Rutgers University has apparently decided to fire head basketball coach Mike Rice, after ESPN aired secret video footage of the coach's behavior during practice sessions in his first two seasons in Piscataway. Athletic Director Tim Pernetti, who hired Rice shortly after taking the helm at Rutgers, suspended and fined the coach back in December, when he first learned about the tapes, which show Rice throwing basketballs at players' heads, and using excessive profanity and gay slurs.

After ESPN aired the video on national television, public outcry erupted for the coach's dismissal. The National College Players Association issued a statement calling for Rice to be fired; reportedly, LeBron James and his Miami Heat teammates were angered by the coach's behavior as well. Even NJ Governor Chris Christie weighed in on the issue (no pun intended), saying that he was "deeply disturbed" by the way the coach conducted himself.

Regardless of whether Rice's behavior was cause for termination, it looks as though he was punished twice for the same conduct. Again, the video footage was filmed during the coach's first two seasons at Rutgers, between 2010 and 2012. In December, AD Tim Pernetti suspended Rice for three games, and fined him $50,000. Since then, there have been no new reports or allegations of misconduct by the coach. So, in essence, he was fired for the same thing for which he was previously suspended and fined. In constitutional law, that's called double jeopardy, though I don't believe that that has much, if any, bearing on employment law. Even if firing Rice was the right thing to do, from a moral perspective, or for public relations, Rutgers is still obligated to honor the coach's employment contract (which I have not seen).

The contract probably allows the university to fire the coach for cause, and it's tough to argue that what he did wasn't cause for termination. But it's hard to imagine that the contract would allow the university to discipline the coach twice for the same conduct. If I were Coach Rice, I'd be speaking with an experienced contracts attorney. Don't get me wrong, it's highly unlikely that he'll get his job back, but there's a strong argument that Rutgers should have to buy out the contract, or, at very least, return the $75,000 he lost as a result of the suspension and fine they imposed on him in December. Rather than firing Rice for the same thing they previously fined and suspended him for, Rutgers would've been better off to fire the coach for his performance—or lack thereof—the Scarlet Knights failed to finish above .500 this past season, with an even worse 5–13 record in the soon-to-be-defunct Big East Conference.

New York Jets linebacker Bryan Thomas is asking the Morris County Prosecutor to accept him into “pre-trial intervention,” which is a New Jersey courts diversionary program for first-time offenders. The 6’4” 265-pound linebacker is facing criminal charges of aggravated assault and possession of controlled dangerous substances following a domestic incident last October during which he allegedly punched his wife in the stomach.

To be eligible for the PTI program, you must have no prior criminal history, and you cannot have used a diversionary program before (such as PTI, or conditional discharge). Additionally, PTI is typically only available for non-violent and lower-level crimes, and the county prosecutor’s office has to accept you into the program. Typically, offenses like this one (aggravated assault) would preclude PTI, but in this case the prosecutor might go along with it because the victim no longer wants to testify. The prosecutor’s choice, then, is to try the case without a key witness, and risk acquittal, or take the defendant into PTI, require domestic violence counseling, and hope that he learns his lesson.

In this case, it looks like Thomas will be admitted into the PTI program. Prosecutors use PTI in cases like this where his wife wants the charges dropped against him. If she is unwilling to testify and there are no witnesses to the alleged assault, the State will be unable to prove the charges against him beyond a reasonable doubt. As a result, rather than drop the charges altogether, they will allow him to complete PTI and domestic violence counseling in hopes that no other incidents like this occur in the future.

If Thomas is accepted into the PTI program, his charges will be suspended while he completes probation, counseling, etc. If he successfully completes the program, the charges will be dismissed and he will have no record from this incident. This seems like a fair result in this case. The bottom line is, if his wife refuses to testify and wants the charges dropped, PTI at least allows the State to monitor him and require that he attend counseling. In the alternative, the charges would be dropped altogether without any consequences at all.

--

Travis J. Tormey is a New Jersey trial attorney and the founder of the Tormey Law Firm, LLC, which is dedicated exclusively to criminal and drunk driving (DWI) defense. Travis has been certified to operate the Alcotest 7110, which is the breath testing device used to prosecute DWI cases in New Jersey, and Travis worked on two of the most influential DWI cases in recent history in New Jersey—State v. Holland and State v. O'Driscoll. Travis is also known for his expertise in defending sex crime charges, and disorderly persons offenses, and has been cited in New Jersey by the Bergen Record, Daily Record, and Asbury Park Press, and nationally by AOL News. Travis blogs at www.criminallawyerinnj.com and www.bergencountycriminaldefensedwilawyer.com.

The 43-page complaint is available here (PDF). To be fair, I must admit that I haven't had time to read the whole complaint yet, but I did see trial attorney Max Kennerly's (@MaxKennerly) detailed analysis over on his Litigation and Trial blog (4 Reasons Why Gov. Corbett’s Antitrust Lawsuit Against The NCAA Is On Shaky Ground). In a nutshell, Kennerly thinks there are issues with standing to bring the lawsuit.

Because I haven't done the research, I'm not in a position to agree or disagree, however, I agree wholeheartedly with Max's final point, which goes to the merits of the case: 

[A]ntitrust cases are increasingly difficult to win, and courts have generally sided with the NCAA on issues relating to sanctions.

That is not to say that I agree with the result itself, only that I agree that the Commonwealth will probably lose. Before the suit was filed, I mentioned that I was "intrigued," and that is because I like to examine the way other attorneys deal with peculiar circumstances that make it difficult to get their clients the relief they want. So, with that in mind, I will be watching the way this case develops.

