Sports in the Courts Blog

Sports in the Courts Blog

Commentary on the Intersection Between Sports and the Law

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Will the NFL’s Painkiller Lawsuit Tackle the Assumption of the Risk Defense?

Check out my recent article for CLM's Claims Management Magazine on the players' lawsuit against the NFL involving alleged painkiller abuse and the dangers the case could pose for the assumption of the risk defense ...

The Clippers/Sterling Mess, So Whose Constitution Is It Anyway?

So now we learn that Donald Sterling's lawyer, Maxwell Blecher, is stating that the Clippers' owner will not pay the NBA's record fine and has done nothing wrong.  In addition, ...

Will Concussions and Liability Issues be the End of High School Sports?

Check out my recent article for CLM's Claims Management Magazine on High School Sports and the dangers of the looming concussion-related ligation here

So What if the Clippers’ Owner Claims a Technical Foul on the NBA?

Yesterday, NBA Commissioner, Adam Silver gave Clippers' Owner Donald Sterling the equivalent of the NBA death penalty for Sterling's disgraceful and repugnant racist comments.  There really is no question that ...

The Clippers/Sterling Mess, So Whose Constitution Is It Anyway?

Posted in Clippers, NBA, Sterling

So now we learn that Donald Sterling’s lawyer, Maxwell Blecher, is stating that the Clippers’ owner will not pay the NBA’s record fine and has done nothing wrong.  In addition, Blecher asserted that the NBA has violated Sterling’s “due process rights”.   But what constitutional rights are we talking about anyway?

The US Constitution forbids a state actor (i.e. the police) from ignoring a person’s right to have fair notice and access to the courts to assert basic rights (i.e. pleading not guilty).  The US Constitution controls the government’s relationship with it citizens and their rights.  The NBA Constitution, however, is a very different legal document.

The NBA Constitution is a contract between the league and its owners (or governors).  The NBA Constitution does not afford elaborate due process rights to its owners, or an independent court system or appeals.  The only “right” afforded under the NBA Constitution requires Sterling to withstand a vote against him by 3/4 of the other owners.

So what are Sterling’s misplaced due process claims really all about?  When a lawyer senses a weak legal position there is always strategy of making a legal mess.  To make a big legal mess, a crafty lawyer can always try to throw in claims based on the real US Constitution.  Sterling is looking for a legal morass to slow down the NBA’s actions and frustrate any sale of the team.  The concept of “due process rights” is widely known and barely understood.  What a great way to make a mess.

So What if the Clippers’ Owner Claims a Technical Foul on the NBA?

Posted in Clippers, NBA, Sliver, Uncategorized

Yesterday, NBA Commissioner, Adam Silver gave Clippers’ Owner Donald Sterling the equivalent of the NBA death penalty for Sterling’s disgraceful and repugnant racist comments.  There really is no question that the sanction, at this level, was not only necessary but required for the long-term health of the league.  However, on CBS This Morning, Sacramento Mayor (and former NBA player) Kevin Johnson believes that the embattled owner may sue the NBA over this decision and sanction.

So what could Sterling claim if he will not go away (as he should)?  First, I cannot imagine that an owner that will vote to keep Sterling around.  A vote in favor of the admitted racist would cause a team to lose its sponsors and create major issue with players and fans. No owner is going to cut his own throat to protect Sterling under these distasteful circumstances.

Sterling’s lawyers must be telling him if he wants to sue, the potential claims are that Commissioner Silver  (or the NBA) has no authority to force a sale and exceeded his authority in this sanction.  While we don’t know exactly what the secret NBA Constitution and By-laws provides, the reports are that a forced sale was designed for situations of financial instability of a franchise or game fixing. Sterling may claim that his statements do not fall into either of these categories (although if he remains as owner the Clippers would become a financial zombie franchise).

In addition, Sterling will allege that he received the ultimate sentence from the NBA which was too extreme and arbitrary and capricious. Silver could take the position that his distasteful views are not the same as fraud, gambling or a serious violent felony, and as such, the commissioner exceeded his authority.

