William Birdthistle’s posts on how various governance mechanisms affect international soccer matches have me thinking more broadly about how governance differs from sport to sport, and about why legal scholars might care.  Some examples that I picked up today:
Following a hit by Robert Horry (Spurs) on Steve Nash (Suns) that nearly provoked a brawl last night, Gordon Smith points out ambiguities in the National Basketball Association rule that prohibits players from leaving the bench during a fight. Is Amare Stoudemire going to be ruled out of Game 5 because he made a move in the direction of Nash’s rush at Horry? (Side note here: I may actually watch Game 5 of the Suns/Spurs playoff series. I’m no basketball fan, but this series has more drama than a Martin Scorsese movie, and almost as much violence.)
Two other rules-of-the game stories today raise governance-in-sports issues of a related but different sort:Â
Can an athlete who uses prosthetic limbs — a sprinter, in this case — be barred from competing against athletes who don’t? The situation may literally be without precedent.
and
Are there any circumstances under which an athlete — a cyclist, in this case — may use synthetic devices to improve his performance? A post-race panel of arbitrators will decide.
In this post, I’m less interested in answers to these specific questions and more interested in whether thinking about the advantages and drawbacks of governance structures in different sports — the role of the referee(s); the structure of the rules or laws of the game; the availability and features of post-competition review, for example — can tell legal scholars anything of specific value when they go out to assess governance in institutional settings that they are more accustomed to studying, such as firms and markets. William Birdthistle takes as a given, in soccer, that the role of the referee should be minimized. (I agree, for the most part!) When and how might that carry over? Regarding the track and cycling cases, who should determine what constitutes an unfair competitive advantage, or poses undue risks to competitors, and what institutional mechanism(s) should be used to decide those questions? Those, too, sound like questions that legal scholars are accustomed to asking. But I may be out of bounds, so to speak.  Are the aesthetics of each sport sui generis?
I’m afraid I’m going to respond a bit about goals, as opposed to governance, but I think the latter depends on the former. What are the goals of authorities in each of the sports? I think the key is to maintain some competitive equilibrium, ala Weiler’s Leveling the Playing Field. No one wants to watch one dominant team cream its opponents over and over again. Ala Wark’s Gamer Theory, the game has to be a bit fairer than the world at large, or else why play (or watch).
Note how different it would be if we were just looking for the “fastest” sprinter….or allowed “anything goes” in soccer or football (see, e.g., the flying wedge).
As for the aesthetics of each sport–very interesting term of judgment there. I think you’re suggesting that there are no criteria external to the game to judge it–that it’s a matter of artistry.
As for “who should determine”: I suppose the team owners (or sponsors) should nominate a board. My only worry about self-governance is that the board may soft-pedal safety concerns, or promote unfair and wasteful competition, merely to increase the audeince for the sport vis a vis other sports. (i.e., may turn a blind eye to steroids in bball, or crashes in NASCAR). That possibility makes me want to see some people outside the sport, with no financial interest in it, make the calls.
Finally, as to substantive guidance on performance enhancement, here’s my hack at it:
http://www.concurringopinions.com/archives/2007/05/limits_of_perfo.html
Actually, I think that in many sports there are large numbers of fans who really would like one team or one athlete (their team, or their favorite athlete, to be sure) to dominate all opponents, all the time.
And I think the point illustrates that starting with “goals” rather than “tools” can be problematic. There are the goals of the internal (sport-specific) authorities, goals of external authorities (general law-giving and norm-generating institutions), and there are the goals of the fans (themselves divided into fans-of-a-particular-team and fans-of-the-sport-in-general). These overlap, but they’re distinct, and it’s difficult to come up with a standard that prioritizes them in a consistent and coherent manner.
Instead, I’ll hypothesize that “governance,” meaning respecting all of those interests at once in a flexible framework, is itself a viable methodology, and that the “aesthetics” of governance is viable representation of that domain — where some of the interests overlap, but many don’t, and the best that the regime can do is flexibly anticipate and respond to different stresses. Many of the “aesthetic” criteria in play are internal, but some are external and still widely accepted as legitimate (take Title IX, for example).
I’ll also submit that the NBA’s decision to suspend Stoudamire shows precisely how an inflexible and one dimensional adjucative regime can lead to wrongheaded results.
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