Tuesday, December 27, 2011

Habs Playing Senators Tonight - A Time To Reflect On Perry Pearn

Quite clearly, the firing of Perry Pearn was justified. Since he was fired, no other member of the Canadiens coaching staff has been let go. As well, the team hasn't lost since he was dismissed. So yes - it made perfect sense.

Frankly, I blame Perry Pearn for all the ills of society. Here are some things that are Pearn's fault (#duh):

1) World hunger
2) Poverty
3) War
4) Language Issues
5) Ryan Reynold's marriage to Scarlett Johansson not working out
6) Charlie Sheen
7) Conan O'Brien being ousted from NBC
8) World War II
9) Destiny's Child not staying together
10) Scotty McCreery caught lip-synching 
11) Sinead O’Connor's 16 day marriage
12) The Italian Economy

Pearn makes me so mad. I wish the Habs could fire him again.

So deserved. Damn you Perry. Damn you.

Radio Clip - Team 1260: Curling Is Darts For Janitors

We cover the Milbury case. Before that, however, we hit Festivus, cricket and curling. On the curling comment - sorry.

Tuesday, December 20, 2011

Monday, December 19, 2011

A Legal Look At The Milbury Case

Mike Milbury is facing a criminal charge of assault and battery upon a child. Under this Massachusetts law, a person found guilty of this crime can face up to 5 years in prison.  As per reports, he may also be charged with threatening to commit a crime and disorderly conduct.

A "child" under this law is "any person under fourteen years of age".

I have focussed on Massachusetts law because the alleged crime occurred in that state (specifically in Brookline). 

Milbury has not been formally charged, so those reports were wrong. The boy wasn't hurt according to reports.

Brookline has indicated that there is a video of the incident, which will shed light on the merits of a possible case against Milbury. 

What happened here? Not clear. On the one hand, the mother of the player allegedly assaulted has said that Milbury grabbed, threatened and shook her son. She also alleges that Milbury picked her son up by his shirt and was screaming and swearing at him.

Milbury says that he never struck or assaulted the player, but did grab him by his uniform to cut short the on-ice scrum that he contends was a product of the persistent bullying his son, Jake, faced. Milbury denied an assault "of any kind" in a statement from his lawyer, Daniel Rabinovitz

According to his lawyer, Milbury simply "intervened in an altercation between his son and an opposing player...No one was struck, no one was injured and no one was threatened."

Here's more from an article at Boston.com:

Needham resident Peter Weiner, whose son Cole is a goalie on Jake’s team, the Boch Blazers, in a phone interview yesterday afternoon confirmed Milbury’s account. Weiner said he was there throughout the night, witnessed Jake "being needled pretty much all game" and lauded Milbury for helping to restrain the skirmishing players.
"All he did was stop the kids. And on top of it, he booted his own kid off the ice.’’ 
Weiner, when asked if Milbury used excessive force to restrain the Blackhawks player or otherwise punched, struck, kicked, or physically abused the 12-year-old, added, "He did not ..... he absolutely did not, and that’s 100 percent accurate. All he did was separate two kids, and I saw his own boy leave the ice in tears."
As per the Boston.com article, Milbury "was acting as both a parent defending his bullied child and as an assistant coach concerned about the safety of both players when he helped defuse the dust-up between his son".

Jack Hauswirth, the head coach on Milbury’s team, restrained Milbury’s child.

Assault Charge

The charge of assault against a minor may be tough to make out if there was no bodily harm inflicted on the boy (remember this is a serious crime with up to 5 years in prison). Still, we need to wait and see.

Threatening To Commit A Crime

With respect to the threatening to commit a crime (which is a common charge in the state of Massachusetts), it must basically be shown that there was a legitimate fear the crime of assault would be committed.

Massachusetts laws permit punishing someone who is convicted of threatening to commit a crime with a $100.00 fine and/or up to 6 months in jail. 

Disorderly Conduct

Under Massachusetts law, if you cause a disturbance which creates a public hazard, and serves no legitimate purpose, you can be charged with a disorderly person offense, also known as disorderly conduct.

Engaging in fighting or threatening, violent or tumultuous behavior can constitute disorderly conduct.

It's punishable by up to 6 months in jail.

It's tough to know what will happen here. Again, the video will have probative value. However, at first glance, working the peacemaker angle may help Milbury.

It's highly unlikely that Milbury will go to jail. 

The damage may have already been done. He's off CBC and NBC for now. Given recent events, there is little tolerance for any crime against minors, and for that reason Milbury's disappearance from TV was not surprise.

Cue Euphemism: Sandusky’s Legal Team Has Engaged In A Series of Tactical Errors

Jerry Sandusky’s legal team has committed a series of tactical errors. That’s putting it lightly. What we have seen boggles the mind.

Here’s some of what has come out of Sandusky’s legal camp:

Bob Costas Interview

For Sandusky, this interview was an absolute horror show. In it, he admitted to showering naked with children. When asked if he was sexually attracted to boys, he was silent for 17 seconds, then proceeded to provide an evasive answer saying he enjoyed their company. A light (albeit dim) may have gone on in Sandusky’s head while answering that question, and he concluded his answer by stating that he was not attracted to children.

That interview will be featured at the criminal trial and at every single civil trial. It’s a pretty damning interview and is very prejudicial to his case.

Common sense would dictate that this is not the type of case where such an interview is appropriate, nor would it sway public sentiment (which apparently was the goal).

Not sure why his lawyers ever let him do the interview.

Language, Language, Language

Some of the things Sandusky’s lawyer, Joe Amendola, has said, makes me shake my head.

Huh?: Part 1

In defending his client, he’s directed people to telephone 1-800-reality (which by the way resolves to a telephone sex service for gay men).

Huh?: Part 2

He attacked the victims, saying their motivation was financial:

"What greater motivation could there be than money? I've seen money break up families. ... So what greater motivation could there be than the financial gain that could come out of this by saying, 'I'm a victim?'"

Huh?: Part 3

On his involvement in this case, he said “I don't want to be here. I have a very active practice in a small county.”

