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

In 2006, former TCU athletes Lorenzo Jones, Virgil Taylor and Shannon Behling allegedly slipped a drug into a female student's drink, causing her to pass out. She was allegedly raped by all three men, and woke up the following morning with her clothes inside out and her bra missing. She also suffered an outbreak of herpes that required her to be hospitalized. Jones and Taylor were expelled from the University, but prosecutors dropped the charges, apparently because the case would have been difficult to prove.

The student - whose name remains anonymous - filed a civil suit against TCU, alleging that the University knew of the athletes' criminal histories and bad behavior, but did nothing to protect other students from these athletes. That claim was apparently dismissed on a motion for summary judgment in January, but the trial judge has permitted the case to proceed to trial on the grounds that the University may have committed fraud by informing the female student that the University "didn't recruit miscreant athletes" and otherwise describing the campus as safe.

It should be no surprise to anyone that many colleges and universities look the other way at times, in order to recruit athletes that will make their programs competitive. However, this is certainly a unique claim. It does not appear that the TCU campus is unsafe, and this was a targeted attack that is difficult to prevent from occurring. Although Jones pled guilty of misdemeanor assault during high school, there do not appear to be any crimes or misconduct that stand out. Fraud is difficult to prove in this context, and in Texas, requires the plaintiff to establish that the University knowingly or recklessly made a false representation that the plaintiff relied upon. There is also evidence that some of the athletes were disruptive in class, and Jones actually cursed at one of his teachers who then attempted to have him removed from the class. However, this does not necessarily translate into propensity to rape.

This will be an interesting trial to follow, assuming it occurs. The parties may be too far apart to reach a settlement; the victim here has substantial damages, but the University's liability for the incident is questionable, and it seems willing to fight the allegations. Trial is scheduled to begin on May 2.

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Peter King, of CNN/SI, does his usual great job of summing up the state of NFL Labor Negotiations in his latest column.

According to King, the negotiations are not really progressing that well and a lockout may be inevitable.

Of note, though, is a quote from the labor mediator, George Cohen, that is mentioned by King. Cohen wants the parties to take the weekend and “assess their current positions on those outstanding issues [where the parties are far apart].”

Having been through countless mediations, this statement suggests that the mediator wants some movement, direction and bottom lines from the NFL and the Union. The May 3rd lockout may be a false deadline to kill the season but Mr. Cohen now has invested 45 hours into this mediation and wants some progress and results for his efforts.

I would not expect Cohen simply to continue to participate in mediation where the true goal of the NFL or the Union is for a work stoppage followed by a long starring contest. If the NFL and Union want to play this out until August, that is their right but they cannot expect a federal mediator to go along for the ride without any progress along the way.

If on Tuesday, Cohen does not see any progress or hear any meaningful “bottom lines” from the NFL and the Union, then the mediation may have hit the final 2 minute warning. 

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Harvey Updyke, the alleged Auburn tree killer needs a lawyer. We have learned that the 3rd lawyer, assigned by the court, to represent him has now quit. The lawyer cited "irreconcilable conflicts."

That's code for "I hate my client."

Sometimes lawyers are called upon to represent unpopular people in unpopular causes, that's what brings honor to our profession. But sometimes, you just don't want to rep some guy from Alabama who tried to kill Auburn's special trees.
 

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Karen Sypher, a former model, was sentenced to seven years in prison after being convicted of extorting Louisville coach Rick Pitino. Sypher was also convicted of lying to an FBI agent.

Pitino admitted cheating on his wife with Sypher in a restaurant. Although the sex somehow lasted only fifteen seconds, Sypher contacted Pitino a few weeks later and claimed to be pregnant. Sypher threatened to go public with the affair if Pitino did not give her money, a house and other luxury items. When she was charged with extortion, Sypher falsely claimed that Pitino raped her.

Pitino doesn’t smell like a rose here, but Sypher’s actions were outrageous. She will have a lot of time to think about it, as she cannot be paroled, and must also serve two years of supervised release after her prison sentence.

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Tuesday will be Day 5 of the NFL's labor mediation between the owners and the players' union (NFLPA). Over the last 4 days of intense talks, there has been very little chirping or leaks by the NFLPA or the owners. The only thing that we have heard is from Charlie Batch, of the Steelers, who offered that "things are going well."

I have been involved in countless mediations. I can advise that a mediation will only be successful if the mediator holds meaningful control over the parties and has their respect. In the case of the NFL, federal mediator George Cohen seems to have these ingredients.

Given the strong media light on the NFL and the ever-present ability to "tweet", virtual silence by the owners and NFLPA should give the fans some reasonable hope that a lock-out may be giving way to another season of football.

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Would they do it? Would the NFL and its players' union (NFLPA) really kill the golden goose?

