Friday, September 30, 2011

Pryor Suspension Upheld; Players Unhappy with Union?

Word came out today that the NFL upheld its 5 game suspension of former Buckeyes QB Terrelle Pryor. Drafted by the Raiders (which is punishment enough), Pryor was technically suspended by the NFL for manipulating the draft to avoid NCAA punishment. To players, though, it looks like Pryor was punished for his NCAA violation (trading memorabilia for cash and discounted tatoos). Some NFL players don't like the optics - a player being suspended by the NFL for stuff he did when he was not an employee of the NFL. For some players worse is that the NFLPA didn't fight this aggressively.

Something tells me this isn't done. Just ask Cedric Benson.

Benson, Pryor & Retired Players - NFLPA Getting Heat from All Angles

The National Football League Players Association (NFLPA) must feel like it's getting heat from a whole bunch of angles - from a current player, from a current player fresh out of college and from retired players.

Let's break it down.

(a) Cedric Benson

On July 17, 2011, Cedric Benson was arrested in Austin, Texas on a misdemeanor charge of assault causing bodily injury after punching a former roommate in the face. He was sentenced to 20 days in jail and ordered to pay a $4,000 fine. Benson was released from jail on September 3, after serving 5 days.

The NFL suspended Benson 3 games for this incident saying he violated the league's Personal Conduct Policy. Under the Policy, the league can punish a player if he engages in conduct that is detrimental to the league.

For Benson, this wasn't his first offence. On June 29, 2010, Benson was arrested for assault after reportedly punching a bartender in the face.

Benson punched the former roommate during the NFL lockout. All along the NFL has said that the Policy would apply during the lockout, while players were of the view that the Policy didn't apply during the lockout.

The NFL reasoned that even though the players were locked out, they remained employees and the Policy covers the conduct of employees. On the flip side, the players argued that the lockout deprived them of their employment benefits. Under the circumstances, how could they still be accountable to discharge their employment obligations? (Read Offside's story on the application of the Policy during the lockout here).

There was no clear cut answer to whether the Policy from a legal standpoint could apply. To erase that doubt, during CBA talks, the NFL and the NFLPA (or technically the players) agreed that 8 players that had engaged in misconduct during the lockout and who were repeat offenders could be disciplined under the Policy. The rest of the players that had been involved in incidents during the lockout would walk (about 25 players).

There is a letter signed by NFL lawyer Jeff Pash and NFLPA head DeMaurice Smith setting this out. Here's an excerpt:
"The Commissioner has determined that the following players are repeat offenders subject to discipline for conduct during the Period: Cedric Benson, Kenny Britt, Clark Haggans, Albert Haynesworth, Johhny Jolly, Adam Jones, Aqib Talib, and Brandon Underwood."
So when Benson was suspended for 3 games, his lawyer got to work. Benson did 2 things. First, he filed an appeal with the NFL challenging the suspension. He argued that he was a free agent at the time and therefore had no employment relationship with the league.

The second thing he did was go after his own Union. He filed an unfair labor practice charge with the National Labor Relations Board (NLRB) against the NFLPA. Specifically, he claimed that since the NFLPA wasn't a Union after decertifying during the lockout it couldn't make an agreement with the NFL regarding which players who could be disciplined.

Benson also feels like he was thrown under the bus by his own Union, and that the Union, which should represent his own best interests, didn't have his back.

"You would think they're here to support you and have your back - that's what a union does. I guess in my case, it's different" Benson said.

And don't forget - 2 other players on that list of 8 (Britt and Talib) were charged with far more serious crimes than Benson. Still, the NFL did not suspend them ( Read Offside story, "Britt & Talib Avoid Suspensions; Will Any NFL Players Be Suspended For Lockout Incidents?".

The NFLPA has said that it never abandoned the right to challenge any discipline imposed on the 8 players. However, for Benson, this distinction doesn't seem to cut it. He's not happy that from his perspective he was served up as a sacrificial lamb.

In his eyes, his own Union let him down.

(b) Terrelle Pryor

While a member of the  Ohio State Buckeyes, Pryor and other players traded memorabilia for cash and discounted tattoos. Pryor was suspended for 5 games by the NCAA for these violations.

After the NCAA handed down its 5 game suspension, in the view of the NFL, Pryor manipulated the draft system to get tossed off the team with a view to making himself eligible for the NFL's Supplemental Draft. Among other things, Pryor hired an agent and refused to cooperate with the NCAA.

So the NFL felt that Pryor manipulated the draft system to avoid punishment by the NCAA.

The NFL let him enter the draft but only after he agreed to a 5 game suspension.

The NFL's legal basis to suspend Pryor was that his draft manipulation was contrary to the NFL's Constitution. However, to some it looked like Pryor was being suspended by the NFL for something he did while he was not an employee of the NFL.

All that being said, the NFLPA is said to have agreed to the punishment and wasn't too enthusiastic about an appeal, and jumped on board the appeal a bit late.