If Sterling will not take his massive profit (and responsibility for his awful comments) from the sale of the Clipper and go away, he could remain a big problem for the NBA for the foreseeable future.

The Clippers Owner’s Words Puts the Commissioner on the Legal Hot Seat

Posted in Clippers, NBA, Sliver, Sterling, Uncategorized

Well, Adam Silver you wanted the NBA big chair.  Now you got it.

According to multiple reports, LA Clippers owner, Donald Sterling allegedly made repugnant and hateful racist remarks about African-Americans to a former girlfriend.  These statement were caught on tape on put on TMZ’s website.

The LA Times called this more than a “one day story” and noted Sterling’s other claimed racist incidents and even lawsuits including the largest apartment rental discrimination case and settlement.

So if Sterling truly has  a pattern of racist remarks and offensive conduct, what is the newly minted NBA Commissioner Adam Silver to do?  Do you remember Marge Schott?  When Schott was the owner of the Cincinnati Reds, she made racist and anti-semetic remarks on several occasions.  Major League Baseball actually took swift action to strip her of her ownership duties until she eventually sold the team. Here, the problem is we do not know Silver’s full authority to act under the confidential NBA Constitution.

If Silver is going to be a strong commissioner, he must act decisively and firmly now.  He should allow an investigation to drag on forever (really does it take that long for Silver to ask Sterling is he said those horrible things).  The NBA doesn’t need Sterling (if he made those statements) to apologize on Twitter or go cry to Dr. Phil, the NBA needs him out.  More importantly,  the new commissioner needs to be the one who does it.

Not Every Lesson Has To Be Learned The Hard Way, Mr. Kaepernick

Posted in 49ers, Kaepernick, Lakers, NFL, Steelers

Well, here we go again.  A star athlete, an unknown female, allegations of alcohol and drug use, a potential sexual assault and the resulting police investigation.  However, this time there are denials of  any wrongdoing by the star athlete, 49er’s Quarterback Colin Kaepernick on already posted on Twitter (who ever allowed him to write anything about this on the internet is a good subject for another post).

Whether its Kobe Bryant, Ben Roethlisberger, Jameis Winston or now Kaepernick, certain star athletes continue to fail accept two critical aspects of their celebrity status. First, they are targets, big rich ones. Second, they simply cannot make a bad choice with a stranger.  Let’s accept for the moment that Kaepernick is completely innocent of any sexual misconduct.  Given that assumption, he still left himself open to a very bad and unnecessary scene that is his fault.

If the star quarterback did drugs with a woman, he just met, and brought her back to his room, he was playing with fire.  The lesson that must be learned for these young and rich stars is that a bad choice can cost you everything in an instant.  You must respect yourself enough to protect what you have achieved and your future, even if that means hiring a bodyguard to make sure that strangers cannot get to you.  This may be a difficult and unfair way to live but downside alternatives are so much worse.

As crass as it sounds, no matter what happened here, was a potential one night stand worth the resulting police investigation for Kaepernick?  We  know that Kaepernick is looking for a $20 million pay day, the 49er’s want to make sure their QB is around to collect it.

What Happened to the Captains of ARod’s Legal Ship?

Posted in MLB, Uncategorized

So now a Florida federal grand jury may be investigating whether suspended Yankee, Alex Rodriguez, impeded a criminal investigation into his use of  illegal performance enhancing drugs as reported by The New York Daily News.

To its credit, The Daily News has been at the lead of reporting the ARod legal fiasco while other NY sports radio hosts were repeating the nonsense propaganda that we were supposed to believe.  Once again reports have surfaced that ARod is extremely  unhappy with his legal strategy (if you really want to stretch the meaning of that word) and wants deep discounts concerning the millions of dollars he allegedly owes his various lawyers. There have also been suggestions that ARod received advice on legal strategy from a person that runs a popular night club.