Huh?: Part 4

On displays of affection, "I grew up in an Italian family where we all hugged and kissed everybody. Grandparents patted our butts. It wasn't about sex."

These statements are profoundly inappropriate and disappointing. Even if you are a defence lawyer, there is still a certain level of decorum, respect and class you need to show. Very little, if anything can be gained by making these statements.

Don’t get me started on Sandusky saying he will fight “fight for four quarters”. A football analogy is completely inappropriate.

Guilty Plea

Early on, Amendola said that he would consider speaking to his client about a guilty plea if more charges materialized.

"That could happen if more allegations come forth and Jerry gets to the point where he realized fighting against more than the original allegations might be a real uphill battle.”

Afterwards, presumably figuring out his major gaffe, he said that a guilty plea was never being considered. He added that the topic of a guilty plea came up as a “what-if” question about potential additional charges being filed.

This is a very tough one to understand. In a case like this, under no circumstances should a lawyer suggest his client is open to pleading guilty. Period.

Waiving Preliminary Hearing

This one left me a bit on the speechless side.

At the preliminary hearing, the prosecution (government) has to show probable cause for the case to proceed to trial. In this case, they would have shown it. No question about that.

The hearing would have been invaluable for Sandusky’s defence team. The victims would have gone on the record and testified. That would have allowed the defence team to gain a better appreciation of the case against Sandusky.

As well, and very important, at trial Sandusky’s lawyers could then cross examine the victims, and relying on the earlier testimony from the preliminary hearing, look to catch them in contradictions, inconsistent statements or even lies.

Don’t forget, telling the same story twice is tough – even when you are telling the truth. It gets more difficult when the details are embarrassing and painful. It gets even more difficult if you are telling a story that occurred years ago.

Amendola perhaps wanted to avoid a media circus. However, no excuse - this was a massive error.

New Defence: Teaching Hygiene

Sandusky’s new lawyer, Karl Rominger, has said that when Sandusky was naked in the showers with boys, he was teaching them hygiene. The reasoning is that these kids are from disadvantaged or dysfunctional backgrounds and don’t know how to clean themselves.

Here’s Rominger’s statement:

"Some of these kids don't have basic hygiene skills. Teaching a person to shower at the age of 12 or 14 sounds strange to some people, but people who work with troubled youth will tell you there are a lot of juvenile delinquents and people who are dependent who have to be taught basic life skills, like how to put soap on their body."

This defence is not only intellectually offensive, but it also reminds us that Sandusky has showered naked with boys. There is no value that can be derived from this statement.

Tipping Their Hand: Defence Strategy

Amendola has attacked McQueary’s credibility. There is also the hygiene defence. Amdendola should not be revealing his strategy. The prosecution now has some confirmation of Amendola’s strategy and can take a closer look at those parts of the case.

Overall, it has been one miscue after another. The evidence against Sandusky may well be overwhelming. However, that should not preclude a carefully planned defence.

If you are wondering whether Sandusky could have a conviction overturned on appeal on the basis that his lawyers fell short – the answer is highly unlikely. A judge would need to find that the outcome would be different if Sandusky had better lawyers. Also relevant is that Sandusky would be seen as a sophisticated defendant that could make his own decisions. Finally, his lawyers may still do an acceptable job at trial – which is what matters.

Friday, December 16, 2011

Baron Davis and the New NBA Amnesty Clause

By Graydon Ebert

The Cleveland Cavaliers announced that they would be waiving Baron Davis under the amnesty provision of the new NBA collective bargaining agreement prior to Friday’s deadline. Recall that under the newly agreed upon CBA, each NBA team is allowed to waive one player during the lifetime of the CBA, and that player’s contract would not count against the team’s salary cap or luxury tax figure (though it does still count when calculating whether a team has reached the salary floor.

Davis, who has a herniated disc in his back and is expected to miss 8-10 weeks, has $30 million left on his contract, of which $27 million is guaranteed. The Cavs are still obligated to pay Davis the full amount of guaranteed salary owed to him, unless he is selected in an amnesty waiver auction. Once Davis is released, he will be made available to all teams that are currently under the salary cap via a blind auction. These teams are free to make a bid on Davis’ services, with Davis going to the highest bidder. The team that won will be required to pay Davis the amount of their bid and this amount will be subtracted from the amount of guaranteed salary that the Cavs have to pay Davis. For example, if a team bid $8 million, they would be required to pay Davis this amount, and the Cavs would still owe him $19 million. Should no team make a bid for Davis after 48 hours, he will become a free agent able to sign with any team, and the Cavs will have to pay him the full $27 million he is guaranteed.

Wednesday, December 14, 2011

Radio Clip - CJME: Growing Pains, Fighting in the NHL & Braun

Click here to listen to my radio clip with Drew Remenda from CJME. As always, Drew leads a very interesting and lively discussion. While he's not a lawyer, I would still consider opening shop with him. He also surprises me at the start with a great song - and ends in the same dramatic fashion.

If you need a 10 minute time out, and want to laugh a bit, this is the clip for that.

Rogers/Bell Deal: Is Second Team in Toronto Likely?

by Graydon Ebert

This has been a hot button topic in the days following the deal, with many wondering if Rogers and Bell would strongly oppose a new team in Toronto to protect their new investment. Others have suggested that given the large expansion fee that a second team in Toronto would generate for the NHL, the league might require Rogers and Bell to allow the possibility of a second team or it would not approve the sale. 

It is highly unlikely that the NHL will not approve this deal, regardless of Rogers’ and Bell’s position on a second NHL team in Toronto. Rogers and Bell are influential in the sports business and business generally in Canada and the NHL will not want to negatively impact its relationship with these companies, even for the sizable expansion fee it could get for a second team.

As for whether the acquisition of MLSE by Rogers and Bell makes a second team more or less likely it is not yet clear. 

Rogers and Bell may be protective of their new investment and try to prevent any competition in the Toronto market. However, when you think about the reason MLSE is valuable to Rogers and Bell, there is a strong argument to be made that they would be receptive to a second team in Toronto under the right circumstances. 