Some players don't like how this looks. In their view Pryor was disciplined by the NFL for stuff he did when he wasn't employed by the NFL. For the players, that sets a bad precedent, and for that reason that NFLPA should have fought this from the outset. Moreover, some players believe the Union should never have agreed to the suspension in the first place.

(c) Retired Players Sue Union

A group of retired players have sued the NFLPA alleging that it did not have the authority to negotiate a deal for the retired players during the CBA negotiations. The lawsuit alleges that when the NFLPA decertified as a Union it lost the right to negotiate retirees' benefits in the new CBA. Basically, retired players feel shortchanged by the deal, and believe that they were sacrificed to gain a better deal for current players.

Particularly in the case of Pryor and Benson, there is a perception among some players that they were sacrificed by the NFLPA and that the Union did not exercise its obligation to protect the best interests of the players.

In order for a union to be able to perform effectively, it must have the confidence and trust of its employees. These two cases may have shaken that trust somewhat, particularly given the perceived lack of transparency. The NFLPA may need to make some adjustments to ensure that the majority of its players are comfortable with the Union's leadership.

If adjustments are not made, I would be concerned about player solidarity moving forward.

Thursday, September 29, 2011

Wednesday, September 28, 2011

Tonight on Offside: Tampa Bay Rays VP & Author of New Jets Book on Sale of Team

Tonight on Offside: the Business & Law of Sports, we interview Darcy Raymond.

Darcy is a Montreal native who is now the Vice-President of Branding and Fan Experience for the Tampa Bay Rays. A Harvard grad and formerly a global brand manager at Procter & Gamble, where he worked on the launch of the Swiffer product, Darcy brings a lot of insight. Very articulate guy as well. Promises.

We will also interview Randy Turner, who has authored the book, Back In the Bigs: How Winnipeg Won, Lost and Regained Its Place in the NHL. The book hasn't been released yet (goes on sale October 4), but we've had a look. It's very good and has some surprises. Turner is also a bit of a wordsmith.

Offside - tonight from 6 to 7pm ET. Podcast subsequently available.

Monday, September 26, 2011

It's the Brooklyn Nets in 2012

The New Jersey Nets will become the Brooklyn Nets once the team moves into its new home at the Barclays Center in September 2012.

In December 2010, 4 U.S. trademark applications for the trademark Brooklyn New Yorkers were filed. This suggested that the new name would be the New Yorkers. However, the announcement today confirms that the name is going to be Brooklyn Nets.

Certainly unusual for a team to announced its new name a year ahead. This may well adversely impact the sale of merchandise.

As for the U.S. trademark applications for the Brooklyn New Yorkers? They remain active. Remains to be seen if they will go abandoned. If the new name is indeed the Nets, they should.

As for the Brooklyn Nets, there are 9 pending U.S. trademark applications for the mark Brooklyn Nets. They were filed by New Jersey Basketball, LLC, which owns the Nets.

Brooklyn native Jay-Z is a minority owner of the Nets, while Russian businessman Mikhail Prokhorov agreed to a $200 million deal to become a principal owner of the Nets in September 2009.

The Nets would be the first major professional sports team to play home games in Brooklyn since the departure of the Dodgers.

Could the NHL See New Fans As A Result of NBA Lockout?

It has been asked quite often: could the NHL see a boost in interest if the NBA misses time?

It's tough to see a scenario where the NHL attracts new fans that are only watching because there is no NBA.

To make my point - let me flip it around for those of you that are hockey fans: when the NHL locked out its players for an entire season in 2004-05, did you turn to the NBA for entertainment if in fact you were not a fan of the NBA? Probably not.

Sports fans who like hockey and basketball will watch hockey during the NBA lockout, just like they were able to multi-task last season by watching both. Similarly, those that don't like hockey are unlikely to gravitate to the sport.

However, I do see a possible boost for the NHL by way of the reallocation of sponsor and corporate dollars. Money that would have gone to the NBA could be redirected by businesses to the NHL by way of luxury suites, tickets and advertisements. A number of NHL and NBA teams play in the same arena, and so it could be a rather seamless transition for a business, that once invested its marketing budget in basketball, to say yes to hockey.

As well, some fans in the past may have decided to spend their money on NBA games over NHL despite being a fan of the NHL. So there could also be a boost in attendance and ticket revenue from existing fans who previously preferred to spend their disposable income on the NBA. This also includes fans attending more NHL games.

Finally, we could also see a boost in TV ratings. With busy schedules and family responsibilities, fans may not have had the time to watch as much NHL hockey as they wanted to. However, if the NBA is out the picture so to speak, fans may be able to watch more hockey.

So a significant number of new fans? Doesn't seem likely. Still, it may convert existing casual fans into more committed fans.

Higher TV, ad and ticket revenue? Absolutely.

Sunday, September 25, 2011

Holyfield Sides With Mayweather and not Ortiz

Great Evander Holyfield interview by Brad Cooney over at 8CN on the Mayweather/Ortiz fight. Holyfield sides with Mayweather saying it wasn't a cheap shot.

