Wednesday, April 9, 2014
Click here to listen to my radio segment with Steve Lloyd and Jason York where I break down Day 1 of Pistorius' cross examination.
Click here to read my TSN article entitled "Instant Legal Analysis: Day 1 of Pistorius Cross-Examination". I hit the critical parts of Pistorius' testimony.
Tuesday, April 8, 2014
Monday, April 7, 2014
In my TSN article, I discuss the many challenges faced by Oscar Pistorius and his defence team.
Click here to read the article.
Friday, March 28, 2014
Click here to read my TSN article entitled "Legal Look: Northwestern Players Granted Right To Unionize".
Tuesday, March 25, 2014
Click here to read my TSN article (via Bardown) on whether Roddy White needs to pay up on the season ticket offer to poor little Dylan Hoyt.
Thursday, March 20, 2014
Thursday, February 13, 2014
Monday, February 10, 2014
Thursday, January 23, 2014
Former NFL QB Vince Young filed for bankruptcy this week. He joins a long list of players who have had problems hanging on to their money.
Young grossed $45 million during his NFL career. That's a lot of pennies. As per the Court filing, he now has about $100,000 in assets and between $1 million and $10 million in liabilities. This talented QB had the physical tools to be successful but his issue was between the ears. Now those ears are a lot more poor.
Young isn't alone. According to a few reports, 78% of NFL players are either bankrupt or in financial trouble within 2 years of retirement. For the NBA, it's 60% of players that are bankrupt within 5 years of leaving the sport.
We should remember, though, that not all players make Manning coin and nor do they play for a decade. According to some (not all agree with these numbers), the average career length for a player is as follows:
NBA = 4.8 years
MLB = 5.6 years
NFL = 3.5 years
So players obviously have finite careers and finite earning potential - but some more finite than others.
On top of that, income can be limited for some. While a guy like Brees makes $70 billion dollars or so, the minimum salary in the NFL $405,000 and a second year player gets $480,000. After taxes, these guys aren't exactly flush with cash.
The median NFL salary is about $800,000 (not to be confused with the $2 million average salary which is a less accurate reflection of where players stand given some of the really loaded contracts).
The reasons players blow their money are complex and varied: disadvantaged background and low socioeconomic status; terrible investment advice and parasites out to defraud them; short careers; overspending; divorce/child custody payments (Travis Henry has 9 kids with 9 different mommies); legal fees because he killed two people and then drove his white car on the highway engaging in a high speed chase.
Some or all of these factors can conspire to separate a player from his fortune.
Below is a list I've compiled from around the web of players who have blown it all (or most of it). Their names are followed by their approximate gross (in millions):
Mike Tyson - $400M
Evander Holyfield - $250M
Allen Iverson - $200M
Michael Vick - $130M
Scotty Pippen - $120M
Antoine Walker - $110M
Curt Schilling - $105M (not clear how much he lost but at least $50M)
Latrell Sprewell - $96M
Vin Baker - $93M
Derrick Coleman - $90M
Terrell Owens - $80M
Deuce McAllister - $70 M
Warren Sapp - $60M
Arantxa Sanchez-Vicario - $60M
Marion Jones - $50M
Mark Brunell - $50M
Lawrence Taylor - $50M
Tony Gwynn $50M
Jamal Lewis - $40M
Tiki Barber - $35M
Lenny Dysktra - $25M
OJ Simpson - $20M
Travis Henry - $20M
Muhsin Muhammad - $20M
Bernie Kosar - $20M
Jack Clark - $20M
Rocket Ismael - $20M
Bryan Trotier - $8M
Dorothy Hamill - $2M
Wednesday, January 22, 2014
My article on Subban's reception having nothing to do with race (a frame down) has generated lots of responses from people. Here are a few:
Totally agree. He comes across as arrogant and self-centered. He wants the spotlight to be on PK. Where I come from in Southern Ontario, athletes like that get booed. Do leaf fans boo Daniel Alfredsson because he was born in Sweden? Of course not.
Extremely well-written and argued. I admit I am among those who suspect that race is a factor with Subban, and although I am not entirely persuaded, you make a very strong case.
I agree that people boo Subban because they perceive him as arrogant. Iginla, Simmonds, Jones are not regularly booed the way Subban is, as far as I know. And a post-racial world would be one in which we are free to boo players because we perceive them as arrogant, and not feel awkward doing so because they are black. And maybe that is where we are with Subban.
