This past weekend at Blogs With Balls I sat on a panel about legal and ethical issues in sports blogging. Panelists included Josh Zerkle (With Leather), Jonah Keri (writer for multiple papers, magazines, and sites), Dr. Nicole LaVoi (blogger and academic), and moderator Jason McIntyre (The Big Lead). You can watch most of the panel in this Justin.tv video clip (UPDATE: MGoBlog has also transcribed a portion of the panel).



Josh wrote up his thoughts on our panel and I co-sign with most of what he wrote. I didn't get a chance to read the Twitter reaction to our panel until after the conference was over and I'm disappointed that no one approached me or tweeted me directly about the points they took issue with. I'll try to address some of them here instead, in this FAQ.

1. Why wasn't there a 'f*cking lawyer' on the panel?
2. Why do my eyes hurt so much?
3. Why didn't you cover actual legal topics?
4. Isn't 'Rapelisberger' offensive and illegal?
5. Don't you need 'more than one anonymous source' to break news on a blog post?
6. But still... wasn't Spencer Hall a hero for calling out TBL?
7. Doesn't Yardbarker have 'conflicts of interest'?
8. Don't you need to give some sponsor love now?
9. UPDATE: As Dan Levy says, aren't you insane?

1. Why wasn't there a 'f*cking lawyer' on the panel?

I think I was supposed to be the "f*cking lawyer" but when I introduced myself I forgot to mention that I got my JD a few years ago. It was a fair complaint though -- I'm not a practicing lawyer at Yardbarker (and they didn't teach us much at Stanford Law School anyway).

2. Why do my eyes hurt so much?

Hopefully any who agree with CSTB weren't in attendance or snuck in without paying. I know that discussing things like the business model of a successful sports site can be painful when you're at a conference that's supposed to be about the future of sports media.

3. Why didn't you cover actual legal topics?

In our email preparation for the panel, we did discuss legal issues like copyright (what is fair use of a photo, what isn't), what a cease and desist letter means, etc. We didn't get to all of that at the actual panel, unfortunately.

4. Isn't 'Rapelisberger' offensive and illegal?

I was the jerk who defended "Rapelisberger" jokes, even after fellow panelist Dr. Nicole made the point that rape is never funny. I agree that rape is never funny, and I also agree with her that writing about rape in a cavalier manner can cause problems such as desensitization in our society to a serious issue.

That said, the word "Rapelisberger" is still funny to me. I guess I'm a sucker for puns and/or jokes about horrible things. One of my favorite bloggers is Matt Ufford, who makes very funny cancer jokes -- and I laugh at them. You can read the column he wrote on Uproxx explaining why he makes those jokes if you think we're social deviants for laughing at them. I do understand why some people would be offended by the Rapelisberger joke, but humor is a matter of personal taste.

Is it legal to refer to Big Ben as "Rapelisberger"? My uncertified legal opinion is that it is. He's been accused of sexual assault, so it's reasonable to believe he might be a rapist (even though he has not been convicted). In order for your statement about this public figure to be defamatory, you would have to know that it was in fact false and publish it anyway. And at any rate, I'm not sure the mere word "Rapelisberger" is really a statement of anything. If you want to be conservative and avoid the legal hassle of trumped up cease and desist letters, then sure, it's a good idea to avoid saying things like this. If you feel like the word "Rapelisberger" adds something to your content and you want to use it, I think you would win a defamation case if it came to that.

Is it ethical to use "Rapelisberger"? If Roethlisberger did no wrong and these accusations are all false, then it's a real shame he would be connected to this label. That's the unfortunate price of being a public figure who is wrongly accused, in my opinion. If these accusers turn out to be fake, then hopefully those who made Rapelisberger jokes will help vindicate Big Ben with Rapelessberger jokes. In the meantime, I think talking about these allegations, even in the form of accusatory jokes, is not something that should be wholesale avoided until we have proof of wrongdoing. Avoidance might serve to bury the issue of rape even further than it already is in our media.

