Tuesday, March 27, 2012

Tonight On Offside: Greg Gilhooly

Tonight on Offside at 6pm on the Team 1200, we are interviewing Greg Gilhooly. Greg was sexually assaulted by convicted pedophile Graham James over a period of 3 years beginning in 1979 when he was 14 years old.

In 2010, criminal charges were filed against James stemming from his sexual assault of Gilhooly, as well as Theoren Fleury and Todd Holt. Ultimately, the charges against Gilhooly were stayed, and Graham James pled guilty to sexually assaulting Fleury and Holt and was sentenced to 2 years in jail.  James can apply to be released within 8 months and within 16 months will likely be free.

Greg is quite articulate and well-spoken and speaks on this topic with great passion and clarity. Greg is also a lawyer. He went to Princeton, then followed that up with University of Toronto Law School and articles at Torys. After that he worked in-house at CanWest and Cookie Jar Entertainment. 

The interview promises to be very interesting.

Monday, March 26, 2012

Warrented? Sapp, Shockey & Defamation

Former NFL defensive lineman and current football analyst for the NFL Network Warren Sapp claimed that Jeremy Shockey was the whistle-blower in the NFL's investigation into the New Orleans Saints' pay-for-performance system that resulted in a slew of sanctions.

Sapp first got things rolling on Twitter. Here’s the exchange:

Sapp later defended his position on NFL Network, saying his source was very close to the situation and reliable. Here's part of that conversation with Rich Eisen:

“My source that was close to the situation informed me that [name omitted] is the one that was the snitch initially. I trust my source unequivocally. … ”I did not call anybody at the league and I did not receive any information from the league.”

Shockey has denied the accusations. New Orleans head coach Sean Payton confirmed as much to Shockey in a text message, and CBSSports.com's Mike Freeman "asked people familiar with the NFL's investigation and was told Shockey had nothing to do with the case. Nothing. At all."

So from a legal standpoint, the question then is whether Shockey can sue Sapp for defamation for calling him a “snitch”.


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

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

Side note – we often hear the words libel and slander thrown around. Slander refers to the spoken word, while libel refers to comments in fixed form – like print.

A defence to defamation is the truth. If a statement is true you don’t have defamation.

Sapp & Defamation

Bottom line is this – if Sapp’s statements don’t turn out to be true, then yes – Shockey can sue him for defamation. He could also drag Sapp’s employer into this mess.

What was the NFL’s reaction. They got right to the point. NFL Network Senior Vice President of Programming and Production Mark Quenzel said this:

"We're not going to fire Warren....The way we look at it, Warren clearly crossed the line in terms of what his responsibility is. He's an analyst for us. We use him to talk about what happens on the field and in the locker room and use that expertise. He's not a reporter."
Quenzel also said Sapp was reminded that "he is an analyst and not a reporter for NFL Network. In the future, if he comes across something he thinks is news he will let his producers know and before it is reported or Tweeted, that content will be subject to the same verification procedure that our reporters follow.”

If there is compelling evidence that Shockey was not the snitch, then it will be interesting to see if Sapp or the network will issue an apology. Presumably the NFL has this information. It’s reasonable to expect that Shockey will want some type of resolution so he can clear his name.

Saturday, March 24, 2012

NHL Needs Minimum Suspensions

Our latest incident is Duncan Keith dropping an elbow on Daniel Sedin. Keith was suspended for 5 games and Sedin is out with a concussion.

Most people agreed that Keith would be suspended but everyone seemed lost when it came to agreeing on how many games.

This is because the NHL CBA provides that the length of suspensions is discretionary. It can be 1 game or it can be 20 - or anywhere in between.

In order for the NHL discipline process to be effective, the NHL should strongly consider minimum and harsh suspensions for its various infractions. That same process should provide that the NHL has the discretion to increase - but never decrease - the length of suspensions based upon a number of factors, including injury to the player.

So by way of example, primary contact to the head (like Pacioretty on Letang or Keith on Sedin) would be 20 games. A hit from behind would be 10 games.

When a discipline process is implemented a decision needs to be made: should the punishments be designed to discourage behaviour or eliminate it.

Right now, the NHL discipline process discourages problematic behaviour but is not designed to eliminate it.

Let me ask you this: if Keith knew he was going to get 20 games for elbowing Sedin in the head, would he have done it? Unlikely. And for those players that still engage in questionable on-ice behaviour, the NHL should welcome their temporary banishment from the game.

There are also legal considerations. As we have seen with the NFL, if player health and safety is not of paramount importance, then a league opens itself up to liability.

We know that shots to the head can cause long term neurological issues, such as memory loss, dementia and brain disease. It is incumbent on leagues and player unions to take the necessary steps to protect its members. This is one step in that direction.

Liability drives policy. We know that. Fighting will be out of the game by 2025. There is just too much risk attached to beating guys senseless. The head must be protected. The threat of liability may also encourage the league to give minimum substantial suspensions a hard look.

(While on the topic, the NHL must seriously look to changing equipment so stuff like elbow pads aren't weapons. Player equipment is simply doing too much damage.)

Adopting significant minimum suspensions would create certainty as to punishments and could go a long way to achieving what all fans want: eliminating - and not merely discouraging - cheap shots.

