Thursday, December 30, 2010

Golfer Who Sued After Getting Hit By Golf Ball Loses

A golfer that was left blind in one eye after an errant shot has lost his appeal. The shot came while three friends were playing golf on Long Island in 2002. The man who lost part of his vision, Azad Anand, was no longer able to work as a neuroradiologist. He sued Anoop Kapoor, the golfer whose shot hit him, claiming that Kapoor should have warned him by yelling fore.

The New York State Court of Appeals ruled that Kapoor was not responsible for yelling fore because Anand was not in the intended path of the ball.

The Court ruled that Anand assumed the risk that he could be hit by an errant ball when he decided to play golf and that Kapoor was responsible for yelling fore only to golfers in the ball’s intended path.

This decision is in keeping with previous golf decisions, where courts have generally found that golfers assume risk when playing.

The legal principle at law is called voluntary assumption of risk. This refers to the acceptance of a risk or danger associated with an activity by doing the activity. For example, when you play hockey you understanding that there is a risk, and when you step on the ice you assume and agree to that risk associated with contact that is incidental to the game.

Wednesday, December 29, 2010

NFL Rules on Favre/Sterger Case - Reminder NFL Not a Court

The NFL has fined Brett Favre $50,000 for a “failure to cooperate” with the investigation into allegations he sent inappropriate messages and lewd photos to Jenn Sterger when they both worked for the New York Jets. However, Commissioner Roger Goodell “could not conclude” that Favre violated the league’s personal conduct policy based on the evidence currently available to him.

“The forensic analysis could not establish that Favre sent the objectionable photographs to Sterger,” the NFL's statement said. “The review found no evidence to contradict the statements of both Favre and Sterger that they never met in person, nor was there anything to suggest that Sterger engaged in any inappropriate conduct.”

Goodell determined Favre was "not candid in several respects during the investigation resulting in a longer review and additional negative public attention for Favre, Sterger and the NFL".

So this means that Favre is being fined for failing to cooperate with the investigation and not for violating the Personal Conduct Policy.

Offside predicted that the NFL may only fine Favre. Why? In order to suspend Favre, the NFL needed very clear evidence that not only did the lewd photographs come from Favre's phone, but that he sent them himself. While it's reasonable to conclude that Favre sent the photographs from his phone, it remains possible that someone else used Favre's phone to send the photographs (Favre denied sending the photos).

For the NFL to be in a position to come down really hard on Favre, they would need more than circumstantial evidence. Circumstantial evidence requires that one make a deduction to conclude that a fact exists. Without direct evidence that Favre sent the photographs, it would have been difficult for the NFL to impose severe sanctions on Favre by relying only on its deductions.

On top of that, there is the issue as to whether his behaviour constituted sexual harassment. Remember for that you need to show that the advances were unwelcome. There are some reports that Sterger didn't take the photographs too seriously and that she exchanged text messages with the quarterback. That together with not allegedly making Favre's voicemails and photographs public herself and waiting two years to engage on the issue (and doing so reluctantly) may suggest she did not deem Favre's actions harassment.

As for reconstruturing events, the NFL does not have the power to compel testimony by a witness or production of documents.

"We do not have subpoena power and it is sometimes difficult to reconstruct events that occurred more than two years ago" the NFL said.

This is an important point - there is only so much the NFL can do. They are not a court - they are a league. If Sterger believed she has a case, then it remained open to her to initiate legal proceedings in court.

Joseph Conway, Sterger's lawyer, wasn't too happy with the ruling.

"My client and I are extremely disappointed, but not surprised, at today’s NFL announcement that Brett Favre did not violate the NFL ‘workplace conduct’ policy,” Conway said. “While I am not privy to how Mr. Goodell reached such a finding, we strongly disagree with his conclusion that there was insufficient evidence to support a violation of the policy. To the contrary, our evidence and the personal testimony of Ms. Sterger clearly showed a pattern of lewd and offensive behavior by Mr. Favre that lasted all of the 2008 season.

“As noted in the NFL’s release, ‘there was no evidence to suggest that Sterger engaged in any inappropriate conduct.’ In addition to the offensive messages, there was ample evidence to show that the sexually explicit photographs were part of Favre’s inappropriate behavior. Our evidence clearly showed that the photos were sent by Favre.

“Likewise, Mr. Goodell completely failed to address the complicity of the New York Jet organization in Favre’s conduct. The evidence was explicit that Ms. Sterger’s personal telephone numbers were provided to Favre by still-current employees of the New York Jets. This was done without Ms. Sterger’s knowledge and consent.

“Furthermore, the fact that the League took the step of fining Favre for ‘not being candid in several respects during the investigation’ is disturbing in the message it sends. It clearly shows that an NFL star player was given preferential treatment and tells all other players that failure to cooperate may cost you some money but will not result in other punishment. Additionally, today’s decision is an affront to all females and shows once again that, despite tough talk, the NFL remains the good old boys’ league.”

Friday, December 24, 2010

Favre/Sterger Decision

Mike Florio of Pro Football Talk has written an article (a fantastic columnist by the way) theorizing that the NFL may be waiting until after the statute of limitations expires on a possible sexual harassment claim before handing down its ruling thereby precluding Sterger from suing Favre for sexual harassment:
"With Sterger’s camp claiming that she won’t sue if Favre is found responsible for wrongdoing, delaying a finding of no wrongdoing until after the deadline for filing a lawsuit has passed prevents a viable lawsuit from being filed.

Sterger’s lawyer, Joseph Conway, told PFT earlier this month that the last communication between Favre and Sterger while both were employed by the Jets occurred on December 28, 2008. In New Jersey, the statute of limitations for filing sexual harassment claims is two years. Thus, the deadline for filing a sexual harassment claim under New Jersey law comes and goes early next week."
A “statute of limitation” is a time frame that defines the length of time an individual has to sue someone. The time limit begins when an injury occurs, or is discovered, and concludes on the latest date the injured person can file suit. These time limits vary from state to state, and depend on the type of claim that is filed. The time frame usually begins when the injury or wrongful act occurs. However, some states may allow a claim to proceed if the wrongdoing or injury was not discovered until a later date, at which point the clock would start ticking as of the date its discovered.

Statute of limitation laws serve two basic purposes:

1) To protect a potential defendant from being forever at risk for a lawsuit; and 

2) To ensure that legitimate lawsuits are filed while evidence and memories are still fresh.
Mr. Florio's theory is interesting and may well be something the NFL is weighing . It is possible that Sterger's lawyers could file suit before the expiration of the deadline to preserve Sterger's position at law. As well, there may be creative ways of extending the deadline (e.g., when did Sterger become aware of the wrong) or it could be argued that while Sterger was still employed by the Jets post-December 28, more advances were made (not sure if she was). There may also be other causes of action to examine with different limitation periods.
Ultimately, it would not be surprising if the NFL doesn't come down too hard on Favre. Perhaps it may fine him. As well, it may amend its existing Personal Conduct Policy to cover sexual behaviour or put in place an entirely different policy.
The NFL has a very real balancing act as discussed in my article reviewing the different angles at play. The NFL will move, in my opinion, very prudently and are unlikely to make any overly rash decisions. A decision could come before or around the New Year, when people are generally more distracted with explaining to people why their family gives them migraines.

