In view of the way Iron Curtain countries circumvent this rule, I find it intolerable to think that either Arthur Gander or the Marquess of Exeter should presume to dictate to us how we should conduct our Olympic procedures. In the Colorado case we have given one example of our readiness to resist the Jovian decisions of Olympic committees; we dismissed the winter games from our slopes. In trying to find the right solution to our internal Olympic structure, we should pass whatever legislation seems just, and if this falls foul of some technicality laid down by the IOC, we should be prepared to skip a round of Olympic competition and allow other nations to see for themselves what the games would be without our competitors, our support and our infusion of television income.
If that sounds ultra-nationalistic, it is also ultra-sensible and reflects the reality of the situation. I doubt that the IOC would endanger its operations merely to support the rather attractive gentlemen of our AAU. And if the communist countries want to use this device to kick us out of the Olympics, we should know about it now. On the other hand, Congress should do nothing that would needlessly abuse the AAU and its friends abroad; certainly it should not establish a government dictatorship over sports, not because the communist countries would object but because it would be wrong to do so.
My sympathies still remain with the NCAA, but I fear it has become so imbued with big-time professionalism, so concerned with television contracts, and right-wing politics, and nit-picking to protect the interests of its bigger members that it had better be restricted to that wholly reasonable and even necessary aspect of cartel management. It is not the body to represent us as our USOC. I therefore find myself supporting the desired end of the Tunney bill but do have apprehensions lest it become the first step in federal domination of yet another field. I fail to find one commission in Washington that truly represents the interests of the general public; they all become trade organizations dominated by the powerful companies they are supposed to regulate, and a sports commission would surrender the same way.
Two things remain to be said about government control of sports. Few of us realize that high school sports are ruled not by schools, nor by school boards, nor by state boards of education, but by self-appointed lay organizations called state athletic associations. They have been dictatorial, conservative and indifferent to girls’ rights, but generally efficient. I have been amused by the attempts of certain state organizations to hold back the tides of change—fighting women’s rights, for example—but I have also been impressed by the wisdom of others in adjusting to new demands and in avoiding court battles over inconsequential matters. They serve a useful purpose and I see no reason why they should be supplanted by governmental bodies. It is, however, likely that their more dictatorial decrees will be increasingly challenged in the courts, and from the four or five cases I have studied, it looks as if the courts are going to favor appellant students rather than the boards.
The other development is this willingness of the lesser federal courts to intervene in matters that used to be the sole province of the sportsman, and to hand down adjudications in areas where Congress has refused to act. Such decisions are summarized in the comprehensive article by Michael Jay Kaplan, ‘Application of Federal Antitrust Laws to Professional Sports,’ in American Law Reports (1974).
Typical of the cases is Denver Rockets v. All-Pro Management, which Federal Judge Warren J. Ferguson used as an excuse for unloading a bombshell on the pros and the NCAA. The case was unusually complicated in that it involved Spencer Haywood, whom we last saw as he jumped from Detroit University to the Denver Rockets for a reputed million plus. When this, like so many offers of its kind, turned out to be more than fifty percent hot air, Haywood jumped to the Seattle SuperSonics of the NBA, for some real money. But now a rule designed to protect the colleges intruded. No athlete could be signed to a professional contract until four years after his high school class had graduated. (This was enforced in order to protect schools that might have invested large sums in recruiting and training the young man.) In compliance with this rule, Haywood’s contract with Seattle was declared illegal. But Judge Ferguson struck this down on the logical grounds that it constituted a restraint against the right of Haywood to earn a living.
Of equal importance were two other legal decisions. In 1974 Federal Judge William Sweigert tackled the Rozelle Rule. Quarterback Joe Kapp had played a full season without signing a contract, which made him a free agent. But the Rozelle Rule said that if another team signed Kapp, it would have to pay the original owner of his contract an indemnity, which meant that Kapp was not truly free. Judge Sweigert not only struck down the Rozelle Rule but also declared the draft system itself unconstitutional in that it assigns bargaining rights to a graduating college football player to one team alone.
In 1975 Federal Judge Earl R. Larson, in a separate case involving fifteen professional football players, found the Rozelle Rule unconstitutional on different grounds: that it prevented open-market bidding for players. Both cases have been appealed, and it may be some years before the Supreme Court hands down a final decision, but imagine the confusion in professional sports if the findings of the lower courts are sustained.
Normally I would not want courts to solve such delicate questions. Everyone would be much better off if Congress recognized that sports are a major American industry, faced up to its responsibilities, and passed sensible laws regulating them. But since there is ample evidence that Congress will refuse to do this, we should be grateful when the courts do intercede.
