Offside: A Sports Law Blog

Iowa Woman Sells Phantom SUPER BOWL Tickets

2012-02-10T10:40:00.000-05:00

At least $500,000 worth of tickets to the Super Bowl and other premier sporting events were not delivered by Iowa woman Ranae Van Roekel, who is now under investigation for selling phantom tickets more than a year before the events.

One man bought $100,000 worth of Super Bowl tickets from Van Roekel. That complaint came in after another person spent $180,000 on tickets for the Super Bowl and other events.

The investigation began last week when a former Iowan living in Florida complained that Super Bowl tickets he allegedly bought from Van Roekel never arrived. As many as 50 people in Montana reported not receiving tickets sold to them by Van Roekel.

Super Bowl tickets are controlled by the NFL. Of the tickets to the big game game, 17.5% went to the Giants, 17.5% to the Patriots, 5% to the Colts, and 1.2% each of the 29 remaining NFL teams.

The NFL sells the rest to the media, business partners and the NFLPA. Only about 500 tickets are sold to the general public by the NFL through a lottery.

Here's the article reporting on the phantom ticket case.

The SUPER BOWL Trademark & What Not To Say

2012-02-10T09:55:00.000-05:00

"When we become aware of a potential violation, we will be very aggressive, and sending a cease and desist letter would be the first step" NFL spokesman Brian McCarthy said.

What is Mr. McCarthy referring to? The use of the trademark SUPER BOWL by unauthorized third parties. Only a handful of authorized parties were permitted to use the SUPER BOWL trademark in association with the promotion of whatever they were selling.

The NFL has 22 official marketing partners that pay north of $100 million annually to be affiliated with the league. Sponsors include Pepsi, Verizon, Motorola and Castrol. Although there is no specific sponsorship of the Super Bowl, NFL sponsors have the right to use the game's name and logo in their own marketing efforts.

The average fan will spend $63 on merchandise, clothing and snacks, with total consumer spending for this year's Super Bowl expected to reach a record $11 billion. Personally I spent $1484 on wings. I am now obese.

So being an authorized licensee of the NFL is not cheap. For that reason, the NFL has to make sure that its existing partners that pay a pretty penny to use the mark don't get upset when unauthorized parties use the mark for free. As well, trademark owners generally need to protect their marks to ensure that only authorized parties use them. That's a basic trademark principle.

The NFL will send out cease and desist letters requiring a business to stop using the mark. That's where they start and generally parties stop using the mark.

In order to take advantage of the SUPER BOWL, businesses like bars use wording like "The Big Event" or "The Big Game" to get around the issue. Electronics retailer H.H. Gregg Inc. promoted a Super Sale. Pizza Hut promoted its Big Deal for the Big Game offering any pizza for $10. I ordered 3000 pizzas. I remain obese.

So businesses have gone with closely associated wording without using the SUPER BOWL mark or something confusing with it.

Businesses get that there is tremendous value in associating themselves with the most watched TV event of the year. These businesses need to make sure the don't go too far though.

Tweaking An Old Axiom

2012-02-01T10:47:00.000-05:00

The old saying was that if they can trade Wayne Gretzky, they can trade anyone.

In a cap world, we should tweak it to this - if they can trade Scott Gomez, they can trade anyone.

There is hope, then, for all big, immovable contracts. You just never know.

Super Bowl Fun Facts: From The Cost of Super Bowl Rings to Historic TV Numbers

2012-02-01T07:00:00.002-05:00

Straight from the NFL, here's some good information about the Super Bowl:

Super Bowl Host Cities (I – XLVI)

South Florida (10)

New Orleans (9)

Los Angeles (7)

Tampa Bay (4)

San Diego (3)

Arizona (2)

Atlanta (2)

Detroit (2)

Houston (2)

Indianapolis (1)

Stanford (1)

Jacksonville (1)

Minneapolis (1)

North Texas (1)

Television

With 162.9 million viewers in the U.S., last year’s game was the most watched program in television history. It marked the 4th consecutive record-setting total audience for the Super Bowl. Number two is Colts-Saints with 153.4 viewers. The game was broadcast to 180 countries and territories in over 30 different languages.

What The Players Get Paid

Wild Card Game - Division Winner: $22,000

Other Team: $20,000

Divisional Playoff Game: $22,000

Conference Championship: $40,000

Super Bowl - Winning Team- $88,000

Super Bowl - Losing Team - $44,000

Pro Bowl - Winning Team - $50,000

Pro Bowl - Losing Team - $25,000

According to the NFL “A player on a division winner participating in the Wild Card round and winning the Super Bowl will receive a total of $172,000. A player on a Wild Card team which wins the Super Bowl will receive a total of $170,000”.

Lombardi Trophy & Rings

Cost of the Vince Lombardi Trophy: $25,000

Who Makes the Vince Lombardi Trophy: Tiffany & Co. of New York

Cost of Super Bowl Rings: The NFL pays for up to 150 rings at $5,000 per ring (plus adjustments for increases in gold and diamonds). The NFL also pays for 150 pieces of jewellery for the losing team which may not cost more than one-half the price set for the Super Bowl ring.

Radio Clip - Team 1200: Tim Thomas/Jack Todd

2012-01-31T17:48:00.000-05:00

Steve Lloyd and I chat about Jack Todd's slightly unfortunate article on Tim Thomas. Here's the clip.

Thomas must be wishing he had just gone to the White House rather than taking a stand (or a seat).

Thomas is probably figuring out that how you take a stand is as important as what you take a stand for.

Please Leave: Super Bowl Hotel Making Guests Sign Affidavit

2012-01-31T17:35:00.001-05:00

One Indianapolis hotel is doing what it can to ensure that guests leave before a whole bunch of people descend on the city for the Super Bowl.

There is a 4 night minimum for the press (and perhaps others) booking for the Super Bowl. One Indy hotel (and I suspect they are not alone) want guests to confirm they will leave by Thursday February 2 when the 4 day minimum kicks in.

How are they seeking that confirmation? By way of affidavit. Here's what the hotel is asking for specifically:

Because this reservation involves the night before our four-night minimum stay for Super Bowl XLVI, you will be asked to sign an affidavit upon check-in verifying your departure date and you will then be required to check out and leave the guest room by 12:00 noon on Thursday Feb. 2.

Never seen that before. Love it.

A Legal Glimpse: Jack Todd, Tim Thomas & Defamation

2012-01-31T10:28:00.001-05:00

I was having dinner Sunday night at a near-dining establishment when I got an email steering me to Montreal Gazette columnist Jack Todd’s article on Tim Thomas. When I read it, I muttered to myself (and the bus boy) “Oh that’s not good”.

What Todd Wrote

Todd wasn’t happy with Thomas skipping the White House visit (I wasn’t either by the way). Here’s part of what Todd wrote:

Look, if this cretin wants to stand outside the White House and spew his drivel, that’s free speech. But standing up the president? All that does is show that Thomas has the class of a swamp-rat. What’s worse, you know Thomas would not have done this with the liberal Democrat Bill Clinton in the White House. Truth is, he felt free to dis Barack Obama, because Obama is black.

The last sentence is what caught my attention that Sunday night while I was polishing off a salty piece of chicken. And of course, it caught everyone else’s attention – including the Montreal Gazette.

That was quite the statement – “Truth is, he felt free to dis Barack Obama, because Obama is black.”

Sometime after the article was posted online, the Gazette edited the article by deleting that last line. The Gazette then prefaced the article with the following apology:

“The Gazette apologizes for previously posting an unedited version of this column.”

Defamation

So from a legal standpoint, the question is whether this statement could give rise to a claim for defamation: “Truth is, he felt free to dis Barack Obama, because Obama is black”.

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.

Defence to Defamation: Fair Comment

There are defences available to a person if sued for defamation. One of them – and the one that applies here – is fair comment. There are a number of elements to satisfy when making out this defence. In part, the defendant must be able to show that (i) the comment was based on known and provable facts, (ii) any person would hold that same opinion based upon the facts, and (iii) there was no malice behind the statement (or an intent to inflict injury on the plaintiff).

So you ask yourself this: is it an honest opinion based on fact or one based on malice.

Were the Comments Fair?

Thomas said he took a stand by taking a seat because he believed “the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People”.

There was nothing there to suggest that his position was racially motivated. As well, generally speaking there is nothing that I am aware of that would suggest that Thomas made his decision based on race. Last time I checked, he wasn't friends with David Duke.

To suggest that someone is racist is a profoundly dramatic and potentially damaging statement that could have very serious repercussions on a person’s personal and professional life. To suggest the same thing without any firm confirmation is going too far.

Thomas deciding to use an employer driven event to make his personal political beliefs known was, to say the least, ill-conceived. When given a chance to explain himself, he didn’t really say much did he? Nothing on healthcare, jobs or foreign policy. Nothing thoughtful, interesting or insightful. He just took a seat after making some very general, vague, and frankly, vacant comments.

Nevertheless, to suggest that he is a racist without a reasonable basis to do so is difficult to justify.

For that reason, the Gazette edited Todd’s article. For that reason, Thomas may have considered, even if for a moment, whether he wanted to call his lawyer. And for that reason, it's reasonable to conclude that Thomas has an arguable case.

Radio Clip - Team 1260: The Role of Squash in Law, Scott Gomez, Subban & Tim Thomas

2012-01-27T17:31:00.000-05:00

Here's a link to my conversation with the boys at the Team 1260. Spirited as usual. They insulted me 48 times.

Can NHL Contracts be Renegotiated Before Their End Date?

2012-01-27T14:10:00.001-05:00

While filling in as a guest co-host on TGOR this morning, we talked about whether the Ottawa Senators could renegotiate the last year of Daniel Alfredsson's contract.

The Ottawa Senators captain has one more year that will pay him $1 million. His cap hit remains $4,875,000 (the average yearly value of his 5 year/$24,084,754 deal). The topic of renegotiating the last year of his deal came up when the host of the big show, JR, wanted to increase Alfredsson's pay in the last year of his deal given the captain's iconic status in the city of Ottawa. In part, the logic was that the cap hit was already upwards of $4 million so why not pay him the same. It's the right thing to do, he said. Fair statement.

Unfortunately, Article 11.10 of the NHL CBA does not allow for the renegotiation of contracts:

11.10 No Renegotiation. In no event shall a Club and a Player negotiate a change in any terms of a Player SPC for the then-current season or for any remaining season of an SPC. This provision shall not prohibit a Player and Club from negotiating an extension to an existing SPC in accordance with the terms of Section 50.5(f) hereof or from negotiating a new or reformed SPC or Offer Sheet in the limited context and time-frame expressly set forth in Section 11.6(a)(vi) above.

The language is pretty clear - in no event shall a contract be renegotiated. Players can, however, negotiate an extension to a deal while under contract.