We're better than this. We're better than endorsing, acquiescing, permitting or turning a blind eye to on-ice violence that so clearly falls outside the parameters of incidental contact. We are better - and should strive to be better. The sky won't fall if the NHL suddenly puts its foot down and says no more. The sky would stay squarely over our heads, and we might all be surprised to see the game improve and rise to its rightful and prominent position in the world of sports.

Wednesday, March 21, 2012

Radio Clip - Team 1200: Saints

Here is a link to my discussion with the boys from the Team 1200. Steve, Jason and I break down the NFL sanctions against the Saints. Still more to come.

By the way, Payton's season-long suspension without pay has cost him $7.5 million. Williams is out $2 million.

Saints Bounty Gate: NFL Drops Hammer

The NFL has dropped the hammer on Payton, Williams, Loomis and Vitt. 

The bottom line here is this: this case very quickly morphed from a football matter to a legal matter. The NFL is facing 36 plus concussion lawsuits from retired players plus potential lawsuits from players who may have been targeted and seriously injured by Saints players. 

By coming down hard on the Saints, the NFL is sending a message to current claimants, potential claimants and potential jurors that it values player safety and it does not endorse any program that seeks to deliberately injure its players.

This isn't over - by a long shot. The NFL will now turn its attention to disciplining players that went out and intentionally sought to injure other NFL players. That will include fines and suspensions.

If NFLPA head DeMaurice Smith thought he had a rough year things aren't about to get better.

Like all good legal cases, this one has tentacles - tentacles and a hammer.

Radio Clip: TSN Toronto Radio - Graham James, Agents/Conflicts of Interest and Clemens

Here is my clip with Scott MacArthur from TSN 1050 in Toronto. We hit Graham James, Roger Clemens trial and conflicts of interest at they relate to agents representing multiple athletes - sometimes on the same team (cue DeSeanJackson/Lesean McCoy and Matt Hasselbeck/Jake Locker).

Legal Q & A: Graham James and His 2 year Sentence

Manitoba provincial court Judge Catherine Carlson sentenced Graham James to two years in prison for sexually assaulting Todd Holt and his cousin, former NHL hockey player Theo Fleury.

Initially, James was facing nine charges of sexual assault involving three players (including Fleury and Holt). However, charges regarding one victim were stayed and James pled guilty to the two charges as they relate to Fleury and Holt.

In all, James received two years for each offence, but the sentences will be served concurrently.

Why Only Two Years?

Many people are asking why only two years. A lot of this has to do with timing.

James was previously sentenced to 3.5 years in prison when he pled guilty to 350 counts of sexual assault as they related to 3 victims, including Sheldon Kennedy. Those incidents happened between 1984 and 1995.

These most recent charges stem from incidents that occurred between 1979 and 1994. So there is temporal overlap. This is important. While the “Fleury” charges were “new”, they were not new in the sense that they occurred after James was convicted the first time. So strictly speaking he did not reoffend.

This relates to the governing principle behind our penal or prison system. That principle is rehabilitation. The idea is that prison should rehabilitate a criminal.

So in this case, James had already served time for criminal acts that occurred at around the same time. As well, there was no evidence that James had reoffended after he was convicted. He also received treatment, surrendered to Canadian police without fighting extradition from Mexico (where he was at the time) and has held a job.

Given the circumstances, Judge Carlson deemed two years as an appropriate sentence.

Do Judges Have Sentencing Guidelines?

Yes. When sentencing a criminal, judges rely on sentencing guidelines. They look at things like the degree of premeditation and planning involved; the amount of violence, weapons used, and the specific involvement of the offender; the maximum sentence set out in the Criminal Code; the attitude of the offender at the time of the crime; previous criminal records and sentences usually imposed for similar offences.

If James Re-Offends Does He Get Less Or More Time?

More. If he is found guilty of new charges – that is charges that occur after his first conviction – then he would get more time in jail as a repeat offender.

Would James Have Had A Longer Sentence if Fleury & Kennedy (And Company) had Consolidated The Charges?

Yes. In all likelihood, that would have resulted in a longer sentence for James. Probably somewhere around 6 to 7 years. When you add up the first and second sentences, that’s where we almost end up.

What’s A Normal Sentence For These Types of Crimes?

The law provides for a maximum of 10 years per offence. However, six to seven years is on the high end though. Victims of course feel this is fundamentally low given the lifetime trauma that is inflicted on them. That is not an unreasonable position.

When Can James Get Parole?

He could apply after serving one-third of his sentence. As well, he could be automatically released after serving two-thirds of his sentence. So that means that James could be out of jail within 8 months, but more realistically (given the uproar) somewhere in the first quarter of next year. Tough to tell though.

If He Got 4 Years Why Does He Really Get 2 Years?

The Judge sentenced James to 4 years – 2 years per offence. However, this is being served concurrently.

When offenders are convicted of more than one offence at a time, there are two options: serve the time as concurrently or consecutively. Concurrent means that you serve them at the same time and the longest sentence is your time in prison. Consecutive sentences are served one after another and not at the same time.

Consecutive sentences are rare, and concurrent sentencing is the more common approach.