Read the interview here.

Wednesday, September 21, 2011

Radio Clip With Drew Remenda from CJME 980: We Hit Full Tilt in Fascinating Exchange

Was back on with Sports Night on CJME with Drew Remenda in Saskatchewan. As usual, Drew had fascinating and insightful questions. Drew is a great listen. We really dissect the Full Tilt Poker situation.

TSN Radio Clip: Byfuglien, Full Tilt Poker and Clemens

Click here to listen to my clip with Brian Hayes from TSN Toronto Radio. We talk Dustin Byfuglien, Full Tilt Poker, and Roger Clemens.

Full Tilt Poker’s Alleged Ponzi Scheme & The Legal Basics

Online gambling is a multi-billion dollar business. Some estimates value the online gambling business at about $30 billion dollars, and it will grow to $177 billion by 2015.

On September 20, the U.S. government amended its claim in a civil lawsuit alleging that the owners of Full Tilt Poker engaged in a Ponzi Scheme to milk its customers out of over $300 million.

Since it “amended” its claim, this means that the lawsuit was already launched.

How did we get here and what is going on? Here’s the background.

The 2 Separate Streams: Civil & Criminal

The U.S. government started this off earlier this year by doing 2 things:

(1) The U.S. pressed criminal charges against the owners of a number of online gambling sites, including Full Tilt Poker and PokerStars alleging that these businesses had engaged in criminal activity contrary to U.S. law. The owners have been indicted. An indictment is a formal accusation that a person has committed a crime.

(2) The U.S. government also filed civil suits against a number of online gambling sites, including Full Tilt Poker, Pokerstars, Absolute Poker and Ultimate Bet. The government alleged that the sites “engaged in the operation of an unlawful gambling business, bank fraud, wire fraud, and money laundering”. In a civil suit, you sue for money (generally), while criminal involves jail.

The Legality of Online Gambling in the U.S.

On September 29, 2006, the U.S. passed a law call the Unlawful Internet Gambling Enforcement Act (UIGEA).

The law does not outlaw online gambling. However, it does make it illegal for financial institutions, such as banks and credit card companies, to transfer funds to online gambling sites. That’s the important point here.

This was a huge problem for online gaming sites because they would transfer funds between customers and their sites by using financial institutions. So this law effectively cut out a major market for these businesses. They were not happy.

Full Tilt & Other Online Gambling Business Try To Get Around Law

So why are Full Tilt Poker, AbsolutePoker and PokerStars businesses in trouble?

To get around the new law, prosecutors allege, Full Tilt and the others created phony companies, such as fake pet shops and flower stores, to process payments.

They lied to banks about the true nature of their businesses by disguising their ongoing transactions with cherished American clients as something it wasn't.

Civil Claim Is Updated on September 20

On September 20, the U.S. government amended its civil complaint alleging that Full Tilt Poker defrauded its own customers out of $300 plus million.

Here’s the allegation from the Court document:
… Full Tilt Poker, not only engaged in the operation of an unlawful gambling business, bank fraud, wire fraud, and money laundering as alleged in the Complaint, but also defrauded its poker players by misrepresenting to players that funds deposited into their online player accounts were secure and segregated from operating funds, while at the same time using player funds to pay out hundreds of millions of dollars to Full Tilt Poker owners.
The U.S. government called this a Ponzi scheme. Click here to readthe amended complaint.

According to the U.S. government, here are some more financials:

- as of March 31, 2011, Full Tilt Poker owed approximately $390 million to players around the world, including approximately $150 million owed to players in the U.S. At that time, it only had $60 million in the bank

- between April 2007 until April 2011, Full Tilt Poker distributed approximately $443,860,529.89 to themselves and other owners of the company.

Tough To Get These Businesses

A lot of the owners of these businesses are outside the reach of the U.S. governement. For example, the owner of PokerStars, Isai Scheinberg, lives the Isle of Man located in the Irish Sea. The island is 52 kilometres long. He’s outside the U.S. jurisdiction's reach. So for now, he’s a fugitive.

Legality of Online Gambling In Canada

You may be wondering (if you are Canadian or have a Canadian cousin) if online gambling is legal in Canada when it comes to private businesses.

Short answer – no.

Slightly longer answer - the Canadian Criminal Code covers gambling in Canada, including online gambling.

To conduct legal gambling and betting in Canada, a valid license must be obtained from the provincial government. Only the provincial governments can run online gaming operations. They are not permitted under the Code to issue licenses to run such operations.

The operation of an unlicensed or unlawful gambling is an indictable offence.

Tuesday, September 20, 2011

Tonight on Offside: The Business & Law of Sports

Tonight on Offside: The Business & Law of Sports, we will give you everything you need to know about the legalities of the Dustin Byfuglien case. Today, charges were laid, so this is moving ahead with a Court date of October 21.

Given the Maple Leaf announcement that Purolator will be placing ads on practice jerseys, we look at the economics behind the practice and whether this will become widespread.

