TGIF: April 7, 2017 – On MGoBlog, Injustice, and Indiscretion

Despite what you may have heard, lawyers are, in fact, human beings with interests and hobbies all their own. They are not, I repeat not, robots sent from the future solely for the purpose of billing hours, drafting documents, and negotiating terms.  Not all of them anyway.  

In TGIF, I touch on some of my own interests primarily through the lens of the “Rules of the Game”, focusing on the rules and incentives that affect many aspects of our daily lives. I may even crack a joke or two.  Hard to say.

TGIF will be published regularly on (surprisingly enough) Friday mornings. For more information, check out or drop Rick a line at


Sponsorship Note – MGOBLOG

For those of you who didn’t see it (and based on the number of e-mail responses I received there may only be a handful of you left), yesterday marked the start of Hoeg Law’s long term sponsorship of one of my favorite sports blogs on the Internet: MgoBlog.

Hoeg Law - Mgoblog

MgoBlog was introduced to me by a close friend and law school classmate in about 2008 or so.  It has been my daily source for Michigan sports news and insights you can’t find anywhere else on the planet (including in big mass media sports coverage) ever since.

I am very pleased for Hoeg Law to be a part of supporting their good work.  Check them out if you haven’t already.


As regular readers of this blog are aware, the NCAA men’s basketball tournament (or “The Tournament”) has a special place in my heart.  So it was with some excitement that I sat down this Monday to watch the second half of the Tournament’s pinnacle: the national championship game.  What followed was a seemingly interminable death march of foul calls, airballs, bricks, commercials, and, yes, more foul calls.  During one particularly difficult stretch, I believe referees stopped play about 3 or 4 times per minute of on-court action.  To call it a “bad” game does a disservice to the merely “bad”: It was unwatchable.

Which got me thinking.  There’s a lot wrong with college basketball (as there is with all things sports, or society, or anything else created by human beings and not by divine writ), but what can we do to improve it?  This may come as a shock based on the name of this blog, but the answer might just lie in tweaking the “Rules of the Game”.


Back in college I was a member of my school’s parliamentary debate team.  (Surprising for a lawyer, I know.)  Now, parliamentary is not the speed-reading debate style that gets all the headlines.  Instead, in parliamentary two teams are tasked with debating the merits of a generalized “House resolution” that is then applied to a specific set of circumstances of which both sides have general knowledge; the idea being to judge one’s ability to understand and counter concepts and structures rather than interpretations of provision (v)(i)(a) of Title VII or whatnot.

As a fun example, sometime in the year 2000 or so, I was faced with the resolution “This House Believes that Elvis has Left the Building.”  As the “Pro” side of the debate, my partner and I crafted a case that as Elvis Grbac had long left the University of Michigan football program, it was time to eschew passing and rely more on the tried and true “3 yards and a cloud of dust”offered by a solid running attack.  The debate itself was not premised around the debaters’ knowledge of the history of Michigan football, but more generally on the concepts of “tortoise vs. hare”, 80 yard instant strikes vs. 20 play drives, etc.  (Which did not stop my opponents from attempting an end around by claiming that we had proffered a debate using specialized information.  They failed.)

Today, in the spirit of parliamentary debate, I want to look very briefly at just the first of a few resolutions I’ve been thinking about that consider the philosophy of rules and rule-making rather than on specifics.  I’ll put forth a few real-life examples to illustrate a given point (which will be of no surprise to regular sports viewers), but more than anything I want to highlight a few areas of thought which I think rules makers should consider when trying to improve these games that we love so much.

Without further ado, the first of these “resolutions”:

This House Believes that the Penalized Should Not Benefit from their Penalties.”

Look, I’m a lawyer.  I love loopholes and technical tricks as much as the next guy. Frankly, I’m paid well to look more closely at sentence construction than anyone probably should. And I love it when people analyze the structures arrayed before them, and come to the correct determination on where their incentives should lead. That said, there is something unsettling to me about the notion of someone benefiting from their own bad actions.  Especially when the incentives of the rules at play make taking such bad actions a strategically wise move.  Let’s look at two examples:

Basketball – Home team up by 7 with 30 seconds to play.  Visiting team fouls the Home team’s star who inexplicably bricks free throw after free throw.  Visiting team wins.  Not by playing basketball, but by deliberately violating the prescribed rules of the game (“thou shalt not arm bar”, etc.), ultimately to their advantage.

Football – College cornerback falls down on an out route and is 4 steps behind his counterpart wide receiver.  He leaps and tackles the receiver to the ground.  15 yard penalty instead of a touchdown.  Defender benefits from an action outside the rules. (Note that this is not the case in the NFL).

Now, with respect to the first example, the standard refrain is “make your free throws”, but the point of this resolution is really in the response: “Why should you have to?”  If a criminal steals a TV out of someone’s home, we don’t say the criminal gets to keep it if the homeowner can’t do 100 push-ups in 10 minutes.  And don’t be fooled, for what is expected of a 300 pound center in a standard basketball game the relationship to his usual activities and the act of shooting free throws is roughly analogous.  End of game free throws are very clearly a case of the “penalty” not fitting the crime, as evidenced by the fact that you see the intentional foul strategy deployed at the end of every game separated by fewer than ten points.

How best to solve the problem, then?  I would propose a very simple solution, and one based around what we do in contracts when it is unclear what the “state of play” will be if and when a penalty (or breach) occurs.  We offer the aggrieved party choice. In basketball, the fouled team should get to decide whether it wants free throws or the ball. If it wants the ball, the shot clock is reset, and the game moves on.  Effectively there has been no change in the status quo.  If it wants foul shots to put the game out of reach, it is free to take them.  The defenders would have no incentive to foul in this scenario and the game of basketball that had been played for the previous 39 or 47 minutes could proceed apace in the same manner it had been, ultimately to the benefit of all.

Hack-a-shaq, end of game fouls, and similar strategies that deliberately eschew the rules are not selected by teams because they are evil or because they are scofflaws.  They are selected because it is strategically advantageous (or believed to be strategically advantageous) for a party to do so. It should be in everyone’s best interests to ensure that any such “loopholes” are closed. I would propose that the guardians of these games, whether the NCAA, the NFL, the NBA or any other organization should have as one of their guiding principles that the aggrieved party should never be harmed by the “bad acts” of the other.

Let’s make the change.

(Disagree?  Feel free to comment down below or drop me a line.  I love a good sports argument.)

Word of the Week – Indiscretion

A lack of good judgment

“Observers could only marvel at the indiscretion on display.”

Because who doesn’t want to see 20+ fouls called in the first 7 minutes (!) of a half in the most important game of the year? “Whoever wins.  We lose.”


Thanks for stopping by.  Want to tell me how wrong I am?  How right? Feel free to leave a comment down below, and be sure to check out the rest of Rules of the Game and for legal insights, commentary, and (hopefully) helpful articles.

Have a great Friday everybody!

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