Overall Was The 2 year Sentence Appropriate?

“Appropriate” is a funny word. From a legal standpoint, given how the Courts treat these types of cases in these types of situations, the answer is yes it was appropriate. It was in keeping with the accepted Court practice. Frankly, the 2 year sentence was not a surprise, which in part may be why James didn’t fight extradition from Mexico.

However, for many an “appropriate” result is a “just” one. From that standpoint, many understandably believe that this outcome was not appropriate because it was not just. Indeed, for many Canadians, justice was not done.

Friday, March 16, 2012

Can Titans Offer Peyton Manning A Contract for Life?

Eighty-nine year old Titans owner Bud Adams has gone on the record as saying he will do whatever it takes to sign Peyton Manning. According to Michael Lomabardi from NFL.com, that could include making Manning a Titan for like by promising him a position with the team after he retires.

This begs the question: are the Titans allowed to offer Manning a front office job as part of his deal?

Yes and no. If it were included as part of his contract, that could constitute a circumvention of the CBA since all of a player's compensation must be included within the four corners of his contract. Remember there is a salary cap and it must be respected. How do you quantify non-monetary compensation against the cap? To entice a player to sign with a promise of a job after his career is done would raise circumvention eyebrows.

Still, the Titans could offer Manning an executive job now. However, that deal would need to be captured by a second contract separate and apart from his player contract. As well, that contract would need to be approved by the league.

What would the league want to see before it approves the two deals? In part, it would want to make sure that Manning's player contract is worth fair market value and not undervalued as a result of the second contract. So there can't be a shortfall in Manning's player contract that is made up by the second contract. The Union would also likely take a look at the contracts before the league does to make sure the player contract does not constitute a step back for its membership (i.e., it's undervalued thereby altering the marketplace).

The Broncos already have Elway ensconced in the President's position. So unless Manning is happy being the Broncos ball boy post-playing career, the Broncos can't offer him a substantial exec position.

Would be interesting to see Manning in the same division as the Colts.

Would it be odd to see Manning as a Titan and not a Colt post-retirement? Would Manning even want to go back to Colts and Irsay - assuming Irsay doesn't move the Colts to Canada in the middle of the night?

Thursday, March 15, 2012

A Partial Transcript of My Interview with NFL Linebacker Brady Poppinga

Transcription of Brady Poppinga for offside edited1.mp3

Eric Macramalla - Recently you described the Saints bounty program as “degrading, animalistic and repulsive”.  Why did you make those statements.

Brady Poppinga - At the end of the day, this is about what the NFL stands for.  When you put that shield on your helmet and you wear that shield on your shirt, you’re committing to a higher standard of competing. It’s a physical game, but at the end of the day there is mutual respect amongst  the opponents and teams.

I just feel that bounty systems compromise that respect and that integrity, and when the public starts to think that these guys who are out there playing football are just hitting their heads up against each other, a bunch of dummies, idiots, you know, they’re just  a bunch of barbarians - it just does not take into account the reality of it’s players.

There’s a bunch of very intelligent guys that love to play a physical game and 95% of the guys play the right way. They play it physical, they play it fast, they play it fanatically and they play within the confines of the rules. I just feel like the bounty system doesn’t accurately reflect the reality of the overall general culture of the NFL football, and it compromises the integrity of the game.

EM: In your experience, how common are these types of bounties on teams.

BP – I think bounty programs are very rare in terms of something that is designed to intentionally inflict serious injury - and I’m not pain. I’m talking injury on your opponent and not pain. This is the only time ever I’ve heard of it. 

Is it possible that there are other forms of this? Yes - but there’s nothing concrete, such as this particular case – this bounty gate down in New Orleans with Greg Williams. 

And let me make it clear to everybody - I am in no way lashing out at Greg Williams personally. This has nothing to do with him as a person.  It has everything to do with the system that he implemented and I understand his intention was to try to motivate his team. It was designed to get his guys to play really hard, physical and violently - but like I said before, it crossed the boundaries and like I said before, it compromised the integrity of the game. 

EM – You’ve said that it crossed the line. Fans see football as an inherently violent sport.  Where is that line?

BP – It comes down to how you view your opponent.  Do you view your opponent with respect and dignity or do you not? There was a time in my life when I did not view my opponent with respect and dignity. I also played in a way without any kind of regard for their physical wellbeing and I threw in cheap shots and tried to hurt guys. There were experiences that, to be honest, brought the devil out inside of me and it came to the point that if I were to keep competing this way, then I’m pretty much going to become a lunatic and land in jail. I had to change my perspective and find a way to compete where I can come out of the experience enriched and benefited.

It’s a perspective issue. I felt like with Greg lost perspective when he implemented the system.

You can still go out and blast someone in the face as hard as you can and still respect.

I think 95 percent of the guys that I’ve played with in this league have that perspective – they understand the mutual respect that is shared on the football field, so I think it clearly comes down to perspective and how you treat the game. 

EM – If a player lacks that wisdom, is it incumbent on the coach to impose his wisdom and perspective on the player?