But... It's a loaded issue. It's loaded because there is so much history of white people taking major exception to black people they perceive as uppity or arrogant. Just like women who display confidence are portrayed as bitchy. There are double standards.
Would people boo Subban if he where white and acted how he does on the ice? Honestly, there is an argument that they would. But my sense is maybe not. Maybe he would be treated as a talented phenom. It's really hard to know. My sense -- and it's only a sense -- is that some of the boos or some of the volume is due to the fact that he is black, and a lingering discomfort that people unconsciously have with a black person not knowing their place.
I agree that booing Subban is not racially motivated at all. In fact, I would go as far to say that the booing is almost somewhat of a compliment to him. He's a good player; very good player and one of the best defenseman in the NHL today. You boo him because there is that sense that you might "throw him off his game" or whatever. And he draws a lot more attention because he is arrogant. If Erik Karlsson did what Subban to the Ottawa fans in Montreal or Toronto, he would be booed loudly. Remember Alfredsson's mocking of Sundin? Ottawa fans loved it. Toronto fans never ever forgave him for it and he's good and in professional sports, that will cause fans to boo you. And I am sure that after last year's playoff beat down, it felt good for Montreal fans to see Subban do it too.
If PK had come into the league and had automatically been booed, I could see an argument being made for it being race motivated. But that wasn't the case. And after a few years of the triple high five, along with a few other antics, people have started to boo him. If he wasn't this good, people probably wouldn't boo him. He's a guy you hate playing against but you would love him on your team. In a way he's like Milan Lucic or Chris Neil; would love them on my team, would hate playing them. But Lucic or Neil do not possess anything like the skill Subban has and they are not dirty players, so they do not get booed. Maybe a better comparison even in my mind is Crosby. Frankly, I hate the guy- he's somewhat arrogant, complains a lot and makes excuses every time things don't go his way. But as soon as him or Subban put on the Team Canada jersey next month, I will be in love with them both cause they have so much to offer to the team.
Sadly, I think there will always be some crazy individuals who are racist and will boo or dislike Subban simply because of the color of his skin. Look at what some crazy individual did to Wayne Simmons a few years ago at a pre-season game. It's really sad, stupid and unnecessary.
As for Subban I don't think it is racially motivated at all.
I thought it was a frank, honest look at a sensitive subject...Your column was spot on and pitch perfect and this isn't the kind of thing that's going to go away anytime soon.
Race in hockey is an issue, as you pointed out, because there are so few non-white players. Only biathlon is more racially homogenous. This isn’t going to change for a long time primarily for economic reasons. You’d be hard pressed to find a more WASP bunch of people than in a minor hockey rink for morning practice. The reality of youth sports really comes down to cost. Whether you’re a new Canadian or not, hockey is darn expensive. Basketball and soccer not so much. If you’ve got several kids (boys and girls) you’ve got to make economic choices. Soccer and basketball are just more affordable and also much more girl friendly too.
I just read your thoughtful piece on what you believe to be a lack of racism regarding the response to P.K., for whom I have a tremendous amount of respect and affection. I've also been quite frankly incredibly outraged at what I absolutely perceived to be some degree of racism where PK is concerned.
Monday, January 20, 2014
We’ve been hearing it for years now: Pernell Karl Subban is booed by fans and singled out by NHL hockey players because he’s black.
Some people apparently aren't even aware that race is the reason they react to Subban the way they do - they are engaged in an unconscious manifestation of racism. As the argument goes, we are living in a complex time complete with elaborate social economic pressures, inherent biases and uncontrollable prejudices. Subban bears the brunt of some of this.
Not buying it. Not by a long shot.
Subban is not being booed because he’s black. Subban is not being singled out because he’s black. Subban is a target because his personality rubs some people the wrong way. To declare that racism is the cause of this behavior is tedious, trite and convenient. It’s also a scathing indictment of players and fans who rather innocuously express negative views about Subban uncomplicated by race. Finally, it also diminishes (albeit unintentionally) the substantial harm, anguish and brutality perpetrated on people of color over centuries.
Subban is a spectacular and gifted defenceman for the Montreal Canadiens. He’s a terrific skater, has a great shot, is physical, has great vision and clutch. In short, Subban is pretty special.
