The Luongo Contract: Is He A Bargain at $5.3 Million?

It looks like Vancouver Canucks goalie Roberto Luongo is on his way out of Vancouver. According to TSN, he will soon submit a list of teams that he would accept being traded to. Is Luongo tradeable? What of his contract that takes us to 2022 (when robots will feed us and Twitter will be President)?

When Luongo signed his massive deal in 2009, it seemed at that time he might be untradeable.

That, however, is not the case. Let’s take a look.

The Deal

In 2009, Luongo signed a 12 year/$64 million dollar deal. He was 31 years old when he signed the deal, which means by contract’s end he will be 43.

The distribution of pay across the 12 years is as follows:

2010-11: $10 million

2011-12: $6.716 million

2012-13: $6.714 million

2013- 14: $6.714 million

2014-15: $6.714 million

2015-16: $6.714 million

2016-17: $6.714 million

2017-18: $6.714 million

2018-19: $3.382 million

2019-20: $1.618 million

2020-21: $1.0 million

2021-22: $1.0 million

That means his cap hit is $5.333 million. Remember the cap hit is the average yearly salary over the life of the contract and not what a player makes in a specific year.

So it comes down to his cap hit. Back in 2009, the length of the deal (taking Luongo into his early 40s) together with the cap hit made it seem like he wasn’t tradeable. Of course, times – and the salary cap – have changed.

Here are some of the reasons he is now tradeable.

The Rise of the Salary Cap

Yes a cap hit of $5.333 is not chump change in a cap world. However, since the inception of the cap in 2005, the cap has gone up dramatically:

2011-12: $64.3 million.

2010-11: $59.4 million

2009-10: $56.8 million

2008-09: $56.7 million

2007-08: $50.3 million

2006-07: $44 million

2005-06: $39 million

When the adjustment to the players’ share of revenue is made from 57% to about 51.5% (in my estimation) the cap will stay relatively flat or go up or down by about $2 million or so. So this year, there won’t be a big change in the salary cap. However, in coming years, expect it to continue to rise. The NHL continues to grow revenue under the capable watch of NHL COO John Collins. Since he took over in 2006, the NHL’s revenue has grown over a billion dollars. The NHL is enjoying upward momentum and will continue to leverage its Comcast TV deal to grow the game. All signs point to up – for revenue and the cap.

When Luongo signed in 2009, the cap was $56.7 million. Now it’s $64.3 million. So that’s a gain of almost $8 million. There’s a lot more place under the cap to make room for Luongo.

Also ask yourself this: in 2015, what will the cap hit be? Assuming it;s higher, Luongo's deal will look a lot better from a cap standpoint.

Comparables

Luongo’s $5.3 million cap hit is starting to compare pretty favourably to other goaltenders in the league:

Lundqvist - $6,875,000

Ward - $6,300,000

Miller - $6,250,000

Backstrom - $6,000,000

Kiprusoff - $5,833,333

Bryzgalov - $5,666,667

Luongo - $5,333,333

Brodeur - $5,200,000

Thomas - $5,000,000

Fleury - $5,000,000

DiPietro - $4,500,000

Hiller - $4,500,000

Niemi - $3,800,000

Khabibulin - $3,750,000

Halak - $3,750,000

Lehtonen - $3,550,000

Roloson - $3,500,000

Rinne - $3,400,000 ($7M next season)

Luongo’s deal falls somewhere in the middle of the top tenders this season. Next season, Pekka Rinne’s cap hit on his new deal with be $7 million. He hasn’t yet been to a Cup final.

High Five to the Circumvention of Cap

When the Kovalchuk decision came out, the arbitrator Richard Bloch mentioned in a footnote to his decision that there were other contracts that constituted circumventions of the salary cap given that throwaway years were added to contracts to artificially lower the cap hit. One of those contracts was Luongo’s – and for good reason. When Luongo turns 40 years old, his salary goes from $3 plus million to $1.618, and in the last two years his salary is $1 million. These years lowered the cap it from about $6.7 million to $5.3. Big difference for a team looking to acquire him.

As well, the last 4 years of his deal amount to about $7 million. That means that a team would happily buy him out before he turns 40 years old in 2018. There would be a cap hit on the buyout, but it would be manageable.

