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

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

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

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

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

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

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

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

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?

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

"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

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

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

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%

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

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?

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

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

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

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?

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

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

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

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

Let's break it down.

(a) Cedric Benson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In his eyes, his own Union let him down.

(b) Terrelle Pryor

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

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

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

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

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

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

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

(c) Retired Players Sue Union

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

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

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

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

Tampa Bay Rays VP Interview

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Higher TV, ad and ticket revenue? Absolutely.

Holyfield Sides With Mayweather and not Ortiz

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

Read the interview here.

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

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

Click here to listen.

TSN Radio Clip: Byfuglien, Full Tilt Poker and Clemens

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

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

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

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

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

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

The 2 Separate Streams: Civil & Criminal

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

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

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

The Legality of Online Gambling in the U.S.

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

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

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

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

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

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

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

Civil Claim Is Updated on September 20

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

Here’s the allegation from the Court document:

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

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

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

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

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

Tough To Get These Businesses

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

Legality of Online Gambling In Canada

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

Short answer – no.

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

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

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

Tonight on Offside: The Business & Law of Sports

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

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

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

Show airs tonight live on the Team 1200 in Ottawa between 6 and 7ET. For those beyond the signal, you can go to http://www.team1200.com/ and stream it.

Primer on Byfuglien & His Boating While Intoxicated Charges

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

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

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

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

What happened that night Byfuglien was arrested?

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

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

Did Byfuglien take the breathalyser at this point?

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

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

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

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

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

- he was unable to successfully perform field sobriety tests as requested 

- his pulse rate and blood pressure were high 

- his eyes were watery  

- he had a distinct brown stain on his tongue 

- he had trouble speaking, was unsteady on his feet and smelled of alcohol

Is it a crime to refuse a Urine Test?

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

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

Is the crime of refusal serious?

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

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

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

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

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

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

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

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

Why is the urine test even used?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Recognize the permanency of social media

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

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

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

(d) Be respectful.

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

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

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

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

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

This part of the CBA does not expressly address social media. However, Note 2 provides that amendments may be made by the NHL to the club rules with the approval of the NHLPA:

Subject to the joint consent of the NHL and the NHLPA, which shall not be unreasonably withheld, each Club may make up to three (3) modifications and/or amendments to the Standard Club Rules.

For the first offence, the fine can't exceed $250, while the second fine can't be more than $500. These fines would not deter non-compliance by themselves. The idea, I suspect, is that the Policy will deter it.

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

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

Would Colts Ever Cut Peyton Manning?

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

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

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

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

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

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

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

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

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

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

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

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

NBA Players To Get Some Money Back

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

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

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

What Pryor's Appeal Means

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

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

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

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

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

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

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

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

This promises to be interesting.

For a comprehensive primer on Pryor, click here.

Radio Clip - Team 1260: Clemens, Tressel, Pryor, Danza and Soleil Moon Frye

Click here for my legal take on Clemens development, Pryor/Tressel and more.

Continue to Focus on Music Career? Carl Lewis Senate Bid Crushed by Court

A New Jersey Court has declared that Carl Lewis was ineligible to run for Senate because he doesn't meet the state's four-year residency requirement. The Judge didn't buy that Lewis' constitutional rights were violated by being barred from running.

This will give Lewis more time to focus on his singing career. With the help of Roseanne Cherie Barr, I expect Lewis will be delighting fans for decades with his voice.

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

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

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

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

Why was Pryor suspended by the NCAA?

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

What kind of player was Pryor at Ohio State?

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

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

How long is Pryor’s NFL suspension?

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

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

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

Why did the NFL suspend Pryor?

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

More please

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

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

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

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

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

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

What was the legal basis for the NFL suspending Pryor?

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

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

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

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

What Did Goodell write in his letter to Pryor?

In a letter to Pryor, Goodell wrote as follows:

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

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

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

What was the reaction from Pryor’s Camp?

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

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

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

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

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

Cornwell added,

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

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

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

How long did Pryor have to appeal the suspension?

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

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

What are the implications of the suspension?

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

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

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

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

The implications are interesting.

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

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

What of Reggie Bush?

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

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

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

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

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

For me, this is about incoming rookies.

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

What was the reaction to Goodell suspending Pryor?

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

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

Umm…Tressel please

Jim Tressel had Pryors.

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

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

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

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

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

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

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