Tuesday, August 30, 2011

Menu for Tonight's Show, Offside: The Business and Law of Sports

Who should pay for pro sports facilities? We will interview Glen Hodgson, author of the Conference Board of Canada study released this week that addressed this very issue. Glen is a great interview and it promises to be interesting.

We will also hit the 2 NFL concussion lawsuits and explain how they are in fact different.

This and more in our one and only hour. Live today on the Team 1200 from 6 to 7pm Eastern.

Oh yes - and a little Who's The Boss/Tony Danza.

Sports Legal Analyst for TSN Radio Toronto

I'm happy to announce that I've signed on as TSN Radio Toronto's sports legal analyst. Well maybe "announce" is a strong word. Perhaps mutter, mumble or mention is more appropriate.

Monday, August 29, 2011

Will HGH Testing Happen this Season in the NFL?

You might remember on the heels of the new CBA being ratified, the NFL announced it would implement HGH testing at the start of the season, and test players, without limitation, on game days. None of the 4 leagues tests for HGH so this was big.

Not so fast, said the NFLPA.

"The truth is that we have not agreed to any of the terms and everything the league has said is what it hopes for," NFL Player Association spokesman George Atallah told the New York Times. "All of those things they are talking about are still open to discussion."

The new CBA provides that HGH testing would be conducted annually and on a random basis. If the sides can't reach agreement on HGH testing, then the current testing policy stays in place. That policy doesn't call for blood testing - so no HGH testing.

The sticking point is the procedures that would be used by the World Anti-Doping Agency (WADA). The NFLPA is questioning the reliability of the WADA's HGH testing and the transparency of its results. WADA handles drug testing for the Olympics.

The NFLPA has talked about commissioning their own independent studies.

So what does all this mean? With the NFLPA wanted to examine testing procedures on its own, it would be surprising to see HGH testing in place this season. This is despite pressure from Congress to resolve the matter. It's possible - but time is running out.

HGH is illegal without a doctor's prescription. It has been associated with helping athletes recover faster from injury and also enhance their performances (there is the argument that it does not help improve performance; however it stands to reason that if it helps a player recover then it by extension improves that player's performance).

HGH is difficult to detect. Only a blood sample taken with within 36 to 48 hours of HGH being introduced into the blood stream can reliably show its presence.

TSN Toronto Radio Clip - Bonds, Britt, Talib & Goddell

Click here to listen to my radio clip with Bryan Hayes from TSN Radio Toronto. You will need to scroll a page or so in to find my Scrabble friendly name.

Bryan is on from 12 to 4pm weekdays and does a terrific job carrying the show on his own. Always prepared and thoughtful.

Sunday, August 28, 2011

Bonds Conviction Upheld & Next Steps

Barry Bonds' obstruction of justice conviction has been upheld by a federal judge, who denied his motion for a new trial or acquittal on the charge.


Let's first remind ourselves of the charges against Bonds. There were 3 counts of perjury and 1 count of obstruction of justice:

- Two of the 3 perjury counts related to Bonds knowingly lying he took steroids and PEDs.

- The 3rd count (which is Count 2 in the indictment), however, referred to Bonds' denial that Anderson injected him. So this count, unlike the other 2, didn't require that the prosecution show that Bonds was injected with steroids. The prosecution just needed to show that Bonds was simply injected (who cares with what) and that he knowingly lied about it.

The jury made the following findings:

(a) The jurors couldn't unanimously agree that Bonds knowingly lied about taking steroids and PEDs, or that he lied about simply being injected. That means that all the charges involving steroids, needles and PEDs failed.

(b) The jurors unanimously agreed that Bonds obstructed justice by giving evasive and misleading testimony.

Overall, Bonds was not convicted for lying under oath but rather was convicted for being misleading and evasive under oath.

Here's one statement made by Bonds' during his grand jury testimony that was an example of an evasive answer:
Question: "Did Greg ever give you anything that required a syringe to inject yourself with?" Bonds was asked.