Thursday, December 23, 2010


After firing John MacLean, Devils GM Lou Lamoriello tells the Sporting News, "He'll be right back at work in the organization doing something... In my opinion he's an outstanding coach."


Thrashers, Hawks Legal Battle Comes To A Close

The long legal battle over the ownership of the Atlanta Hawks and Atlanta Thrashers has been resolved as fellow owners Michael Gearon, Bruce Levenson have purchased Steve Belkin 's 30% share of the team. As part of the deal, Gearon and Levenson have become managing partners of an ownership group that includes Ted Turner's son Beau.

The fight began in 2005 over Belkin's objection to the Hawks trade of Boris Diaw, two 1st round draft picks and a trade exception for guard Joe Johnson (a completely defensible trade for the Hawks as Diaw has taken a liking to the food from his French homeland).

Belkin maintained a significant enough share to hold power in the ownership group but was not happy with his role in the group. He had previously asked that the remaining owners purchase his shares of the Atlanta Spirit LLC, the partnership which owns the Hawks and Thrashers, but they could not agree on a price for the shares or even who should set the price of the shares. Belkin brought the battle to court and relied on a 2006 Maryland court ruling that he was entitled to purchase all the shares of his fellow owners and take control of the teams. The ruling was later overturned.

This buy-out of Belkin settles this legal battle and should provide more stable ownership for the Hawks and Thrashers.

Gearon and Levenson have maintained that the ownership battle did not effect the day-to-day operations of the teams. However, the Hawks have kept their young core group together but have played minimally in the free agent market otherwise and the unstable ownership group could have been a factor. This offseason, after the club fired coach Mike Woodson, it eschewed more high profile, expensive head coaches to hire a first year coach in Larry Drew. Money could have been a factor in this decision.

Levenson did acknowledge that the lawsuit may have been a reason why they have been unsuccessful in attracting additional investors for the Thrashers.

What this means for the future of the Thrashers is unclear. A consolidated ownership group that does not include the disgruntled Belkin may make the team more attractive to investors who wish to purchase the team and move it elsewhere. Probably helps that the Thrashers are playing great hockey after a bunch of good hockey moves made by Thrashers GM Rick Dudley. Some of his key acquisitions include Andrew Ladd, Dustin Byfuglien, Ben Eager and Brent Sopel.

The Thrashers and the NHL can now more completely focus on attendance problems in Atlanta.

Wednesday, December 22, 2010

Driver in Adenhart death receives 51 years to life

Andrew Gallo, a construction worker who ran a red light while intoxicated and killed Los Angeles Angels pitcher Nick Adenhart and two other people has been sentenced to 51 years to life in prison.

Gallo was sentenced Wednesday following a hearing in Santa Ana at which he apologized to the victims' family and friends.

Gallo was convicted in September of three counts of second-degree murder and single counts of drunken driving, hit-and-run driving, and driving under the influence of alcohol and causing great bodily injury. He is 24 years old. At the time of the accident, Gallo was on probation for felony drunken driving.

Authorities say Gallo's blood-alcohol level was nearly three times the legal limit.

Prosecutors said Gallo drank beer and shots at three different bars with his stepbrother before driving off in a minivan. Gallo’s attorney requested 15 years to life on the basis that Gallo did not intend to injure anyone.

Attorney Jacqueline Goodman said in court papers that Gallo’s stepbrother was supposed to be the designated driver that night, but that Gallo took the wheel when his stepbrother became too drunk to drive.

Sports stars and their trademark slogans featured in NY Times today - By Erik Pelton

Here's another article written by Erik Pelton, this time on the trademarks of famous atheletes. Good read. You can read it below or on his site.

Thanks again Erik.

The New York Times today has a good article about the increasing number of professional athletes who have taken steps to protect their trademarks. Slogans or catchphrases can be big money for the selling of merchandise, reality shows, or other goods and services. As noted in the Times article, there appears to be a trend of stars who have protected their brands and trademarks.

This should come as no surprise – the business of sports is bigger than ever and the money at stake is enormous.

As noted by the Times (and by me here) Pat Riley was one of the first to protect a sports phrase – THREE-PEAT®. And Nike and other apparel and equipment manufacturers have been proactive for at least 20 years filing to protect the brands associated with stars they promote, such as Air Jordan and Lebron James.

Here are some of the sports trademarks noted in the article:

REVIS ISLAND – pending Derrelle Revis application

I LOVE ME SOME ME – pending Terrell Owens application

GETCHA POPCORN READY – pending Terrell Owens application

InVinceAble – pending Vince Young application

VY – pending Vince Young application
The difficulty protecting some of these trademarks is identifying the proper goods or services with which they are used. A catchphrase does not become a trademark until it is used to promote or sell something. Sports star logos or phrases are often connected to charitable services, apparel, or entertainment.
Here are a few other sports star trademarks:
DREW DAT from Drew Brees.

BRETT FAVRE registered for variety of goods and services.

Tom Brady 12 logo

Tiger Woods fist-pump image

Reggie Jackson really is MR. OCTOBER!

LEBRON® is owned by Nike.

SHAQ is owned by Mine o’ Mine Inc.

JETER logo by Nike




Do you have a favorite sports star trademark slogan?

297! Who owns the right to profit from Brett Favre’s streak? by Erik Pelton

Trademark lawyer Erik Pelton wrote an article on the proprietary nature of 297, which is the number of consecutive games Brett Favre has played. The article is below or click here to read it on Erik's site.

Many thanks Erik for allowing Offside to reproduce the article.

Apparently the Minnesota Vikings believe that they own the rights to profit from the streak – or at least from the marketable number it created – 297. On Monday evening earlier this week, while Brett Favre watched his team play from the sidelines for the first time in 298 regular season games, attorneys for the Vikings were filing three US trademark applications based on a bona fide intent to use the following marks (click links for USPTO records):

- 297 (Application Serial No. 85196936, filed at 9:11 EST)

- FAVRELOUS STREAK 297 (Application Serial No. 85196942, filed at 9:20 EST)

- FAVRELOUS 297 (Application Serial No. 85196955, filed at 9:49 EST)


The USPTO filings raise a few questions.

Absent some kind of agreement, who should be able to profit from selling products featuring the number 297?

- Favre

- the Vikings

- the NFL

- the NFL Players Association

- anyone

In order to quality for registration of a trademark on the Principal Register, a mark must indicate the source of the goods or services and not be merely ornamental. Will bottle openers featuring “Favrelous 297” on them indicate that Minnesota Vikings Football, LLC is the source of the products?

Will the Vikings try to stop others from making or selling shirts that use the number 297 on them in connection with Favre or football or the color purple? Just a guess, but I think they will try.

