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

If you missed the article by Kathleen O'Brien on nj.com, you should check it out.

Ms. O'Brien raises a series of very fair questions about Armstrong and his cancer history. It should be noted that Armstrong denies blood doping by using illegal performance enhancing drugs (PED's). But the claims of Armstrong using PED's is growing louder with his former teammates purportedly telling a federal grand jury of Armstrong's PED use.

Now I am no doctor, but there is enough literature concerning the use of PED's and their connection to being a rocket fuel for cancer. As Ms. O'Brien notes "what's the point of cancer screening, good nutrition. even raising money for research [as Armstrong has done] if cancer survivors feel free to tamper with their body's basic metabolism."

If Armstrong took PED's, then I will have a growing empty feeling that Lance's cancer may have been created or fueled by his own choices.

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The NFL owners and players are set to try yet another mediation on June 7th.

In advance of this session, the owners, through Commissioner Goodell are dropping hints that they feel that they have the upper hand. Buoyed by the appeals court's permitting the lockout to continue (for now), Goodell is making statements that the NFL hasn't set a date to cancel the season but its "coming soon." He is also now saying that the "uncertainty" from the labor problems has caused the NFL to suffer "damage" and that financial damage will have to factored into the league's future offers (i.e. you are taking less players).

For the players, this is their moment to stand together. Because if the owners sense weakness and splintering, the end is near.

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A lawsuit has now been filed on behalf of Bryan Stow and his two children to recover damages for the pain and suffering and economic loss Stow suffered as a result of the attack outside Dodger Stadium on opening day. The Complaint, a copy of which can be seen here courtesy of the Los Angeles Times, contains several allegations and counts, although the primary claim is essentially that security in the parking lot was inadequate. 

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One of the suspects in the Bryan Stow attack was arrested Sunday morning by Los Angeles Police. Police executed upon a search warrant, and took several persons into custody from an East Hollywood apartment. One of those men fit the description of one of Stow's attackers. 

 

Building Manager Maritza Camacho told the LA Times that police had guns drawn, and used a loudspeaker to call out the occupants of the apartment.  Police are not providing details, but we hope to learn more in the coming day.

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College football in the South is as revered and worshipped as Sunday morning church services, and with such reverence, traditions are born which never die, except in the case of Auburn University. A University of Alabama fan, Harvey Updyke Jr., 62, faces two felony counts of first-degree criminal mischief, two felony counts of unlawful damage, felony vandalism or theft of property from a farm animal or crop facility and two misdemeanor counts of desecrating a venerated object, for his role in poisoning the century-old oak trees at Auburn's Toomer's Corner, at the intersection of College Street and Magnolia Avenue in Auburn, Alabama. Toomer’s Corner is named for businessman and State Senator Sheldon Toomer who founded the Bank of Auburn on the corner of Magnolia Avenue and College Street in 1907. At Toomer’s Corner, Auburn fans have traditionally celebrated wins by heaving toilet paper into the branches of these trees. 

 

How was Mr. Updyke, Jr., caught you may ask. Well, like most criminals, Mr. Updyke admitted to his crime, however, unlike most criminals he decided to do it on the public airwaves. On January 27, 2011, Mr. Updyke called into a local sports talk radio station, claiming to be “Al from Dadeville” and admitted to poisoning the trees at Toomer’s Corner. After hearing this admission, local police traced the call to Updyke’s home in Dadeville, Alabama, and he was subsequently arrested. Updyke is scheduled for arraignment on May 26 before Lee County Circuit Court Judge Jacob A. Walker III, and he has a tentative trial date of June 20. To add insult to injury, Updyke claims he was attacked by unknown assailants at a gas station shortly after leaving the courthouse following his appearance for a preliminary hearing a few weeks ago.

 

At my alma mater, our tradition has always been to rub Testudo’s nose for good luck and then to set the school on fire when we beat Duke, but I have to wonder if someone had broken Testudo’s nose whether it would have been this big of a deal and would have resulted in felony charges being levied. What would have happened in college towns in the Northeast or on the West Coast if some stunt like this was pulled? You have to wonder if this would have been as big of a deal in places outside of the South… 

 

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The 8th Circuit has spoken and the lockout is back on pending the formal appeal of Judge Nelson's decision. By the tone of the appeals court's decision allowing the lockout to stand (for now), the judges were not that impressed with the players' association's tactics and the lower court's decision.

All along, the NFL has been arguing that the players have been "playing" fast and loose with the legal process. After not being happy with the collective bargaining process (at the NLRB), the owners claim the players wrongfully decertified the union and started a class action lawsuit. The owners have been arguing that all of this legal maneuvering amounts to improper forum shopping to find a sympathetic judge. It strongly appears that the appeals court thinks the owners are right.

All of this signals that the lockout is here to stay. The owners now have the leverage they wanted to drive a very hard bargain from the players. Many of the union leaders who shot their mouths off on sports radio did not realize they were leading the players into the owners' legal trap.

