ESPN is now reporting that Rutgers Athletic Director Tim Pernetti has been fired for his handling of the Mike Rice disciplinary procedure. Stay tuned...
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.
By Travis J. Tormey
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.
UPDATED 2013-01-03 12:19:44 ET
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.
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.
[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.
Photo credit: Judi Oyama
The big news over the weekend was that the U.S. Anti-Doping Agency (USADA) supposedly stripped Lance Armstrong of his 7 Tour de France (TdF) titles, after Armstrong announced that he would not enter into arbitration to decide whether he won those events with help from banned substances. Pittsburgh sports attorney Jay Reisinger (@jayreisinger) wrote an accurate account of how we got to this point, and I've seen and heard several other descriptions that are also accurate, so I won't bother recapitulating.
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.
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.
Complaint for Declaratory & Injunctive Relief, No. 3:12-cv-04947 (D.N.J. filed Aug. 7, 2012) (PDF)
Tim Dahlberg, Time to do away with sports betting stigma
PHOTO CREDIT: DonkeyHotey
Earlier this week I had the opportunity to speak with Colin O'Keefe of LXBN regarding the Freeh Report, which reveals that Joe Paterno and other high-ranking Penn State officials covered up incidents of sexual abuse by Jerry Sandusky. In the interview, I explain the report's findings, offer my thoughts on the reaction we've seen thus far and touch on the report's impact on future criminal and civil proceedings.
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
The Double Jeopardy Clause in the U.S. Constitution says that no man "shall...be subject for the same offense to be twice put in jeopardy of life or limb..." In (modern) English, that means that a person should not be prosecuted twice for committing the same crime or bad deed. Seems reasonable, right? The founders of this country put it in the Constitution for a reason. Unfortunately, however, the application of the Double Jeopardy Clause (DJC) has significant limitations, one of which is that it only "attaches" (i.e. applies) once a jury is empaneled at a trial, or if there's no jury, once the first witness is sworn in.
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.
MLB says they're Taking their Ball and Going Home: Firing of Arbitrator Das Not Unlike the Politics of Judicial Selection
Did Major League Baseball get the last laugh in the chain-of-custody argument?
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).
You might remember the story about the Woodbridge, NJ cop, and New York Rangers fan, who was badly beaten outside of Geno's Steaks in South Philly. The beating came on the heels of the 2012 Winter Classic, which is an annual, regular-season NHL hockey game that is played outdoors. This year's installment featured the New York Rangers and Philadelphia Flyers at the Phillies' Citizens Bank Park (f/k/a Veterans Stadium). Shortly after the beating incident, the cop, Neal Aurrichio Jr., lawyered up, by hiring New Jersey's most notorious plaintiffs' trial attorney, Ray Gill.
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.
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)
Last week, a Virginia jury found former University of Virginia lacrosse player George Huguely guilty of murder, but found him not guilty of first-degree murder. I'm not at all surprised by the verdict, and my purpose in posting this follow-up is not to call attention to my original post on the subject; rather, one of my colleagues alerted me to an evidentiary issue in the trial, which is something that I haven't heard discussion of in mainstream media coverage, and one that probably had a significant part in the outcome of the trial.
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.
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.
Getting back to the defamation lawsuit Scottie Pippen filed last month in an Illinois federal court. By the way, I know it's still early, but so far I haven't received word that Pippen is suing me over my last post...
Before we get into Pippen's specific claims, let's briefly review the law of defamation. First of all, defamation is the broader classification of two kinds of intentional torts (a type of civil lawsuit) that arise out of the making of false and disparaging remarks about another. If the disparaging remark or statement is oral, then the claim is for slander, if written, then it's libel. Anytime someone sues for defamation they must prove four elements to win. Although there are a few narrow exceptions, the most difficult of these elements to prove is, invariably, damages—i.e. what financial harm did the person suffer as a result of the disparaging statement?
Additionally, when the person claiming defamation is a "public figure" (e.g. celebrity, public official, etc.), they must also prove that the individual who made the defamatory statement/publication knew that the it was false (or recklessness as to the statement's alleged falsity). This is sometimes called the actual malice doctrine, and it basically means that there isn't liability for negligently or accidentally making a statement that is false about a celebrity.
Scottie Pippen has alleged that the various media outlets defamed him by publishing ten or so articles that either allege or imply that he filed for bankruptcy in or around 2003 (complaint PDF file). Furthermore, Pippen's attorneys claim that these publications constitute defamation per se, which is one of the narrow exceptions I alluded to earlier with regard to proving damages. When a statement is considered defamation per se, then you don't have to prove your damages. But there's a catch. Historically, there are only four types of defamatory statements that are considered defamation per se:
(1) allegations that attack a person's professional competence
(2) accusations of criminal activity (which must usually allude to crimes of moral turpitude)
(3) allegations of unchastity
(4) allegations of a loathsome disease (e.g. leprosy, HIV/AIDS, other STDs)
What's missing from this list? For starters, I didn't see "being poor," which is the only thing that would apply in Scottie Pippen's case. So unless Pippen's attorneys can convince the court that they should add "being poor" to the short list of per se defamatory statements, his claim for defamation per se is dead in the water.
Pippen has also sued CBS, NBC, and the others for negligence, and for false light. Based on the actual malice doctrine the negligence claim is unfounded. As to false light, this is probably the only claim that Pippen has made that has a chance to withstand a motion to dismiss. So what is false light?
False light is somewhat similar to defamation, but is actually an invasion of privacy. The primary difference between a defamatory statement and one that gives rise to a claim for false light is that the crux of the former is a false statement, whereas the latter doesn't necessarily have to be false—typically a false-light statement is one that is misleading in a way that would be highly offensive or embarrassing to a person of ordinary sensibilities.
Based on all this, I would expect the attorneys for each defendant to file motions to dismiss counts one and three of Pippen's complaint, and I would also expect them to prevail on these motions. Pippen's attorneys could amend count three of the complaint to include ordinary defamation (as opposed to defamation per se), but even if they do, they will then have to prove that Scottie suffered some financial harm as a result of the alleged defamatory statements. Damage to his reputation and so-called good name aren't enough.
One last observation about this case: Assuming that Pippen never filed for bankruptcy, how did so many news outlets get it wrong? It's possible that one just copied the other after the other, which may make sense for some of the smaller defendants, but it surprises me that editors at CBS Sports and CNBC would have been so careless.
I wonder if I'll get sued for writing this...
In June 2010, Scottie Pippen won a $2M verdict against the law firm Pedersen & Houpt, which he sued for malpractice, surrounding his purchase of a Gulfstream jet in 2002. He originally asked the jury for $8M, but they determined that Pippen himself was at least partly to blame, and so they awarded him the lesser amount. Still not a bad payday for Scottie Pippen, though, who had already received a $1.5M settlement from another defendant in the same action. Then last month, Pippen's attorneys filed a lawsuit (PDF) asking for more than $18M from CBS, NBC, and eight other defendants, alleging that they defamed him by reporting that he was bankrupt.
The allegations stem from a CBSSports.com story that ran about six months after Pippen's $3.5M payday, Money a problem for a lot of former players, which reported that he was among several high-profile athletes who'd gone bankrupt, and featured a huge picture of the former Chicago Bull (the article has since been removed from CBSSports.com but is attached to the complaint as Exhibit 2 (PDF)). Not long after, in April 2011, CNBC.com published a similar article titled 15 Athletes Gone Bankrupt (also removed from their website, attached as Exhibit 1 (PDF)).
Also named as defendants in the complaint, are Comcast and GE, the parent corps. of NBC/CNBC, and these others, each of which are linked to a PDF-file of the offending publication: Arizona State University, Yakezie Network d/b/a One Money Design, Mint Software, InvestingAnswers.com, Sportsreport360.com, HoopsVibe.com, and a student newspaper published by the University of Tampa.
I've previously explained the law of defamation, which is commonly misunderstood by laypersons. Actually, after reading the complaint, it appears that Pippen's own attorneys don't have a full grasp of the law of defamation. Aside from that, the complaint rambles on and on with irrelevant puffery relating to Scottie Pippen's public service, and even contains a photograph—I'm not talking about attached exhibits either—page twelve shows a photograph of Pippen at a charity event with other Bulls players, donating laptops to a Chicago elementary school. As if that weren't bad enough, it also appears that the exhibits attached to the complaint are commingled with evidence from an entirely different lawsuit! (I've attached a PDF file of the complaint with all exhibits, exactly as filed with the court.)
The law of defamation differs somewhat in this case because of the fact that Pippen is a "public figure." In my next post, I'll discuss the importance of that distinction, and I'll also break down the allegations in the complaint one by one.
Photo credit: CR Artist
As the temperature has finally dipped into the twenties in the northeast, skiers and snowboarders are starting to think about knee-deep powder, but before you head out to the slopes this season, make a quick stop at your local ski or snowboard shop, and get you and your kid properly fitted for snowsports-specific helmet.