The official Vikings merchandise website is already featuring a FAVRE 297 SALE!:

Monday, December 20, 2010

Snowball's Chance: Jets Player Gets Sued Over Throwing Snowball At Fan

According to TMZ, Shaun Ellis, a defensive lineman for the New York Jets, has been sued for throwing a snowball at a Seahawks fan after a 13-3 loss in 2008.

As per the video below, it appears that Seattle fans threw several snowballs at the Jets players as they were walking through the tunnel. Ellis is then shown picking up a large chunk of snow and throwing it at a fan in the stands. The fan seemed quite happy to be the target and held it in celebratory fashion.

The Seahawks fan, and Plaintiff in this case, Robert Larson, claimed that he "suffered physical injury, humiliation, mental distress, pain and wage loss from the incident." Larson also claimed that he had been waving a Seahawks sign, making him a "perfect snowball target".

If the fan had thrown snowballs at Ellis, the lineman could claim self-defence.

No word on whether Jets fans generally can sue for pain and suffering as a result of their team's past performance.

Here's the video clip of the incident:

Another Player Interferes On Sidelines

Carolina defensive end Tyler Brayton was fined $15,000 by the NFL for hitting Atlanta's Chris Owens out of bounds in last week's game. This hit was quite blatant, with Brayton going out of his way to hit Owens.

From a legal standpoint, players (and coaches) hitting players in this way open themselves up to being sued for battery if the targeted player gets seriously hurt.
Here's the video:

Sunday, December 19, 2010

Fehr Better Or For Worse: Next Steps & Highlights of Conference Call

“Before the vote, I think everyone knew that he was our guy. There was no one with his expertise, and his knowledge, and his experience as an executive director. He’s done great things for baseball. And the last couple of years, there’s been a lot of turnover at the NHLPA, and I think there’s no better person to go in there and sort of settle the house down."
On Saturday, Donald Fehr held a telephone conference call following his appointment as executive director of the NHLPA. I attended this call, and below are the highlights, including his comments on requiring more power before signing on, the possibility of a work stoppage, his immediate to do list and succession plans.

As for the future, don’t expect to see a work stoppage. The fundamental issue of cost containment was addressed during the 2005 lockout by way of the salary cap. Moving forward, look for tweaks to the CBA and no major overhauls.

Ultimately, Fehr will seek a recalibration the NHLPA’s relationship with the NHL, and his appointment is a step in the right direction as it immediately elevates the credibility of the union. Other issues include restructuring the escrow provisions in the CBA and increasing the union's share of the revenue. Player safety may also get some air time.

As well, the NHLPA may seek to address Section 26.10(d) of the CBA, which provides that there “shall be no limitation of time barring the investigation of a Circumvention by the Commissioner”. Essentially, this means that the NHL can challenge any contract at any time even if the NHL approved and registered that contract. This provision is far too broad in its application. As you may recall in the Kovalchuk case, the NHL used this provision as leverage to force the NHLPA to agree to amendments to the CBA as to the way the salary cap hit is calculated on long term contracts. The NHLPA may propose that this provision be amended to allow for investigations only under limited circumstances.

The NHLPA may also propose that the CBA set out specific circumvention rules governing long term contracts. This may build on the rules agreed upon in September.

Here are the highlights from the conference call:

Wanted More Power

If the constitution was not amended to grant Fehr more authority, then it would have been "vastly more difficult" for him to sign on for the head job.

Fehr noted that the amended constitution made him akin to a "prime minister" - provided he has, and continues to have, the “majority support” of the players.

To Stop or Not To Stop

Fehr does not "anticipate a work stoppage" but he “won’t predict what will happen during negotiations”.

Fehr will educate the player membership as to what the issues are, what's important about them and what "changes" to propose

When asked if players are satisfied with current CBA structure, Fehr responded that several issues warrant examination.

To Do List

Fehr said there are a "whole lot of things" to look at.

He needs to "acquire a detailed working knowledge of the way the CBA works both on global scale and how affects individual players".

He wants to become more familiar with the "current revenue sharing system and the way the economics of this industry work".

So short term, Fehr wants to understand how the CBA, revenue sharing and the economics of the game work.

Fehr also noted that many “senior members” of the union have been lost and they will need to rebuild the staff. Changes will become "apparent over next couple of weeks" (after the call it was announced that NHLPA general counsel Matt Nussbaum was leaving for the MLBPA).

Succession Plan

Fehr said he “will be 64” when the CBA expires, the “time horizon is finite" and it’s "pretty unlikely I'm gonna be here for 10 to 15 years".

Fehr talked to players about "the importance of a smooth transition to another director...whenever that takes place".

Fehr said “it certainly will be my desire, if the players want me at the time, to make a recommendation on someone. Having said that, that choice will remain with the players”.

If he identifies someone who can take over, he will note that person "with more than a passing interest".

Saturday, December 18, 2010

Fehr Press Conference - Key Moments

To review the key moments from the Donald Fehr press conference, go to!/EricOnSportsLaw

Donald Fehr Press Conference

I'm on Donald Fehr press conference call - go to!/EricOnSportsLaw for updates.

Game On: Fehr In as NHLPA Head; Gets Overwhelming Support Was Looking For

The National Hockey League Players’ Association (NHLPA) announced today that "the full membership of the NHLPA has voted overwhelmingly to appoint Don Fehr as the new NHLPA Executive Director". To view the NHLPA's press release click here.

The word "overwhelmingly" was chosen for a reason. On September 13, Offside broke a story that before Fehr agreed to step in as head of the NHLPA, the players would need to "overwhelmingly vote" to accept his appointment. Given the recent well documented failures of the NHLPA, this was a wise choice.

Fehr ran the MLB player union for 27 years before he stepped down in 2009. He was instrumental in making the union the most powerful in sports, and masterfully guided the players through the collusion grievances in the 80s (which resulted in an award of $280M to players) and the 1994-1995 strike. He also guided the players through CBA negotiations in 2002 and 2006, the first negotiations since 1970 that were achieved without a work stoppage.

As a young lawyer, Fehr assisted the MLBPA in the landmark Andy Messersmith and Dave McNally arbitration case. In 1977, Marvin Miller, head of the union, hired Fehr as general counsel to the MLBA.

In December 1985, Fehr was voted executive director of the MLBPA after having served as acting director since December 9, 1983. Fehr successfully challenged the owners' collusion, leading to the owners paying $280 million in damages to the players. He was instrumental in implementing the rejection of future admissions into the MLBPA by replacement players who planned to fill in during the strike of 1995. He is known for his fierce negotiating skills, and by many accounts, is smartest guy in the room.

On June 22, 2009, Fehr stepped down from the MLBPA executive director position. Shortly after leaving his position as Executive Director of the MLBPA, Fehr took up a position as an advisor to the NHLPA.