We will also chat about the latest NFL lawsuit by retired players.

Show airs tonight live on the Team 1200 in Ottawa between 6 and 7ET. For those beyond the signal, you can go to and stream it.

Primer on Byfuglien & His Boating While Intoxicated Charges

On August 31, 2011, Winnipeg Jets defenceman/forward Dustin Ray Byfuglien was arrested on Lake Minnetonka in the state of Minneapolis on suspicion of boating while intoxicated (or a BWI).

If you heard he passed the breathalyser, you are right.

It broke today Byfuglien has been charged with BWI among other charges.

So why was he then arrested on suspicion of being intoxicated in the first place? Good question. Let’s take a look back.

What happened that night Byfuglien was arrested?

Minneapolis-based lawyer Mitch Robinson said Byfuglien’s boat was pulled over on the evening of August 31 by Hennepin County sheriffs because the craft’s navigational lights weren’t on. Byfuglien had 3 passengers on board. It was about 8:15 p.m. when the boat was stopped by police.

After a routine inspection of the vessel, police asked Byfuglien if he had been drinking, to which he responded he had had one drink.

Did Byfuglien take the breathalyser at this point?

Yes. Byfuglien was asked to submit to a breathalyser, to which he agreed. According to reports, he tested at 0.03% - well below the legal limit of 0.08%.

So he passed - shouldn’t that be the end of it then?

No. A person may still be arrested and charged with boating while impaired even if their blood alcohol concentration is less than .08% if they display signs or behavior consistent with impairment. If the officer has reasonable grounds to suspect that a person is impaired, that officer may lawfully request that the person submit to a blood or urine test.

So the officer needs to have probable cause to believe that the person is impaired beyond the legal limit.

As per the police report, here are some of the factors that may have constituted probable cause:

- he was unable to successfully perform field sobriety tests as requested 
- his pulse rate and blood pressure were high 
- his eyes were watery  
- he had a distinct brown stain on his tongue 
- he had trouble speaking, was unsteady on his feet and smelled of alcohol

Is it a crime to refuse a Urine Test?

Refusing to take a urine or blood test is a crime. If you want to read the actual law click here.

One important note - if you refuse to submit to a blood test, the officer must offer you a urine test before you can be charged with refusal. In other words, unless you refuse both a urine and a blood test, you’re not guilty of test refusal.

Is the crime of refusal serious?

Yes. In fact it’s more serious than actually submitting to the test and testing above the legal limit.

For a first time offender whose alcohol concentration is over the legal limit, the crime is characterized as a misdemeanour. Misdemeanors are crimes punishable by up to 90 days in jail and/or a fine of up to $1,000. The person would also lose motorboat operating privileges for 90 boating season days.

However, if you refuse a blood and urine test, then the misdemeanor is converted into a gross misdemeanor. That’s worse. Gross misdemeanors are crimes punishable by up to one year in jail and/or a fine of up to $3,000.

The Minnesota House of Representatives has a good table summary on the different types of criminal offences.

What’s the difference between a DUI and a BWI?

BWI laws differ from DUI laws in a number of ways. One of important distinction is that in the case of a DUI, an officer needs to have a reasonable suspicion to order to stop your vehicle while you’re driving. However, with a BWI, an officer may board a boat simply for safety or security reasons. If an officer notices the smell of alcohol, or sees evidence of alcohol consumption, he or she may investigate for BWI.

While we’re at it, what’s the difference between a DUI and DWI?

DUI stands for “driving under the influence”. DWI means “driving while intoxicated” (which is basically the same as BWI). These are two different ways to violate Minnesota's prohibition against impaired driving. A person is guilty of a DUI if his or her consumption of alcohol impaired his or her ability to operate a motor vehicle. A person is guilty of driving while intoxicated (DWI) if his or her alcohol concentration is measured at .08 or more, as disclosed by a breath, blood or urine test, within two hours of driving, operating, or physically controlling a motor vehicle.

Why is the urine test even used?

Many are asking why Byfuglien had to submit to a urine or blood test if he passed the breathalyser with flying colours.

Simply put, the argument is that while your average person’s blood alcohol steadily decreases over time, the same isn’t the case for alcohol in a person’s bladder. In fact, there is some evidence that urine alcohol, compared to blood alcohol, doesn’t decrease at all.

The Courts, though, are still looking at the legality of these tests in Minnesota.

Will Byfuglien be able to get back into Canada when travelling with the team?

Entry into Canada is solely determined by the Canada Border Services Agency. Their policy provides that a person may be denied entry into Canada if he or she is guilty of a criminal offence or has committed a crime.

The word “may” is key since it means that the Agency has the discretion to refuse a person entry. At this point, Byfuglien has been charged but not convicted. So in all likelihood, he will be permitted to re-enter Canada.

What if he is convicted – could Canada deny him entry?