With all that we're learning about post-concussive syndrome and sports-related brain injury in general, you can't be too safe when it comes to protecting our little ones' melons. Make sure your child is properly fitted with a snowsports helmet approved by the American Society of Testing and Materials (ASTM). Even better yet — set a good example by wearing a helmet yourself. This isn't just a suggestion, either; California, New York, and Massachusetts have mandatory helmet laws pending in their state legislatures, and in New Jersey, a mandatory helmet law is already in effect.
In April, Governor Chris Christie signed a bill that made New Jersey the first state to require kids to wear helmets on the slopes (the irony is that the only "slopes" in New Jersey are nothing but glorified sledding hills, but that's not the point). The law, which took effect on November 1, requires everyone under 18 to wear a "securely fitted protective helmet specifically designed by the manufacturer to be used while engaged in the activity of downhill skiing," and subjects parents/guardians to a fine of as much as $100 ($25 for the first offense) if their child is caught sans helmet.
Other states are sure to follow New Jersey's lead. To find out whether your state has helmet legislation in the works, or to educate yourself about brain injuries in snowsports, visit www.nsaa.org (National Ski Areas Ass'n) and LidsOnKids.org.
Photo credit: Michael Choi
Last week, attorney Lee Davis aptly noted a French court's decision handing down a 12-month suspended sentence to cyclist Floyd Landis for his 2006 in attempt to steal documents from a French drug-testing laboratory. The documents in question related to Landis's 2006 Tour de France victory, which was stripped from him after drug tests revealed an unusually high level of testosterone in Landis's blood. Although Landis vehemently denied using performance enhancing drugs, after all hope of reclaiming his Tour victory was dead, he admitted using PEDs, and at the same time, implicated fellow former U.S. Postal Service teammate Lance Armstrong of blood doping as well.
Landis's accusations have gone quiet recently, but now that the French case is over, it's likely that he will go back on the offensive. A California grand jury is still investigating, but given the statute of limitations for the crimes he is accused of, it's unlikely that Armstrong will be formally charged, much less convicted.
Also credit to Lee Davis for reporting that 3-time Tour de France winner Alberto Contador gave testimony last week in the investigation of his alleged doping during the 2010 Tour. I had thought that this issue was dead, so I am glad that Davis reported on it as well. Apparently the Spanish Cycling Federation acquitted Contador (a Spaniard) of the doping charges, but WADA and UCI (the two organizations that matter) have yet to render a decision. If found guilty, Contador will forfeit his 2010 Tour de France victory, and will be banned from professional cycling for two years.
I am an avid cycling fan — I was more of an avid cyclist before going into private practice — so one of the legal issues I follow closely (but don't often write about) is the ongoing blood doping saga in professional cycling. For those who don't know, doping is a process of using PEDs to increase the number of red blood cells (and oxygen), which boosts an endurance athlete's cardiovascular stamina. Doping is different from traditional steroid use.
I'm a huge fan of Lance Armstrong, I even had the opportunity to ride with him in a charity ride benefitting cancer research in 2009 (see above photo), and because I'm a fan, I'd like to believe that he's always been clean. But having been around professional and semi-pro cyclists for years, common sense tells me otherwise.
In this photo, Lance Armstrong (in the Livestrong kit, of course), is shown at the helm of the lead group of Pelotonia 2009. I am riding in the third position behind Armstrong, white jersey with black sleeves, head is cut out of the picture. I eventually caught up to Armstrong, and rode alongside him for about 10 miles, before dropping back to catch my breath. Unfortunately I spent everything I had, to catch up to Armstrong — I fell out of the peloton short of the halfway point of the 110-mile ride.
On Monday I was interviewed by Fox News for a one-hour special The Crisis at Penn State, hosted by John Roberts (no, not the Chief Justice, the other one!). If you click on the image to the left, it takes you to a 20-second video promo. The special report is scheduled to air tomorrow/Saturday night on Fox News Channel at 10:00 p.m. EST.
Even if you believe exiled Penn State FB Coach Mike McQueary's 11th-hour revelation that he did intervene in the child rape that he says he witnessed in the locker room showers in March 2002, it still doesn't change the fact that after that incident, Jerry Sandusky continued to have access to, and continued to molest young boys for another nine years.
On Monday, I spent several hours being interviewed by Fox News, for a special report that is slated to air this weekend, and throughout the interview, the questions they kept coming back to were: "Why didn't Coach Paterno do more?" And, "Why aren't McQueary and Paterno in legal trouble over this?" As I told Fox News, I'm an attorney, not an investigator, a shrink or criminologist. I know the law, and under current Pennsylvania law, both coaches fulfilled their legal duties with regard to reporting the alleged abuse. This is because Pennsylvania is one of only a few U.S. states that don't require those who witness child abuse to report directly to police or child services.
Already, Pennsylvania legislators are taking steps to tighten the state's child-abuse-reporting statute, and there is also talk of Congress passing a stricter federal law. Currently, under the federal Cleary Act, institutions that receive federal funding are required to report all crime information to the U.S. Department of Education, but again, this does little, if anything, to stop an ongoing pattern of abuse such as the one Jerry Sandusky is alleged to have perpetrated. But regardless of whether Pennsylvania's child-abuse-reporting law was more in line with the majority of other states, are those laws tough enough to protect our children?
After giving my Fox News interview, I was curious to see what the child-abuse-reporting requirements were in my home state of New Jersey, so I looked them up, and I was a little disappointed. N.J.S.A. 9:6-8.14 makes failing to report child abuse a disorderly persons offense, which carries a maximum penalty of six months in jail, and a $1000 fine (but almost nobody gets the maximum). I'm going to go out on a limb and say that, perhaps the NJ law is appropriate, if the abuse someone failed to report was a parent who overzealously reacted to catching his teenager shoplifting—after all, when I was in school they still paddled kids in the hallways. But in the case of what McQueary is believed to have done, six months in jail and a $1000 fine isn't enough.
So the next problem with having stricter child-abuse-reporting laws, is that unless we move to a complicated, tiered approach — e.g. the way homicides are classified as murder, manslaughter, criminally negligent homicide — the laws will either be too strict or not strict enough, depending on the type of abuse. Also, these laws would need to specify exactly what conduct rises to the level of abuse that must be reported. In other words, if a school teacher sees a student with curious bruises on a regular basis, but has no direct knowledge of abuse, what is that teacher's reporting responsibility?
The McQueary incident is pretty clear cut, because he alleges that he saw Jerry Sandusky anally raping a ten-year-old boy. Turning to Joe Paterno, however, the situation is different, because from what we know now, Paterno saw nothing. So then, JoePa's next actions would have been guided by his own perception of Mike McQueary's credibility.
Joe Paterno is old school. He never had a reputation for playing fast or loose with rules. Remember Paterno's demeanor in that television promo a few years ago where all the Big 10 coaches admonished the fans to behave themselves "before, during, and after the game"? That being the case, I wonder whether the reason that JoePa didn't do more — as he wished he had done, in hindsight — is that he questioned the credibility of the young grad assistant Mike McQueary. From what I've seen of Mike McQueary, I know I do.
A lot of folks might not have even realized that Tuesday was Election Day. As an aside, I find it unfortunate that people don't take the extra few minutes to stop and vote on every election day — not just when there's a presidential race, or some other consequence of great magnitude — but I'll leave that topic alone, at least for now. Despite the fact that there weren't many high-profile races going on across the nation, there were a lot of big issues at stake in several states.
For example, Mississippi voters rejected a bill that would have changed the "meaning of life," for purposes of abortion and related issues; Ohio voters rebuked GOP Governor John Kasich's bid to rewrite state labor law, which would have substantially limited collective bargaining; and the people of New Jersey voted resoundingly to allow sports betting in the state. The only problem here is that federal law (which, of course, trumps any state's law) prohibits sports betting in all states except Nevada, Delaware, Oregon, Montana.
So why did proponents of sports betting bother to go through all the trouble of getting the referendum on the ballot? According to the Star-Ledger, State Senator Ray Lesniak (D–Union), who "spearheaded the effort for sports wagering" in NJ, plans to get another law passed authorizing the state's Casino Control Commission to issue sports betting licenses to casinos and racetracks. The idea is that once the state has such a law in place, the administration can sue the federal government to declare the federal ban on sports betting unconstitutional.
Getting an issue on the ballot isn't easy, so it seems like an awful lot of trouble to go through for something that, even if successful, depends on so many contingencies. Nonetheless, Lesniak says he's hoping to have sports betting legalized in NJ in time for the start of the 2012 NFL season. Even if it all goes smoothly, it would still be illegal to bet on college games that take place in NJ, and on NJ college teams, regardless of where they're playing.
It's probably safe to say that the Penn State sex scandal is one of the most pervasive topics in all of media right now, and since new facts are still coming in by the hour, it's way too soon to offer any meaningful analysis, but I thought it would be helpful to provide a synopsis of resources and perspectives.