Or rather than buy him out, before the 2018 season a team could trade him to a cap hungry team looking to make the floor. Why? By then his salary cap hit will be more than his actual salary. So the team that acquires him will enjoy a net gain on his cap hit. People love net gains.

Read my analysis of 58 NHL contracts in the context of circumvention here.

Wanted: Goalies

It is getting a lot tougher to find quality goaltending. Just look at the playoffs this season so far. A lot of goalies have struggled. When Luongo is at his best, he is one of the best goalies in the league. Yes he has had some issues in key games and in key situations (shaky glove syndrome). However, there aren’t a lot of good goalies to go around.

Look at the Flyers – Bryzgalov’s cap hit over the next 9 years is $5.6 million. Early on, Bryzgalov has been shaky and has emerged as a renaissance man or eccentric – you take your pick.

Whatever you may think of Luongo in the clutch, he will immediately make a team better (like Tampa).

Playoff Revenue

Teams make their money in the playoffs. When revenue is added up – gate, media, merchandising – teams make about $4 million per playoff game on average. Some of that is shared with the league and other teams. Still, teams pocket decent money with home playoff games.

As well, many execs will say that the playoffs are a springboard for marketing and ticket sales for the next season. In fact, for many teams making the playoffs is critical to the long term viability of their franchises.

Luongo helps your team get into the playoffs – there is no doubt about that. Once you’re in, you start to generate that key revenue and position yourself favourably in the marketplace. This will matter to teams, as they will look at his contract as an investment with a possibly strong return.

So there are lots of reasons why Luongo’s contract is moveable. The comparables are good, the salary cap hit is manageable, he’s a really good goalie, and the potential return on his contract is promising.

Frankly, at this point, isn't his $5.3 million cap hit looking like a bit of a bargain?

Interview: ESPN's John Barr on Loomis Eavesdropping Story

Yesterday on Offside, we interviewed ESPN investigative reporter John Barr.

John broke the story earlier this week of Saints GM Mickey Loomis' alleged ability to eavesdrop on opposing coaches. It is important to note that Barr did not allege that Loomis did in fact eavesdrop. Rather, he takes the position that Loomis had that ability to do so by way of a device installed in his Superdome suite.

John confirmed that ESPN continues to investigate this case with a view to trying to collect evidence supporting position that Loomis did indeed eavesdrop.

It is alleged that Loomis did this between 2002 and 2004. Interestingly, starting in 2008, the NFL engaged retired FBI agents to conduct electronic audits of coaching booths, locker rooms, etc.. They would sweep these areas looking for bugs and the like.  However, these sweeps were not conducted during the material time, namely, 2002 to 2004.

If the NFL was conducting these sweeps, it seems logical to conclude that there was a need for them. Where that need came from remains an open question.

Listen to our interview with John here.

Offside Interview On Roger Clemens Trial

Last night on Offside, we interviewed Ann Marimow, Washington Post reporter. Ann has been in the courtroom  during the Roger Clemens trial so she has a good feel for how things are unfolding. She spoke to that, as well as other topics such as Judge Walton, Roger Clemens' demeanour, the prosecution's slightly toned down approach and whether the Defence team's opening resonated with the jury.

Listen to the interview here.

Legal Overview: The Clemens Trial

With the Roger Clemens trial starting, here's an overview.

Trial: Self-Inflicted Wound

Here's the thing about this whole mess Clemens got himself into: it's self-inflicted.

Clemens was never forced to testify before Congress. He wanted to testify. He was never subpoenaed. Clemens wasn't happy when the 2007 Mitchell Report came out, which was a report summarizing an investigation into the use of PEDs and steroids by MLB players. The report mentioned Clemens 82 times, only third to Canseco (105 times) and Bonds (103).

So he thought he would go to Congress and proclaim his innocence. Problem is that he denied to Congress what others have insisted is true - Clemens used banned substances.

So rather than clear his name, he is now on trial for lying about taking PEDs and steroids.

The Allegations

The underlying allegation is tied to him lying about using performance enhancing drugs (steroids and HGH).

Clemens contradicted testimony given by his former trainer Brian McNamee, who testified that he had injected Clemens with both steroids and HGH.

Clemens denied that McNamee had ever injected him with these substances and said that he injected him with B12 vitamin shots.