5. Don't you need 'more than one anonymous source' to break news on a blog post?

No, of course not. I got my start in sports blogging by writing a Phoenix Suns blog on which I posted fake news stories with ZERO sources (this Sir Charles strip club story is a classic example). I did get a few angry emails from the Suns organization, but everyone else seemed to understand that the entire blog was satirical make-believe and that I wasn't trying to do any kind of hard-hitting journalism. (There was less understanding when I started doing the same schtick at FanHouse.)

If the New York Times had posted the Barkley story, people would have been justifiably outraged. The Times represents to the public that their stories are well-vetted and reliable. Over the years they have built a reputation for being credible (although perhaps biased). One would expect that they generally follow the old journalism rule of verifying facts with three sources.

So where does your blog fit in? Anywhere in between those two extremes! (UPDATE: I meant to clarify that in my Suns blog example, I was intentionally posting fake stories for satirical value. For this discussion, a more relevant extreme would be a gossip blog that posts almost every rumor it hears, without doing much verification.)

Things are more difficult when you're in the middle of the two extremes -- if you sometimes post true stories that are well-vetted and other times post stories that turn out to be wrong, there can be reader confusion. But over time, that should be reflected in your reputation with readers, other blogs, and advertisers. If there's no value in what you're posting, then your blog won't be successful. If there's value in your sometimes-true stories, then you might become successful like MediaTakout.com or The Big Lead. Sites that are more liberal with their vetting will tend to have more juicy stories (some true and some not). Sites that follow strict rules for verifying stories will have less juicy stories, but the stories they do have will be reliably true. Both strategies can make for a good business model.

I'll go farther and argue that sites like TBL or TerezOwens.com posting thinly-verified stories is not only acceptable but also desirable. If we had waited for a "reputable" outfit to verify things with three sources, would the story about Tiger Woods and Rachel Uchitel have ever seen the light of day? People were rightfully skeptical when the story was first written by The National Enquirer, but hey, the Enquirer got that one right. However you feel about the merits of reporting on a public person's sex life, you can't deny that all sorts of media outlets reaped the financial rewards of running with that story after the Enquirer broke it. Outlets like the Enquirer, Deadspin, and TBL often fill a content void of verification-conservative media.

Michael Rand posted about our panel and also tweeted, "There is a difference between making mistakes and being reckless." This is true, and it's why the law protects those injured by false stories (even public figures) in cases of recklessness. If you post something recklessly that turns out to be false, an injured party could sue you. And if they aren't injured (like in the case of a harmless fake story about a football player dating a model) then there's no reason to sue. But the blog will be punished anyway because getting that story wrong will negatively impact its reputation and ability to be successful.

6. But still... wasn't Spencer Hall a hero for calling out TBL?

At the 24:00 mark of the video, popular EDSBS blogger Spencer Hall (who made a funny AIDS joke at a later panel) reveals that a false story Jason had posted on The Big Lead was from a fake email Spencer had sent.

I think one of the points Spencer was trying to make was that Jason is an idiot for not being more diligent about his sources. First of all, I don't think Jason is an idiot at all -- actually, he's making a lot of money running his very successful site. He makes mistakes, and he admits that. And he must be providing some value to his readers, because they still come back and enjoy his content, even though he doesn't have a reputation for having 100% correct stories. (Jason seems to have a lot of haters among bloggers -- I think some of them might be jealous or bitter because of the success he's had with a blogging style that's different from theirs.)

I understand the desire to "out" someone who's made a mistake. I did the same thing when the Phoenix New Times ran a hilariously bad cover story about a completely fake NBA tattoo cap. In that case, I was ragging on a newspaper that purports to have journalistic standards and employs editors and fact checkers. I was trying to do a service to readers of the paper who deserved to know about the incompetence of the newspaper they might have thought was more reputable.