1. Fellow NJ attorney Chris Fusco offers us all some wise words so as not to be swept away by the suddenness, as the story of this scandal is still in its infancy. We don't have all the facts — read Sports in the Courts Blog.
2. In his Athletes in Court blog, Tennessee attorney Lee Davis gives a pretty good reason that Penn State AD Tim Curley is the one to blame here (not JoePa). also provides a link to the 23-page grand jury indictment of Jerry Sandusky.
3. Deadspin.com is always a great resource if you're looking for the real dirt in anything sports-related. They're like the TMZ of the wide world of sports. Although there are eight alleged victims referenced in the grand jury's indictment, Deadspin says there could now be as many as twenty victims.
4. Yesterday Deadspin reported that Jerry Sandusky's 1986 National Championship ring was listed for sale on eBay. I checked the link, and the ring is not posted there, but I have no idea whether it was there and has since been removed (by the seller or even by eBay).
5. If you want to follow the scandal in real time, here is a helpful list of people to follow on Twitter, for up-to-the-minute news and developments:
@Ben_Jones88 — Ben Jones, Reporter, StateCollege.com and BlackShoeDiaries.com
@sganim — Sara Ganim, Crime Reporter, Patriot-News (Harrisburg)
@PeteThamelNYT — Pete Thamel, National College Sports Reporter, New York Times
@penn_state — Official Twitter stream of Penn State University
@jakemkaplan — Jake Kaplan, covers Penn State Football for the Philadelphia Inquirer
@bfeldmancbs — Bruce Feldman, College Football reporter, CBS Sports
@macqb11 — Matt McGloin, Penn State starting QB
@YahooForde — Pat Forde, College Football Reporter, Yahoo! Sports
@phillysport — Sports section, Philly.com
@jimbaumbach — Sports Reporter, Newsday
@DanWetzel — National Sports Columnist, Yahoo! Sports
@nittanyrich — Richard Scarcella covers Penn State football for the Reading Eagle Newspaper
@OnwardState — Onward State is "an online news organization serving the Penn State and State College community"
@ScottPaterno — Scott Paterno, JoePa's son
@YESKimJones — Kim Jones, reporter for YES
@markcviera — Mark Viera, New York Times
Over the weekend, ESPN reported that the West Virginia Mountaineers were heading to the Big XII Conference, just weeks after Syracuse and Pitt announced their defection from the much-maligned Big East. Yesterday, the West Virginia Univ. Board of Governors filed a six-count lawsuit [PDF] against the Big East, in Monongalia County Circuit Court (WV), which essentially accuses Big East Commissioner John Marinatto of running the organization into the ground, to the point where the conference is no longer viable or competitive.
This lack of leadership, breach of fiduciary duties by the Big East and its Commissioner, and voting disparity between the football and non-football schools resulted in the Big East football conference no longer being a viable and competitive football conference. Additionally, upon information and belief, [it] is expected by WVU and others that the Big East will lose its [automatic BCS bid]. Accordingly, the Big East Conference and its Commissioner ... breached their contract [with] WVU and nullified and voided the Bylaws.
This is really great stuff. What WVU is arguing is that despite the fact that they entered into a contract with the Big East and agreed to be bound by its rules and regulations (i.e. Bylaws), that they shouldn't have to fulfill their contractual obligations to the conference because Marinatto failed to fulfill his obligations to the organization and its member institutions.
By suing the Big East instead of waiting for the Big East to sue them, WVU has seized home-field advantage: They get to fight their fight in West Virginia state court, rather than a Rhode Island court, or federal court. Not surprisingly, Marinatto released a statement saying, "a contract is a contract," and basically threw the bullshit flag, but based on the facts alleged in the complaint, relative to the facts I know, I like WVU's chances. Kudos to attorneys Stephen M. LaCagnin, Seth P. Hayes and the Morgantown, WV law firm Jackson Kelly.
And I thought it took too long for Congress to fix bad laws...
What began as 13 rules authored by a Scottish golf club in 1744 are now 34 regulations and procedures. The 155-page book resembles a car manual, and probably gets as much use.
The NY Times is reporting that the powers that be have decided to amend a couple of golf's more silly, illogical rules:
1) A golfer will no longer be penalized if a gust of wind moves their ball after they have taken their stance and their club is near the ball;
2) There is no penalty for inadvertently "smoothing the sand" before playing a bunker shot (so long as the player doesn't gain an advantage).
Don't get me wrong, I enjoy playing golf as much as the next guy (attorney?), but I've always scoffed at some of the seemingly asinine rules, in fact, I'd been playing for a couple years before someone politely told me about no. 2 (above). The thing that makes even less sense, though, is that in a game where the most fundamental rule is play the ball as it lies, why is it customary to pick up your ball when it's on the green, place a marker, mess with the turf underneath, and then replace your ball randomly near the spot where you put the marker?
Who do you think foots the bill when a university hires attorneys to defend its student–athletes?
Ohio State University's student newspaper—The Lantern—ran a story earlier this week about the outrageous legal fees the school has paid thus far in defending various football players against alleged NCAA rules infractions.
The "Sports Illustrated 9" refers to nine current players, separate from the six players suspended for "Tattoo-gate," "whose alleged wrongdoing might fall within the NCAA's four-year statute of limitations," according to a June 6 SI article.
OSU's athletics department paid the fees out of its general operations fund, which student fees do not go toward, said Dan Wallenberg, associate athletics director for communications.
[Wallenberg] also said the funds for similar services could come out of the Student-Athlete Opportunity Fund, which was created by the NCAA in 2003 to provide direct benefits to student–athletes or their families, and is generated by NCAA basketball tournament revenue.
The benefactor of this particular transaction is the Columbus law firm of Crabbe Brown & James LLP, which has reportedly received "$141,814.30 as of mid-September." That number is quite small compared with, for example, the amount Ohio State paid the Vorys law firm from 2004–2008 to defend them against former basketball coach Jim O'Brien's wrongful termination lawsuit (well over a million bucks).
By comparison, Auburn University paid $170K in legal fees while the NCAA investigated 2010 Heisman trophy winner Cam Newton's eligibility. And the University of Michigan paid over $600,000 in legal fees in an NCAA infractions case involving former head football coach Rich Rodriguez.
As Alex Antonetz's Lantern article points out, this is all legit—schools can pay outside counsel to represent their student–athletes when they get themselves into trouble. Perhaps its unfortunate that the schools can't help them out when they can't pay their phone bills, can't buy groceries, or can't afford to fly home for holidays, because if the student–athletes had some financial assistance in that regard they might not have to resort to earning money other ways (ways that get them into trouble). Having lived with two scholarship athletes (one All-American) during my freshman year of college, I have first-hand knowledge about student–athletes' financial woes.
If you follow the NFL at all, it probably comes as no surprise that narcotics investigators recently tracked a 2.5 lb. package of marijuana from the so-called Emerald Triangle region of northern California to the northern Kentucky home of Cincinnati Bengal wide receiver Jerome Simpson.
Yesterday, a reader emailed me to ask questions about this most recent Bengals criminal investigation, and since they are questions I get a lot, it seemed like a good idea to post the answers here.
Q. I could kind of understand not arresting them for the 2.5 pounds they signed for (because you technically can't prove that they knew what was in the package), but how did they not get busted for the other six pounds of weed that the cops found in the house?
A. Just because they weren't taken into police custody doesn't mean they weren't "busted." The way it works when you commit any crime is pretty much like this:
1) Officer witness crime, or has an arrest warrant
2) Depending on the type of crime, suspect is placed under arrest, or the officer issues a summons (requires suspect to answer to charges in court)
3) If there is an arrest, the suspect is usually taken into custody, fingerprinted, photographed, etc., and then they sit in holding until they post bail (some felonies and violent crimes require holding without bail until court holds a hearing)
4) After the suspect posts bail, they are released subject to their subsequent appearance(s) in court
In the case of a non-violent crime, where the suspect's ID and whereabouts are not in question (e.g. as is the case with most public figures), there isn't much purpose in taking the suspect into custody, because it's unlikely that they will flee.
Q. But in Kentucky I thought people did 20 years for [getting caught with] a joint?
A. I'm not familiar with KY law, but I get what you're saying.
Q. Where I live, pot is quasi-legal in small amounts, but I'm pretty sure even the dispensary employees and patients would go to jail for having 6 lbs. of it?
A. Who says these guys aren't going to jail? We don't know anything yet. The case remains an ongoing investigation.
Q. It's curious that they found all that weed, plus scales, and other paraphernalia, but no cash—how can you move that much weed through one house and have no money on hand?
A. I didn't see any reports as to whether or not investigators did find money at the house, but regardless, maybe they don't sell it (unlikely, but not entirely impossible). Maybe they had cash on hand but it wasn't an amount that was too unusual for professional athletes to possess. Maybe we'll find out more after additional details of the investigation are released.