Here is the key: to win a conviction, the prosecution will have to prove that Clemens was injected with HGH and steroids, he knew he was being injected, and he knew he was lying when he said he wasn’t injected.

The Charge of Perjury Is Not Just Lying

For the offence of perjury (the most serious offence charged), the prosecution must prove not only that Clemens lied, but that he knowingly lied under oath. This means that Clemens could wiggle out if he can convince the jury that he misunderstood a question or didn’t know exactly what he was taking.

Prosecution Versus Clemens: The Arguments

Clemens has money and will assemble a top notch legal team. This makes a big difference. Expect his lawyers to really dig in and attack the prosecution’s case from every angle. Think OJ – they will be relentless.

Clemens offered up his testimony 2.5 years ago so that means that the prosecution has very likely taken great care in developing its case. They may also have new evidence.

Prosecution’s Arguments

Here are some of the prosecution’s possible arguments:

1) McNamee testified that he injected Clemens with steroids and HGH over 40 times between 1998 and 2001.

2) McNamee has syringes, pads and gauze that have Clemens’ DNA on it.

3) Clemens’ good friend Andy Pettite testified under oath that Clemens told him he used HGH. This corroborated the evidence provided by McNamee.

4) McNamee has testified he injected Clemens, Pettite and Chuck Knoblauch with HGH. Both Pettite and Knoblauch have confirmed this. So the prosecution will argue it is unlikely that McNamee would tell the truth about Pettite and Knoblauch, but lie about Clemens.

5) In 1998, Clemens developed an abscess on his buttocks that he claimed was the result of B12 injections. However, McNamee stated that it was the result of steroid injections and numerous medical experts have said that the mass was unlikely to have been the result of B12 injections and was more consistent with steroid injections.

Clemens Arguments

Clemens is not left without arguments. Here are some of his possible arguments:

1) He will attack McNamee’s credibility and truthfulness. McNamee reached a deal with federal authorities to avoid prosecution for steroid distribution, and Clemens will argue that was his incentive to lie.

2) Clemens will challenge the admissibility and reliability of the syringes, pads and gauze arguing that while in McNamee’s possession for years, they may not have been handled with care.

3) He didn’t know what was in the syringes, so when he said he didn’t take steroids or HGH, he didn't knowingly lying. In addressing Pettite testimony, he could say that Pettite just got it wrong (he misremembered).

4) Important Person Act: Well this isn’t an argument (or a statute) so much as some jurors may be influenced by his fame.

Length of Trial?

It should last about 4 to 6 weeks. That could change though.

Will Clemens Testify?

Clemens can't be forced to testify. Will he testify? Clemens had a tough time before Congress and he may have difficulty the second time around. If Clemens were to testify then he runs risk that jurors will find him guilty simply because they were not convinced. However, it is the prosecution that has the burden of convincing jurors of the defendant’s guilt. So make the prosecution work for it, Clemens’ lawyers will tell him. 

If the case goes off the rails for Clemens, then perhaps you may see Clemens on the stand. Given his defiant, determined and brazen attitude, he may relish the opportunity. However, on balance, don't expect to see Clemens take the stand. 

Jail Time

As far as prison time, each of the six counts he is charged with could result in a sentence of up to 5 years in prison. However, under U.S. sentencing guidelines, if he’s convicted of at least one of the counts of perjury he may receive a sentence of 15 to 21 months in prison, and could be out for good behaviour in 13 to 18 months. However, all this is up to the Judge.

This will be a tough case for Clemens. Remember though – it only takes 1 juror to side with Clemens for him to walk.

Quick Hit: Suspended NHL Players, Their Salaries and The Cap

In light of the Raffi Torres 25 game suspension, the question has been raised as to whether his salary will count against the salary cap while he's suspended for an on-ice violation.

The answer is yes - the salaries of players suspended for on-ice violations do count against the salary cap. 

Remember that players are not paid during the NHL playoffs so there are no cap concerns. Come the regular season, however, Torres' salary will count against the cap.

If you want more information, here is a good link on the topic.

Offside Radio Show - Dodgers Sale; Business & Legal Side of Hockey Violence

Last night on my radio show Offside: The Business & Law of Sports, guest co-host Steve Lloyd and I interviewed Eric Fisher from the Sports Business Journal on the Dodgers sale. He wrote a great article on the sale of the team.

