Saturday, October 29, 2011

Radio Clip: Team 1260 Edmonton - Mandatory Visors, the World Series and My Halloween Costume

Click here to listen to my clip with the guys from the morning show on the Team 1260 in Edmonton. We hit the legal side of trying to force players to wear visors and the odd firing of Perry Pearn.

Legal Glimpse: Father and Son Want Olympic Jerseys Back From Hall of Fame

Do you believe in litigation miracles? (I do and for that reason I'm obscenely expensive).

The father of all things puck, Greg Wyshynski (o/a Puck Daddy) has penned (or typed) a great article on a dispute between a family and the Hockey Hall of Fame.


In U.S. Olympic heroes vs. Hockey Hall of Fame: Who owns history?, Mr. Daddy tells a story of father and son U.S. hockey Olympians suffering from a serious case of charitable remorse.

In1981, Bill Christian was contacted by the Hall of Fame asking if he along with his son Dave would be open to donating their jerseys to the Hall. Bill and Chris both won gold medals representing the U.S. hockey Olympic team - Bill in 1960 and Dave in the much vaunted 1980 Miracle on Ice. To this day, they remain the only father and son "to win gold medals in the same Winter Olympic sport".

The jerseys were donated to the Hall.

Fast forward 30 years - Bill and Dave are disputing whether the jerseys were donated.

Despite receiving a letter confirming the donation, Bill alleges that "he didn't believe it was a donation", while his son Dave says "he never agreed to donate or loan his jersey to the Hall" in the first place.

Dave said it was a mistake not to question the wording of the letter. "My dad is not an attorney", he said.

Izak Westgate, assistant curator for the Hockey Hall of Fame in Toronto, said it's clear with donors that items that are permanently gifted to the Hall.

Who's Offside: Legal Considerations

So does the good Christian family have a legal leg to stand on?

Working against them is the existence of a letter confirming the donation. Specifically, the Hall wrote Bill thanking him and his son for "donating" the sweaters. The term "donate" is well understood to mean a "gift". In turn, a gift is defined as "something given voluntarily without payment in return".

Not good for the Christian family. Wobbly legal leg.

On the flip side, here are some issues to consider for the Christian family:

1) Dave says he never authorized the donation of his jersey. If there was a gift release signed (which is commonplace for these types of donations and just says that the donating party is giving up the item forever), then the next question is whether Dave signed one. As well, did Dave ever provide his express consent to the Hall regarding the disposition of his jersey. He's the owner of the jersey, so in theory only he can give it up (and not his dad).

2) Dave mentioned that his "dad is not an attorney". At law, when a party with no lawyer enters into a contract, the other side generally advises them that they should get independent legal advice before finalizing the deal. If that direction is not provided, then that may be a problem. Problem though is that the definition of "donation" is pretty straightforward. If they signed a gift release, the issue is how complicated was the release. If it's filled with legalese, then that might be an issue in the context of advising them to seek independent legal advice. Still tough one.

3) Who owns the jerseys to begin with? Does USA Hockey own the jerseys? I know players keep jerseys and routinely give them away, etc. However (and perhaps in the context of the Olympics particularly), that's a relevant question. I simply don't know the answer to this question.

If Dave and Bill didn't own the jerseys, then neither would have had the authority to give them away. Practically speaking, if USA Hockey owns the jerseys then they could tell the Hall to keep them.

4) If Dave did donate his jersey, how old was he at the time? Minors don't have the capacity to enter into contracts until they reach the age of majority, which is usually 18. However, this does not mean that minors may not make contracts. They can - however those contracts may not be enforceable. I think Dave was 21 or so at the time, so this may not apply.

This will be a tough case for the Christian family. The Hall won't want to return a donated item since that would set a really bad and potentially unmanageable precedent. This is particularly the case given that the memorabilia market has really taken off. I could probably get $50,000 for Gilbert Dionne's mouthguard and $5000 for Tony Tanti's eyelash.

Maybe the focus should be on Dave's jersey and whether he donated it. Getting back one of two jerseys wouldn't be bad.