Q. Two other kind of puzzling things about this case are: Why would anyone consent to a search of their house when it's full of weed? And why would you sell weed when you're making NFL money?
A. It does sound stupid to consent to a search when you know you have contraband, but under the circumstances the officers may not have needed consent. Sometimes they ask for consent even when they don't need it, which in my opinion happens for one of two reasons: (1) They are trying to come across as being polite, and respectful of the suspect's civil rights; or (2) They don't know the law, and are therefore unaware that the circumstances allow them to conduct a warrantless search.
Nonetheless, if the cops had a warrant for the 2.5 pound package, and they found that, they could continue searching for more contraband. Another possibility is that the homeowner believed that his stash was hidden well enough that the cops wouldn't find it. Drug dealers often underestimate cops' ability to track down drugs.
As to the second part of your question, I didn't look up these players' contracts, so I don't know how much they make, but I do know that I never heard of them before today, and that the league minimum salary is $340,000. After the agent takes his 15%, and then taxes and child support, who knows what's left—could be a somewhat modest amount.
Photo credit: Navin75
This past weekend Syracuse University and the University of Pittsburgh announced that they had applied to join the ACC (Atlantic Coast Conference), leaving the Big East behind. Within a day, the ACC announced that its member institutions unamimously approved the addition of the two universities. Both schools are apparently ready to part with the $5M exit fee that they each must pay to the Big East.
The ACC currently has a dozen schools, and with this transaction will have fourteen. Although technically the Big East currently has 16 (14 without Pitt & Syracuse), that number is deceiving because it includes Notre Dame, whose football team isn't part of the Big East, as well as DePaul, Marquette, Providence, St. John's, Seton Hall, Georgetown, and Villanova—none of which even have football programs. That leaves just 6 football teams in the Big East (and they call it the Big Least now?). Six teams do not a conference make. And for the record, TCU's expected addition to the Big East next year doesn't change this conversation. Rumors are now circling that Rutgers will leave for the ACC next, or alternatively, that they'll join the Big Ten (which is actually 12).
Regardless of what Rutgers, or any of the other Big East programs do, however, the conference's instability leaves a whole lot of student–athletes in vulnerable (if not untenable) positions because of the Big East's transfer rule:
Student–athletes in the sports of men’s basketball, women’s basketball[,] and football, are not permitted to transfer (directly or indirectly) from one BIG EAST institution to another BIG EAST institution and participate in any capacity...There are no exceptions or waivers to this rule.
Although most conferences have their own rules or conditions for intra-conference transfers, this one is without doubt the most Draconian of them all. You actually don't have to be an attorney to understand it either, because there are no exceptions or waivers. (For those who aren't attorneys, we didn't go to law school to learn the law, we went to learn the exceptions.)
So while Pitt, Syracuse, and the rest of the Big East are quibbling over how long those schools should be required to serve out their membership in the conference—which is purportedly 27 months—television networks and advertisers and sponsors will likely be shifting their focus to other conferences. It's even possible that the BCS could revoke the Big East's automatic bid, after all, fans and analysts have been calling for the Big East's ouster since around the time Virginia Tech and Miami left the conference. Even the NCAA's very definition of Football Bowl Subdivision Conference says that it must have at least 8 members.
All of this punishes those student–athletes far more than it punishes the member institutions. The schools will make up the lost revenue through boosters and other benefactors, but the student–athletes have no such luxury. Furthermore, if TV networks decide not to broadcast Big East games, because of a perceived lack of competitiveness, or any other reason, the student–athletes are going to lose exposure, which could cost some of them when their time comes to enter the NFL draft.
Admittedly, these scenarios are somewhat speculative, but in a world where the sanctity of amateur sports is supposed to reign supreme, it hardly seems like the people who make the rules care at all about the student–athletes.
Another college football season is upon us, and to make sure that everyone at home can keep up with all the suspensions and other mysterious or unexplained absences from their favorite college team, the NCAA has conveniently released its most recent rules manual.
It's a whopping 439 pages, and after reading it cover to cover, I couldn't find a single thing about tattoos. Nonetheless, I'm pretty sure they're banned—unless, of course, The student–athlete can prove that their tattoo was free or discounted.
What I find even more puzzling than the tattoo omission is how it isn't a major rules infraction to show up to a nationally-televised primetime season opener dressed the way Maryland Terps did on Monday night.
No pun intended. Seriously. After U.S. District Judge Reggie Walton declared a mistrial in the government's perjury case against Roger Clemens last week, the 300-win hard-throwing right-hander's future is somewhat in limbo. That is because a mistrial is not an acquittal. An acquittal is when a jury unanimously finds that the prosecution failed to prove the defendant's guilt beyond a reasonable doubt, which results in a not guilty verdict. N.B. that doesn't mean innocent; many a defendant is found not guilty, but they are far from innocent (ah em, O.J., or better yet, Casey Anthony).
Mistrials usually happen because of something related to some undue influence or irregularity with regard to the jury, and basically, a mistrial means that the trial never happened. A common reason for a mistrial is a deadlocked jury, as we saw in the case against Barry Bonds. The reason for the mistrial in Clemens' case was prosecutorial misconduct—the prosecutors violated one of Judge Walton's pretrial evidentiary rulings, when Assistant U.S. Attorneys Dan Butler and Steven Durham showed the jury video footage of Clemens' Capitol Hill testimony in which Rep. Elijah Cummings (D.-Md.) made references to Laura Pettitte (Andy's wife). (See Sports in the Courts Blog's Chris Fusco recap what happened, on MLB network.) Sure, it's a technicality, but it's legit—when a judge tells an attorney not to do something, you'd better not do it (think Jack Nicholson in A Few Good Men "We follow orders, or people die.").
So what now? Roger Clemens is still under indictment (i.e., charges are still pending), and Judge Walton has scheduled a hearing to decide whether the U.S. Attorney will be allowed to present the case to a new jury. ESPN's Lester Munson makes much ado about whether the judge will allow the U.S. Attorney to retry Clemens, but I wonder if that's just bunk to sell advertising on ESPN.com.
As Munson admitted, mistrials in federal court are rare. Judges don't like to give them. It's almost like judges see a mistrial as though it reflects poorly on their own legal knowledge or judicial temperment. That is exactly the reason I'd be shocked if the judge ruled that the case against Clemens is dead. That kind of ruling takes a lot more than peculiar circumstances (not to mention, a lot of chutzpah), because when a judge makes that kind of ruling he is taking the case out of the jury's hands. Trial by jury being one of the most sacred institutions in our legal system, if not our whole society. Even if the judge barred Clemens' retrial, the prosecution would have a right to appeal that decision, and it would likely be reversed.
Bottom line, the judge will allow prosecutors to retry Clemens, but whether they will is anyone's guess. Although what happens to Roger Clemens doesn't make much difference to me, I wish this whole thing would go away. A case of this magnitude is no inexpensive affair—from investigation all the way to trial—and the U.S. Attorney is financing its witch hunt at taxpayers' expense, and for what? Because some retired ballplayer may have lied about using steroids? Who cares? Hypothetically speaking, let's assume that Clemens is guilty. Then who is the victim? Congress? Baseball fans? Even if Clemens is guilty, his was a victimless crime. Leave it alone.
The Barry Bonds verdicts are in. Sort of. The jury found Bonds guilty—not guilty of lying to a grand jury—guilty of one count of obstruction of justice, for allegedly misleading investigators, giving evasive testimony, etc. The jury hung on the other three charges. In our criminal justice system, no defendant is guilty of a crime unless the jury unanimously finds guilt. If even one juror has reasonable doubt, then there is no conviction. But this is not the same as an acquittal (i.e. not guilty verdict). When the jury doesn't agree unanimously, there is no verdict, and the result is a mistrial, which means that the prosecution, at its own discretion, may bring the charges again at a later date.
So what does all this mean, and what happens next? Lots of things. Barry Bonds may go to prison. He could go for a long time (unlikely), or it could be a Martha Stewart stint. According to ESPN's Roger Cossack, the judge should throw out the lone conviction. Whether or not Bonds does go to prison, the U.S. Attorney could refile the three other charges, could get convictions, and could then send Bonds to prison, or increase his sentence. But at the end of the day, does anybody (other than Barry Bonds) really care?
Indeed, there are some provocative legal questions/issues in the Bonds verdict, but aren't we all sick of hearing about Barry Lamar Bonds? So when I hear people cry out at the incredible disservice that the Bonds jury did to our justice system, it makes me chuckle—especially when it comes from a former colleague, who, once upon a time was a brilliant attorney himself.
This is proof positive that the jury just punted here. They decided to “do justice” rather than follow the evidence. I’m not OK with that. You shouldn’t be either.
So what if the jury punted. Sometimes juries do that. But so do judges, and maybe even U.S. presidents (not to mention quite a few football players). Even if Bonds gets off completely, the supposition that the jury punted isn't going to have any ameliorative effect on Bonds' baseball legacy. After all that he did in terms of home runs and records, historically, when it's all said and done, Barry Bonds will eternally be lower than even Bill Buckner.
