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

With the Olympic games going on and the pennant races heating up, you might have missed some important news legal news that developed concerning Jonathan Vilma's lawsuit against the NFL. In short, Judge Ginger Berrigan stated that she believed Commissioner Goodell abused his authority by punishing Vilma for the Saints' bounty scandal by withholding evidence, acting too harshly and violating Vilma's union rights under the CBA.

The court went even further by stating that it would rule in Vilma's favor if the judge found she had jurisdiction and Vilma suffered "irreparable harm" under the law. For Vilma to stop the Goodell's punishment he will have to show that harm caused by Goodell's decisions cannot be reversed. Will a season's suspension by enough damage? It sounds like the judge believed that it was under the circumstances. However, the jurisdictional argument is more difficult to ascertain. If this issue was clear Judge Berrigan would have ruled in Vilma's favor last week. My suspicion is that a federal court's jurisdiction over an NFL disciplinary matter maybe a difficult road. We shall see.

But the significance of the eventual outcome cannot be understated. Until now, Goodell just doesn't lose, he rules with an iron fist over players, coaches and even owners. Ask Mike Vick or the NFL union leaders how they liked getting crushed by Goodell (ever see a guaranteed contract for an NFL player?). Goodell has sought to expand his power to be judge, jury and executioner in all NFL disciplinary matters. No one has stood in his way, until now.

As this litigation plays out, it is crucial to keep in mind that Goodell acted harshly against the Saints as a direct result of all the head injury lawsuits filed against the NFL. Goodell is trying to show that he will not tolerate any intentional injuring of a player beyond the normal NFL risks. Yet, in the concussion lawsuits, one of the NFL's primary defenses is that the league (and the league alone) must police the game and protect its players (and it has done everything reasonable in that regard) so the court has no jurisdiction.

If Judge Berrigan finds that she has jurisdiction to reverse Goodell's punishment of Vilma, the NFL could lose a critical argument in courtrooms across the country. 

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Last week the NFL Players' Union (NFLPA) filed a lawsuit to challenge the authority of NFL Commissioner Roger Goodell to discipline players. The crux of the lawsuit claims that Goodell did not have the right to act as the final "decider" and "punisher" of the Saints' players that were involved in the pay-for-bounty scandal. The lawsuit also alleges that Goodell violated the collective bargaining agreement by suspending Saints' players for their alleged actions without further appeals.

The question to ask is whether this is the right battle for the NFLPA to pick? The evidence of a pay-for-bounty scandal (including a cover-up by the Saints) is overwhelming in favor of the league's penalties. The NFL is beyond sensitive about the rash of lawsuits filed by ex-players for head injuries and permanent disablities. Goodell will take the position that he must act harshly and quickly to end all bounty programs in the NFL for the good of the game.

However, Goodell must secretly be thrilled about this lawsuit. The NFL should have a fairly easy argument that Goodell must protect the league and the game for the good of all the players and owners. If Goodell and NFL succeed with this argument, the power of the commissioner to discipline players will become virtually unchecked and court confirmed.

At that point, the NFL collective bargaining agreement should simply be change to state the commissioner is now a king.

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Adam "Pacman" Jones was found liable by a civil jury for the injuries sustained by two Las Vegas strip club employees, who were shot by a man allegedly hired by Jones.  One man was paralyzed from the waist down, and the other suffered less serious but nevertheless severe damages as a result of the 2007 shooting that police say Jones incited. Jones and his entourage were removed from the club, and police alleged that Jones met with the eventual shooter, Arvin Edwards, before he opened fire.

Jones' attorney plans to appeal, apparently on the basis of her claim that no evidence was presented connecting Jones to the shooter. Nevertheless, Jones will have a difficult time paying the judgment, as he is only expected to make $950,000.00 this year, if healthy.

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The flurry of lawsuits filed by retired players against the NFL is picking up steam. Hall of Famer Art Monk joined in, suing the NFL and helmet maker Riddell for his alleged short term memory loss, headaches and speech difficulties in a Los Angeles court.  The allegations are essentially that the teams failed to properly handle concussion symptoms, and that the players were misled or even provided with false information as to the long term effects of concussions.