The MLBPA stands in stark contrast to the NHLPA. While the MLBPA enjoyed very strong leadership and has flourished, the NHLPA through the years has been fraught with corruption, scandal, controversy and mismanagement. Today, the PA is essentially rudderless.

(To read the best account of the history of the NHLPA, read Money Players by Bruce Dowbiggin. This book is fascinating and chronicles the problems faced by the NHLPA over the years. Makes Christmas dinner at my house look like a walk in the park).

Given the way the NHL has quite convincingly handled the Union, Fehr is a welcome addition for the players. If Fehr can accomplish half of what he did with the MLBPA, the players will be the better for it. Also expect to see a clear succession plan when he decides to leave. This will be important to Fehr as well.

I'm sure it's not relevant, but when I spellchecked "Fehr", the suggested correction was "fear". Not sure what that means.

Game on.

Friday, December 17, 2010

Goodell Talks CBA, Favre, Tampering and a Team in LA

NFL Commissioner Roger Goodell recently addressed the ongoing labor talks, Brett Favre, tampering and a possible move of an NFL team to Los Angeles.

Labor Deal

Goodell has said a new labor agreement could be in place by the Super Bowl "if we all commit to it and work hard at it. There's no higher priority than getting a collective bargaining agreement. So we will work night and day to get that done."

He added, "I have said this repeatedly: I believe this will be resolved at the collective bargaining table," Goodell said. "Obviously we're seeing a lot of rhetoric and different tactics, including litigation strategies that I think are all distractions and attempts to get leverage. I understand that. But at the end of the day, this will get solved at the negotiating table. That's where we should be."

In a nutshell, here are some of the main labor issues:

Adjust Revenue Sharing Model

Currently players get 60% of revenue and owners want it dropped to 40%. The salary cap has gone from $85.5 in 2006 to $128 in 2009. The owners want the revenue split adjusted.

Rookie salary cap

The NFL wants a cap on rookie deals. Owners would say look no further than Sam Bradford, whose contract represented a seminal moment in the history of escalating rookie contracts. Bradford, who had never taken a snap in the NFL, signed a record contract that included $50 million in guaranteed money. As for other rookie guaranteed money, Matt Stafford signed for $42 million, Jarmarcus Russell for $32 million, Ndamukong Suh for $40 million, Gerald McCoy for $35 million and Trent Williams for $36.7 million.

These numbers pretty much guarantee that the NFL will not walk away from the negotiation table without some type of restriction on rookie deals. You can bet on it.

Reclaim Bonus Money When Contracts Violated

The NFL wants to be able to recoup bonus money paid out to players that subsequently violate their contracts. The NFL tried it with Michael Vick, but a Court ruled Vick could keep his $20 million bonus. In particular, the 8th U.S. Circuit Court of Appeals affirmed a lower court ruling that Vick had already earned the bonuses before his dog fighting conviction, so the money wasn't subject to forfeiture. Faced with this court decision, the NFL needs this new rule written into the CBA; otherwise they are out of luck.


The NFL has talked about rollbacks in salaries. We saw NHL players agree to a 24% rollback in 2005, and the NBA has suggested it may look for a 35% rollback.

Expand Season to 18 Games

The NFL wants to expand the season to 18 games. This is a really hot issue for the owners. One proposal has the NFL trimming the pre-season by two games (from four to two games). Union President Kevin Mawae appreciates the value of an 18 game schedule, and seems prepared to use it as leverage.

"It's nearly an impossible sell for the players," Mawae said. "It's not about the finances, it's not about the payment. It's about the body and the wear and tear a player takes. ... There would have to be a lot of give from the management and the NFL side to get the 18 games."

Test for HGH

If you want to test for HGH, which is a banned substance in the NFL, you need to take a player's blood. There is currently no urine test that can test for HGH. The owners would like to see testing for HGH. Don't hold your breathe though. It would be surprising to see the players agree to blood tests. If the NFL insists on blood testing, the players could strike.

The NFLPA wants to see proof that a reduction in the revenue sharing plan is required (open up the books they are saying). They also want benefits for retired players, and appeals of arbitration decisions to be decided by an impartial third party rather than Goodell.

The NFLPA is also threatening to decertify to force thge NFL's hand.

Brett Favre

Goodell is close to announcing whether the league will punish Brett Favre for allegedly sending inappropriate photos and phone messages to Jen Sterger, a former New York Jets game hostess. Goodell said Wednesday he received the league’s report about the case “last week and I expect that some time in the near future I will make a decision.”

This is going to be a real balancing act for the NFL as they have a lot of things they need to consider before making their decision.

First, some background. Under U.S. Federal law, sexual harrassment occurs when a person engages in a pattern unwanted sexual advances. Sterger is alleging that advances were made. Favre says the voice messages are his, but the photos are not. The voicemails by themselves aren’t great for Favre, but the photographs, if traced back to Favre, would make things worse. While the NFL may be able to confirm the pictures came from Favre’s phone, they may not be able to prove the Favre sent them. While it’s reasonable to conclude he did send them since it’s his phone, you still need to prove it. It could be argued that someone else sent them.

At the time of the incidents, Favre was employed by the Jets. Sterger may have been an employee of the Jets (employed as a hostess) or an independent contractor; it's not clear. In the context of a sexual harassment claim, though, it won't make a big difference.

It is open to the NFL to discipline Favre pursuant to the Personal Conduct Policy. The Policy provides as follows:
"All persons associated with the NFL are required to avoid “conduct detrimental to the integrity of and public confidence in the National Football League.” This requirement applies to players, coaches, other team employees, owners, game officials and all others privileged to work in the National Football League.
As far as sanctions,
Discipline may take the form of fines, suspension, or banishment from the League and may include a probationary period and conditions that must be satisfied prior to or following reinstatement. The specifics of the disciplinary response will be based on the nature of the incident, the actual or threatened risk to the participant and others, any prior or additional misconduct (whether or not criminal charges were filed), and other relevant factors.
The NFL won’t banish Favre. For banishment they would need Favre to have engaged in a pattern of misconduct in the face of repeated warnings to stop. Remember Michael Vick was only suspended - and he went to jail.

However, there is more for the NFL to consider. They are targeting women as an emerging market. You might remember a few weeks ago the NFL honored breast cancer awareness month. Players wore pink apparel and the game ball had a pink ribbon on it just to name a few of the things the NFL did. The NFL will be sensitive to how women may react to any possible inaction/action it takes in this case. They will be mindful of that segment of the market.

The NFL also knows it remains open to Sterger to commence civil proceedings against Favre, the Jets and the NFL. The NFL will want to avoid litigation so they may take the necessary remedial steps to discourage the likelihood of legal proceedings. Sterger's lawyer has said his client would not pursue litigation if the league suspends Favre and puts a sexual conduct policy in place. While the NFL wants to avoid litigation, they won't just give in to Sterger's demands without evidence that a wrong has been committed.

As I discussed with Tony Marinaro in October, it would not be unreasonable for the NFL to put a sexual conduct policy in place or amend its existing Personal Conduct Policy. A suspension and fines are also possible.