EARLIER

Pennsylvania Governor Tom Corbett has scheduled a press conference today in State College. According to Good Morning America's Josh Elliott (@JoshElliottABC), he's planning to file a lawsuit against the NCAA, over the $60 million fine it levied against Penn State as a consequence of the Jerry Sandusky scandal.

This is an intriguing idea to me, so I poked around a little online, but I didn't find anymore details on the suit. My first thought was that the commonwealth of Pennsylvania was going to go after the NCAA for unjust enrichment—receiving a benefit for which they bestowed nothing in return—and although I like the concept, I'm not confident that it's a winner. There could be an antitrust claim there as well, but again, it seems like a stretch.

The theory behind the suit is likely to be that since Penn State is a state institution, the monetary penalty demanded from them is ultimately being paid by the taxpayers, who aren't a party to any contract or franchise agreement with the NCAA. This theory could support either a claim based in contract (e.g. unjust enrichment) or antitrust. Sometimes, though, a lawsuit like that is used as a strategic, posturing device, to influence future behavior and/or legislation, rather than to win a pile of cash.

If the suit is filed today in U.S. District Court for the Middle District of Pennsylvania, as is rumored, then I should be able to get a copy of the complaint, which I'll post here later.

Photo Credit: Rick Smith/Flickr

Today, it seems, is the end of the line for Lance Armstrong. I remember what I said—here, here, and here, on Twitter, and probably elsewhere too—that despite all the news reports and controversy surrounding USADA's indictment of Lance Armstrong for engaging in a systematic pattern doping, he was still a 7-time Tour de France winner. Now, not so much.

Earlier today, Patrick McQuaid, president of the International Cycling Union (aka UCI) announced that the UCI was adopting USADA's findings and imposing their recommended sanctions (strip all 7 #TdF victories, plus lifetime ban from cycling). McQuaid is the most senior administrative individual in all of cycling, thus, he and his organization were the only ones with jurisdiction or authority to take the action that USADA threatened. In a press conference from Geneva, Switzerland, McQuaid said this:

Lance Armstrong has no place in cycling, and he deserves to be forgotten in cycling.

So is this post my personal mea culpa? You could say that. But for the record, I never said that Armstrong never doped. He did. So did a lot of other cyclists. Some of them got caught; some didn't. In spite of all the terrible things we're learning about the 15+ year conspiracy led by Lance Armstrong, I still don't believe that it was fair or just to go back in time and take away his #TdF titles. We set a very bad precedent when we turn back the clock to try and change something that is already done and decided. What's done is done, and hindsight is always 20/20. If, when it's all said and done, it's brutally obvious that the guy was a scumbag, so be it.

Photo credit: Richard Masoner, Flickr

At the risk of beating a dead horse I'm going on record as saying that yesterday's "breaking news," also known as the U.S. Anti-Doping Agency's 200-page report detailing the so-called hard evidence that Lance Armstrong cheated to win his 7 Tour de France titles, doesn't change anything. Although headlines of USADA's report focus on the testimony against Armstrong by 11 of his former cycling teammates, if you read on, you'll see that the "new" report does nothing but rehash vague, unreliable, or unverifiable facts and allegations that were already known.

In a letter sent to USADA attorneys on Tuesday, Armstrong's attorney, Tim Herman, called the report:

[A] one-sided hatchet job—a taxpayer funded tabloid piece rehashing old, disproved, unreliable allegations based largely on axe-grinders, serial perjurers, coerced testimony, sweetheart deals and threat-induced stories.

Herman also pointed out that two of the key witnesses—Floyd Landis and Tyler Hamilton—are "serial perjurers and have told diametrically contradictory stories under oath."

Admittedly, I haven't taken the time to read the whole report, and unless it becomes my job to do so, I won't, because I consider it to be merely propaganda. It doesn't appear that there is anything in there that we didn't already know…or at least suspect. Essentially, it lays out a pattern of circumstantial evidence, mostly testimonial, which shows how Armstrong (and his teammates) could have been doping all along—that is, all along, during those years when he was probably the most tested professional athlete in the world.

Let us not forget that doping has been around in professional cycling for over 100 years. In fact, doping allegations have plagued the #Tdf since 1903.

The one new piece of evidence in this week's USADA report was a statement by Armstrong's longtime friend and teammate George Hincapie, who is distinguishable as the only cyclist to have assisted Armstrong in all 7 of his #TdF victories. Regardless of what impact, if any, Hincapie's contribution had on the totality of USADA's damning evidence against Armstrong, Hincapie's statement doesn't even mention Armstrong by name.

Something that occurred to me after reading several news accounts of USADA's latest propaganda report is that its CEO Travis Tygart wasn't able to garner the testimony of any unbiased witness. What I mean by that is that all of the people who gave testimony to USADA had something to gain in exchange for doing so—they were all U.S. cyclists, or in one way or another were in a position such that they could find themselves on the wrong side of what limited authority USADA actually has. For example, Armstrong's ex-wife, Kristin Richard—who is implicated throughout the report as a key accomplice to Lance's alleged doping regime—did not participate in any part of the investigation. Why? Because USADA couldn't force her to.

This brings me to my final (and, sorry, more or less my only) point: USADA doesn't have the authority or jurisdiction to strip Lance Armstrong of his 7 #TdF victories. As of today (11 OCT 2012), he still has the world record for most #TdF wins, and remains the only cyclist to have won the event seven times! That's a fact.