Answer: "That's what keeps our friendship," Bonds said in the part of his answer the government charged was a crime. "You know, I am sorry, but that – you know, that – I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don't get into other people's business because of my father's situation, you see."
In maintaining the conviction,  Judge Susan Illston wrote that Bonds was misleading on numerous occasions, and providing the answers later in his testimony did not make up for his initial evasion:
"(The) defendant repeatedly provided nonresponsive answers to questions about whether Anderson had ever provided him with injectables, resulting in the prosecuting attorneys asking clarifying question after clarifying question, and even once resulting in one prosecutor interrupting another who was about to move on to a new topic in order to clarify defendant's mixed responses. An evasive answer about an issue material to the grand jury is not necessarily rendered immaterial by the later provision of a direct answer, even if that direct answer is true."
What's Next 

U.S. sentencing guidelines provide that Bonds could get 15 to 21 months in jail, although Judge Illston has the discretion to modify that. For similar offenses in the BALCO steroids ring case, Judge Illston sentenced cyclist Tammy Thomas to six months of home confinement and track coach Trevor Graham to one year of home confinement. So jail time may not be in the cards, unless the prosecution decides to retry Bonds and is successful. This, however, would seem unlikely.

Expect Bonds to appeal the Court's decision. So this is not done yet.

Here's some more background on the case:

Britt & Talib Avoid Suspensions; Will Any NFL Players Be Suspended For Lockout Incidents?

Tampa Bay Buccaneers cornerback Aqib Talib and Tennessee Titans wide receiver Kenny Britt will not be suspended by the league for their offseason arrests.

The NFL has reserved the right to revisit the Talib matter depending on how his trial goes.

Talib has twice been involved in fights with players and assaulted a cab driver in Florida in 2009. He was suspended for 1 game for that under the Policy.

Talib, a fourth-year pro, is now facing a charge of aggravated assault with a deadly weapon that happened during the lockout. Police in the Dallas suburb of Garland say they believe Talib and his mother shot at a man. Talib has been indicted and faces trial in 2012.

Britt was also busy during the lockout. He was arrested and charged with eluding an officer and hindering apprehension when police accused him of driving his Porsche 71 mph in a 50-mph zone before leaving the officer. Britt later was found walking on a side street away from his car. Charges were reduced to a misdemeanor and a fine.

A day after those charges were reduced, two plainclothes officers in a Hoboken car wash smelled marijuana and accused Britt of holding a rolled cigar they believed was the source. Britt was wrestled to the floor and handcuffed. The police believed a man who was with the receiver might have disposed of the cigar.

In all, Britt has been involved in 7 "incidents" involving police over his career.

So the issue is whether the NFL's Personal Conduct Policy should apply to transgressions that occurred during the lockout. The NFL has said all along it would indeed apply, while the Union has resisted that position.

Bottom Legal Line: the NFL would argue that even though the players were locked out, they remained employees and the Policy covers the conduct of employees. On top of that, the Policy is not part of the CBA, which had expired. On the flip side, the players would argue that the lockout deprived them of the benefits of their employment. That being said, how could they still be accountable to discharge their employment obligations?

There is no clear answer to whether the NFL can discipline players for stuff that happened during the lockout. Grey area.

(It's been reported in a few spots that the Policy can't apply because it was in the CBA, which had expired. That's not the case - the Policy actually sites outside the Policy).

There are whispers that the NFL and Union agreed during CBA negotiations that the NFL could discipline up to 8 players.

Now we have learned that Britt and Talib got off without any discipline. Still, though, they were summoned to meet with Goodell. That may suggest that the NFL believes it can discipline players for lockout incidents.

The fact that they were not suspended is interesting since there was plenty in the way of precedent for suspensions. Players that have been charged with similar or lesser crimes have been suspended. Here's a list of suspensions courtesy of ESPN:

• Rocky Bernard (assault, 1 game)
• Michael Boley (domestic abuse, 1 game)  
• Fred Evans (fight with police, 2 games)
• Chris Henry (various arrests, 8 games)
• Larry Johnson (simple assault, 1 game)
• Tank Johnson (2-month jail term, 8 games)
• Pacman Jones (various arrests, 16 games, 6 games)
• Marshawn Lynch (weapons violation, 3 games)
• Ricky Manning (felony assault, 1 game)
• Brandon Marshall (various, including assaulting girlfriend, 1 game)
• Bryant McKinnie (street fight, 4 games)
• Rob Reynolds (domestic disturbance, 16 games)
• Ben Roethlisberger (misconduct-no charges/arrests, 6 games)
• Donte' Stallworth (DUI-vehicular homicide, 16 games)
• Fabian Washington (domestic violence, 1 game)
• Michael Vick (dogfighting, 2 games)

Roethlisberger is the only player suspended by Goodell under the Policy who hasn't been arrested or charged with a crime.