A sexual conduct policy is something the NFL may consider (or amending its current personal conduct policy). It is possible that unwanted sexual advances may not be unique to just a couple of players in the NFL. So the NFL may like the idea of a policy so they can set a clear standard while also being able to point to the policy if they are challenged in the future as not doing enough to discourage this type of behavior.

There is one more thing for the NFL to consider: Brett Favre's legacy. There are few players that are as loved by teammates and opposing players as Brett Favre. He's also posted some of the most impressive numbers in NFL history and is headed to the Hall of Fame. As well, the Brett Favre brand is something the NFL will want to exploit when Favre retires. This all means that the NFL may well do its best to protect Favre's legacy and brand. However, we do know one thing: the NFL of late doesn't seem to play favorites.

Based upon the available information, my guess is the NFL fines Favre and puts a new policy in place (or amend its existing Personal Conduct Policy). New information, though, could change things.

Move To Los Angeles & Tampering

Goodell has confirmed that an investigation is ongoing regarding a tampering charge between the Chiefs and Lions. Asked about a team moving to Los Angeles, Goodell said the CBA must first be resolved. Magic Johnson can be heard tapping his foot.

Wednesday, December 15, 2010

Brooklyn New Yorkers: Did Four U.S. Trademark Applications Reveal New Name of Nets?

It’s possible that 4 U.S. trademark applications have revealed the new name of the New Jersey Nets when they move to Brooklyn in 2012: The Brooklyn New Yorkers.

In 2005, the Nets announced plans to locate the team in the Prospect Heights neighborhood of Brooklyn (one of the members of the ownership group is rap mogul and Brooklyn native Jay-Z; the majority owner is Russian businessman Mikhail Prokhorov).

Possible names for the team included the Brooklyn Nets and New York Nets. However, 4 U.S. trademark applications were filed on September 30, 2010 in the names of James Stevralia and Joseph Voyticky. Individuals with these same names are associated with the law firm Pepper Hamilton, as are the agents handling the trademark applications. These applications are not in the name of the owner of the Nets or a related company.

Here’s one of the proposed logos as per the trademark application:

To access the trademark applications, go to, click on “Search Marks”, then click on "Word and/or Design Mark Search (Structured)", enter “Brooklyn New Yorkers” (in quotes) and then click on any of the 4 applications.

You will see that the “Filing Basis” is indicated as 1B. That just means that the mark was not used in the U.S. at the time the application was filed, but that there is an intention to use the mark.

According to NetsDaily (, the NBA requires a team to advise of a name change 2 years before the change, but it doesn’t require a team to state what the new name will be. As well, under an agreement with the Empire State Development Corp., the new name must include either "Brooklyn" or "New York".

The Nets have not confirmed the change. If the team is in fact rebranding, the Brooklyn New Yorkers name is an understandable choice. By adopting this seemingly redundant name (a bit like the Montreal Canadiens), they are trying to position themselves as New York’s team. The Los Angeles Angels of Anaheim did the same thing in an effort to position themselves as more than just Anaheim's team.

As well, the Nets don't exactly have a winning tradition, and a change of name may help the team shed its losing image.

One sure way to become New York’s team, though, is by winning. Just ask the Mets. They were New York’s second team behind the Yankees until Mookie, Darryl, Dwight, Keith, Ray and company did their thing.

Tuesday, December 14, 2010

Alosi Incident: How The Coach Dodged A Litigious Bullet

“This is just uncalled for in the NFL. … Not sure who that person is, but they should be ashamed of themselves for that type of action. That has no place in any athletic event.”
- CBS analyst Dan Fouts after a replay showed Sal Alosi subtly sticking his knee out along the sidelines tripping up Nolan Carroll.
The cheap shot still boggles my mind, as does the coach's ironic first name (sal is French for dirty).
Alosi, the New York Jets assistant coach, who tripped up Miami Dolphin player Carroll during a game, was suspended by the team Monday night without pay for the rest of the season, including the playoffs, and fined $25,000.
After the hit, Carroll was seen limping off the field. It seems, though, that he wasn't seriously hurt. He returned for the 4th quarter, and after the game told his mother, Jennifer Carroll, he was fine. 
As you can imgaine, Carroll's mother wasn't happy about the incident. She said she was watching the game on TV and feared her son had been seriously hurt. He twice broke his right leg, once to end his senior season in high school, and again to end his senior season at Maryland.
Jennifer Carroll, Florida's lieutenant governor-elect, has said she hopes good can come from the incident.
"I think it's being dealt with as fairly as it can be," Carroll said. "Hopefully it will be an opportunity to make some changes along the sideline, so individuals will know they cannot engage in this type of activity just to benefit your team, or to hurt the other players because your team might be losing."
After the game, Alosi took responsibility for his actions. 
"I made a mistake that showed a total lapse in judgment. My conduct was inexcusable and unsportsmanlike and does not reflect what this organization stands for."
Alosi also said he apologized by phone to Carroll and to Dolphins coach Tony Sparano. Carroll said after the game he was not angry, but he was still sorting out the episode.
Legal Implications
If Carroll had been seriously injured, or worse, sustained a career-ending injury, this could have been much much worse for Carroll, and would certainly not have met with such a quick resolution. Carroll could have sued Alosi for battery and sought significant monetary damages. As well, the Jets could have been sued on the basis that as Carroll's employer they are responsible for actions he commits in the course of his employment (this is called vicarious liability because the Jets didn't commit the wrong themselves).
It was also open to the NFL to discipline Alosi pursuant to the NFL Personal Conduct Policy. The Policy not only applies to players, but also to team employees and coaches. Here's the relevant section of the Policy:
All persons associated with the NFL are required to avoid “conduct detrimental to the integrity of and public confidence in the National Football League.” This requirement applies to players, coaches, other team employees, owners, game officials and all others privileged to work in the National Football League.
According to the Policy, the possible penalties include "fines, suspension, or banishment from the League".
It was therefore open to the NFL to kick Alosi out of the league (or to pressure the Jets to fire him). However, as noted on my Twitter account yesterday, banishment was unlikely unless Alosi had engaged in a pattern of misconduct (see Michael Vick).
While unlikely, banishment was still a possibility. Alosi's actions were so reprehensible, dangerous, misguided and downright dirty that his termination may have been on the table.
So getting off with a 3 game suspension plus playoffs is a result that Alosi should be pleased with. It could have been a lot worse.
If he had ended Carroll's career or seriously injured him, this could have become very messy very quickly, and could have ended up in court.
How Did This Happen in the First Place?
When such a uniquely disturbing and dirty incident occurs, we need to ask how this happened.
Miami linebacker Karlos Dansby blamed the incident on the culture fostered by head coach Rex Ryan.
"Alosi is just taking after the head coach, man. It all trickles downhill,” Dansby said. “That’s how I look at it, it trickles downhill. The head coach, he opened a can of worms over there and now he’s got to fix it.”
You have to wonder, though, if the same incident would have occurred if Alosi was standing in the same place and coaching under the exact same circumstances - but doing so for the Patriots. Something tells me that a Bill Belichick team culture would have made such an incident unlikely.
However, I'm not sure you can place the blame on Ryan or the Jets. Neither endorsed what Alosi did. Alosi, may in fact, be the only one to blame.
Glad the Carroll is doing ok. A serious injury would have been a real shame for this 23 year old defensive back from Florida.