Well, after the sides cut off negotiations last week, that goose was getting really nervous. However, today some new hope for a resolution has arisen. The NFL and the NFLPA have agreed to use one of the federal court's top mediators to help bridge the rumored $1 billion divide.

I can advise that labor negotiations can be very difficult and stressful but the NFL's situation may have taken a turn for the better for a few reasons. First, the federal court's mediation program is a very respected and successful (having used it myself), and second, there really is enough money to go around.

Anyway, smart owners and players will keep the NFL's money machine or "golden goose" very fat, happy and alive.

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Just a year after alcohol abuse treatment and claiming he had been alcohol free since his domestic violence incident in back in October 2009, Miguel Cabrera is back in the legal spotlight.  

Last night, Cabrera was picked up for a DUI in St. Lucie County, Florida.  According to reports, Cabrera was "combative, argumentative, and belligerent".  Cabrera even stood in front of the officer, took a swig from his bottle of scotch and asked the officer, "Do you know who I am?".

Cabrera spent time in alcohol abuse treatment after his 2009 domestic violence incident with his wife.  He came out and made it clear that he had a problem and he was done with drinking.  Cabrera obviously has fallen off the wagon.  With Cabrera's spring training report date being Saturday, Cabrera will be looking forward to an array of questions regarding his future plans, possible suspensions, and time since his last alcohol related incident.  It is clear Cabrera has an alcohol problem and needs to address it.  

The worst part may be that Cabrera had a giant smile on his face for his mugshot.  Some people never learn.

Stay tuned for more on Cabrera......

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On Tuesday, Judge Illston denied Barry Bonds' motion to exclude a recorded conversation between Stevie Hoskins, Bonds' childhood friend and assistant, and Greg Anderson, Bonds' former trainer that took place in the Giants locker room in 2003. Hoskins recorded the conversation without Anderson's knowledge, and claims he did so to convince Bonds' father that Barry was using steroids. In the conversation, Anderson discussed techniques to avoid infections when injecting a substance, referring specifically to Bonds, and later stated that he created a substance that is undetectable. Anderson said to Hoskins, "you can take it the day of and pee and it comes up with nothing."

Judge Illston found that these statements made by Anderson could be statements made against his own interests, which is an exception to the rules of evidence that prohibit hearsay. Therefore, even though Anderson will not testify at trial, parts of the recorded statement could be played to the jury, with the caveat that the government must first lay a foundation at trial that the substances Anderson referred to were illegal at the time. If they weren't illegal, the statements would not be against Anderson's interests and therefore inadmissible hearsay.

Both sides were also instructed to confer and come to an agreement as to what the jury will be told about Greg Anderson's absence.

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Brent Celek and his kickboxer wife, Susie, have been sued by their condominium association for having a dog, which is prohibited by the condominium declaration. The Complaint, a copy of which can be seen here courtesy of Courthouse News Service, claims that the Celeks own a dog named "Bruiser." The Complaint further alleges that the Association has repeatedly requested that the Celeks remove Bruiser, but the Celeks have refused. The Association is seeking an injunction plus $10,000 for damage caused by Bruiser, as well as foreclosure of the unit, for failing to pay fines fees and charges levied against the Celeks.

Celek has not yet responded, but the typical defenses to these claims are that the Association arbitrarily or selectively enforces the covenant, that the Association has permitted the Celeks to own the dog for an unreasonable period of time without seeking enforcement (laches), and abandonment of the covenant. 

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 Sports in the Courts Blog was featured on Cocky Law Blawg..... check it out

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Do you remember Ed O'Bannon? 

The former UCLA Bruin legend is spearheading what may be one of the most significant lawsuits the NCAA has been faced with.  The class-action lawsuit may only be in the preliminary stages, but the overall effect it could have on the NCAA and its student athletes, both past and present, would set a game changing precedence for years to come. 

It came to O'Bannon's attention when one of his friends pointed him out on a video game that contained a player with his number, his appearance, and his statistics on the 1995 UCLA Bruins championship team.  Although the player resembled O'Bannon, his name is not mentioned in the game and he along with any other players do not receive any compensation for the use of their likeness.  Retired from the NBA and now making a living as a car salesman, O'Bannon is on a mission to collect where he believes compensation is due from the NCAA.  With Rivalry Week wrapping up and March Madness on the way, it is only a matter of time before the advertisements, "Instant Classic" airings, top ten buzzer beater lists, and memorabilia to roll out to create a buzz.  But who has the rights and is entitled to the revenue generated by those things?  "Ed-O" thinks he deserves a cut.

Whether it is Christian Laettner's buzzer beater or Doug Flutie's "Hail Mary";  these images not only are ingrained in sports fans minds forever, but may provide a cash cow for the participants in those events.  But how could this follow the simple rules the NCAA is trying to enforce?  Student athletes do not "play for pay".  

