Wednesday, November 30, 2011

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

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

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

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

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

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

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

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

Tuesday, November 29, 2011

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

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

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

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

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

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

Saturday, November 26, 2011

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

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

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

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

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

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

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

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

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

Here are some numbers for your NBA consideration:

Television Revenue

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

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

Ticket Revenue

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

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

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

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

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

Competitive Balance Versus Parity

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

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

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

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

Predictably NBA Settles On New CBA & Next Steps

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

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

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

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

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

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

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

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

Next steps:

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

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

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

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

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

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

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

Friday, November 25, 2011

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

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

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

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

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

Thursday, November 24, 2011

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

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

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

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

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

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

So for now, this is where we stand: 

new lead negotiator + fairly obvious areas of compromise = optimism

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

Wednesday, November 23, 2011

Bernie Fine May Still Be Charged Criminally

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

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

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

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

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

Here's the wording of the statute:

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

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

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

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

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

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

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

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

Monday, November 21, 2011

NHL Suspensions: Lucic Hit and Role of Intent

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

In response, Shanahan said this:

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

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

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

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

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

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

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

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

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

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

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

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

Friday, November 18, 2011

Second Mile: Perils of Brand Recognition and Collateral Damage

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

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

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

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

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

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

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

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

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

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

Thursday, November 17, 2011

Paterno Not Out of Criminal Woods

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 16, 2011

Massive Tactical Error - Sandusky's Interview with Bob Costas

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

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

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

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

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

Here's the interview:

Judge Leslie Dutchcot Has Been Replaced in Sandusky Case

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

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

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

Pro Baseball Team Goes With London Rippers (For Now)

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

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

Tuesday, November 15, 2011

McQueary's Email Message & Moral Versus Legal Obligation

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

The email is below.

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

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

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

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

So McQueary discharged his legal obligation and then some.

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

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

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

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

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

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

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

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

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

Radio Clip: TSN Radio Toronto - Sandusky Interview & NBA

Click here to listen to my segment with Brian Hayes from TSN Radio in Toronto. We talk about Sandusky's ill-conceived interview with Bob Costas, the legal consequences and where this is headed. We also hit on the NBA lockout and the Union having disclaimed interest.

Appearance of Impropriety & Judge Dutchcot in Sandusky Case

District Judge Leslie Dutchcot recently ordered Jerry Sandusky freed on $100,000 unsecured bail. It has been reported that she volunteered for Sandusky's Second Mile Foundation and donated between $500 and $1000 to the Foundation.

Given Dutchcot J.'s ties to the Second Mile, there has been criticism that she should not have been involved in this case from the outset.

For lawyers and judges, conflicts are a big deal. If it looks like acting for someone or being part of a proceeding could give rise to a conflict, then it's best not to be involved.

Paraphrasing an old expression, the one thing that is as important (if not more imporant) as justice being done is the perception that justice has been done.

This is captured in the ABA Model Code of Judicial Conduct, which sets out principles judges should follow. As provided in the Code, the rules are in place since "an independent, fair and impartial judiciary is indispensable to our system of justice".

The Code goes on to state as follows:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
The test to determine whether there is the "appearance of impropriety" is if a judge has engaged in anything that would impair or appear to impair his or her ability to carry out judicial responsibilities with integrity, impartiality and competence.

The key here is the perception of impropriety.

Under the circumstances, it would be surprising to see Dutchcot J. remain on the case. This is not to suggest she has done anything wrong. However, the perception is that she is too close to the matter and for that reason she may elect to recuse herself.

Review and Analysis of the Sandusky Grand Jury Transcript

(In Part 2 I will review who may be liable for what).

Jerry Sandusky faces 40 counts of sexual child abuse over a 15 year period, including multiple instances of alleged sexual abuse in the Penn State football showers. Sandusky, 67, was charged by a state grand jury with various counts of deviate sexual intercourse, corruption of minors, endangering the welfare of a child, indecent assault and other offenses after a three-year state police investigation.

Penn State said it banned Sandusky from bringing children to the football building after then graduate assistant Mike McQueary reported he saw the then 59-year-old coach having anal intercourse with a 10-year-old boy in the shower of the football team’s locker room.

The graduate assistant, and current Penn State assistant McQueary, told coach Joe Paterno, athletic director Tim Curley and vice president Gary Schultz about the incident.