I think Spencer was trying to do a similar service to readers and bloggers by exposing Jason's mistake. TBL doesn't have editors and fact checkers and Jason doesn't pretend to have strict standards for verifying his stories. Even so, I agree with Spencer's desire to out him -- we need those checks and balances from other bloggers in order for sites like TBL to get the requisite reduction in credibility I've been talking about. It seemed a little whiny to reveal a "gotcha" moment in the middle of Jason's panel appearance rather than, say, in a blog post at the time of the incident, but Spencer got lots of bloggers talking about the issue, so mission accomplished. I'm not sure how clean Spencer's hands are after misleading Jason with a fake email, but he made his point.

Good, so if we didn't already know it, Jason sometimes posts stories without much verification, so we should all be wary of TBL content. If we don't like how he does things, we should avoid linking to him and/or speak out about it. And to me, that's the end of it. Jason "ought" not to change anything about what he's doing. I understand the frustration of bloggers who feel that all sports blogs are lumped together and that sites like TBL or Terez Owens are bringing them down. In the minds of a lot of constituents (advertisers, leagues, news portals, etc.) sports blogs are lumped together. But that doesn't mean that TBL owes you any favors by upping his standards for verifying stories. If the value of your site is that you have very reliable stories, then that's your job to market your site as such and build up your own reputation. I've written about this before when I defended Deadspin's Horndoggery series.

And by the way, don't overlook the possibility that being lumped with sites like TBL is actually elevating your blog's status. There are plenty of advertisers and others who would have no reason to care about sports blogs at all if not for notorious sites like TBL.

7. Doesn't Yardbarker have 'conflicts of interest'?

Michael Rand tweeted, "Yardbarker's relationships w athletes create conflicts of interest. If they're burying or ignoring news because of it? No-brainer." This was likely in response to comments I made about "protecting" certain athletes with whom Yardbarker has relationships.

A big part of Yardbarker's business relies on our relationships with athletes. Prominent Yardbarker bloggers like Donovan McNabb and Rashard Lewis attract attention to us and help us win advertising business, partnerships with companies like FOXSports, and funding from investors. Relationships with athletes like Joakim Noah are necessary for producing sponsored content like the T-Mobile MyTown videos that we produced with the Blogs With Balls folks.

As with any business, we need to protect the relationships that make us money. So I occasionally ask our editorial staff to not specially feature certain minor news about Yardbarker athletes. I would never ask any of the 600 independent sports blogs in the Yardbarker Network to ignore a piece of news or censor themselves at all. But when choosing the 20 or so daily stories to specially feature on YB's homepage, yes, we sometimes choose not to feature ones that would unnecessarily embarrass or anger our athletes.

So what's the conflict here? Yardbarker does not purport to be the New York Times of all athlete news, or even all sports news. If you look at our homepage, we have one column of links dedicated to humor, opinions, and lists that we deem to be the "Best of the Yardbarker Network." And then we have a column of links dedicated to "Rumors and Gossip." We actually do not include most traditional sports news (such as John Wooden's death) at all, especially since those stories are thoroughly covered by our partner FOXSports. All we purport to offer is our editors' picks for an entertaining collection of links.

Of course, there's a trade-off between protecting relationships and delivering the best collection of links to our readers. Maybe we lose some readers by ignoring some minor embarrassing stories about our athletes -- I deem that to be worthwhile given the value we get from the athletes. And as I explained in the panel, if there's a story about one of our athletes that is so big we would look foolish to ignore it, then we feature it. In that case, the value of the relationship is not more valuable than our reputation of providing good links to our readers.

Maybe I'm missing Rand's point here, but it seems pretty obvious to me that it makes business sense for a company that creates athlete advertorial to allow athlete relationships to somewhat influence our editorial choices on our homepage. We're transparent about what we're offering, so what's the issue?

8. Don't you need to give some sponsor love now?

Yes, thanks for the reminder. Blogs with Balls was generously supported by tons of sponsors, including Procter & Gamble's suite of locker room brands. Yardbarker and our partner FOXSports.com sponsored the after-party with Cuervo, which a lot of people seemed to really enjoy.