Recall that Rogers and Bell valued MLSE so highly because of its premium sports broadcasting content that they could distribute on their media platforms. A second team in Toronto would similarly have a block of premium sports content up for grabs, which undoubtedly would be of interest to both Rogers and Bell. So, it may actually make sense for Rogers and Bell to allow the possibility of a second NHL team in Toronto. They could extract a sizable territorial rights fee from the NHL to allow the team and could also ensure the broadcasting rights to the new team at a price less than what they might have to pay on the open market.

There is precedent for this sort of action. When the Montreal Expos were going to be moved to Washington to become the Nationals, they were within the territorial area of the Baltimore Orioles. At first, the Orioles and owner Peter Angelos were against a team moving to Washington. However, they allowed the move to happen. Why? In return for allowing the Nationals to move to Washington, they earned the right to broadcast Nationals games on their Mid-Atlantic Sports Network (MASN) and on the radio. The Orioles own 90% of MASN and when it was set up, Major League Baseball paid the Orioles $75 million for 10% of the network. This stake is now owned by the Nationals, who also receive a below market value fee for their broadcast rights.

Why wouldn’t Rogers and Bell do something like this? If the value is in the content, then adding the content of an additional team to their inventory at a reasonable price should be more attractive to Rogers and Bell. The concern that a second team would hurt the value of the Leafs brand is probably unwarranted. Prestigious sports brands do not seem to be negatively impacted by the introduction of new teams in their market. The Lakers aren’t hurt by the Clippers. The Knicks aren’t hurt by the Nets. The Rangers aren’t hurt by the Devils or Islanders. The Yankees aren’t hurt by the Mets. The advantage that a prestigious team in terms of fan interest has over the new team in its market is significant. This would undoubtedly be the case should a second team join the Leafs in Toronto.

Monday, December 12, 2011

Understanding the Deal: Bell & Rogers Join Forces To Buy MLSE

In another special to Offside, Graydon Ebert takes a look at the Bell and Rogers acquisition of MLSE.

You will not be disappointed by this article. In my humble, Egyptian opinion, it is outstanding. Graydon hits all the major issues, including the marriage of content and distribution, whether Bell and Rogers will be able to work together, if fans will see an increase in prices and whether we should expect the teams to get better or worse.

If you haven't read it yet - check out Graydon's fantastic common sense review of the MLB CBA.

Thursday, December 8, 2011

Radio Clip - Team 1260: Boogard and Legal Side of Fighting

Click here to listen to my segment with the boys at Team 1260 (that would be Dustin and Kyle). We start off with the Golden Girls, speeding dating with old people and then break away to chat the legal side of fighting in hockey.

Wednesday, December 7, 2011

A Review: Second Sandusky Grand Jury Report - Victims 9 and 10

Click here to read the second Sandusky Grand Jury report, this one outlining Jerry Sandusky's alleged sexual abuse of two new victims identified simply as Victims 9 and 10.

Sandusky was arrested today on new charges stemming from the new accusers, which include 4 counts of involuntary deviate sexual intercourse and 2 counts of unlawful contact with a minor.

As with the other cases, both accusers are from Second Mile. Victim 9 alleges the abuse started when he was about 11 years old. Sandusky would shower him with gifts and take him to Penn State football games.

Here are some more details from the report:

Victim 9

1) Sandusky started "out with hugging, rubbing, cuddling and tickling" the victim. The contact "escalated to sexual assaults".

2) Victim 9 slept in Sandusky's basement and was told to stay there. He ate "meals in the basement and the food was brought to him by Sandusky".

3) Sandusky's wife "never" came down to the basement when he was there.

4) Sandusky forced him "to perform oral sex on numerous occasions. Sandusky also attempted to engage in anal penetration..on at least 16 occasions and at times did penetrate him. The victim testified that on at least one occasion he screamed for help, knowing that Sandusky's wife was upstairs, but no one ever came to help".

5) They would spend time together in a hotel pool in the State College area. During this time, Sandusky would expose himself and perform oral sex on the boy.

6) Sandusky told him to keep their relationship a secret.

Victim 10

1) Victim 10 became involved with Second Mile when he was 10. He was a troubled child, and on the recommendation of a counsellor, he joined Second Mile.

2) He never spent the night at Sandusky's but when he was there, he spent it in the basement.

3) They would wrestle, and during one such event, Sandusky "pulled the boy's gym shorts down and performed oral sex on him". Thereafter, this was repeated.

4) The boy performed oral sex on Sandusky when asked to do so.

5) Sandusky bought the boy "clothes and shoes" and "frequently told the boy that he loved him".

Sandusky's basement is a recurring theme in the victim accounts.

Bail has been set at $250,000.00 by Judge Robert E. Scott. This is $150,000.00 more than the bail set at the first hearing. The prosecution this time wanted bail set at 1 million dollars, but the Judge elected for a lower amount.

Radio Clip - Team 1260 - NBA, Sandusky & Fine

Click here to listen to my radio segment with the boys at the Team 1260 (that would be Dustin and Kyle - or something close to that). After we're done making jokes for 10 minutes, we hit the business and law of sports.

Understanding the Statute of Limitations: Alleged Bernie Fine Victims Found "Credible" But No Charges

Today, District Attorney William J. Fitzpatrick said that former Syracuse assistant coach Bernie Fine would not be charged with child sexual abuse. The reason - the accusers Bobby Davis and his stepbrother Mike Lang ran out of time. 

While not saying whether Fine was indeed guilty of the crimes, Fitzpatrick did characterize the allegations as credible.

"It is not my place to pronounce Bernie Fine guilty of anything. It is my place, however, especially in light of recent events, to affirm that these two victims are believable" Fitzpatrick said.

Limitation Period

In the state of New York, the statute of limitations for a sex act against a child expires 5 years after the child's18th birthday. Davis is now 39 years old and Lang is 45.