By the way, the Christian family isn't too bad at hockey. Bill's brother Roger played on the same 1960 team, while the third brother Gordon played on the 1956 Olympic team.

Son and nephew Dave played for the Winnipeg Jets, Washington Capitals, Chicago Blackhawks, Boston Bruins and St. Louis Blues. He finished his career with 340 goals and 433 assists in 1,009 NHL regular season games. He went to the 1991 All-Star game, and holds the record for the fastest goal by a player in his first NHL game, scoring just 7 seconds into his first shift.

Friday, October 28, 2011

NBA Lockout Winding Down

Yahoo is reporting that the NBA and NBPA have "moved to the cusp of ending the four-month old lockout." Further, there is "strong belief on both sides that a Friday bargaining session could culminate with the framework of an agreement to preserve most, if not all, of a full season."

As a wrote a couple of weeks ago, and as I've been tweeting for a while, areas of compromise emerged, which gave this case a profile for settlement. The two big issues are revenue sharing between the league and players and the salary cap/luxury tax. The issue was finding a balance that worked and by some accounts the they are close to balancing things out. It could take some more time to finalize the deal, but it would be a surprise if the sides didn’t get this settled soon.

At the beginning of all this, the NBA quickly backed off its request for a hard cap. That was the first signal that progress could be made. You may remember the NHL in 2005 never backed off the request for a hard cap, and that fundamental issue, which would redefine the labor side of the sport, led to a missed season. With the NBA yielding early on that issue, it sent a signal that settlement could be achieved. It won't be now but it should be coming so long as the sides continue seeing the forest from the trees.

Thursday, October 27, 2011

Habs Win May Have Saved Jobs

After a dreadful start to the season, Montreal Canadiens GM Pierre Gauthier fired Habs assistant coach Perry Pearn. That's kinda like me firing my secretary after I lose a court case.

It's a good thing the Canadiens beat the Flyers last night. Rumour is the win may have saved the jobs of any of the following people:

1) Parking attendant

2) Janitor

3) Popcorn girl

4) Cashier in Section 307A

5) The Zamboni driver

6) The assistant to the Zamboni driver

7) Hair and makeup person

8) Jean Beliveau

9) A pedestrian walking by the Bell Centre

10) Mitsou

Monday, October 24, 2011

Tonight on Offside: The Business & Law of Sports

Tonight, we start things off by interviewing Mike Ozanian, Forbes Executive Editor. We cover a lot, including the sale of the 76ers, why media companies are getting out of the business of owning teams, the impact of StubHub and other online secondary ticket brokers on ticket prices and the value of sports brands.

In keeping with StubHub, we will also cover the legality of scalping tickets. Is it legal?

And as I am contracted to say - and a lot more. Exclamation mark.

Tonight from 6 to 7pm ET on the Team 1200 (or at

Radio Clip: Team 1200 Ottawa - Gumbel & Stern

Listen to my radio clip regarding Bryant Gumbel's statement about David Stern.

Click here.

Life on Plantations & Could Gumbel's Comments About Stern Attract Legal Attention?

Recently, in his closing remarks on HBO’s “Real Sports”, host Bryant Gumbel compared Commissioner David Stern to a plantation owner or “overseer”:
If the NBA lockout is going to be resolved any time soon, it seems likely to be done in spite of David Stern, not because of him. I say that because the NBA's infamously egocentric commissioner seems more hellbent lately on demeaning the players than resolving his game’s labor impasse.

Stern’s version of what’s been going on behind closed doors has, of course, been disputed. But his efforts were typical of a commissioner who has always seemed eager to be viewed as some kind of modern plantation overseer, treating NBA men as if they were his boys. It’s part of Stern’s M.O. ... His moves are intended to do little more than show how he's the one keeping the hired hands in their place.
Stern did not comment. However, NBA Deputy Commissioner Adam Silver called Gumbel's comments "outrageous."

