The Sports & Entertainment Law Playbook

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.

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.

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...

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.

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.

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

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).

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.

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