Although it will not be easy for the players to meet the necessary burden of proof, these lawsuits are not exactly positive press for the NFL, especially when higher profile players such as Art Monk become involved. The NFL would be wise to seriously consider a strategy and approach for resolving these claims. Recently, former linebacker Junior Seau shot himself to death, and some are blaming his problems for the hits he took to his head during his playing days. Seau's unfortunate situation brings to mind Dave Duerson, a former defensive back who shot himself in February of 2011. Duerson's family filed a wrongful death lawsuit against the NFL and Riddell, claiming that Duerson's suicide was concussion-related.

Seau's family may follow with their own wrongful death lawsuit, and will have the benefit of observing how the courts treat Duerson's claim.

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When the New Orleans Saints Head Coach, Sean Payton, appealed his yearlong suspension from the game, his legal team pointed out that when Bill Belichick was caught in the “Spygate” scandal, the Patriots controversial coach’s punishment did not include a suspension. The Saints argued that given the fact that the NFL found that Belichick was involved an alleged cheating scandal (which goes to the integrity of the game) and he did not lose a game on the sidelines. Why then should Sean Payton lose a whole year? More importantly, why shouldn’t NFL Commissioner Roger Goodell reflect on all that Payton has accomplished in New Orleans and offer the Super Bowl winning coach some leniency after Payton had shown some remorse and taken responsibility for his actions.

As set forth, herein, Commissioner Goodell is in no mood for leniency. The NFL, despite the inherent violence of its game, has grown sensitive of the need to protect itself from lawsuits. The league (and its insurers) is currently defending workers compensation suits, across the nation, from players who claim to have suffered head trauma and other injuries. The NFL has shown it has no desire to be targeted by players who sustained a “bounty injury” for personal injury lawsuits.

Commissioner Goodell has established three pillars to protect the NFL and its vendors (like helmet makers) from personal injury actions from players. First, the Commissioner has articulated a no tolerance policy against illegal hits that can result in head trauma. The NFL has attempted to draw a line between a good legal tackle as opposed to a hit designed to induce a head injury. However, the Saints’ bounty program made a mockery of the commissioner’s rules against illegal hits.

The second tenant involves early detection of a head injury so that the trauma of a concussion can be immediate reduced and controlled. This concept makes tremendous sense; if a head injury can be contained then a lawsuit will be less likely. Unless, of course, you are the Cleveland Browns and put your quarterback, Colt McCoy, right back on the field after a massive (and illegal) helmet to helmet hit by the Steeler’s James Harrison. The Browns’ decision to put McCoy back on the field was deemed as a “total system failure” by the NFL Players Association.

The final pillar involves the NFL’s theory that the league (and the league alone) is responsible for policing the game. The NFL believes that if it strictly enforces its rules and keeps the game violent but “clean”, this factor should protect it from lawsuits. I think of it as a self-created cloak of immunity. Its really not a bad a approach, it the league and its teams actually sticks to it the program.

In light of all of this, you can imagine the look on Commissioner Goodell’s face when he heard the taped comments of former Saints Defense Coordinator Gregg Williams (who is indefinitely suspended) urging his players to “kill the head and the body will follow.” Williams also was caught imploring his players to see how many times they could hit 49ers running back, Frank Gore, in the head.
So now its time to re-ask the question, why Goodell refused to give Sean Payton and the Saints any leniency for the bounty scandal? The answer is that the good commissioner is beyond furious (you can insert a stronger word of your choice here). Over the last few months, he has watched all the pillars of his lawsuit protection program be crushed by coaches and teams that lied to him or ignored league’s protocols. Goodell knows that this type of improper conduct is the root of lawsuits. Goodell’s only remaining option to protect his anti-litigation plan is to punish heavily, show no leniency and make examples of those who defy him.
 

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National Union Fire Insurance Company of Pittsburgh has filed suit in state court in Manhattan against the United Football League ("UFL") and its teams, alleging that the League and its teams have failed to pay approximately $3.1 million in additional premiums, loss reimbursements, adjustments and other costs. National Union provided workers' compensation coverage in 2009 and 2010.

The Complaint seeks to compel the UFL to submit to arbitration in accordance with the provisions of the payment agreements, but also contains a count for breach of contract. Normally, these workers' compensation additional payment disputes are resolved. Given the UFL's recent reported contraction and financial issues, however, it may not have the capability to pay National Union.