With all the buzz in the past year over Reggie Bush, Cam Newton, and Terrelle Pryor, how could the NCAA stand for or accept a payout to the participants in these circumstances?  NCAA rules specifically frown upon student athletes receiving improper benefits or gifts for their performance within competition.  If there was a ruling in favor of O'Bannon in this case, NCAA athletes would be given compensation of some sort for their likeness and performances on the playing field.  

In addition to the overhaul of their stance on "pay for play" that would have to take place if there was a ruling in favor of the plaintiffs, the NCAA would also have to keep a close eye on premeditated setup for memorable moments, and the throwing of games.  If NCAA players have an incentive to keep scores close to reap the benefits of their participation in an instant classic, the integrity of the games and the genuine occurrences of  historic and classic performances.  

Only about 1% of NCAA athletes make it to the professional level, and even less become great and generate a big payout at that level.  It is only a matter of time before other athletes involved in some of the NCAA's memorable games and events come out and demand their piece of the pie.  

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A Westchester County Grand Jury found that there was not enough evidence to indict Aaron Hess, the Pleasantville, NY police officer who shot and killed Pace football player D.J. Henry. Henry was shot on October 17, 2010 in the early morning hours outside a bar in Thornwood, New York. Police had been called to a large disturbance following a Pace homecoming game, and Henry, who had been drinking, allegedly sped away in the parking lot. While doing so, he struck Officer Hess with his vehicle, who then fired at Henry through the windshield. Henry’s family claims that he was merely moving away at “parking lot speed” in accordance with the officer’s instructions.

The fact that the District Attorney could not convince 12 of 23 grand jurors that there was sufficient evidence to accuse Hess of committing a crime is significant since, if Hess were indicted, at a trial the District Attorney would have to convince 12 of 12 jurors that Hess was guilty beyond a reasonable doubt. It is also important to note that Officer Hess testified before the grand jury, which he did not have to do (and something that many criminal defense attorneys would likely advise against, as there is no Judge present, and a defendant’s attorney is not permitted to interrupt the proceedings).

Henry’s family and their attorney have accused Officer Hess of committing intentional murder, and in response to the Grand Jurors’ decision, claimed that the District Attorney withheld or mishandled evidence. This is a serious allegation to make, particularly since the District Attorney is obligated by law to present exculpatory evidence to the Grand Jury (in fact, the Grand Jury heard testimony from several Pace students who were present, as well as two passengers who were in Henry’s vehicle). Naturally, neither the family nor its attorney has disclosed what evidence could have changed the Grand Jurors’ minds or what should have been presented.

The end result is that Officer Hess can rest assured he will not be criminally prosecuted, although he will now face a time consuming wrongful death lawsuit.

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This week federal prosecutors were forced to reduce the amount of perjury-related charges against former San Francisco Giant, Barry Bonds, from 11 counts to 5 counts. With a March 2011 trial date looming, the prosecution no longer could hold out hope the Bonds' foremer trainer, Greg Anderson, would brake his silence and testify for the government.

Greg Anderson has certainly been consistent. Even in the face of jail time (for contempt), Anderson has refused to assist the prosecution. Bonds had been indicted for lying before the grand jury on conduct related to Anderson. Bonds told the grand jury that he denied received steroids, known as the "clear" and the "cream", from Anderson. In a previous court ruling, the judge held that Bonds positive steroids tests were inadmissible as these results were improperly obtained by the government.

Without the evidence of Bonds' positive drug tests, the only remain proof of his alleged lies would need to come from Anderson's testimony. However, Anderson has decided that he is more important than the legal system. If Anderson cooperated he likely would not face any criminal charges so his Fifth Amendment Rights would not be at risk. The only logical conclusion that can be reached is that Anderson's silence is bought and paid for by someone.

By holding on to his misplaced sense of "loyalty", Anderson will deprive the jury of hearing the facts and evidence that he only can provide. This type of conduct is an offense of our system of justice and is obstructive of a valid criminal prosecution.

As a result, Anderson and his silence should spend as a much time as possible in jail.
 

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Just two days after the Super Bowl, a California law firm wasted no time in filing a class action lawsuit in a Texas federal court.

The Complaint (a copy of which can be seen here) alleges that Cowboys season ticket holders known as the "Founders" paid at least $100,000 per seat for a personal seat license at Cowboys Stadium, which the Cowboys represented would entitle them to the “best sightlines in the stadium” and the right to purchase a ticket to Super Bowl XLV at face value. Some of these persons were unexpectedly given metal folding chairs with obstructed views. An additional 400 persons were not even permitted inside the stadium, since the temporary seating section that is normally standing room only was deemed unsafe.