From a legal standpoint, the question that comes up is whether Gumbel’s statements could give rise to a claim for defamation.

What Is Defamation?

What is defamation? A defamatory statement is one that is likely to lower the reputation of a person in the eyes of reasonable people.

The law protects your reputation against defamation. If someone defames you, you can sue them to pay money (called “damages”) for harming your reputation.

Defence to Defamation: Fair Comment

There are defences available to a person if sued for defamation. One of them – and the one that applies here – is fair comment. There are a number of elements to satisfy when making out this defence. In part, the defendant must be able to show that (i) the comment was based on known and provable facts, (ii) any person would hold that same opinion based upon the facts, and (iii) there was no malice behind the statement (or an intent to inflict injury on the plaintiff).


A plantation “overseer” was responsible for plantation discipline. Slaves were punished for not working fast enough, for defying authority and for a number of other reasons. Punishment could include whippings, torture, mutilation, imprisonment, murder and being sold away from the plantation.

Life on plantations were obviously very difficult. The child mortality rate could be as high as 65% and malaria was rampant. Women were sexual abused. Unsanitary conditions, inadequate nutrition and unrelenting hard labor were commonplace and made slaves highly susceptible to disease.

Here's an excerpt from Slave Overseers:
In 1860 it was calculated that about 88 per cent of America's slave-owners owned twenty slaves or less. However, large landowners would usually own well over 100 slaves and relied heavily on overseers to run their plantations. These overseers were under considerable pressure from the plantation owners to maximize profits. They did this by bullying the slaves into increasing productivity. The punishments used against slaves judged to be under-performing included the use of the cart-whip. Not surprisingly the mortality-rate amongst the slaves was high. Studies have shown that over a four-year period, up to 30 per cent of the slave population in America died.
..."It was usual for men and women to work side by side on our plantation; and in many kinds of work, the women were compelled to do as much as the men. Captain William Helm employed an overseer, whose business it was to look after each slave in the field, and see that he performed his task. The overseer always went around with a whip, about nine feet long, made of the toughest kind of cowhide, the but-end of which was loaded with lead, and was about four or five inches in circumference, running to a point at the opposite extremity. This made a dreadful instrument of torture, and, when in the hands of a cruel overseer, it was truly fearful. With it, the skin of an ox or a horse could be cut through. Hence, it was no uncommon thing to see the poor slaves with their backs mangled in a most horrible manner."
The question then to ask in this: could any person honestly express that opinion on the proved facts? Gumbel created a negative association by invoking images of slavery, and in particular comparing Stern to a slave and plantation owner. The comparison is quite dramatic.

Further, and more importantly, it seems that his statement is difficult to justify and that arguably other people would not share it.

That being said, it would be surprising for Stern to take any action. He’s busy trying to fix the NBA.

Wednesday, October 19, 2011

Bill Plaschke on Jamie McCourt

"Turns out, she was nothing but window dressing, cute and decorative and completely devoid of reality. While it was Frank's whacked vision that robbed the Dodgers of their soul, it was Jamie's clumsy machinations that took away their heart." 
L.A. Times columnist Bill Plaschke, on Jamie McCourt's time with the Dodgers.

Gumbel Compares Stern to Plantation Owner

In his closing remarks on HBO’s “Real Sports” last night, host Bryant Gumbel made the following statement:
If the NBA lockout is going to be resolved any time soon, it seems likely to be done in spite of David Stern, not because of him. I say that because the NBA's infamously egocentric commissioner seems more hellbent lately on demeaning the players than resolving his game’s labor impasse.
Stern’s version of what’s been going on behind closed doors has, of course, been disputed. But his efforts were typical of a commissioner who has always seemed eager to be viewed as some kind of modern plantation overseer, treating NBA men as if they were his boys. It’s part of Stern’s M.O. ... His moves are intended to do little more than show how he's the one keeping the hired hands in their place.
Here's an excerpt from Conditions of Antebellum Slavery, which addresses U.S. plantations:

In the lower South the majority of slaves lived and worked on cotton plantations. Most of these plantations had fifty or fewer slaves, although the largest plantations have several hundred. Cotton was by far the leading cash crop, but slaves also raised rice, corn, sugarcane, and tobacco.