Earlier:

Armstrong's Yellow Jerseys Haven't Gone Anywhere...Yet
Deja Vu All Over Again: USADA Launches New Assault on Lance Armstrong
Latest on Blood Doping in Pro Cycling

Photo credit: Judi Oyama

What surprises me is that nobody seems to be questioning USADA's authority (or lack thereof) to take away something that was bestowed upon Armstrong by the International Cycling Union (UCI). USADA is a private, non-profit corporation. Despite its name, USADA isn't a government agency, nor does it have any governmental or police power, or judicial authority. USADA was created to do one thing: To oversee U.S. Olympians and Olympic hopefuls, and to monitor and regulate their use of performance-enhancing drugs. The Tour is sanctioned by UCI. They award the yellow jersey. They are the only body that can take it away. 

USADA cannot assert control of a professional international sport and attempt to strip my seven Tour de France titles. I know who won those seven Tours, my teammates know who won those seven Tours, and everyone I competed against knows who won those seven Tours.

Even though every news outlet has reported that USADA stripped Lance Armstrong of his TdF victories, it hasn't actually happened. What has happened is that USADA sent a report of its "findings" to the UCI, which will examine the report, and then make its determination. Could the UCI strip Lance Armstrong of his titles? Sure. But it hasn't happened yet, and it may not happen at all. So don't buy into the hype, and don't buy Travis Tygart's propaganda.

Earlier:

Deja Vu All Over Again: USADA Launches New Assault on Lance Armstrong

Latest on Blood Doping in Pro Cycling

Also read:

ESPN News, Lance Armstrong won't fight charges

Brian Alexander, How Armstrong Could ‘Get Away With Stuff With Everybody Looking'

Photo credit: jdegenhardt

When we think of companies that try to steal the show with slick advertising, or back-door promotion tactics to avoid exorbitant advertising costs, Nike probably isn't the first that comes to mind. After all, Nike has a $2.5 billion annual advertising budget. But in the case of the London 2012 Olympic Games, Nike did exactly that, and the best part about it (if you're a Nike fan) is that nobody even realized it. As I'm sure was the case with most people who watched any track & field coverage during the summer Olympics, I was practically blinded by the fluorescent green shoes worn by more than 400 Olympians, and nearly half of all medal winners. So it never occurred to me that Nike wasn't an official sponsor of the Games; not until I read this piece by NBC News Journalist Bill Briggs (@writerdude) just yesterday.

Apparently it wasn't Nike, but rival brand adidas that was the official shoe sponsor of the the 2012 Olympic Games. According to Briggs' story, adidas paid $155 million for that right. Why is that a big deal? Aside from the fact that Nike's Volt sneakers literally stole the show, they did so in spite of an IOC (International Olympic Committee) rule that substantially regulates advertising, and outright prohibits athlete endorsements from July 18 through August 15, 2012:

Except as permitted by the IOC Executive Board, no competitor, coach, trainer or official who participates in the Olympic Games may allow his person, name, picture[,] or sports performances to be used for advertising purposes during the Olympic Games. 

The stated purpose of Rule 40 is "to protect against ambush marketing; prevent unauthorised commercialisation of the Games." On the one hand the IOC claims that the rule is necessary to protect the integrity of amateurism, but on the other they're saying that commercialism is okay, so long as it's "authorised" (translation = so long as the IOC is getting a piece of the pie).

All that back-story sets up my question of whether the IOC's prohibition on advertising violates the First Amendment. First off, let me explain how this situation differs from the NFL that prohibits players from wearing anything other than Reebok apparel (Reebok being the official outfitter of the NFL). Without getting too deep into employment law, employers can require employees to wear uniforms. Olympic athletes are not employees of the International Olympic Committee, The London Organising Committee of the Olympic Games and Paralympic Games Limited (LOCOG), nor the British Olympic Association (BOA). But wait, just last week I preached that the First Amendment only applies to the government—yes, but it also applies to entities acting in a similar capacity, or serving a governmental purpose (i.e. "state actors"). It's hard to argue that the IOC doesn't function as a governmental body.

So how can the IOC get away with restricting the free speech of any athlete who competes in its Games? There are a couple reasons or possibilities. First, I don't know that anyone has followed through with court action to challenge the IOC's rule; Second, I'm not sure whether our Article 3 courts would hold an international governing body accountable for infringing the U.S. Constitution. In case you're wondering, the USOC (United States Olympic Committee) is not a subsidiary of the IOC. According to the Guardian, LOCOG was considering taking legal action against Nike for its "Find Your Greatness" campaign, but ultimately decided against it. I wouldn't be surprised if somebody in the IOC legal department put the kibosh on that idea, being concerned that if a court found the rule to be unenforceable, it could jeopardize future sponsorship revenue.

I won't be surprised if Rule 40 fades away in future Games. The Times They Are a-Changin'. Even the IOC recognizes the fact that although, historically, the rule was intended to ensure that amateur athletes maintain their amateur status, the Games have "moved on."

Read: Bill Briggs, Nike takes marketing gold with neon-yellow shoes

Earlier: Thou Shalt Know They First Amendment

Yesterday, the NCAA and the big four professional sports leagues filed a lawsuit against New Jersey Governor Chris Christie, alleging that the state law that was approved by NJ voters last November is a "clear and flagrant violation of federal law." The five sports organizations (plaintiffs) are asking the U.S. District Court for the District of New Jersey for preliminary and permanent injunctions against NJ officials, to enjoin (prevent) them from carrying out the law that authorizes sports betting in New Jersey. Here's why the State of New Jersey will prevail:

First of all, there's a legitimate argument that the federal statute at issue—the Professional & Amateur Sports Protection Act (PASPA), 28 U.S.C. § 3702—is unconstitutional. Second, even if the statute is constitutional on its face, because the NJ voters overwhelmingly approved the referendum, the state can argue that the statute is unconstitutional as applied because it violates the Tenth Amendment (state sovereignty).

