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

In a landmark decision affecting the game of Golf, the NY Court of Appeals (the highest court in the state) decided that there is no liability against a golfer who doesn’t yell “fore” after hitting a bad shot.

According to the lawsuit, two men, Dr. Anoop Kapoor and Dr. Azad Anand were playing golf on a course on Long Island, New York. At some point, Dr. Anand went to look for his ball when he was struck by a shanked shot from Kapoor. The injury was so severe that Dr. Anand, a neuroradiologist, was blinded in one eye and claimed he could no longer work. In his action, Anand claimed that he did not receive the customary “fore” warning from Kapoor after he “shanked one.”

The NY high court found that a “shanked” shot was a commonly appreciated risk of golf and that a golfer consents to certain risks when he chooses to play. However, the court also determined that a golfer will not assume the risk of intentional conduct (like being purposely struck on the head with driver after someone tees off badly).

As a practicing lawyer and horrid golfer, I take two important things from this decision. First, if you shank one (which I do all the time), don’t say anything and just quietly try to hit another one, and second, without the rule to yell “fore” golf just got a lot scarier. 

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After a Jets loss in Seattle on December 21, 2008, defensive end Shaun Ellis was caught tossing a large block of snow into the Seattle stands at a fan who was taunting the Jets on their way out off the field.  Following the incident, Ellis was fined $10,000 for his behavior by the NFL.  Two years later, the fan, Robert Larsen has filed a lawsuit.  Larsen is suing for physical injury, humiliation, mental distress, pain, and wage loss from the incident.  When being questioned by reporters, Ellis was nonchalant about the lawsuit and said he was only aware of it because of a text message sent to him.  In the video that was taken by another fan, it is clear not only does another New York Jet throw a snowball at the same fan, but the fan appears to celebrate when Ellis tosses the snow into the stands.  In addition, the Jets players are being pelted by the Seattle fans.  

If anything, Larsen seems to take pleasure in both taunting and being recognized by the Jets players.   Evidence of lost wages, physical injury, humiliation, mental distress, and pain should be pretty interesting to see.  This looks like a far fetched lawsuit that is the product of a fan overstepping their boundaries.  The New York Jets franchise can't seem to stay out of the headlines recently, but this one may be a stretch.

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The Virginia Prosecutor alleges that former student, George Huguely murdered ex-lacrosse star, Yeardley Love by inflicting blunt force trauma to her head. Now, we have learned that Huguely’s defense team has a different theory concerning Love’s death.

Huguely has hired his own expert pathologist who claims that Love’s death may not have been caused by an injury but by her use of alcohol and the drug Adderall (used to treat HDAD). Huguely’s defense team is investigating whether the combination of alcohol and this prescription drug caused Love’s heart to stop. Also, Huguely’s defense attorney’s now disputing that Love sustained a traumatic brain injury. To prove this defense claim, Huguely’s attorney, Francis Lawrence is seeking access to Love’s medical records. Not surprisingly the prosecutor and Love’s family are against any disclosure of the victim’s medical history.

As of now, the judge has decided that he will review Love’s medical records, in camera (or in chambers by himself), to determine what evidence is relevant and should be given to the defense.

As a former prosecutor, although painful, you have to be very careful with this defense request for information. No prosecutor wants to see the victim’s privacy invaded (even if the victim is deceased). However, the truth is that Mr. Huguely is on trial for his life and, at this point, he is presumed innocent. As a matter of law, Huguely’s presumption of innocence can only be destroyed after a jury deliberates his fate. Until that time, he has the absolute right to put on a vigorous defense to attack the prosecutor’s case.

Given this legal fact, if the court does not take every precaution to protect Huguely’s rights and ability to put on his defense, then the court will have committed error and any conviction will be subject to reversal. This not the situation the prosecution wants to face. There is no question that non-relevant medical evidence should be excluded from the trial but any close calls must be decided in Huguely’s favor. If the prosecutor is too aggressive in seeking to exclude evidence then he may actually have sabotaged his own case before it begins.

At times, the presumption of evidence can be a difficult concept especially in a case like this. But the belief of “innocent before being proven guilty” is the cornerstone of our legal system. Think of about it, if you were ever wrongly accused of a crime would you want to be “presumed innocent?”
 