Listen to the podcast here.

Frank McCourt sold the team, the parking lots and 250 acres of land surrounding the stadium (and 3 miles from downtown LA) for a record $2.15 billion to a group led by Stan Kasten and Magic Johnson (of the Magic Hour).

The previous record sale was the Miami Dolphins, which Stephen Ross bought for $1.1 billion in 2011. The other top deals are as follows:

Cubs (2009) at $845 million to Ricketts family (3times)

Redskins (1999) - $800M – Snyder

Red Sox (2002) - $700M – John Henry

Jets (2000) - $635M 

Your top baseball deals:

Cubs - $845M

Astros (2011) - $615M to Jim Crane

Rangers (2010) - $593M

Nationals (2006) - $450M

Braves (2007) - $461M

The $2.15B price tag was big. New York Giants co-owner Steve Tisch said that much according to Fisher's article.

“It’s a unique situation and a very iconic brand…but it’s a big number."

So that was the big question we asked Fisher - did Kasten pay too much for the Dodgers. The TV deal is a big part of the deal, with the expected price tag to be around $4 billion. Right now Fox and Time Warner are likely bidders, but more can emerge.

We also hit on Magic Johnson and his ability to repair or undo what McCourt did since he bought the team in 2004 (when he bought it for $430 million). Just last year, attendance for Dodger games dropped 18% over the earlier year. This was big for the Dodgers - a team that routinely found itself topping attendance in baseball.

This deal was also different in that MLB had little control over the sale. In the past, the league had an active role in the sale of teams. This time, however, that was not the case. That's what prompted super agent Scott Boras to say this: "Scott Boras was quoted as saying that we are now seeing “true free agency in the pursuit of a franchise”.

We also hit on the legal and business side of hockey violence.

Enjoy the show.

Radio Clip - Team 1260: We Talk the LSAT, Grilled Cheese Sandwiches & The Loser Point

Dustin and Will from the Team 1260 and I talk about the LSAT, delicious grilled cheese sandwiches, the Saints and the NHL loser point.

Legal Glimpse: The Petrino Firing & Moral Clauses

Arkansas has fired Bobby Petrino, saying he "knowingly misled" and engaged in reckless behavior in a relationship with a female employee.

The 51-year-old Petrino was injured in an April 1 motorcycle accident. He was put on paid leave last week after admitting he lied about the presence of the 25-year-old employee, Jessica Dorrell, who had been riding with him.

Dorrell was hired by Petrino as the student-athlete development coordinator weeks ago.

"He made the decision to mislead the public, (and it) adversely affected the university and the football program," athletic director Jeff Long said at an evening news conference. There was a "pattern of misleading and manipulative behavior to deceive me."

He was 34-17 since he was hired in 2008 and was 21-5 in the past two seasons.

Petrino’s Employment Agreement

Petrino’s employment agreement issummarized in an engagement letter. At Section 9 of that letter, the University is granted broad powers to terminate Petrino for conduct or behavior that it does not agree with or approve of. In particular, it provides that the University reserves the right to terminate Petrino if he has engaged “in conduct, as solely determined by the University, which is clearly contrary to the character and responsibilities of a person occupying the position of Head Football Coach or which negatively or adversely affects the reputation of the University…in any way”. Here’s the actual clause:

This is broad since it allows the University to determine on its own the type of behaviour it doesn’t like. It needs to act reasonably – but nevertheless it still makes that assessment of right versus wrong.

By firing Petrino on the basis of his conduct, the University does so with cause. That means they don’t have to pay him out or offer him severance. That’s also significant.

Petrino will forfeit his salary, which averages about $3.5 million a year over the next 6 years. Here are the details:

Petrino could challenge the firing by arguing his behavior did not constitute just cause and that he is entitled to money. There is a lot of money at stake (about $21 million), so it would not be surprising to see some type of challenged materialize.

Moral Clauses

The University's clause in its contract is a moral clause. These moral clauses are usually pretty broad to give a company the option of cutting an employee if they engage in questionable behaviour. Don’t forget – employers are generally risk adverse as they don't want to associate themselves with a negative image.

Morals are shaped by the beliefs of a society, and so by implication, interpreting what’s moral can be a subjective exercise, at times elusive and constantly in flux.