However, there is no statute of limitations if the sexual abuse is severe enough to constitute sexual conduct against a child in the first degree. To qualify as first degree abuse as per the statute, there would need to be "sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact".

It seemed, however, based upon the taped telephone call between Laurie Fine and Bobby Davis, as well as Davis' interview with ESPN, that there may not have been first degree abuse.

One more point - the statute of limitations can be different from state to state. So if abuse occurred in another state, you would need to look at that state's statute of limitations. For example, in Pennsylvania, a victim has until his or her 50th birthday to file charges.

To say the Fine is out of the woods is premature. If more victims come forward or if abuse occurred in another state, Fine could be pursued.

Thursday, December 1, 2011

Sensory Overload: Live Performance Of Growing Pains Theme Song Is Pure Joy

This video clip is perfect.

It's a lot of things. It's Eric Carmen's hair. It's Louise Mandrell's prom dress. It's the Miami Vice outfit. It's their intense singing styles. It's the way they abruptly pull away from the mics. It's the overacting. It's the song. It's the shadows also having fun. It's the fact that it looks like it was filmed in my garage (although I don't have garage).

It's really everything all at once. 

It's pure joy.

Here it is - the theme song to Growing Pains, As Long As We've Got Each Other, performed live:

Understanding the Civil Lawsuit Against Sandusky, Penn State and Second Mile


On November 30, 2011, an unnamed Plaintiff filed a civil lawsuit against Jerry Sandusky alleging sexual abuse. Also named as Defendants in the lawsuit are Penn State and Second Mile. Read the Complaint here.

The lawsuit alleges that Sandusky sexually abused the Plaintiff “over one hundred times” between 1992 and 1996. The abuse is alleged to have commenced when the Plaintiff was 10 years old.

The Plaintiff was introduced to Sandusky when he participated in a Second Mile program. At that point, Sandusky “recruited, groomed and coerced the Plaintiff, showering him with gifts, travel and privileges”.

The alleged sexual abuse occurred 
“on multiple occasions and at multiple locations within Pennsylvania and outside of Pennsylvania; in the facilities of Penn State, and particularly the football coach’s locker room; at times within Philadelphia County; at facilities out of state connected with a Penn State bow game; and at the Sandusky home”.
The Complaint also alleges that “Sandusky threatened the Plaintiff and threatened to harm the Plaintiff’s family if the Plaintiff told anyone” of the abuse. This threat “silenced” the Plaintiff.

Details were not provided as to the specific sexual harm inflicted on the Plaintiff.

Anonymous Plaintiff

On page 4 for of the Complaint at paragraph 1, the Complaint provides that the “identity of this Plaintiff is not pleaded…in order to protect the identity of the Plaintiff because the Plaintiff was a victim of sex crimes when the Plaintiff was a minor” and that the identity will “be made known to the Defendants by separate communication”.

Anonymity is permitted where it is justified to protect the plaintiff from the public disclosure of matters of utmost intimacy.

This is not something, however, that Courts take lightly. A fundamental legal principle is the right of the public to access court documents and proceedings.

Expect the identity to the Plaintiff to remain concealed unless something changes.

Penn State Liability

An employer can be liable for the acts committed by an employee in the course of his employment. This principle is called vicarious liability. 

The Plaintiff would argue that at the time of the incidents (1992 to 1996), Sandusky was an employee, and on this basis, Penn State should be vicariously liable. 

Penn State may argue Sandusky was not discharging his employee obligations at the time or acting in the course of his employment. For that reason, Penn State may argue, it should not be vicariously liable for Sandusky's wrongdoings. The fact that the alleged harm may have occurred on its campus is insufficient to establish vicarious liability.

The abuse is alleged to have occurred between 1992 and 1996. The Complaint does go through a number of the alleged incidents found in the summary of the grand jury testimony. One such incident triggered a police investigation 1998. Presumably, this information has been pled to demonstrate a pattern of abusive conduct on the part of Sandusky. 

There is also the allegation that Penn State was negligent in that it owed a duty of care to the Plaintiff given that it knew or ought to have known of Sandusky's behavior and that it failed to discharge that duty (i.e., take steps to safeguard kids and remove Sandusky). According to the summary of the grand jury testimony, it is alleged that Sandusky engaged in sexual abuse with other victims in 1996 and before: Victim 4 (1996), Victim 5 (1995) and Victim 7 (1994).

Remember up until a couple of months ago, and despite retiring in 1999, Sandusky still had a Penn State office, email, telephone number and faculty listing, while also enjoying the title of assistant professor emeritus of physical education. So not only did Penn State keep him around, it also legitimized Sandusky on and off campus.

Negligence is the big claim here.

In response, Penn State may argue that in 1996 it was not aware of Sandusky's behavior, and simply by virtue of harm being inflicted on campus does not make it liable. Basically, Penn State was not negligent because it didn't know what was going on or there was not a reasonable basis upon which to believe something might be going on.

The Plaintiff also alleges that Sandusky “had been molesting children since at least the 1970s”. If the Plaintiff can substantiate this claim by way of evidence, that will assist its case against Penn State. For now, however, the allegation that Sandusky has been molesting children since the 1970s is just that – an allegation. Sandusky’s lawyer may ask for more details on this allegation.

The same is alleged against Second Mile, of which Sandusky was the founder and principal.

Of the 3 Defendants, Penn State will have the deepest pockets – that is the ability to pay. For this reason, expect Penn State to be named in subsequent civil suits. If Sandusky is found to be chiefly responsible, there would still be the issue of his ability to pay - particularly if he is hit with multiple lawsuits. So a plaintiff's best bet to recover money might be through Penn State.

Possible Federal & State Investigations

The Complaint alleges, in part, that the Plaintiff was sexually abused "outside of Pennsylvania". It's a crime to take a minor across state lines to commit a sex act. That could result in a federal investigation. As well, the state where the acts occurred could also go after Sandusky.


Much will turn on the evidence presented. It's still early. Penn State, I expect, will try and get this settled if it sees some merit in the case. Even it if believes it has an arguable case, it may still look to settlement to dispose of the matter. Sandusky, however, may contest the matter.