Yes. Byfuglien would need to apply to the Canadian government for a temporary resident permit to enter the country. If granted, the order would expire after one year. He would need to keep re-applying each year for 5 years before he tries to get the permit permanent.

In order to get the permit, he would need to show that he is not a threat to re-offend and that he has a good reason to be in Canada. On the latter point, his job requires that he travel, so that economic reason should help a lot.

Overall, if convicted, thing could get a bit messy. For now, though, we shouldn’t expect that he won’t be able to lace 'em up in Canada.

He is scheduled to appear in a Minnesota Court October 21.

Thursday, September 15, 2011

Offside Obtains The NHL's Social Media Policy; Potential Fines Are Low

Today, the NHL announced the implementation of its Social Media Policy, which governs the use by players and club personnel of social media.

Offside has obtained the NHL's Social Media Policy as well as information about the NHLPA's initial concerns. Here are some of the key points:

1) Several months ago, the NHL approached the NHLPA to discuss implementing a policy dealing with the appropriate use of social media. While the original draft the NHL provided to the NHLPA recognized that social media was a valuable tool in connecting players with fans, it also contained significant restrictions on the manner in which players could engage the public on game days.

As well, the NHLPA wanted to ensure that a league-wide policy would preclude individual teams from implementing their own policies. The concern was that competing polices could be conflicting in nature.

The NHLPA's concerns were addressed by the NHL. The Policy is league wide, and teams can't adopt their own policies. As per the Policy, "with the adoption of this League-wide policy, Clubs will be precluded from adopting their own individual policies relating to the use of social media by Players."

2) The Policy defines social media as follows: "public communications via internet websites such as Twitter, Facebook, MySpace, LinkedIn, Foursquare, etc.". The "etc." means that the list is not exhaustive.

3) The Policy provides 6 useful tips for players when using social media:

(a) Recognize the permanency of social media

(b) Be mindful that you are responsible for your online postings.

(c) Online submissions should indicate that the comments are those of the player and are not the views of the club or the league.

(It may be difficult to create this separation. Players are so closely associated with their teams, that the tweets (for example) would be associated back to the club. Indeed, when used properly, Twitter, and other social media platforms, can be effective promotional tools for teams and their players.)

(d) Be respectful.

(e) Don't reveal confidential or proprietary information, such as game strategies or injuries. As well, the Policy provides that players should be "mindful of publicizing too much personal information about yourself or others with whom you play or work; this includes disclosing your physical location".

(f) Pause before making an online posting and exercise good judgement (please see Mendenhall, Moral Clauses & His Talent Agreement).

The Policy also provides that "use of social media by players is prohibited beginning two (2) hours prior to the opening face-off and ending upon cessation of post-game media obligations".

Players that fail to comply with the rule may be disciplined. At law, this is not mandatory language (unlike the word "shall"). So that means that if a player runs afoul of the Policy, the fine is discretionary.

Fines are assessed pursuant to Exhibit 14 of the CBA. This Exhibit is entitled "Form Of Standard Club Rules" and sets out the conduct expected of players, from having to "wear jackets, ties and pants" when travelling to not gambling on games.

This part of the CBA does not expressly address social media. However, Note 2 provides that amendments may be made by the NHL to the club rules with the approval of the NHLPA:
Subject to the joint consent of the NHL and the NHLPA, which shall not be unreasonably withheld, each Club may make up to three (3) modifications and/or amendments to the Standard Club Rules.
For the first offence, the fine can't exceed $250, while the second fine can't be more than $500. These fines would not deter non-compliance by themselves. The idea, I suspect, is that the Policy will deter it.

If disciplined, fines "shall be collected and held for use at an appropriate team function involving the Players and donated to a charity of the Players' choice".

Finally, the Policy warns players that they cannot criticize the league or its officials.

Would Colts Ever Cut Peyton Manning?

At the end of July, the Indianapolis Colts signed QB Peyton Manning to a massive 5 year, $90 million contract that pays him $69 million in the first 3 years.

Last week, Manning had his 3rd neck surgery in 19 months putting his season in doubt. Manning is 35 years old.

If NFL history is any indicator, Manning has another three or four years left. As quarterbacks hit their late 30s, they generally don't meet with success. Their physical abilities diminish, mental acuity depreciates and the constant physical punishment quarterbacks endure takes its toll. This, of course, is not breaking news.

There are few quarterbacks that have won a playoff game after the age of 39. Brett Favre did it for the Vikings in 2009. Before Favre, the only other quarterback to win a playoff game since 1983 was Phill Simms, who did it in 1993.

Seventeen quarterbacks have played at the age of 40, including Doug Flutie (43), Sonny Jurgensen (40), Vinny Testaverde (44), Warren Moon (44) and Favre (41).

So it's not unreasonable to conclude that Manning's best years are behind him and that he won't play to the age of 40. Of course, Manning is different than your average quarterback - or above average QB for that matter. He is extremely bright, always prepared and lives and breaths the game. If anyone can be effective past 40, it's Manning.