Going back to junior, however, Subban has not been warmly received. He’s come off as arrogant and cocky. Indeed, his own teammates, including some with the Habs, have expressed a common sentiment: Subban needs to show a bit more deference and humility.
Arrogance isn't restricted to one particular group. People across all races and ethnicities suffer from this affliction. It’s nothing more than a personality type and to suggest otherwise is very ironically lumping people who share a physical trait into one group.
A casual glance at the North American sports landscape past and present reveals that many African-Americans have been warmly received by fans: Calvin Johnson, Russell Wilson, David Robinson, Sugar Ray Leonard, Kirby Puckett, Tony Gwynn, Julius Erving, Ken Griffey Jr., Reggie White, Barry Sanders, Magic Johnson, Roberto Clemente and Jarome Iginla. Frankly, the list is endless.
Similarly, there are lots of white players that have been regularly booed in opposing rinks and chirped by opposing players. Dion Phaneuf, Sidney Crosby, Zdeno Chara, Alex Ovechkin, Claude Lemieux, Sean Avery, Matt Cooke and Max Lapierre come to mind.
So whether a player is white, black or orange, what seems to matter is how they carry themselves on and off the ice. And of course, it also matters how much damage they inflict on other teams. Skin color, however, as a key catalyst for hate in this particular circumstance seems awkwardly misplaced.
So why are Subban and race so intertwined? While black players in the NFL and NBA are commonplace, they only make up a very modest segment of the NHL player population. Think about it – how often do we hear the charge that an NFL player is being booed because he’s black?
So perhaps, compared to the other 3 sports, hockey is less experienced with players of color. As a result, we end up seeing some things over-analysed.
There are of course going to be people that will not only boo Subban because they don’t care for his personality, but ALSO because he’s black. And some may boo him because he’s black. In those instances, it’s racist. But this isn't one of those instances.
Hockey is a funny sport. It’s a bit like the military. Individualism is not embraced nor encouraged. While the NFL does seek a certain level of uniformity among its players, they can still dance after a TD or celebrate a first down. Imagine if an NHL player danced after scoring a goal or did the moonwalk after icing was waived off? We would hear stuff like “that is way over the top”, “there isn't a place in the game for that” and “the moonwalk is just inappropriate”.
NHL Players are directed to fall in line; to blend in. Subban doesn't do either. What Subban does do is entertain with a refreshing blend of flair and skill. Sports is theater and athletes are entertainers.
For some (present company included) Subban isn't arrogant; he’s confident. While ego may make some uncomfortable, it’s also an important feature of successful players.
Monday, December 16, 2013
Thursday, December 12, 2013
My TSN article entitled Why The Delay On The Thornton Suspension?. Click here to read it.
Click here to listen to my segment with Steve Lloyd and Jason York on TSN 1200. We hit lots of hot topics.
Thursday, December 5, 2013
Last night on Offside, I interviewed Steve Silverman and Trevor Whiffen. They both have very different views on the merits of the NHL concussion lawsuit.
Steve is the managing partner and lead lawyer for the players on the lawsuit.
Apart from being the Governor of the London Knights, Whiffen founded the Ice Dogs with Don Cherry. He is also Rick Vaive's lawyer. Vaive pulled out of the NHL concussion lawsuit after it was filed. According to Whiffen, Vaive wasn't aware of the broad scope of the lawsuit.
Both Silverman and Vaive provide great content and Whiffen was pretty passionate. Click below to listen to their interviews:
Tuesday, December 3, 2013
Thursday, November 28, 2013
There are reports suggesting that the NHL concussion lawsuit has resulted in the recruitment of over 200 new players to the litigation. These players would join ex-players like Rick Vaive, Gary Leeman and a fella named Morris Titanic (perhaps the best name ever).
While that’s how it may look, that is in fact not the case. It is a far more likely scenario that the majority of these players signed retainers some time ago indicating that they would participate. However, they were not named along with the 10 plaintiffs simply because in a class action lawsuit, lawyers only need to name a handful of plaintiffs who operate as representatives of the entire class.
So it's an incorrect assumption that the filing of the lawsuit resulted in the recruitment of new NHL players. The names of the other unnamed hockey players will be made available in the near future – but just not right now.