As well, teams can't do indirectly what they can't do directly. That means that the Senators can't buy Alfredsson dinner every night, pay for his haircuts and starch his shirts to make up for the fact that he is only being paid $1 million. That would be a circumvention of the CBA.

Also don't forget: a team could intentionally pay a player a lot less in the last year of a contract to enjoy a lower cap hit and then come that last year pay that player more. Problem is the cap hit in the other years of the contract can't be readjusted so that team would ultimately enjoy a net gain on the cap hit.

Players are stuck with the deals they sign - as are teams.

CBA aside, while Alfredsson is certainly the most beloved athlete in Ottawa by a country mile, his 5 year deal was front loaded at $7 million for the first two years. As well, he's made about $50 million playing for the Senators. While he has taken some home town discounts, that's still some pretty good money. He was free to contract with any party and chose Ottawa.

As well, when parties enter into contracts, both sides bear risk. That's how contracts work. The Senators didn't ask Alfredsson to pay back part of the $4.5 million he was paid last year after a tough season (31 points in 54 games).

In any event, I don't think Alfredsson would ask for more money. He's doing just fine.

As always, though, these discussions raise interesting legal questions.

Enjoy your All-Star weekend.

Some Overhead Pics of All-Star Game Festivities

2012-01-26T15:55:00.003-05:00

Here are some pics of the festivities. City Hall just built a new outdoor hockey rink and that's on the far right in the first pic. Heading left, you will see Confederation Park, which is where there's NHL ice sculptures (saw them last night and they were pretty impressive) and the new Ottawa Convention Centre, where the Fan Fair is held. Slicing through the back is the famous Rideau Canal, the longest hockey rink in the galaxy:

Tim Thomas Takes A Stand And Sits One Out - Eric & Graydon Sound Off (And Disagree)

2012-01-24T09:36:00.000-05:00

Bruins goaltender Tim Thomas released the following statement Monday evening regarding his absence from the Bruins' visit to the White House this afternoon:

"I believe the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People.

This is being done at the Executive, Legislative, and Judicial level. This is in direct opposition to the Constitution and the Founding Fathers vision for the Federal government.

Because I believe this, today I exercised my right as a Free Citizen, and did not visit the White House. This was not about politics or party, as in my opinion both parties are responsible for the situation we are in as a country. This was about a choice I had to make as an INDIVIDUAL.

This is the only public statement I will be making on this topic. TT"

___________________________________________

Eric Macramalla and Graydon Ebert sound off on Tim Thomas:

Eric Macramalla Says

Tim Thomas has said that not going to the White House “was not about politics or a party”, but in the same breath criticized the Federal government.

Of course this is about “politics” and of course this is about a party – or two. That’s not a tough one.

That aside, was Thomas’ decision appropriate?

No. You don’t use an employer driven event to make your own personal political beliefs known. Thomas is an employee of the Bruins and paid handsomely to boot. Thomas must respect his employer and should not bring politics into the mix in connection with a team event celebrating a team accomplishment. It’s distracting, unnecessary and ill-conceived.

There is a legitimate business purpose behind ensuring that players don’t do this kind of stuff. Fans and sponsors can be turned off by such a move. That’s why the NBA suspended Nuggets Guard Mahmoud Abdul-Rauf for not standing during the national anthem on religious grounds.

There is nothing wrong with an athlete making his views known. Frankly, I encourage it (I may not agree with what you have to say but I will defend your right to say it). However, do so on your own time – and not on your employer’s time.

It’s important for players to show a basic level of respect and courtesy to their employer. That was missing here.

Thomas ended his press release by saying that this “is the only public statement I will be making”. Ultimately, he didn’t really say much did he? Nothing on healthcare, jobs or foreign policy. Nothing thoughtful, interesting or insightful. He just took a seat after making some very general, vague, and frankly, vacant comments.

So all we are left with is, in all likelihood, unhappy Bruins ownership, somewhat disappointed teammates and fans, and a flimsy press release – and of course a pretty good reputation that has taken a hit.

Graydon Ebert Says

Tim Thomas is definitely wrong that he's not being political but I don't have a problem with him choosing to boycott the visit (As a side note, I don't support Thomas' views - I just support his decision to do what he did).

I agree that it is supposed to be a team recognition, going to the White House to celebrate the Cup but its not really a public celebration, these visits go on all the time and are merely a footnote in the news cycle. He took something that would have just passed by unnoticed and used it to express his beliefs and frankly theres little downside in my opinion. Yes, his teammates might be a little annoyed and may have to answer some questions for a while but that won't last long term. The Bruins owners may not be that happy that he used the visit to make a political point but its not like they will actually lose any business as a result and it is very unlikely they'll be tied to his beliefs.

In a way I would compare it to when Mahmoud Abdul-Rauf of the NBA refused to stand for the national anthem or when Carlos Delgado refused to take the field in New York for God Bless America as a protest against the war with Iraq. They took a personal political stand in a way that didn't affect the way they did their job. Their teammates and ownership might not have been happy in how they voiced their opinion but there was no long-term blowback.

Frankly, this is how you protest if you want to do it successfully. Had he merely made a statement or took part in a rally or whatever, his voice would have easily been ignored, but by not making this visit, he certainly made his views known, but in a setting that is really not very serious or damaging to anyone. I think it was kinda smart, even though it is a total political statement that makes him sound like Ron Paul or a Tea Party member.

The NHL CBA & Player Contracts: What Should the Canadiens Do With The Scott Gomez Contract

2012-01-20T17:47:00.000-05:00

Scott Gomez only scored 7 goals last season, or $1.14 million per goal. He admitted he didn't have a great season, although that’s like saying that Herman Cain had a so-so campaign.

This season it’s a bit worse. Gomez and I are tied with the same number of goals at 0. He’s played 16 games this season and has 5 assists. He’s making $7.5 million. I was paid 28 pesos for this column. Hardly seems fair.

Will Gomez be playing for the Montreal Canadiens next season. That seems unlikely, and it probably won’t be his choice. Or should I say – he shouldn’t be playing for the Canadiens next season. What will actually happen is a different situation.

Let’s look at his contract. He has 2 years left on his deal that will pay him $5.5 million and $4.5 million. The cap hit, which is key, will remain $7.357 million – what it’s been all along. Remember the cap hit is the average yearly value of a contract and not what a player makes that year.

The fact that Gomez will be paid less than his salary cap hit is somewhat good news. A team that needs to get to the salary cap floor and needs to artificially push its payroll up, could find Gomez attractive as they would be paying him less than his cap hit. That means they would have a net gain on his salary.

The second option (in order of preference) is for the Canadiens to bury Gomez and his contract in the minors. If he is sent to the minors, his salary would not count against the cap (cue Wade Redden and the Rangers). The Canadiens would of course still be paying him. This assumes that the NHL’s new CBA won’t close this loophole. From a legal standpoint, it seems unlikely that they will grandfather in a new restriction like that. Closing the loophole may just apply to future contracts.

The final option is to buy Gomez out, which would be a mistake if the Canadiens are looking to free up very valuable cap space. The reason: when you buy a player out, the buyout, while less than the player’s yearly salary, will still count against the cap. So if the Canadiens buyout Gomez, the team will still have a cap impact. Here’s the cap hit with a buyout:

2012-13: $3,523,810

2013-14: $4,523,810

2014-15: $1,666,667

2015-16: $1,666,667

The Canadiens have money and burying the Gomez contract is the price of doing business. So if the team can’t trade Gomez to a cap hungry team, then the alternative is to send him to the minors. There is no option 3.

A column on Gomez would not be complete with a note on Rangers defenceman Ryan McDonagh and the trade generally. You might remember that Bob Gainey gave up McDonagh to take on Gomez and his hefty contract. The trade was Gomez, Tom Pyatt and Michael Busto for McDonagh, Pavel Valentenko and Doug Janik. Habs fans still haven't forgotten this terrible trade, where they lost the very promising 6-1, 220 pound McDonagh, who is already showing why he was drafted 12th overall. This season, he has 19 points and is a plus 14. He’s also second on the Rangers with 105 blocked shots.

What does it say that at the time of the trade Habs fans thought it was unforgivable to include McDonagh as part of the package.

In a salary cap world, Gomez should have never been acquired by the Canadiens. Yes he’s a good player. Still, at the time of the transaction, he had 5 years left on a contract with a yearly cap hit of $7.357. That's a lot for a player that has never scored more than 16 goals over the past 5 seasons, and except for 33 goals in 2005-06, never scored more than 19 goals in a season. And don't forget, by taking on that big salary, the Canadiens lost valuable cap space needed to sign other players. If the Canadiens really wanted Gomez, his cap hit was such that the team should have only given up a draft pick and not a top prospect. This is particularly the case given that the Rangers had all kinds of problems unloading Gomez.

Finally, today my pen ran out of ink. I blame Perry Pearn.

A Legal Look at Ryan Braun's Appeal of Positive Drug Test

2012-01-20T16:36:00.000-05:00

By Graydon Ebert

Ryan Braun’s appeal of his positive drug test began in front of an arbitration panel on Thursday. Braun’s positive test, which indicated that Braun had elevated levels of testosterone suggesting the presence of synthetic testosterone in his system, was first reported last month.

Since it became public Braun has vigorously protested his innocence.

The process for appealing a positive test for performance enhancing drugs is found in the collective bargaining agreement and the Joint Drug Prevention and Treatment Program Agreement, which is incorporated by reference into the CBA. Section 9 of the Joint Drug Prevention and Treatment Program Agreement covers appeals of a positive test result.

In Braun’s case his appeal falls under Section 9B as he is challenging the positive result. Under this section Major League Baseball has the initial burden of proving that the test result was in fact positive and obtained pursuant to a valid test as set out in the Agreement. Braun, if he wishes that the test result be overturned, then must prove that the test result was not due to his fault or negligence. It is not enough for him to deny that he intentionally took a prohibited substance, but he must prove objective evidence in support of his denial, such as evidence questioning the accuracy or reliability of the positive test. This is a difficult burden for Braun to meet.

The rules of procedure for the grievance of a positive test result under the Agreement are found in Article XI of the CBA and in Appendix to the document. The hearing is held in front of a panel of three arbitrators, one from MLB, one from the union, and one independent member, reportedly Shyam Das in this case. Both Braun and MLB may provide any evidence they deem necessary to the determination of the appeal. Both sides are allowed to examine and cross-examine witnesses under oath. The Arbitrator is allowed to impose another other procedures he deems necessary.

Braun faces the penalty of a 50 game suspension for a first time positive test result. The arbitrator has 25 days from the beginning of the arbitration to make a ruling with a written opinion to follow no later than 30 days after the ruling. If Braun’s suspension is upheld he shall begin serving it as soon as the season starts. If the arbitrator rules that no discipline is appropriate, then all aspects of the proceeding will remain confidential.

So does Braun stand a chance of having his suspension overturned? He is certainly facing an upheld battle. No suspension stemming from a positive test result has ever been overturned in the history of MLB’s drug testing program. Braun has the burden of introducing compelling, objective evidence that the positive test result is not because of his fault or negligence.