The history behind moral clauses reveal their vagueness and how they are tied to the beliefs of a society. In the 1920s, the clauses became notorious during the McCarthyist era when they were used to terminate contracts of many writers, directors and producers who were accused of having communist leanings.

More recently, morals clauses have been used to terminate sponsor deals with Rashard Mendenhall (Twitter incident), Tiger Woods (adultery), Michael Vick (dog fighting), Kobe Bryant (sexual assault) and Randy Moss (photographed with cocaine).

This isn’t the first time Petrino has demonstrated peculiar judgement. On December 10, 2007, with the Falcons languishing in the NFC South cellar with a 3-10 record, Petrino resigned his position in Atlanta the day after pledging his commitment to owner Arthur Blank. Petrino informed his players of his decision with a short laminated note left at the locker of each player.

Now we wait and see if lawyers get involved.

NHL Playoff Teams: Lots of Wildcards

Effectively, with divisional seating, NHL playoff picture in each conference is comprised of 3 division leaders and 5 wildcards.

That's a lot of wildcards.

Someone get a wrench - this needs fixings.

Your Real NHL Standings & Their Impact on the Playoffs and Draft

You play to win the game – not to not lose the game. This is fundamental to pro sports. Herm Edwards would agree I’m sure.

Awarding NHL teams a point for losing in overtime distorts the standings. It misrepresents a team’s won/loss record, awards teams for losing and ultimately results in teams with fewer wins making it into the playoffs over teams with more wins. Divisional seating also distorts things.

How can a team that finished the season 38-44 be allowed to finish 3rd overall in the East?

The Loser Point

Entertainment is at its highest when drama is at its highest. By awarding a consolation point for losing undermines drama and by extension the raw entertainment value of a game. If fans know they will be rewarded even if they lose, the suspense and drama is diminished. Fans don’t feel the same level of elation or agony when their teams win or lose.

The NHL represents the highest and finest level of hockey on the planet played by the best of the best. Why on earth reward losing? It’s unfair, intellectually offensive and not in keeping with the principles that govern the highest levels of competition.

This isn’t summer camp – everyone isn’t a winner. There are winners and losers. To award a loser point suggests the NHL is not fully committed of its overtime format. If you implement it believe it and own it. Don’t waffle. Except for IHOP, no one likes wafflers.

There should be winners and losers, and not winners, losers and sort-of-losers-but-not-really-high-five.

Some Perspective

Let’s put things in perspective - if a team lost all 82 games this season in overtime, it would be in 12^th place in each conference.

The NHL Standings

Your Real NHL Standings

The NHL standings have been adjusted to more accurately reflect a team’s success. A few things were done. First, the loss column has been consolidated so that overtime losses are now included in the loss column. That means that won-loss records accurately reflect team success.

The second adjustment relates to the loser point. Each team’s point total has been revised so that a point is not awarded for losing in overtime – be it in the shootout or 4 on 4. A win is a win is a win.

Finally, divisional seating has been eliminated.

Ties in the standings were broken by head-to-head record then goal differential.

Who’s In/Who’s Out

After the adjustments are made, things change dramatically. The clear beneficiaries of the current NHL standings are the Panthers and the Jets.

The Panthers and Kings are out of the playoffs, and the Sabres and Stars are in the post-season. The Panthers record drops to 38-44, one win worse than the Sabres, while the Kings lose two more games than the Stars.

The Panthers drop is most dramatic. With the help of 18 overtime losses and divisional seating, it finished 3^rd overall. However, without that help, they drop to 9.

Agreed – the Panthers and Kings deserve to make it under the existing system. However, that is not the point as the criticism is not directed to these teams. Rather, it is directed to a system that allows teams with fewer wins to make the playoffs.

The Playoff Matchups

Here are your current playoff matchups:

East: Rangers/Senators; Bruins/Capitals; Panthers/Devils; Penguins/Flyers

West: Canucks/Kings; Blues/Sharks; Coyotes/Hawks; Wings/Predators

When the adjusted NHL standings are applied, things change dramatically.