So how did Britt and Talib get off if other players with similar incidents got suspended? As well, both were arrested and both are repeat offenders. Talib has already been suspended under the Policy.

Frankly, it's not clear. Maybe the NFL reached a deal with the Union on how it would go about disciplining players for lockout incidents.

Had it not been a lockout year, it's safe to conclude that these 2 players would have been suspended.

There are still a number of players that could face discipline, include Pacman Jones (disorderly conduct while intoxicated and resisting arrest), Cedric Benson (assault) and Perrish Cox (sexual assault). It will be interesting to see how things unfold. Further rulings could give us some clues as to the NFL's application of the Policy for lockout incidents.

And don't forget another thing - it's possible the Union could seek to legally challenge any suspensions. This assumes, though, that the sides haven't hammered out an agreement on the application of the Policy.

Yes - this is all a bit confusing.

Thursday, August 25, 2011

Britt Meets With Commish; Should Personal Conduct Policy During Lockout

The NFL is looking into whether it will punish Kenny Britt for his 2 arrests during the lockout.

Below is a story I wrote on July 25 on whether the NFL Personal Conduct Policy applies during a lockout. The story analysed the legal components of the case and whether the application of the policy could make sense. Given Britt's recent meeting with Goodell, here's the story again:

During the lockout, there have been over 20 incidents that could attract the application of the NFL's Personal Conduct Policy.

Here's some of what went down during the lockout:

Chris Cook (brandishing a handgun). Mario Henderson (carrying a concealed weapon). Bryan McCann (public intoxication). Johnny Jolly (drug possession). Jason Peters (disturbing the peace).Aqib Talib (aggravated assault with a deadly weapon). Louis Murphy (drug possession). Mike Vrabel (felony theft). Kenny Britt (eluding police, obstruction). William Moore (speeding, driving with suspended license). Antwan Applewhite (drunken driving suspicion). Alex Magee (marijuana possession). Garrett Wolfe (theft, disorderly conduct, assaulting an officer, resisting arrest with violence). Kenny Britt (resisting arrest). Javarris James (drug possession).Brandon Underwood (disorderly conduct). Raheem Brock (theft, resisting arrest). Akeem Jordan (assault and battery). Hines Ward (drunken driving). Pacman Jones (disorderly conduct while intoxicated and resisting arrest ).

The NFL has said all along that it will apply the Policy to players who violated it during the lockout. Here's what league spokesman Greg Aiello said on the matter:

“It is a league policy established by the commissioner. We review any violations of law by NFL employees for potential discipline. The personal conduct policy is not being applied to players now but will be applied when they return. Players will be held accountable for violations of law that occurred during the lockout.”

The Policy starts with this language:

"All persons associated with the NFL are required to avoid “conduct detrimental to the integrity of and public confidence in the National Football League.” This requirement applies to players, coaches, other team employees, owners, game officials and all others privileged to work in the National Football League."

The question is this: can the NFL enforce the Policy for conduct that occurred during the lockout?

Well the answer falls in a grey area. On the one hand, the NFL would argue that even though the players were locked out, they remained employees and the Policy covers the conduct of employees. On top of that, the Policy is not part of the CBA, which had expired.

On the flip side, the players would argue that the lockout deprived them of the benefits of their employment. That being said, how could they still be accountable to discharge their employment obligations?

So there is no clear cut answer on the issue. It's possible that the sides may have considered this in their negotiations. If they didn't, and the NFL looks to enforce the Policy, look for the reformed Union to fight it.

NFL Fan Code of Conduct - What Is It & Is It Enforceable?

On November 29, 2009, Jason Ensign went to a Chargers/Chiefs game at Qualcomm Stadium in San Diego. He was wearing his Chiefs jersey, and got jeered for it. In response, he yelled profanities and expressed his displeasure by extending one of his fingers.