The diets of enslaved people were inadequate or barely adequate to meet the demands of their heavy workload. They lived in crude quarters that left them vulnerable to bad weather and disease. Their clothing and bedding were minimal as well. Slaves who worked as domestics sometimes fared better, getting the castoff clothing of their masters or having easier access to food stores.

Unsanitary conditions, inadequate nutrition and unrelenting hard labor made slaves highly susceptible to disease. Illnesses were generally not treated adequately, and slaves were often forced to work even when sick. The rice plantations were the most deadly. Black people had to stand in water for hours at a time in the sweltering sun. Malaria was rampant. Child mortality was extremely high on these plantations, generally around 66% -- on one rice plantation it was as high as 90%.

One of the worst conditions that enslaved people had to live under was the constant threat of sale. Even if their master was "benevolent," slaves knew that a financial loss or another personal crisis could lead them to the auction block. Also, slaves were sometimes sold as a form of punishment. And although popular sentiment (as well as the economic self-interest on the part of the owners) encouraged keeping mothers and children and sometimes fathers together, these norms were not always followed. Immediate families were often separated. If they were kept together, they were almost always sold away from their extended families. Grandparents, sisters, brothers, and cousins could all find themselves forcibly scattered, never to see each other again. Even if they or their loved ones were never sold, slaves had to live with the constant threat that they could be.

African American women had to endure the threat and the practice of sexual exploitation. There were no safeguards to protect them from being sexually stalked, harassed, or raped, or to be used as long-term concubines by masters and overseers. The abuse was widespread, as the men with authority took advantage of their situation. Even if a woman seemed agreeable to the situation, in reality she had no choice. Slave men, for their part, were often powerless to protect the women they loved.

The drivers, overseers, and masters were responsible for plantation discipline. Slaves were punished for not working fast enough, for being late getting to the fields, for defying authority, for running away, and for a number of other reasons. The punishments took many forms, including whippings, torture, mutilation, imprisonment, and being sold away from the plantation. Slaves were even sometimes murdered. Some masters were more "benevolent" than others, and punished less often or severely. But with rare exceptions, the authoritarian relationship remained firm even in those circumstances. 

Wednesday, October 12, 2011

Better than Suing for Turbulence? How About a Bad Movie

Compliments of my Twitter follower Wayne Chow (@wayne_chow), a woman is suing a film studio alleging false-advertising after seeing a movie that appeared to be one thing in the trailer, but turned out to be another in the theater.

Ms. Sarah Deming claims that the preview for the recent Ryan Gosling movie Drive made it look like a “Fast and the Furious” type of movie.

However, for Deming, the movie “bore very little similarity to a chase, or race action film … having very little driving".

She also claims the movie is anti-Semitic.

She’s suing the studio and the theater where she saw it.

Here's a link to the article.

Other potentially misleading titles:

1) Star Wars: A story about Ronald Reagan's ground and space defence system

2) Raging Bull: a biography of Richard Moll from Night Court

3) Jaws: a story about Ron Jaworski

4) Platoon: a story about Rex Hudler

5) Stand By Me: The Phoenix Coyotes saga

Texas Woman Sues Continental Airlines Over Turbulent Flight

It's likely this case will get tossed by the Court on the basis of being frivolous. Still, it's worth a read:

A Texas woman is suing Continental Airlines and three other carriers over mental trauma she says was caused by a turbulent flight.

Ms. Colleen O'Neal alleges that the October 2009 flight from College Station, Texas to Houston encountered extreme turbulence that caused her to fear for her life.

As a result, she alleges experiencing post-traumatic stress disorder and now has a fear of flying. She says this has had a detrimental impact on her career.

NHL & NHLPA Agree On Initial Escrow Rate Of 8.5%

NHL and NHLPA have set the players' escrow rate at 8.5% for the first quarter of the season, "the lowest rate since the first year after" the '04-05 lockout. The league and union are "still negotiating the final escrow number" for the '10-11 season.