BP – Idealistically you would think so because the coaches in general are more seasoned, more experienced. I think most coaches have a very sound perspective on how to compete. If a fight breaks out in practice, the coaches are immediately stepping in and addressing the situation. Perspective needs to be reminded. For the most part, I think the coaches do bring that to the table and that is part of their job description.

EM – You are a free agent tomorrow. Are you concerned teams will shy away from you as a result of your statement?

BP – Why would they?

EM – Are you at all concerned?

BP – I have no concerns because I think teams want a guy that understands how to compete and that brings these types of intangibles to the table. That’s the kind of guy you want on our team.

Guys love playing with me because I give heart, I do it the right way, I’m not a timid guy. I am very passionate about the game. I play the game very physically. I’ll go and mix it up with the guys and at the end of the day we’ll come together and we are closer because of it.

So I think it’s going to be the opposite. If teams really did take this into consideration, they would probably be the more excited to bring me in because of the perspective that I would bring to that team.

EM – Drew recently said he didn’t know about the bounty program. Is it reasonable to believe that a quarterback would not know about such a program on his own team?

BP – I would say that could be very accurate because a lot of times what goes on in a defensive room or in an offensive meeting room, you’re not going to know about it.  For example, half of the stuff, well actually most of the stuff that goes on in an offensive meeting room defensive guys don’t know anything about. You’re not in that meeting because you’re so immersed in your own schemes and your not really concerned with the defence or anybody else’s position.

Brees is the kind of guy that’s so focused and immersed in his own job that anything else just doesn’t factor in. He is focused on the offence and setting up his game plan so he can go out and play a very good game. He would be wasting energy if he was trying to figure out what the defence was doing. So it doesn’t surprise me that he would say that.  I think that’s the case for most people - they are so focused on their own jobs that they don’t even know what’s going on on the other side of the ball.

EM – Brady thank you for joining us and speaking your mind.

BP – My pleasure man.

Tuesday, March 13, 2012

My Interview with NFL Linebacker Brady Poppinga & His Criticism of Saints Bounty Gate

This week on Offside, I interviewed NFL Linebacker Brady Poppinga (the day before he hit the free agent market).

Brady came out earlier and described the Saints bounty program as "repulsive" and "animalistic". In our interview, he goes deeper.

These days, athletes generally only offer up platitudes and canned lines. Brady didn't - by a long shot. Very refreshing - and revealing.

Part 2 of My Discussion with NHL COO John Collins

Very lively discussion. John covered fighting in the NHL, the role of fantasy sports, exploiting the European market, Roger Goddell and Gary Bettman.

Monday, March 12, 2012

Offside Tonight: NHL COO John Collins & Brady Poppinga

Tonight on Offside: The Business and Law of Sports, we air Part 2 of our interview with NHL COO John Collins. We talk about the role of fighting in hockey and whether it's good for revenue. We also hit on the utility of fantasy sports, exploiting the European market, Roger Goodell and Gary Bettman.

That is followed by my interview of current NFL linebacker Brady Poppinga, who described the Saints bounty program as "degrading", "animalistic" and "repulsive". Brady is not afraid to speak his mind and he has a lot of interesting things to share.

That's tonight on the Team 1200am at 6pm ET.

Legal Glimpse: George Brett Being Sued Over Balance Bracelets

By Paul Anderson (@PaulD_Anderson)

KANSAS CITY--I almost bought into it. A few seasons ago I noticed baseball players rocking bracelets and necklaces that were different than anything I’d seen before. They had some bling, they were vibrant, and heck, a professional athlete was wearing it, so it must be worth a try, right? I looked online and saw they were selling from around $30 to $60. The description touted that they increased your balance, reduced stress and helped you recover from fatigue. So, I pulled the trigger and bought the “IONIC bracelet.”

To my chagrin, my balance still well, suspect. I remained pretty bad at softball, and I reverted to other things that relieved my stress. But unlike poor Seth Thompson and TryciaCarlberg, I didn’t run to a lawyer (or in the alternative, a lawyer didn’t run to me) requesting to sue the manufacturer because I was duped by an infomercial.

So the sad story goes of how the Hall of Famer George Brett is trying to keep his business, Brett Bros. Inc., from having to file bankruptcy. In February, Thompson and Carlberg filed separate class action lawsuits in Iowa and Washington District Court, respectively.

Both suits seek to certify a nationwide class of consumers that were allegedly “damaged” due to the “false and/or misleading marketing and advertising” used that lured them into buying the bracelets, according to the complaints. The lawsuits assert various counts for violating the Iowa, California and Washington Consumer Protection Acts and for unjust enrichment.

Essentially, the Acts forbid businesses from engaging in unfair and deceptive trade practices. The Acts seek to protect consumers—like you--from purchasing something you believed you were getting but in reality it was far from it, or useless. As a result of these deceptive practices, a businessprofits unjustlyat the consumer’s expense.

What allegedly unfair and deceptive practices could lead someone to buy jewelry?

According to the lawsuits, from 2008 through 2010, Brett Bro’s website, and various other websites selling the product, proclaimed that the IONIC necklaces and bracelets can relieve stress, maintain balance, improve concentration and focus, ease pain, and help recover from sports fatigue.

Could these claimants actually prevail on these claims?