Cue the incident.

Security guards forcibly removed him from his seat. He fought back biting and punching (sounds like a typical barbeque at my house). Ensign was then arrested and charged with misdemeanor battery.

The scuffle and Ensign's ensuing arrest gave way to a legal battle that focused on this question: is the NFL's Fan Code of Conduct enforceable?

NFL Implements Fan Code of Conduct

In 2008, the NFL implemented the Fan Code of Conduct to promote a positive fan environment at NFL stadiums. The NFL implemented the fan code of conduct as a reaction to fan complaints that drinking, the use of profanities, etc., made the game day experience unpleasant.

With the NFL also losing fans to the comfort of their home theatres, it needed to try and take a proactive step. That gave rise to the Fan Code of Conduct.

The NFL said that the Fan Code of Conduct was
“designed to set clear expectations and encourage a stadium environment that is enjoyable for all fans. Teams may add additional provisions to the standard code based on local circumstances or preferences. Each team will communicate its code of conduct during the preseason to season-ticket holders and fans through mailings, online, and in-stadium signage, and other messages.”
"The in-stadium experience is critically important to the NFL, our clubs and our fans and it will be a major focus this season," said NFL Commissioner Roger Goodell. "We are committed to improving the fan experience in every way we can -- from the time fans arrive in the parking lot to when they depart the stadium. We want everyone to be able to come to our stadiums and enjoy the entire day."

The Fan Code of Conduct is intended to address behavior that detracts from the game day experience. Any fan in violation of these provisions will be subject to ejection without refund and loss of ticket privileges for future games.

The Code

Here’s the Fan Code of Conduct:

The National Football League and its teams are committed to creating a safe, comfortable, and enjoyable experience for all fans, both in the stadium and in the parking lot. We want all fans attending our games to enjoy the experience in a responsible fashion. When attending a game, you are required to refrain from the following behaviors:

- Behavior that is unruly, disruptive, or illegal in nature.
- Intoxication or other signs of alcohol impairment that results in irresponsible behavior.
- Foul or abusive language or obscene gestures.
- Interference with the progress of the game (including throwing objects onto the field).
- Failing to follow instructions of stadium personnel.
- Verbal or physical harassment of opposing team fans.

So with the Ensign case, the issue was whether the NFL Fan Code of Conduct was enforceable. Were fans provided with sufficient notice of the Code making its application fair?

Yes - It's Enforceable

A San Diego Judge recently ruled that Ensign was subject to the NFL Fan Code of Conduct. So yes - it's enforceable. 

As a side note, the Judge dismissed the battery charge, saying that Ensign had every right to fight back.

From a legal standpoint, how does all this shake out?

Your Ticket is a License

A ticket to a sporting event constitutes a license to enter and remain at the stadium.

The operator of the event has the ability to place reasonable restrictions on that license, especially when the behavior of one licensee can negatively impact the experience of another licensee.

Ensign was an invitee or a licensee as a paying customer and accordingly he had to comply with the NFL's Fan Code of Conduct while at the stadium.

So the bottom line is that when you buy a ticket you are being granted a license to enter the stadium and you need to abide by the rules of that stadium. The Fan Code of Conduct was prominently displayed (appeared around the stadium, over urinals, etc.), so that became part of the deal.

As a side note, municipalities have laws against yelling obscenities in public place. So that could also kick in.

Finally, how often have we heard someone trying to claim the benefit of their First Amendment right to free speech? Don’t forget, though - freedom of speech relates to the expression of ideas and opinions, not the unrestrained yelling of profanities.

So yes – teams have the right to toss you from a game if your behaviour is not reasonable.

Frankly, since those would be the terms of any reasonable license, that applies whether there is a fan code of conduct in place or not.

Tuesday, August 23, 2011

Episode 10 - Offside: Link to Podcast of Live Show

Click here to link to a podcast of tonight's big show, Offside: The Business and Law of Sports.

We hit the Jefferson's, Zambrano, the sale of the Blues, the Coyotes and the NCAA. We also enjoyed the theme song to the classic show, WKRP in Cincinnati.