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In January, we wrote that Irving Picard, the Trustee attempting to claw back money for Madoff victims, filed a motion for partial summary judgment, seeking a determination that the Mets owners ("Wilpon") obtained approximately $83 million in fictitious profits and therefore must pay this money back to the Trustee as a matter of law. In turn, Wilpon cross-moved for summary judgment, dismissing all of the Trustee's claims, on the grounds that Wilpon received profits in return for "fair value," and further, that its principal had been invested in good faith.

With a trial date of March 19, 2012, Judge Jed Rakoff granted the Trustee's motion for summary judgment, and denied Wilpon's cross-motion. Thus, Judge Rakoff set a "floor" of what Wilpon will owe, at $83 million. The Court has not yet determined how this amount will be allocated among all of the defendants (such as Saul Katz, Wilpon's companies and other related defendants). With regard to Wilpon's cross-motion, although Judge Rakoff expressed skepticism as to whether the Trustee would be successful, the Court found an issue of fact (described by Judge Rakoff as a "residue of disputed factual assertions") as to whether Wilpon acted in good or bad faith, which must be resolved by a trier of fact.

Although this may seem as a loss on its face, consider that Wilpon was originally faced with a $1 billion lawsuit. The Trustee's case has now been whittled down to $83 million, plus the possibility of $303 million - the Trustee must first convince a trier of fact that Wilpon turned a blind eye to Madoff's fraudulent activities.

It is not insignificant that Judge Rakoff wrote that he was skeptical whether the Trustee could recover the remaining $303 million. Both sides would be wise to immediately commence settlement negotiations, and manage the risk associated with going to trial.  

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In what seems to be an unprecedented move, the family of former Chicago Bears and New York Giants defensive back Dave Duerson sued the NFL for wrongful death, as a result of Duerson's self-inflicted, fatal gunshot wound. Duerson killed himself in February of 2011, and the lawsuit blames the suicide on the NFL's mishandling of concussions. Helmet manufacturer Riddell is also named in the Complaint. 

Although there have been numerous lawsuits filed against the NFL by retired players seeking recovery for concussion-related injuries and symptoms, this litigation goes a step further, and will require medical evidence of a causal connection between the injuries Duerson sustained in his playing days and his decision to shoot himself.

The burden of proof will be difficult for the plaintiffs. A review of the comments posted to the various articles on this lawsuit reveals that the public is quite skeptical. If the case cannot be settled, the plaintiffs will have to convince the jurors of the connection between Duerson's concussion symptoms and his suicide through convincing medical expert testimony, and will have to show that the NFL deviated from accepted standards of care for handling concussions. It will definitely be interesting to see what the outcome of this case will be.
 

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As the Penn State scandal moves along, there are smaller-scale (but perhaps equally significant) incidents coming to light involving sports figures and coaches.

It is being reported that an underage sex sting operation in Florida resulted in approximately 40 arrests, including a swim teacher and former PGA Tour Professional Steve Thomas. Thomas was charged with seducing an underage girl, and using a computer to entice a legal guardian or parent to commit sexual acts on an underage girl.  Apparently, Thomas was caught in an operation set up similar to NBC's "To Catch a Predator," where he attempted to meet with a girl he thought was 13. The swimming coach arrested is Bryan Woodward of the Gator Swim Club. Mr. Woodward coached children of various ages since he was hired in 2010.

Also, a former NFL lineman committed suicide this week, as he was about to enter a plea in Oregon to five counts of sexual abuse and one count of luring a minor. According to the District Attorney, the charges involved three victims, all under the age of 14. 

This kind of conduct is not new, but high profile cases such as Penn State will lead to reporting of additional abusive situations. Locally, a Catholic High School coach was recently arrested for videotaping boys in the shower room. Although there was no evidence of any sexual contact, Immaculata High School's Pat Lott was arrested on multiple counts of endangering the welfare of children. A search of Lott's computer allegedly revealed multiple photographs of underage boys in the shower, and a hidden camera was later found in the shower area. 