Unless there were serious flaws to the testing process that have not as of yet been reported, it seems unlikely that Braun’s appeal will be met with success.

If the suspension is not overturned, Braun will not be eligible to return to the Brewers until the end of May and will lose $1.87 million of his $6 million salary for 2012.

Dipietro's Injury History

2012-01-20T10:09:00.002-05:00

Further to my column below on Rick Dipietro's contract, below is a list of some of the injuries he has sustained since he signed a 15 year/$67.5 contract on September 12, 2006.

He's sort of like Samuel L. Jaskson's character from Unbreakable. Thanks to the New York Times for collecting this information:

2006-07 (62 GP)

- Sustained concussion after a collision with Habs forward Steve Begin; missed 7 games as a result

2007-08 (63 GP)

- Off-season surgery for torn labrum in hip

- Missed three games as a result of a left knee sprain suffered during pregame warmups

- Missed last nine games of the season to hip surgery after injury he sustained during the All-Star Game skills competition (guess he was showing off his injury skills, which are unparalleled)

2008-09 (5 GP)

- Off-season left knee surgery

- "After playing one period in first five games, missed 27 games, starting Oct. 27 to knee surgery"

- Missed last 41 games of season with swollen knee

2009-10 (8 GP)

- Off-season knee surgery

- Missed first 27 games of season while recovering from surgery

- Missed last 12 games of season with swelling in right knee

2010-11 (26 GP)

- Placed on injured reserve list on December 21 with swelling in left knee

- Missed five games after suffering groin injury in Calgary game

- Missed 20 games after suffering facial fractures February 2 in his first NHL fight against Pens goalie Brent Johnson

2011-12

- Missed three games with concussion after being struck in mask with puck in practice (to be clear - it wasn;t a game - it was practice- I'm talkin' 'bout practice not a game)

- Placed on injured reserve December 15 with groin injury

- Hernia surgery - out indefinitely

Radio Clip - CJME: Taylor Hall, NHL Realignment, Joe Flacco, NFL Concussion Lawsuits & Tuna Sandwiches

2012-01-19T20:41:00.000-05:00

Joined Drew Remenda and Gary Nickle at CJME for another interesting discussion. Here's the clip.

Can Islanders Ever Get Out of Dipietro Contract? Answering A Reader's Question

2012-01-17T12:00:00.000-05:00

Offside received a good question from Adam, who resides in New York. Here's the question and Offside's response with input from blog contributor Graydon Ebert:

Hi Eric,

I first heard you on XM NHL Home Ice about a year ago and I have been a regular follower of your blog ever since. You look at the stories from a unique, but important perspective that often isn't covered by other media outlets. Keep up the great work!!!

I have a question that I have tried to find an answer to for years now: With Rick DiPietro's ridiculous contract and endless injuries, how does retirement and insurance work? I am assuming that his contract is fully insured, so don't we have enough evidence where he could retire and still be paid by the insurance company? Are there deductibles? Who pays them, the team or the player? Buying DiPietro out is not an option due to the term and dollars on the contract and I think it is safe to say there is no chance of him coming back to play a healthy, successful career. What are the options to get rid of him without having to pay him? Are there options?

With every passing injury, me and every Islanders fan wonder what the options are. Hopefully you can help clear it up!

Keep up the great work with the blog!

Best Regards,

Adam

New York, NY

____________

Adam, we can certainly appreciate your frustration. Now 30 years old, DiPietro still has nine years remaining on his 15-year deal worth $67.5-million. The latest injury is a sports hernia that will keep him out until at least April.

If you remove the 2010-2011 season, when he played 26 games, he has played 23 games since 2008, including 8 this year.

As per Article 23.4 in the CBA, a player who is disabled and unable to play because of an injury sustained during employment is entitled to be paid his salary for the remaining fixed term of his contract as long the disability and inability to play continues.

The player can also make a claim under the NHL/NHLPA career ending disability policy but this disentitles him to the salary under this contract.

In DiPietro's case, should it get to the point where he can't play anymore, it is highly unlikely (i.e., no chance) that he would choose the disability policy over getting paid under his contract. Why forsake the money under the contract.

It is likely that the Islanders have his contract insured given its size. The Isles pay the insurance (and not the player since the team is seeking the coverage). They pay DiPietro's salary and then recoup some or all of it from the insurance - depending on how the policy is structured (always look to the contract as a starting point). That means they would pay the premiums and any deductibles.

The Islanders probably don’t have any other options other than to pay him. Speaking to Newsday, Dipietro declared just last week that he had no intention of retiring.

“Nothing like that has even crossed my mind. Knock on wood, the doctors have said this is something you can come back from. Lots of athletes have. I know I still want to play.”

The Islanders can seek some salary cap relief with the long term exemption but as long as he was hurt playing hockey they have to pay him one way or another.

Ultimately, that’s the risk of signing a player to such a massive contract.

Sorry.

Radio Clip - Team 1260: Cammalleri, NHL Realignment & Slapshot

2012-01-13T13:39:00.000-05:00

Another fruitful discussion with Nielson and Chase at the Team 1260. With each passing segment we become closer. And by closer, I mean more distant.

Here's the clip.

Pierre Gauthier, Ralph Nader and Michael Cammalleri

2012-01-13T10:31:00.002-05:00

Kinda nuts how Pierre Gauthier and Ralph Nader look alike. See for yourself:

I can't see the difference - can you see the difference (cue Whisk commercial).

Nader aside, I really hope Gauthier has a plan after having disposed of Cammalleri. Yes - the move makes cap sense and the Habs get someone that can score in the dirty areas. Most of the Habs goal scorers are perimeter players and spend more time on the outside than Ron Paul.

However, Gauthier hasn't exactly excelled this season or at the very least inspired confidence. First he fired assistant coach Perry Pearne after he was unable to pin his team's loses on the popcorn girl. That didn't work out so well. After that, he fired head coach Jacques Martin. That hasn't worked out so well either. Oh yes - he signed Andrei Markov to a 3 year deal at $5.75 a year. A very talented D Man, sadly Markov has had more surgeries than Joan Rivers. Most recently he went in for a tummy tuck and brow lift and will be out indefinitely.

In a salary cap world, it can be very tough to retool. Great players are generally not made available and teams need to be shrewd and build through the draft. So that makes it imperative that management makes smart moves and doesn't waste cap space or players and/or assets.

Sometimes I just get the feeling that Gauthier has been reactionary and desperate at times this season, and doesn't have a long-term plan. Maybe I'm wrong - and if I am I would like him to let us know what the plan is over the next few seasons.

Two more things:

1) Pulling Cammalleri midway through the game makes it kinda feel personal doesn't it.

2) Gauthier likes to refer to everyone and everything as "Mr." - Mr. Cammmalleri, Mr. Bourque, Mr. Gionta, Mr. Chair, Mr. Pants, Mr. Wife, Mr. Car, Mr. Ice Cream. It's endearing - really. Maybe, though, Mr. Gauthier may want to tweak his Mr. Approach.

I really hope Habs aren't turning into hockey's version of the Corvair.

Legal Basis For NHLPA's Rejection of Realignment & Why Not Declaration of War

2012-01-11T09:01:00.000-05:00

The NHLPA has rejected the NHL's proposed realignment. The NHL was looking to move from six divisions to four conferences.

The NHLPA has said that it did not consent to the realignment as it was concerned that it could lead to more onerous travel for its members. Donald Fehr and company were also concerned about the disparity in chances of making the playoffs between the smaller and larger divisions.

Here's an excerpt from the NHLPA's press release on the matter:

"The travel estimation data we received from the League indicates that many of the current Pacific and Central teams, that have demanding travel schedules under the current format, could see their travel become even more difficult. On the playoff qualification matter, we suggested discussing ways to eliminate the inherent differences in the proposed realignment, but the League was not willing to do so."

NHL Deputy Commissioner Bill Daly wasn't too pleased. Here's some of what he said:

“The travel issue is not really an issue at all. We put them in touch with (NHL VP/Scheduling, Research & Operations) Steve Hatze-Petros, who believes, given the new matrix, he can actually make travel more efficient...There's always going to be inequities in a playoff format.”

Daly added: “There’s no system that’s perfect. My concern is that those stated concerns were really just pretext for denying consent because the players’ association felt this was an issue that should be addressed in the broader collective bargaining negotiations that are about to take place".

Legal Basis to Reject Realignment

Article 30.4 of CBA provides as follows:

The NHL...shall not, during the term of this Agreement...amend or modify the provisions ...of the League Rules or any of the League's Playing Rules in existence on the date of this Agreement which affect terms or conditions of employment of any Player, without the prior written consent of the NHLPA which shall not be unreasonably withheld.

Since realignment affects the "conditions of employment" for players, the NHL had to get the NHLPA to sign off on realignment.

The same provision of the CBA says that the Union can't unreasonably withhold its consent. The NHL contends that the NHLPA did just that and accordingly is in breach of the CBA.

On the flip side, the basis for the NHLPA's rejection is that it wanted more information from the NHL as to how realignment would affect travel and the playoffs. The NHLPA wanted to make a reasoned decision as to whether the proposed realignment was good for its players, and given what it saw as insufficient information on the impact of the proposed plan, decided to withhold its consent.

Unreasonably withholding consent is going to be an objective test or analysis. The question is whether, based upon the information, was it reasonable for the NHLPA to act as it did? The decision does not need to be right - just reasonable.

The decision to reject the new format was certainly a significant inconvenience for the NHL. However, based upon the available information, I'm not ready to say that the Union acted unreasonably.

This Shouldn't Be A Surprise

There have been many people attacking the NHLPA for its rejecting the new plan.

How does this come as a surprise?

On the eve of CBA negotiations, it wouldn't be a particularly smart move for the NHLPA to consent to realignment. By doing so, it would forfeit leverage. The NHLPA has to try and secure as much leverage as it can for the CBA talks, and this is one way. Does this represent significant leverage? No. However, it's something.

This was not, however, a declaration of war by the NHLPA. It was simply taking a thoughtful and prudent approach to the issue of realignment, while keeping its eye on the upcoming CBA negotiations.

So yes - CBA negotiations have already started (before getting started). And yes - there are serious issues to hammer out including the players' current 57% share of revenue (inflated when compared to MLB at 47%, NFL at about 48% and NBA at about 50%). There is also the salary floor to deal with.

Still, this doesn't mean we are headed for a lockout. The NHL is enjoying unprecedented growth and it just signed a big television deal (relatively speaking - NFL TV revenue for 2014 will be $7 billion vs. $200 million for NHL). It understands that a labor disruption could put the brakes on its forward momentum and could irreparably harm the game.

Frankly, if the Union is looking for leverage it's just that - the success and growth the NHL is currently enjoying.

What we are seeing now is quite common in the field of labor law. Just part of the bargaining process - that is filled with ebbs and flows.