Still, the Colts must begin to look to the future (Andrew Luck anyone?). That's where Manning's contract structure becomes relevant.

The Colts have the option of cutting Manning (cue the gasp). Manning will make $26.4 million this year - whether he plays or not. The Colts, though, have the option of cutting Manning next season by the 4th day of the season, and if they do so they will owe him nothing on what's left on his $90 million contract.

That's right - there is no guaranteed money beyond this first year.

With Manning's future in doubt, you have to bet the Colts are looking at their options.

Still, the Colts cutting Manning would be like the Vatican cutting the Pope.

Tough to see. On the table though. It has to - football is a business. And for the record, this wouldn't be the first time the Pope has been cut.

Monday, September 12, 2011

NBA Players To Get Some Money Back

According to ESPN, NBA players from last season will collectively be getting $190 million back this month. 

The money is being paid because NBA teams failed to spend 57% of basketball-related income (BRI) on player salaries as required by the terms of the now-expired CBA.

Same thing goes in the NHL by the way. Players get a percentage of revenue (57%). If it's not all spent on salaries, then it goes back to the players. So if you are one of the people who is saying that the NHL needs to get rid of the salary floor or reduce it dramatically, that may not solve things as players remain entitled to a percentage of revenue - whether spent or not. So that means for the salary floor to disappear, the revenue sharing arrangement would need to be altered.

Saturday, September 10, 2011

What Pryor's Appeal Means

It has been reported that former Ohio State Buckeyes QB Terrelle Pryor will appeal his 5 game suspension imposed by the NFL.

The NFL feels that Pryor manipulated the NFL draft system to avoid punishment by the NCAA. In so doing, he undermined the integrity of the draft and was therefore suspended. In sabotaging his college eligibility and making himself available for the Supplemental Draft, Pryor avoided his NCAA punishment.

The perception is that the NFL suspended Pryor for his NCAA violations (and specifically for not serving the suspension).

The NFL's position, however, is that it did not suspend Pryor for his NCAA violations per se. Rather, the NFL relied on its own Constitution, which provides that the Commish can do whatever he feels is necessary in the "best interest of the league" to address "any conduct detrimental" to the NFL.

So that means that the NFL technically suspended Pryor for manipulating the draft system to gain eligibility under questionable circumstances. Remember, Pryor intended to play his senior year and didn't declare himself eligible for the regular draft. But when he was suspended, he hired an agent and refused to cooperate with the NCAA, setting off a chain of events leading to today.

Pryor will likely argue that even though the NFL has relied on its Constitution, he is effectively being disciplined by the NFL for something he did when he was not an employee of the NFL.

A number of players wanted to see an appeal because they felt the suspension went too far. The NFL, however, thought it was just right.

By the way, as a result of the suspension, Pryor stands to lose $110,000 of is $375,000 salary. On appeal, it may be possible to see that amount drop. So just for that reason, an appeal doesn't seem unreasonable.

This promises to be interesting.

Thursday, September 8, 2011

Wednesday, September 7, 2011

Link to Podcast of Offside: The Business and Law of Sports

If you missed Offside: The Business and Law of Sports this week, and want to listen to it, click here.

We covered the business and legal case against fighting in the NHL. We also intended to cover Pryor, Tressel, Bonds, Clemens and tips for first dates, but the topic of fighting in the NHL ate up the whole hour.

Tuesday, September 6, 2011

Q & A: Legal Primer On Terrelle Pryor (With Some Tressel)

Why was Pryor suspended by the NCAA?

Pryor and other players traded Ohio State Buckeyes memorabilia for cash and discounted tattoos. Pryor was suspended for 5 games (given that people don’t work as hard when they are doing so at a discount, I’m not sure I’m a fan of discounted tattoos).

What kind of player was Pryor at Ohio State?

Pryor is an impressive physical specimen, measuring 6-foot-5 and 232 pounds and having been clocked at 4.36 seconds in the 40-yard dash. He's coming off his best season statistically at Ohio State, throwing for 2,772 yards and 27 touchdowns with 11 interceptions.

Given is size and speed, some believe he may end up being a wide receiver.

How long is Pryor’s NFL suspension?

He was suspended for 5 games – the same number of games he would have sat out had he returned to Ohio State.

Apparently there is no truth to the rumour that when Pryor heard he was drafted by the Raiders, he asked/begged that his suspension be doubled to 10 games.

With the NFL’s suspension, Pryor forfeits $110,000 of his $375,000 salary for 2011. He also can’t practice with the team. If he appealed, the sides may have settled and Pryor could have recouped maybe $25,000 plus in lost income.

Why did the NFL suspend Pryor?

The NFL feels that Pryor manipulated the draft system to avoid punishment by the NCAA and to gain entry to the NFL. In so doing, he undermined the integrity of the draft.

More please

He initially planned to spend his senior year at Ohio state and as a result missed the regular draft.

After the NCAA handed down its 5 game suspension, Pryor manipulated the system to get tossed off the team with a view to making himself eligible for the Supplemental Draft. Among other things, Pryor hired an agent and refused to cooperate with the NCAA.