If you feel otherwise, please chime in (that's why there's space below for comments).
Barry Bonds's criminal perjury trial officially began yesterday, with a full day of voir dire (pronouncedvwahr deer), which is the process by which attorneys select a jury by questioning the prospective jurors on their backgrounds and potential biases. At the end of the day, eight women and four men, two of whom are black, were selected—at the end of the trial, which could last as long as a month, these twelve individuals will determine Barry Bonds's fate.
Later this morning, the prosecution and defense are scheduled to give opening statements. If convicted of the most serious charge(s), Bonds could face up to 10 years in federal prison, though as a first-time offender it's unlikely that he would be sentenced to a term of more than two to two-and-one-half years.
Selection Sunday is upon us. For a lot of business owners and department heads, that means the upcoming week will be one of the least productive work weeks of the year, especially since this year, "for the first time ever, every tournament game will be carried live nationally in its entirety across CBS, TBS, TNT[,] or truTV."
For most of us, however, it means that we'll be pouring over those iconic NCAA brackets right up until the first tip (which, by the way, is Tuesday evening!). With the expansion of the field of teams, the first three rounds of the tourney will have a whole new format, which means that we can all start with a clean slate this year. That's why I'm passing along a few tips that I've found helpful in filling out my brackets the last couple years.
I lifted most of these tips from a great column I read in Men's Health a few years ago; ever since I implemented this system, I've won or finished top five in my office March Madness pool. Not surprisingly, the column's author had help from the real Brandon Lang (Matthew McConaughey's character in Two for the Money.) Click on this link to read the entire Ten Commandments of Bracketology, by Greg Presto, here's my redux:
According to Presto/Lang, the key first-round matchup(s) are the games pitting the 12–5 seeds against each other. This will be even more important this year because of the new format for the first round—four of the additional teams are slated to be at-large bids, which have historically been #12 seeds.
II. Thou shalt pick the right 12-seed.
Upsets are what makes bracketology fun, and even casual fans have heard of the traditional 12-over-5 first-round topples. But it's not enough to take a stab and pick a dozen-seed to win, says Stoll. "Focus on 12-seeds that have lost 6 or fewer games for the season [13-16 overall against 5-seeds] or 12s that are coming off a loss in their previous game [10-13 against 5-seeds]." The holy grail? A 12-seed that satisfies both criteria -- they're 3-0 all-time in round 1.
Other helpful tips are: Start filling out your bracket in the middle, then work your way out; make sure all top seeds make it to your Elite Eight, and don't put any team lower than a #6 seed in your Final Four. Finally—and this one pains me to say, but unfortunately it's true—don't pick Big Ten teams. Although Ohio State could be an exception to this rule, I'm not picking them (picking them over Florida a couple years ago cost me the pool). The Buckeyes (31–2) will probably be in my Final Four, but I doubt that I'll pick them to win the big dance. I'll post my bracket when it's finished, so everyone can hold my feet to the fire.
If you have your own tried-and-true, stone-cold, lead-pipe lock of a bracket tip or strategy, feel free to post a comment.
Now for a quick word on gambling. Although the law varies from state to state, a few more than half of all states are consistent to the extent that they don't punish "social gambling." Except in the state of Florida, social gambling usually means gambling that doesn't take place in public establishments, and is non-commercial, or not-for-profit—i.e., there is no "house" per se, which takes its own cut off the top of all the wagers. In Florida, social gambling has a ten-dollar table limit. To check your state's laws, attorney Chuck Humphrey put together a great website that summarizes the laws of all fifty states, and compiles the anti-gambling statutes for each state as well.
The key factor with regards to March Madness office pools is that all of the money collected must be redistributed to the winner(s). The person organizing the pool can't take an "administration fee." Also, it's a good idea to be mindful of where you discuss the pool, and where you collect the brackets and money, particularly if you work for a large corporation or government agency. In 2008, a NJ man was fired for running an office pool, despite having done it for the previous four years. Don't be that guy.
Even if you're not running the pool, you still need to keep a couple things in mind. Unless you have express authorization (I'd want it in writing), don't use your work email for pool-related communications. And if you must watch the games while you're on company time, the safest bet is to have your own mobile TV or device with broadband. That way, nobody in IT can track the time you spent on CBSsports.com, or bodog.com for that matter.
I don't care about motivation. I care about credibility. —Eliot Spitzer
This is less about the law and probably much less about college football than it is about credibility. First of all, does Yahoo! Sports have any credibility as an investigative news publication? More importantly, however, if it is true that Tressel received information that players sold Buckeye memorabilia to the owner of a tattoo parlor eight months before Ohio State reported it to the NCAA, how credible was that alleged information?
Jim Tressel is one of the highest paid and highest profile figures in collegiate sports. Despite his generous philanthropy, he's still worth millions, and he runs one of the most successful sports programs in the nation. He has over 100 players on his team, and he teaches in a school with a student body of roughly 65,000. He also has at least one weekly radio talk show, in addition to the countless other interviews and public appearances he attends on a regular basis. What's my point? Jim Tressel has a lot of people in his ear all the time.
Anyone who's ever been to Columbus, Ohio can attest to the viral fanaticism over Buckeyes Football. And then there's this sort of expatriate faction, who hate the Buckeyes just so they can be different. Regardless of their affliction, these fans are constantly emailing and writing letters to the paper (and to Tressel, personally), calling radio talk shows, local and national, and getting on any soapbox they can to tell Tressel what's wrong with his team (i.e., why they're not winning a national championship every year).
So the question is—assuming that Tressel doesn't admit to the allegations in Yahoo's report—who is this person that allegedly told Tressel about the players selling memorabilia? What were the circumstances of the alleged conversation? And what, if anything, did Tressel do after receiving this information?
Now to the law. For all intents and purposes, the NCAA is the league in college sports (think of the individual conferences as divisions). The relevant difference here from pro sports is that there is no players' union. Since, in college sports, the players can't organize, the league wields a lot more power than even the NFL. Even so, although the NCAA oftentimes appears to act randomly or arbitrarily with respect to the sanctions they choose to mete out, they do have an actual set of written rules, known as the Constitution and Bylaws (whether they follow those rules uniformly is an entirely different discussion).
A basic purpose of this Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.
So it says on page one of the 431-page Division I manual. (Each division has its own version of the bylaws, which you can download for free from the NCAA Publications website.)
According to the Yahoo! Sports probe, "if Tressel failed to inform [Athletic Director Gene] Smith or the Ohio State compliance department about the players’ dealings," the NCAA could charge him with violations for unethical conduct, failure to monitor, and failure to promote an atmosphere of compliance. The latter two allegations refer to the NCAA's draconian compliance rules.
One of the most basic of these rules is that each school, including its coaches and athletics director, has a duty to self-report rules infractions to the NCAA (see Article 22.2.1 Governance & Commitment to Rules Compliance). It is incredibly difficult to comply with this rule, however, because it is oftentimes subjective at best whether a rules infraction has occurred. This is why any school with a large athletic program typically has a separate department, staffed with a team of lawyers, who work full-time, year-round, to ensure that the school doesn't run afoul of the NCAA's rules.
As this relates to Tressel, if he did in fact receive information about an alleged infraction, he would have been required to look into the allegations further, and then determine whether it was likely that an infraction occurred. If Tressel did make a reasonable inquiry into the matter—the depth of which would be determined by the credibility of the source of the allegation—and then determined that no violation occurred, then he wouldn't have any duty to report it to the NCAA.
Moving to the supposed unethical conduct, which is governed by Article 10.1 of the Bylaws, and provides as follows:
Unethical conduct by a…current or former institutional staff member (e.g., coach…) may include, but is not limited to, the following:
(a) Refusal to furnish information relevant to an investigation of a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual’s institution;
(j) Failure to provide complete and accurate information to the NCAA…or the institution’s athletics department regarding an individual’s amateur status.
Subsection (a) clearly cannot apply unless the NCAA asked Tressel, prior to December 7th, for information regarding the violations. Subsection (j) cannot apply unless Tressel knew about the incident(s), investigated, and determined that there was a possible violation, but then chose not to tell anybody about it.
Although the NCAA may, at its own discretion, apply a much looser interpretation of these rules (or make up new ones), we're still back to credibility. Who is the NCAA going to find as more credible—Jim Tressel, or the unknown individual who allegedly told Tressel about the violations back in April 2010?
In some ways, credibility reigns supreme over even integrity. Not to say that integrity is bad; it mainly speaks to a person's general character, and moral and ethical values. Credibility, on the other hand, speaks to a person's honesty and trustworthiness. In trials, juries weigh the credibility of witness and evidence, in close cases, appellate courts often weigh the credibility of counsel, and attorneys size up their adversary's credibility when negotiating. Don't underestimate the value of credibility—it's much easier to keep than it is to regain.