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For more than thirty years, Anheuser-Busch has been the official sponsor of Major League Baseball in the malt beverage category. The agreement is set to expire at the end of the year, though Anheuser claims - in a recent lawsuit - that it reached a renewal agreement with MLB in April . Specifically, Anheuser alleges that MLB sent a written proposal to Anheuser, which Anheuser signed and returned to MLB. MLB also signed the agreement, sent it back to Anheuser, and both sides congratulated each other. According to Anheuser, although MLB was supposed to prepare a complete contract, it never did so. Anheuser decided to draft the contract in September, and after it was sent to MLB, Anheuser was informed that the agreement was not binding, and MLB planned to offer sponsorship rights to Anheuser’s competitors.

Also, on May 4, 2010, Anheuser revealed that it was to become the official and exclusive beer sponsor of the NFL, starting with the 2011 season. Anheuser alleges that, once this deal was announced, MLB then claimed that the economic terms of the April renewal were no longer satisfactory and that the market had changed. According to Anheuser, MLB eventually demanded that Anheuser pay a “rights fee” several times the amount that was already agreed upon.

Asserting that monetary damages can not adequately compensate it, Anheuser asks the court to declare that the April renewal agreement is a valid and binding contract, and also that any agreement between MLB and an Anheuser competitor would violate Anheuser’s exclusive sponsorship rights.

MLB answered last week, and responded that Anheuser made representations to MLB that MLB would remain Anheuser’s “number one” sports property in the U.S. In light of Anheuser’s subsequent announcement regarding its agreement with the NFL, MLB claims it was “fraudulently induced” to sign the April agreement, which MLB claims is a mere “Letter of Intent.” As a result, MLB asserted a counterclaim against Anheuser, seeking a declaration that the April Letter of Intent is not binding upon MLB. MLB points to the April Letter of Intent itself, which expressly acknowledges that certain terms and conditions must be agreed upon in the future to complete the agreement.

Under certain circumstances, a Letter of Intent may constitute a binding contract in New York, especially if the essential terms have been agreed upon. On the other hand, if the April document is merely an “agreement to agree in the future,” it will not bind MLB. A complete reading will be necessary to assess the merits of Anheuser’s suit. If the Letter of Intent is binding, MLB will then have to show that it relied upon Anheuser’s representations that MLB was its “number one” sports property, and to MLB’s detriment.

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If you haven't noticed, the NFL TV ratings have been terrific this season. Amongst the coveted 18-49 demographic, right now the 2 highest rated "TV shows" are NBC's Sunday Night Football and ESPN's Monday Night Football. In fact, Sunday's Eagles/Cowboys game had some of the best ratings in NFL prime time history. By most estimates, the NFL is generating $3 billion in advertising revenue for the networks (who paid dearly to get the sports programming).

So what could be wrong? Well, for the TV networks, if there is no labor peace, the ratings wheels are about to come off.

If the NFL 2011 season begins with a lockout, the league's TV networks will be immediately begin bleeding money.  Their ratings will plummet without the NFL's inventory of games. With no other choice, the networks must put enormous pressure on the owners and players to make sure a work (and ratings) stoppage never happens.

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The United States government announced that it will not ask the Supreme Court to review a September decision by the Ninth Circuit Court of Appeals, which ordered the government to return information relating to over 100 MLB players who had apparently tested positive for banned substances including steroids.

In 2002, the government began investigating BALCO, which it suspected of providing steroids to MLB players. That year, MLB and the players’ union agreed to conduct random drug testing, with the caveat that the results were to remain anonymous and confidential. The purpose of the drug testing was to evaluate the extent of banned substance usage among MLB players - if testing determined that more than 5% of players were using banned substances, MLB would continue testing the following season.

During the investigation, the government obtained evidence that 10 players had tested positive, and secured a grand jury subpoena for all records at the testing facility, CDT. CDT and the players’ union filed a motion to quash the subpoena (which prevents the information from being turned over until a court has the opportunity to rule on the legality and parameters of the subpoena), and the government then obtained a warrant to seize records pertaining only to those 10 players.

Instead, the government went far beyond the scope of the warrant, and removed an entire electronic file in CDT’s possession which contained information on approximately 100 MLB players and other athletes. The government argued that the data could not be segregated at CDT’s facility. Further, since the data on the other athletes was in “plain view,” the government contended that the documentation was appropriately seized and could be used against those athletes. The “plain view doctrine” permits law enforcement officers to seize evidence that is within the officer’s “plain view” while that officer is lawfully present. For example, if an officer has a warrant to search your bedroom for a certain item, and observes drugs on a table in the hallway, that evidence can be seized and used against you, but the officer cannot look through drawers in the hallway, unless the warrant authorizes same or the officer otherwise has probable cause to look there.