Curley and Schultz did not report to the incident to the police or to any government agency. Instead they banned Sandusky from the football locker room. The decision was reviewed and approved by university president Graham Spanier. However, he was still afforded access to the campus generally, given a Penn State office, email address and telephone number, appeared in the campus directory and maintained his retired coach status at the university.

Questions have been raised as to how far liability will extend and who could be found liable for Jerry Sandusky’s heinous and predatory crimes. As Penn State undoubtedly knows, this is a sorted question. One thing’s for sure – this is just getting started for everyone involved.

Here’s a closer look at the summary of the testimony (please note that transcripts of each person's testimony is unavailable and what was distributed was a summary of the testimony)"

Grand Jury Testimony

A grand jury is a group of people that examines evidence and issue indictments if they believe that there is enough evidence for a trial to proceed. They are an impartial panel of citizens who must determine whether it’s reasonable to believe that a crime has been committed. So the grand jury doesn’t determine whether a crime has occurred; they just decide whether a person should be charged with a crime and face a trial. If they believe a person like Sandusky should be charged, he’s indicted. That’s what happened here.

In the Sandusky case, the grand jury testimony has been released (a link is available below on this blog). The transcript tells us why athletic director Tim Curley and Penn State Vice-President Chris Schultz have been charged with perjury and failure to report a crime, and why others like coach Joe Paterno and Penn State President Greg Spanier have been vilified for their inaction – and ultimately fired.

The Second Mile Foundation

The Grand Jury transcript addresses 8 separate victims that allegedly were abused by Sandusky. The transcript opens with Sandusky establishing a foundation in 1977 called The Second Mile, which “began as a group foster home dedicated to helping troubled boys” and it “grew into a charity dedicated to helping children with absent or dysfunctional families”. The charity is now “statewide” and “Sandusky is the “primary fundraiser”.

Through Second Mile, “Sandusky had access to hundreds of boys many of who were vulnerable due to their social situations”. It was “within The Second Mile program that Sandusky found his victims”.

The Grand Jury’s review of “Victim 2” is what drew fire for all involved. It describes a pervasive, systemic and institutional failure to take action against Sandusky and remove him from society. It also suggests that steps were taken to avoid reporting Sandusky.

McQueary’s Account of the 2002 Incident

Then “Penn State graduate assistant” Mike McQueary, who was 28 years old at the time, entered the football locker room and saw a naked Sandusky having anal sex in the showers with a “naked boy…whose age he estimated to be ten years old”.

McQueary “went to his office and called his father” reporting what he had seen. They decided to “report what he had seen to Coach Paterno”. The next morning, McQueary testifies that he went to Paterno’s home and reported the incident.

McQueary continued by testifying that about 10 days later he met with Curley and Schultz and reported to both men that “he had witnessed what he believed to be Sandusky having anal sex with a boy”. Both men, according to McQueary, “assured the graduate assistant that they would look into it and determine what further action they would take. Paterno was not present at the meeting”.

McQueary indicated that he heard back from Curley two weeks later and was told that “Sandusky’s keys to the locker room were taken away and that the incident had been reported to The Second Mile”. Until he testified before the Grand Jury in December 2010, McQueary was never questioned by any entity conducting an investigation into the incident.

The Grand Jury found McQueary’s testimony to be “extremely credible”.

Paterno’s Account of the 2002 Incident

After receiving McQueary’s report, Paterno turned around and informed Curley, his immediate supervisor, that his graduate assistant saw Sandusky in the showers “fondling or doing something of a sexual nature to a young boy”. That is the extent of the reported testimony.

Curley’s Account of the 2002 Incident

Curley testified that McQueary did not, in fact, report that “anal sex or anything of a sexual nature whatsoever” had occurred. Rather, he testified that McQueary described the conduct as “inappropriate”, that it made him “uncomfortable” and that it was merely “horsing around”.

The transcript then provides as follows:
When asked if McQueary had reported sexual conduct of any kind by Sandusky, Curley answered “No” twice. When asked if the graduate assistant had reported “anal sex between Jerry Sandusky and this child,” Curley testified, “Absolutely not.”
Curley later advised McQueary that Sandusky was directed not use to use the Penn State athletic facilities with young people and that Second Mile had been notified along with Penn State President Spanier. Curley “was not specific about the language he used in reporting the 2002 incident to Spanier” and confirmed that he never reported the incident to any agency.

Schultz’s Account of the 2002 Incident

Under oath, Schultz denied that inappropriate sexual conduct was reported to him by McQueary or Paterno. He testified that he had “the impression that Sandusky might have inappropriately grabbed the young boy’s genitals while wrestling and agreed that such “sexual conduct between a man and a boy” was “inappropriate”.

