Sports In the Courts Blog : New York Attorneys & Lawyers Specializing in Sports Law & Legal Analysis

The danger was open and obvious. The young man, Declan Sullivan, tweeted that he might be killed by going 50 feet in the air to film a football practice in a monster wind storm. The other teams in the area pulled their players inside to avoid the 50 mph winds. But not Notre Dame.

Coach Brian Kelly kept his ND team out there and allowed Sullivan to go 50 feet in the air in a dangerous scissor lift. It seems Kelly's decision sent a 20-year-old student to his death.

Many commentators have called for Kelly to be fired and for ND to settle with Sullivan's family. Both may be appropriate, but there must be more to this incident than a quick settlement and the inevitable calls to "move on." For once, let's not turn the page or "move on." Let's stay right here.

Notre Dame owes the Sullivan family and the public a full investigation and complete accounting for this avoidable tragedy. We need to know if the use of the scissor lift violated federal OSHA standards or Indiana safety laws. We need to know what kind of real training (and by whom) Sullivan had with this construction-type lift. We need to know if Kelly ordered Sullivan on to that lift. We need to know everything.

You can be sure that Notre Dame is going to settle with Sullivan's family. Why would the university want an embarrassing lawsuit that could end in a disastrous jury verdict? But money doesn't put life back in the body of a 20-year-old. For that matter, neither will a full and complete investigation. However, maybe, just maybe, it will help Declan rest in some peace. 

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In the NYC metropolitan area, Cablevision (a major TV provider) and Fox are in the midst of a contract dispute that has caused Fox to pull its programming from about 3 million Cablevision subscribers. In the interest of full disclosure, you should know that I serve as the legal analyst for MSG Network which is owned by Cablevision. As such, I will not comment on Cablevision’s role here and invite you to read other commentator’s views on the company.

So let’s just deal with Fox for the moment. Fox is about to blackout the Packers/Jets game on Sunday and has not permitted the World Series to be viewed in millions of homes in the tri-state area.

Can you imagine not being able to watch your favorite NFL team or being denied the World Series? For a causal fan it may not be a big deal but for the rabid Jets fan or baseball fan, this is an unwelcomed shock. But could it be a lawsuit? Hmmmm.

I have racked my legal mind and have come up with a bit of a stretch for a cause of action. New York Law recognizes the tort of Negligent Infliction of Emotional Distress (“NIED”). To prevail on a NIED claim a plaintiff must prove (among other things) that the injured sports viewer suffered “extreme and outrageous conduct” by the defendant and suffered “severe emotional distress.” As for “outrageous conduct,” what could be more extreme for a fan of the Jets or World Series than to have their American right of sports viewership brutally taken from you without any real recourse. What could be worse than a brand new HDTV, a bag of chips and no sports to watch? Maybe this horror may (stress may) satisfy the first prong.

As for the second prong, “severe emotional distress” this requires proof of “serious mental distress.” The easiest way to show this damage is by professional treatment for depression or a mental illness. So given this fact, you might want to see a shrink to vent about how outrageously angry you are that your beloved NFL team or World Series glory has been snatched away.

This isn’t the greatest lawsuit and it’s probably a loser but as usual in these programming disputes, so are the fans.

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With Brett Favre's "Iron Man" streak on the brink of ending, Jenn Sterger's brief stint on 'The Daily Line' has been cancelled.  Sterger, who has yet to interview with the NFL continues to hint that she will cooperate with the NFL's investigation.  It is unclear as to why it is taking Sterger so long to cooperate with the NFL.  Reports have surfaced about a potential third party who was responsible for passing Sterger's telephone number along to Favre.  According to Sterger's manager, the third party knows exactly what happened, wants to help Sterger, but has retained legal counsel and is not sure whether or not to become involved.  If the third party is still an employee of the NFL or the New York Jets, they may very well be afraid to come out and run the risk of poisoning the waters for their career.  

On the other hand, reports have come out regarding a potential for extortion on Sterger's part.  By allowing this to string along and continuously throwing out threats of cooperation with the NFL, Sterger may be making a push for a payout from Favre.  Sterger has to make sure she keep quiet.  Favre's side is allowed to make an offer of settlement to put the incident behind them, but Sterger is not allowed to make a threat if she doesn't receive payment.  

As time passes by and the potential for Favre's magical "Iron Man" streak and career in limbo, both the NFL and Sterger need to move quickly if they have any intentions for taking action against Favre.  Then again, it would be sad to see an unprecedented streak ended due to an off the field incident that barred Brett from a game.

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With the San Francisco Giants leading the World Series 2-0, rumors have begun to fly regarding one of the members of their team and his failure to make the post season roster.  According to San Francisco Giants manager Bruce Bochy, Jose Guillen has been excluded from the post season roster due to neck injuries.  On the other hand, speculation has swirled about the Giants holding Guillen from the post season roster due to an ongoing investigation linking Guillen to HGH shipments.  

