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

The family of Bennie Abram, an Ole Miss football player who died after an offseason workout, has served the University with a Notice of Claim, a statutory prerequisite to filing a lawsuit against a public entity in Missouri such as Ole Miss.  Abram collapsed during a February, 2010 workout and died six hours later. An autopsy determined that his death was caused by complications involving sickle cell trait (“SCT”).

SCT primarily affects African-Americans, and during periods of high exertion, athletes with the trait must exercise caution. The letter from the Lanier law firm of Houston, Texas, claims that Ole Miss failed to follow NCAA guidelines for monitoring athletes with SCT. The Lanier law firm settled a similar case against the NCAA on behalf of the family of a Rice player with SCT in 2009, which led to the NCAA mandating testing for SCT.

The letter from the Lanier firm goes far beyond what information Mississippi law requires a Notice of Claim to contain. It is obviously designed to paint Ole Miss and its coaching staff in a negative light through the media. However, if some of the allegations are true, Ole Miss could be legally liable for Abram’s death. Abram’s family must show that Ole Miss departed from the standard of care that it was required to follow for athletes with SCT.

On the other hand, just because Abram died during a football workout does not make Ole Miss or anyone else responsible. Assuming Abram was advised of his diagnosis (and there is no indication he wasn’t), he chose to play football, an inherently intense sport. If the coaching staff followed NCAA guidelines and the applicable standard of care, it satisfied its duty to Abram. The issue of whether the parents were notified of the diagnosis (they are not entitled to that information without Abram’s permission), how the University treated Abram’s parents or responded to the death, and where the coach was while Abram was in the hospital, have nothing to do with the cause or contributing factor(s) to his death.

It should be noted that Missouri caps the damages that the University can be responsible for at $500,000. This would not apply to any other defendants who are not University employees, as the limitation applies only to public entities/employees.
 

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At our blog, we try to shed light on the "intersection" of the law and sports. The Madoff scandal and the impact on the ownership of the NY Mets is pretty much in our sweet spot.

As this story broke over the last few days, the rumors have been swirling. Does Fred Wilpon owe the government a billion dollars from false profits obtained by Madoff? Are the Mets in financial ruin? Is this the beginning of the end of the Wilpon family ownership of the Mets?

If you look at this situation closer (and avoid the rumors) you might be able to draw some fair theories about what is really going on here.

First, the Wilpons were not Madoff "victims" in the sense that he wiped them out. On the contrary, the Wilpons are clearly Madoff "winners" as the bankruptcy trustee, Irving Picard, has them in his sights to recover money. Picard's duties are to gathering up (or claw back) every cent of improper profits (most likely collected by innocent investors) and pool that money to help those who have lost everything. Since the Wilpons are being chased for money, they were not crushed by Madoff's misdeeds until now.

Second, the Wilpons have had negotiations with Picard to settle the government's claim. While this is certainly complicated, it is likely that Picard told the Wilpons the number (maybe with a discount) that will buy their piece. Obviously, the Wilpons do not have enough personal funds to cover that settlement number so the family must sell an asset.

It is important to consider, that it may be possible that the Wilpon's financial advisers have been suggesting something like this partial sale for a long time. There are very few franchises owned by a single family in professional sports. The Steinbrenner's don't even own 40% of the Yankees. When faced with a financial crises the Wilpon are selling shares in the Mets just like a building going condo. It makes sense, it can solve the problem. The sale will raise funds and allow them to keep control of the team. All of this shows, Fred Wilpon is a victim here. He should have to sell part of the Mets but to ensure his family's financial future, he has no choice.

On the baseball side, it is impossible to know whether the Wilpon's finances will hurt the team on the field. Remember, the Wilpons don't have to explain their financial situation to anyone (and that's the way it should be). In 2010, the Mets have a huge payroll that will be poorly spent on many bad (but expiring) contracts, see Oliver Perez and Luis Castillo. By 2011, the Mets are set to shed nearly $50 million in salary. If team goes out and signs new players then all is well, if the New York Mets turn into the Florida Marlins (at least payroll-wise), then a sad financial truth will be known.
 

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Federal Judge Reggie Walton has ordered that he will hear oral argument on February 2, 2011 on whether Rusty Hardin, the Rocket's lawyer, should be disqualified from representing Clemens at trial. The government contends that, on prior occasions, Hardin has spoken privatively with Yankee pitcher, Andy Pettitte.