Despite having that impression, he continued by testifying that McQueary’s allegations were “not that serious” and that he and Curley “had no indication that a crime had occurred”.

Schultz further testified that he and Curley “agreed that Sandusky was to be told not to bring any Second Mile children into the football building” and that Second Mile would be advised of the situation. Schultz also testified that Penn State President Spanier agreed with this action.

He believed that he and Curley asked the child protection agency to look into the matter.

Schultz also testified that he knew of the 1998 investigation into Sandusky by the child protection agency where it was alleged that Sandusky had made inappropriate contact with a minor in the football showers.

Although Schultz oversaw the University Police “as part of his position, he never reported the 2002 incident to the University Policy” or any other agency. He also never sought to review the lengthy police report into the 1998 incident, find out who the child was, ask specifics about the 2002 incident.

Schultz said that “there was never any discussion between himself and Curley about turning the 2002 incident over to any police agency”.

Spanier’s Account of the 2002 Incident

Spanier testified that Curley and Schultz came to him and indicated that McQueary said Sandusky was involved in actions that made him “uncomfortable” and that Sandusky was “horsing around in the shower” with a boy.

Spanier denied that the incident was reported as “sexual in nature” and confirmed that Curley and Schultz did not indicate that they would report the incident to police.

Spanier also denied being aware of the 1998 incident.

Further Statement Made in Grand Jury Transcript

The Transcript also includes the following:

- The 2002 incident was never reported to any officials.

- Sandusky held the emeritus status with Penn State as a retied coach.

- He had an office and telephone number at the athletic facility.

- Sandusky had access to all recreational facilities, a parking pass, a Penn State email address, a listing in the faculty directory and faculty discounts.

1998 Incident

It’s alleged that in 1998 Sandusky showered with an 8 year old boy and gave the boy a naked bear hug in the shower. This led to a police investigation, where Sandusky admitted to showering naked with the boy. No charges were laid but police directed Sandusky not to shower with boys.

Considering The Testimony As A Whole

There are clearly inconsistencies in the testimony that are difficult to reconcile. McQueary (who was deemed “extremely credible”) alleges that he reported to Paterno, Curley and Schultz that Sandusky had anal sex with the boy.

On the other hand, Curley and Schultz deny being told that sexual conduct has occurred.

Rather, they testified that McQueary reported that Sandusky had engaged in “inappropriate conduct” that made him “uncomfortable”, that Sandusky was merely “horsing around”, that “sexual conduct” did not happen and that there “was no indication a crime had occurred”.

Interestingly, in his meeting with McQueary, Schulz testified that he may have been left with the impression that Sandusky may have grabbed the boy’s genitals. This is not consistent with his previous testimony.

As far as Paterno, it’s unclear if he intentionally provided a milder version of the incident to Curley or if he presented the incident as he understood it. However, McQueary (who again was deemed credible) testified that he told Paterno what happened.

In any event, McQueary did meet with Curley and Schultz, so there was the opportunity to get this right. Still, questions remains about the extent of Paterno’s knowledge of the event and if he intended to mislead Curley or if he was not telling the truth about what he said.

Despite a 1998 incident that triggered a lengthy investigation and despite the alleged 2002 incident, Sandusky was still provided with widespread access to the Penn State campus.

Offside Podcast from Live Radio Show - Sandusky

Here's a link to the podcast of yesterday's Offside radio show. We covered the legal side of the Sandusky case discussing the grand jury transcript, how far liability will extend and who is liable. Emotionally tiring show.

Radio Clip CJME: We Breakdown The Legal Side of the Sandusky Case

Click here to listen to my radio segment with Drew Remenda at CJME. As always, this was an interesting discussion, including addressing the difference between a moral obligation and a legal obligation.

Monday, November 14, 2011

NBA Players Reject Owner Deal and Explaining Disclaiming Interest

News broke today that NBA players have rejected the NBA's CBA proposal and have moved to disclaim interest.

You may have heard the term disclaim interest and decertification thrown around in the NBA and NFL context. They are different but have the same result.

Disclaiming interest arises when the Union terminates its representation of its players. On the flip side, decertification is when the players walk away from the Union revoking its ability to negotiate on their behalf.

The net effect is the same: the Union is dissolved, the players are on their own and the players can bring antitrust lawsuits against the NBA challenging its ability to have its teams get together and impose restrictions on the NBA marketplace, such as the NBA draft and free agency rules.

