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Right now the Supreme Court of the United States is deciding whether or not to grant a writ of certiorari to the Major League Baseball Player Association and Major League Baseball Advanced Media in their appeal of an 8th Circuit decision affirming the right of a Fantasy football provider to use major league statistics. That's a hell of an opening sentence. Please don't stop reading. There are nude photos of Ruth Bader Ginsburg at the end of the column.
Here is the 8th Circuit opinion for those of you who are lawyers and want to bill your clients for reading a case. It's actually fairly interesting as lawyering goes because, you know, you probably care who wins the Fantasy sports case more than you do who wins most of the cases you're billing your clients for.
In order for the Supreme Court to grant the writ, four justices must agree to hear the case. Given the small percentage of appealed cases that the court chooses to review, it's unlikely this case will be heard. Nevertheless Fantasy sports players can go ahead and dream what John Paul Stevens would write about Fantasy sports. And whether he would think, like my friend Brittany, that Fantasy sports games somehow involve sex. If only.
Chances are Stevens' summation of Fantasy sports would be almost as enjoyable as this legal footnote from United States v. Murphy about the meaning of the word ho and how it relates to the garden hoe. The judge cites Ludacris. In my mind this is the greatest footnote in legal history. Like Babe Ruth's 1927 season.
I'm in the process of drafting a column for readers who are applying to law school since, shockingly, I'm often e-mailed asking my opinion of law school and the law school admissions process. That column will be next week, just in time to beat the acceptance deadlines. Basically it will redefine the legal field. Just as my college advice column back in October redefined collegiate admissions.
Until then, reading about the legality of Fantasy sports really got me thinking about how the Supreme Court justices would bring their personal experiences to bear in deciding this case. This is the kind of outside-the-box legal thinking that keeps one from actually practicing law full-time. Not surprisingly, I have done something like this before.
During my second year of law school I worked at a big Nashville firm. One of my assignments was to predict how the 6th Circuit judges were likely to rule on a case. I don't remember the particular fact pattern but I remember that I, with no actual knowledge of the judges, did a great job predicting their likely ruling patterns. I analyzed their biographies, noted who appointed them, worked for several hours on psychological profiles, and produced an utterly invaluable opus of judicial analysis. What's worse, someone paid me to do this. And by someone I mean a client. Poor bastards.
So I decided to do this again. How would the Supreme Court justices respond to a fantasy sports appeal based upon their own personal sports biographies and likely fantasy sports archetypes? Enjoy. If the Supreme Court picks up the case, you can cut and paste my reasoning and bill your clients 4.3 hours (or whatever other random number you deem appropriate.)
Antonin Scalia: Has 28 grandchildren. Is acerbic. If he were in Fantasy football league he would be the guy who only posts sarcastic messages. One day he would write something like, "I have cancer and am going to die in two months. Who wants to trade for LaDanian Tomlinson?"
You would sit around in front of your computer for about an hour thinking about whether or not he was being mordantly sarcastic or was actually dying. When you finally e-mailed him asking who he'd be willing to accept for LaDanian he would write something snappy like, "You fool, that was a joke. Pure fantasy dicta."
Would likely begin his strictly textualist opinion thusly: "The Constitution does not mention fantasy sports so they, much like the Air Force, cannot exist."
Clarence Thomas: Most people don't know Clarence Thomas could bench 400 pounds and dunk a basketball at one point in his life. This means he'd be one of those former athletes who keeps reliving his past sports glory by constantly posting about how playing Fantasy sports is lame because he could once dunk. Would likely begin his analysis thusly: "I concur."
John Roberts: Former captain of his high school football team who memorably described himself as "a slow-footed linebacker." Grins often. Favorite phrase is aw-shucks. The kind of guy who uses the word y'all when he visits the South but never otherwise. Claims to like eating at Ethiopian restaurants.
Roberts would be a deft manipulator who pretended not to care that much about the league but was consistently picking up players off the waiver wire at 2:42 a.m. Would falsely claim to be one of the guys who enjoyed the bonhomie of the league while trashing said league to other people who weren't in the league -- "These guys are idiots, I picked up Prince Fielder off waivers."
Would likely begin his opinion with false genuflection: "It's an honor to play in a fantasy league with legal athletes such as Clarence Thomas -- who once dunked in a basketball game."
Samuel Alito: In 1994 attended a week-long Philadelphia Phillies Fantasy baseball camp and got to hang out with idol Mike Schmidt -- whose poster used to hang on the judge's wall. He also had a baseball card made of himself. So he's well-versed in pretend sports. Even still Alito would be the guy who got into the Fantasy league because he knows Scalia. Consequently is likely to spend his first season not believing he really belongs in the league.
Makes up for a lack of wit and paling in comparison to his friend by astutely mining the rules of the league to try and prove he knows more than everyone else. About the eighth game of the season will post on the league message board, "We have significantly undervalued missed field goals that are returned for touchdowns."
His analysis would begin: "Most people don't know that in 1962 fantasy sports originated in Oakland, Calif. But Mike Schmidt does."
David Souter: Enjoys mountain climbing and is single, though takes great pains to point out that he was once engaged. Greatest regret is that Ultimate Frisbee didn't exist when he was in college. Doesn't have a cell phone, use e-mail or own a television. He's the kind of rugged individualist fantasy player who allows the computer to draft for him and never updates his roster.
Would betray your confidence after you brought him in the league to even up the head-to-head matchups. You: "Are you sure you can keep up with your team's roster?" Souter: "Yes, definitely." Then he would flake on you and take your property via eminent domain. Ask the first George Bush.
Would begin his opinion thusly: "If you promise not to turn my house into a hotel I will update my team."
Anthony Kennedy: Thinks gay people can legally have sex now after being uncertain about this for decades. Ergo the kind of guy who will suddenly take a wide receiver in the first round after disparaging the receiving yards scoring system for several years. When you call him on this will say, "I was waiting for the right situation. And Randy Moss is always the right situation."
Will begin his opinion by stating: "As I said in Lawrence v. Texas, Fantasy sports are protected by the due process clause. This is important because both fantasy sports and homosexual acts often involve lubrication and bedrooms."
Ruth Bader Ginsburg: Called "Kiki" by her family. Will not participate in Fantasy football league because she believes it is "demeaning to women." Will file a scathing dissent no matter what the court decides. The dissent will begin: "Until 1920 women were not allowed to vote ..."
Stephen Breyer: Fluent in French and opposed to footnotes in his opinions. Probably likes Jazz, the Boston Red Sox, and rehabbing old brownstones. No doubt encouraged his sons to play soccer and is a huge fan of squash (not the vegetable).
His analysis will begin: "Fantasy American football is a sport popular in North America. It is not, however, to be confused with fantasy football which is a sport popular in Europe."
John Paul Stevens: Avid Chicago Cubs fan who says he attended the 1932 game when Babe Ruth called his shot. Likes bowties and rebellious women who smoke and wear pants. Would likely begin his opinion with a bad sports pun rooted in the 1960's: "The Warren Court would have considered this a slam dunk case."