Tuesday, November 30, 2010

No More Bee Nets – Call For Change to Color of NHL Protective Netting

It’s as senseless as Entertainment Tonight without Mary Hart. It’s more out of place than Kirk Cameron at Michael J. Fox’s birthday party. And it’s more intrusive than Kanye West at the Grammys.

What am I referring to?

The black protective netting behind NHL nets. The protective black netting reaches high above both ends of the ice behind the goalies protecting fans from errand pucks.

Protecting fans is essential. The nets must stay.

The problem? The netting is black and the ice is white. And oh yes - the tiny puck is black. The black netting is completely intrusive for fans sitting behind the nets. The players and ice are checkered, making it tough for fans to focus on the game and get a clear unobstructed view. Fans at every level are adversely affected.

A number of NHL teams have the black protective netting, including the Senators and Canadiens. Given that catching a Habs game in Montreal means getting a second mortgage, the black netting is enough to make a fan stay home and flip between the game and A Very Bo Bice Christmas Special.

I don’t know about you, but when I watch a hockey game at home I don’t turn the TV on, grab a beer and put a protective bee net over my face.

Some teams, however, get it. The Flyers, Kings and Leafs, for example, all have white protective netting. The difference in the fan experience is dramatically improved. The view is clear and seamless.

So here's the proposal: the NHL should mandate that every team put up white or translucent protective netting behind the nets, and permanently dispose of the black netting.

Don’t think it makes a difference? Here’s the same article (with a white background) behind the black netting:

Friday, November 12, 2010

Monday, November 1, 2010

NHL’s Failure to Disclose Injuries Bad For Business/Petition For Change

And so it continues. For the third straight season, NHL teams aren't disclosing the nature of injuries, and simply dividing the human body into two parts - upper and lower - when describing the nature of injuries.

Injuries are now shrouded in more mystery than an episode of Restaurant Makeover.

This is giving me an upper body injury (a headache).

This is a problem for the NHL. By maintaining a veil over player injuries, in part, undermines the NHL’s attempt to grab a larger market share as it prevents fans from engaging the league at a higher level. Fans don’t know what’s going on with their favourite players. As well fantasy players don’t have the necessary information they need to manage their teams effectively. And we all know how critical fantasy leagues are to generating interest in a league. Of course we can’t forget that gambling on games also generates interest in a league, and without good information, gamblers may shy away from hockey.

In an information age, this just doesn’t cut it. Accurate up-to-date information should be a given. It’s not and that’s a problem.

Mid-Body Injury? Really?

Some notables from this season so far:

Avs goalie Craig Anderson - lower body injury - out indefinitely
Drew Doughty - upper body injury - Injured Reserve
Marian Hossa - upper body injury - "out several weeks"
Freddy Meyer - mid-body injury - day to day

"Mid-body injury"? Does Meyer have a kidney stone? Is his gallbladder ok? Did he injure his hip while re-enacting some of his favourite moves from this week’s episode of Dancing With The Stars?

Rumour is that Anderson has torn his ACL but won’t need surgery. That may mean a partial tear. However, is it true? Maybe it’s a sprained MCL? ACL means he may be done (exception Johan Franzen); MCL means he may be back this season.

The NHL's failure to disclose the precise nature of injuries is driving fans crazy. This level secrecy makes about as much sense as casting Betty White as the next Jason Bourne (in all fairness, she would probably be good but I expect the intricate fight scenes would be taxing on her).

2008 - A New The Policy

In June 2008, NHL general managers voted unanimously in favor of limiting how much information was disclosed about player injuries. The amended policy stated that clubs could not falsify information or misrepresent a player's condition. Teams, however, were no longer required to disclose the specific nature of player injuries.

Here's the policy as passed:
"Clubs no longer are required to disclose the specific nature of player injuries. Clubs are, however, required to disclose that a player is expected to miss a game due to injury, or will not return to a game following an injury. Clubs are prohibited from providing untruthful information about the nature of a player injury or otherwise misrepresenting a player’s condition."
Reason for the Change: Protect the Players

NHL GMs said the change in policy was designed to help avoid having player injuries targeted by other players.

"The most important thing is, how can we protect the players' safety in all aspects," New Jersey Devils GM Lou Lamoriello told

Wings GM Ken Holland, who spearheaded the move for the new policy, shared his thoughts.

"My feeling was, come playoff time, I don't think that it's necessary for the fans to know every injury," said Holland. "We're trying to protect our players. There's competitive issues. I put on the table that we don't have to divulge every injury and it's really up to the club to handle injury disclosures as they see fit. Obviously, I got enough support from the GMs, and basically we were instructed by the league that we were now free to disclose injuries the way we wanted to disclose injuries."

Carolina Hurricanes GM Jim Rutherford said that fans don’t really seem to care to understand the extent of a player injury.

"I don't see why it's something that needs to be public information," Carolina Hurricanes GM Rutherford said. "From the fans' point of view, the player is either going to play or he's not going to play. If he's playing hurt, I don't think the team should have to tell the other team what his injury is. It's a delicate one."

The NHL Players' Association was also on board.

"Anything that helps with the safety of our players we fully endorse," Glenn Healy, the NHLPA's director of player affairs, wrote in an e-mail. "We have been presented with a safety issue and we agree with the steps to better protect our players."

NHL Deputy Commissioner Bill Daly said fans did not complain.

“While our revised policy has generated attention, and in some cases criticism, from our media, we have not received negative feedback directly from our fans.”

The media complained about the change in policy when first implemented. Those complaints did not come directly from the fans. True. However, it’s unclear how, if at all, the NHL canvassed fan reaction to the change in policy.

Brian Murphy of the St. Paul Pioneer-Press interviewed 10 players on the new policy and focused on whether players felt injuries were targeted by their peers. He reported that none of the 10 players interviewed were ever coached to attack a wounded player with the intent to further injure him. And none could recall being targeted because of a disclosed injury.

“I don’t get it,” veteran Andrew Brunette of the Wild told Murphy. “I’ve never seen, never heard anybody say, ‘Let’s get him’ because he’s injured.”

“I don’t buy into this thing about being targeted,” said coach Lindy Ruff, “If you’ve got a pulled groin, are you going to target a pulled muscle? There’s always been this mystery in our league. But most of the time, it’s a meaningless type of injury you don’t need to hide.”

It’s also reasonable to assume that players talk amongst themselves, and that word gets around on the nature of player injuries.
And if players wanted to target injuries, they could go after the upper or lower body of a player.