 

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A burger joint with a creative marketing strategy now finds itself a defendant in a lawsuit filed by the Oakland Raiders in a California federal court. Nation's FoodService Inc., which does business as "Nation's Giant Hamburgers," purchased billboard space right outside of the Oracle Arena (where the Raiders play) to advertise its hamburgers.  The advertisement has a cheeseburger popping through a black and silver background (Raiders colors), and reads, 

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Gloria Allred, a Los Angeles attorney who fashions herself as the leading activist of women's rights, has sued Lawrence Taylor on behalf of her client, Cristina Fierro. Fierro was the underage girl who was brought to Lawrence Taylor's hotel room by Rasheed Davis, where Fierro and Taylor had sex.  Taylor was prosecuted and pled guilty to patronizing a prostitute and sexual misconduct, receiving a 6 month probation sentence. Fierro alleges she was beaten by Davis and forced to have sex with Taylor. When she arrived at Taylor's room, Fierro claims she had a black eye and was visibly upset, and told Taylor she did not want to have sex. Nevertheless, Taylor proceeded to have sex with her and paid $300.

The Trafficking Victims Protection Act, upon which Fierro's lawsuit is based, has been used primarily to prosecute those engaged in trafficking for financial benefit, through use of force or coercion. Here, there is no indication that Taylor forced or coerced Fierro, other than Fierro's allegations. Since this is a civil action, Fierro's past history is now fair game. If she was a prostitute, we will hear all about it. Taylor's attorney has already come out swinging, stating, "[n]ow, in defending himself, Mr. Taylor and other independent witnesses will have to reveal the rather disparaging truth about Ms. Fierro and the facts about the evening in question."

A copy of the Complaint can be seen here, courtesy of the New York Post. Davis was not named as a defendant despite the fact that his alleged conduct, if true, clearly falls within the scope of the Trafficking Victims Protection Act. 

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Terrell Owens has made the headlines for his off the field conduct again.  The former Cowboy receiver has struggled to gain interest from any NFL franchise this year due to a knee injury he suffered last year.  With all his time away from the game, you would think Owens would have no trouble getting to a court date that was scheduled October 24th relating to child support payments.  But, Owens wasn't able to make it. 

Without a roster spot, Owens is going to have a heck of a time making payments to the child support that is based on his $11 million earnings in 2007. 

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Philadelphia Eagles backup QB Vince Young was recently sued in a Dallas Court, arising out of an assault that allegedly took place in June of 2010. Creiton Joseph Kinchen, a Manager at Onyx Gentlemen's Club in Dallas, claims that Young punched him in the mouth, busting his lip and causing neck pain. The Complaint, courtesy of Courthouse News Service, alleges that Young wanted Kinchen to charge Young's credit card for $8,000 and provide Young with single dollar bills, so that Young and his friends could tip the dancers. Kinchen seeks damages for his pain and suffering and emotional distress.

Back in June when the incident occurred, Young said he had been angered by Kinchen making a "downward Longhorns sign" with his hands (Young is a University of Texas graduate) . A video camera at the club caught part of the fight and can be seen here.  Young was charged with misdemeanor assault, and will now have to defend himself from this civil lawsuit. 

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In an emotional night at MetLife Stadium, the Jets pulled off a late comeback win against the Dallas Cowboys.  With the 10th Anniversary of September 11th looming on everyone's mind and recent fan violence at NFL games, security at MetLife Stadium was supposed to be higher than ever.  

Wrong!

At about 9:40 pm a fight broke out in section 323 which led to one man tasing 3 others in the incidentt.  All three men refused medical attention after being stunned, but it still leaves question as to how a man can make it past the security that was supposed to be at its highest with of all things a taser gun.  I can't get into that stadium with the wrong size camera lens let alone a weapon shaped like a pistol.  Needless to say, the man with the taser was charged with aggravated assault, possession of a stun gun, and possession of a weapon for unlawful purposes.  Release on a $22,500 bail seems fairly light for a man who brings a weapon into a stadium of over 70,000 fans on the anniversary of a day that haunts so many Americans.  

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As of Friday the New York Jets and New York Football Giants (both residents of New Jersey) had moved their preseason game up to a 2 pm kickoff (from 7 pm) for last Saturday.

This would mean there could be tens of thousands of sitting ducks, a/k/a "fans", in the Meadowlands parking lot as Hurricane Irene was about to smack the tri-state area. Thankfully, NJ Governor Chris Christie has the common sense to put this to a stop. Christie called NFL Commissioner Goodell to put the game off until Monday to avert a potentially disastrous situation. Apparently, the Jets and Giants were more interested in selling beer and collecting parking fees to understand that they could be putting their fans in harm's way. Not to mention that there was no public transportation on Saturday from the game, but if you know the Meadowland's parking lot, then you understand its the windiest place on Earth with no protection from the elements.