The problem is that Pettitte is the star government witness against his old buddy Clemens. Pettitte can testify that Clemens lied to Congress when he denied using steroids since Pettitte already knew Clemens was a cheater.

If Pettitte is a prime government witness at a trial then Hardin would cross-examine him. However, Judge Walton may stop that from happening. If the court finds that Hardin formed an attorney-client relationship with Pettitte then Hardin has a conflict of interest in this case.

If Clemens' lawyer has a conflict, strike three, he's out.

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Stafon Johnson has filed a lawsuit against the University of Southern California, arising out of a weightlifting accident that occurred on September 28, 2009 (Complaint, courtesy of TMZ). At the time, Johnson was USC's leading rusher.

Johnson claims that Jamie Yanchar, the strength and conditioning coach, was "spotting" Johnson while he was bench pressing 275 lbs. The Complaint states that "the bar was dropped, hit, and/or fell onto Johnson's neck" due to Yanchar's negligent or reckless conduct, causing Johnson's severe injuries. Specifically, Johnson alleges that Yanchar was not paying attention as Johnson lifted the bar from the weight rack and instead was watching other football players, and Yanchar hit the bar with his own body before Johnson was able to obtain a full grip, causing the bar to slip from Johnson's hands.

Johnson sustained a fractured larynx and acute airway obstruction, crushing his voice box, and degloving the lining of the larynx, which required surgical intervention. He has recovered, and although he was not selected in the 2010 NFL draft, Johnson signed a contract with the Tennessee Titans. Unfortunately, his ankle was severely dislocated in a preseason game and he was placed on injured reserve.

If Yanchar did hit the bar causing it to slip, even accidentally, Yanchar and USC could be liable. According to Brian Reintgen, a Strength and Conditioning Coach at Lifetime Athletic in Berkeley Heights, NJ, the coach/trainer's first and most important responsibility is to ensure that the client (in this case, Johnson) is not injured. Unless Johnson was taught to grip the bar improperly, it should not have slipped out of his hand. However, the coach/trainer must have his hands close to the bar just in case a "slippage" occurs as it did here.

There will certainly be witnesses who will be deposed, and it is difficult to imagine that an investigation was not conducted after the accident, which should have included a statement by Yancha.  In a November 2010 interview, Johnson would not disclose specifics as to how the weight bar fell, and refused to discuss whether Yanchar made a mistake or whether anyone else was at fault. The University has issued a statement denying liability for the accident. 

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With the Barry Bonds perjury trial set to begin in March, Bonds’ attorneys and the government are sparring over what evidence the jury will be permitted to hear.

Last June, a United States Appeals Court ruled that the government could not use various evidentiary items - including urine test results - because trainer Greg Anderson, who brought the samples to BALCO for testing, refuses to testify against Bonds. Therefore, the results could not be properly authenticated.  Without Anderson (and Bonds, since he does not have to testify against himself), it is impossible to prove that the urine samples actually came from Bonds. Since that ruling, the prosecution has rebuilt its case based upon different evidence.

To be “clear,” Bonds is not being prosecuted for using steroids. Rather, in 2003 when BALCO was being investigated, Bonds gave testimony to a grand jury, and denied knowingly taking steroids. In 2004, Anderson pled guilty for illegal steroid distribution, and admitted to providing athletes with performance enhancing drugs. Bonds is now being prosecuted for perjury in connection with his grand jury testimony.

The government intends to call other professional athletes to testify regarding their respective relationships with Anderson, including Jason Giambi. Many of these athletes will testify that Anderson supplied them with drugs, and actually told them that the substances were illegal steroids. The government’s witness list also includes Kimberly Bell, Bonds’ former girlfriend, who is expected to testify that Bonds admitted taking steroids prior to the 2000 season, and will also testify regarding her observations as to “changes” in Bonds’ body. Bobby Estalella, a former SF Giant, is also expected to testify that Bonds admitted using performance enhancing drugs.

Bonds admitted in his grand jury testimony that he took items given to him by Anderson, including vitamins, protein shakes, and a cream. However, Bonds claimed he had no knowledge that these items contained steroids. The government must prove beyond a reasonable doubt that Bonds knew his statements were false, and that he knew his testimony was capable of influencing the decision of the grand jury whether or not to indict Anderson. It will be interesting to monitor the government’s case, and what evidence it is permitted to introduce. Anderson will also be given another chance to testify against Bonds before trial begins.