So while not a unanimous view, there is serious doubt that targeting existing injuries is a real threat.

Policy Inconsistent With NHL’s Marketing Push

The NHL is focusing on trying to create fans of the NHL and not just fans of one team.

The NFL has achieved this with great success. How? Gambling, of course, is one way. There is also the far more recent development of fantasy leagues, which taps into a large segment of the population that doesn’t engage in traditional gambling. Television and radio shows have NFL fantasy segments, and commentators can be heard often talking about their fantasy teams. What was previously an unwatchable Bengals/Browns matchup for fans who don’t gamble in the traditional sense is suddenly a game of interest for fantasy players who want to see how Peyton Hillis will fair or how well Carson Palmer will play.

Comparatively, the NFL provides full injury disclosure and issues a weekly injury report for all of us to conveniently keep track. It would seem a lot easier for players to target player injuries in football than hockey. That aside, the NFL presumably understands that knowledge promotes interest in its league.

If the NHL wants to grow interest in the league, promoting fantasy leagues is key. And do so effectively, full disclosure of the precise nature of injuries is required. Fans need to know how long a guy will be out, what type of injury he has and what his long term prospects are.

Apart from the fantasy angle, the NHL should want fans to be as engaged as possible by their teams and players. Part of that is letting fans know the extent of injuries to their favourite players.

Holland noted that the policy was inspired by finding a way to try and protect players during the playoffs. Somehow, though, the policy morphed into a full season restriction on injury disclosure.

How About A Compromise

As a compromise, the NHL should consider a policy whereby teams must disclose the precise nature of player injuries during the regular season, but come playoff time, it is open to teams not to disclose injuries with any kind of specificity. This seems in keeping with the original thrust behind the policy.

Sports is ultimately entertainment and is fan driven. The NFL gets it and the NHL should too. Yes - player welfare is important, but we have not been presented with reliable evidence supporting the position that player injuries are indeed targeted.

Enough is enough. Time for full disclosure.

And someone get me an aspirin for my splitting upper body injury.

If you have a moment, and agree, please sign the petition. Let’s be heard.

Thursday, October 28, 2010

Instant Classic: Texas Lawyer Files Motion to Delay Hearing So Can Go To Game 1

Darrell Cook, a Texas lawyer, filed an emergency motion to delay a pre-trial hearing so he could attend Wednesday's World Series game in San Francisco.

In an emergency motion, Cook says he has "very important baseball matters to attend to" and a postponement would ensure that "justice may be done." He explains in a footnote that justice would be Rangers pitcher Cliff Lee mowing down the San Francisco Giants' lineup.

The Judge granted his motion to continue and Cook went to Game 1.

To read this instant classic, which is filled with so many great lines, go to this link (you will love it):

Wednesday, October 27, 2010

Crime and Sports – a Romance Destined to Continue

By Matthew Zadro (lawyer, sports fan)

We’re all accustomed to hearing about off-ice/off-field criminal antics of our favourite athletes. In fact, the rogues gallery of professional sports has managed to cover an impressive gamut of criminal law, educating the public about the nuances of the major criminal offences in the process.

This badboy behaviour by our beloved gladiators is accepted and expected, so much so that some NFL fantasy leagues will let you pick up an additional player if someone on your roster misses time due to “injury/and or arrest”. Criminal acts committed by athletes are also often met with more leniency than you or I could expect if, say, we were accused of running a nationwide gambling ring out of New Jersey.

But in recent years, athletes’ tendency toward criminal behaviour has slowly crept onto the field/ice. At least that’s how courts and police seem to be portraying it. Check out a recent blog posting explaining what constitutes an assault in sport and listing examples of such in hockey alone.

Nothing New

Quasi-criminal violence in sports is nothing new, but society’s reduced tolerance for it is. Surely, if Rocket Richard were playing today and cracked a stick over Kerry Fraser’s melon, the Richard Riot might have been a Richard Jail-Break. Legend states that John Ferguson instructed Bobby Clarke to “tap” Valeri Kharlamov on the ankle during the ’72 Summit Series, which resulted in Clarke delivering a vicious slash and breaking the ankle of the star Russian. If true, Canadians may have to live with the fact that the most celebrated moment in Canadian history (and, to some, the pinnacle of our national existence, strangely more significant than the discovery of insulin or our contribution to victory on D-Day), was based on what would now surely be a criminal act were it to happen today on Canadian soil.

But the hits are getting harder and the injuries more frequent. Blame it on stronger equipment, residual effects of performance enhancing drugs, video games, or excessive violence in the cartoons shown in the dressing room, something is desensitizing players’ attitudes towards violence. Leagues and law enforcement agencies are wrestling with what to do next.

Player on Fan Crime – an Easy One

Criminal acts between athletes and fans are fairly simple to resolve – if Brett Favre harasses a team employee or if Canucks’ forward Rick Rypien slaps a fan, they will likely automatically face the same sanction at law as anyone else. Their employer (the league) can then respond with appropriate punitive measures reflecting the fact that the crime has tarnished the organization.

Player on Player Crime – Not So Easy

Crimes that are committed between players during play raise more difficult questions. Some argue that leagues must establish tougher sanctions (i.e. fines, suspensions) for those violent actions that would ordinarily be considered criminal. But there’s a few problems with that train of thought.

First of all, when is an offence between a player a “crime”? Different jurisdictions enforce the law differently. In Canada, the Criminal Code is applied uniformly across the country, meaning that a crime at the Bell Centre in Quebec is also a crime at the ACC in Ontario. However, the criminal laws of Canada do not exactly mirror those of the U.S. In fact, each state has its own set of criminal laws.

Imagine the McSorley – Brashear incident happened in Boston rather than Vancouver. The conduct that was considered by Vancouver police to be a criminal assault on the ice of the GM Place might not have met the standard of assault enforced by law officials in Boston. Perhaps an overly aggressive D.A. in Philadelphia may press charges for a head shot that makes the front page of the Philadelphia Inquirer but that might not have even been noticed, or satisfied the definition of criminal assault, in that hockey hotbed of Sunrise, Florida.

So, if the NHL imposes a standard whereby ANY player convicted of a criminal offence committed during a game receives additional punishment, those players that commit “crimes” in a more “punitive” jurisdiction would be unfairly penalized by the league in proportion to others that commit the same act in a more “tolerant” jurisdiction.

It’s not realistic to expect players to be well versed on the legal intricacies of each jurisdiction in which they play, (sometimes it’s surprising if these guys can point out the city in which they’re playing on a map), therefore one of two things would happen under this scenario: 1) players would be afraid to touch each other in fear of committing an assault in the city that they happen to be in; or, (and more likely) 2) the league’s rule would be ignored by players and likely not enforced by the league. Either way, the game is not improved and, in the latter and more likely scenario, the head shots/criminal acts continue.