Much love to Don, Chris, Kyle, and everyone who helped organize the event. Thank you again for inviting me to be a panelist and for putting on a great event. I was very excited to meet a lot of Yardbarker Network bloggers for the first time and to hear the opinions and stories of many of the people there. This recap by Ian Sohn of Ogilvy highlights some of the best parts of the weekend. For a more critical recap, see Favre Dollar Footlongs. I'm sure there are many more recaps that are worth reading. As always, please feel free to comment or email me your thoughts, and you can join the conversation with the #bwb3 Twitter tag.

9. UPDATE: As Dan Levy says, aren't you insane?

Brian Cook from MGoBlog talked with Dan Levy on his On the DL podcast and they spoke about the panel and specifically some of my comments, which they thought were eggregious and insane. (Brian also posted a transcript of a portion of the panel on MGoBlog.) Here is the comment I left on the podcast:

Good conversation about this topic. Here are a few points I'd like to make.

I think you guys misunderstood my point about the Shane Graham story (that I was "protesting" Josh's unwillingness to run it) -- I probably didn't make that point very clearly. I acknowledged that posting those kinds of rumors are not Josh's "bag," so I wasn't intending to suggest that Josh SHOULD have run the story. If it's not what he wants to do, he shouldn't do it, no question. What I meant was that he (or a different blog in a similar situation) COULD have, and if he had, I personally wouldn't have had a problem with it. I know that some people will disagree on that line I've drawn -- to me the story was a funny rumor that would be harmless if couched as an unverified story; to other people it seems like a potentially harmful story to Graham. If the story had been "My friend heard Shane Graham has an STD" I would have felt differently -- I wouldn't have thought it was ok to post (and by the way, a story like that could be deemed per se defamatory from the legal point of view). Athletes are indeed people, as you pointed out Brian. If a thinly-verified story could do real injury to someone (even a public figure like an athlete), I would question the ethics of posting it. We probably disagree on what stories could do real injury.

I hope you guys both read my blog post (Dan, thanks for linking it and mentioning it). Like I said there, it's true that a lot of advertisers/leagues/etc don't differentiate between us and lump sports blogs together. I guess what I don't understand is why some people feel it's the obligation of sites like TBL to change their reporting/verifying standards to match the strict standards of diligent sites like, say MGoBlog. Couldn't one argue that MGoBlog ought to match the entertainment value of sites like TBL? "Gee, that always-true MGoBlog site is so boring, it's bringing blogs down in the eyes of advertisers who are looking to advertise on fun, edgy, gossipy sites." Of course, I would never make that argument because I don't think either blog should try to match what the other is doing -- they can both be good at what they do, which is different.

As I also said in my post, I think it's good that Spencer Hall called out TBL for his mistake (although the fact that he planted the mistake was problematic, as you talked about Dan). We need bloggers like Spencer and Brian to voice their social disapproval of TBL's mistakes in order to ensure TBL's reputation is duly affected. I think it's great that bloggers speak out about others. And when someone speaks out about TBL running the Sanchez model story, I'll defend TBL's decision to run it, because I personally didn't find that decision to be problematic.

As for Terez Owens' Delonte's story, you guys talk about it as if it was confirmed that it was made up or as if the story has been proven false. Has there been more news on that front?

One final point, regarding the "three source" journalism rule, I didn't say it was "outdated" (I said it was "arbitrary" for blogs) -- in fact I think if you're striving to break reliable news like the New York Times, it is a good rule. As someone pointed out on a comment on Brian's post, decades of journalism has produced that rule. But TBL isn't striving to be the NYT. Neither is Perez Hilton, or the National Enquirer. So I'm not sure why we would apply NYT standards to a site like TBL. If MGoBlog is striving to break reliable news like the NYT, then I think MGoBlog should apply those standards and should tout them to its readers and advertisers as a way to elevate MGoBlog's reputation.