So talk of a lockout is premature - very premature.

Tonight On Offside - 2011: Year In Review

2012-01-04T17:30:00.000-05:00

Tonight on Offside: The Business and Law of Sports, we are doing a special show - 2011: Year In Review.

We go through our top 10 sports legal stories of the year. We also interview Abraham Madkour, Executive Editor of the Sports Business Journal, for the top sports business stories of the year.

Some of the picks will surprise you.

Tonight at 6pm ET on the Team 1200 am (or www.team1200.com).

Habs Playing Senators Tonight - A Time To Reflect On Perry Pearn

2011-12-27T18:54:00.003-05:00

Quite clearly, the firing of Perry Pearn was justified. Since he was fired, no other member of the Canadiens coaching staff has been let go. As well, the team hasn't lost since he was dismissed. So yes - it made perfect sense.

Frankly, I blame Perry Pearn for all the ills of society. Here are some things that are Pearn's fault (#duh):

1) World hunger
2) Poverty
3) War
4) Language Issues
5) Ryan Reynold's marriage to Scarlett Johansson not working out
6) Charlie Sheen
7) Conan O'Brien being ousted from NBC
8) World War II
9) Destiny's Child not staying together
10) Scotty McCreery caught lip-synching
11) Sinead O’Connor's 16 day marriage
12) The Italian Economy

Pearn makes me so mad. I wish the Habs could fire him again.

So deserved. Damn you Perry. Damn you.

Radio Clip - Team 1260: Curling Is Darts For Janitors

2011-12-27T18:38:00.000-05:00

We cover the Milbury case. Before that, however, we hit Festivus, cricket and curling. On the curling comment - sorry.

Click here to listen.

ESPN Radio Clip: Sandusky & Bonds

2011-12-20T08:40:00.000-05:00

Click here to listen to my clip with Josh Pacheco from ESPN Radio. We hit on the latest on Sandusky and Bonds. As usual, Josh really digs in to get to the core of the matter.

A Legal Look At The Milbury Case

2011-12-19T17:07:00.001-05:00

Mike Milbury is facing a criminal charge of assault and battery upon a child. Under this Massachusetts law, a person found guilty of this crime can face up to 5 years in prison. As per reports, he may also be charged with threatening to commit a crime and disorderly conduct.

A "child" under this law is "any person under fourteen years of age".

I have focussed on Massachusetts law because the alleged crime occurred in that state (specifically in Brookline).

Milbury has not been formally charged, so those reports were wrong. The boy wasn't hurt according to reports.

Brookline has indicated that there is a video of the incident, which will shed light on the merits of a possible case against Milbury.

What happened here? Not clear. On the one hand, the mother of the player allegedly assaulted has said that Milbury grabbed, threatened and shook her son. She also alleges that Milbury picked her son up by his shirt and was screaming and swearing at him.

Milbury says that he never struck or assaulted the player, but did grab him by his uniform to cut short the on-ice scrum that he contends was a product of the persistent bullying his son, Jake, faced. Milbury denied an assault "of any kind" in a statement from his lawyer, Daniel Rabinovitz

According to his lawyer, Milbury simply "intervened in an altercation between his son and an opposing player...No one was struck, no one was injured and no one was threatened."

Here's more from an article at Boston.com:

Needham resident Peter Weiner, whose son Cole is a goalie on Jake’s team, the Boch Blazers, in a phone interview yesterday afternoon confirmed Milbury’s account. Weiner said he was there throughout the night, witnessed Jake "being needled pretty much all game" and lauded Milbury for helping to restrain the skirmishing players.

"All he did was stop the kids. And on top of it, he booted his own kid off the ice.’’

Weiner, when asked if Milbury used excessive force to restrain the Blackhawks player or otherwise punched, struck, kicked, or physically abused the 12-year-old, added, "He did not ..... he absolutely did not, and that’s 100 percent accurate. All he did was separate two kids, and I saw his own boy leave the ice in tears."

As per the Boston.com article, Milbury "was acting as both a parent defending his bullied child and as an assistant coach concerned about the safety of both players when he helped defuse the dust-up between his son".

Jack Hauswirth, the head coach on Milbury’s team, restrained Milbury’s child.

Assault Charge

The charge of assault against a minor may be tough to make out if there was no bodily harm inflicted on the boy (remember this is a serious crime with up to 5 years in prison). Still, we need to wait and see.

Threatening To Commit A Crime

With respect to the threatening to commit a crime (which is a common charge in the state of Massachusetts), it must basically be shown that there was a legitimate fear the crime of assault would be committed.

Massachusetts laws permit punishing someone who is convicted of threatening to commit a crime with a $100.00 fine and/or up to 6 months in jail.

Disorderly Conduct

Under Massachusetts law, if you cause a disturbance which creates a public hazard, and serves no legitimate purpose, you can be charged with a disorderly person offense, also known as disorderly conduct.

Engaging in fighting or threatening, violent or tumultuous behavior can constitute disorderly conduct.

It's punishable by up to 6 months in jail.

It's tough to know what will happen here. Again, the video will have probative value. However, at first glance, working the peacemaker angle may help Milbury.

It's highly unlikely that Milbury will go to jail.

The damage may have already been done. He's off CBC and NBC for now. Given recent events, there is little tolerance for any crime against minors, and for that reason Milbury's disappearance from TV was not surprise.

Cue Euphemism: Sandusky’s Legal Team Has Engaged In A Series of Tactical Errors

2011-12-19T16:16:00.001-05:00

Jerry Sandusky’s legal team has committed a series of tactical errors. That’s putting it lightly. What we have seen boggles the mind.

Here’s some of what has come out of Sandusky’s legal camp:

Bob Costas Interview

For Sandusky, this interview was an absolute horror show. In it, he admitted to showering naked with children. When asked if he was sexually attracted to boys, he was silent for 17 seconds, then proceeded to provide an evasive answer saying he enjoyed their company. A light (albeit dim) may have gone on in Sandusky’s head while answering that question, and he concluded his answer by stating that he was not attracted to children.

That interview will be featured at the criminal trial and at every single civil trial. It’s a pretty damning interview and is very prejudicial to his case.

Common sense would dictate that this is not the type of case where such an interview is appropriate, nor would it sway public sentiment (which apparently was the goal).

Not sure why his lawyers ever let him do the interview.

Language, Language, Language

Some of the things Sandusky’s lawyer, Joe Amendola, has said, makes me shake my head.

Huh?: Part 1

In defending his client, he’s directed people to telephone 1-800-reality (which by the way resolves to a telephone sex service for gay men).

Huh?: Part 2

He attacked the victims, saying their motivation was financial:

"What greater motivation could there be than money? I've seen money break up families. ... So what greater motivation could there be than the financial gain that could come out of this by saying, 'I'm a victim?'"

Huh?: Part 3

On his involvement in this case, he said “I don't want to be here. I have a very active practice in a small county.”

Huh?: Part 4

On displays of affection, "I grew up in an Italian family where we all hugged and kissed everybody. Grandparents patted our butts. It wasn't about sex."

These statements are profoundly inappropriate and disappointing. Even if you are a defence lawyer, there is still a certain level of decorum, respect and class you need to show. Very little, if anything can be gained by making these statements.

Don’t get me started on Sandusky saying he will fight “fight for four quarters”. A football analogy is completely inappropriate.

Guilty Plea

Early on, Amendola said that he would consider speaking to his client about a guilty plea if more charges materialized.

"That could happen if more allegations come forth and Jerry gets to the point where he realized fighting against more than the original allegations might be a real uphill battle.”

Afterwards, presumably figuring out his major gaffe, he said that a guilty plea was never being considered. He added that the topic of a guilty plea came up as a “what-if” question about potential additional charges being filed.

This is a very tough one to understand. In a case like this, under no circumstances should a lawyer suggest his client is open to pleading guilty. Period.

Waiving Preliminary Hearing

This one left me a bit on the speechless side.

At the preliminary hearing, the prosecution (government) has to show probable cause for the case to proceed to trial. In this case, they would have shown it. No question about that.

The hearing would have been invaluable for Sandusky’s defence team. The victims would have gone on the record and testified. That would have allowed the defence team to gain a better appreciation of the case against Sandusky.

As well, and very important, at trial Sandusky’s lawyers could then cross examine the victims, and relying on the earlier testimony from the preliminary hearing, look to catch them in contradictions, inconsistent statements or even lies.

Don’t forget, telling the same story twice is tough – even when you are telling the truth. It gets more difficult when the details are embarrassing and painful. It gets even more difficult if you are telling a story that occurred years ago.

Amendola perhaps wanted to avoid a media circus. However, no excuse - this was a massive error.

New Defence: Teaching Hygiene

Sandusky’s new lawyer, Karl Rominger, has said that when Sandusky was naked in the showers with boys, he was teaching them hygiene. The reasoning is that these kids are from disadvantaged or dysfunctional backgrounds and don’t know how to clean themselves.

Here’s Rominger’s statement:

"Some of these kids don't have basic hygiene skills. Teaching a person to shower at the age of 12 or 14 sounds strange to some people, but people who work with troubled youth will tell you there are a lot of juvenile delinquents and people who are dependent who have to be taught basic life skills, like how to put soap on their body."

This defence is not only intellectually offensive, but it also reminds us that Sandusky has showered naked with boys. There is no value that can be derived from this statement.

Tipping Their Hand: Defence Strategy

Amendola has attacked McQueary’s credibility. There is also the hygiene defence. Amdendola should not be revealing his strategy. The prosecution now has some confirmation of Amendola’s strategy and can take a closer look at those parts of the case.

Overall, it has been one miscue after another. The evidence against Sandusky may well be overwhelming. However, that should not preclude a carefully planned defence.

If you are wondering whether Sandusky could have a conviction overturned on appeal on the basis that his lawyers fell short – the answer is highly unlikely. A judge would need to find that the outcome would be different if Sandusky had better lawyers. Also relevant is that Sandusky would be seen as a sophisticated defendant that could make his own decisions. Finally, his lawyers may still do an acceptable job at trial – which is what matters.

Baron Davis and the New NBA Amnesty Clause

2011-12-16T15:39:00.001-05:00

By Graydon Ebert

The Cleveland Cavaliers announced that they would be waiving Baron Davis under the amnesty provision of the new NBA collective bargaining agreement prior to Friday’s deadline. Recall that under the newly agreed upon CBA, each NBA team is allowed to waive one player during the lifetime of the CBA, and that player’s contract would not count against the team’s salary cap or luxury tax figure (though it does still count when calculating whether a team has reached the salary floor.