The Court of Appeals held that, if it accepted the government’s proposition, then everything the government chooses to seize will automatically come into plain view when searching for evidence electronically. The government also failed to have computer personnel conduct the initial review and segregate the materials that were not the subject of the warrant. The effect of this decision is that the evidence obtained by the government cannot be used against any of the athletes except for those ten MLB players, as it was unlawfully obtained and would be excluded. There are some exceptions (the evidence can still be used to impeach the athlete’s testimony, if the athlete chooses to testify), none of which appear to apply here. Instead, the government will have to uncover additional evidence unrelated to what it discovered at CDT. 

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Derrell Johnson-Koulianos, a wide receiver at the University of Iowa, was charged with possession of marijuana and cocaine, running a drug house and unlawful possession of prescription drugs. Johnson-Koulianos, who was just named to the All-Big Ten first team, has seriously hurt his chances at being drafted into the NFL. According to police, Johnson-Koulianos permitted drugs to be used and likely sold from his home, located near campus. Johnson-Koulianos was also charged with possession of small amounts of marijuana, cocaine and prescription drugs, and even failed a drug test that he voluntarily submitted to.

Also, Jamal Atofau and Andre Barrington were cut from the Washington State football team after being formally charged with manufacture of a controlled substance. Police officers found 38 marijuana plants in their rental home in October. Finally, Greg McKee, a UConn offensive lineman, turned himself into police on a charge of felony child pornography, after allegedly uploading such materials to his computer. Police claim they uncovered evidence on a computer during a November search of McKee's dorm room. Police further allege that McKee shared a video depicting children between 8 and 15 years old engaging in sexual activities.  

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Due to the "voluminous" evidence that has been produced in the Roger Clemens investigation, a judge has pushed back the trial to July.

Prosecutors have produced over 54,000 pages of evidence.  The prosecution is required to provide Clemens' attorney Rusty Hardin with all documents for review prior to trial.  Hardin said he needed additional time to review the documents and retain experts to examine the scientific portion of the findings.  Hardin also said he is having difficulty obtaining materials from MLB investigator George Mitchell and the congressional panel.  Attorney-client privilege issues are preventing the production of the documents to Hardin.  Hardin will request a subpoena for the materials.

The Clemens trial was scheduled to begin in April, and has now been pushed back to July.  Hardin originally requested the trial be delayed until September, but prosecutor Steve Durham asked for it to only be put off until June.  Judge Walton told Clemens' legal team jury selection will start on July 6th.  

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Irving Picard, the Trustee appointed by the court to recover and distribute Bernard Madoff's assets, has filed suit in Bankruptcy Court against Fred Wilpon, owner of the New York Mets, and Sterling Equities, his real estate investment company ("Wilpon"). Mr. Picard claims that Wilpon withdrew more money than it deposited with Madoff, therefore actually making $48 million through "investments" with Madoff. Mr. Picard has filed several similar suits against those who have withdrawn more money than they deposited, and in fact, recently settled one of these suits for $625 million.

Although Wilpon and others challenged Mr. Picard's formula in the main action, Judge Burton Lifland decided that the calculation was the most appropriate manner in which to determine gains/losses (essentially, those who withdrew more than they deposited, claimed the Trustee should take into account their statements from Madoff which falsely showed significant investment gains, which they relied upon in withdrawing/spending their money, compared with those who deposited more than they withdrew, many of whom simply hope to regain some of their actual losses).

The suit against Wilpon was filed under seal, since Wilpon and Mr. Picard are apparently engaged in settlement negotiations. However, a class action lawsuit filed in July on behalf of participants in the Sterling employees' 401k plan (in which it is claimed Sterling breached its fiduciary duty to properly manage the assets of the plan, which were depleted because the assets were overwhelmingly invested with Madoff), a copy of which can be seen here, provides many interesting details.

Expect Wilpon to resolve both matters. Although Wilpon may not have been aware that Madoff's investment results were false, Mr. Picard will contend that he should have known that the results were unrealistic, and further, it is clear that the investment gains belong to other Madoff "clients" who were less fortunate than Wilpon in the Ponzi scheme. It would also not look good if Wilpon allows his employees' retirement funds to be wiped away, when he has made statements to the media that he and his family are "fine." Wilpon has until December 15, 2010 to answer the class action lawsuit filed in the Southern District of New York. 

photos courtesy of coreynyc

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While rumors claim that the NFL owners and NFL Players Association (NFLPA) are still negotiating, by its recent moves the NFLPA is not exactly showing its holiday spirit.

