I fully expected to see some coverage by Michael O’Keeffe of the National and on the ongoing FBI investigation into the sports memorabilia industry. You can read his article in the on line version of the Sunday 2 August New York Daily News. What began as a look into shill bidding has now extended into other problems that have plagued this industry for years and this is a good thing. It appears that investigation has now begun to focus on how product comes into the industry as well as possibile linkages between auction houses and those who offer opinions for them. It will be very interesting to see where these latest two issues take us.
Have individuals and organizations been working in collusion to knowingly move bad product to consumers? Bad product in my mind is defined as either stolen property or items that were knowingly not what they were represented to be. The stolen property issues will in all likelihood be easier to make a case on than the other portion.
As I have said and written about for years, there are no formal training or certification standards for individuals offering opinions on items that are then marketed and offered by an auction house. Can the authenticator simply say I was doing the best I could and it was the final decision of the auction house to evaluate my work and then decide to offer the item or not? Can the auction house simply say that we are not experts and can only rely on the opinions of those we retain in this capacity? This is where the whole thing gets tough for the authenticator, auction house, and those looking to build a case against them.
For the authenticator, can they on one hand claim to be an expert when it justifies their pay, but on the other hand claim they are not when it comes to their responsibility and liability in this matter? Almost three years ago I wrote a column titled “Authenticating the Authenticators” and I looked at this issue along the lines of how the Federal Rules of Evidence defines and expert, specifically Rule # 702. A portion of that article is show below.
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
For this to have any applicability and to make any sense, let’s pick this apart and see what makes sense for the hobby. To begin with, I think that we may all want to agree that anyone who has a question about an item can be considered a “trier of fact” to some degree. All I am saying here is if everyone all had the same level of understanding, experience, reference data/material, and techniques, then it would not be an issue. The plan fact of the matter is that somebody out there knows more about something than you do, hence the desire for an “experts” opinion.
Understanding and Applying the Definition
Like most things in life, application requires an understanding of the context in which they are used or evaluated. I would offer this framework for using the language in Rule #702.
(1) The testimony is based upon sufficient facts or data. For the hobby, I think we are all agreeable that the “because I said so” is a rather weak argument. We did not like hearing this as kids, and certainly like it even less when we are being asked to buy something based on that as a rational. We should expect that any opinion that is based on any number of facts or data points:
a. How does this compare with other know examples and what those examples are? For instance when someone states “All Correct Tagging,” what is the basis for stating this?
b. If photographic references are made, are the photographs included? If not, where I do reasonably go to see this for myself?
Other reasonable questions or issues that should be addressed when considering whether the facts and data are sufficient may include:
a. How long has the person been involved in this particular aspect of the hobby?
b. An approximate number of like items the person has seen.
c. Do they have any special or formalized training or experience in related fields such as imagery analysis, manufacturer of the item, or as a researcher?
d. Have they published any works in the associated field that have held up to the public scrutiny of the hobby?
While this is not meant to be the all-inclusive list of qualifications, I would think it would begin to address the basics.
(2) The testimony is the product of reliable principles and methods. For me, this means the person has and uses an established process that makes sense given what they are being asked to look at. This process should be expected to be made public in the form of “this is what I look for and this is how I do it.” I am not advocating that all of the reference data be made available since much of this has been accumulated at both the time and personal expense of the person offering the opinion. Once again, this goes back to the point I made earlier, if you are a potential buyer or the owner of the item that you have paid for to have authenticated, then you are entitled to it.
The concept I would like to emphasize centers on the word reliable. This should mean that if you do the same things in the same manner with the same information, you should get the same results, or in this case, opinion.
(3) The witness has applied the principles and methods reliably to the facts of the case. In this case, the witness is the person offering the opinion. All this is saying that the process, principles, and methods used served as the basis for the opinion, not the other way around. By this I mean, if the person’s methods or procedures call for use of photographs for comparison, they cannot simply choose not to do this because some of the photographs contradict their opinion. In addition if they evidence that supports more than one possibility, they should state what both are and then clarify why they believe it to be on case over another.
This then takes us to the auction house and their roles and responsibilities. What was the basis for them selecting the authenticators they employed? If it can not seem to be substantiated based a demonstrated level of expertise on the part of the authenticator as show above, then was there another nefarious reason for their employment? Was the authenticator a source of undisclosed consignment material? Did the auction house knowingly employee the authenticator because they knew the authenticator would agree to certify just about anything offered to them, thus providing a steady stream of product for offering? In my opinion the auction house has both responsibility for the product they offer and those agents they engage or employee.
This leads us to the issues or problems faced by those looking to make a case. Has sloppy work on the part of authenticators and poor judgment on the part of auction the houses who retain them cost folks money? I would suggest it has. The seminal point being, was all of this just poor management which might appear to be more of a civil issue than a criminal one. Or was there an actual conspiracy to defraud the collecting public by knowingly allowing suspect or bad product to continue to move throughout the industry? I guess that is what we will have to wait to see.
In my mind, all of these problems have existed for far too long. Although we get news reports and “hobby/industry” talk about what is happening or not happening, we are no closer to an industry wide solution of or formal sense of accountability than we were six years ago when I began publicly commenting on these issues.
There are still things I would still like to MEARS improve upon, but I am very happy about the issues we have addressed internally and on a voluntary basis as they relate to disclosure and accountability as these two issues seem to be the nexus of the unsavory relationship between authenticators and auction houses.
My hope is that by next years National, we are not simply left to read about the status of a still on going investigation.
As always, collect what you enjoy and enjoy what you collect.
MEARS Auth, LLC
For questions or comments on this article, please feel to contact me at DaveGrob1@aol.com.