All that aside, the filing of the lawsuit will undoubtedly be used as a tool to inspire others to join. In fact, if you’re a player and want to join, you need only go to the plaintiffs' law firm website and click on “Sign up to be part of the NHL Concussion Lawsuit”.
Tuesday, November 26, 2013
Click here to read my article on Semyon Varlamov. I hit on his assault charge, possible deportation and his link to Kobe Bryant.
Click here to read it.
Thursday, November 21, 2013
What did the briefcase ever do to A-Rod? Not terribly nice to kick it when the briefcase has been there for A-Rod and carried his things (sandwiches, Fanta and a mirror).
Anyway here's my radio clip on the matter with the boys at TSN 1200.
Anyway here's my radio clip on the matter with the boys at TSN 1200.
A-Rod kicked his briefcase and then stormed out of arbitration. He wasn't happy. Click here to read my TSN article "What Does A-Rod's Walk Off Mean". I cover what went down and what's next.
Wednesday, November 6, 2013
Thursday, October 24, 2013
by Max Faille
Max Faille is a law partner. He's a great lawyer and practices in the area of Aboriginal Law.
Under the editing standards of this and most websites, and respectable publications across the English-speaking world, I would not be able to write that ugly racial slur to describe African-Americans, commonly referred to as the “n-word,” under any circumstances. Even if to denounce its use. Yet under those same standards I can readily use an equally ugly racial slur, directed at Aboriginal people: Redskin.
It’s used all the time, mostly to describe Washington’s NFL team, whose owner Dan Snyder insists will continue to be called that name, despite the fact that it is a racial slur. Despite the fact that a growing number of publications and sports writers have denounced it or decided that they will refuse to use it in their sports coverage: Bob Costas, Sports Illustrated’s “Monday Morning Quarterback” Peter King, Slate Magazine, USA Today Sports’ Christine Brennan…
People will say that this is “political correctness” run amok. It’s not. Throwing out the term “political correctness” should not be a conversation-ending nuclear bomb that stops us from actually thinking about an issue.
Look at it this way: Tyler Bray is a third-string rookie quarterback with the Kansas City Chiefs, after being a standout at the University of Tennessee. He also happens to be a tribal member of the Citizen Potawatomi Nation in Oklahoma. If someone on the field were to call him a “redskin,” that person would almost certainly be disciplined by the league – fined, maybe suspended. Rightly so. Just as someone would be disciplined if they called an African-American player an “n-word” or “monkey” or some other equally despicable term. These and other racial epithets have no place in any athletic contest that purports to be honourable. This begs the question: how can a professional sports league tolerate having one of its franchises be called a name that if used on the field of play would result in disciplinary action by that same league?
Let’s be clear. When the term “Redskins” was originally chosen in 1931, it was not intended as a slur. Franchises obviously select names that they feel will honour their team, not disgrace them. But times change. The meaning we attach to words evolve. There was a time when we used the word “coloured” or “negro” to describe African-Americans. Martin Luther King Jr, in his famous “I Have a Dream” speech used the word “negro” eight times. In baseball, we had the famous “negro leagues.” But can we imagine a team today called the New York Negroes? No. Word meanings change. Thinking and society evolve, hopefully for the better.
One thing that has evolved, hopefully for the better, is that we no longer use skin-colour to define people. “Coloured,” “negro,” “n-word” – these are all references to skin colour. Even “black,” while still used, is falling out of use, in favour of “African-American.” We don’t call Asian people “yellow” (at least, not anymore). We aspire, in those soaring words of MLK, to judging people “not by the color of their skin but by the content of their character.” We should do so in deeds and in words alike.
Words take on meaning, and it is meaning that matters. Arguably, there is nothing inherently offensive about the “n-word.” They are letters on a page. But it has come to be used as a vicious slur. The same is true of “redskin,” or what I should actually refer to as the “r-word.” It is offensive to millions of Native American/First Nation people.
True, other team names refer to peoples: Minnesota Vikings, Notre-Dame Fighting Irish, my beloved Montreal Canadiens... But none of those are a race. None refer to skin colour. And, most importantly, none of those is an ethnic slur. It’s not the Notre Dame Mics or the Montreal Peppers.