You have to wonder what the Jets and Giants were thinking? Maybe they were trying to help their brand new stadium naming rights sponsor, MetLife, sell life insurance policies to fans as they ran for their lives on the way out? Hey, no physical required if you can sprint to your car. Maybe the wanted to punish the fans who refused to shell out $20,000 for a PSL?

Maybe they just didn't care.  

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With the lockout situation resolved and opening day just a few weeks away, the NFL avoided disaster. However, lawsuits have been filed by former players against the league, claiming that the NFL intentionally withheld information concerning the effects of concussions from the players. The first lawsuit that seeks certification as a class action, filed in Philadelphia federal court last week, claims that the NFL taught the players to tackle with their heads, while knowing that such hits could cause serious neurological damage. A copy of the Complaint can be seen here.

These lawsuits will be difficult for the players to win. For starters, many retired players already receive benefits through the league's "88" plan and are subject to the collective bargaining agreement. The agreement should have been drafted to preclude additional claims such as those brought in the lawsuits. The NFL can also assert that the players assumed the risk that they would suffer head injuries, as football is a violent sport.

Notwithstanding the merits, class action lawsuits are expensive to defend, and given the bad press the NFL has received for its treatment of retired players, the NFL should seriously consider settling these lawsuits, and provide greater medical care for the retired players.  

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In yet another act of senseless violence, a 24 year old man was shot in the parking lot of Candlestick Park, following a meaningless preseason game between the San Francisco 49ers and Oakland Raiders. To be fair, it is not exactly clear why the fight occurred, but this happened on the heels of the Brian Stow incident, and the victim was wearing a shirt that read "F--- the Niners." The victim is hospitalized in critical condition, and there was another, separate shooting victim with less serious injuries. A third person was also beaten unconscious in a bathroom during the game.

Regardless of what caused the fights and shootings, professional sports teams have a responsibility to provide "adequate security." What is adequate depends upon the nature of the event (for example, games between rivals should have more security than usual), the extent of prior incidents at the venue, and the physical layout and number of attendees, among other factors. Of course, security guards are not typically expected to confront armed persons. However, a security presence can deter criminal activity and suppress fights before they escalate.

The 49ers have already declared that tailgating after kickoff will be banned. There are also reports that the NFL will stop the annual Raiders-49ers preseason game. Unfortunately, it only takes a small percentage of fans to ruin the experience for everyone else. Hopefully the Candlestick victims make full recoveries, and we stop reading about these vicious assaults. 

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Click here for the story.

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St. Louis Rams Linebacker David Vobora, who was suspended in 2009 for four games after testing positive for methyltestosterone, a banned substance, received some measure of vindication after obtaining a $5.4 million judgment against a Florida nutrition company, Anti-Steroid Program, LLC d/b/a S.W.A.T.S.  A Judge found that "S.W.A.T.S" misrepresented its "Ultimate Sports Spray." S.W.A.T.S. was ordered to pay $2 million for damage to Vobora's reputation and emotional distress, $3.04 million in lost income, and the remainder in lost endorsements and performance bonuses. The court may also award attorneys' fees.

However, the majority of news reports fail to reveal that this was a judgment entered by default against a company that likely has no assets. S.W.A.T.S. did initially hire counsel to answer Vobora's Complaint. On January 13, 2011, the parties notified the court that a tentative settlement agreement had been reached. However, in February, counsel for S.W.A.T.S. moved to withdraw, advising that S.W.A.T.S. had terminated its relationship with counsel. The court initially denied that motion, but later permitted the withdrawal, after the former President of the company advised the court that it had filed a voluntary dissolution in the State of Florida. Thus, Vobora's claim for damages went uncontested, and the Judge awarded the above damages by default. It is also doubtful that Vobora will ever collect anything from S.W.A.T.S.

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For the moment, NFL Commissioner Roger Goodell has no authority to discipline or suspend any players. This is because there technically are no players and no union contract to allow punishment. However, once the lockout ends, the commissioner will have his work cut out for him.

This week we learned that the NFL has investigated the involvement of at least 25 players who may have invested into a failed Alabama casino. The casino was closed due to corruption and gambling irregularities. The casino's owner entered a plea of guilty to 10 counts of public corruption charges. Not good.