Saturday, August 20, 2011

What's More Impressive: 600 HRs or 3000 Hits?

Jim Thome hit his 600th home run on August 15.

You may remember that Derek Jeter recorded his 3000th hit in July. It was easy to miss as there was little in the way of press coverage. As a side note, I now own Jeter 3000 coasters, flip flops, shampoo, bicycle streamers, elastics, luggage, wine, toothbrush, dehumidifier, mattress, pajamas (with feet), cigars, mango, balm, pasta, tea set, washing machine, binoculars, nose ring, belt buckle, tap dance shoes, toaster, parachute and robot.

What is more impressive - 600 home runs or 3000 hits?

Maybe it's 3000 hits. There seems to be something more intellectual about 3000 hits - right?

However, when you take a closer look at the numbers, 600 home runs seems a little more impressive than 3000 hits. Why? So few have done it, and fewer without the help of A-Rod's cousin.

The 600 home run club is comprised of Barry Bonds, Hank Aaron, Babe Ruth, Willie Mays, Ken Griffey Jr., Sammy Sosa, and Alex Rodriguez.

If you remove A-Rod, Bonds and Sosa, Thome only becomes the 5th player ever to hit 600 home runs. By way of comparison, Jeter was number 28 to enter the 3000 hit club. Knock off Rafael Palmeiro, who made it clear he never took steroids, then the club has 27 members.

However, it does seem like you need to be pretty consistent to get 3000 hits. Same, though, goes with 600 home runs. Thome hit 20 plus home runs in 17 seasons. That's slightly absurd. And by the way, he's got 2265 hits.

Home runs also pay an immediate dividend for a team as it obviously drives in at least 1 run. A hit, however, may not be a homerun and may need further assistance from another player to get the run safely home.

I'm not saying that 3000 hits is not remarkable - it is. It just seems like it's a lot tougher to hit 600 home runs, and home runs have an immediate impact on the score.

So for me, 600 is more impressive than 3000. Indeed, 600 is the new 40 (and I don't know what that means).

Forbes.com: Sports Is Helping To Spur Growth In Boston

Adrianne Melville of Forbes.com has penned an article about the impact of sports on Boston's economy. 

In June 2011, Mayor Tom Menino reported that there were 163 major professional sports home games in Boston last year, which resulted in $300 million in fan spending.

Perhaps the most compelling stat in the article is that Boston’s population has grown at a faster pace over the past 10 years when compared to New York City, Chicago and San Francisco. On top of that, Boston has the highest proportion of the highly coveted 20 to 34 year-olds in all major U.S. cities:
According to the 2010 census, Boston’s population has grown to 617,594 over the last 10 years, a faster pace than New York City, Chicago and San Francisco. But more importantly, the census reveals that Boston now has the highest proportion of 20- to  34-year-olds in all major U.S. cities. This is a competitive demographic for cities across the country, as it generally reflects highly educated, entrepreneurial, top consumers who can contribute to a city’s social and cultural scene. Perhaps more important, members of this age group are generally huge sports fans.
As a side note, the article notes that experts say Fenway has about another 40 to 50 years of life remaining.

The article does not draw a direct link between sports and the economy. Still, it is interesting in that the impact of sport is undeniable. It also begs the question: how many people move to Boston because it is a successful and fun town, a perception which may be a direct result of its sports teams winning on a seemingly regular basis. Certainly, the article raises questions of the impact of sport on the perception of a city and how that translates to population growth.

Friday, August 19, 2011

Offside Learns That NHL Abandons Plan to Seek Formal Approval Process for Goalie Mask Artwork

Offside has learned that the NHL has agreed to abandon its efforts to implement a formal approval process for goalie mask artwork. Under the proposed rule, goalie masks would have needed to be approved by the NHL before they could be worn in a game.

The NHL and NHLPA had been discussing the matter for a number of years, with the NHLPA opposing the idea. The NHLPA argued that there was little on a goalie's mask that would ordinarily be considered objectionable. As well, for the most part, goaltenders did not display problematic artwork on their masks.

The NHLPA also noted that in the modest number of cases where the artwork was an issue for the NHL, goalies agreed to make the necessary changes.