Wednesday, November 30, 2011

Radio Clip - Team 1200: ESPN's Legal vs. Moral Obligation; New Sandusky Civil Suit

Click here to listen to my radio clip with Steve Lloyd and Jason York from the Healthy Scratches. We talk about ESPN's legal versus moral obligation and the first civil claim filed against Sandusky.

Copy of Civil Lawsuit Against Sandusky, Penn State and Second Mile

The first civil lawsuit (sue for money) has been filed against Jerry Sandusky. Also named as Defendants are Penn State and the Second Mile Foundation.

The lawsuit identifies the Plaintiff, now 29 years old, only as John Doe. It claims Sandusky abused the boy from 1992 to 1996 at the coach's State College home, in a Penn State locker room, on trips to Philadelphia and at a bowl game. 

The Plaintiff also alleges that Sandusky sexually abused him more than 100 times from the ages of 10 to 14, and threatened to harm him and his family if he told anyone.

I will report back tonight when I have reviewed the civil claim.

Here is a copy of the civil claim (or complaint) filed against Sandusky, Penn State and Second Mile.

Tuesday, November 29, 2011

ESPN's Legal Obligation to Report Davis/Fine Phone Call

A lot has been made recently over ESPN's failure to report to the authorities the taped phone call between Laurie Fine and Bobby Davis. In the call, Fine essentially says she was aware of her husband's inappropriate behavior with Davis.

Did ESPN have a legal obligation to report the phone call to authorities?

The answer is no. At law, there was not a positive obligation on ESPN provide information to authorities in cases like this. Yes - it is true that academic institutions have that obligation. However, it does not extend to ESPN.

Also remember this - ESPN has said that it could not get the story corroborated. If it had released the story, and it proved untrue, ESPN would have opened itself up to a claim for defamation (libel). So even if it tried to do the right thing, it could have backfired.

If there is blame to go around (just allegations at this point), I can think of a number of other people that should shoulder it.

Saturday, November 26, 2011

Big Key To New NBA Deal: Achieving Competitive Balance Through Team Revenue Sharing & Luxury Tax

The NBA suffers from a lack of competitive balance. It's for that reason that a lot of owners from small markets, including their de facto leader Bobcats owner Michael Jordan, wanted the players share of revenue to drop below 50%.

The past 4 NBA champions were large market teams with some of the league's biggest payrolls: Dallas Mavericks, Los Angeles Lakers (twice) and Boston Celtics.

By way of comparison, in the NFL four of the last five Super Bowl champs were from some of the league's smallest markets: Indianapolis, Pittsburgh, New Orleans and Green Bay.

How has the NFL enjoyed an unprecedented level of parity? A big part is revenue sharing.

As part of its robust centralized revenue model, the NFL shares about 80% all revenue from media deals, national sponsorships and merchandise sales.

Economic parity exists in the NFL because teams do not deviate widely in their revenues or costs. About 60% of league revenue is nationally generated and split evenly, with only a 40% window for teams to differentiate their top lines.

As far as gate receipts, the NFL has a 60/40 policy whereby the home team keeps 60% of gate receipts and gives 40% of receipts to a pool, which is then distributed evenly among the 32 teams. The NFL has the most comprehensive system of shared gate receipts.

What about the NBA you ask? NBA teams share money from national TV contracts and luxury tax funds. They don't share gate receipts. While NBA teams share equally in the league’s national TV rights fees, teams keep 100% of their local television revenues.

Here are some numbers for your NBA consideration:

Television Revenue

The New Orleans Hornets make $8 million/year off their TV deal, while the Sacramento Kings make $11 million/year and the Portland Trail Blazers make $12 million/year. Portland's deal is worth $120 million over 10 years. 

In stark contrast, the Lakers TV deal is worth $3 billion over 20 years - or $150 a year. That means that one year of the Lakers deal is worth $30 million more than Portland's entire 10 year deal.

Ticket Revenue

The Lakers generate about $1.9 million per game, while the Grizzlies ($322,105) TWolves ($350,118) and Bucks ($415,450) generate a lot less.

For the Lakers, that ends up being $82,000,000 in ticket revenue, which is well ahead of the other 3 teams (Grizzlies - $13,202,000; TWolves - $14,350,000; Bucks - $17,015,000).

In fact, the Lakers pull in more ticket revenue than all 3 teams combined.

Remember this ticket and television revenue is not shared. So with a luxury cap that was not sufficiently punitive in nature, teams weren't too concerned about spending the money they had. That in turn meant that the stability of the NBA and competitive balance were undermined.

So if fans from small markets are to feel hopeful at the start of the season, a revenue sharing model among teams that makes sense is key. That and of course a luxury tax system that will dramatically curb overspending.

Competitive Balance Versus Parity

One more thing - note I have used the term "competitive balance" and not "parity". There is a difference between the two.

Competitive balance is a structural framework that creates an equal playing field under which all teams can compete. So it still means good management is important.

On the flip side, parity refers to an outcome where there is little difference between the success of the best and worst teams. So the focus is results and not the framework designed to yield those results.

Too much parity is bad and can make things boring for fans. If all teams have pretty much the same record, then fans take naps. So it's important to promote competitive balance but not to the point where it results in absolute parity.

Predictably NBA Settles On New CBA & Next Steps

News broke early Saturday that the players and the NBA have agreed to a new deal. Technically, since the players disclaimed interest (or blew up the Union), these were settlement discussions and not CBA negotiations.

Even in the face of the Union disclaiming interest, this case had a profile for settlement. The sides were a couple of percentage points aparts. Bridging that gap by itself wasn't going to do it though (ie, meeting in the middle). There were also system issues that needed to be addressed as well, such as free agency rules and the luxury tax.

The key was striking a comfortable balance between revenue sharing and system issues. Once that was accomplished, we would have a deal. We haven't seen details of deal - however that is likely the scenario.

This is why I put a picture of a see saw on this blog a few weeks ago. Strike that balance and we have basketball again.