Davis, who has a herniated disc in his back and is expected to miss 8-10 weeks, has $30 million left on his contract, of which $27 million is guaranteed. The Cavs are still obligated to pay Davis the full amount of guaranteed salary owed to him, unless he is selected in an amnesty waiver auction. Once Davis is released, he will be made available to all teams that are currently under the salary cap via a blind auction. These teams are free to make a bid on Davis’ services, with Davis going to the highest bidder. The team that won will be required to pay Davis the amount of their bid and this amount will be subtracted from the amount of guaranteed salary that the Cavs have to pay Davis. For example, if a team bid $8 million, they would be required to pay Davis this amount, and the Cavs would still owe him $19 million. Should no team make a bid for Davis after 48 hours, he will become a free agent able to sign with any team, and the Cavs will have to pay him the full $27 million he is guaranteed.

Radio Clip - CJME: Growing Pains, Fighting in the NHL & Braun

2011-12-14T12:48:00.000-05:00

Click here to listen to my radio clip with Drew Remenda from CJME. As always, Drew leads a very interesting and lively discussion. While he's not a lawyer, I would still consider opening shop with him. He also surprises me at the start with a great song - and ends in the same dramatic fashion.

If you need a 10 minute time out, and want to laugh a bit, this is the clip for that.

Rogers/Bell Deal: Is Second Team in Toronto Likely?

2011-12-14T12:24:00.001-05:00

by Graydon Ebert

(read full review of MLSE deal here)

This has been a hot button topic in the days following the deal, with many wondering if Rogers and Bell would strongly oppose a new team in Toronto to protect their new investment. Others have suggested that given the large expansion fee that a second team in Toronto would generate for the NHL, the league might require Rogers and Bell to allow the possibility of a second team or it would not approve the sale.

It is highly unlikely that the NHL will not approve this deal, regardless of Rogers’ and Bell’s position on a second NHL team in Toronto. Rogers and Bell are influential in the sports business and business generally in Canada and the NHL will not want to negatively impact its relationship with these companies, even for the sizable expansion fee it could get for a second team.

As for whether the acquisition of MLSE by Rogers and Bell makes a second team more or less likely it is not yet clear.

Rogers and Bell may be protective of their new investment and try to prevent any competition in the Toronto market. However, when you think about the reason MLSE is valuable to Rogers and Bell, there is a strong argument to be made that they would be receptive to a second team in Toronto under the right circumstances.

Recall that Rogers and Bell valued MLSE so highly because of its premium sports broadcasting content that they could distribute on their media platforms. A second team in Toronto would similarly have a block of premium sports content up for grabs, which undoubtedly would be of interest to both Rogers and Bell. So, it may actually make sense for Rogers and Bell to allow the possibility of a second NHL team in Toronto. They could extract a sizable territorial rights fee from the NHL to allow the team and could also ensure the broadcasting rights to the new team at a price less than what they might have to pay on the open market.

There is precedent for this sort of action. When the Montreal Expos were going to be moved to Washington to become the Nationals, they were within the territorial area of the Baltimore Orioles. At first, the Orioles and owner Peter Angelos were against a team moving to Washington. However, they allowed the move to happen. Why? In return for allowing the Nationals to move to Washington, they earned the right to broadcast Nationals games on their Mid-Atlantic Sports Network (MASN) and on the radio. The Orioles own 90% of MASN and when it was set up, Major League Baseball paid the Orioles $75 million for 10% of the network. This stake is now owned by the Nationals, who also receive a below market value fee for their broadcast rights.

Why wouldn’t Rogers and Bell do something like this? If the value is in the content, then adding the content of an additional team to their inventory at a reasonable price should be more attractive to Rogers and Bell. The concern that a second team would hurt the value of the Leafs brand is probably unwarranted. Prestigious sports brands do not seem to be negatively impacted by the introduction of new teams in their market. The Lakers aren’t hurt by the Clippers. The Knicks aren’t hurt by the Nets. The Rangers aren’t hurt by the Devils or Islanders. The Yankees aren’t hurt by the Mets. The advantage that a prestigious team in terms of fan interest has over the new team in its market is significant. This would undoubtedly be the case should a second team join the Leafs in Toronto.

Understanding the Deal: Bell & Rogers Join Forces To Buy MLSE

2011-12-12T16:50:00.000-05:00

In another special to Offside, Graydon Ebert takes a look at the Bell and Rogers acquisition of MLSE.

You will not be disappointed by this article. In my humble, Egyptian opinion, it is outstanding. Graydon hits all the major issues, including the marriage of content and distribution, whether Bell and Rogers will be able to work together, if fans will see an increase in prices and whether we should expect the teams to get better or worse.

Click here to read it. If you don't love it, I will give you your money back.

If you haven't read it yet - check out Graydon's fantastic common sense review of the MLB CBA.

Radio Clip - Team 1260: Boogard and Legal Side of Fighting

2011-12-08T13:11:00.000-05:00

Click here to listen to my segment with the boys at Team 1260 (that would be Dustin and Kyle). We start off with the Golden Girls, speeding dating with old people and then break away to chat the legal side of fighting in hockey.

A Review: Second Sandusky Grand Jury Report - Victims 9 and 10

2011-12-07T15:19:00.000-05:00

Click here to read the second Sandusky Grand Jury report, this one outlining Jerry Sandusky's alleged sexual abuse of two new victims identified simply as Victims 9 and 10.

Sandusky was arrested today on new charges stemming from the new accusers, which include 4 counts of involuntary deviate sexual intercourse and 2 counts of unlawful contact with a minor.

As with the other cases, both accusers are from Second Mile. Victim 9 alleges the abuse started when he was about 11 years old. Sandusky would shower him with gifts and take him to Penn State football games.

Here are some more details from the report:

Victim 9

1) Sandusky started "out with hugging, rubbing, cuddling and tickling" the victim. The contact "escalated to sexual assaults".

2) Victim 9 slept in Sandusky's basement and was told to stay there. He ate "meals in the basement and the food was brought to him by Sandusky".

3) Sandusky's wife "never" came down to the basement when he was there.

4) Sandusky forced him "to perform oral sex on numerous occasions. Sandusky also attempted to engage in anal penetration..on at least 16 occasions and at times did penetrate him. The victim testified that on at least one occasion he screamed for help, knowing that Sandusky's wife was upstairs, but no one ever came to help".

5) They would spend time together in a hotel pool in the State College area. During this time, Sandusky would expose himself and perform oral sex on the boy.

6) Sandusky told him to keep their relationship a secret.

Victim 10

1) Victim 10 became involved with Second Mile when he was 10. He was a troubled child, and on the recommendation of a counsellor, he joined Second Mile.

2) He never spent the night at Sandusky's but when he was there, he spent it in the basement.

3) They would wrestle, and during one such event, Sandusky "pulled the boy's gym shorts down and performed oral sex on him". Thereafter, this was repeated.

4) The boy performed oral sex on Sandusky when asked to do so.

5) Sandusky bought the boy "clothes and shoes" and "frequently told the boy that he loved him".

Sandusky's basement is a recurring theme in the victim accounts.

Bail has been set at $250,000.00 by Judge Robert E. Scott. This is $150,000.00 more than the bail set at the first hearing. The prosecution this time wanted bail set at 1 million dollars, but the Judge elected for a lower amount.

Radio Clip - Team 1260 - NBA, Sandusky & Fine

2011-12-07T13:11:00.000-05:00

Click here to listen to my radio segment with the boys at the Team 1260 (that would be Dustin and Kyle - or something close to that). After we're done making jokes for 10 minutes, we hit the business and law of sports.

Understanding the Statute of Limitations: Alleged Bernie Fine Victims Found "Credible" But No Charges

2011-12-07T12:32:00.001-05:00

Today, District Attorney William J. Fitzpatrick said that former Syracuse assistant coach Bernie Fine would not be charged with child sexual abuse. The reason - the accusers Bobby Davis and his stepbrother Mike Lang ran out of time.

While not saying whether Fine was indeed guilty of the crimes, Fitzpatrick did characterize the allegations as credible.

"It is not my place to pronounce Bernie Fine guilty of anything. It is my place, however, especially in light of recent events, to affirm that these two victims are believable" Fitzpatrick said.

Limitation Period

In the state of New York, the statute of limitations for a sex act against a child expires 5 years after the child's18th birthday. Davis is now 39 years old and Lang is 45.

However, there is no statute of limitations if the sexual abuse is severe enough to constitute sexual conduct against a child in the first degree. To qualify as first degree abuse as per the statute, there would need to be "sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact".

It seemed, however, based upon the taped telephone call between Laurie Fine and Bobby Davis, as well as Davis' interview with ESPN, that there may not have been first degree abuse.

One more point - the statute of limitations can be different from state to state. So if abuse occurred in another state, you would need to look at that state's statute of limitations. For example, in Pennsylvania, a victim has until his or her 50th birthday to file charges.

To say the Fine is out of the woods is premature. If more victims come forward or if abuse occurred in another state, Fine could be pursued.

Sensory Overload: Live Performance Of Growing Pains Theme Song Is Pure Joy

2011-12-01T17:29:00.001-05:00

This video clip is perfect.

It's a lot of things. It's Eric Carmen's hair. It's Louise Mandrell's prom dress. It's the Miami Vice outfit. It's their intense singing styles. It's the way they abruptly pull away from the mics. It's the overacting. It's the song. It's the shadows also having fun. It's the fact that it looks like it was filmed in my garage (although I don't have garage).

It's really everything all at once.

It's pure joy.

Here it is - the theme song to Growing Pains, As Long As We've Got Each Other, performed live:

Understanding the Civil Lawsuit Against Sandusky, Penn State and Second Mile

2011-12-01T11:57:00.002-05:00

Background

On November 30, 2011, an unnamed Plaintiff filed a civil lawsuit against Jerry Sandusky alleging sexual abuse. Also named as Defendants in the lawsuit are Penn State and Second Mile. Read the Complaint here.

The lawsuit alleges that Sandusky sexually abused the Plaintiff “over one hundred times” between 1992 and 1996. The abuse is alleged to have commenced when the Plaintiff was 10 years old.

The Plaintiff was introduced to Sandusky when he participated in a Second Mile program. At that point, Sandusky “recruited, groomed and coerced the Plaintiff, showering him with gifts, travel and privileges”.

The alleged sexual abuse occurred

“on multiple occasions and at multiple locations within Pennsylvania and outside of Pennsylvania; in the facilities of Penn State, and particularly the football coach’s locker room; at times within Philadelphia County; at facilities out of state connected with a Penn State bow game; and at the Sandusky home”.

The Complaint also alleges that “Sandusky threatened the Plaintiff and threatened to harm the Plaintiff’s family if the Plaintiff told anyone” of the abuse. This threat “silenced” the Plaintiff.

Details were not provided as to the specific sexual harm inflicted on the Plaintiff.

Anonymous Plaintiff

On page 4 for of the Complaint at paragraph 1, the Complaint provides that the “identity of this Plaintiff is not pleaded…in order to protect the identity of the Plaintiff because the Plaintiff was a victim of sex crimes when the Plaintiff was a minor” and that the identity will “be made known to the Defendants by separate communication”.