And perhaps the most compelling reason that New Jersey will prevail is that courts don't hand out injunctions like Roger Goodell hands out fines and suspensions. There's a strict, three-part test that the plaintiffs must prove: 1) a likelihood of success on the merits of the lawsuit; 2) irreparable harm is likely if the court doesn't grant the injunction; and 3) that the injunction is necessary to "balance the equities" in the controversy.

Success on the merits essentially means that the plaintiffs have a clear right to relief, or, that there's very little doubt that they will ultimately win the case. In this case, even if the plaintiffs could ultimately win, it's not so clear or obvious as to sufficiently prove a likelihood of success. To try to show their likelihood of success, the plaintiffs simply cited the federal statute at issue—which purportedly bans sports betting in all states except Nevada, Delaware, Montana, and Oregon. But there is a countervailing argument—that the federal law could be unconstitutional. Even though the plaintiffs have the burden of proof, all Gov. Christie (who was a fairly astute lawyer and federal prosecutor in his day) has to do is show the court that there's doubt.

With regard to irreparable harm, the plaintiffs said this in their complaint: 

[A]uthorization of sports gambling in New Jersey would irreparably harm amateur and professional sports by fostering suspicion that individual plays and final scores of games may have been influenced by factors other than honest athletic competition. Plaintiffs cannot be compensated in money damages for the harm that sports gambling poses to the character and integrity of their respective sporting events. Once their reputations and goodwill have been compromised, and the bonds of loyalty and devotion between fans and teams have been broken, Plaintiffs will have been irreparably injured in a manner that cannot be measured in dollars.

Once you consider the undeniable fact that, even without being lawful, sports betting is a multi-billion-dollar industry, the irreparable harm argument is almost laughable. Further, the NJ law specifically carves out local collegiate sports betting from being permissible, which chips away even more of the NCAA's assertion that they will be irreparably harmed by the law.

But there are a couple more reasons that New Jersey will prevail. Say what you want about Chris Christie; you may not like him, his mouth, or his politics, but he has a proven track record of winning. Finally, the pink elephant in the room is Atlantic City, NJ, which for all intents and purposes is the Gambling Capital of the East Coast. With all due respect to Mike Florio, I don't believe that the Third Circuit's ruling on sports betting in Delaware will be controlling in this case. As I said back in November, the state of New Jersey spent a great deal of money getting this law passed. They knew about PASPA, and they got sports betting in NJ on the ballot anyway. It wasn't easy, and it wasn't cheap, and they wouldn't have done it if they didn't believe that the benefits outweighed the risks.

READ:

 Complaint for Declaratory & Injunctive Relief, No. 3:12-cv-04947 (D.N.J. filed Aug. 7, 2012) (PDF)

SEE ALSO:

NJ Says 'Yes' to Sports Betting, But Why?

Tim Dahlberg, Time to do away with sports betting stigma

PHOTO CREDIT: DonkeyHotey

I'm gonna go out on a limb, and say that Ohio State Football Coach Urban Meyer didn't get his new $26M contract from legalzoom.com. It has nothing to do with the fact that it's a high-dollar contract, either. The reason I know that the contract was not created from some computer database is that the terms of the contract are tailored to the specific circumstances that are important to the contracting parties.

I'm not saying there's anything wrong with Legal Zoom. If you need a will, and you have no children or substantial assets, I'm sure that whatever they have may suffice. If you need a simple power of attorney, a bill of sale for that old refrigerator you're selling out of your basement, or maybe even an operating agreement for your single-member LLC, then I could see using Legal Zoom. But I wouldn't trust them with a document that has the possibility of affecting another person's livelihood, or the potential to be litigated.

Last November, Urban Meyer shocked the college football world when Ohio State introduced him as their new head football coach in the wake of the Tattoo-gate scandal, which cost the Buckeyes several players, including quarterback Terrelle Pryor, and once-beloved coach Jim Tressel. Meyer won two national championships at the University of Florida, and then resigned, citing health conditions, before essentially coming out of early retirement to take the job in Columbus. Although Meyer's $4.4M annual compensation makes him far and away the highest paid coach in the Big Ten Conference, the brilliance of his contract isn't reflected in that number.

When Ohio State released the details of Meyer's contract last week, we learned about a special provision that—if the NCAA levies more sanctions against the school arising out of the Tressel-ball era—allows Meyer to get out of the deal, AND still pays him $1.5M per year for the remainder of the six-year term. That contractual provision is essentially an insurance policy for Urban Meyer, so he doesn't get stuck living in Columbus, Ohio, and coaching a dead-end team because of what happened during Jim Tressel's watch. This type of a contract clause can't come from some antiquated legal form. It can only be the product of a skilled contract drafter, someone who has taken the time to understand the parties' true interests and objectives, which many times are a lot more complicated than dollars and cents.

You might think that you have to make Urban Meyer money to be able to get a contract that good, but you'd be wrong. Before you enter into any agreement for employment, or to buy or sell anything of significant value, it's worth the cost of a one-hour consultation with an attorney to discuss what's on the table, and address any potential issues or concerns that are on your mind. At the end of that consultation, the attorney will either tell you that you'll be fine with the basic contract, or what the pitfalls lie ahead in relying on a standard document. In most cases, it's like the old adage, pay a little now, or pay a lot later: If you and a buddy enter into a business deal based on some chicken scratch on a cocktail napkin, if and when things go south, you could find yourself in the middle of a contentious (expensive) lawsuit.

NB: The above statements are not intended to be construed as an endorsement of any online or other provider of legal documents or forms.