As I've said on Offside for some time, these were fairly obvious areas of compromise and that meant likely settlement.

Remember this: once and only once has a North American lost an entire season to a labor disruption and that was the NHL in 2005.

It wasn't going to happen here - not given how close the parties were to settling.

A report will follow on the key points of the new agreement once the terms are made public. I suspect we will be looking at a 50-50 split but we shall see. That will help the players safe face.

Next steps:

1) Sides will hold press conference, which will be filled with tired smiles and hugs.

2) Players will be informed of deal and then will vote to reform the Union (assuming they are ok with it). Right now, they don't have a Union because they disclaimed interest, which dissolved the Union and turned into a trade association. Now they reform or reclaim interest. This is akin to Superman flying around the earth backwards to turn back time (or like that Cher video on the navy ship). To reform, need a majority of the 450 NBA players (51%) and the NBA to recognize the Union. The players will also asked that the lawsuit be dismissed.

3) Negotiate non-economic issues like drug testing and league discipline. Can't negotiate these if don't have Union.

4) The sides then vote on new deal (move to approve or ratify). Need the majority of NBA teams and players to vote "yes" - so that's 15 of 29 teams (league owns Hornets).

The NBA is aiming to open training camp on December 9, and to allow teams to sign players and make trades starting on that same day. The NBA also plans to start the season on Christmas with a triple-header.

Only once the CBA is signed will the lockout be lifted. Informal lockout may start earlier.

In the NFL we saw a lot of injuries that many blamed on short training camps. It remains to be seen if we will see the same with the NBA.

Friday, November 25, 2011

Common Sense Review & Analysis of Key Points of New MLB CBA

Graydon hits the key points of the deal, and provides some much needed common sense analysis together with very good examples to illustrate his points.

Graydon has a lot of CBA experience and knows this stuff pretty well.

Radio Clip - Team 1260: Penn State, Syracuse and NBA Lockout

Here's my radio clip with the guys at the Team 1260. We talk about saying goodbye to my moustache and my suggestion that we celebrate Mecember, Manuary and Mebruary. We also cover the recent developments in the Penn State and Syracuse cases. We also cover the NBA lockout and my belief that it will settle by the weekend.

Thursday, November 24, 2011

Cause For Optimism in NBA Talks As NBA Players Get New Lead Lawyer

It's being reported that the chief negotiator for the NBA players Jeffrey Kessler has been replaced by Jim Quinn.

Quinn was the NBPA lead outside counsel for over 20 years. He's been brought in to save the season, which the NBA wants to start by Christmas. A number of owners and David Stern have reportedly found Kessler to be divisive and an impediment to getting a deal done. 

There have been reportts that the NFL lockout ended once Kessler was removed from the negotiations. However, it is not fair to lay blame squarely on the shoulders of Kessler for the NBA situation, since he has a boss - Billy Hunter. Still, there has been a lot of talk that a deal is more likely to get done with Quinn at the helm and not Kessler.

Quinn played a similar role in 1998-99 lockout, when he was brought in at the 11th hour to save the season. According to various reports, he is a respected voice a reason and has a good relationship with Stern.

The opinion here at Offside has been that a deal would get done to save the season. There are fairly obvious areas of compromise. The sides just need to balance out revenue sharing with system issues like free agency and the luxury tax. There is room for a deal here and the sides will find it. They are too close not to get a deal done and save the season.

So for now, this is where we stand: 

new lead negotiator + fairly obvious areas of compromise = optimism

As a side note, since the Union has disclaimed interest, we are not seeing CBA negotiations but rather settlement discussions. No union = no CBA discussions.

Wednesday, November 23, 2011

Bernie Fine May Still Be Charged Criminally

Syracuse assistant coach Bernie Fine has been accused by 2 former ball boys of molesting them over a 16-year period. Bobby Davis (now 39) and his stepbrother Mike Lang (now 45) allege Fine molested them during the 1980s and 1990s.

When Davis went to the police in 2005 to report the alleged crimes, he was told he was out of time - the statute of limitations had run out with respect to charging Fine with a sexual act against a minor. The statute of limitations is the time limit that someone can be charged for a crime.

Here's part of the statement released by Nancy Cantor, chancellor of Syracuse University:
In 2005, Syracuse University was contacted by an adult male who told us that he had reported to the Syracuse City Police that he had been subjected to inappropriate contact by an associate men's basketball coach. The alleged activity took place in the 1980s and 1990s. We were informed by the complainant that the Syracuse City Police had declined to pursue the matter because the statute of limitations had expired.
Fine Can Still Be Charged

In the state of New York, the statute of limitations for a sex act against a child expires 5 years after the child's 18th birthday. Davis is now 39 years old, so that would have been in the 1990s.

However, there is no statute of limitations if the sexual abuse is severe enough to constitute sexual conduct against a child in the first degree. That means Fine may still be charged.

Here's the wording of the statute:

§ 130.75 Course of sexual conduct against a child in the first degree. 

 1. A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration: 

(a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than eleven years old; or 

 (b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than thirteen years old. 

Davis alleged the abuse started when he was in grade 5 or 6, which would make him between 10 and 13 years old. Potentially, that falls within the wording of the statute.

As well, don't forget the statute of limitations can be different from state to state. So if it's alleged that abuse occurred in another state, you would need to look at that state's statute of limitations.

Finally, more alleged victims may come forward. So this case is not done.

One more thing - these are only allegations. Fine has not been found guilty and the process should be respected.

Monday, November 21, 2011

NHL Suspensions: Lucic Hit and Role of Intent

After NHL disciplinarian Brendan Shanahan failed to suspend Milan Lucic for his hit on Ryan Miller, the Sabres were none too pleased. They suggested that they may also run the Bruins goalie in another game.

In response, Shanahan said this:

"I think Buffalo's comments are irresponsible to suggest that it's open season. I will have this warning for players: `It's not. If you run a goalie you're going to find yourself in the same situation that Lucic was today, you're going to have to explain yourself and if you don't explain it sufficiently, and if I don't buy it, you're going to be suspended."