Anonymity is permitted where it is justified to protect the plaintiff from the public disclosure of matters of utmost intimacy.

This is not something, however, that Courts take lightly. A fundamental legal principle is the right of the public to access court documents and proceedings.

Expect the identity to the Plaintiff to remain concealed unless something changes.

Penn State Liability

An employer can be liable for the acts committed by an employee in the course of his employment. This principle is called vicarious liability.

The Plaintiff would argue that at the time of the incidents (1992 to 1996), Sandusky was an employee, and on this basis, Penn State should be vicariously liable.

Penn State may argue Sandusky was not discharging his employee obligations at the time or acting in the course of his employment. For that reason, Penn State may argue, it should not be vicariously liable for Sandusky's wrongdoings. The fact that the alleged harm may have occurred on its campus is insufficient to establish vicarious liability.

The abuse is alleged to have occurred between 1992 and 1996. The Complaint does go through a number of the alleged incidents found in the summary of the grand jury testimony. One such incident triggered a police investigation 1998. Presumably, this information has been pled to demonstrate a pattern of abusive conduct on the part of Sandusky.

There is also the allegation that Penn State was negligent in that it owed a duty of care to the Plaintiff given that it knew or ought to have known of Sandusky's behavior and that it failed to discharge that duty (i.e., take steps to safeguard kids and remove Sandusky). According to the summary of the grand jury testimony, it is alleged that Sandusky engaged in sexual abuse with other victims in 1996 and before: Victim 4 (1996), Victim 5 (1995) and Victim 7 (1994).

Remember up until a couple of months ago, and despite retiring in 1999, Sandusky still had a Penn State office, email, telephone number and faculty listing, while also enjoying the title of assistant professor emeritus of physical education. So not only did Penn State keep him around, it also legitimized Sandusky on and off campus.

Negligence is the big claim here.

In response, Penn State may argue that in 1996 it was not aware of Sandusky's behavior, and simply by virtue of harm being inflicted on campus does not make it liable. Basically, Penn State was not negligent because it didn't know what was going on or there was not a reasonable basis upon which to believe something might be going on.

The Plaintiff also alleges that Sandusky “had been molesting children since at least the 1970s”. If the Plaintiff can substantiate this claim by way of evidence, that will assist its case against Penn State. For now, however, the allegation that Sandusky has been molesting children since the 1970s is just that – an allegation. Sandusky’s lawyer may ask for more details on this allegation.

The same is alleged against Second Mile, of which Sandusky was the founder and principal.

Of the 3 Defendants, Penn State will have the deepest pockets – that is the ability to pay. For this reason, expect Penn State to be named in subsequent civil suits. If Sandusky is found to be chiefly responsible, there would still be the issue of his ability to pay - particularly if he is hit with multiple lawsuits. So a plaintiff's best bet to recover money might be through Penn State.

Possible Federal & State Investigations

The Complaint alleges, in part, that the Plaintiff was sexually abused "outside of Pennsylvania". It's a crime to take a minor across state lines to commit a sex act. That could result in a federal investigation. As well, the state where the acts occurred could also go after Sandusky.

Overall

Much will turn on the evidence presented. It's still early. Penn State, I expect, will try and get this settled if it sees some merit in the case. Even it if believes it has an arguable case, it may still look to settlement to dispose of the matter. Sandusky, however, may contest the matter.

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

2011-11-30T18:14:00.000-05:00

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

2011-11-30T14:02:00.000-05:00

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.

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

2011-11-29T13:34:00.000-05:00

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.

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

2011-11-26T11:04:00.000-05:00

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

2011-11-26T09:28:00.008-05:00

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.

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

2011-11-25T13:43:00.001-05:00

In a special to Offside, Graydon Ebert has written a great piece on MLB's new collective bargaining agreement.

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.

To read Graydon's article, click here.

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

2011-11-25T11:49:00.010-05:00

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.

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

2011-11-24T16:11:00.001-05:00

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.

Bernie Fine May Still Be Charged Criminally

2011-11-23T11:30:00.000-05:00

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.

NHL Suspensions: Lucic Hit and Role of Intent

2011-11-21T16:17:00.000-05:00

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.

Second Mile: Perils of Brand Recognition and Collateral Damage

2011-11-18T17:49:00.002-05:00

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

2011-11-18T17:34:00.000-05:00

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.

Paterno Not Out of Criminal Woods

2011-11-17T19:25:00.000-05:00

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

2011-11-17T16:30:00.005-05:00

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.

Massive Tactical Error - Sandusky's Interview with Bob Costas

2011-11-16T16:28:00.001-05:00

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

2011-11-16T15:58:00.000-05:00

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)

2011-11-16T15:51:00.002-05:00

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.

McQueary's Email Message & Moral Versus Legal Obligation

2011-11-15T20:11:00.000-05:00

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

2011-11-15T17:03:00.000-05:00

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

2011-11-15T14:43:00.002-05:00

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.

Part 1: Review and Analysis of the Sandusky Grand Jury Transcript

2011-11-15T12:43:00.001-05:00

(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

2011-11-15T10:42:00.001-05:00

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

2011-11-15T10:15:00.000-05:00

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.

NBA Players Reject Owner Deal and Explaining Disclaiming Interest

2011-11-14T14:45:00.001-05:00

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.

For a Primer on Decerfication click here.

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.

ESPN Radio Clip - the Sandusky Case

2011-11-11T09:41:00.001-05:00

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.

Click here to listen to clip.

Team 1260 Radio Clip: We Talk The Sandusky Case

2011-11-11T09:37:00.000-05:00

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

2011-11-11T08:53:00.000-05:00

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

2011-11-11T08:50:00.000-05:00

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

Sandusky: Summary of Grand Jury Transcript

2011-11-10T09:14:00.002-05:00

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.

NBA Deal Getting Closer

2011-11-09T09:36:00.001-05:00

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.

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

2011-11-08T15:59:00.000-05:00

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.

The NHL CBA & Suspensions: What Shanahan Must Consider

2011-11-06T13:35:00.001-05:00

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

2011-11-06T13:04:00.001-05:00

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.

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

2011-11-03T17:10:00.003-04:00

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.

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

2011-11-01T17:28:00.002-04:00

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.

UPDATE

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

2011-11-01T12:01:00.000-04:00

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.

Radio Clip: Team 1260 Edmonton - Mandatory Visors, the World Series and My Halloween Costume

2011-10-29T17:24:00.000-04:00

Click here to listen to my clip with the guys from the morning show on the Team 1260 in Edmonton. We hit the legal side of trying to force players to wear visors and the odd firing of Perry Pearn.

Legal Glimpse: Father and Son Want Olympic Jerseys Back From Hall of Fame

2011-10-29T16:08:00.002-04:00

Do you believe in litigation miracles? (I do and for that reason I'm obscenely expensive).

The father of all things puck, Greg Wyshynski (o/a Puck Daddy) has penned (or typed) a great article on a dispute between a family and the Hockey Hall of Fame.

Background

In U.S. Olympic heroes vs. Hockey Hall of Fame: Who owns history?, Mr. Daddy tells a story of father and son U.S. hockey Olympians suffering from a serious case of charitable remorse.

In1981, Bill Christian was contacted by the Hall of Fame asking if he along with his son Dave would be open to donating their jerseys to the Hall. Bill and Chris both won gold medals representing the U.S. hockey Olympic team - Bill in 1960 and Dave in the much vaunted 1980 Miracle on Ice. To this day, they remain the only father and son "to win gold medals in the same Winter Olympic sport".

The jerseys were donated to the Hall.

Fast forward 30 years - Bill and Dave are disputing whether the jerseys were donated.

Despite receiving a letter confirming the donation, Bill alleges that "he didn't believe it was a donation", while his son Dave says "he never agreed to donate or loan his jersey to the Hall" in the first place.

Dave said it was a mistake not to question the wording of the letter. "My dad is not an attorney", he said.

Izak Westgate, assistant curator for the Hockey Hall of Fame in Toronto, said it's clear with donors that items that are permanently gifted to the Hall.

Who's Offside: Legal Considerations

So does the good Christian family have a legal leg to stand on?

Working against them is the existence of a letter confirming the donation. Specifically, the Hall wrote Bill thanking him and his son for "donating" the sweaters. The term "donate" is well understood to mean a "gift". In turn, a gift is defined as "something given voluntarily without payment in return".

Not good for the Christian family. Wobbly legal leg.

On the flip side, here are some issues to consider for the Christian family:

1) Dave says he never authorized the donation of his jersey. If there was a gift release signed (which is commonplace for these types of donations and just says that the donating party is giving up the item forever), then the next question is whether Dave signed one. As well, did Dave ever provide his express consent to the Hall regarding the disposition of his jersey. He's the owner of the jersey, so in theory only he can give it up (and not his dad).

2) Dave mentioned that his "dad is not an attorney". At law, when a party with no lawyer enters into a contract, the other side generally advises them that they should get independent legal advice before finalizing the deal. If that direction is not provided, then that may be a problem. Problem though is that the definition of "donation" is pretty straightforward. If they signed a gift release, the issue is how complicated was the release. If it's filled with legalese, then that might be an issue in the context of advising them to seek independent legal advice. Still tough one.

3) Who owns the jerseys to begin with? Does USA Hockey own the jerseys? I know players keep jerseys and routinely give them away, etc. However (and perhaps in the context of the Olympics particularly), that's a relevant question. I simply don't know the answer to this question.

If Dave and Bill didn't own the jerseys, then neither would have had the authority to give them away. Practically speaking, if USA Hockey owns the jerseys then they could tell the Hall to keep them.

4) If Dave did donate his jersey, how old was he at the time? Minors don't have the capacity to enter into contracts until they reach the age of majority, which is usually 18. However, this does not mean that minors may not make contracts. They can - however those contracts may not be enforceable. I think Dave was 21 or so at the time, so this may not apply.

This will be a tough case for the Christian family. The Hall won't want to return a donated item since that would set a really bad and potentially unmanageable precedent. This is particularly the case given that the memorabilia market has really taken off. I could probably get $50,000 for Gilbert Dionne's mouthguard and $5000 for Tony Tanti's eyelash.

Maybe the focus should be on Dave's jersey and whether he donated it. Getting back one of two jerseys wouldn't be bad.

By the way, the Christian family isn't too bad at hockey. Bill's brother Roger played on the same 1960 team, while the third brother Gordon played on the 1956 Olympic team.

Son and nephew Dave played for the Winnipeg Jets, Washington Capitals, Chicago Blackhawks, Boston Bruins and St. Louis Blues. He finished his career with 340 goals and 433 assists in 1,009 NHL regular season games. He went to the 1991 All-Star game, and holds the record for the fastest goal by a player in his first NHL game, scoring just 7 seconds into his first shift.