I even find myself supporting the decisions reached in Toolson and Flood. The ancient legal principle of stare decisis (let the earlier decision stand unless it is in grotesque error) is a prudent one for courts to follow. It encourages an orderly continuity in national life, and had I been serving as a Supreme Court Justice when these cases were being adjudicated, I would have held my nose and voted with the majority in both cases. But I believe I would have written an obiter dictum even stronger than Chief Justice Burger’s. It is disgraceful for Congress to remain inactive when injustice and confusion are so prevalent in American sports, and something should be done promptly. And it can be done, well short of establishing yet another czar.
‘Free Agent!’
Whether government wishes it or not, it is deeply involved in betting on sports. The total amount bet in the United States is impossible to ascertain, because only a small proportion is done legally and with proper records, but experts have suggested that it may run as high as $150,000,000,000 a year, including illegal football and baseball pools.
We know that legal pari-mutuel betting on horses totaled $6,386,613,302 in one recent year, and that of this, half a billion dollars was turned back to the states in profits and an undisclosed amount in racing-related state and federal taxes. If all forms of betting were legalized, the take of the states could run as high as $12,000,000,000.
I was raised in a community which taught that betting was a sin, and I am still shocked when I pass a church and see that semi-legalized gambling is taking place inside. However, as an adult I have come into contact with a lot of gambling, and participate myself, gingerly. Four experiences explain my changed attitudes.
By accident I once spent a holiday with the professional gamblers of Hot Springs, Arkansas, and learned from them the mysteries of the crap table. They taught me how to place my bets behind the line, so that I was betting with the house rather than with the thrower. At one point on my big night I was betting against Joe E. Lewis as he threw a spectacular sequence of numbers without any sevens. I had every point covered with fifty dollars or more and pocketed nearly two thousand dollars before Joe’s streak ended. When Joe finally threw a seven, I lost over $500, but heavy covering was part of the system, and I didn’t care.
But what impressed me in the Arkansas visit was betting on football games. It was the Christmas-New Year’s period and a red-hot gambler and I pooled our resources and bet on eleven different college and professional games. He was qu
ite knowledgeable and I moderately so, but the point-spread system had been devised to neutralize just such information as we had, and we lost eleven straight bets. In the meantime a much-less-informed gambler sat with us, watching the games on television, and won nine out of eleven. In disgust we asked him what inside information he had, and he replied, ‘You’ll notice I never bet until kickoff. Then I always back the team that starts on the right-hand side of the television screen.’
My second indoctrination also involved football, and the point spread. Late in the season I had gone to a critical NFL football game in which both teams were vying for a divisional championship. I backed Team A with a ten-dollar bet, giving six points. As the game drew to a close Team A was winning, just as I had hoped, but by only three points, which meant that I was losing my bet. Team B had the ball and in desperation threw a bomb. My left cornerback intercepted and in my opinion had a pretty clear run for a touchdown, which would put Team A ahead by at least nine points and win my bet for me.
‘Go! Go!’ I screamed, and he was on his way. But as he crossed the fifty-yard line two opposing players vectored in on him. I’m pretty sure he could have jigged or stiff-armed them and made his touchdown, but with a three-point lead and less than a minute to play, he prudently fell to the ground and curled himself around the football rather than risk a fumble which might allow Team B to win. I could have shot him. He had thought more about winning a divisional title than about my point spread, and I still remember both him and that game with distaste. My team had won, but I hadn’t and I was sore about it. There was something sadly awry about my reaction.
My third experience came in Spain, where the population went mad betting win-lose-draw on Spanish football. One weekend an all-star Spanish team, representing the nation, was scheduled to play in Germany, which meant that regular league play had to be suspended. In my ignorance I supposed the weekly betting would be suspended too, but my favorite waiter disabused me of that foolish idea.
‘Interrupt betting? Are you crazy? This week the Spanish teams don’t play, but the pool goes on as usual. What do we do? We bet on games in the Italian leagues.’
He showed me his ticket, fourteen games between teams I had never heard of. ‘How do you study up on the games? If they’re played over in Italy?’
‘Study? Who studies? We just bet for the hell of it.’
But the betting experience to end all others occurred on a hurricane Saturday in London. The storms were so bad that nine or ten important games had to be canceled and, as bad luck would have it, some eight of them figured in the weekly pools, on which millions of pounds had already been bet. Again I supposed that the wagers for that week would be canceled, but not on your life. This time it was an editor who set me straight.
‘They’re meeting right now. In a closed room with no telephones and carefully guarded by police. It’s what they say that matters.’
‘Who are they?’ I asked.
‘Five men of impeccable reputation. All of them well founded in sporting lore.’
‘What are they doing in a locked room?’
‘They are predicting how the canceled games might have come out if they had been played.’
‘You mean, they’re making up scores?’
‘Precisely. They can be trusted to give an honest judgment. Win-lose-draw. We do this so that betting will not be interrupted. If you listen to the radio tonight, you’ll hear their scores broadcast with those of the games that were played.’