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Adding to the laundry list of honorable Dallas Cowboy alumni, Terry Glenn was arrested again, this time for allegedly driving while intoxicated, as well as being in possession of marijuana. Glenn, who started his career with New England and played the last five years of his career in Dallas, was also arrested last year for allegedly failing to return a rental car, although his attorney claimed that it was a misunderstanding. Glenn has previously been arrested for alleged public intoxication and possession of marijuana (2009), allegedly assaulting the mother of his five year old child (2001), and other indecency and intoxication charges throughout the years.

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Until now the Barry Bonds defense team has been doing pretty well. They have successfully convinced the court to exclude certain incriminating documents from the use of prosecutors against Bonds. But most importantly, Bonds' former trainer, Greg Anderson, remains uncooperative with the prosecution and subject to incarceration for his silence.

Most observers believe that Anderson is the lynch-pin to the case against Bonds. Anderson may be able to testify that he was the one who supplied steroids to Bonds and that there was a connection to BALCO.

Now the prosecution may have another way to connect Bonds to steroids and BALCO. Judge Susan Illston has ruled that the prosecution may call other "juicing" players, including Jason and Jeremy Giambi, to testify about how they got steroids and the role BALCO and Anderson played in their alleged cheating. Bonds' attorneys believe all this shows is improper "guilt by association."

However, the prosecution is permitted to show that a criminal defendant, like Bonds, participated in a criminal "common scheme or plan."

As of now, the Feds will parade at least 5 players who can prove a common plan to cheat by using steriods and Bonds' proximity to it.

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Former New England Patriot Laurence Maroney was arrested in St. Louis on Monday after police found weapons and drugs in a car, in which Maroney was a passenger. The weapons officers found include a .45 caliber handgun, a 9mm pistol, and a rifle. Apparently at least one of the weapons belongs to Maroney, as his publicist stated that he (Maroney) has a license to carry a concealed permit.

However, a police spokesperson stated that Missouri Law prohibits possessing a gun while one is under the influence of drugs. Although it is not clear whether Maroney was under the influence, police did find marijuana in the vehicle. TMZ is reporting that Maroney was released without being charged, although that does not necessarily mean he won't eventually face charges. 

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Last month, we wrote that the NY Court of Appeals found no liability against a golfer who fails to yell “fore” after hitting an errant ball. This week, a lawsuit filed in South Carolina claims that a golf course negligently failed to warn the plaintiff as to the presence of large, wild and aggressive alligators (as opposed to the gentlemanly kind). In October of 2009, James Wiencik was playing golf with his son, and hit his ball near a deep pond. While reaching for the ball, a large, ten foot alligator sprung from the water, biting Wiencik's arm and pulling him into the water. Wiencik struggled with the alligator, and his right arm was tragically torn off. As per the Complaint (a copy of which can be seen here, courtesy of Courthouse News, "[t]he alligator swam away, having eaten plaintiff's arm."

Perhaps this story will help discourage those golfers who insist on spending 10 minutes looking for a $2 golf ball.

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Ron Franklin, ESPN anchor who was fired earlier this month for comments directed at a female colleague, filed a wrongful termination lawsuit in a Texas court against ESPN. Before his firing, Franklin apologized for "saying things I shouldn't have." Franklin allegedly referred to sideline reporter Jeannine Edwards as "sweet baby," and when Edwards objected, Franklin then allegedly called her an "ass----."

Although employment is typically "at will," Franklin had an employment contract with ESPN. Franklin claims that his comments did not justify his termination, since they did not violate the "failure to perform" clause of the contract. Without a copy of the contract, it is impossible to evaluate the merits of Franklin's claim. However, it is difficult to believe that there isn't a clause in the contract that would apply to such comments directed at a colleague.

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When former Giants legend, Lawrence Taylor, was arrested his criminal defense team claimed that LT was "set-up" and that certain witnesses were lying. But by LT's own words we now know the truth, he engaged in a criminal act with an underaged girl.

Taylor claims he did not know the female prostitute was underage when he allegedly had sexual intercourse with her in an upstate NY hotel room. But that is not a defense under NY law. In this situation with strong evidence against LT, to get a misdemeanor plea deal (with no jail time), Taylor had to cooperate with the police in underage prostitution investigations.