NBA Lockout Winding Down

2011-10-28T11:01:00.003-04:00

Yahoo is reporting that the NBA and NBPA have "moved to the cusp of ending the four-month old lockout." Further, there is "strong belief on both sides that a Friday bargaining session could culminate with the framework of an agreement to preserve most, if not all, of a full season."

As a wrote a couple of weeks ago, and as I've been tweeting for a while, areas of compromise emerged, which gave this case a profile for settlement. The two big issues are revenue sharing between the league and players and the salary cap/luxury tax. The issue was finding a balance that worked and by some accounts the they are close to balancing things out. It could take some more time to finalize the deal, but it would be a surprise if the sides didn’t get this settled soon.

At the beginning of all this, the NBA quickly backed off its request for a hard cap. That was the first signal that progress could be made. You may remember the NHL in 2005 never backed off the request for a hard cap, and that fundamental issue, which would redefine the labor side of the sport, led to a missed season. With the NBA yielding early on that issue, it sent a signal that settlement could be achieved. It won't be now but it should be coming so long as the sides continue seeing the forest from the trees.

Habs Win May Have Saved Jobs

2011-10-27T12:58:00.003-04:00

After a dreadful start to the season, Montreal Canadiens GM Pierre Gauthier fired Habs assistant coach Perry Pearn. That's kinda like me firing my secretary after I lose a court case.

It's a good thing the Canadiens beat the Flyers last night. Rumour is the win may have saved the jobs of any of the following people:

1) Parking attendant

2) Janitor

3) Popcorn girl

4) Cashier in Section 307A

5) The Zamboni driver

6) The assistant to the Zamboni driver

7) Hair and makeup person

8) Jean Beliveau

9) A pedestrian walking by the Bell Centre

10) Mitsou

Legal Breakdown: Can the NHL Force Its Players to Wear Visors

2011-10-25T21:17:00.001-04:00

Mikhail Grabovski’s high stick on Chris Pronger has reignited the debate as to whether the NHL should adopt a mandatory visor policy for its players.

So – can the NHL force its players to wear visors?

Short Answer

No.

Slightly Longer Answer

Making visors mandatory is something that is collectively bargained with the players. So that means it’s something the NHL and the NHLPA need to agree on.

Collective Bargaining Agreement & The Competition Committee

Article 22 of the CBA sets out the rules governing the competition committee. The role of the committee is to examine and make recommendations associated “with issues affecting the game and the way the game is played” (Article 22.1).

According to the CBA, the committee can look at things such as playing rules, schedule issues and starting times of game. On top of that, it can also make recommendations on “player equipment regulations and standards”:

… The issues to be considered by the Competition Committee will include: (1) the development, change, and enforcement of Playing Rules; (2) Player equipment regulations and standards; (3) Player dressing room and in-arena facility standards; (4) the scheduling of games played outside a team's home arena and facility standards relating to said games (e.g., "outdoor" games, neutral site games, etc.)...

Article 22.6 of the CBA provides that recommendations made by the committee go to the Board of Governors for approval. If they approve it, then the new rule goes into effect. However, before a recommendation can be made by the committee, it needs to be approved by two-thirds of the committee. The committee is comprised of 5 active NHL players and 5 Club officials.

Recommendations made by the Competition Committee that have the support of a two-thirds majority of all voting Competition Committee members will be submitted for consideration by the NHL Board of Governors. Recommendations will become effective only if approved by the NHL Board of Governors in accordance with the NHL Constitution and By-Laws.

Essentially, if the players aren't on board, the recommendation never gets to the Board of Governors.

It’s for this reason that a mandatory visor policy needs to be collectively bargained – agreed on by both the Union and the NHL. Without the Union agreeing to it, it’s unlikely to happen.

Are Insurance Companies the Answer?

What about the insurance companies? In theory, insurance companies could take the position that they won’t insure players who don’t wear visors since the risk is too great. That could generate a lot of pressure on the NHL, and in turn help it get the NHLPA’s cooperation.

Could this happen though? For it to be a possibility, the frequency of eye injuries would have to be high enough such that the position of the insurance companies would be warranted.

In 2010, a handful of players come to mind as having suffered facial injuries that may have been prevented if they were wearing a visor (Tim Brent, Manny Malhotra and Carlo Colaiacovo).

Surely there are more. However, would the current frequency of these types of injuries justify insurance companies not insuring players? Probably not. They could raise their rates - but pulling out entirely doesn’t seem likely.

The Purpose of a Union

So this is whether the Union comes in. The NHLPA is mandated to represent the best interests of the players. Donald Fehr has made it clear from day 1 that the players instruct the Union and not the other way around. That being said, the Union also sets out to protect its members, and part of that is steering them in the right direction.

Mandatory visors are coming. Bill Daly has gone on the record saying he hopes to have a policy in place soon:

“We remain hopeful that we will have our own mandatory visor rule in the not-too-distant future.”

The issue is not if but when visors become mandatory. The hope is that by the time we get to “when”, players will be able to see that the policy makes sense.

Radio Clip: Team 1200 Ottawa - Can the NHL Make Visors Mandatory?

2011-10-25T20:22:00.000-04:00

Click here to listen to my radio segment with Steve Lloyd and Jason York of the Healthy Scratches.

We talk about whether the NHL can force its players to wear visors.

Tonight on Offside: The Business & Law of Sports

2011-10-24T17:26:00.001-04:00

Tonight, we start things off by interviewing Mike Ozanian, Forbes Executive Editor. We cover a lot, including the sale of the 76ers, why media companies are getting out of the business of owning teams, the impact of StubHub and other online secondary ticket brokers on ticket prices and the value of sports brands.

In keeping with StubHub, we will also cover the legality of scalping tickets. Is it legal?

And as I am contracted to say - and a lot more. Exclamation mark.

Tonight from 6 to 7pm ET on the Team 1200 (or at www.team1200.com).

Radio Clip: Team 1200 Ottawa - Gumbel & Stern

2011-10-24T16:41:00.000-04:00

Listen to my radio clip regarding Bryant Gumbel's statement about David Stern.

Click here.

Life on Plantations & Could Gumbel's Comments About Stern Attract Legal Attention?

2011-10-24T15:05:00.005-04:00

Recently, in his closing remarks on HBO’s “Real Sports”, host Bryant Gumbel compared Commissioner David Stern to a plantation owner or “overseer”:

If the NBA lockout is going to be resolved any time soon, it seems likely to be done in spite of David Stern, not because of him. I say that because the NBA's infamously egocentric commissioner seems more hellbent lately on demeaning the players than resolving his game’s labor impasse.

Stern’s version of what’s been going on behind closed doors has, of course, been disputed. But his efforts were typical of a commissioner who has always seemed eager to be viewed as some kind of modern plantation overseer, treating NBA men as if they were his boys. It’s part of Stern’s M.O. ... His moves are intended to do little more than show how he's the one keeping the hired hands in their place.

Stern did not comment. However, NBA Deputy Commissioner Adam Silver called Gumbel's comments "outrageous."

From a legal standpoint, the question that comes up is whether Gumbel’s statements could give rise to a claim for defamation.

What Is Defamation?

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.

Defence to Defamation: Fair Comment

There are defences available to a person if sued for defamation. One of them – and the one that applies here – is fair comment. There are a number of elements to satisfy when making out this defence. In part, the defendant must be able to show that (i) the comment was based on known and provable facts, (ii) any person would hold that same opinion based upon the facts, and (iii) there was no malice behind the statement (or an intent to inflict injury on the plaintiff).

Plantations

A plantation “overseer” was responsible for plantation discipline. Slaves were punished for not working fast enough, for defying authority and for a number of other reasons. Punishment could include whippings, torture, mutilation, imprisonment, murder and being sold away from the plantation.

Life on plantations were obviously very difficult. The child mortality rate could be as high as 65% and malaria was rampant. Women were sexual abused. Unsanitary conditions, inadequate nutrition and unrelenting hard labor were commonplace and made slaves highly susceptible to disease.

Here's an excerpt from Slave Overseers:

In 1860 it was calculated that about 88 per cent of America's slave-owners owned twenty slaves or less. However, large landowners would usually own well over 100 slaves and relied heavily on overseers to run their plantations. These overseers were under considerable pressure from the plantation owners to maximize profits. They did this by bullying the slaves into increasing productivity. The punishments used against slaves judged to be under-performing included the use of the cart-whip. Not surprisingly the mortality-rate amongst the slaves was high. Studies have shown that over a four-year period, up to 30 per cent of the slave population in America died.

..."It was usual for men and women to work side by side on our plantation; and in many kinds of work, the women were compelled to do as much as the men. Captain William Helm employed an overseer, whose business it was to look after each slave in the field, and see that he performed his task. The overseer always went around with a whip, about nine feet long, made of the toughest kind of cowhide, the but-end of which was loaded with lead, and was about four or five inches in circumference, running to a point at the opposite extremity. This made a dreadful instrument of torture, and, when in the hands of a cruel overseer, it was truly fearful. With it, the skin of an ox or a horse could be cut through. Hence, it was no uncommon thing to see the poor slaves with their backs mangled in a most horrible manner."

The question then to ask in this: could any person honestly express that opinion on the proved facts? Gumbel created a negative association by invoking images of slavery, and in particular comparing Stern to a slave and plantation owner. The comparison is quite dramatic.

Further, and more importantly, it seems that his statement is difficult to justify and that arguably other people would not share it.

That being said, it would be surprising for Stern to take any action. He’s busy trying to fix the NBA.

Bill Plaschke on Jamie McCourt

2011-10-19T16:32:00.000-04:00

"Turns out, she was nothing but window dressing, cute and decorative and completely devoid of reality. While it was Frank's whacked vision that robbed the Dodgers of their soul, it was Jamie's clumsy machinations that took away their heart."

L.A. Times columnist Bill Plaschke, on Jamie McCourt's time with the Dodgers.

Gumbel Compares Stern to Plantation Owner

2011-10-19T09:21:00.000-04:00

In his closing remarks on HBO’s “Real Sports” last night, host Bryant Gumbel made the following statement:

If the NBA lockout is going to be resolved any time soon, it seems likely to be done in spite of David Stern, not because of him. I say that because the NBA's infamously egocentric commissioner seems more hellbent lately on demeaning the players than resolving his game’s labor impasse.

Stern’s version of what’s been going on behind closed doors has, of course, been disputed. But his efforts were typical of a commissioner who has always seemed eager to be viewed as some kind of modern plantation overseer, treating NBA men as if they were his boys. It’s part of Stern’s M.O. ... His moves are intended to do little more than show how he's the one keeping the hired hands in their place.

Here's an excerpt from Conditions of Antebellum Slavery, which addresses U.S. plantations:

In the lower South the majority of slaves lived and worked on cotton plantations. Most of these plantations had fifty or fewer slaves, although the largest plantations have several hundred. Cotton was by far the leading cash crop, but slaves also raised rice, corn, sugarcane, and tobacco.