The current policy governing goalie mask artwork will remain in place. This policy provides that club equipment managers will photograph all goalie masks at training camp and submit the photographs to the NHL and NHLPA for review. Should a mask be deemed problematic, the matter will be addressed with a view to finding a solution.

In order for goalies to avoid issues, their masks should not include images or references to alcohol, smoking, drugs, gambling, political commentary, profanity, graphic violence, nudity or other possible controversial topics. As well, masks may not display commercial branding (except of course in cases of league-approved logos).

Accordingly, while the NHL will continue to exercise some degree of control over goalies masks, the absence of a formal process is less onerous on players. The NHLPA is undoubtedly pleased with this outcome.

Practically speaking, however, the outcomes are unlikely to differ, as under either policy, the NHL could still express their displeasure with a mask with a view to getting it changed.

Should forwards and defensemen be permitted to dress up their helmets? Discuss.

Tuesday, August 9, 2011

Offside Radio Show Tonight: Player Deals, Exec Editor of Sports Business Journal

Fun show on tap today at 6pm ET on the Team 1200.

We will cover the economics of the Blake Griffin/Kia dunk and what that meant for all involved (ran out of time last week - sorry). We will also talk player endorsement deals generally (Vick, Tiger, etc.) and how marketable players like Clemens and Bonds are.

We will also be interviewing Abraham Madkour, executive editor of the Sports Business Journal. Abraham is really good on the radio. Should be good one.

Wednesday, August 3, 2011

NBA Players Going Overseas: Impact Overstated & Risky Move

In July, the head of the NBA Union (NBPA) Billy Hunter issued a memo to his players encouraging them to play in Europe and elsewhere during the lockout.

The thinking behind having players go abroad is to put pressure on the NBA and its owners in the CBA negotiations. Basically, with its players making money abroad, the Union could then argue to the owners that the players don't need them.

"This lockout is intended to economically pressure our players to agree to an unfavorable collective bargaining agreement," Hunter wrote in his memo. "It is important for the owners to understand that there may be significant consequences to their decision to put their own players in these difficult economic circumstances.

"If the owners will not give our players a forum in which to play basketball here in the United States, they risk losing the greatest players in the world to the international basketball federations that are more than willing to employ them."

Problem is that the impact of NBA players playing overseas with a view to extracting leverage in CBA negotiations is very much overstated. Shooting hoops in Europe, China or India isn't going to force the NBA's hand one bit, and if history is any indication, the impact may well be non-existent.

In 2004-05, the NHL locked out its players and ultimately lost an entire season. Locked out, NHL players decided to head overseas and play hockey. And a lot of them went.

Over half the NHL population played overseas with a total of 388 players playing abroad. The list of players is impressive: Thornton, Chara, Nash, Morrison, Ovechkin, Boyle, Alfredsson, Heatley, Forsberg, Sedin twins, Aucoin, Fisher, Naslund, Chris Mason, Hartnell, Lecavalier and Richards. This list goes on.

And what impact did this have on negotiations on domestic soil? None. Zero. Zilch. Nada.

In fact, it probably reminded NHL players how good they had it here. Remember, playing abroad isn't all roses. Practically speaking, some players never get paid, the culture can be tough to deal with and safety can become an issue for players and their families. That's not to mention some guys had to watch Putin do push ups on their front lawn.

Oh yes - one more tiny point: if a player gets hurt playing abroad, his contract can be voided by the NBA team. Contracts don't protect players from playing abroad (or in summer leagues for that matter), and if they get hurt that can be the end of their careers.

Tuesday, August 2, 2011

Menu for Tonight's Offside Radio Show

Another packed hour on the Offside radio show, where we talk the business and law of sports. Listen live at 1200AM or pick up the Podcast afterwards at http://www.team1200.com/.

We will hit the following topics:

1) The economics of Blake Griffin's dunk over the Kia Optima car during All-Star weekend. It had a tremendous impact for all brands involved, especially Kia.

2) The latest on the NBA lockout. We will talk about the lawsuit filed today as well as the labor law complaint filed by the owners. We will also discuss the significant (or lack thereof) of NBA players playing abroad as far as leverage for the Union.

3) We will talk the Isles failed attempt to get enough votes for public funding of an arena.