Photo credit: Brooke LaValley, Columbus Dispatch

Earlier:

University Paid Nearly $142K in Football Players' Legal Fees

Will NCAA Sanction Tressel If They Determine He Withheld Information

Consequences If Buckeyes Break Promise To Return

Since Lance Armstrong was never put on trial for the doping allegations that resurfaced yesterday, the DJC won't help him. But that doesn't mean that its underlying principles can't. For example, the legal doctrines of collateral estoppel and res judicata are both based on the principle that you cannot re-litigate an issue that's already been decided by a court. In Armstrong's case, he's been tested for doping/performance-enhancing drugs more than 500 times, and not a single test has been positive. He's already been cleared of doping charges/allegations by cycling's governing body, the International Cycling Union, and the World Anti-Doping Agency. Earlier this year, the U.S. Justice Department dropped its two-year investigation of Armstrong's alleged doping. Now, the United States Anti-Doping Agency (USADA) is going after Armstrong.

[N]umerous riders, team personnel and others will testify based on personal knowledge acquired either through observing Armstrong dope or through Armstrong's admissions of doping to them that Lance Armstrong used EPO, bloodtransfusions, testosterone and cortisone during the period from before 1998 through 2005, and that he had previously used EPO, testosterone and hGH through 1996.

Whether Armstrong did it or not isn't, and shouldn't be the issue. The issue is whether it's fair, reasonable, or a fastidious use of taxpayer money (USADA is funded by the U.S. Olympic Committee and the federal government) to rehash these allegations. Armstrong was tested 500 times by various anti-doping agencies, and never had a positive test result. These allegations have been circling for more than a decade, yet numerous agencies have either exonerated him, or determined that there wasn't enough real evidence to proceed.

But hold the presses, USADA has people with personal knowledge who are going to testify against Armstrong! Seriously?? Personal knowledge is sufficient for a search warrant—not a conviction, which would be the professional athlete's version of capital punishment. If I were Armstrong's attorney, I would file a libel lawsuit against USADA, and an emergency motion for preliminary injunction to enjoin them from proceeding with this witch hunt.

More Articles:

Latest News on Blood Doping in Pro Cycling

From CNN:

Lance Armstrong banned from world Ironman events over doping probe

Ex-teammate: I saw Lance Armstrong inject banned substances

Last week, the League fired longtime grievance arbitrator Shyam Das (the guy who cast the deciding vote that overturned National League MVP Ryan Braun's 50-game suspension for testing positive for performance-enhancing drugs last month) after allowing a second player to use the so-called chain-of-custody defense. The League was certainly within its right to remove Das, who "served at the pleasure of" both MLB and the Players' Association—either side was free to remove Das, at any time, with or without cause, upon written notice. But is the League's action a sign of something more significant?

 What's happened here is that MLB removed a judge from the bench because of a philosophical disagreement—i.e. the League believes that their "independent arbitrator" should take a more relaxed view of pillars of the American justice system like the Rules of Evidence.

Alfonzo's grievance challenging his suspension raised issues that were nearly identical to those resolved in the arbitration involving Ryan Braun. It is not anticipated that any other future cases will be impacted by the circumstances raised in the grievances of these two players.

That was MLB's statement, after announcing Das's termination, and the fact that they'd reached "an agreement" with the Players' Association regarding Eliezer Alfonzo's alleged second positive drug test. Whether or not Alfonzo is suspended makes little, if any difference—he was designated for assignment by the Colorado Rockies (effectively cut from their roster) and sent to Triple-A. What's troubling, however, is the League's declaration, that the evidence issues in Braun's and Alfonzo's arbitration hearings will never be at issue again.

This type of situation is precisely why the founders of our country—in the U.S. Constitution—gave federal judges life tenure. The underlying theory of life tenure is that judges will be true to their own consciences and moral convictions, without fear of reprisal for rendering an unpopular decision. Baseball's collective bargaining agreement also had a provision with the same intent (described by attorney Craig Calcaterra in his NBC Sports blog Hardball Talk), but it seems that it failed in this case.

Although the effect of Das's removal is limited to baseball, it represents a microcosm of judicial politics in the United States, which has been a hot-button issue in states such as Mississippi, New York, New Jersey, and Ohio, and subject of the realistic fiction in books by John Grisham. N.B. read Grisham's The Appeal for a creepy tale about a tort reform group's influence on judicial elections, which results in…sorry, you'll have to read the book to find out how it ends (or just read the Wiki-spoiler review).

Earlier:

Braun Decision Affirms Fact that Appeals are Crucial to our System of Justice

While that case is still getting started, a Bucks County, PA firm filed a class-action lawsuit against the Philadelphia Flyers owner, Comcast Spectacor, on behalf of all Flyers season-ticket holders. The basis of the suit is that the team misled season ticketholders by offering them tickets to all 41 regular-season home games, but then withholding tickets to the Winter Classic—which, by definition is a regular-season home game.

Comcast has chosen to label the suit as "frivolous," however, a Philadelphia small-claims court already awarded another season ticketholder $1,300 in damages, for essentially making the same allegations. An attorney from Stern & Eisenberg, who filed the class-action suit in Mercer County Superior Court argues that if the claim was so frivolous, why didn't Comcast appeal the decision? 

If the case was so frivolous, why didn't Comcast Spectacor choose to use the appeals process and fight it tooth and nail? This is a team who tried to get as much money as they could. That's their right as a business. But they angered a large part of their fan base in the process. They gave customers no choice.

This was a regular-season game, in Philadelphia, on regulation ice. It should have been a part of the 44-game package that fans paid for.

A reporter asked why Stern & Eisenberg decided to file the class-action suit in New Jersey, and although there could be a number of reasons behind that, the most compelling one has to be that New Jersey's consumer protection laws are some of the toughest in the country, and so long as one of the named plaintiffs is a resident of Mercer County, New Jersey, jurisdiction over an out-of-state defendant is proper.