There are other team names that refer to Aboriginal people: Blackhawks, Seminoles, Fighting Illini, etc. The issue when it comes to those names is much more subtle. Some are not a reference to race but to a Nation -- Seminoles, Illini – and are similar in that sense to Fighting Irish or Canadiens. In many cases, appropriately, the teams have consulted with and obtained the consent of those Aboriginal Nations to use their name.
We also have the Cleveland Indians, Atlanta Braves, Golden State Warriors, and the aforementioned Kansas City Chiefs. Some Aboriginal people are not offended by those names, because unlike the “r-word” they are not racial slurs. Others are offended and, in my opinion, they have a point. Those names stem from and perpetuate a stereotype: the brave and/or bloodthirsty, noble savage warrior, dressed in loin cloth and feathers, ready to scalp the enemy. Aboriginal people are not one-dimensional, mythological creatures. They are modern peoples, with proud histories, who occupy all walks of life: factory workers, truckers, doctors, lawyers, teachers, writers. The use of these names as a sports team moniker is dehumanizing. And it spawns behaviour that is profoundly disrespectful: fans appropriating sacred symbols of honour such as eagle feathers and headdresses, and converting them into costumes. The Cleveland Indians logo – “Chief Wahoo” – is perhaps the most racist, stereotyped image of Aboriginal people you could possibly design. We would never tolerate a similar depiction of any other race.
As a sports fan, I understand the resistance to change. I’m a lifelong, passionate Montreal Canadiens fan. If someone told me tomorrow our team name had to change, I’d be pretty upset. And I would want to be convinced that there was a damn good reason. But I’d like to think that the fact the name was a racist slur would be pretty much the best possible reason you could give me.
And although at times it’s easy to forget, it’s just sports, and it’s just a name. Is it really worth disrespecting millions of people across North America, who are already deeply marginalized?
People were upset in Baltimore when they lost the Colts; when they got a football team back, they wanted the name back too. They didn’t. But time, and two Superbowl championships, heal all wounds.
Ultimately, what is at stake is not so-called “political correctness.” It's whether owners, leagues, players and fans believe in upholding certain values that are at the heart of professional and amateur sports: honour and respect.
Thursday, October 10, 2013
I join Steve Lloyd and Jason York on TSN Radio 1200 to chat NFL documentary League of Denials and where things are generally.
Monday, October 7, 2013
Friday, October 4, 2013
By Jacob Zelmanovitz
(Jacob is an attorney specializing in commercial litigation)
As you probably know by now, ARod, or Alexander Emanuael Rodriguez (middle names are fun!), has filed a lawsuit against Major League Baseball and Bud Selig in the Supreme Court of the State of New York. Here’s some questions you may have about that lawsuit, as well as some answers.
Yay, a Supreme Court Case! Wait, that was fast, aren’t there supposed to be appeals and other boring stuff first
This case is in the Supreme Court of the State of New York, but the actual top court in New York is called the Court of Appeals. What is “Supreme” about this Supreme Court it is the top level trial court in the state. Yes, that’s all counterintuitive, but knowledge of this arcana is part of how we lawyers justify ridiculous hourly fees. So if you’re waiting to hear Justice Scalia wax poetically sarcastic about baseball, settle in, you’ve got quite the wait ahead.
Why is he suing now? Why not before the arbitration started?
This is a great question. The lawsuit was filed four days into the appeal to an arbitrator of ARod’s suspension, though it could in theory have been filed quite some time ago. It is possible that the timing is a result of Rodriguez’s team being less than thrilled with how the arbitration has been going. It is also possible that some of the grounds for the suit only came to light immediately before or during the arbitration proceeding.
How can ARod sue now if there’s already an arbitration proceeding?
This is not directly about whether or not Rodriguez used PEDs or was properly suspended, which is what Rodriguez’s appeal to the arbitrator is all about. It’s about whether or not MLB acted improperly in its dealings with ARod and his alleged use of PEDs.
Instead, the complaint lists two similar wrongs that ARod claims MLB and its commissioner have committed: tortious interference with prospective business relationships and tortious interference with existing contracts.
Tortious interference? Ugh, lawyers. Plain English please.
ARod is alleging a witch hunt by MLB. Specifically, Rodriguez is claiming that MLB and Bud Selig interfered with his ability to get sponsorship deals (those are “the prospective business relationships”). While it’s not always legally wrong to convince sponsors to drop an athlete for cheating, the claim here is that the way MLB and its commissioner did so was so improper that it is now liable for the damage it caused (in other words, “tortious”). In his suit, Rodriguez claims that the defendants “willfully and maliciously” leaked details of its investigation against him to the media, knowing and intend for it to cause sponsors to drop him. The fact that the disciplinary process is supposed to make such information confidential renders the leaks a tortious act, and therefore grounds for this lawsuit.