East: Penguins/Sabres; Rangers/Senators; Bruins/Capitals; Devils/Flyers

West: Canucks/Stars; Blues/Coyotes; Wings/Sharks; Predators/Hawks

If I’m the Wings and Devils I’m not too happy. Teams generate significant revenue from playoffs games and for that reason they prefer home ice advantage. However, the current NHL standings award home ice advantage to the Panthers (38-44) and Coyotes (42-40) over the Devils (48-34) and the Wings (48-34).

The NHL would have preferred that the Flyers and Penguins both have a chance to advance to the next round. Under the adjusted standings, they do.

NHL Draft

The only clubs with the opportunity to receive the first overall selection in the 2012 draft are the five teams with the lowest regular-season point totals. Those teams are as follows:

(1) Blue Jackets, (2) Oilers, (3) Canadiens, (4) Islanders and (5) Leafs

However, with the NHL standings adjusted, the top five changes to the following:

(1) Blue jackets, (2) Canadiens, (3) Oilers, (4) Carolina and (5) Islanders

So the Leafs (35-47) are out of the top 5, and the Hurricanes (33-49) are in. As well, the Canadiens move up and the Islanders and Oilers slide down in the draft order.

The Adjusted Standings Are Closer

We’ve heard that the loser point keeps the standings close, thereby ensuring that fans stay interested. However, as you will notice, the adjusted standings remain close.

In fact, they are closer where it matters – at the bottom.

Without the adjustments, the Sabres are 3 points out of a playoff spot, and Tampa and Winnipeg are 8 points out. With the adjusted standings, Tampa and Florida are 2 points out, and the Jets are 4 points out.

In the West, the Flames are 5 out, the Stars are 6 out and the Avalanche are 7 points out. With the adjusted standings, the Avalanche are 2 points out, the Kings 4 and the Flames 6.

Overall, the adjusted (or real) NHL standings make good sense. They are intuitive, reward merit and keep the standings close. As a sports fan, that’s all you can ask for.

The CBA, Tortorella's Fine & Why He's Good For Business

New York Rangers head coach John Tortorella has been fined $20,000 for comments following a game against the Penguins.

Tortorella was slightly upset when Penguins defenceman Brooks Orpik hit Rangers forward Derek Stepan knee-on-knee in the game’s final five minutes.

“It’s a cheap, dirty hit,” Tortorella said to reporters after the game. “I wonder what would happen if we did it to their two whining stars over there. I wonder what would happen. So I’m anxious to see what happens with the league over this. Just no respect among players. None. It’s sickening.”

“It’s one of the most arrogant organizations in the league. They whine about this stuff all the time, and look what happens. It’s ridiculous. But they’ll whine about something else over there, won’t they, starting with their two (expletive) stars.”

The CBA & Fines

The NHL’s authority to fine Torts $20K rests in Rule 33A, which is referenced in the CBA at Exhibit 8.6 (Procedures Relating To Commissioner Discipline). It reads as follows:

Rule 33A. Supplementary Discipline

In addition to the automatic fines and suspensions imposed under these Rules, the Commissioner may, at his discretion, investigate any incident that occurs in connection with any Pre-season, exhibition, League or Playoff game and may assess additional fines and/or suspensions for any offense committed during the course of a game or any aftermath thereof by a player, Trainer, Manager, Coach or club executive, whether or not such offense has been penalized by the Referee.

Does Torts Pay His Fine or Can the Team Pay It?

The fine is deducted from the coach’s salary. So Tortorella pays the fine and not the team.

What’s the NHL Foundation?

The fine money goes to the National Hockey League Foundation (see Article 26.4 of the CBA). The Foundation is the National Hockey League’s charitable and community relations organization, and a major component of the League’s youth hockey programming.

Tortorella: Good For Business

Yes the NHL fined Tortorella for his comments. However, in a marketplace as crowded as New York, Tortorella’s comments get attention. They also help set up the Flyers/Pens matchup as the marquee matchup of Round 1.

There is tension here between competing interests. On the one hand, it is important for the league to do its best to promote sportsmanship and seek discourage disparaging comments about other teams/players/brands. On the other hand, it wants to get attention in what sometimes seems like an NHL needle in a sports haystack.

You may not agree with what he says. Ultimately, though, Tortorella is good for business. 

Interview: Mark-Fainaru Wada - Co-Author of Game of Shadows & ESPN Investigative Reporter

“There are some things I don't understand right now. The balls I used to line off the walls are lining out of the park. I can't tell you why. Call God. Ask him. It's like, wow. I can't understand it”.