Remember that under antitrust law, competitors (which the NBA teams arguably are) can't get together and set restrictions on players. However, before decertification/disclaiming interest, these antitrust violations are found inside the protective bubble that is the CBA. That means players cannot sue because these conditions are agreed upon by the Union and teams. However, decertification/disclaiming interest has the effect of bursting the protective CBA bubble setting the antitrust violations free, thereby affording players the opportunity to sue the league for these antitrust or competition law violations.

Disclaiming interest may be the better option for players since it's instantaneous. In contrast, decertifying takes time (formal vote; 45 to 60 day wait).

One must wonder why this wasn't done months ago. In any event, we have now entered Phase 2 of these negotiations. This isn't the end of the season as it may ultimately be a way for players to gain some leverage. However, this isn't a positive development. NBA offers are expected to get worse, and many owners think the last 50/50 revenue split offer was too high to begin with.

Stay tuned.

Friday, November 11, 2011

ESPN Radio Clip - the Sandusky Case

I join ESPN Radio to talk about the Sandusky case. We address how it will affect all parties involved - Paterno, Curley, Spanier, Schultz, Penn State, etc. This case has tentacles. Just getting started unfortunately.

If you're wondering how on earth Sandusky wasn't thrown in jail 10 years ago, you're not alone.

Team 1260 Radio Clip: We Talk The Sandusky Case

Click here to listen to my radio clip with the Team 1260 as we breakdown the Sandusky case. We address how it will affect all parties involved - Paterno, Curley, Spanier, Schultz, Penn State, etc.

Team 1200 Radio Clip - Paterno & Sandusky

I join the guys on the Team 1200 to talk about the Sandusky case and how it affects all involved from a legal standpoint. Click here to listen to the clip.

TSN Toronto Radio Clip - Paterno & Sandusky

Click here to listen to a legal breakdown of the Paterno/Sandusky case.

Thursday, November 10, 2011

Sandusky: Summary of Grand Jury Transcript

I had the opportunity to read the Gerald ("Gerry") A. Sandusky Summary of the Grand Jury Testimony. It is disturbing to say the least. If you would like to read it, please click here. 

I will be reviewing the summary of the testimony and providing views on how this all fits together. It does provide much needed insight on Sandusky's alleged predatory behavior.

Wednesday, November 9, 2011

NBA Deal Getting Closer

Today, the New York Times is reporting that NBA players yesterday signaled "for the first time that they would accept the league's proposed 50-50 split of revenues."

In return, the NBPA "wants the league to relax its proposed restrictions on free agency".

For players, revenue split is important. However, system issues like free agency rules and the luxury tax are also critical. As per my earlier columns, the sides would need to balance out revenue split with these system issues. It's a balancing act and not easy to achieve. However, that's why the sides negotiate.

The players get that while they want more money, surrendering 1 or 2 percentage points won't profoundly adversely impact each player. Estimates have the loss per player in the first season at about $94,000 but it could be more. Some estimates provide that the players could lose between $500 million and $1 billion over a 10 year CBA.

While players will get a fixed share of revenue (let's say 50%), by relaxing free agency rules and the salary cap sanctions, individual players may enjoy more freedom and higher salaries.

There have been obvious areas of settlement, and in light of that, settlement rather than a prolonged battle, seems like the more reasonable outcome.

Again - settlement won't happen right away. The parties though are closing in on settlement and it should happen sooner rather than later.

Tuesday, November 8, 2011

Last Night on Offside: Dan Kaplan Gives Great Interview On All Things NFL

Last night on the radio show Offside: The Business & Law of Sports, we interviewed Sports Business Journal writer Dan Kaplan. Dan does a great job covering the NFL.

The interview was really informative. To listen to the interview, click here.

Sunday, November 6, 2011

The NHL CBA & Suspensions: What Shanahan Must Consider

The NHL CBA sets out the factors to consider when looking to suspend a player (or impose supplementary discipline). It's found at Exhibit 8 of the CBA and is entitled Procedures Relating To Commissioner Discipline.

Here is what Brendan Shanahan needs to consider when deciding whether to impose a suspension:

6. Factors In Determining Supplementary Discipline

In deciding on supplementary discipline, the following factors will be taken into account:

(a) The type of conduct involved: conduct outside of NHL rules; excessive force in contact otherwise permitted by NHL rules; and careless or accidental conduct. Players are responsible for the consequences of their actions.