The NFL wanted to protect the integrity of the draft process. And likely protect and preserve its relationship with the NCAA, its farm system.

What does the NFL hope to accomplish with Pryor’s suspension?

The NFL is hoping the suspension will discourage future college players who violate NCAA rules from trying to use the NFL as a means of escaping punishment.

The NFL doesn’t want players to get themselves kicked off college teams if they have committed an NCAA violation, signing with agents, and requesting draft eligibility for the Supplemental Draft.

What was the legal basis for the NFL suspending Pryor?

So where does the authority to suspend Pryor come from? According to NFL spokesman Greg Aiello, it comes from Article 8.6 of the NFL Constitution and By-Laws.

It provides that the “Commissioner is authorized…to take appropriate steps as he deems necessary and proper in the best interests of the league…whenever any party or organization not a member of, employed by, or connected with the league or any member thereof is guilty of any conduct detrimental either to the league, its member clubs or employees, or to professional football.”

So Pryor’s actions of manipulating the draft system undermined the integrity of the draft, which Goodell saw as “conduct detrimental” to the league. That enabled him to act and suspend Pryor.

The CBA does not contain any express provisions regarding the ability of the NFL to impose suspensions on players based upon the manner in which they attempt to secure eligibility for the Supplemental Draft. Still, they have broad rights under the Constitution.

What Did Goodell write in his letter to Pryor?

In a letter to Pryor, Goodell wrote as follows:

“I do not believe that a player who has affirmatively acted contrary to NCAA rules should automatically and immediately be deemed eligible to pursue a potentially lucrative career in the NFL. Doing so would be inconsistent with common-sense notions of accountability and personal responsibility, and distorts our own eligibility principles. Accordingly, I believe that it would be entirely appropriate to find you ineligible for the Supplemental Draft, and to require you to defer entry into the NFL until the regular April 2012 College Draft.”

Godell also cited “the NFL’s historic support for college football” in explaining the decision.

Even though Goodell wrote that it was “entirely appropriate” for Pryor to be deemed ineligible for the draft, he decided that Pryor would become eligible for the draft if he served a 5 game suspension.

What was the reaction from Pryor’s Camp?

It was mixed. Initially, his camp said they would not appeal the decision.

"We accept that voluntarily," Pryor's agent, Drew Rosenhaus from Next Question fame, told The Associated Press. "It's a small price to pay for him to have a chance to pursue his dream of playing in the NFL."

The NFLPA appears to have been on board with the penalty. Apparently, the NFLPA agreed with the intended approach. However, they have since said they would support an appeal.

Later on, Pryor’s lawyer, David Cornwell, indicated that they might appeal.

“We have the right to appeal within three days after Terrelle signs an NFL contract,” Cornwell said. “And given some of the developments — both in reaching the decision and comments out of the (NFL Players' Association) regarding the decision — I think it's likely that we will file an appeal, and give the Players' Association an opportunity to make its objections to this on the record.”

Cornwell added,

“We have the right to appeal within three days after Terrelle signs an NFL contract,” Cornwell said. “And given some of the developments — both in reaching the decision and comments out of the (NFL Players' Association) regarding the decision — I think it's likely that we will file an appeal, and give the Players' Association an opportunity to make its objections to this on the record.”

It was reported over Labor Day weekend that Pryor was in fact going to appeal. A subsequent report clarified the situation, explaining that Cornwell had written Goodell indicating that Pryor reserved his right to appeal. From a legal standpoint, it’s not clear whether Pryor has preserved his right to appeal by reserving that right. He signed is deal on August 25.

Complicating matters is a very unfortunate development: Cornwell has suffered a stroke.

How long did Pryor have to appeal the suspension?

Pryor had 3 days from signing his deal to appeal the suspension. This is captured by Article 46 of the CBA at Section 1(a), which provides that within 3 “business days following such written notification, the player affected thereby, or the NFLPA with the player’s approval, may appeal in writing to the Commissioner”.

Again, Cornwell may have preserved is right of appeal. Not clear though.

What are the implications of the suspension?

The issue here is this – to what extent can the Commissioner discipline incoming players for pre-employment actions?

To what extent can the NFL discipline someone for actions taken when they were not an employee?

Remember that the NFL did not expressly discipline Pryor for his NCAA transgressions. Rather, the NFL disciplined Pryor for sabotaging his college eligibility with a view to gaining entry into the NFL. So he was technically disciplined for undermining the integrity of the draft.

Some would argue, though, that’s not how it looks and that Goodell has awarded himself jurisdiction over enforcement of NCAA violations for incoming rookies.

The implications are interesting.

What happens if Cam Newton is implicated by the NCAA’s investigation of Auburn? Does Goodell go after Newton?

What happens if current NFL players are implicated in the scandal at the University of Miami? Does Goodell go after them?

What of Reggie Bush?