Whether there is a season or not will depend on the owners willingness to compromise from a position of strength and the players belief they have fumbled on the goal line.

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Frankly, this post is going to sound a lot like my article from last week about the NFL lockout. This is because nothing has happened. No court ruling, no labor progress, no nothing.

Last week, I mentioned that many "legal pundits" were overly optimistic about how fast a federal appeals court might act. There was a widely held view that Eighth Circuit would decide whether to continue its stay (allowing the lockout to continue) in a mere manner of days. Obviously, that hasn't happened and the court may be deeply divided on its ruling. But I wrote all of that last week.

For now, all that is left for us to do is wander through the legal wilderness. For the moment, we are lost in the forest waiting for the court to show us the way forward.

I probably should use some sun screen and insect repellant.
 

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If it’s not one thing, it’s another with my beloved baseball team these past few seasons. Ever since Adam Wainwright’s curveball set Beltran down looking in Game 7 of the 2006 NLCS and crushed the Mets hopes of making the World Series, the organization has been all over the media, and most of it not good. From losing a 7 game lead with 19 games to play to Madoff’s Ponzi scheme, the Mets have seemed to find unusual ways to stay in the media, and Tuesday was no different.

On Tuesday in a Queens County Courtroom, Charlie Samuels, the longtime Mets clubhouse manager, was indicted on charges that he criminally possessed nearly $2.3 million worth of game-used memorabilia which included signed jerseys, bats and baseballs which belonged to the Mets organization. Samuels, who was with the team 27 seasons, is also charged with embezzling $24,955 from the Mets by submitting inflated expense claims and failing to report or pay taxes on $203,789 in tips and dues that he received from Mets players and others in 2008 and 2009. The 21 count indictment alleges that Samuels took 507 signed and unsigned jerseys, 304 hats, 828 bats, 22 batting helmets and 10 equipment bags, which he kept in a friend's basement in Madison, Conn.

Tuesday's indictment was the result of a months-long investigation into Samuels' alleged illegal gambling and stealing of sports memorabilia from the Mets clubhouse which resulted in the Mets terminating Samuels on November 12, 2010. Samuels entered a plea of not guilty to the charges in the indictment. If he is convicted, Samuels could spend between 8 1/3 and 25 years in prison. After posting $75,000.00 bail, Samuels is expected back in court on June 17.

Stay tuned for updates as this trial progresses as there may be some interesting subplots, besides exposing Samuels actions in the alleged criminal possession case. The facts adduced at trial may lend themselves to the relationship between the Wilpons and Samuels and whether Madoff’s Ponzi scheme had any effect on the relationship or whether Samuels had any knowledge of the scheme as he committed these alleged acts.
 

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Bryan Stow, the paramedic who was attacked in cowardly fashion at Dodger Stadium, remains in a coma and in critical condition.  On the website maintained by Stow's family and friends, it was reported on Friday that Stow almost had surgery for placement of a shunt, but doctors decided it wouldn't be necessary at this time, which is good news. Doctors are slowly lowering his medications, and hopefully there will be signs of brain activity soon.

The two attackers and the accomplice that drove them from the scene have not been caught yet. 

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A federal grand jury in Los Angeles indicated Lenny Dykstra for bankruptcy fraud.  When Dykstra filed for bankruptcy in 2009, he allegedly sold and hid sports memorabilia and fixtures from his estate, valued at $400,000. These items are supposed to be used to repay creditors. Although Dykstra's attorney claims that no fraud was committed and that this arises out of a dispute with the bankruptcy trustee, this is more bad news for Dykstra.

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The highly anticipated sequel, The Hangover 2 is set to release in theaters this Memorial Day.  As you can tell from the preview, Mike Tyson's signature facial tattoo plays a significant role in the film.  Unfortunately for Warner Bros., the artist of Tyson's tattoo is attempting to sabotage the sequel's opening weekend.  S. Victor Whitmill, the artist who created the tattoo, has filed an injunction to stop the release of the film due to copyright infringement on the tattoo.  Joe Mullin, of Paidcontent.org, does a nice job breaking down the details of the injunction.  It's difficult to wrap your head around someone being able to own the rights to a part of someone's body, especially Mike Tyson's.  (You all saw how angry Tyson was when someone took his tiger.)

With Tyson appearing in the first movie and also having an appearance in the sequel, it may be difficult for Whitmill to stop the release of the film.  But don't be surprised if there is significant heat put on Warner Bros. to resolve this.  Dukes of Hazzard ran into a similar situation that forced a settlement to maintain its release date.  

Stay tuned to see how this one plays out....

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Chris Bosh was the only member of the Heat's "Big Three" that has kept himself out of the media spotlight for legal issues, until Monday.  Bosh filed a complaint in Los Angeles federal court against former girlfriend and mother of Bosh's child, Allison Mathis.  Bosh filed the complaint in an attempt to prevent Mathis and 'Basketball Wives' from using his name in the media to profit.  According to the complaint, “Defendant Mathis is attempting to promote her own commercial brand and become a television personality and/or celebrity by exploiting her former relationship with plaintiff.”