But it’s not just about leaks. Rodriguez also claims that MLB and its commissioner acted improperly in other aspects of its disciplinary process, using dubious lawsuits to gain evidence in discovery, issuing improper subpoenas, and even intimidating and buying off witnesses who might have helped defend him in the disciplinary process.
So ARod claims that the suspension MLB is trying to impose is also a wrongful act, or tortious, in that the suspension was obtained through a malicious and unethical investigation, costing him sponsorship opportunities and his ability to fulfill his contract and play for the Yankees (that’s the “existing contract” he says was tortuously interfered with).
Why couldn’t he sue for something easy to understand, like libel or slander?
Because in a suit for libel and slander, truth is a defense. So long as a defendant was telling the truth, such a lawsuit would ultimately fail. In contrast, the fact that your leaks contained only true information is no defense to a tortious interference claim if you had previously agreed to keep that information confidential.
What happens next?
We wait. It may be months before MLB responds to the suit.
How can MLB respond?
There are basically two responses that baseball can make. One is to file an answer the complaint. Such a document addresses each fact alleged in the complaint in one of three ways, by (i) admitting that the particular alleged fact is true, (ii) denying that particular alleged fact is true, or (iii) stating that the defendants don’t know yet if it’s true or not.
The second, and perhaps more likely response, is a motion to dismiss the lawsuit. Such a motion can be made for any number of reasons, including that under the CBA any dispute between Rodriguez and MLB must be heard by an arbitrator, and not taken to court. That last one would be a shame if successful because arbitration is secret, while anything filed in this lawsuit is a matter of public record.
Click here to read ARod's lawsuit against Major League Baseball. Essentially, he's alleging that MLB engaged in improper conduct that has interfered with his earning potential. I'll have some comments up on this later today.
Wednesday, October 2, 2013
Tuesday, September 24, 2013
Here is a link to my CBS article Helmet-removal rule: What it means today and moving forward.
Does the rule make sense? I discuss why it may.
Does the rule make sense? I discuss why it may.
Monday, August 19, 2013
I got my hands and a copy of the Pistorius indictment. It lays out the charges and the list of the prosecution's witnesses. As you will see, many are from the same apartment complex as Pistorius. This ties to witnesses saying they heard a woman scream, then gunshots then more screams.
There are 107 witnesses on the list. Trial is set for March 3, 2014 - but could be delayed.
To read the indictment, click here.
I join CTV National News to talk Pistorius and what's next for the Olympian.
Click here to watch.
Click here to watch.
Monday, August 5, 2013
I join CTV National News to talk imminent Biogenesis suspensions.
Click here to watch.
Click here to watch.
Thursday, August 1, 2013
Facing a lifetime ban from baseball, which would include the forfeiture of $86 million in salary plus being officially barred from the Hall of Fame, Alex Rodriguez has undoubtedly been spending a lot of time with his lawyers.
In a case like this, Rodriguez and his lawyers would sit down and weigh his options. They would play out different scenarios identifying the pros and cons. Here are his key options:
Option 1: Dig In and Fight
Baseball has reportedly offered Rodriguez a deal: agree to be suspended and forfeit your right to an appeal, and in exchange we will only suspend you for the rest of this season and all of next season. If he agrees to that, if/when he returned in 2015 at the age of 38, he would have 3 years left at $61 million. Not too shabby.
However, if Rodriguez decides not to cut a deal, reports are that Commissioner Bud Selig will suspend him for life. On top of that, baseball will suspend Rodriguez, in part, under the Collective Bargaining Agreement (and not just the Drug Policy).
This distinction matters. If Rodriguez were only suspended under the Drug Policy, he would be able to play during his appeal (which will be heard by Fredric Horowitz). That would mean we could see him back this season playing for the Yankees. However, if MLB suspended Rodriguez under the CBA, he would not be allowed to play while his case is being appealed. Under the CBA, baseball can go this route if a player has engaged in conduct that is detrimental or prejudicial to the “best interests of baseball”, and can include things like breaking federal, state or local laws. This isn’t something baseball exercises lightly; it’s a dramatic option.