The problem is that ARod’s reliance on a night club worker for legal advise should not be story.  Assume, for the moment that’s all true, it doesn’t change a thing.  ARod had a prominent legal team who concocted a bizarre legal strategy that led straight to disaster. At no time did ARod’s celebrated lawyers quit before the ship sank.  In short, a bartender should not have taken control over the legal situation from a member of the bar.

Let’s be clear that there is no proceeding between ARod and his lawyers over a fee dispute.  At this point, we are left to wonder if the client mutiny  (if this is true) should have came before the legal ship hit ran aground.

The NCAA Should Be Impressed by these Northwestern “Student-Athlete-Employees”

Posted in NCAA, NFL, Northwestern, Uncategorized

What if there really are “student-athletes” at the NCAA Division 1 level?  No, really, if it was true?

In what’s been called a “stunning” and “shocking” outcome, the college football players convinced the NLRB that they were employees of Northwestern University and deserve the right to unionize for collective bargaining rights.  Well, how many billion dollar industries, like the NCAA,  do you know of that don’t have employees?  The modern NCAA with its TV contracts, bowl games and March Madness brackets is flush with money while “student-athletes” are told to take their relatively small scholarships and keep the fantasy going.

Now the conventional wisdom is that this NLRB ruling will be appealed to the bitter end and should the players prevail, Northwestern will simply drop football and paint the players as the culprits.  These clever student-athletes have already been branded as “troublemakers”. While protecting the greed of the status quo is the likely choice, it shouldn’t be.  These players are not troublemakers but instead young men wise and brave beyond their years.

The NCAA should a step back and be impressed with how these Northwestern players (in effect) beat them.  Many commentators have noted that the present NCAA system of non-compensation for athletics is grossly unfair.  Some have referred to the NCAA as “dead man walking” without immediate reforms.  This criticism is on the money.

Instead of fighting players to the bitter legal end, the NCAA must institute major common sense reforms.  First, a realistic stipend must be given to Division 1 athletes. I would have no problem if the stipend didn’t kick in until Sophomore year to protect a university from  the “one and done” player.  In addition, all scholarships must good for 10 years.  This will protect athletes who do not make it in the pros or sustain a career ending injury.  Finally, a trust fund must be established to pay players (over time for their protection) for use of their likenesses in video games and other media.

The NCAA and universities need to learn the lessons the Northwestern athlete-employees are trying to teach us all.

So is ARod Mad at His Lawyers?

Posted in MLB, Uncategorized

There have been multiple reports in the NY media, including the NY Daily News, that suspended Yankees’ third basemen, Alex Rodriguez is not paying his lawyers and may owe them about $3 million.  While these reports have been denied, you have to wonder with this pretty awful outcome for ARod and the head scratching strategy used in the litigation whether ARod is steamed at his vast array of lawyers.

The first factor to consider is who was really in charge of the “strategy” to vindicate ARod from PED allegations?  We have learned from ARod’s employment law epic fail that if you’re really going to put the whole “system on trial” its a lot better to actually do that in a courtroom instead of running on to sports talk radio to plead your case.  You probably also need to make sure you have some facts on your side also before you get crushed by an arbitrator’s decision.  It might be me but heading for the exits when its your turn to testify (under oath) may not be the best plan either.

If ARod is angry with his lawyers, the blame bottom-line my rest with who made the final decisions at critical junctures with his cases.  If ARod took it upon himself to flee his own arbitration, he should quickly settle up with his lawyers and look in the mirror.  I understand he likes doing that anyway.

Video Interview: Discussing the Biogenesis scandal with LXBN TV

Posted in MLB

Following up on my recent post on the story, I had the opportunity to speak with Colin O’Keefe of LXBN regarding the recent litigation filed by Major League Baseball against anti-aging clinic Biogensis. In the brief interview, I explain why MLB is suing Biogenesis and what I believe is their ultimate goal.