The problem for Goodell is that many NFL players sunk millions into the corrupt casino. These players may include Terrell Owens, Santonio Holmes, Santana Moss and others.

It is a wonder how these players "misremembered" the NFL rules that absolutely prohibit players from investing in gaming operations. Obviously, players having a financial interest in gambling is not a good idea for the NFL (players are to be gambled on NOT the other way around).

Any player caught in this scandal will face suspension, fines and loss of their investment. No league can take gambling allegations lightly and you can bet the Commissioner will be more than ready to punish when he has his powers back. 

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There are plenty of published reports claiming that there is a renewed sense of optimism surrounding the NFL labor talks. Who knows, they may be right.

The problem is that in labor negotiations we are not a the nitty gritty yet. Yes, there is plenty of money to go around to line every one's pockets but what we don't know is what the owners and players REALLY want from this lockout episode. Are the owners going to stick to their demand to take the first "billion of revenue" of the top and demand 18 games (because the pre-season couldn't be worse)? Are the players going to resist changes in the salary cap and want an agreement that was just like the last one?

In labor negotiations, it great to be optimistic until the final demand bombs drop. If the talks can survive each sides' bottom lines then we will have football. However, if the owners and players still have wild cards to play, then you may want to find other things to do on Sundays in autumn.

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Back in April, Tennessee Titans Wide Receiver Kenny Britt was arrested on charges of eluding a police officer, hindering apprehension and obstructing a governmental function, after allegedly leading police on a chase.  Last week, those charges were resolved favorably to Britt, as he pled guilty to careless driving and speeding, and paid a $400 fine.

Britt wasted no time getting himself into trouble again. The very next day, Britt was arrested and charged with obstructing a governmental function (again), resisting arrest and tampering with evidence.  Police Officers at a car wash in Hoboken, New Jersey detected an odor of marijuana, and observed Britt with what appeared to be a marijuana cigar. The Officers attempted to handcuff Britt, and he allegedly attempted to get away while breaking the cigar in his hand. Police eventually wrestled Britt to the floor and arrested him, but were not able to recover the cigar or any evidence of marijuana.

Britt has to consider himself fortunate for the disposition he obtained of the April eluding charge. He may not be so lucky this time. If the allegations are true, Britt obviously has a problem complying with the directions of police officers, and he deserves more of a punishment than meaningless fines. 

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Now don't get me wrong, I prefer to practice in front of tough judges who aren't afraid to use their authority to "crack heads" when necessary to get to a fair and proper settlement. Yet, some judical-style "threats" are starting to get old.

At the last court appearance for the NFL and the Players, Judge Bye told the parties that they should settle or there would be a decision that "neither side would like."

Now what does that really mean? If the NFL and Players don't settle, the court is going to do something crazy? Don't the parties (even in this case) both have the right to expect the court will fairly apply to law to the facts of the case and make a learned decision? Of course, they do.

The problem with this judicial tactic, in my humble view, is that it is very over used. In almost every case that I am involved with I get it at some point and it goes pretty much without any reaction. As my grandmother used to say "in one ear and out the other."

I think it would be much more effective if the court told the NFL and its players that they should settle because it is shameful that judicial resources are being wasted on the question of how rich owners and wealthy players are going to slice up a $9 billion pie.

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Albert Haynesworth, the troubled Washington Redskin with a host of on and off the field issues, got lucky this week when a Virginia Judge dropped misdemeanor assault charges stemming from a road rage incident in which Haynesworth allegedly punched another driver.  Virginia law grants Judges discretion to dismiss such charges, as long as the victim advises the court that he or she has been compensated financially and "made whole."

This isn't the first time Haynesworth couldn't keep his hands (or feet) to himself. In 2006, Haynesworth stomped on the head of Dallas Cowboy Andre Gurode, causing severe injuries to Gurode. Also, earlier this year, Haynesworth allegedly sexually assaulted a waitress, and was indicted in April. 

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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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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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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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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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The Eight Circuit Court of Appeals acted quickly in response to the NFL's appeal, granting it a temporary stay of Judge Nelson's order that granted the players an injunction.

The Eight Circuit has reinstated the lockout, until such time as it has had the opportunity to determine whether the NFL is entitled to a full stay pending its appeal. Confused? You're not alone. Let's back up.