Oh yes, yes indeed, just ask Power Balance how it’s feeling after being whacked with several similar lawsuits last year. After settling and conceding, “we may have gotten ahead of ourselves with claims about our first product,” Power Balancereportedly was forced to file Chapter 11 Bankruptcy in order to restructure its assets and liabilities.

The Power Balance settlement provided the opportunity for each consumer that purchased a bracelet with a refund, including the cost of shipping; the class representative (i.e. what Thompson and Carlberg are seeking to be) with no more than$500; and the plaintiffs’ lawyer with no more than $1 million dollars. Power Balance eventually ended up forking out over $57 million dollars. Power Balance was also sued in Europe and Australia, and was fined by a French Protection Consumer Agency for $350,000 Euros due to similar false advertising. 

However, unlike the Power Balance case, which preliminarily settled three months after the lawsuit was filed, Brett Bros. seems willing to fight to protect its purported rights. In the Power Balance cases, the defendants did not file an Answer denying the plaintiffs’ claims but instead, after mediation, determined that the plaintiffs’ cases may have merit and decided to enter into settlement agreements.

Brett Bros. decided to lawyer up and filed an Answer on March 6th denying all claims, and argued that it acted in good faith and in accordance with industry standards. The Answer also asserts 44 affirmative defenses and requests a jury trial. Whether Brett Bro’s will end up settling or risking multiple trials is unknown, but in either event, it will be a calculated risk the Company and lawyers will be mulling over in the coming weeks and months. For now, it looks like Brett Bros. is willing to fight it out, but in the high stakes realm of complex litigation, strategies can change quickly. The Power Balance lawsuits and settlement will surely be a somber reminder that the Company could be in serious trouble.

Paul D. Anderson is a third-year law student at the University of Missouri-Kansas City. He is the creator/editor of NFLconcussionlitigation.com. You can follow him on twitter @PaulD_Anderson to stay up-to-date on the concussion and Brett Bros. lawsuits. Paul has been doing very good work on the NFL concussion issue and if that is of interest, I urge you to check out his site.

Thursday, March 8, 2012

Peyton Manning & The Decision Part 2

Peyton Manning should join the Dolphins and, taking a page from LeBron, announce his choice by way of The Decision Part 2 with Jim Gray. It would score huge ratings. If it did happen, here's how it may go down.

(This is the actual transcript from LeBron's Decision with some minor changes)

Q. You've had everybody else biting their nails. So I guess it's time for them to stop chewing. The answer to the question everybody wants to know: Peyton what's your decision?

A. This fall, this is very tough, this fall I'm going to take my nerve endings to South Beach and join the Miami Dolphins.

Q. The Miami Dolphins? That was the conclusion you woke up with this morning?

A. That was the conclusion I woke up with this morning. I can't feel my right arm.

Q. Why Miami?

A. The heat will be good for my arm, which I can’t feel. I used to be able to count to 10. Now I can only count to 5.

Q. Was it always your plan to go and play with JP Losman?

A. Well, I mean, I'm looking forward to it. To say it was always in my plans, I can't say it was always in my plans because I never thought it was possible. I can’t feel my fingers.

Q. In many ways you're going to J.P Losman’s team. He's been in Miami. He's won a ring in a cereal box. How do you think you'll be able to fit?

A. Who is Losman? Sometimes I faint for no reason.

Q. How do you explain this to the people in Indianopolis?

A. Irsay asked me to leave so he could move the team to Canada in the middle of the night. I agreed. Problem is he wanted to shake on it. It took me 3 months to raise my arm.

Q. Did LeBron’s mom help you with your exit from Indy?

A. Absolutely. When I called LeBron’s mother I thought I would hear a different reaction. Her reaction was that it was a great move, because she felt it was going to ultimately make me happy. It wasn't about being in Miami. It wasn't about playing alongside Losman. She just felt it was going to make me happy. She also said it didn’t matter that the entire right side of my body was numb. She also said it was ok that I can no longer cry out of my right eye. She gives good hugs.

Q. Did LeBron’s mom give you any advice?

A. Yes – learn how to throw left.

Wednesday, March 7, 2012

Bounty Gate: Now A Legal Matter

The NFL Network has decided not to re-air the NFC Championship game between the Saints and Vikings. Initially, the game was going to re-air on its network. This is not a surprise.

Following up on my summary from yesterday (below) on the key legal points, the Saints case is no longer a football matter - it is a legal matter.

It may have started as a football matter. However, it quickly morphed into a legal matter once it was revealed that the Saints did indeed intentionally seek to harm opposing players. The NFL has to deal with the 32 plus concussion lawsuits, the threat of civil lawsuits filed by targeted players, possible class action lawsuits and possible criminal charges.

All that makes it necessary that the NFL proceed in a way that not only addresses the bounty program from an optics standpoint, but that it seek, as best it can, to insulate itself and its teams from liability.

This is where the lawyers step in.

Tuesday, March 6, 2012

Radio Clip: TSN Toronto Radio - Saints

Here's a link to my interview with Scott Macarthur from TSN 1050 in Toronto. Scott conducted a pretty comprehensive interview of the Saints bounty case and all its legal tentacles.