Till now I have purposely avoided concerning myself with the day-to-day minutiae of the ongoing labor negotiations between the National Football League and the Players' Association. After all, there's going to be a deal. The only question(s) is what will the deal look like, and when will they get it done. The league's current CBA (collective bargaining agreement) expires in a little over two weeks. If the CBA expires, all that means is that there's no agreement in place. Could there be a lockout (owners refuse to keep the status quo)? Sure. Could there be a strike (players refuse to play without a new agreement)? Sure. But will there be? Nobody, including God—and those at ESPN who think they are—knows the answer.
This morning on Mike & Mike, I heard an ESPN columnist discussing the complaint that the NFL filed yesterday with the National Labor Relations Board (NLRB) against the Players' Association. He then proceeded to compare the current NFL labor situation to the 1994 Major League Baseball strike, which is an utterly ridiculous proposition. Unfortunately, I didn't catch the columnist's name.
Regardless of whether he really believed what he was saying, or whether he just didn't do his homework, making that kind of statement this early in the game is not only premature and reckless, but there is no good that can come from it. All it will do is make football fans uneasy and uptight. Lest we forget how damaging the MLB strike was to the game of baseball. It took years for baseball to earn its way back into America's family rooms; of course, after that the game's popularity suffered again after the steroid scandal erupted. But here's why the two situations are completely unrelated:
First, in the 1994 MLB labor dispute, it was the players that filed an NLRB complaint against the owners, not the other way around, as is the case today. Second, the players didn't file that complaint until after they had already been on strike for roughly six months, and didn't do so until Congress and President Clinton stepped in to try to end the strike. Here, the current CBA hasn't even expired, and even if/when it does, there are six months between that date and the start of the next NFL season.
I don't believe that an NFL strike/lockout is out of the question, but given the commercially-driven attitude of Roger Goodell and the new, No Fun League, and the amount of money that stands to be lost as the result of any work stoppage, I don't think that a strike or lockout is likely. Nevertheless, if the season were delayed because the dispute remains unresolved, as fans we could all luck out, by being spared the Chinese torture of having to watch the NFL preseason.
For a more in-depth analysis of the substantive issues and applicable law relating to the NFL's complaint, check out this post at www.laborrelationstoday.com.
And then there were five…
Yesterday, the U.S. Attorney for the Northern District of California filed a third superseding indictment inUnited States v. Barry Lamar Bonds, reducing the number of felony charges to five (click the image to download a pdf copy). These are essentially the same charges comprised in Bonds' original indictment, back in November 2007, however, about six months later, prosecutors bumped it up to 15 counts. The allegations in those additional 10 charges were purportedly based on evidence the FBI obtained from documents and records seized at the home of Bonds's personal trainer, and longtime childhood friend, Greg Anderson. That evidence—regardless of whether it's overwhelmingly persuasive of Bonds's guilt—is inadmissible unless someone with personal knowledge gives court testimony to authenticate it.
Several professional athletes, including former American League MVP Jason Giambi, have testified—and will testify at trial—that Anderson supplied them with steroids. Nevertheless, Anderson's attorney, Mark Geragos told the court that his client will not testify, even if that means going back to prison. Anderson has already spent more than a year in federal lockup after the court held him in contempt for refusing to testify against
Bonds (2 weeks in July 2006; Aug. 28–Oct. 5, 2006; and Nov. 20, 2006–Nov.15, 2007). And this was in addition to the time Anderson served after he pleaded guilty to distributing steroids in 2005. U.S. District Judge Susan Illston ordered Anderson to appear March 1st, and if he still refuses to testify at the March 21st trial, the judge says she'll send him back to prison for the duration of the trial, which is expected to last a month. But given the amount of time that Anderson's already spent in prison on Bonds's behalf, the threat of going back to prison for a month isn't likely to change his mind.
As an aside, who is supposed to be paying Geragos's bill? Anderson's career went south shortly after the BALCO scandal was tied to Major League Baseball, in 2003. But isn't paying Geragos's bill the least Bonds can do for his friend under these circumstances?
So what impact will the new indictment have on Bonds's case? Probably very little. Bonds in still charged with four counts of making False Declarations Before a Grand Jury (a/k/a perjury), and one count Obstruction of Justice. The latter charge carries a maximum prison term of 10 years, though, based on the Federal Sentencing Guidelines it would be unprecedented for Bonds to get a sentence even close to that. Legal experts, including sentencing guidelines guru Doug Berman, are speculating that if convicted Bonds would more likely face 24–30 months in prison. ESPN's Roger Cossack estimated 6 months. With all due respect to Mr. Cossack, I disagree.
The Federal Sentencing Guidelines are ridiculously complex (there are people who make a living studying and teaching their subject matter). The guidelines work by setting a base level sentence for each specific offense, and then provide circumstances for deviating, up or down, from that base level. The range is also adjusted based on the convict's prior criminal history (not a factor here, because Bonds has none). In a nutshell, the base level sentence for Obstruction of Justice is 15–21 months. To complicate matters, however, if the jury finds that the obstruction "resulted in substantial interference with the administration of justice," the base sentence jumps to 24–30 months, as this California newspaper estimated. Unless the U.S. Attorney's Office files a motion to have the sentence reduced, I don't see anything in the guidelines that would do so. In sum, I'm not sure how Mr. Cossack arrived at six months.
Not to sound like a weatherman, but the statutory range of Bonds's sentence is more likely 15–30 months. This assumes, however, that all of his sentences run concurrent, rather than consecutive, which is probable. The longest prison sentence related to the BALCO scandal was six months, to Marion Jones. Anderson served three months, and Victor Conte served four. But all three were sentenced pursuant to plea deals with the U.S. Attorney. Bonds is putting the government through a lengthy and costly trial, and he's not exactly a sympathetic figure. If I had to bet, I'd guess that Bonds's sentence would be the minimum, but within the guidelines. In any case, longer than six months. The key factor will be whether the jury finds that Bonds substantially interfered with the administration of justice, which, at the low end of the guidelines, would nearly double his sentence.
Having said that, a conviction is by no means a certainty. To convict, the government must prove that Bonds intentionally lied about material facts. This is fairly tough to do, which is why perjury trials aren't very common. Convictions do happen, though. For example, in 2009, a jury convicted Olympic track coach Trevor Graham of lying to federal agents about steroid distribution, the judge sentenced him to house arrest. And in 2007, a jury convicted Scooter Libby of charges substantially similar to Bonds's.
Regardless of whether you liked the teams or the outcome of last night's BCS National Championship game, you have to admit how much better the championship is now that it's back on ABC's family of networks. During the three years that Fox carried the title game, the coverage was dreadful. The production was bad, the audio was bad, and worst of all was the play-by-play coverage of Thom Brennaman.
Brennaman is a baseball guy, the son of long-time Cincinnati Reds announcer Marty Brennaman. Thom also went to Ohio University, which is almost an anti-football college. At some point he started dabbling in NFL games, after Fox picked those up in the late '90s. And then out of the blue, Fox hired him to be the voice of the BCS in 2006. What business did Thom Brennaman have calling bigtime college football games?! Furthermore, what experience did Fox have broadcasting them, and why did they appoint a college football outsider to such a crucial role in broadcasting?
I thought maybe it was just me—that Brennaman rubbed me the wrong way—but apparently not. In the 2009 title game in which #2 Florida beat #1 Oklahoma, 24–14, Brennaman's bias toward Florida QB Tim Tebow was so obnoxious that it drew criticism from the media at-large: "Brennaman was so far over the top in his pro-Tebow hyperbole on Thursday that the game became darn-near unwatchable unless the volume was off," wrote FanHouse's Chris Burke.
In 2009, we were reminded by Thom Brennaman how great a person Tim Tebow was. He took every opportunity to gloss Tebow as the second coming.
I can only imagine that if Fox had the rights this season, Thom Brennaman would pick a new favorite. We would then be forced to hear how great Cam Newton is or what LaMichael James might be thinking while playing with such talent.
I grew up watching college football on ABC. Dick Enberg, Brad Nessler, Brent Musberger, and of course, Keith Jackson. Jackson's iconic delivery will forever resonate in my ears as the voice of college football. But Jackson notwithstanding, my perception of ABC's sports productions is that they always presented the college game in a dignified manner. Fox, not so much.
Fortunately, Disney (parent company of ESPN, ABC) is doing pretty well, because they were able to pony up half a billion dollars to reclaim college football's January finale ($125M/yr., 2011–14). Fox had been paying about $82M annually for the 4 games it broadcast in each of the 2006–09 seasons. Fox balked at ESPN's offer, and didn't feel they needed to match it because of the fact that ESPN is a cable network, which reaches 16 million fewer viewers than broadcast networks. Being on cable apparently didn't hurt the BCS last night: Its 16.1 Neilsen rating was the highest in the history of cable television, and higher than the 2005 (USC def. Okla., ABC) and 2008 (LSU def. Ohio St., Fox) title games.