The whole story is fairly ironic due to the fact that the Giants were the team that was plagued by performance enhancing drug rumors, accusations, and the dark cloud of Barry Bonds.  With the team on the brink of capturing its first World Series victory since 1954, performance enhancing drugs can stealing the spotlight.  According to reports, federal authorities informed Major League Baseball there is an ongoing investigation involving Jose Guillen.  Major League Baseball has also opened an investigation regarding Guillen and the shipments.  Look for more details to emerge in the coming days. Guillen, a career .270 hitter with 214 HRS and 887 RBI's, has had an injury plagued career and anger management issues.  At this point it is pure speculation, but so far in the age of performance enhancing drugs and HGH in baseball, where there is smoke, there is fire.

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Oklahoma State Wide Receiver Justin Blackmon was arrested for charges of driving under the influence early Tuesday morning. Blackmon had been at the New York Giants vs. Dallas Cowboys game with some friends, and was pulled over for driving 92 MPH in a 60 MPH zone. During field sobriety tests, the officer detected the presence of alcohol. It does not appear that Blackmon was given a breathalyzer test. However, since he is only 20 years old, any detectable amount of alcohol is unlawful.

The Denton County District Attorney reported that the DUI charge is a Class C misdemeanor, likened the charge to a "traffic ticket," and stated that Blackmon faces only a $500 fine. 

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Vancouver Canucks forward Ryan Rypien got a 6 game suspension for attacking a fan during a game. But his troubles are far from over.

The fan who was attacked, 28-year-old James Engquist, told the Minneapolis Star Tribune that he is planning taking legal action against Rypien. That's what happens to a professional athlete who does a stupid thing.

"Crossing the white line" by a player can make an athlete subject to a lawsuit. If the fan can actually prove damages, Rypein may be looking at the legal penalty box.

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First full disclosure: I am a Mets season ticket holder. Second full disclosure: if the Rangers and Giants wins their series' our long national nightmare is over.

Now on to the Mets' deal with their troubled closer, Francisco Rodriguez. Apparently, the labor settlement with the MLB Players' Union and the Mets allows the Mets to keep KRod' pay for his suspension (about $3 million) if the Mets give up their desire to convert KRod's last year of his contract to a non-guaranteed status.

This settlement makes no sense for the Mets for two reasons. First, KRod is still a criminal defendant charged with assault of his father in law and violating his order of protection. While it is extremely unlikely that KRod will ever do any jail time for these offenses, wouldn't you make sure of it first?

Secondly, the Mets made the wrong deal. KRod's actions were so wrong and outrageous, the Mets would certainly have the upper hand in an arbitration regarding the team's decision to suspend him and withhold his pay. The Mets should have insisted that KRod's investing option if he finishes 55 games next year should be voided if the team would agree to pay the last year his contract (if any and only if Rodriguez's criminal case was concluded). The voiding of the investing clause would have saved the Mets over $11 million and guaranteed that KRod was in the last year of his deal.

Maybe if KRod was pitching for a new contract he might have enough incentive to get his anger issues under control

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The NBA has decided to push its officials to issue more technical fouls with corresponding fines against its players. For its part, the NBA Player’s Union has decided to push back.

Billy Hunter, the Executive Director of the Union stated that the players will “file an appropriate legal challenge” to the league’s decision. For the moment that means a formal labor grievance for acts the Union now describes as “unnecessary” and an “unwarranted overreaction.”

So why is the Union ready to institute a legal fight on technical fouls? The answer is because these fouls are getting expensive for the players to pay and acting as a new revenue stream for the owners. According to NBA rules a technical foul fine starts at $2000 for the first five infractions and then moves up to $5000 per incident. If you think this a “pittance” for rich basketball players to pay, you may be right, but when you look at how many technical fouls are called around the league (including preseason), each night, the numbers can quickly add up.

The NBA and NFL, for that matter, are both looking at the real potential for lockout in upcoming seasons. In their labor negotiations, the NFL and NBA are seeking that their players to give back part of the shared revenue due to the “down economy” and new stadium costs. As of now the players in both leagues have been resistant to major give backs and seem to want more of shared revenue dollars. The owners can then use technical foul or unsportsmanlike conduct fines to even the score and act as a “tax” against their employees.

The players’ unions, in the NBA and NFL, should get ready to fight this maneuver if it means getting overly legally physical.
 

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Earlier today, NY Jets Cornerback Darrelle Revis was stopped and ticketed for travelling 80 mph (in a 40 mph zone) on Eisenhower Parkway in Livingston, New Jersey.

Since my NJ office is just a stone’s throw from Eisenhower Parkway, I am on this roadway every day. So Darrelle, as a fellow NJ motorist, please cool your jets and drive a lot more carefully.

