Thoughts on Sports

I need to write about sports. There are a few very unrelated things that have been weighing on my mind:

#1: Rafael Nadal.

Rafael Nadal is one of the greatest tennis players to ever play the game. He is a competitor. I think that’s why I like him so much. He plays every point like it is match point.

I’m not writing this to say that Nadal is the greatest tennis player ever. In fact, if you twisted my arm, I would probably have to say it is Federer—notwithstanding Nadal’s overwhelming dominance in head-to-head matches (14-7 overall; 5-2 in slam finals). I’m writing this to say that the year Nadal is having is the best year that any player has ever had. You’re probably screaming at the computer screen right now saying, “What about Rod Laver in 1969!” Sure, Laver is the only man to have won all 4 majors in the same calendar year, but he was a grass guy and back in ’69, three of the four majors were played on grass.

Nadal won three of the four majors this year: the French Open on clay, Wimbledon on grass, and the US Open on hard courts. That has never been done. That speaks volumes about both his ability and his work ethic. Just two years ago he was seen as nothing more than a clay court specialist who could never win on hard courts. He was a defensive worker who couldn’t cope with the pace on hard courts. He had a very below average serve and usually just spun it in. Now how’s he doing? He has one of the strongest serves on tour, he’s the favorite in any tournament regardless of the surface, he won three majors this year, and he just stormed through the hard courts of the US Open dropping only one set the entire tournament. With that win at the US Open, Nadal became just the seventh man to win all four majors…and he’s only 24 years old.

Another reason why I like Nadal is because of his humility in all of his interviews. Nadal always deflects the praise, focuses on the task at hand, compliments his opponents, and is very polite to everybody around him. I’m a Nadal fan.

#2: Derek Jeter.

One of my roommates is a huge Yankees fan (he does have redeeming qualities though). I watched a couple innings of their game last week (1 of 162) and saw something that really caught my eye. Derek Jeter, a noted “classy” guy in the MLB, was up to bat and there was a pitch high and inside. Instinctively, Jeter flinched back to get out of the way of the ball. In doing so, the ball struck the butt of the handle of bat and then went into foul territory. The correct call is obviously a foul ball. However, Jeter was hunched over in feigned agony pretending that the ball hit him. The ump decided that it did hit Jeter and subsequently awarded him first base. The opposing team was irate and, after the game, Jeter admitted that it should have been a foul ball.

What really grabbed my attention was the praise that Jeter got for his “smart” play, “quick” thinking,” “gamesmanship,” “do-whatever-it-takes attitude,” etc. I think up until recently I would have agreed with the praise. Wally Matthews on ESPN said that those words are starting to simply become code words for bad sportsmanship and the kind of behavior that would not be tolerated in any other line of work. I’m starting to agree. I think baseball would have been better off if Jeter told the ump that the ball didn’t hit him. Basketball would be better if Manu Ginobli & Co didn’t flop every time down the court. Football has things like this too though I don’t find them as egregious (receivers trapping the ball claiming they caught it, players wrestling for a ball after the whistle at the bottom of a pile). Maybe they don’t bother me as much in football because replay rules generally produce the right call. That’s why tennis is the best sport. None of this goes on in tennis. There is no flopping in tennis…except in this clip that Hiller sent me.

A Taste of Law School

(Disclosure: This post is probably very boring to most of you. I don’t expect anyone to read it, let alone enjoy it. I’m writing it mostly because Jason said that he thought it might be interesting to see what goes on in law school. This entry is basically a synthesis of readings I did today on contracts made under duress. Point being: I haven’t been to class to discuss it so it might be ‘completely opposite’ what I should have gotten out of it. Take it for what it’s worth. I’m writing on this not necessarily because I find it particularly interesting but simply because I just finished reading it.)

Assuming that the form is correct, courts are not in the business of controlling contracts (generally). If a contract is made, and there is consideration on both sides then typically that contract is valid. Courts enter the picture when one of the parties named breaches the terms established by both sides. It is not the role of the court (again generally) to determine which contracts are “fair.” However there are some instances that that allow courts to say that a contract was not valid to begin with and, consequently, neither party is bound by the terms. Duress is one such instance.

The doctrine of duress (in the context of contracts) is an effort to establish the boundary between proper and improper advantage-taking. Individual freedom turns on having a large degree of choice. Contracts entered under duress strain that individual freedom. If I point a gun at your head and threaten to kill you unless you make a contract, the resulting agreement is not an expression of free choice. Not surprisingly, the courts refuse to enforce such a contract.

The above example is obviously an extreme example. What becomes difficult is establishing where to draw the line of duress. The classic doctrine says that a threat to do what you are legally entitled to do cannot be duress.

Case law has changed this standard over the last 50 years. There was a case in Texas in which a truck driver named Mitchell for Herrin Transportation Company was injured in a car accident on the job. Mitchell was not at fault but Herrin wanted to secure a prompt settlement of its claim for damages to the truck. In the settlement negotiations, the insurance company of the other driver did not want to pay Herrin until it also received releases from Mitchell for any claim he might have arising out of the accident (apparently a common practice). In its desire to close the settlement, Herron threatened Mitchell that unless he signed the release, he would be fired. Mitchell signed but subsequently brought an action for his injuries. He asked the court to set aside the release on the ground that they had been secured through duress. After a series of trials and appeals, it was determined that the release (a contract) was voidable because it was made under duress.

This case changed the standard. Before, the rule was that duress could only be established if there was a threat to do some act which the party threatening had no legal right to do. Mitchell was at employee at will. Legally, Herrin could fire Mitchell for any reason with or without cause. The court determined that this type of threat can constitute duress if the threat to fire someone is employed as means to force an employee to sign a release of action. There have been several cases in addition to the Mitchell case that have similarly ruled. The rationale is that the parties are not on equal footing in such cases.

Was the court right and how far should they be entitled to go? In Professor Dalton’s words, the problem is “isolating just those kinds of impairment [of bargaining power] that the law is prepared to redress without feeling that the whole structure of bargaining between unequals is put in jeopardy.”

The Restatement on Contracts (basically what respected scholars say case law is) says the test for duress turns on “unfair exchange,” “unfair dealing,” or “the use of power for illegitimate ends.” Those words seems like very uncertain measures of appropriate conduct.

What should the rule be? Should we go back to the classic definition that hinges on legality? Should we limit it to only illegal threats and threats of employment (though many hypotheticals could be thought up that are like employment settings but not)? Or should we leave it up to the judge or jury to determine what is a “fair exchange,” and a “fair dealing”?