Scott is now hosting his own show from 9 to 12. It's a very good show - smart, clean and thoughtful. Have a listen if you can at http://tsn.ca/Toronto/.

A Legal Glimpse: The Many Layers of the Saints and Bounty Gate

Last week it was revealed by the NFL that more than 20 defensive players for the New Orleans Saints participated in a "bounty" system from 2009 to 2011, which rewarded individuals with cash for harming opposing players.


Players were paid for inflicting game-ending injuries, with $1,500 for knocking out a player and $1,000 if an opposing player was carted off the field. Payouts doubled or tripled during the playoffs. Individuals were also paid for plays such as interceptions and fumble recoveries. .

The NFL said on March 2 that the Saints’ bounty pool was set up by Williams and may have reached as much as $50,000 during the 2009 playoffs, which culminated in the team’s first Super Bowl title.

Former Saints defensive coordinator Gregg Williams administered the program with knowledge of other defensive coaches. The NFL says Saints coach Sean Payton was not a direct participant, yet was aware of the allegations and failed to stop the bounty program.

Saints owner Tom Benson did not have prior knowledge of the program, and upon notification by the league, directed GM Mickey Loomis to discontinue the program. That didn’t happen and the program continued.

Williams: His Teams & Players

Before joining the Saints, Williams was the defensive coordinator in Tennessee, Washington and Jacksonville, and the head coach in Buffalo. In January, he was hired by Rams coach Jeff Fisher (who he worked with in Tennessee) as the defensive coordinator.

Former Redskins safety Matt Bowen said Williams had a bounty scheme when he was in Washington. Former Bills safety Coy Wire told The Buffalo News that an environment of "malicious intent" was in place when he joined the team in 2002, when Williams was the head coach. Wire said Williams promoted "financial compensation" for hits that injured opponents. Wire cited a career-ending shoulder injury he inflicted on Detroit Lions running back James Stewart with a legal hit during a 2003 preseason game.

“I was showered with praise for that,” Wire told the Buffalo News. “It’s a shame that’s how it was. Now I see how wrong that was.”

One Saints player fined last season for flagrant hits was safety Roman Harper. In Week 14 against Tennessee, he made two hits that drew a total of $22,500 in fines. Harper was fined $15,000 for roughing the passer on a helmet-to-helmet hit, and another $7,500 for unnecessary roughness when he pulled down receiver Damian Williams by his helmet after a long catch and run.

Goodell Says

Commissioner Roger Goodell had this to say: “The payments here are particularly troubling because they involved not just payments for ‘performance,’ but also for injuring opposing players. The bounty rule promotes two key elements of NFL football: player safety and competitive integrity.”

Williams Says

Williams has admitted he ran a bounty program and has expressed remorse.

"It was a terrible mistake. And we knew it was wrong while we were doing it."

Legal Look at the Big Issues

This case has significant implications for the NFL. The league knows it will need to handle this in a way that sends a pointed and decisive message that bounty programs will not be tolerated. There are a few reasons why this is important to the NFL.

The two big issues are (a) circumvention of the salary cap, and (b) player safety. This second issue has a few tentacles.

Circumvention of Salary Cap

Teams are not allowed to pay players money that is not included in their contracts. Teams have to respect the salary cap, and bonuses that are paid outside the four corners of a contract are not counted against the cap. That is not allowed, and is considered a circumvention of the salary cap and opens a team up to sanctions.

Specifically, non-contract bonuses violate the NFL CBA and the Constitution and By-Laws. As per Articles 9.1(c)(8), 9.3(f) and 9.3(f) of the Constitution and By-Laws, teams can’t make payments to players not incorporated in their contracts.

Concussion Lawsuits

There is the issue of concussion lawsuits. Borrowing from LeBron, there are not 5, not 6, not 7 concussion lawsuits – there are 32 and counting. These lawsuits have been filed by retired players who allege that the NFL hid from its players the long-term neurological dangers of playing NFL football. As a result, the players say they are now suffering from dementia and brain disease.

With these lawsuits as the backdrop, the NFL is going to want to show that it is proactive when it comes to player safety. From an optics standpoint, in the context of these lawsuits, this is important for the NFL.

However, remember one thing: the concussion lawsuits are not going to distinguish between paid cheap shots, unpaid cheap shots and just NFL incidental contact that is allowed. These lawsuits focus on something a lot broader in scope - the dangers of shots to the head, concussions and their relationship with cognitive degeneration. Still, paid hits could become an aggravating circumstance.

Players Suing for Cheap Shots

NFL players victimized by paid cheap shots could sue an opposing player, coaches and team. These could be players whose careers were ended as a result of a hit or who were severely injured.

However, remember one thing – players can sue for cheap shots whether it’s paid or unpaid. The fact that a player was paid to deliver a cheap shot provides an added layer and added ammunition when suing. It would be argued that the hit was essentially planned in advance and that some people acted in concert. That’s not good.

There is a precedent. In the 1970s, Denver Broncos free safety Dale Hackbart was struck in the head and neck by Cincinnati Bengal fullback Charles Clark during a game.

After the game, X-rays revealed that Hackbart broke four vertebrae in his neck. This injury ended his football career. Hackbart sued and the Court said that the lawsuit could proceed.