- Barry Bonds, Spring, 2001

This week on Offside, we interviewed Mark-Fainaru Wada, co-author of Game of Shadows (along with Lance Williams) and ESPN Investigative reporter for Outside the Lines.

Game of Shadows is one of the most important books of our generation. The New York Times described the book as “devastating and groundbreaking”.

Among the elite athletes linked to PEDs in Game of Shadows were Barry Bonds, Gary Sheffield, Jason Giambi, Jeremy Giambi, Benito Santiago, Armando Rios, NFL players Bill Romanowski, Tyrone Wheatley, Barrett Robbins, Chris Cooper, Olympians Kelli White, Kevin Toth, Dana Stubblefield, Dwain Chambers, Chryste Gaines, Calvin Harrison, Marion Jones and Tim Montgomery (who packed on 28 pounds of muscle under Victor Conte).

Game of Shadows was in part based on leaked grand jury testimony. Mark and Williams were subpoenaed to testify before a federal grand jury about how they obtained leaked testimony. They refused to reveal their sources and were sentenced to 18 months in prison for contempt of court. Carl Bernstein submitted an affidavit to the Court supporting Mark, Lance and their right not to disclose their sources. Ultimately, they avoided jail time when Troy Ellerman pled guilty to leaking the information.

The interview covers it all and Mark provides very compelling comments. Mark hits on Barry Bonds, Ryan Braun, Marion Jones, facing jail time, the state of the game, and newspapers having to cut investigative units for lack of funds.

To listen to the interview, click on the following links:

Part 1 - Mark Fainaru-Wada: We cover Ryan Braun, Barry Bonds, Balco and Marion Jones.

Part 2 - Mark Fainaru-Wada: We hit jail time, the role of newspapers and investigative units and the state of the game.

ESPN Radio Clip - Saints Legal Breakdown

Josh Pacheco of ESPN Radio and I talk about the latest developments in the Saints Bounty program and there legal impact. As always, Josh digs in.

Radio Clip - TSN Radio Toronto: We Dig Deep on the Latest Saints News

Scott MacArthur and I dig into latest Saints developments right here. What's the impact the audio recording where Williams encourages his players to go after certain players?

Radio Clip - Team 1260: Saints, Shockey, Sapp & Me As New Habs GM

Here's my clip with the boys at the Team 1260 where we hit a lot of stuff in 9 short minutes.

Radio Clip - TSN Radio Toronto: Saints, Shockey & Sapp

Scott MacArthur from TSN Toronto 1050 and I cover the legal side of Sean Payton's appeal and the many legal layers of Shockey versus Sapp. Here's the clip.

Tonight On Offside: Greg Gilhooly

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

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

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

The interview promises to be very interesting.

Warrented? Sapp, Shockey & Defamation

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

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

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

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

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

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

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.

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

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

Sapp & Defamation

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

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

"We're not going to fire Warren....The way we look at it, Warren clearly crossed the line in terms of what his responsibility is. He's an analyst for us. We use him to talk about what happens on the field and in the locker room and use that expertise. He's not a reporter."

Quenzel also said Sapp was reminded that "he is an analyst and not a reporter for NFL Network. In the future, if he comes across something he thinks is news he will let his producers know and before it is reported or Tweeted, that content will be subject to the same verification procedure that our reporters follow.”

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

NHL Needs Minimum Suspensions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Radio Clip - Team 1200: Saints

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

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

Saints Bounty Gate: NFL Drops Hammer

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

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

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

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

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

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

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

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

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

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

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

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

Why Only Two Years?

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

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

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

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

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

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

Do Judges Have Sentencing Guidelines?

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

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

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

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

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

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

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

When Can James Get Parole?

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

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

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

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

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

Overall Was The 2 year Sentence Appropriate?

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

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

Can Titans Offer Peyton Manning A Contract for Life?

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

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

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

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

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

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

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

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

A Partial Transcript of My Interview with NFL Linebacker Brady Poppinga

Transcription of Brady Poppinga for offside edited1.mp3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BP – Why would they?

EM – Are you at all concerned?

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

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

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

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

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

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

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

BP – My pleasure man.