Credit:

Frank Seravalli (@DNFlyers) Flyers beat writer for the Philadelphia Daily News.

Earlier:

Perpetrator of Cheesesteak Attack has Rap-sheet Longer than Richie Aprile

Rangers Fan Beaten Outside of Geno's Steaks: Is it His Own Fault for Eating a Misteak?

The Roger Clemens [re]trial officially kicked off on Monday, though it still has yet to get started. Today marks day three of jury selection. New York Daily News sports investigative reporters Michael O’Keeffe and Nathaniel Vinton are tweeting live covereage of jury selection from the E. Barrett Prettyman Federal Courthouse in Washington, D.C. (@NYDNSportsITeam).

As was the situation in the case against Barry Bonds, Clemens is charged with perjury (see the 19-page indictment), but we all know what the case is really about—steroids, drugs, PEDs, human growth hormone; call it what you want. Apparently I’m not the only one who thinks this trial is a waste of time (not to mention, taxpayer dollars). Shortly after the government’s first attempt at prosecuting Clemens ended in a mistrial, some of the jurors from the case spoke out, which prompted district court judge Reggie Walton to call the attorneys from both sides into his chambers:

The reason I wanted to do this in chambers and not in the courtroom is because I think what I’m going to say now would create a tremendous amount of publicity, which I don’t think this case needs, and that is, some of the jurors had said that they felt it was a waste of taxpayers’ money at a time when we have significant fiscal problems in our country to prosecute this case again, because they felt that Congress has all of these other issues on their plate, they can’t seem to solve them, so why are we spending money prosecuting this case.

The trial in the matter of United States of America vs. William R. Clemens, No. CR-10-223, is expected to last four to six weeks. The government's case rests almost entirely on DNA evidence that was allegedly procured by Brian McNamee, Clemens' former strength trainer, who claims that he saved some of the needles and gauze that he used to inject Clemens with PEDs. That evidence will be worthless, however, unless the government can prove its chain of custody, which means that they will have to identify and make available for cross-examination every individual who possessed the proferred evidence—from the time it was collected, then examined, and all the way up to the time they present it to the jury.

Good luck Mr. Assistant U.S. Attorney: That's 11 years you have to account for the whereabouts of this evidence, including the 7 years that McNamee claims that he stored the medical waste in his New York home, stuffed inside a Miller Lite beer can.

(photo credit: Mark Sardella/Flickr)

According to Tennessee criminal defense attorney Lee Davis (@LawyerTN), the trial judge substantially limited the testimony of the defense's key expert witness, Dr. Ronald Uscinski, because of a mistake that Huguely's defense team committed when they copied Dr. Uscinski on an email summarizing the testimony of the prosecution's key expert. The judge ruled that Huguely's attorneys violated Virginia's "Rule on Witnesses." Apparently the Commonwealth of Virginia doesn't have their own version of the Federal Rules of Evidence, so they loosely follow the federal rules (and make their own rules up when they feel like it). Virginia's so-called Rule on Witnesses is a variation of Rule 615 of the federal rules, which is designed to prevent trial witnesses who haven't yet testified from changing their testimony because of testimony given prior to theirs. Usually Rule 615 is applied to fact witnesses—people who testify about what they saw or heard, which is relevant to the crime or issue at trial.

Expert witnesses, however, aren't there to testify about facts, or what they saw or heard—their purpose is to provide the jury with scientific evidence that supports one side of the case or the other. Experts typically write reports prior to trial, and the reports are provided to the other side for both scrutiny and trial preparation, so it isn't likely for an expert to change their testimony because it would undermine their credibility if they testified in a manner that was inconsistent with what they previously wrote.

Although my analysis means nil to Huguely at this point in time, it could be a solid foundation for him to appeal his conviction and get a new trial. Ordinarily evidentiary matters aren't good bases for appeals (see, e.g., previous posts here & here) because of the incredible deference that appellate courts give to a trial judge's discretion in whether to admit or exclude evidence, but in this circumstance the judge's decision to exclude portions of Dr. Uscinski's testimony may have deprived Huguely of a fair trial. If so, the judge's evidentiary ruling becomes a constitutional question, or one of "structural error," which garners much higher scrutiny from the appellate court.

This was precisely the situation in a fairly recent decision by the U.S. Supreme Court in which they unanimously reversed the death sentence of a South Carolina man who was convicted of murder after the trial court—on hearsay grounds—refused to allow him to introduce evidence that another person committed the crime. (Even Justice Alito let that guy off the hook!). When I worked for the Court of Appeals of Ohio I drafted a similar decision, which also went one step further and found the state evidentiary rule unconstitutional. The Ohio Supreme Court eventually disagreed as to the constitutional question, but our ruling, for the most part, remained intact.

I'm not intimately familiar with Virginia law, but if I were a member of Huguely's defense team I would be looking to that line of cases for guidance, as well as considering a possible claim for ineffective assistance of counsel.

Ryan Braun just became the first major league baseball player to successfully overturn a positive drug test result on appeal, and based on the immediate reactions in the press and Major League Baseball itself, you'd think the Berlin Wall had just crumbled. But before everyone jumps to the conclusion that baseball's drug policy is flawed, or that this outcome will somehow open up the proverbial floodgates to players wanting to challenge their positive drug test results, let's put it in perspective.

Prior to Braun's appeal of his October 2011 test result, twelve other positive drug test results were upheld on appeal. In terms of batting average, that's .077. By comparison, in our civil justice system, somewhere between ten and twenty percent of cases are reversed on appeal (in batting average that's .100 to .200). And according to this NY Times report, two-thirds of all death sentences are overturned on appeal (.666). So if you're José Canseco planning a comeback, don't get your size small jockstrap out of retirement yet.