Faced with this kind of mania in the world, I felt it necessary to study the problem of betting more seriously than I had originally intended. From research at various tracks, bookie parlors and offices where informal pools flourish, I have reached several tenative conclusions.
Gambling is a normal human instinct and is probably irrepressible. Sportsmen insist that it produces no deleterious side effects; social workers claim that it does, in unpaid grocery bills, failure to visit dentists, family arguments of a violent nature, and the incursions of organized crime. It appears to be growing in volume in the United States and probably requires some kind of legal attention.
I have never worked in any large organization in which pool cards on football and baseball did not circulate. Insofar as the individual worker was concerned, they represented only a trivial investment, productive of much good conversation, but in the aggregate in a large building they involved considerable sums, and the energetic men who ran them apparently made a modest bundle. This kind of betting poses few problems.
Nor have I ever lived in a community where it was impossible to place a football or basketball bet by telephone. Our local papers carry the week’s betting line. The bookie charges eleven dollars for a ten-dollar bet, and you choose your team, giving or taking the points agreed upon. If you bet ten dollars on each of six games, win three and lose three, you do not break even. You owe the bookie six dollars for the convenience of having been allowed to place your six bets. The amount of money so wagered must be tremendous, and it is all handled outside the law, except that the bookie is obligated to pay an income tax on his profits. This is one of the major aspects of gambling which warrant governmental attention.
Numbers gambling and the lotteries which attempt to replace it in some states do not involve sports, and I know little about them, except that I live in Pennsylvania, which has for some years operated a fumbling kind of lottery, and next to New Jersey, which comes up with a new gimmick every month, and just north of Delaware, which had a disastrous experience when it launched its lottery prematurely and without adequate professional counsel. If such adventures are required to save America fiscally, we are doomed.
I have done more than my share of betting on horses, with undramatic results. But I have attended meets with various devoted gamblers and have done my best to understand their systems. The only one to have compiled substantial winnings for me was that devised by an inveterate horse player who always bets on the first three horses listed and boxes them for the Daily Double and Trifecta. He keeps a history of his bets, and told me, ‘You’d be surprised at how often they come in, betting the first three.’ And I have been.
The most interesting wagering I have come upon is that conducted by the sports departments in large newspapers. A group of twenty office people will combine, list the names of two hundred prominent living men and women in all parts of the world—Lindbergh, De Gaulle, Adenauer, the King of Saudi Arabia, to name four winners—and then draw lots so that each player receives ten names. The players then contribute ten dollars each, to make a pool of two hundred dollars. Whenever one of the two hundred immortals dies, his owner collects the money. This is called the Ghoul Pool.
The government’s problem is twofold: how to bring order into this informal exchange of money, and how to ensure that the government receives its proper share in taxes? At present some $100,000,000,000 probably circulates outside normal tax structures.
In pari-mutuel betting, taxation is simple. Using the figures cited earlier, state and local governments siphon off about 8.4 percent. Take the two-dollar bet to win at a New Jersey racetrack. From the total pool bet on all horses to win the computer takes out the prescribed 17 percent. The remaining total is divided among all the win tickets and shows $6.99 as the value of the winning two-dollar ticket. But the winner does not receive $6.99, for the breakage is at the twenty-cent interval, so that the holder receives only $6.80, meaning that the total taxation was something like 20 percent. And if a heavy favorite comes in and can pay only $2.19, the payoff is cut to $2.10, which represents a 4 percent deduction.
On gimmick bets the government’s bite can be even heavier. At Bowie, Maryland, recently the Trifecta produced only one winner. He had bet three dollars and got back $68,881, which sounds adequate. But the total pool had been $82,202. And when the lucky winner appeared to collect his allowed $68,881 the IRS was there to subtract more than $30,000 of it. So of the $82,002 gambled on that race, government had siphoned off close to $50,000, or almost 60 per
cent.
State-run lotteries are worse. The standard takeout for the state is about 50 percent, which means that if citizens buy $500,000 worth of tickets, the state pays back as prizes only $250,000. But on the gimmick lotteries, the state’s takeout can run as high as 100 percent, which means that if $1,000,000 worth of tickets is sold, the state awards a prize, but at the same time keeps all the money. How is that possible? By reason of a delightful device called the Millionaire’s Lottery, in which the prize is a million, as promised. The catch is that the prize money is not handed out in one lump sum; it is doled out at the rate of $50,000 a year for a period of twenty years. Since the state can earn at least 7 percent on its money, and probably more, this means that on the million which it continues to own, it collects at least $70,000 a year in interest, and pays out only $50,000 to the ‘millionaire.’
There are many financial reasons why the government might want to legalize gambling, and a federal commission is investigating the problem now, with intentions of submitting a report in the near future. If gambling is legalized, what would be the effect on professional sports?