Rest assured, beginning with the upcoming college football season, through 2014, ESPN will carry all of the BCS games. Maybe Thom Brennaman can take over Ted Williams' post collecting donations along I-71. On second thought, Williams has a better voice.
Many people believe that a contract has to be in writing, or it's not a contract. Not true. Another common mis-perception is that a contract is a document or tangible piece of paper. Also not true. Although contracts are oftentimes written, the contract is the actual agreement itself, and not the paper it's written on, per se. True, the law does require that certain types of contracts be in writing to be enforceable (this isn't one of them), the lack of a written agreement will not prevent most other contracts being enforced. One caveat, however, is that without a written record of an agreement, it is oftentimes difficult to prove that the agreement's existence in the first place, much less the agreement's terms, so in that case, failure to have a contract in writing would serve as a barrier to enforceability.
Generally speaking, a valid contract has three requirements:
(1) An offer;
(3) Consideration (this is just a fancy word that means that the parties have to exchange, or promise to exchange something of value).
In the circumstances with the suspended Buckeyes (see Consequences, Jan. 5), Coach Tressel offered to let them play in the Sugar Bowl if the players promised to return to the team in 2011 (and not go to the NFL). The players accepted. The consideration is the players' promise to forgo the NFL draft this spring, and to serve whatever suspension the NCAA passes down.
In this case, there wouldn't be much difficulty proving that the players and the coach made this agreement: Tressel went on national TV and discussed the deal in detail, and none of the players spoke up to object (this is known as a tacit agreement). Furthermore, members of the media asked some of the players, directly, about their promise(s) to return to Ohio State next year, to which the players each gave an affirmative response.
Breach of contract occurs when one party doesn't honor his contractual obligation. In reality, people breach contracts everyday, but it doesn't always make sense to sue. There are two reasons for this:
(1) Even if you successfully prove that the other party breach the contract, you are only entitled to the damages that you can prove (In other words, the court won't award you a lot of money simply because the other guy acted like a douchebag.);
(2) Regardless of whether you win or lose your contract case, in almost every circumstance you will still have to pay your own attorney. So unless your damages are significant, and you're pretty sure you can prove them, it might not be worth it to file suit.
Turning back to the Buckeyes' promise to return in 2011—if the players reneged, and Ohio State sued them, what are the university's damages? This is what attorneys refer to as speculative damages. But for the sake of argument, let's suppose that Ohio State claims that the players' breach caused the university to lose millions in lost ticket sales, endorsements, and broadcast royalties. The players would counter by saying that if they hadn't played in the Sugar Bowl, Ohio State would've lost, and they would've lost even more than what they lost as a result of the players' breach. And they'd be right.
As Rob Oller pointed out, what would an NFL team think about a player who reneges on a promise to his school under those kinds of circumstances?
Last night, the Ohio State Buckeyes beat the Arkansas Razorbacks 31–26 in the Allstate Sugar Bowl. The games's MVP was junior quarterback Terrelle Pryor, who, along with four other Buckeyes, was suspended by the NCAA on Dec. 23, 2010 for allegedly receiving improper benefits (NCAA Press Release pdf). The so-called improper benefits were cash proceeds from the sale of memorabilia items, including their Big Ten Championship rings, which the five players admitted to selling, for between $1000 and $2500.
But because the NCAA found that "it was reasonable at the time the student-athletes were not aware they were committing violations," a loophole in the rules allowed all five Buckeyes to play in the upcoming bowl game. "The policy for suspending withholding conditions for bowl games or NCAA championship competition recognizes the unique opportunity these events provide at the end of a season, and they are evaluated differently from a withholding perspective."
ESPN-nation erupted, over what the public perceived as the NCAA giving Ohio State preferential treatment. Then, on Dec. 30—the day after the Buckeyes returned from their 4-day x'mas break—Jim Tressel announced that he had requested verbal commitments from each of the suspended players, to return for their senior seasons at Ohio State if allowed to play in the Sugar Bowl. All five players agreed, which seemed to quiet much of the public outcry. Columbus Dispatch's Rob Oller called Tressel's move, "a masterful flanking maneuver that puts him back in charge and quiets critics who have questioned his leadership."
But Tressel's deal didn't satisfy everyone; the new topic du jour was speculation over whether those five players would actually keep their promises to return. Critics argued that if they decided not to honor their promises, and instead declared for the 2011 NFL Draft, then those players wouldn't have to suffer any consequences for their impermissible conduct. Oller even referred to the players' agreement as "nonbinding." Although I believe it would be a supreme waste of time to, say, try to enforce the players' promises using judicial means—not to mention, a public relations nightmare—I wouldn't be so quick to dismiss the players' promises as nonbinding.
Some will inevitably refer to Jim Tressel's gentleman's agreement as his deal with the devil, especially given the way all five players contributed immensely to the Buckeyes' Sugar Bowl win. Prior to last night, the Buckeyes had a 32-year winless streak against SEC football teams in bowl games. This morning, I bet that some of those same fans who criticized Tressel for his deal, are silently rejoicing.
Next—Part II: What is a contract?
Although not directly related to sports or entertainment law, gun possession seems to be a recurring theme with professional athletes (my inaugural post to this blog) so there is a remote nexus. Also, I personally am entertained by NJ Governor Chris Christie, and after all, he is a lawyer (former U.S. Att'y for the District of New Jersey).
Yesterday, controversial GOP governor Chris Christie commuted the seven-year prison sentence of Brian Aitken, a 27-year-old Internet entrepreneur who was arrested, prosecuted, and convicted of state weapons charges after police found 2 handguns in the trunk of his vehicle. (Download pdf of the order.) Police stopped Aitken because his mother, who lives in Burlington County, called them after she became worried that he might harm himself (details & full story from ABC news).
Aitken purchased the guns lawfully, at a sporting goods expo in Denver, CO in 2007, after undergoing an FBI background check. In before he moved back to NJ, he contacted the state police to find out what his responsibilities were in bringing his firearms with him. They advised him to transport the guns unloaded, and locked, in the trunk of his vehicle.
Prosecutors charged Aitken under NJ's current gun laws, which essentially place as much culpability on him as if he were using those guns to "stick up a 7-Eleven," says attorney Mike Carroll, a NJ state assemblyman. Indeed, N.J.S.A. 2C:39-5(b) makes it a felony to possess any handgun—even a pellet gun. Although there are some very limited exceptions relating to handgun transportation, Carroll said that Aitken was "almost certainly guilty of what he is accused of doing. Technically speaking…you can’t even stop for coffee if you’re transporting guns."
The fact that Brian Aitken will be home for X'mas doesn't change the reality that NJ's gun laws are Draconian to say the least—in fact, not much less restrictive than the law struck down by the U.S. Supreme Court in 2008, in District of Columbia v. Heller (Lyle Denniston's SCOTUSblog analysis; pdf file of the Court's opinion.) Many states have either amended their gun laws since Heller, or currently have legislation pending, so given the exposure of Aitken's case and the obvious miscarriage of justice, one would hope that New Jersey gets its act together in this regard. Eugene Volokh also reported here on a related civil suit in Illinois, which if successful, could lay the foundation for future Brian Aitkens to challenge onerous state gun laws.
Until they do, however, it's best to leave your guns at home (you too, professional athletes). I know I will.
‡ Note: I borrowed the title for this post from Doug Berman, one of my former law professors, who writes an acclaimed blog on the federal sentencing guidelines.
Earlier today, the NY Court of Appeals released a decision affirming the dismissal of a negligence case filed by Dr. Azad Anand, against his [former] golfing buddy, Dr. Anoop Kapoor, which arose out of injuries sustained from a shanked fairway shot. "A person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport generally[,] and flow from such participation."
Despite the fact that the victim, a neuro-radiologist, suffered severe vision loss as a result of being struck with the ball, the court noted that such an incident was not atypical in the game of golf (pdf file of the court's decision). Although the court did not say whether it factored into the decision, Anand was standing only 15 to 20 feet from Kapoor when the ball struck him, and at that close range, it's unlikely that a verbal warning would have prevented the injury in the first place.
This is not cybersquatting. In fact, it's being called the first legal case of its kind—theft of an Internet domain name. A New Jersey man pleaded guilty to felony theft by deception in connection with his admission that he stole a company's Internet domain name, and then sold it on eBay for $111,211.
The domain name, p2p.com, was estimatedly valued at as much as $200,000 at the time that 23-year-old Daniel Goncalves hacked into the popular domain registrar goaddy.com, and then transferred its registration to his own GoDaddy account. Go Daddy records show that the same IP address was used to transfer the stolen domain as was used to log into Goncalves's Go Daddy account. After waiting 60 days from the date of the transfer, per ICANN (Internet Corporation for Assigned Names and Number) rules, Goncalves transferred the domain to another registrar, and ultimately sold it to Mark Madsen, a forward for the Los Angeles Clippers. Madsen had no idea that the domain was stolen. (Full story from newerseynewsroom.com.)