We’re not going to be reaching backward and penalizing people for breaking NCAA rules five, six years ago” Aiello the NFL has said.

So how does this shake out – what does Pryor’s suspension mean practically speaking?

I’m not sure that the precedent is as far reaching as some may believe. For now, it looks like the NFL has left open the option to discipline players who look to evade NCAA punishment by making themselves eligible for the Draft. For me, that’s the narrow precedent that has been set.

If a player is disciplined by the NCAA and accepts his punishment, I can’t see the NFL going after him as well. Can’t punish someone twice for same transgression.

As well, I don’t see the NFL going after its own players for issues that are a number of years old.

For me, this is about incoming rookies.

Ultimately, however, the NFL wields extensive powers as its Constitution provides that it can take action to protect its “best interest” in the face of “conduct detrimental” to the league. From a legal standpoint, this is broad language.

What was the reaction to Goodell suspending Pryor?

As you can expect, it was mixed. Some thought the NFL had overextended itself.

However, in Cleveland, Bud Shaw wrote that Goodell “should be applauded in looking at all the circumstances surrounding his case, and for weighing the attempt by people around Pryor to artificially enhance his eligibility with claims of even more NCAA violations while at Ohio State. That was a direct challenge to the spirit of the rules governing the supplemental draft…Goodell couldn't let that pass and didn't.”

Umm…Tressel please

Jim Tressel had Pryors.

Tressel resigned amid NCAA violations. Pryor was his quarterback when all this went down.

The Colts hired the Buckeyes coach. After some pressure from the NFL, the Colts announced that they wouldn't use the former Ohio State coach until the seventh game of the season.

Technically, Tressel wasn’t suspended but rather is just sitting out the first 6 games. So perhaps that avoids a messy precedent of disciplining an incoming coach for NCAA violations.

Goodell said that he would have suspended Tressel if the Colts didn't make him sit out games to start the 2011 season.

Colts vice chairman Bill Polian said that "questions were raised with respect to the equity of his appointment as opposed to suspensions being served this season by present and former Ohio State players."

Like Pryor, Tressel is being punished for conduct that occurred when he was not an employee of the NFL. From an optics standpoint, the NFL didn't want to see Tressel go undisciplined, while his Buckeyes quarterback was serving a 5 game suspension.

So before Tressel there was Pryor. And now, there seems to be more of a watchful eye over the NCAA.

Peyton: Little Doubt In Doubtful

Peyton Manning has been listed as "doubtful" by the Colts.

Aaron Schatz of Football Outsiders has noted that no player listed as “doubtful” played in that same week last season, and no Colts player listed as “doubtful” has played in that same week since 2003.

There seems to be little doubt in doubtful.

Manning is 35 and probably has another good 3 or 4 years assuming he's healthy.

Friday, September 2, 2011

As Expected: Judge Denies Clemens Request To Block Retrial & Reasons

As expected, a Court has ruled that Roger Clemens can face a retrial. The Defence argued that the prosecution revealed evidence to the jury that was ruled inadmissible because it wanted to hit the reset button on the trial. The Defence submitted that the prosecution was unhappy with the way the trial was unfolding and intentionally took steps to have a mistrial declared. This was a strained argument and was unlikely to succeed from the outset.

I've reproduced my article below detailing why the Defence was unlikely to succeed. Given today's events, it applies.


In the Roger Clemens trial yesterday, the prosecution introduced evidence regarding Laura Pettite that Judge Walton had previously ruled was inadmissible. That was a no no, because once introduced, Judge Walton concluded that Clemens couldn't get a fair trial. So that was it, and a mistrial was declared.

Yes - big misstep. Worse misstep than going on Skating With The Stars. Arguably, though, not as big a misstep as David Caruso trying to go from TV to the movies.

So the issue now is whether, after the prosecution dedicated lots of tax dollars and time in preparing for the trial, will there be a retrial (or a new trial).

Your starting point is the double jeopardy rule which arises from the Fifth Amendment in the U.S. Constitution. It says a person can't be tried for the same crime twice. Here's an important point - if the jury didn't reach a verdict, a retrial could still happen.

In figuring out whether there will be a retrial, the Court will look at things like whether a retrial would result in unfair delays for Clemens, whether the prosecution would secure an unfair advantage for the prosecution and whether the prosecution did all this on purpose.

The Clemens case just started and there have been no surprises so far. It is a strained argument that the prosecution would gain some type of advantage by getting a retrial or hitting the reset button. The trial is also only 2 days old, and a new trial could get underway by October, although it could be later. So delay doesn't seem like a big issue.

Overall, the reasonable conclusion is that there will be a retrial.

That being said, this case has been a little strange and unpredictable. So anything could happen. Anything shouldn't happen, but it could.

Thursday, September 1, 2011

Radio Clip - Team 1260: Savard, NFL Concussions, Bonds & HGH

Click here for my radio clip with the morning guys from the Team 1260 in Edmonton. As usual, we have too much fun. After a strong start, we almost agreed on ending the call 12 seconds in.