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.

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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.

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

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

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

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

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

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

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

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

READ:

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

SEE ALSO:

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

Tim Dahlberg, Time to do away with sports betting stigma

PHOTO CREDIT: DonkeyHotey

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.

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

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. 

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