The diets of enslaved people were inadequate or barely adequate to meet the demands of their heavy workload. They lived in crude quarters that left them vulnerable to bad weather and disease. Their clothing and bedding were minimal as well. Slaves who worked as domestics sometimes fared better, getting the castoff clothing of their masters or having easier access to food stores.

Unsanitary conditions, inadequate nutrition and unrelenting hard labor made slaves highly susceptible to disease. Illnesses were generally not treated adequately, and slaves were often forced to work even when sick. The rice plantations were the most deadly. Black people had to stand in water for hours at a time in the sweltering sun. Malaria was rampant. Child mortality was extremely high on these plantations, generally around 66% -- on one rice plantation it was as high as 90%.

One of the worst conditions that enslaved people had to live under was the constant threat of sale. Even if their master was "benevolent," slaves knew that a financial loss or another personal crisis could lead them to the auction block. Also, slaves were sometimes sold as a form of punishment. And although popular sentiment (as well as the economic self-interest on the part of the owners) encouraged keeping mothers and children and sometimes fathers together, these norms were not always followed. Immediate families were often separated. If they were kept together, they were almost always sold away from their extended families. Grandparents, sisters, brothers, and cousins could all find themselves forcibly scattered, never to see each other again. Even if they or their loved ones were never sold, slaves had to live with the constant threat that they could be.

African American women had to endure the threat and the practice of sexual exploitation. There were no safeguards to protect them from being sexually stalked, harassed, or raped, or to be used as long-term concubines by masters and overseers. The abuse was widespread, as the men with authority took advantage of their situation. Even if a woman seemed agreeable to the situation, in reality she had no choice. Slave men, for their part, were often powerless to protect the women they loved.

The drivers, overseers, and masters were responsible for plantation discipline. Slaves were punished for not working fast enough, for being late getting to the fields, for defying authority, for running away, and for a number of other reasons. The punishments took many forms, including whippings, torture, mutilation, imprisonment, and being sold away from the plantation. Slaves were even sometimes murdered. Some masters were more "benevolent" than others, and punished less often or severely. But with rare exceptions, the authoritarian relationship remained firm even in those circumstances.

Better than Suing for Turbulence? How About a Bad Movie

2011-10-12T16:19:00.002-04:00

Compliments of my Twitter follower Wayne Chow (@wayne_chow), a woman is suing a film studio alleging false-advertising after seeing a movie that appeared to be one thing in the trailer, but turned out to be another in the theater.

Ms. Sarah Deming claims that the preview for the recent Ryan Gosling movie Drive made it look like a “Fast and the Furious” type of movie.

However, for Deming, the movie “bore very little similarity to a chase, or race action film … having very little driving".

She also claims the movie is anti-Semitic.

She’s suing the studio and the theater where she saw it.

Here's a link to the article.

Other potentially misleading titles:

1) Star Wars: A story about Ronald Reagan's ground and space defence system

2) Raging Bull: a biography of Richard Moll from Night Court

3) Jaws: a story about Ron Jaworski

4) Platoon: a story about Rex Hudler

5) Stand By Me: The Phoenix Coyotes saga

Texas Woman Sues Continental Airlines Over Turbulent Flight

2011-10-12T13:27:00.001-04:00

It's likely this case will get tossed by the Court on the basis of being frivolous. Still, it's worth a read:

A Texas woman is suing Continental Airlines and three other carriers over mental trauma she says was caused by a turbulent flight.

Ms. Colleen O'Neal alleges that the October 2009 flight from College Station, Texas to Houston encountered extreme turbulence that caused her to fear for her life.

As a result, she alleges experiencing post-traumatic stress disorder and now has a fear of flying. She says this has had a detrimental impact on her career.

NHL & NHLPA Agree On Initial Escrow Rate Of 8.5%

2011-10-12T11:09:00.000-04:00

NHL and NHLPA have set the players' escrow rate at 8.5% for the first quarter of the season, "the lowest rate since the first year after" the '04-05 lockout. The league and union are "still negotiating the final escrow number" for the '10-11 season.

The NHL uses an escrow system. What is the NHL escrow system?

Players pay a percentage of their salaries from each paycheck to an escrow fund. This money is intended to cover any potential shortfalls in projected league revenue.

For example, if the NHL thinks it's going to make $2 billion in revenue, the salary cap will be based on that number. BUT if the league only ends up making $1.7 billion, there’s a $300 million shortfall. If there’s a shortfall, then the NHL takes the money from the escrow fund to make up the difference. However, if the league makes $2 billion, the players would get this money back.

In the early salary cap years, the league was growing so this money ended up being returned to the players, but with the economy being what it is, there's a chance the players may lose a chunk of their salaries.

The escrow payment has been set as high as 25% - that was in 2009. That meant that a quarter of each player's salary was held in escrow in case the money was needed to help offset shortcomings in the league's projected revenue.

Bruins Are Next - Sell Space on Practice Jersey

2011-10-10T12:04:00.000-04:00

The Bruins have announced that Cross Insurance will be the team's first practice jersey sponsor. The insurance company also will have a visible presence at the Bruins' primary practice facility at Ristuccia Arena in Wilmington.

Will we ever see ads on game jerseys? In all likelihood that day is coming. Leagues are leaving too much money on the table by not doing it. The big issue has less to do with the sanctity of jerseys and more to do with balancing out the rights of stakeholders, including the league, teams, networks and sponsors. It can be tough to decide on a sponsor for a jersey given all the potential conflicts.

In our interview with Deputy Commissioner of the NHL Bill Daly, he confirmed that such a move would be a league wide decision.

NBA Lockout: What is Basketball Related Income and Will Lockout End Soon?

2011-10-10T11:29:00.002-04:00

We are hearing today that the NBA will cancel the first two weeks of the season if an agreement is not reached today.

Having backed down from insisting on what amounted to a hard cap, the owners continue to push for a 50-50 share of basketball related income - or BRI. Players are saying no - they want a 53% share.

What is BRI? It's money generated from the majority of revenue streams in the NBA. It includes things such as regular season gate receipts, broadcast rights, exhibition game proceeds, playoff gate receipts, parking, money from team sponsorships, proceeds from team promotions, arena club revenues, proceeds from beverage sale rights, 40% of proceeds from arena signage and 45% to 50% of proceeds from arena naming rights.

It does not include expansion fees, fines and the luxury tax proceeds that comes in to the league.

Larry Coon has a great article entitled Salary Cap FAQs. If you like this kind of stuff, the article is for you.

As for the threat of missing games, it seems likely that games will be cancelled. However, areas of compromise have emerged and I would be surprised to see an entire season missed. Perhaps the sides will ultimately agree on an incremental share of revenue or just on a compromise (51% or something close to it). Whatever the deal, there are numbers to play with. The sides will balance out a revenue sharing arrangement with a cap that works for both sides.

My expectation is that we will see NBA basketball this season.

Radio Clip: Team 1260 - Ads on Jerseys, Pryor, Benson and the NFLPA

2011-10-07T18:22:00.000-04:00

Click here to listen to my radio clip on the Team 1260, where we talk ads on jerseys, the latest on Terrelle Pryor and Cedric Benson and possible NFLPA issues.

Radio Clip: Bill Daly Interview

2011-10-04T13:40:00.000-04:00

We interviewed NHL Deputy Commissioner Bill Daly on Offside this week.

We covered a lot during the interview, including the state of the game, upcoming CBA negotiations, suspension videos, Gary Bettman, the size of the ice and the U.S. TV deal. Daly also shed some light on his nickname, Tomato Juice.

Click here to listen to the interview.

If you want to listen to the entire show, where we discussed Daly's comments in the last 2 segments, click here.

Bill Daly on Offside Show Tonight

2011-10-03T11:40:00.001-04:00

Tonight on Offside, we have NHL Deputy Commissioner Bill Daly. The in-depth interview covers a lot of areas, including the state of the game, the US television deal, the upcoming CBA negotiations, ads on jerseys, suspension videos, Gary Bettman and why Daly's nickname is Tomato Juice.

After the interview, we address some of the key points raised by Daly.

Offside airs tonight at 6pm on the Team 1200 radio station. If you are outside of range, feel free to listen live at www.team1200.com.

The interview is a nice appetizer to the NHL season.

Pryor Suspension Upheld; Players Unhappy with Union?

2011-09-30T18:26:00.002-04:00

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

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

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

2011-09-30T00:09:00.003-04:00

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

Let's break it down.

(a) Cedric Benson

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

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

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

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

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

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

There is a letter signed by NFL lawyer Jeff Pash and NFLPA head DeMaurice Smith setting this out. Here's an excerpt:

"The Commissioner has determined that the following players are repeat offenders subject to discipline for conduct during the Period: Cedric Benson, Kenny Britt, Clark Haggans, Albert Haynesworth, Johhny Jolly, Adam Jones, Aqib Talib, and Brandon Underwood."

So when Benson was suspended for 3 games, his lawyer got to work. Benson did 2 things. First, he filed an appeal with the NFL challenging the suspension. He argued that he was a free agent at the time and therefore had no employment relationship with the league.

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

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

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

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

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

In his eyes, his own Union let him down.

(b) Terrelle Pryor

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

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

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

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

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

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

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

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

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

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

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

Tampa Bay Rays VP Interview

2011-09-29T14:27:00.000-04:00

Last night on the show Offside, we interviewed the Tampa Bay Rays Vice President, Darcy Raymond.

Click here to listen to the interview.

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

2011-09-28T17:07:00.000-04:00

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

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

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

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

It's the Brooklyn Nets in 2012

2011-09-26T19:47:00.000-04:00

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

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

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

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

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

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

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

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

2011-09-26T15:27:00.005-04:00

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

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

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

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

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

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

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

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

Higher TV, ad and ticket revenue? Absolutely.

Holyfield Sides With Mayweather and not Ortiz

2011-09-25T11:02:00.000-04:00

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

Read the interview here.

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

2011-09-21T22:49:00.000-04:00

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

Click here to listen.

TSN Radio Clip: Byfuglien, Full Tilt Poker and Clemens

2011-09-21T16:41:00.000-04:00

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

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

2011-09-21T12:54:00.000-04:00

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

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

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

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

The 2 Separate Streams: Civil & Criminal

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

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

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

The Legality of Online Gambling in the U.S.

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

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

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

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

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

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

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

Civil Claim Is Updated on September 20

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

Here’s the allegation from the Court document:

… Full Tilt Poker, not only engaged in the operation of an unlawful gambling business, bank fraud, wire fraud, and money laundering as alleged in the Complaint, but also defrauded its poker players by misrepresenting to players that funds deposited into their online player accounts were secure and segregated from operating funds, while at the same time using player funds to pay out hundreds of millions of dollars to Full Tilt Poker owners.

The U.S. government called this a Ponzi scheme. Click here to readthe amended complaint.

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

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

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

Tough To Get These Businesses

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

Legality of Online Gambling In Canada

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

Short answer – no.

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

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

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