If you want to be upset about something here, it should be the comments by Rob Manfred, MLB's Executive Vice-President for Labor Relations & Human Resources, who is an attorney (Hahh-vaad educated) and was one of the three attorneys that presided as arbitrators of the appeal:

Major League Baseball considers the obligations of the Joint Drug Prevention and Treatment Program essential to the integrity of our game, our Clubs[,] and all of the players who take the field. It has always been Major League Baseball’s position that no matter who tests positive, we will exhaust all avenues in pursuit of the appropriate discipline. We have been true to that position in every instance, because baseball fans deserve nothing less.

As a part of our drug testing program, the Commissioner’s Office and the Players Association agreed to a neutral third party review for instances that are under dispute. While we have always respected that process, Major League Baseball vehemently disagrees with the decision rendered today by arbitrator Shyam Das.

The reason that Braun's positive test result was thrown out was that after the tester collected the urine sample, he kept it in his refrigerator over the weekend, and it wasn't actually examined until days later when it was received by the lab in Montreal. Some call that a technicality, but in reality, once a urine sample is 24-hours old its clinical significance is worthless by medical standards.

As attorneys, we are sworn to advocate for truth, justice, and the Federal Rules of Evidence, but based on Manfred's comments, his only concern is imposing punishment, rather than making sure that punishment is first warranted or justified. Moreover, the fact that Manfred called out his colleague, for essentially voting in a manner consistent with well-established legal doctrine, casts serious doubt on his integrity. 

Ironically, baseball analyst Tim Kurkjian (@Kurkjian_ESPN), who by the way is not an attorney, hit the ball on the screws in this interview:

Just like in a court of law, both sides had a chance to present evidence, and in this case the evidence went in Ryan Braun's favor.

Did the National League's 2011 Most Valuable Player use banned substances during last season's playoffs? We don't know. After learning about the positive test result from the MLB collection, Braun had a second test performed by an independent laboratory, and that test revealed normal levels of testosterone. Braun also tested negative for banned substances on three other occasions during the 2011 season. That doesn't mean that he was clean when he was tested in early October, but given the circumstances of the first drug test, the results are clinically unreliable, and so punishment would be unjust.

Photo credit: Steve Paluch

Yesterday in Charlottesville, Virginia Circuit Court, George W. Huguely V (yeah, the fifth) pleaded not guilty to first-degree murder. Huguely is the former University of Virginia lacrosse player charged with murdering his ex-girlfriend, Yeardley Love, also a UVA lacrosse player, in May 2010. According to most reports, Huguely broke down Love's bedroom door and the two had a heated argument, which became violent, and ended only after Huguely slammed Love's head against a wall. Love's official cause of death was blunt force head trauma.

Huguely was arrested almost immediately after Love's roommate found her face down in a pool of her own blood, and he hasn't denied any of the material facts. So why is he pleading not guilty when he's more or less already admitted that he killed her? Although the answer to that question is simple—regardless of whether he admits to killing her, he says it wasn't premeditated—it opens up a controversial discussion over the way that prosecutors charge crimes today.

Historically, the definition of murder is "the unlawful killing of another human being with malice aforethought." Over time the term first-degree murder evolved as the premeditated killing of another human being. This premeditated or first-degree murder has typically been the crime for which the death penalty was sought. In the modern era the death penalty wasn't given for non-premeditated murders. Regardless of these so-called common law definitions of murder, they might as well not exist today because each of the fifty United States has replaced the common (widely accepted for hundreds of years) definition of murder with its own complex, statutory definition.

In addition to each state's independent definitions of crimes, each state now has its own interpretation of the terms that makeup the definitions of their criminal code. The end result of what has become roughly three decades of "improving" the criminal justice system is that today there are many more convicts being sentenced to life (and life-without-parole) sentences, and many others are serving sentences about three times as long as they would have if they'd committed the same crime 30 years ago.

Thirty plus years ago, a young man [first-time felon] would have been sent to a reformatory in hopes that he could be rehabilitated. He would have been eligible for release on parole after 38 months, no matter how many…felonies he had committed. The…parole authority could keep him in custody until it felt he was no longer a danger to society, but it could release him after less than four years of incarceration if he rehabilitated himself or was rehabilitated. [But America] has given up on rehabilitating inmates via reformatories.

Until relatively recently, Ohio had a law on the books which indicated that no matter how many…felonies a person committed, [they] could be released on parole after serving 15 years, possibly less for good time. The legislature wiped out that statute.

* * *

I have a great deal of concern that we are warehousing for life a large number of young men, especially the poor and minorities. I have even more concern that [we] have given up on the whole concept of rehabilitation.

Those are the words of my longtime mentor Judge Gary Tyack of the Tenth District Court of Appeals of Ohio, which is an excerpt from his dissent to a majority opinion that affirmed a 70-year-sentence for a teenager who was convicted of a series of home-invasion burglaries.

Obviously George Huguely is neither poor nor a minority, nor did he come from a broken home, or grow up under any of the other so-called mitigating circumstances that typically lessen the severity of a criminal sentence. There is an even bigger problem with our criminal justice system today, and it isn't the fault of the courts. The problem is the constant pressure that voters put on legislators to be tough on crime, which translates into passing laws that criminalize behavior that once wasn't a crime, or increasing the penalty for the commission of crimes. Once these tougher laws go into effect, it's the prosecutors that foul everything up, by overcharging, which they do in an effort to leverage guilty pleas that result in "fair" sentences. But who is to be the ultimate arbiter of what is fair?