On its face, the underlined part of this statement is a problem.

It suggests that a player can talk himself out of a suspension by explaining he did not intend to deliver the hit. According to Shanahan's statement, it appears that Lucic may have explained himself "sufficiently", Shanahan bought it and Lucic wasn't suspended.

The NHL CBA is quite clear. According to Exhibit 8 entitled Procedures Relating To Commissioner Discipline, intent is only one factor that should be considered when considering suspending a player. Other factors include, the player's history, the resulting injury, the type of harm inflicted and when the harm occured. As well, like any good legal document, the CBA leaves it open to Shanahan to consider any other relevant factors.

Strictly speaking, determining a player's intent is very tough. Shanahan can't crawl into that player's head at the time the hit was delivered to figure out what he intended. As well, a player, when asked, won't say he intended to hit the player (cue Lucic).

Hoping that a player tells the truth is like hoping a 5 year old will admit to breaking a vase. Of course, we all know what she would say: "I didn't do it".

This is precisely why intent, as explained by the offending player, cannot be the driving force behind a suspension. Intent should be considered - however, it should be inferred by way of reference to the surrounding circumstances by the decision maker.

If a player commits something that is worthy of a suspension, he should be suspended. Whether he intended it or not should not be a condition for a suspension. Rather, it should affect the length of the suspension. Players are responsible for their actions irrespective of intent. Sure - lack of intent may diminish the length of a suspension.

To do so, gives players an out and sends the wrong message. The message should be 'you are responsible for your actions', not 'you are responsible for your actions unless you can convince me you didn't intend them'.

In part, this is about reconditioning players; tweaking how they act on the ice with a view to modifying behaviour. To accomplish that, the focus must be the hit and not the subsequent excuses.

As a side note, I question the wisdom of installing a former player in the position of NHL disciplinarian. Shanahan is 2 years removed from playing in the NHL and knows many of the players. Conflict number 1. Plus, he played on the edge so may well empathize with the players. Conflict number 2.

Finally, perhaps there is value in having someone in that position who has the training to engage a strategy that is in keeping with the long term plans of the league from a market share and image perspective. Sort of a macro view of things. Shanahan could provide his views from the hockey side, but ultimately a suspension would be a business decision.

Friday, November 18, 2011

Second Mile: Perils of Brand Recognition and Collateral Damage

During its 30 year history, "a Philadelphia non-profit thrift shop has helped hundreds of ex-cons get back on their feet without a glitch. But then, the Jerry Sandusky sex scandal hit" and the business is now in trouble. 

Why? The name of the shop is The Second Mile Center. This according to NBC Philadelphia.

Sales have dropped 30% as the public has mistakenly connected the thrift store with Jerry Sandusky's Second Mile Foundation.

The store has gone so far as to put up signs in the store front letting people they are not connected to Sandusky or his foundation.

“Just letting people know because we’ve had a lot of negative response,” said Ron Lucas with the Second Mile Center. “People have been coming in angry and hostile thinking that we are part of that organization, which we are not.”

NY Times: Sandusky's Second Mile foundation Closing Its Doors

Jerry Sandusky's Second Mile Foundation is shutting its doors.

David Woodle, the chief executive of the charity the Second Mile told the New York Times Friday that the foundation was seeking to transfer its programs to other nonprofit organizations. Simply put, it was preparing to close shop.

The Second Mile was founded by Sandusky in 1977 to help disadvantaged children and children from dysfunctional families. According to the summary of the Grand Jury testimony, "it was within the Second Mile program that Sandusky found his victims" and that it was through the foundation that he had access to "hundreds of boys, many of who were vulnerable due to their social situations".

After news broke of Sandusky's indictment on multiple charges of sexual abuse and assault, the Second Mile was essentially done as people would not want to associate themselves with the foundation.

Thursday, November 17, 2011

Paterno Not Out of Criminal Woods

Joe Paterno has said he acted appropriately with the information he received from Mike McQueary in 2002 regarding child sexual abuse allegations against his former defensive coordinator, Jerry Sandusky.

Paterno wasn't charged criminally with perjury or obstruction of justice. Pennsylvania Attorney General Linda Kelly confirmed that Paterno would not be charged since he discharged his obligation by reporting the incident to his supervisor, Athletic Director Tim Curley.

Pennsylvania's Child Protective Services Act provides that a person who works in a school must "immediately notify the person in charge" of "suspected abuse".

According to the summary of the Grand Jury Testimony, Paterno reported the incident to Curley the next day. On its face, it appears that Paterno discharged his obligation.

However, it may be premature to conclude that Paterno is out of the woods.

When he testified before the Grand Jury under oath, McQueary said he saw Sandusky having anal intercourse with a boy, "whose age he estimated to be 10 years old", in the Penn State showers. He then says the next day he told Paterno about the incident. However, according to the summary of the Grand Jury Testimony, it's not clear how explicit he was when he spoke to Paterno.

Paterno testified that he then turned around and told Curley that McQueary saw Sandusky "fondling or doing something of a sexual nature to a young boy".

Certainly "fondling" or "doing something of a sexual nature" cannot be said by a reasonable person to anal intercourse with a 10 year old boy. 

So the question remains: did Paterno intentionally water down the story or did he relay the story as he understood it?

If Paterno intentionally provided a milder version of the story, he could face obstruction of justice charges. Obstruction of justice refers to attempting to interfere with the administration of justice by doing things such as giving false information, concealing evidence or impeding an investigation.

Many questions remain about who knew what when. As the investigation gains traction, more information will come to light. If it's determined that Paterno in fact knew more, he could face obstruction of justice charges as well as perjury charges, the latter referring to knowingly lying under oath.

Chara Cleared by Quebec Police; When Is A Hockey Hit A Crime

Boston Bruin Zdeno Chara will not be charged by police for his hit on Max Pacioretty that left the Montreal Canadiens forward with a broken neck and a concussion.

