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Foul Behavior

Pro athletes are facing heavier fines and longer suspensions for misconduct, but league officials feel it's a small price for maintaining the image and marketability of their sports
Bruce Schoenfeld
From the Print Edition:
Jimmy Smits, May/June 2005

One four-letter word almost cost Dale Earnhardt Jr. more than three million dollars. The word was shit. As in, "It don't mean shit right now." n When an NBC reporter asked the famously uninhibited NASCAR driver on national television about the significance of his victory in the EA Sports 500 at the Talladega Superspeedway last October, he replied that his run of good fortune at the venue was immaterial. "Daddy won here 10 times, so I've got to do some more winning," he continued, clearly in good humor. n His intentions didn't matter. The NASCAR organization—prosecutor, jury and executioner in all matters pertaining to its sport—fined Earnhardt $10,000 for the profanity and deducted 25 points from his total in the Nextel Cup. Earnhardt's appeal to a three-person panel, culled from the 31 members of the National Stock Car

Racing Commission, was denied. The fine stung, but the point deduction could have made the lasting wound.

Earnhardt finished the season in fifth place, 31 points behind Mark Martin in fourth. But as tight as the NASCAR points chase was last season, had he edged within 25 points of eventual champion Kurt Busch—a distinct possibility entering the final race—the profanity could have meant the difference between the $5.2 million first-place payoff and the $1.5 million for fourth.

Oh shit, indeed, and you can bet that Earnhardt will never do it again. And that, NASCAR officials will tell you, is precisely the point. With sports brands and equities worth hundreds of millions of dollars, stakes are high when it comes to the behavior of professional athletes, in and out of competition. Each time an athlete uses profanity in public; each DWI or drug bust; each fight with a fan or perverse interaction with an opposing mascot—let alone when Kobe Bryant is charged with rape, or Jayson Williams or Rae Carruth with murder—undermines the marketability of a sport. "The combination of the value of the brands, the revenue generated from merchandise and sponsorship sales, and the attention paid to the players has raised the cost of their bad behavior on and off the field," says Marc Ganis, president of Sportscorp, a leading sports consulting firm that has worked for numerous professional teams.

NASCAR, privately held by the France family, is the most peremptory and punitive of American sports leagues and organizations. Though racing teams and NASCAR events are owned by individuals, the organization itself—which has no antitrust exemption, no public shareholders, no strong labor unions to placate—answers to nobody. Following the National Stock Car Racing Commission panel, the appeals process ends with a judgment by racing commissioner Charles D. Strang, the former chief executive officer of the Outboard Marine Corp. and, it must be noted, an acquaintance of NASCAR's Bill France Jr. for decades. Since Strang was appointed in November 1999, he has upheld 38 of the 55 commission decisions. (He reduced 12 decisions, increased one and overturned four.)

At the other end of the spectrum are North America's other major sports leagues, particularly Major League Baseball, whose players belong to perhaps the most effective labor union of any North American industry. "The procedures are such that there likely would be an appeal even if there was something as egregious as, well, how about a player throwing a chair in the stands?" says Ganis, referencing an act committed by Texas Rangers pitcher Frankie Francisco during the 2004 season. "It actually happened, right there in front of everyone, and baseball still couldn't sit the guy down without an appeal."

Recent precedent has further empowered the unions. When the National Basketball Association attempted to fine and suspend players involved in the horrific melee last November during a Pacers-Pistons game in Detroit, the National Basketball Players Association appealed to an arbitrator, who sent the case into federal court. A Manhattan judge upheld the suspension of Indiana's Ron Artest, who was barred for the rest of the 2004—05 season, but allowed teammate Jermaine O'Neal—who had served 15 games of a 25-game ban—to return to active duty immediately.

In essence, that meant three defeats for the league, which had argued that only commissioner David Stern had jurisdiction over on-court matters: one, that an arbitrator was, in fact, eligible to hear the dispute as the union contended; two, that he reduced O'Neal's suspension to little more than half its original length; and, three, that the federal judge upheld the arbitrator's ruling.

In all sports, controlling player conduct has become more complicated now that salaries and other remuneration are so high. Players get fined for head butting and beanballs; for hurling rackets into the stands and invective at fans; for passing under a caution flag and signing footballs in the end zone; and for embarrassing their team, their sport and themselves off the field. But when a $5,000 fine doesn't even represent a day's pay for the most successful of today's athletes, let alone a day spent filming a Nike commercial, it's hard to use money to legislate behavior.

And as the fines get higher—$30,000 for New Orleans Saints wide receiver Joe Horn for pretending to make a call on a mobile phone in the end zone; $100,000 for boxer Fernando Vargas for testing positive for steroids—the gap between high-salaried standouts and ordinary athletes widens. "A guy who's making minimum, who gets fined $5,000 or $10,000, that's a week or week and a half's salary to him," says Jay Feely, a former kicker and player representative for the Atlanta Falcons who was acquired by the New York Giants on March 8. "But a guy who's making $5 or $6 million doesn't even feel it. It's a huge discrepancy."

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