We know that Taylor will be called upon to testify against the female's alleged brutal pimp, Rasheed Davis, in Davis' criminal case. We will learn, in time, whether Taylor has assisted by providing information on other underage prostitution rings.

As a former NYC prosecutor, I can say that it is somewhat rare that a defendant gets a plea deal in exchange for cooperation in other investigations. This is because the "cooperating defendant" usually will tell you something you already know or give you "information" that just isn't reliable.

Here, Taylor must have satisfied the prosecution that his testimony could deliver a criminal conviction against Davis and maybe even others like him.

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Dear Mr. Alderson,

First, let me say I am a season ticket holder (who has renewed) and a
lifelong Mets' fan. I have suffered greatly through the stunning failures
of the last few seasons. Before that I have attended every playoff game in
2006. Please note that I was encouraged and in favor of your hiring as
general manager.

However, Mr. Alderson, please stop sending these emails. They are only
adding salt to the wounds of the fans. I find them depressing.

If you hadn't noticed the Phillies (a/k/a division champs again) have a
pitching staff of Halladay, Oswalt, Lee, and Hamels. We have a broken
Santana and 4 question marks at best (I won't even mention Mr. Perez). The
Phillies, Braves and Marlins play tough and gritty baseball and we don't.

I sincerely hope you change this situation because I hate the Phillies.
But, in light of this, to tell us you are having some "meetings" and signed
some broken down pitchers is an insult to the beaten-down fan base. We know
the truth, the Mets have a lot of bad contracts and the team will not spend
any significant funds this year. All of this means the likelihood of
62-100. Instead, of sending emails about having a nice meetings and then
telling us that we can't spend more money, please, either stop or detail for
us your plan to compete with and defeat the rest of the NL East THIS year.
Better yet, just stop sending these emails and prove it on the field.

Very truly yours.

Chris Fusco

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Major League Baseball and Anheuser-Busch have resolved the lawsuit recently filed by Anheuser, in which it was claimed that MLB reneged on a renewal agreement that would have extended Anheuser's 30 year run as the official beer sponsor of MLB. The terms of the agreement were not disclosed by either side, but Budweiser will remain the official beer sponsor for the next several years. A stipulation dismissing the lawsuit was filed on Monday.
 

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Back in October of last year, we wrote that if former New York Jets game host Jenn Sterger sued Brett Favre, she may have a problem showing any significant damages as she left the team (after Favre's alleged inappropriate behavior) to host a television show (and presumably made more money).

However, the plaintiffs in the new sexual harrassment suit against Favre, Shannon O'Toole and Christina Scavo, may have "real damages" if their claims are true. Unlike Sterger, the "Favre plaintiffs" lost their jobs, as massage therapists, with the Jets and therefore should have a quantifiable lost wages claim to go along with their sexual harassment allegations.

If the Favre plaintiffs have real and quantifiable damages, then Favre and his legal team may have a potential incentive to settle this lawsuit before it drags on and drags down Favre's future, as well as, his legacy.

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Here is a link to the Favre complaint courtesy of Court House News.

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Viking's QB Brett Favre maybe (stress maybe) retiring from the NFL but the stain of his alleged sexual advances towards female employees continues. Today, Favre and the New York Jets were sued by 2 former massage therapists who allege that the lost their jobs because they refused Favre's unwanted sexual advances when he was with team in 2008. The female plaintiffs, like former Jet employee Jenn Sterger, claim that Favre was sending them lewd text messages looking for a sexual encounter.

Let's face it, NFL Commissioner Roger Goodell's investigation was amateurish and a disaster. It is simply incomprehensible to believe that the NFL, with its vast resources and coupled with Favre'sadmission that he left voice mails fpr Sterger, could not reach an evidentiary conclusion concerning Favre's conduct. Moreover, Goodell permitted Favre to not cooperate with the league's investigation and then slink away, at the season's end, with a slap on the wrist. Now, the questions are when exactly did Favre fail to cooperate and why didn't Goodell take immediate action? If Goodell was serious about player discipline he would have suspended Favre immediately after the quarterback failed to cooperate.

But Goodell played favorites instead. Goodell allowed the investigation to drag out on the hopes that Favre would leave the league and the sexual harrassment controversy would go away with him.

Maybe the lawyers in this lawsuit will do a better job getting to the truth then the NFL. This lawsuit will allow Favre to be deposed and be questioned under oath. If Favre chooses to not answer questions or worse, while under oath, he may find that his legal troubles are just beginning.
 

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