Those fans who were denied seats were offered free tickets to next year's Super Bowl and a refund of triple the cost of the $800 face value of the ticket. The suit points out that next year's Super Bowl may not even be played, and further, the refund does not completely compensate the plaintiffs for their travel and lodging expenses. There apparently has been no offer to those season ticket holders who were given obstructed seats.

The first item that should be looked at is the ticket, which may provide that the holder is only entitled to a refund. Many courts (including those here in New York) have found that the terms and conditions on tickets are enforceable. If there is no limitation of liability, those that were denied entry are entitled to be "made whole," which would include reasonable travel and lodging expenses incurred in reliance upon the belief that they had a ticket to the game. It does not mean they will recover the amount they may have paid to a scalper, of which the Cowboys/NFL have no control.

Those who were given obstructed seats may eventually be offered a similar refund with additional compensation, but will not be entitled to thousands of dollars simply for purchasing a PSL, regardless of the reason for purchasing the PSL.

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Over the last few days, we have seen how bruising the legal battle between the Madoff trustee, Irving Picard, and the Mets principal owner, Fred Wilpon can get. Picard has leveled somewhat unique allegations that, although the Mets ownership may not have been directly involved in the Ponzi scheme, they turned a blind eye at obvious fraud and continued to dump money into Madoff’s “unclean” hands (and remove millions in false profits). The Wilpons, for their part, argue that they are victims of Madoff and their good reputation is being destroyed by an over-zealous bankruptcy trustee who is going too far to try to financially ruin the Wilpons.

All of this is the recipe for a long legal fight. When reputations are at stake and coupled with the potential risk of a $1 billion claw back, the parties will dig in their legal heels. This type of protracted and personal litigation can take several years to unwind through the lower courts and the appellate level courts. The attorneys’ fees in a legal death match will be astronomical.

While the parties have broken off settlement negotiations, the incentive to talk and find a resolution to this quagmire still must way heavy. A prolonged battle does not serve the true interests of the Mets or Picard. Picard’s job is to get as much money back, as fast as possible, to liquidate the company and pay the victims some restitution. Likewise, the Mets and the Wilpons need this legal cloud to pass. All of the Mets player moves (or lack thereof) are being judged by this crisis and their fan base is growing more and more dejected. Moreover, any sale of a portion of the team to raise money must be severely hampered by the threat of full bankruptcy if the Wilpons lose this litigation.

We know that published reports state that the Mets received about $300 in false profits in the Madoff scandal. We also can conclude that a $1 billion litigation hit would cause the Mets to fall into bankruptcy liquidation which would mean there would be a lot more creditors (i.e. stadium financing bondholders) looking for a piece of pie besides Picard. Given this situation, it seems that a settlement of between $400 to $500 million might be a home run for the parties. If Mets know they can settle in this range, the Wilpons can likely raise these funds in a partial sale of team and its TV network. In addition, Picard could make a sizeable recovery for the victims and still extract some punishment against the Wilpons.

If not, the legal fight here could break everyone involved.

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It appears, at least for now, that Fred and Jeff Wilpon, the owners of the New York Mets, have reach an impasse with their settlement negotiations with the Madoff bankruptcy trustee. You have to wonder though, does no settlement mean no sale (or partial sale) of the Mets?

The situation with the Mets and the Wilpons to be the definition of uncertain. It would be very difficult for an attorney or a financial adviser to advocate buying into this potential mess. What if the case against the Wilpons goes to trial and they lose? Would this mean the principal owners could become financially unstable (and so would the team)? Who would get stuck with team's payroll if that happened?

Without a settlement, there are just too many questions and no quick answers on the horizon.

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Apparently in America, you are innocent until proven guilty unless you own the New York Mets.

This week on NY area sports radio stations, some ratings-hungry hosts have participated in rank speculation that the Fred and Jeff Wilpon either are too sophisticated to not have known that Bernie Madoff was a crook or that Wilpon's simply have a "pension" for being involved with Ponzi schemes.

If the Wilpons are so knowledgeable about stock trading then how is it possible that Madoff's other victims include major banks, capital advisers, universities, the Olympics, and countless other financial "geniuses?" How come all of these other financial companies, many of which had fiduciary responsibilities to their shareholders, are spared from incrimination when the Wilpons are not?

The Wilpons, likewise, are certainly not the only entity that the bankruptcy trustee is seeking to recover money from in this case. You see that also include banks like UBS and JPMorgan Chase.

There is more than enough evidence that the Wilpons could have done a better job running the Mets over the last few years, but there is no known evidence that the Mets ownership willingly participated in Madoff's despicable plan.

Before the talking heads of talk radio convict the Mets ownership of wrongdoing, let's actually hear the true facts of their provable guilt. 

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