of 755. By declaring that Major League Baseball would not commemorate Bonds’ 715th, whenever it came, as that would only create a new entrant into second place, Commissioner Bud Selig was not being unfair, but he may have been engaging in early-warning damage control. If performance-enhancing drugs are determined to have fueled the Giant star’s assault on the record books, the Commissioner will be sure to authorize a rather subdued celebration if and when he hits No. 756.

Last night as I drifted off to sleep, my mind was spinning about the journalists’ umbrage, the fans’ moralistic contempt, and the startling level of venom that follows Barry from one city to the next, as if Hitler were playing left field for San Francisco. What would the Babe feel about all this, I wondered? What would he say to Barry, to Bud, to you?

And in an instant, there he was, ready to reveal all without so much as a question from me.

“Hot as hell, ain’t it, kid? Hot for everybody in baseball, hot for the game itself. Sometimes I look down on all this hubbub and wonder whether anyone can come out of this all right. Me? I’m past reckoning with, but if I all I am today is that number, 714, then I sure made a mistake in the way I lived my life. Henry Aaron didn’t take anything away from me when hit more home runs. He just achieved something great that was all his own, and he did it under terrible pressures that I never had to face. See, I’d had the home run record ever since 1921, when I hit my 139th, so 714 meant nothing to me except that it was the first ball to fly out of Forbes Field in Pittsburgh and the last I would hit as a big leaguer. Playing ball was a nonstop joyride for me, even with the fusses now and then with Judge Landis or Miller Huggins. My heartaches came earlier and later than my baseball days, that’s why I hate to see Barry trudging forward, having no fun when this should be the greatest time of his life.

“Looking back on my boyhood, I honestly don’t remember being aware of the difference between right and wrong. I was a bad kid. My parents tossed me into an orphanage in Baltimore — St. Mary’s Industrial Home — when I was seven and they never came to visit, not one Sunday in twelve years. Well, I guess I was just too big and ugly for anyone to come see me. It wasn’t until I signed a baseball contract with the Orioles that I left St. Mary’s, at age nineteen. Mind you, I’m not complaining about the school or the way the Xavierian Brothers treated me. Brother Matthias was the man who introduced me to baseball and gave me my life’s calling — though it wasn’t much compared to his, that’s for certain. What I became, what I had, what I left behind me — all this I owe to the game of baseball, without which I would have come out of St. Mary’s a tailor, and a pretty bad one, at that.

“Barry, you seem to have led a charmed life early, but maybe your troubles were just waiting for you to reach the top so that the tumble would be more bruising. I don’t know what you did that made you become so great a home run hitter in your late years, when all the rest of us players would be winding down. Life may begin at forty for people in other lines of work, but that’s where it ends, more or less, for the baseball player. For me, I knew it was time to quit when it started to feel as if all the baselines ran uphill. Maybe what you did to stay in peak condition wrinkled somebody’s nose, maybe it upset the Commissioner or broke some rule, or maybe you even broke the law. I did the same, in my own day and in my own way, so I’m not one to judge. We had a thing called the Volstead Act and I broke it every day until it was repealed. I’ll tell you, Barry, I admire your God-given ability, your work habits and conditioning (these were not exactly priorities for me), your dedication to being the best, and not letting the bastards get you down.

“When I was a ballplayer, if I made a home run every time I came to bat, the fans would think I was all right. If I didn’t, they thought they could call me anything they liked. They had vile mouths then, those bums in the stands, even worse than today’s boo-birds, and I charged in after them more than once I’m sorry to say.

“Barry, don’t ever forget two things I’m going to tell you. One, don’t believe everything that’s written about you. Two, don’t pick up too many checks. Even with today’s big paychecks, a guy could go broke. Oh, and I guess there’s a third thing: scallions. Flaxseed oil may be great stuff, but scallions are the sure cure for any batting slump.

“Commissioners? I never had much use for them. Ford Frick was a friend going back to when he was a newspaper writer, but he came on the job long after I was through. Judge Landis was a ham actor from a tank town thrust onto a Broadway stage. A petty tyrant, yes, but I’ll give him this: despite his many wrongheaded ideas and decisions, at least he thought he was acting in the best interests of the game. To Bud Selig I would offer the ame advice I give to young players just learning the game of ball: never let the fear of striking out get in your way. Sure, the owners hired and they can fire you, but so what? Take care of the game, the game that has given so much to so many, including you. Don’t kowtow to Congress or cozy up to the bankers or forget fair play. Do the right thing by the game, always the game.

“To the fans I would say baseball was, is, and always will be to me the best game in the world. It’s bigger than the players, the owners, and the fans. As I once said of Ty Cobb, who later became my friendly golf partner in charity events, you might say about Barry Bonds—that he is a *****. But he sure can hit. God Almighty, that man can hit. Give him his due.

“I’ve heard people say that the trouble with the world is that we haven’t enough great leaders. I think we haven’t enough great followers. I have stood side by side with great thinkers — surgeons, engineers, economists, men who deserve a great following — and have heard the crowd cheer me instead. If there’s a mess in baseball right now, you fans don’t exactly have clean hands. You wanted home runs from all spots up and down the lineup, and you cheered as the ballparks became smaller and the ballplayers grew larger. Didn’t some Boston writer once say, ‘Beware of what you want … you just might get it?’

“I honestly don’t know anybody who wanted to live more than I did. It was a driving wish that was always with me in those days after I left baseball, a wish that only a person who has been close to death can know and understand. It was hell to get older. But now I see that I get to live forever. Every home run recalls my name. I hope it will for Barry too, and Henry Aaron, and Maris, McGwire, Sosa, and more.”

And then Babe faded from view. I had more questions for him, about his own life, his legendary feats, how he thought he would fare as a player today, what his stats would look like. And I really wanted to know what he thought about baseball’s future, as a national pastime and an increasingly international one.