By being proactive, the NFL can help avoid possible lawsuits in future or show that they take appropriate action when confronted with an assault on the field.

Criminal Charges

The two main charges would be battery and conspiracy. Batter refers to applying force to someone without their consent. So a player could be charged with battery. Conspiracy means when two or more people get together and agree to commit a crime. In this case, that could be Williams/Payton/Loomis and the players. In theory, this is possible but it won’t happen. This isn’t big enough to warrant the attention of the prosecution.

Class Action Lawsuits

Fans could get together and sue claiming that they bought tickets to games to watch players decide games based on their athletic ability and not by way of bounty. Damages would likely be limited to the price of the tickets. However, if it’s framed as a class action lawsuit, the money could add up quickly.

You may remember in 2007, a New York Jets season ticketholder sued the Patriots and coach Bill Belichick claiming that the Patriots deceived fans by secretly videotaping the Jets coaches making hand signals. The case, though, was tossed out by the courts.

Safe Work Environment & The Future of the NFL

Goodell has been big on player security (just asked Jerome Harrison). The league has adopted rules that create a safer work environment for its labourers (i.e., NFL players).

As best it can, the NFL wants to avoid parents deciding not to put their kids in football because the game is too violent. The NFL right now is doing very well. It enjoyed revenues of close to $10 billion last season and in 2014 when all its TV deals kick in, it will earn about $7 billion in TV money (or $250 million per team). The NFL doesn’t want to see its sport go into decline, and it knows that kids not playing the game may become a problem. So the league is taking steps to try and address the issue of player safety.

Sanctions on Williams & Company

Expect the NFL to come down hard on Williams, and anyone else who knew about these bounty programs, including coach Payton and GM Loomis. They could also go after players, but likely to a lesser extent.

Ultimately, we are going to see fines, suspensions and the forfeiture of draft picks. For Spygate, the NFL fined Patriots head coach Bill Belichick $500,000 (the maximum allowed by the league), the Patriots $250,000, and docked the team a first round pick in the 2008 NFL Draft.

The NFL will likely come down harder on Williams. He could be suspended for at least 8 games, although a full season would not be a surprise. Payton may also be suspended. As well, the Saints will lose draft picks and will be heavily fined.

Depending on what else they find, other teams could be targeted. After all, Williams was a coordinator for the Redskins, Jaguars and Titans, as well as the head coach of the Bills.

This case has tentacles and could well have far-reaching implications.

Monday, March 5, 2012

Part 1: Interview with NHL COO John Collins

John provides tremendous insight into the Winter Classic, HBO 24/7, NHL branding strategies, its use of media  platforms and NFL vs. NHL fans.

John has been referred to as:

(a) The architect of the new NHL
(b) As a man that “really changed the culture of the league”
(c) The jet fuel taking the NHL into the 21st century and beyond (Michael Farber).

In his role as COO, John heads up the League’s global business, sales, licensing and media operations.

John joined the NHL in 2006 after spending 15 years in NFL Senior management, including a stint as President and CEO of the Cleveland Browns.

Under John’s guidance, the NHL has enjoyed 5 consecutive seasons of record revenue, including a $1 billion bump in revenue.

John has won numerous awards, including Executive of the Year and Marketer of the Year. Under his watchful eye, the Winter Classic was named the Event of the Year by the Sports Business Journal and the NHL was honored as the Sports League of the Year in 2010.

John is behind big events like the Winter Classic and the HBO 24/7 Franchise and was the lead on the NHL/NBC TV Deal.

Homosexuals In Sports: League CBAs & Calling All Commissioners

Former Miami Heat guard Tim Hardaway once proclaimed he hated gay people.

“You know, I hate gay people, so I let it be known," Hardaway said in 2007. "I don't like gay people and I don't like to be around gay people. I am homophobic. I don't like it. It shouldn't be in the world or in the United States."

Partrick Burke has decided to do something about addressing homophobia in sports – much like his brother Brendan did by being the first openly gay manager in hockey.

Patrick, son of Toronto Maple Leafs general manager Brian Burke, has launched a campaign promoting equality in sports irrespective of sexual orientation. As you may have heard by now, it’s called “You Can Play” and features hockey players like Rick Nash, Duncan Keith, Corey Perry, Dion Phaneuf and Henrik Lundqvist.

Patrick’s brother, Brendan, made headlines when he came out in November 2009 while serving as the manager of Miami of Ohio's college hockey team. He was tragically killed in a February 2010 car crash at the age of 21.

This campaign represents a meaningful and vital step in the right direction.

Collective Bargaining Agreements & Homosexuality

The NBA, NFL, MLB and NHL have also taken steps in that direction. Their collective bargaining agreements have all been amended to prohibit discrimination based on sexual orientation. This is new.