Although 5 years sounds like a long time to go to prison for stealing a "name," Goncalves's conduct in this case was particularly egregious (not to mention stupid). Before striking the plea deal with prosecutors, Goncalves was potentially facing 10 years in prison. What's even more incredible is the fact that Goncalves not only used (presumably) his own computer to complete the transaction, but that it took investigators 3 years to catch him!
Even though the domain was reportedly returned to its rightful owners (a "who is" search only revealed the current registrar, Moniker Online Services, Inc.), it appears that the domain/site remains dormant as of this date.
Given the way in which sports—even collegiate sports—have become so heavily branded, merchandised, and televised, another area of law that routinely intersects sports is intellectual property—namely copyright, trademark, licensing, and the all-but-forgotten right-of-publicity. For example, the University of Alabama sued the artist who painted this picture commemorating the Tide's 2010 BCS National Championship. The artist, Daniel Moore, won summary judgment in the district court (pdf decision here), but the case is currently on appeal to the Eleventh Circuit.
And in 2005, fantasy sports league operator CBC Distribution filed suit against Major League Baseball Advanced Media (MLBAM, MLB's Internet division) after CBC was denied a new licensing agreement with the players' association giving it the rights to player profiles and statistics.
MLB argued that the league owned intellectual property rights in the players' right-of-publicity, which made it unlawful for fantasy leagues to profit from the identities or statistics of MLB players. In 49-page order granting summary judgment to the fantasy league, U.S. District Court Judge Mary Ann Medler said that even if the league did have intellectual property rights in the players' stats and likenesses, the First Amendment trumped the league's property interest, because the information that the fantasy leagues disseminate are facts. Facts, Medler, wrote, appear in newspapers everyday. Nobody can own them. (CBC v. MLBAM pdf file)
Paul Weiler's textbook Sports and the Law (see previous post) is nearly 1200 pages long, yet it devotes fewer than 100 pages to sports and IP law. In fact, in that single chapter of the book that addresses IP, Weiler tackles broadcast rights, copyright ownership, player publicity rights, trademarks, and group marketing of IP rights. By contrast, the book has three chapters on antitrust, two on labor relations, and even has a full chapter devoted to Title IX and intercollegiate sports. But because of how every sports franchise, conference, and league is continuously exploring how to increase the revenue earned from their branding and intellectual property, IP law, will nonetheless continue to impact the sports world for many years to come.
So what about entertainment law? I realize that I just devoted three entire posts to explain sports law, and even though this is the Sports & Entertainment Law Playbook, I haven't so much as mentioned entertainment law. Again, there is no such body of law per se, though there are so-called entertainment lawyers. I happen to be one of them. Like sports and the law, there are many different areas of law that intersect with the entertainment industry, although IP is probably the most prevalent. Artwork, sheet music, and sound recordings all need copyright and in some circumstances, trademark protection. Also, composers routinely license their scores and compositions to filmmakers and advertisers. This process inevitably involves attorneys. And just like professional athletes, artists, actors, and musicians work under contracts as well, and they also need competent legal counsel to represent their interests during negotiation. The record companies, opera houses, and concert promoters are certainly going to come to the table with the best attorneys that money can buy, so it behooves the artist to also come prepared.
The law of real estate (property) is also key in sports—think about all that goes into planning and building a venue like the new Yankee Stadium or Cowboys Stadium; each of these cost upwards of $1 billion to construct. The manner in which the law of real estate pertains to sports, however, is not that much different from ordinary real estate law. I don't wanna say that real estate is boring, because it's oftentimes anything but; it's just not something that I feel needs to be addressed in this blog.
Another area of law that is often overlooked in sports is antitrust, which has beleaguered professional athletes for over 100 years. So what is antitrust? The easiest way to describe it is that it functions as the law of competition—within the marketplace, that is. Antitrust laws, such as the Sherman Act prevent restraints on trade, by making it unlawful for companies to collude or conspire to fix prices of goods. So what does this have to do with sports? Collective bargaining agreements (CBAs).
The players' associations are labor unions; their primary function is to organize and to coordinate the players' efforts in dealing collectively with the owners. CBAs are designed to restrain trade in the labor market—that's their intended purpose! So why is it okay for labor unions to organize, to maximize employee wages, but it's not okay for manufacturers to do that with widgets? The short answer is, Labor Law. More specifically, the the Clayton Act (1914) and the National Labor Relations Act (1935), which the U.S. Supreme Court has interpreted to exempt collective bargaining and labor disputes from antitrust laws. This is referred to as the statutory exemption. So how does this apply in the real world? Remember Maurice Clarett?
As a college sophomore, Clarett sued the NFL, alleging that the league's age/class requirement was anti-competitive, and an unlawful restraint on trade. Alan Milstein, Clarett's attorney at the time, told the NY Times: ''I see Maurice's case as a league trying to make certain players, young players, who are often poor, wait on earning a living, while the NFL and colleges, either directly or indirectly, make millions off of them.'' U.S. District Judge Shira Scheindlin agreed, issuing this 71-page order that granted Clarett the right to enter the 2004 NFL Draft.
The NFL appealed the decision to the 2nd Circuit, which, in an opinion by then-Judge Sonia Sotomayor, reversed, finding that the NFL's eligibility rule fell within the scope of the "nonstatutory exemption" to the antitrust laws, regardless of the fact that the owners and players' association did not collectively bargain over the rule (2d Cir. decision pdf). Clarett's lawyers petitioned the U.S. Supreme Court to stay the the 2nd Circuit's decision, but the Court declined to hear the case (SCOTUS, cert. denied pdf). And we all remember what happened next...
But Maurice Clarett was, by no means, the first athlete to take the NFL—or any other sports league, for that matter—to the U.S. Supreme Court. In 1972, it was St. Louis Cardinals center-fielder Curt Flood, who sued the commissioner of Major League Baseball, challenging the reserve clause in his contract. Twenty years prior, it was NY Yankees' minor-league pitcher George Earl Toolson. And thirty years before that, in 1922, Justice Oliver Wendell Holmes wrote Federal Baseball, holding that professional baseball was not "interstate commerce." With a stroke of the pen, however, Congress effectively erased all of those holdings when it passed the Curt Flood Act of 1997, which removed baseball's antitrust exemption. This law also paved the way for the sharp rise in MLB player salaries over the past 15 years.
Given the history of baseball's antitrust exemption, and the fact that it was eventually repealed, it's probably only a matter of time before we see similar changes to the other professional sports leagues as well, especially in light of all the attention that the NFL is getting this year with regards to the impending expiration of its current CBA.
Next: Part III, IP
If criminal law is the body of law that governs criminals and the commission of crimes, and labor law is that which governs wages, employment, and labor unions, shouldn’t it follow that sports law is the body of law that governs athletes and athletic competition? Although attorneys, law students, and the media refer to sports law as though it were in fact an independent body of substantive law, the term sports law is actually a misnomer. Noted Harvard law professor Paul Weiler, whom many consider the founder of what we call sports law, underscores this point on page two of his textbook Sports and the Law (West 4th ed. 2010). Weiler specifically points to the book's title, which, read lliterally, reinforces his point that sports, and law are two mutually exclusive and independent concepts. So if there isn't any body of law specifically called sports law, how is it that there are so-called sports lawyers?
The easy answer to that is—Cincinnati Bengals notwithstanding—the legal issues in sports are oftentimes lucrative and complex; thus, what perpetuates the sports law-myth is the glamorous media portrayal of the intersection of sports and the law. Add to that the fact that "sports lawyers" are, themselves high-profile, and it has become more and more common for lawyers to moonlight as sports agents, or give up practicing law altogether to become full-time agents. Case in point: Two of the most prominent sports agents today, Scott Boras and Drew Rosenhaus, are both lawyers. Rosenhaus, a/k/a "Next Question," is a 1990 graduate of Duke Univ. School of Law, and has negotiated more than $2 billion in NFL contracts. Although Boras graduated from a small law school in California, his $20 million, 23,000 square-foot Newport Beach office compound is anything but small. Nor are the scores of MLB contracts he's brokered, including both of Alex Rodriguez's record-setting contracts, which combine for over half a billion dollars. But is this sports law, or just garden-variety contract law?
It’s difficult to turn on Sportscenter these days without hearing about a high-profile contract dispute between an athlete and franchise, or rumors of a lockout or strike, or a professional athlete who was arrested for shooting a gun in a night club, or crashing his SUV while driving under the influence. Each of these scenarios involves, respectively, the well-established doctrines of contract law, labor and employment law, and criminal law.
It is my intention that by stating for the record—here, in my very first post—that sports law isn't really what it purports to be, I cannot be guilty of perpetuating that same myth. Having said that, we call it sports law because of the players involved, rather than the game itself (pun intended).
Next: Part II, Antitrust