(b) Injury to the opposing Player(s) involved in the incident.

(c) The status of the offender, and specifically whether he is a "first" or "repeat" offender. Players who repeatedly violate NHL rules will be more severely punished for each new violation.

(d) The situation of the game in which the incident occurred: late in the game, lopsided score, prior events in the game.

(e) Such other factors as may be appropriate in the circumstances.

This is why you often hear things like whether the player is a "repeat offender" (6c) and whether the hit was intentional (6a).

The section also provides that "Players are responsible for the consequences of their actions". This seems to apply when a player intentionally goes after another. However, "actions" would not include a case where two players inadvertently collide (as per column below on Wolski/Alfredsson), as the term "actions" seems to mean an act delivered with intent.

Generally speaking, intent can be very difficult to determine with certainty. For the most part, a player won't say he intended to hurt another player. Reference can be had to the surrounding circumstances in seeking to determine intent, and in some cases, it may be clear whether intent played a role. Still, short of being able to crawl into a player's head, determining intent can be tough. As well, things become a bit murkier where a decision maker tries to determine what part of a hit was intended - the general body contact or the specific contact to the head.

These decisions are tough to make and a lot of scrutiny will ultimately fall on Shanahan since the NHL has identified him as the person responsible for making the decisions. Perhaps to slow Shanahan's aging process, the NHL may want to consider a committee arrangement whereby a consensus is reached by a group of people and then that decision is delivered by the NHL or a designated executive.

The Point of NHL Suspensions and Wolski's Non-Suspension

Speaking to the NHL Network Wednesday, Brendan Shanahan made the following statement as support for his decision not to suspend New York Ranger Wojtek Wolski for his hit on Ottawa Senator Daniel Alfredsson.

Wolski’s not a dirty player, and has no history of being a dirty player. There are collisions that occur on the ice where, unfortunately, one player sees it just prior.
We’ve seen enough of these now, and I don’t like these, but seen enough of them where when one player sees (the hit) just prior, he tenses up. And sometimes he even leans in, because he’s bracing for an impact.

When both guys see it, it’s two guys tensing up and they bounce off each other and everybody’s fine. It’s really unfortunate here, when one player doesn’t see it and the other guy does.

Now, if I felt this was intentional, or if it wasn’t at the last instant, just prior. (If) I might have felt there was any kind of sneakiness or history of these types of offences for Wolski, he would have been suspended.
What Shanahan is saying is that this hit was not suspendable because it’s the type of hit that was unavoidable. It was an inadvertent “collision” between two players rather than one player looking to hit another player. And in cases like that, there is no point in suspending a player since the point of a suspension is to discourage illegal hits and not hits that flow naturally from the game that can’t be avoided. As he said in the first instance, it was a “hockey hit”. Since it was a "last instant" hockey hit that can't be avoided, a suspension wasn’t warranted.

The logic is sound – suspensions are designed to deter on ice behaviour that players to a certain extent can control. Suspending players for inadvertent collisions on the ice won’t deter the behaviour.

Some hits are “hockey hits” as characterized by Shanahan, and these hits are basically immune to being deterred by way of suspensions.

While the underlying logic is sound, I have difficulty with the conclusion that Wolski was bracing himself for the collision and that he did not intentionally hit Alfredsson. The video of the hit, which can be found here, suggests that Wolski’s hit was more than an inadvertent collision that Wolski was bracing himself for. It seems that Wolski changed direction to hit an unsuspecting Alfredsson, who had already dished off the puck. Perhaps Wolski did not intend the head shot; however, that is irrelevant. Under those circumstances, Wolski is responsible for any damage that flows from the hit.

Shanahan played the game for many years and is blessed with insight that many of us do not have – or will ever have. Shanahan’s opinions are respected – and as they should be. It just seems like this one hit is open to a different interpretation. And if it is, the prudent election would be to err on the side of caution.

Thursday, November 3, 2011

Subsidizing The McCourt Lifestyle: Just Some of the Things The Dodgers Paid For

Los Angeles Dodgers owner Frank McCourt and MLB reached a deal on Tuesday that would have the owner sell the team after owning it for 7 years.

McCourt has agreed to a court supervised sale of the team after taking the historic Dodger team into Chapter 11 bankruptcy protection 4 months ago.

TV Deal

Before declaring bankruptcy, MLB rejected McCourt’s proposed 17-year, $2.7 billion TV deal with Fox because according to MLB, McCourt planned to use about $150 million from the deal for personal reasons. In part, the money would have gone to settling his divorce with wife Jamie McCourt (which is now settled) and to pay off outstanding debts.

