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.