There is even the option of baseball invoking Article XI(A)(1)(b) of the Basic Agreement, which provides that Selig can make a ruling if a case involves “the preservation of the integrity of, or the maintenance of public confidence in, the game of baseball”. This is also important. If Selig exercises this option, Rodriguez’s appeal would not go to an independent arbitrator but rather back to Selig. That would all but guaranteed a loss for Rodriguez. However, Selig has advised that he won’t be doing this.
So if Rodriguez decided not to cut a deal, his next step would be to appeal his lifetime ban. That appeal would first go to Mr. Horowitz. We haven’t seen the evidence against Rodriguez. Reports however, are that it is overwhelming and substantial. It may also include things like witness tampering, interfering with the investigation and recruiting athletes to Biogenesis (allegations which Rodriguez has denied). Even with this evidence, baseball may have a difficult time getting Mr. Horowitz to uphold the lifetime ban on appeal.
The lifetime ban punishment is only for the most exceptional of circumstances, and while PED use and possible obstruction of justice charges are very serious, generally more is needed before a player can be denied lifetime employment in baseball. This is particularly the cse for someone who has not been suspended before. Historically in baseball, it’s tough to enforce these types of bans. This isn’t breaking news, and baseball is aware of this.
So Rodriguez if appeals the ban, it may be reduced to somewhere around 150 games – which would be most of next season. But really, that’s just a guess. A lot will turn on the evidence. If it shows an extensive pattern of PED use together with substantial interference with the investigation, it could be more.
If he’s unhappy with whatever ruling the arbitrator’s makes, Rodriguez could head to court. If he did, Rodriguez would attack the credibility of those who provided the evidence, including Biogenesis founder Tony Bosch and former employee Porter Fisher. Bosch has allegedly engaged in criminal activity and would become a significant target of a Rodriguez defence. His legal team would also hope that the pressure of litigation may encourage MLB to settle on more favourable terms. However, that seems unlikely given that baseball is accustomed to litigation and is fully committed to this case.
So if he elects to fight, he first heads to arbitration (while still suspended) and then possibly off to court. Messy and long.
Option 2: Cut A Deal
The evidence against Ryan Braun was overwhelming and substantial. For that reason, he accepted a major suspension even in the absence of a positive drug test (he has the same lawyer as Rodriguez by the way). According to reports, the evidence against Rodriguez is even more overwhelming and even more substantial. There are also reports of a longstanding relationship between Rodriguez and Bosch going back a number of years.
If there is indeed very good evidence against Rodriguez, his lawyers will canvass the benefits of settlement. First, if he agrees to the deal on the table, he could be back in 2015 and still have 3 years/$61 million left on his deal.
As well, by agreeing to MLB’s terms, he will get immediate certainty as far as the length of his suspension. In contrast, if he goes to arbitration, the length may be reduced but may still exceed MLB’s current offer. And if this somehow ends up in Court, this could take multiple years to litigate – and the entire time Rodriguez may not be able to return to baseball. So if he fights, the only certainty is uncertainty.
There is also the matter of legal fees. At $450 million, Rodriguez is the highest paid athlete in major league baseball history. So lawyer fees aren't going to be an issue.
On the flip side, if he takes the deal he will effectively be declaring his guilt. You might remember that he admitted to using PEDs for three-year period beginning in 2001. By agreeing to a suspension now, the public may well conclude that he has used his entire career. Essentially, there would be no recovering his legacy. He will be perceived as the Lance Armstrong of baseball. The problem for Rodriguez is that the legacy ship may have already sailed.
Option 3: Try Something Else.
Cricket looks like fun.
Ultimately, Rodriguez seems cornered. He is looking to pick the best option available to him under the circumstances. Not an enviable position to be in.
Indeed, rock meet hard place.
Steve Lloyd and I interviewed TJ Quinn recently on my radio show Offside. TJ is an investigative reporter with ESPN's Outside The Lines and has done a terrific story breaking a lot of stories in connection with Biogenesis.