Oddly enough, two other prominent "Big Men" that have worn NBA jerseys from Florida have encountered the the same circumstances Bosh is facing.  Former Heat and Magic star, Shaquille O'Neal threatened his wife with a lawsuit if she mentioned his name on the show last year.  Meanwhile, current Orlando Magic Center Dwight Howard won a $500,000.00 settlement against his ex wife for her appearances on the show.  In both of those instances, confidentiality agreements played a prominent role in the outcomes.  With a lack of marriage in Bosh's case, it may be more difficult for Bosh to put the heat on Mathis to keep his name off of the air.

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Tennessee Titans backup quarterback Chris Simms has pleaded not guilty to driving while under the influence of illicit drugs, in this case marijuana. On Tuesday, in a lower Manhattan court room, a police officer told jurors that on July 1, 2010, at around 1:00 a.m., Simms made a "tire-squealing “turn" just before a police sobriety checkpoint in lower Manhattan. The officer further informed the jury that there was a strong odor of marijuana coming from Simms' Mercedes-Benz SUV, and when approached, Simms began to slur his words, walk unsteadily, and said there wasn't any marijuana left because "he smoked it all." An alcohol breath test came back negative, and Simms declined a urine test that could have shown drug use. Charles Granatell, a passenger in Simms' SUV, and a friend of roughly 12 years, testified that he was entirely responsible for the odor of marijuana that prompted Simms arrest. He also testified that he'd never seen Simms smoking marijuana in the time he knew him. However, at no point prior to testifying, did Granatell tell police that he and not Simms was the one smoking marijuana.

 

Simms could face up to a year in jail if convicted of the misdemeanor. In January 2011, Simms turned down the prosecutor's offer to avoid any jail time by pleading guilty to driving while impaired, a non-criminal violation. His punishment would have included a $500 fine and five days of community service. In addition to any legal consequences stemming from this incident, Simms could also be subject to a suspension under the NFL Rules regarding off field conduct, however, due to the current state of the lockout, it is unknown what the suspension would be or whether any of the leagues policies regarding off field conduct will be changed with any new labor agreement.

 

 

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As the season progresses, Major League Baseball continues to rack up the DUI's.  The latest culprit is Cleveland Indian outfielder Shin-Soo Choo.  Choo was arrested early Monday morning after reportedly asking police officers for assistance finding his residence.  Choo went ahead and failed a breathalyzer and field sobriety test, blowing a .20, more than double the legal limit of .08.  Choo, who was recently named Sports Illustrated's most underrated player by his peers, went 0-4 with 5 runners left on base the day after his DUI arrest.  

Evan Brunell from CBS Sports brings up a great point by questioning when the MLB is going to take these off the field incidents seriously and punish players for their actions.  Will Major League Baseball wait for a tragedy to occur, or will they go ahead and establish a personal conduct policy like the NFLhas?  I guess any publicity that isn't about steroid use has become acceptable to Major League Baseball.

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The NFL owners got a small victory on Friday, when the 8th Circuit Court of Appeals granted them a temporary stay of Judge Nelson’s ruling (invalidating the lockout) while the court decides whether it will consider the merits of the NFL’s appeal at this time. The 8th Circuit will decide whether it will hear the appeal sometime this week, if the court decides not to get involved then Judge Nelson’s ruling will stand until the regular (non-emergency) appeals process at the end of litigation commences.

The players’ union acted like this ruling was no big deal and completely expected. But they are putting a good face on a small yet bad result for the union. As Judge Dye wrote in his stinging dissent, appellate invention, at this point in a federal litigation, should be reserved only for “emergencies” like death penalty cases and major civil rights violations not a labor dispute between wealthy owners and rich players. In my humble opinion, Judge Dye is right but the fact that the court did choose to issue a temporary stay shows that the players’ have reason to be concerned.

The NFL lockout has always been about negotiating leverage. The owners remember how they almost broke the union (and the league too) during the last players’ strike in 1987 (you can’t forget the “replacement players” disaster). The owners believe that a lost paycheck is too much for the players to bear and that this fear will lead to a positive CBA for the NFL.

The owners’ strategy has a basis in fact given the players’ failure to remain united in 1987. What the owner may be blinded to is how much better the NFL brand has become since that time. The continued lockout will eventually cause some damage (maybe slight in the near term) to the NFL brand. Don’t believe me, check out the NFL draft TV ratings, down 16% from last year and complete with a booing of Commissioner Goodell. How many times in recent history have you heard of a decline TV ratings and the NFL?

The NFL and the union still have time to get to a new CBA. Both groups however would be foolish to rely on the court system to solve their labor problems. I have read that some commentators believe that if the 8th Circuit takes the case, the appeal would be decided in a few months. While I don’t practice in the 8th Circuit, the last the federal appeal I was involved with took 13 months to decide which was not unusual. A time frame of over a year would leave the NFL and its players in a legal no-man’s land they never imagined.

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