Based on the statements of George Huguely's defense team, it sounds like they would concede that he is guilty of either murder or manslaughter. If the prosecutor charged Huguely with either of those, they would likely get him to plead guilty, and he'd be sentenced to somewhere between five and twenty-five years in prison. By charging him with first-degree murder, however, Huguely is facing life in prison. There's no incentive for the prosecutor to charge appropriately, so they treat their jobs like credit cards—they charge 'em up as high as they can go.

Sometimes it's easy to forget that behind almost every news headline is a real person. Usually the person in the headline did something affirmative to earn that distinction, but what about when the headline is about a victim? Last week I wrote about a New York Rangers hockey fan who was beaten by Philadelphia Flyers fans outside a South Philly cheesesteak stand. To make for a catchy or funny title, I even borrowed a famous trademark from the restaurant's main competitor.

But when I saw Neal Auricchio Jr. (the victim of the crime) interviewed on local news a couple nights ago, it made me feel like what I'd written was insensitive, or at least that it was subject to that interpretation. As it turns out the assailed Rangers fan is practically a neighbor of mine. He's a police officer, and a former U.S. Marine, who was awarded a Purple Heart for his service to our country, while stationed in Iraq. Also, Mr. Auricchio is a husband, and father to a young son, and he wasn't just roughed up—he was severely beaten, to the extent that he'll need facial reconstructive surgery, and won't return to the police force for months.

I never meant any disrespect to Mr. Auricchio by what I wrote, but I didn't want there to be any confusion. I make my living by carefully choosing words that will have a specific and desired effect on their respective listener or reader. In most cases, my goal (no pun intended) is to create sympathy for my client, which sometimes calls for sarcasm or other similar rhetoric. In this circumstance, the butt of my joke should have been Dennis Veteri, the 32-year-old south Jersey man who led the brutal attack on Mr. Auricchio.

As it turns out, Veteri doesn't only look like Richie Aprile, but he's about as unsavory a character as the one portrayed by actor David Proval on the HBO hit series about New Jersey mob life. According to the Philadelphia Inquirer, Veteri has eleven prior arrests in four different states, including seven criminal convictions, for everything from drugs and robbery, to assault with a deadly weapon—when he was eighteen years-old Veteri stabbed his own brother with a kitchen knife! Those charges were dismissed, presumably because Nicholas Veteri refused to cooperate with the Philadelphia District Attorney's Office. (See a detailed account of Veteri's criminal history in Mike Newall's article at Philly.com.)

For now, Veteri is free on $400,000 bail, but given the brutality of the crime, the evidence against him, and his criminal record, not to mention the fact that this case has now garnered a lot of publicity, I think it's safe to say that Veteri won't escape jail this time. Veteri hired Philadelphia personal injury attorney Michael A. DeFino to defend him against the criminal charges. DeFino says the whole thing is just a fist fight that's been blown out of proportion. Meanwhile Auricchio has retained one of New Jersey's most prominent plaintiffs' attorneys, Ray Gill, to represent him in the civil suit. And as for Richie Aprile, we all remember what happened to that prick...

Maybe it's a Jersey/East Coast thing but I love a good cheesesteak. My go-to spot after a late-night gig in Philadelphia was Pat's, the South Philly institution known as the King of Steaks. Across the street from Pat's is Geno's Steaks, which also has great steaks, but except for trying Geno's one time, I've always picked Pat's—perhaps because Pat's has been around since 1930 (as opposed to Geno's, established 1966), but more likely because Pat's had a scene in Rocky, one of my all-time favorite flicks. But I digress...

This headline caught my eye this morning when I was reading through my RSS feed: Is Geno's Steaks Liable For The Beating Of The Rangers Fan? This post is courtesy of Philadelphia personal injury attorney Stuart Carpey, who writes the Pennsylvania Injury Law Report for the LexBlog Network. Although I consider myself well-versed in tort law, I'm not a personal injury attorney per se. It is through my involvement in sports law that I typically run into tort (e.g. personal injury) practice.

Here's the basis for Carpey's post: A couple days after last week's Winter Classic hockey matchup between the Rangers and Flyers in Philly, a Rangers' fan was severely beaten while waiting to pickup his cheesesteak at Geno's. For those who've never been, Geno's (and Pat's) doesn't have a dining room, or any inside seating or service. They service all customers through a pickup window, which is virtually on the sidewalk of the South Philly neighborhood. And it's not uncommon for the line at either joint to wrap around the corner, or to wait an hour or longer to get to the front of the line and place your order. Based in part on those typical circumstances, Carpey proposes that Geno's was is liable for the Ranger fan's injuries:

[I]s Geno's responsible? They sure are, as a matter of law, and I believe they can be sued for money damages by Mr. Auricchio. A property owner is responsible for the criminal acts of third parties if they should have anticipated a danger to their customers. Owners of commercial property may be held liable... for harm to persons by criminal acts of third parties so long as the criminal act was forseeable...

The key language, however—if they should have anticipated a danger—is a pretty big if, because liability will be premised on the Ranger fan's ability to prove that Geno's knew that it was reasonably foreseeable that one of its customers could be attacked while waiting in line for a cheesesteak. ("Reasonably foreseeable" is lawyer speak, which basically means that such an incident was somewhere between possible and likely.)

Credit to Carpey for pointing this out as well, but I respectfully disagree with his conclusion that Geno's is liable as a matter of law. Why? Because the burden of proof falls on the Rangers fan, and he will have to demonstrate that Geno's knew or should have known that this was bound to happen. Even if he can show that Geno's knew or should have known, Geno's can still avoid liability if they can demonstrate that he created or escalated the situation, or that there was any other intervening cause for the altercation.

I genuinely feel for the victim, especially as a New York sports fan, but I don't see a big payday in his future coming from Geno's. What I do see in the future, however, is me stopping at Pat's today—for one Whiz wit—after my meeting in Philly.