By the way, if Revis has consulted with me, which he obviously didn’t, I would have told him that Eisenhower Parkway is one big speed trap. Anyway, in the future, FYI Darrelle, the police also pull lots of cars over on Eisenhower Parkway for having an expired inspection sticker, so beware.

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We regret to report that things have gone from bad to worse for Sara Saco-Vertiz, a/k/a the “Foul Ball Girl.” Saco-Vertiz first received national headlines when, during a Houston Astros game, her boyfriend ducked out of the way of an incoming foul ball that wound up hitting her instead. After that incident, she had racy photos posted online that caused a stir. Now, she has been the subject of police action.

According to news reports, Saco-Vertiz, age 19, was stopped by Florida police for underage drinking. After the stop, she allegedly lied about her age and told the police she was from Buffalo, NY. When police questioned her about her knowledge of the Buffalo Sabers hockey team, she replied that she was a Dallas Cowboys fan. Failure.

Having recently been to Buffalo, I learned 2 important things. First, they know their hockey. They are hockey crazy, being in the same division as the Toronto Maple Leafs, Boston Bruins and Montreal Canadians. Second, the Cowboys beat the Buffalo Bills in a Super Bowl which should cause deep hatred of that team from Texas. Lucky, she did not get arrested in Buffalo, they would have thrown the book at her.

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From all the news coverage about Viking's (and former Jets) QB Brett Favre lurid text messages to Jets' former employee Jenn Sterger, you would think she has unleashed a massive sexual harassment lawsuit against the Jets and Favre.
But as on now, Sterger hasn't sued the Jets or Favre for anything. Given that Favre's alleged harassment may go back to August of 2008, we note that Sterger has 3 years (under NY law) to sue. Even though we don't know all the precise dates of Favre's alleged misconduct, it appears that Sterger may have burned the majority of her statute of limitations time.

So what's causing the delay of the legal game? Well, it's always good water-cooler talk to discuss sordid cases, but a civil lawsuit requires two factors to survive, liability and damages. So let's assume the Jets and/or Favre are liable for the moment.

In this case then, what are Sterger's damages? And I mean quantifiable money damages here. Does she have proof that the Jets (or Favre) retaliated in the workplace for her failure to accept his unwanted advances? Did she not receive a promotion or fail to get a raise? The facts appear that she left the employ of the Jets as an "in-game host" to accept a job as co-host of a show with the Versus network. In addition, Jenn Sterger's own website states that she has finished 2 feature films (in 2009). Based, on all this, it looks like Sterger is doing better than ever with her career and presumably her income as well. We stress that none of these facts should downplay Favre's alleged conduct (or the severe punishment he should receive from the NFL these allegations are true), but you must keep the issue of provable damages in mind.

Sterger may have a "damages problem" in a potential lawsuit. This doesn't mean that her case has no merit especially if Favre's alleged acts are true (as they would be indefensible). But unless she is treating with a psychotherapist relating to Favre's alleged outrageous conduct, her case just might not be worth that much money.

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Following The Cincinatti Bengals loss to The Tampa Bay Buccaneers, cornerback Adam "Pacman" Jones was involved in an incident which ended with him in handcuffs.  According to a witness, Jones swerved onto a sidewalk near Great American Ball Park to avoid a car from hitting his, and struck a pedestrian.  Although Jones has had a troubled past with the law, it appears the police made a mistake in detaining Jones.  Jones was held for over 45 minutes before police realized they had mad an error and arrested the wrong Adam Jones.  Apparently, the police mixed "Pacman" up with another Adam Jones who had outstanding warrants.

So should "Pacman" retaliate against police and pursue false arrest and unlawful imprisonment claims against Cincinatti PD?  Jones's agent has already released a statement which clearly expresses both his and Jones' displeasure with the way Jones was treated.  But with all the work "Pacman" has done to overcome his image issues, he may be better off staying out of the public eye and letting this one go.

Stay tuned to see if "Pacman" will "make it rain".......

Photo courtesy cincinnati.247.sports

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According to sources, both Jenn Sterger and the New York Jets are working closely and willing to cooperate with the NFL's ongoing investigation of Brett Favre.  Although Sterger will cooperate, she has yet to come out and express interest in pursuing sexual harassment charges against Favre.  It will be interesting to see how many more incidents or accusations arise from this story.  With two massage therapists already emerging, it certainly makes you wonder if there were any other incidents in Green Bay, Atlanta, or Minnesota.  Stories like this one usually will turn into a chain reaction.  If you don't agree, just ask Tiger Woods.  