Maybe he’ll check in again after Bonds hits No. 715.

John Thornwrites “Play’s the Thing,” a column for the Woodstock Times, in which this piece first appeared. He is the author and editor of many baseball books.

One of the more overlooked factors during the various rounds of collective bargaining is the fact that often the problems have resulted from frictions within the ranks of ownership. Revenue disparity has been a sore spot between the haves and the have-nots for as long as there have been haves and have-nots.

Granted, before the era of free agency it didn’t get much ink since all the smaller revenue teams had to do was pay their players less than larger revenue clubs did and that was that.

The players’ salaries–or lack thereof– were the great equalizer.

Where disparity caused most of the problems was due to the cost of the best minor leaguers (before Branch Rickey originated the farm system minor leagues were completely independent entities that made most of their money from selling their developed talent to major league clubs) or bidding on the best amateur players before the advent of the draft in 1965. These factors are what gave the Yankees such a huge advantage from 1921-64. The Bronx Bombers’ revenues from the New York market also enabled them to purchase talented players outright from their poorer brethren. Then general manager George Weiss exploited these advantages ruthlessly even as it threatened to destroy the American League.

Unable to come to any kind of accord among themselves to deal with these problems decided to do what they did best–screw the players. They had full control of the professional talent but not the amateur players who could pick and choose which team they ultimately signed their futures away to.

Signing amateurs could be costly too. A top kid’s first professional contract could easily exceed several times over what the league batting champ made in a given year.

Hence the draft. It was the “reserve clause” for amateurs–instead of negotiating with every team in the major leagues, they could only negotiate with one…the one that “drafted” him.

As teams like the Baltimore Orioles (formerly the inept St. Louis Browns), Minnesota Twins (nee the “first in war, first in peace, and last in the American League” Washington Senators), Pittsburgh Pirates, Cincinnati Reds and Oakland A’s (who despite some bright spots were considered doormats in Philadelphia and Kansas City) began to enjoy significant success it appeared that the problem was solved somewhat.

Until Marvin Miller finally unshackled the players from the reserve clause.

With free agency now in the system the big money teams now enjoyed an advantage. Due to salary arbitration (where players were compared with similar players regardless of what market the played in) large revenue clubs also escalated the cost of doing business for small market teams. Under the old reserve system if the Yankees wanted to pay a $100,000 to a .275 hitting first baseman a team like the Cleveland Indians were under no obligation to do likewise. Under the new system if one team paid $100,000 for a player of a certain talent level then all teams would have to do come within close proximity to that total.

Once again the disparity of revenues caused tension in ownership ranks. Since self-interest traditionally ruled the day no solution could be found to the problem. So the owners did what they did best; wring the solution out of the collective hide of the players. However now they couldn’t act unilaterally, they had to deal with the powerful players’ union (MLBPA). In the early going they tried a free agent compensation scheme where a team signing a free agent had to give up one of ten unprotected players on the 25-man roster.

That led to the strike of 1981.

Then they tried to get rid of salary arbitration.

That led to the strike of 1985.

Then they tried to create a system where the players got a fixed percentage of league revenues (league revenues being defined as whatever the league said they were) in exchange for a salary scale based solely on a quirky mathematical formula regarding players’ stats.

That led to the lockout of 1990.

And of course we had the great salary cap drive that led to the cancellation of the final part of the 1994 season and with it the post season.

In each case the scenario was the same: the owners couldn’t agree amongst themselves on how to deal with the widening gulf between large and small revenue teams and could only agree on trying to get the players to solve the problem for them.

When the last collective bargaining agreement was ratified a stiff luxury tax and more comprehensive revenue sharing was brought in and the MLBPA agreed to it.

What should be a happily ever after might be derailed due to–you guessed it–the owners. With the CBA due to be negotiated it appears that the biggest issues don’t necessarily involve the players but it could be the MLBPA that is asked to shoulder the burden of irresponsible owner behavior.

When the MLBPA stopped the players from being such an easy solution for owner problems and they didn’t want to solve their difficulties themselves, they started turning to their communities for help. The big push came after the construction of Camden Yards which set off the current boom of cookie-cutter retro parks. Now a team whined that both the players and the large market teams were out to get them and to compete in this unfair environment was via several hundred million dollars in free money for stadium construction.

Fortunately communities have started to wise up (somewhat) and realized that spending lavishly on professional sports made owner and player alike a lot wealthier but didn’t do too much for the local economy.

However some owners have either alienated their communities (Florida) or the MLBPA by taking revenue sharing dollars and not putting it into payroll (Minnesota, Tampa Bay, Florida, and Kansas City) or their fan bases by taking public money for stadiums and keeping the payroll below a competitive level (Pittsburgh, Detroit, Milwaukee under Selig, Cincinnati) in their lust for ill-gotten gains.

In many cases having wrung out the community cash cow they now have to turn to their big-market brethren for more revenue sharing subsidies which they’ve already demonstrated might not go toward making their clubs more competitive.

Suffice it to say, expect some resistance to that idea.

So where will they turn to improve their profitability without having to invest or earn it?

One thing the owners have always agreed on–take it from the players. They will point out that this year the Yankees payroll was $200 million while the Marlins was smaller than David Samson ($15 million) and will demand what the hell the MLBPA plans to do to rectify the problem.

Of course the players aren’t the problem despite what you read in the media. It has always began and ended with the guys in the suits.

Stay tuned. There could be a bumpy road still ahead.

John Brattain is a staff writer for The Hardball Times. His work has been featured at About.com, MLBtalk, Yankees.com, Replacement Level Yankee Weblog, TOTK.com, Bootleg Sports, and Baseball Prospectus. He welcomes comments, questions and suggestions via e-mail.