As I said back when this happened, while Chara was clearly reckless in his actions, he did not commit a crime. A suspension was warranted (didn't happen though), but prison wasn't.

The principle of consent is really important when we talk about whether a hit on the ice is elevated to a crime. In hockey, when you step on the ice, you consent to some form of bodily contact and harm, and the risk of injury that flows from that. The type of harm you consent to is contact that is part of the game (i.e., incidental contact). At law, this principle of consent is called voluntary assumption of risk.

However, you do not consent to contact that is not part of the game. For example, head hunting would not be acceptable so it's not harm a player has consented to.

So contact that is part of the game is understood to be contact that players have consented to. Contact that is not part of the game (Bertuzzi hunting down Moore) is understood to be contact players do not consent to.

From the outset, this is a case that was doomed for the prosecution. If it pressed charges it is unlikely it would have succeeded. The hit was not typically what would be characterized as a crime (unlike head hunting for example). It would have been difficult to successfully argue that the hit clearly fell outside the scope of what is an acceptable hockey hit. It's close - but not close enough to warrant prison time and a record.

In an earlier blog, I covered cases where players were charged with assault for their on-ice incidents. In each case, we were dealing with contact that was completely and unequivocally an attempt to injure another player and the contact was not incidental to the game.

The Chara case is different. Frankly, it was a surprise that this case hung around as long as it did.

Wednesday, November 16, 2011

Massive Tactical Error - Sandusky's Interview with Bob Costas

Well I could say that, you know, I have done some of those things. I have horsed around with kids. I have showered after workouts. I have hugged them and I have touched their leg. Without intent of sexual contact. But - so if you look at it that way - there are things that wouldn't - you know, would be accurate.
- Jerry Sandusky's response to Bob Costas asking him if he is guilty

Sandusky's interview with Bob Costas was a massive tactical error. His response won't help him defend against the criminal charges or the inevitable civil lawsuits (suing for money).

In the interview, Sandusky admitted to showering with children, touching their legs and horsing around with them. What he didn't admit was kissing or sodomizing the children. So he admitted a lot of what the prosecution will have to prove except rape, sodomy and various other sexual acts (see summary of grand jury testimony below).

These statements will be front and centre at the criminal trial and they will be most difficult for Sandusky's defence lawyer to dismiss. As well, Sandusky's admissions will also be featured at any civil trial. His statements together with potential testimony from various unrelated victims will present a significant challenge for Sandusky.

I would also expect that an alleged victim who saw the interview may now be inspired to come forward when otherwise he may not have.

Here's the interview:

Judge Leslie Dutchcot Has Been Replaced in Sandusky Case

District Judge Leslie Dutchcot has been replaced by another judge in the Sandusky case.

As explained on this blog yesterday, the Appearance of Impropriety was too much to overcome given her ties to the Second Mile Foundation. This is not to suggest she did anything wrong. Replacing her, however, removes the perception that she may have.

Remember the one thing that is more important than justice being done is the appearance that justice has been done.

Pro Baseball Team Goes With London Rippers (For Now)

London, Ontario’s new baseball franchise in the Frontier League will be called the London Rippers. Some are not pleased with the name given its connection to Jack the Ripper, the unidentified serial killer.

The baseball team's mascot is Diamond Jack. He appears in the logo as a man in a top hat, dark outfit with only his eyes visible carrying a baseball bat. That doesn't help.

Tuesday, November 15, 2011

McQueary's Email Message & Moral Versus Legal Obligation

Mike McQueary issued an email on November 8, 2011 where he writes that he stopped the sexual assault and discussed it with police afterward.

The email is below.

There has been much discussion as to whether McQueary discharged his legal obligation by not taking further steps to ensure as best he could that Sandusky was removed from society.

A distinction should be drawn between a moral and a legal obligation. A moral obligation cast a wider net of responsibility. Perhaps in this case McQueary should have done more. That, however, is a moral obligation.

A legal obligation is what a person is required to do as directed by law. That's what the legendary U.S., Supreme Court Justice Oliver Wendell Holmes meant when he said, "This is a court of law, young man, not a court of justice."

In this case, McQueary was required to report the incident to a supervisor as per Pennsylvania law. He did that when he reported it to Paterno. On top of that he reported it to Tim Curley and Gary Schultz – also his superiors. According to the grand jury testimony (as summarized a few articles down), Schultz told McQueary that he would handle it moving forward.

So McQueary discharged his legal obligation and then some.

Now we see that possibly he spoke to the “police”. It’s unclear if that’s campus police or the police generally.

The series of events dating back to 1998 makes you wonder to what extent Paterno, Curley, Schultz, Spanier and others tried to diminish the importance of Sandusky’s actions. As well, according to the grand jury transcript, in 1998 Sandusky was investigated for showering with an 8 year old boy in the Penn State showers. Although he admitted that much, the police did not press charges. Rather, they directed him not to shower with children. If this is accurate, it raises the question as to whether there were others apart from Penn state employees that did not take this seriously.

Given the foregoing, it is reasonable to consider if McQueary would have met with resistance if he sought to escalate things. As well, more information may come out that may clarify some of this.

There are still lots of questions that need to be answered including whether Schultz and other engaged in a pervasive, systemic and institutional failure to remove Sandusky from society. That being said, McQueary did discharge his legal obligation. Moral, as always, is up for debate.

Certainly, it is reasonable to believe that seeing Sandusky a year later still with a Penn State office, phone number, email address, parking pass and faculty listing should have inspired McQueary to keep pushing forward with a view to getting Sandusky arrested.

Again, however, we don't know everything at this point.

... you are the first person I have told this ... and I don't know you extremely well ... and I have been told bye officials to not say anything ...

I did stop it, not physically ... but made sure it was stopped when I left that locker room ... I did have discussions with police and with the official at the university in charge of police .... no one can imagine my thoughts or wants to be in my shoes for those 30-45 seconds ... trust me.

Do with this what you want ... but I am getting hammered for handling this the right way ... or what I thought at the time was right ... I had to make tough impacting quick decisions.