Speaking of Tiger Woods, wouldn't you think Brett Favre would have learned from his mistakes?  Back in January, there were reports that Wood's wife Elin was hiding out in Favre's house during a visit to Mississippi.  Obviously Favre missed the memo that sending text messages can get you into deep trouble and scar your career.  How will this change Favre's stance with fans, media, and sponsors?  Tiger took an enormous hit and if Favre's wife comes out with confirmation and displeasure like Wood's did, it will only make it worse for Favre.  Deanna Favre (Brett's wife) will always be remembered for her appearance on Monday Night Football in 2003, where she spoke about her fight against breast cancer and her support for her husband after his performance following his father's death.  Deanna was embraced by America and engrained into the minds of NFL fans as a strong, supportive, woman.  It will be interesting to see what her reaction is to this disaster as so many came out to support Elin in her time of public trauma.

It will be interesting to see how this story progresses.  Given Favre's reputation, all signs point to a teary press conference and a possible retirement.  But will the commissioner act before Favre does?  Only time will tell.

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Yesterday, Brett Favre’s (the quarterback of the Minnesota Vikings) role in a potential (and very serious) sexual harassment case blew up and went viral on the internet. On its website, Deadspin.com produced a series of alleged voicemails and graphic photos allegedly sent from Favre seeking to start an affair with Jenn Sterger. The web has now posted countless articles about Favre committing “sexual harassment” in the workplace. As you know, we (at Sportsinthecourtsblog) don’t mind getting a little technical from time to time.

So what really is sexual harassment in the workplace?

According to Federal Law and the EEOC, sexual harassment, in the workplace, occurs when “one employee makes, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, to another employee, against his or her wishes.” The key here is this offensive “conduct” must be “severe” or “pervasive.” Sexual harassment in the workplace does not include a single “normal” occurrence such as request for a date. Sexual harassment creates an acceptable “hostile workplace environment” where the victim may be retaliated against for not accepting an unwanted advance.

Why is this important?

At the time of the alleged sexual harassment, Brett Favre was an employee (yes, a professional athlete is actually an employee) of the New York Jets, and as such, subject to rules and regulations like the NFL’s policies and applicable laws against this type of behavior. In addition, it appears that Jenn Sterger was employed by the Jets as “game hostess” when the incidents occurred. Even more troubling is increasing allegations that other Jets employees may have know about Favre’s inappropriate conduct and tried to act as an intermediary for the star quarterback. Not to mention that Favre may also have harassed 2 other Jet’s massage therapists at the Jets’ training facility. In the “you can’t make it up” category, Favre’s Vikings are back in the meadowlands this Monday night to face the Jets.

Why is this huge a mess?

We are not going into the potential that Favre texted naked pictures to Sterger, that’s for other websites to deal with. But, if the allegations of Favre’s action are true, this must be handled with by the Jets and the NFL (since Favre is no longer a Jet) in a historically severe way. It is an understatement to say that Favre’s alleged conduct is unacceptable in the workplace (or anywhere for that matter). We have seen enough of cyber bullying in New Jersey and trouble in the workplace with the Jets (see Ines Sainz) to signal that harassment through the internet and texting has spun out of control.

The NFL employs former FBI agents in its famous NFL security force. On Friday, the news broke that the NFL was investigating the allegations against Favre. The league darn well better be. The NFL must use its impressive resources and financial power to get to the truth here. If the allegations prove correct, Favre’s penalty should make Ben Roethlisberger’s look like a slap on the wrist. The NFL owes its fans the truth no matter if the accused player has a ticket for Canton (or maybe not). The NFL spent last week marketing itself to women by wearing pink jerseys and raising awareness of breast cancer.  (Not to mention Favre's wife wrote a book called "Don't Bet Against Me! Beating the Odds Against Breast Cancer and in Life.")  Good luck with that ad campaign if the NFL sanctions or covers-up workplace sexual harassment.

One more thought of importance also requires a view on Sterger’s “post-incident” conduct. While she is denying giving any information to Deadspin or any other website, if it’s true, how did they get it? Sterger has an obligation to turn over all her evidence to the NFL and to fully cooperate with this investigation. She has a responsibility not to treat this incident as a story for the tabloids but (if true) a very serious and repugnant instance of sexual harassment that must be punished.

More to come …

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Not that college from sunny California, the other “SC”, the University of South Carolina.

Yesterday, the Supreme Court of the United States refused to hear the appeal of South Carolina in its 13 year battle to use a logo with an interlocking “SC” letters similar to the University of Southern California’s famous “SC.” This decision ended one of the longest trade mark battles ever between football power universities.
The Trojans, the real “SC” I guess, argued that its interlocking “SC” logo was its legal trademark and that another interlocking logo from South Carolina would only cause confusion in the marketplace. However, the Gamecocks countered that a real fan should know the difference between the two schools and their logos.

The Supreme Court, in refusing to hear the Gamecocks appeal, adopted that argument that the Trojans “owned” the interlocking “SC” and it was theirs to keep.

In the end, the Trojans were successful blocking the Gamecocks from infringing on their legal trademark territory.

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