Here's a transcript of some of his interesting comments:
MLB Player Reaction to Braun Suspension
My colleagues have reported being overwhelmed at how many guys came up and said they were happy that he got nailed. People were furious. It’s one thing to lie about it. It’s one thing to make a snide accusation that somehow the sample collector was to blame and was out to get him. Players have been saying he made us lie; we defended him and he let us do it. So you have the indignancy of being asked to lie for somebody - and on top of that there has been a real cultural change in our players see this. There is sizable majority that want to see drugs out of the game and want to see cheaters punished.
On Tony Bosch being a doctor
He says he went to medical school in Belize and he has a degree in his office. He is not an MD and certainly has never held a license to practice medicine.
On Porter Fisher’s importance
He is the one that unravelled Biogenesis publicly. We have been working on this since last August. Sometime a few months later, Fisher, who had been a client of Biogenesis and then became an investor and then quickly became an unhappy investor, had it with Tony Bosch. Bosch owed him $3600, Porter asked for it, and Bosch said he wouldn’t pay him. So after that, Fisher went to the Miami New Times with 4 boxes of [Biogensis] documents.
On whether Fisher initially believed Bosch’s activities were legitimate
He says that he believed they were perfectly legitimate. He called himself a doctor, he had a degree on the wall and everyone called him Doctor T. He even had a lab coat – how much more official does it get than that.
He had no reason to doubt him. He also said at the outset he was unaware there was a performance enhancement part to Bosch’s practice. He knew of the weight loss component as he had been a client of Bosch. Then he figured it out after looking at the books.
On whether Fisher tried to blackmail Bosch
He denies that ever happened. When I asked him that question on camera he suggested he would pursued it in any event. He believed that someone had to look at Tony Bosch. Whatever his motivation, one thing that did seem clear was that he wasn’t looking for attention and he wasn’t really looking to do anything about the athletes. He said he didn’t really know who most of the athletes were when he got the documents. He wasn’t much of a sports fan. The only names he recognized were Alex Rodriguez and Melky Cabrera. He took the stuff about to the Miami New Times more concerned about with the names lawyers, judges and local law enforcement thinking they would jump on that. When the Miami New Times reviewed the documents, they figured out quickly how many athletes there were.
There have been a lot of smears against Fisher and a lot of parties interested in discrediting him and saying he wanted money for the documents. Based on everything we have seen, (and we have done a lot of reporting to check him out) he never did. When he went to the Miami New Times they said he never asked for money. He didn’t go to major league baseball and ask for money.
On NBA players being connected to Biogenesis
According to Porter – yes. I don’t know the names of anybody involved. He has indicated that they aren’t major names. He knows about a dozen athletes from outside of major league baseball across 6 sports. So obviously the numbers aren’t overwhelming for any one of those sports. But that also only covers a very short period of time where he had access to documents. He estimates that Bosch worked with over 100 athletes if you go back a few years.
So he may have had a few clients from other sports but it doesn’t sound like he had a major operation in those sports like he did in baseball.
On Rodriguez’s longstanding relationship with Bosch
It goes back years. Bosch had a different relationship with Arod. He got the personal treatment that others did not. He generally used couriers for other athletes like Ryan Braun. But Bosch would go to Arod’s house and inject him there. He once went to his house and was trying to get into a vein. He couldn’t hit the vein and Arod was bleeding all over his house and got furious at Bosch and kicked him out of the house. Bosch was worried he was done and was going to fire him. For years it was more than just casual contact.
On Rodriguez declaring he wants to be a role model
There seems to be a disconnect between what he thinks he can do to restore his image and where his image really is. Unless he can show a massive conspiracy by Tony Bosch to get him, he’s cooked. Baseball had an expectation (on the evidence) and Bosch exceeded it.
Wednesday, July 31, 2013
Tuesday, July 30, 2013
Click here to read my article at TSN. entitled Legal Look: Braun, Rodriguez, PEDs And Terminating Contracts.
I cover whether a player can have his contract terminated because he did PEDs. Short of strangling your employer (see end of article), it's tough to have your contract terminated.
Wednesday, July 24, 2013
Tuesday, July 23, 2013
Wednesday, July 10, 2013
Last night on Offside, we interviewed T.J. from ESPN's Outside The Lines (the investigative unit for ESPN).
A few minutes before the interview, Quinn broke the story that MLB was going to suspend upwards of 20 players for PEDs use. That includes players like Ryan Braun and Alex Rodriguez. We had a good talk with Quinn about a story that is shaping up to be the big ones of 2013.