The list of creditors in the filing include former Dodger Manny Ramirez (owed $20,992,086), Andrew Jones (owed $11,075,000), Matt Kemp (owed $216,944) and Vince Scully (owed $152,778).

The TV deal by itself wasn't the problem. MLB rejected the TV deal because it was part of a larger pattern whereby McCourt was using the Dodgers to subsidize his lavish lifestyle.

According to MLB Court documents, McCourt “looted” $189 million from the Dodgers for his own personal use.

Purchase of the Dodgers

Some reports have it that McCourt effectively purchased the Dodgers for between $355 million and $371 million in exchange for parking lots and about $300 million of debt. It appears possible that McCourt may not have put one dime of his own into this purchase. As well, McCourt did not himself borrow the money used for the purchase - he got the Dodgers to do it for him.

This is why we hear that McCourt bought the Dodgers on a credit card.

What Did the Dodgers Buy for the McCourts?

So back to the Dodgers funding the McCourt’s lavish lifestyle. According to various reports, here’s where some of the Dodger green went:

1) As Dodger CEO, wife Jamie McCourt was paid $2 million a year, while Frank was paid $5 million annually. Here’s where it gets a bit odd. Their 2 kids were each paid $600,000.00 a year. The thing, though, is that one child was attending Stanford, while the other worked full time at Goldman Sachs.

2) After the purchase of the Dodgers, the McCourts bought 4 homes in Los Angeles at cost of around $89 million.

3) They also bought vacation properties and a private jet, had private drivers, a hairdresser who worked exclusively for the McCourts five days a week and a makeup artist.

4) Jamie paid over $100,000.00 to florists.

5) Frank fired his wife as Dodgers’ CEO, claiming that she was having an affair with her driver. However, that didn’t put a damper on spending. Frank spent $30,000.00 a month on a suite at the Beverly Hills hotel.

6) Jamie used one of the homes “exclusively for swimming” and the second to store furniture.

7) Jamie went on a lavish trip to France with her driver.

All this was paid for by the Dodgers.

Looks like the team will be headed in a new direction once it's sold. And it looks like the makeup artist will need to find a new gig.

Tuesday, November 1, 2011

NHL Should Do Non-Supsension Video for Wolski Hit on Alfie

Rangers winger Wojtek Wolski avoided a suspension after knocking Daniel Alfredsson to the ice with an elbow to the head Saturday afternoon in New York. Wolski received a two-minute minor for an illegal check to the head.

Murray was later informed by league disciplinarian Brendan Shanahan that the hit on Alfredsson was “hockey hit" and as a result, Wolski would not be suspended.

The head shot on Alfredsson seems to be precisely the type of hit that warrants a suspension. The hit was late, Alfredsson had already dished the puck off and the hit was to the head. This is why a penalty was assessed in the first instance.

When Offside interviewed Bill Daly (6:25 minutes in to clip), he indicated in part that suspension videos were being used to educate players. Daly stated that the videos could provide helpful insight on the NHL's treatment of these hits to players seeking to adjust their conduct on the ice.

In essence, the videos are a far more compelling teaching tool then a press release.

In keeping with the education process, the NHL should consider doing a non-suspension video for cases like the Alfredsson hit. On its face, the Wolski hit deserved a suspension. However, since the NHL believes it is not suspendable, it should clearly explain this decision by way of video.

Simply dismissing the incident as a "hockey hit", when clearly it was so much more, does little to resolve confusion in what appears to be an inconsistent application of the rule.

Expect players to be confused again. I know I am.


Thanks to Geoff for advising that the NHL did do one such video in October with respect to the Ryan Malone hit on Chris Campoli. Click here to see it.

This raises the question if we will see one in this case. It appears that we will not. Frankly, it's not tough to see why Malone was not suspended. Campoli's head dropped significantly after Malone committed to the hit. However, in the Alfredsson case, we don't see that (for anyone wondering, I'm a Habs fan).

Fans understand the challenges faced by the NHL. It needs to balance player safety with keeping physical contact in the game. Still, based upon precedent, the Wolski incident appeared suspendable.

Confusion persists.

About Last Night

Last night on the big radio show, Offside: The Business and Law of Sports, we spent the entire hour talking NFL in Toronto. We broke down the economics and the reasons behind the Bills playing in Toronto.

Click here to listen to the podcast.