The NHL uses an escrow system. What is the NHL escrow system?

Players pay a percentage of their salaries from each paycheck to an escrow fund. This money is intended to cover any potential shortfalls in projected league revenue.

For example, if the NHL thinks it's going to make $2 billion in revenue, the salary cap will be based on that number. BUT if the league only ends up making $1.7 billion, there’s a $300 million shortfall. If there’s a shortfall, then the NHL takes the money from the escrow fund to make up the difference. However, if the league makes $2 billion, the players would get this money back.

In the early salary cap years, the league was growing so this money ended up being returned to the players, but with the economy being what it is, there's a chance the players may lose a chunk of their salaries.

The escrow payment has been set as high as 25% - that was in 2009. That meant that a quarter of each player's salary was held in escrow in case the money was needed to help offset shortcomings in the league's projected revenue.

Monday, October 10, 2011

Bruins Are Next - Sell Space on Practice Jersey

The Bruins have announced that Cross Insurance will be the team's first practice jersey sponsor. The insurance company also will have a visible presence at the Bruins' primary practice facility at Ristuccia Arena in Wilmington.

Will we ever see ads on game jerseys? In all likelihood that day is coming. Leagues are leaving too much money on the table by not doing it. The big issue has less to do with the sanctity of jerseys and more to do with balancing out the rights of stakeholders, including the league, teams, networks and sponsors. It can be tough to decide on a sponsor for a jersey given all the potential conflicts.

In our interview with Deputy Commissioner of the NHL Bill Daly, he confirmed that such a move would be a league wide decision.

NBA Lockout: What is Basketball Related Income and Will Lockout End Soon?

We are hearing today that the NBA will cancel the first two weeks of the season if an agreement is not reached today.

Having backed down from insisting on what amounted to a hard cap, the owners continue to push for a 50-50 share of basketball related income - or BRI. Players are saying no - they want a 53% share.

What is BRI? It's money generated from the majority of revenue streams in the NBA. It includes things such as regular season gate receipts, broadcast rights, exhibition game proceeds, playoff gate receipts, parking, money from team sponsorships, proceeds from team promotions, arena club revenues, proceeds from beverage sale rights, 40% of proceeds from arena signage and 45% to 50% of proceeds from arena naming rights.

It does not include expansion fees, fines and the luxury tax proceeds that comes in to the league.

Larry Coon has a great article entitled Salary Cap FAQs. If you like this kind of stuff, the article is for you.

As for the threat of missing games, it seems likely that games will be cancelled. However, areas of compromise have emerged and I would be surprised to see an entire season missed. Perhaps the sides will ultimately agree on an incremental share of revenue or just on a compromise (51% or something close to it). Whatever the deal, there are numbers to play with. The sides will balance out a revenue sharing arrangement with a cap that works for both sides.

My expectation is that we will see NBA basketball this season.

Tuesday, October 4, 2011

Radio Clip: Bill Daly Interview

We interviewed NHL Deputy Commissioner Bill Daly on Offside this week.

We covered a lot during the interview, including the state of the game, upcoming CBA negotiations, suspension videos, Gary Bettman, the size of the ice and the U.S. TV deal. Daly also shed some light on his nickname, Tomato Juice.

If you want to listen to the entire show, where we discussed Daly's comments in the last 2 segments, click here.

Monday, October 3, 2011

Bill Daly on Offside Show Tonight

Tonight on Offside, we have NHL Deputy Commissioner Bill Daly. The in-depth interview covers a lot of areas, including the state of the game, the US television deal, the upcoming CBA negotiations, ads on jerseys, suspension videos, Gary Bettman and why Daly's nickname is Tomato Juice.

After the interview, we address some of the key points raised by Daly.

Offside airs tonight at 6pm on the Team 1200 radio station. If you are outside of range, feel free to listen live at

The interview is a nice appetizer to the NHL season.