Secondly, crimes committed on the ice/field are arguably “crimes of passion” and (with the odd exception) are not pre-meditated. In the heat of the battle, something happens that just makes Martin Havlat kick somebody with his skate. He can’t help it, and he likely didn’t plan to do it ahead of time. Studies have shown that, unlike property crimes (which people think through beforehand) these type of violent “spur of the moment” crimes can’t be deterred by any threat of punitive sanction. So, no matter what fine or suspension exists, with Marty, he won’t consider it at the time. If you step out of line, you might get sliced by the razor blade strapped to his foot. It’s the way things work.

Thirdly, in those instances where a violent act causes injury but criminal charges are not laid, how can a professional league determine if the act merits additional sanction? Where is the line when determining if an act was in excess of the “accepted level of risk” that the player/victim consents to when he signs up to play? This is an issue that has perplexed judges of the highest courts….is Gary Bettman really in a position to make this determination? When offenders’ careers and livelihoods are on the line, such decisions cannot be arbitrary or based on the amount of media attention thrust upon an event. McSorley’s arrest effectively ended his career. Would the same result have occurred without the scrutiny created by the Vancouver media?

Is Don Cherry Right - Again?

Players should be warned. Violent criminal activity within professional leagues will continue and each player has a possibility of being either a victim or an offender. The increased number of cameras at every sports venue mean that nary a criminal act will go unnoticed. The public will continue to pressure law enforcement agencies to apply criminal sanctions to violent acts (especially when the offender is a member of the visiting team) and any attempt to control the violence by the league will be either unfair or ineffective.

Is Don Cherry right? Have improvements in equipment given players a sense of recklessness and invulnerability that has led to what may be considered criminal acts throughout the major sports leagues? Surely the leagues can’t mandate a return to inferior padding in order to restore a sense of vulnerability and respect amongst players.

However, aside from giving Greg Devorksi a badge and a gun, it would appear that someone has to come up with a real solution for violent crimes occurring within sports, because anything proposed thus far has not and will not work.

Tuesday, October 26, 2010

Sports Fans Coaltion Fighting For Rights of Fans

There's a new advocate in town: Sports Fans Coalition. It's a non-profit interest group formed to organize sports fans and represent their interests. 

The Board is comprised of representatives from sports, politics, journalism, consumer advocacy, technology, business, and law. Board members include President Clinton's Deputy Staff Secretary David Goodfriend and President George W. Bush's as Deputy Assistant Brad Blakeman.

They have spoken out against issues like television blackouts, particularly in tax funded stadiums, and the high cost of going to games.

The most recent posting relates to a group called Stop Charger Blackouts, which is actively trying to raise money to buy up remaining tickets so that home games will be available on television.

(If an NFL game is not sold out 72 hours prior to kickoff, league rules mandate that the game be blacked out in the local market. Last season, the NFL blacked out 22 games, which represented a 144% increase over the previous year. This is a long standing policy and one Goodell has indicated will not be changed (read more on NFL blackouts here).

Check out this interesting website. It's located at

Team 990: Talking Legal Side of Favre & Rypien with Tony Marinaro

Click on the links below to listen to my conversation with Tony Marinaro from the Team 990 (Montreal) as we talk Brett Favre, Rick Rypien and the sadness I felt after sitting Darren McFadden in my football pool this week:

Monday, October 25, 2010

Radio Clip: Rypien & Favre

Listen to my conversation with Steve Lloyd and Jason York of the Healthy Scratches where we talk about the Rypien suspension and the Brett Favre situation:

Rypien Goes Wild & Assault/Battery

The NHL has suspended Vancouver Canuck forward Rick Rypen for 6 games after he assaulted Wild fan, James Engquist.

Six games misses the mark. You don't assault a fan. Period. With or without a shoe, Mike Millbury

The NHL should have suspended Rypien for 25 games - at minimum. Fundamentally, by not imposing a more serious sanction on Rypien, there is a concern that the NHL is not leading by example, and has failed to declare unequivocally that assault, on a fan or otherwise, is wrong. We need to hold ourselves to a high standard, and cases like this one provide a good opportunity to remind ourselves of the standards we aspire to attain.

Rypien Goes Wild

Engquist and his brother Peter were at the game courtesy of a gift from their father. They found themselves sitting directly behind the Vancouver Canucks' bench and along the runway leading to the locker room.

Rypien and Minnesota’s Brad Staubitz, who fought in the opening period, were about to square off in the second period before being separated by the linesmen in front of the Wild bench.

As Rypien, who was assessed a double minor for roughing and a 10-minute misconduct, was pulled by linesman Don Henderson toward the Vancouver bench, he appeared to push the official. On his way down the tunnel to the dressing room, Rypien grabbed and pushed Engquist, who was sitting by the railing. Rypien was pulled off Engquist by a Canucks trainer and coach Alain Vigneault.

NHL’s Reaction & Understanding Assault & Battery

After the NHL suspended Rypien for 6 games, Comminssioner Gary Bettman issued an apology and invited the aggrieved Engquist out for dinner and a game.

What's for dessert you ask? Probably a full release.

Why? Because this case isn’t done just yet. Yes, the NHL has suspended Rypien. However, the suspension does not preclude Engquist from commencing a civil action against Rypien, the Canucks and NHL alleging assault and battery.

How does assault and battery work? Here's the legal breakdown:

Assault and battery are typically components of a single offense. In civil context, "assault" and "battery" are separate, with an assault being an act which creates fear of an imminent harm, and battery being the unlawful touching.

So if there is a reasonable belief you are going to be harmed, that's assault. If contact is made, we have battery. That's why they are generally grouped together when a person has been physically harmed.

It's a bit counterintuitive because we understand "assault" to mean actual contact. In the civil context, though, it doesn't mean that. However, on the criminal side, assault actually means contact. Remember, the civil and criminal contexts are two separate streams (by way of example, O.J. beat the criminal charges but lost the civil case).

In this case, the video evidence pretty conclusively supports that assault and battery did occur.

Does Rypien have a defence? In cases of assault and battery, there is the defence of provocation. That’s where the conduct of the plaintiff must have been such as to cause the defendant to lose his power of self-control.

It’s generally a pretty tough defence to establish, as courts don’t want to be seen as excusing battery. In this case, Rypien doesn’t have much of a chance of successfully relying on provocation – no matter what Engquist said (it’s rumoured he said “way to be professional”). Fans heckle and taunt players. That’s the way it’s always been and that’s the way it will always be.

If a player could rely on provocation in scenarios such as this one, next thing you’ll see are players, led by General Artest, charging into the stands on a regular basis laying a beating on fans who said things that were not particularly polite or kind.

As for money, if Engquist can't show injury, pain and suffering, etc., he may still be entitled to a modest sum of money (this is referred to as "nominal damages").

One more thing. Engquist seems to be getting some heat for wanting to explore his legal options. He was assaulted. His reaction is not unreasonable. For me at least, I know I wouldn’t be too pleased if a player went after me or my girlfriend at a game (not in that order).

As for what will happen next, the parties may look to settle the matter and let this case go quietly into the night.