Here’s how the NHL CBA reads at Article 7.2:
Neither the NHLPA, the NHL, nor any Club shall discriminate in the interpretation or application of this Agreement against or in favor of any Player because of religion, race, disability, color, national origin, sex, sexual orientation, age, marital status, or membership or non-membership in or support of or non-support of any labor organization.
Here’s the relevant clause from Article 49 of the NFL CBA:
No Discrimination: There will be no discrimination in any form against any player by the NFL, the Management Council, any Club or by the NFLPA because of race, religion, national origin, sexual orientation, or activity or lack of activity on behalf of the NFLPA.
The question remains, however, can the leagues do more. We know that Burke’s campaign, while it is supported by the NHL, does not expressly tie them in. You will note that Burke says the campaign has the support of players from “around the world”, and not the NHL specifically. Of course, these are NHL players so there is an implied connection. Still, there is a distinction being made and I presume it is intentional.

For every player that says that he is fine with a gay teammate, there is another that expresses his displeasure over the idea, or just makes a vague yet transparent comment like “players aren’t ready for a gay teammate”.
Frankly, a lot of baseball players at one time weren’t ready for a black teammate but it still happened.

Calling All Commissioners

So what do to next? The first step would be for the Commissioners of the leagues to declare, in no uncertain terms, that their sports welcome homosexuals and encourage them to come out. Goodell, Bettman, Stern and Selig should stand up and make that statement.

The next step would effectively be Jackie Robinson Part 2: addressing discrimination by way of an institutional and coordinated effort. An active player would come out with the express backing of the league and his team.

That’s what happened with Robinson. Brooklyn Dodgers general manager Branch Rickey signed Robinson, and with the help of their minor league affiliate the Montreal Royals, and team president Hector Racine, began the journey of integrating the first black player in major league baseball. This was a concerted effort among many, and had institutional support. The player was protected and the idea of integrated baseball was able take flight.

It will happen – a player will eventually come out as gay. In order to help such a move  achieve success, it can’t just be a player spontaneously announcing he is gay. The league and teams need to engage in a coordinated effort to make it work.

And one thing is for sure - whoever does it will forever be known as a pioneer and will be mentioned in the same breath as Jackie Robinson and Curt Flood.

The league needs to pick the right kind of player. He would need to be thoughtful, patient and have thick skin. He will also need to have faith that this is worth the risk. It may also help if he is a higher end player. As well, other players will need to be educated.

This isn’t going to be easy. However, the hope is that years from now we will get to a point where no one really cares whether a player is gay, and young men and women can place their focus where it needs to be – squarely on sports.

Sports can be an effective vehicle for change. Time for the Commissioners to get in the front seat.

Friday, March 2, 2012

Bodog & The Legality of Online Gaming

A federal grand jury in the United States has indicted four Canadians who operated the online gaming business Bodog accusing the company of conducting an illegal sports gambling business and conspiring to commit money laundering. The founder of the online gaming site Bodog, Calvin Ayre, along with website operators James Philip, David Ferguson and Derrick Maloney, have also had arrests warrants issued against them.

According to the indictment, an undercover Immigrations and Customs Enforcement agent opened an account in June 2009 and made sports bets on Bodog.com, most recently in January 2012. The agent received winnings by check and cash.

Bodog operates in the U.K., Europe and Asia and say it has “never taken bets from the US”.

Ayre and his web operators are now fugitives under U.S. law.

Here’s what you need to know.

Bodog Not Alone

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.

Online Gaming: Big Big Business

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.

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. 

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.

The Legality of Online Gambling in the U.K.

It’s legal and taxed. Everyone is happy. Hugh Grant, however, remains pensive, self-deprecating and charming in a clumsy way.

The Legality of Online Gambling in Canada

The operation of an unlicensed or unlawful gambling is an indictable offence in Canada – and that includes online gambling. 

This is covered by the Canadian Criminal Code. To conduct legal gambling and betting in Canada, a valid license must be obtained from the provincial government. Right now, only the provincial governments can run online gaming operations. As well, they can’t issue licenses to third parties to run online gaming sites.

So in cases of gaming businesses located in Canada, it’s easy to say that they are breaking the law.

But there is a bit of a wrinkle with Bodog and company. Remember that these sites are virtual in nature and are not your traditional casino or bricks and mortar gaming business with a physical location in Canada. 

They can be located in the U.K. or Malta and servers in the Caribbean? An online gaming business doesn’t need to be in Canada to be accessed by Canadians.

So here's the wrinkle: Canada may not be able to establish a sufficient connection between an online gaming site in the UK (for example) and Canada such that it can pursue criminal charges against that site.

Put another way. without a sufficient connection, it’s tough to rely on the Criminal Code to ban online gaming. 

Even with a connection, it can still be a challenge to figure out specifically how the Criminal Code applies to online gaming.

Elsewhere in Canada, the Kahnawake Mohawk Nation in Quebec has been running an online casino since 1999, and generates about $2 million a year in profit. The Attorney General, however, has called the operation illegal. Still, though, no legal action has been taken against the Nation. Cue more grey area.

And that's why Bodog.ca is still active.

Tough To Get U.S Hands On These Guys

A lot of the owners of these businesses are outside the reach of the U.S. government. For example, the owner of PokerStars, Isai Scheinberg, lives on 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.

Canada won’t extradite these guys as well. So that means that as long as these guys don’t travel through the U.S. they are fine.

So when it comes to online gaming, all bets are off.

That's the best pun I could come up with to end this article.