In a letter to its players, the union told the players to save their last 2 game checks as the “internal” deadline for an agreement had now passed. The union fears that the NFL will lockout its players when the current CBA expires on March 3, 2011. Apparently, the NFLPA must feel it’s time to do some more serious saber rattling.

There are now reports that the union may file a collusion case against the owners charging that the league had an agreement (amongst the owners) to keep players’ salaries low by not signing free agents to large long term deals. Under the CBA, the collusion case must be filed this week, however, the details of the NFLPA’s claims are still unknown.

During labor negotiations, one side may feel that the process simply isn’t moving fast enough. When this occurs, a party, like the NFLPA, may start to take actions to prime the pump of faster negotiations. This week the NFLPA started acting inpatient with the NFL owners.

The real downside to the union’s “impatience” could be retaliation by owners and a labor stalemate. In the end, negotiations will go down to the wire (like they always do) and the sides are going to have to decide if there is enough money for everyone.
 

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Bobby Gonzalez, former Seton Hall men's basketball coach, resolved his pending criminal shoplifting and mischief charges by entering a pretrial intervention program ("PTI"), requiring Gonzalez to complete 50 hours of community service, pay restitution, and otherwise comply with the terms of the PTI program. Gonzalez was accused of shoplifting a $1,400 satchel from a store in the Short Hills Mall on June 29, 2010, only a few months after being fired as Seton Hall's coach.

The PTI program is offered to most first time alleged offenders, and if Gonzalez does not comply with the conditions imposed by PTI, the case will proceed against him. If he does complete the program, the charges will be dismissed.

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Well, yes.

Although many news outlets and legal commentators are repeating that Mets’ closer, Francisco Rodriguez, was “facing two years in jail”, the truth is he really never was. Very very few criminal defendants ever go to prison who commit misdemeanors in NYC. As a former prosecutor, I can tell you that only the rare “serious” assault, “close to felony weight” drug offenses or serial prostitution contestants ever see misdemeanor jail time. Most “garden variety” misdemeanor assault cases may not even end with a criminal conviction.

Today, KRod failed to save his criminal record and now has a “B” misdemeanor on his rap sheet. Most misdemeanor pleas involve fines, community service and/or probation. But here K-Rod paid a much heavier price. This incident caused the Mets withhold $3.1 million of his salary. Now if you consider this part of his penalty, there can be no question that K-Rod has been punished. Not to mention, Rodriguez still faces a civil suit from his father-in-law (seeking money damages) and a custody battle with his girlfriend.

To have any success in 2011, K-Rod needed to have his criminal case behind him (and so did the Mets). The penalty here seems to fit the crime and in the case of professional athletes that is unusual and just. 

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As expected, Jim Leyritz was not sentenced to any additional jail time today, and instead wasgiven one year of probation and a $500 fine. The prosecutor had asked the Judge to send Leyritz to jail for four (4) months, but the defense responded that it was Leyritz’s first offense. The Judge did inform Leyritz that if he violated the conditions of probation, he would give Leyritz the maximum jail sentence. Leyritz also must complete 50 hours of community service.

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While the FBI and state investigations are continuing, the NCAA took it upon itself to rush to a decision concerning the Cam Newton pay-for-play fiasco.  The NCAA concluded that Cecil Newton tried to broker his son's football services for $180,000 to Mississippi State.  But NCAA concluded that there is no evidence "at this time" that Cam was involved in the scheme.  As a result, Cam Newton is eligible to play for Auburn in the SEC title game on Saturday.

Here's, the major problem and potential disaster for amateur sports from the NCAA's haste, the NCAA has turned any ill-minded parent of a star athlete into an immediate sports agent.  If a parent (or any person really) can deliver a star athlete for a price then there is no downside as long as the student "doesn't know."  If the parent gets caught then oh well, the kid gets to play anyway.  If the parent doesn't get caught then the athlete's family can have a nice pay day.  This loophole, created by the NCAA, means there are new "agents" all over college sports.

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The LPGA just voted to remove a requirement in its bylaws that members must be born female.  A 57 year old transgender female, Lana Lawless, recently filed a lawsuit in California against the LPGA , contending that this requirement violated California law.  The LPGA claims that the lawsuit merely forced the LPGA to look at the issue now.  The vote was reportedly overwhelmingly in favor of removing the requirement

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