Judge Nelson granted the players an injunction, which is temporary relief until the Court decides the players' claims on the merits. The NFL believes the players are not entitled to an injunction, and asked Judge Nelson to stay the injunction (meaning keep the status quo), and she refused. The NFL then appealed Judge Nelson's denial of its request for a stay to the Eighth Circuit, arguing among other things, that injunctions are not permitted in labor disputes. Although the Eighth Circuit is not ready to decide whether the NFL is entitled to a complete stay, it has issued a temporary stay, until it has the opportunity to determine whether the NFL is entitled to an actual stay.

We are far from a determination on the merits (which must first be performed by Judge Nelson), but the Eighth Circuit is expected to decide next week whether the NFL is entitled to a stay of the injunction, until the players' claims have been adjudicated. What does this mean? We will not find out for quite some time whether the players or the NFL are right, and that both sides must now work together to avoid compromising the 2011 NFL season.

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Moments ago the NFL announced 2 important issues regarding the league’s bizarre labor situation. First, the NFL stated that it has begun the process of seeking appellate intervention (in the 8th Circuit Court of Appeals in St. Louis) to reverse the lower court’s decision prohibiting the lockout from continuing, and second, that the NFL was “open for business.”

Forget the merits of the NFL’s appeal of Judge Nelson’s decision, just play the odds for the moment. In federal legal practice, it is unusual for an appellate court to get involved in a case pending in a lower court until ALL the issues before the judge are decided. It is not been discussed much in the media but the players have filed breach of contract claims against the owners and these causes of action are a long way from being decided. Normally, the appellate court prefers to hear all the issues in a case once the litigation is fully concluded in the lower court. In short, federal appeals courts want one appeal of all the issues (by all the parties) instead of deciding issues on a rolling basis.

The NFL’s lawyers know this point of appellate practice. Their lawyers know that it is an uphill battle to get the appellate court even to hear the issues pertaining to the lockout at this point. If for some reason, the 8th Circuit does get involved, at this early stage in the litigation, I would take that action as a very positive sign for the owners.

But the reality is that the odds are against the owners (at this point), so they need to figure out how to run their league without a CBA and focus on what choices the NFL can make to enforce new work rules and conditions that are favorable to ownership since there is no Players’ Union anymore to protect the individual players.

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Well, yes, if Judge Nelson's ruling is upheld.

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Miami Dolphins Wide Receiver Brandon Marshall was hospitalized on Friday, after being stabbed with a knife by his wife, Michi Nogami-Marshall. The Marshalls have a history of domestic issues, and this time, Mrs. Marshall claims that she stabbed Brandon in self defense.  

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Tennessee Titans Wide Receiver (and former Rutgers star) Kenny Britt was arrested Tuesday in Bayonne, New Jersey, on charges of eluding a police officer, hindering apprehension and obstructing a governmental function. Britt was driving 71 MPH in a 50 MPH zone. Instead of pulling over and receiving a $200 ticket, Britt allegedly decided it would be a good idea to drive away from the police officer, and now faces criminal charges. Britt was found walking away from the car, and lied to the police officer about being the driver. Some outlets have reported that there may have been a drug charge as well.

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With baseball underway, the NFL is slowly falling out of the media spotlight.  The NFL draft is later this month, but the initial panic of a lockout has gone under the radar.  That doesn't mean all is quiet.  Multiple lawsuits have been filed against the NFL because of the lockout.  At first, the Tom Brady Lawsuit was the only complaint brought against the NFL for the lockout, but since that a few others have followed.  

Hall of fame defensive end Carl Eller has spearheaded a second antitrust lawsuit that focuses primarily on representing  “all retired or former professional football players who were employed by any NFL member club but are not now employed by the NFL or any member club and who receive health, retirement or other benefits from the NFL pursuant to the ‘Bert Bell/Pete Rozelle NFL Player Retirement Plan’ . . . or other benefit plans subsidized by the NFL” and “potential rookie professional football players who, as of March 11, 2011 to the date of final judgment in this action and the determination of any appeal therefrom, have not previously commenced negotiation with any NFL club concerning employment and have not been selected in any NFL College Draft.”  The 106 page complaint was filed in the same Minnesota federal court that the Brady v. NFL lawsuit was filed.  Since the CBA calls for the 2011 NFL Draft to take place, the Eller case is placing more focus on the draft and potential NFL players, while the Brady case is primarily focusing on current NFL players.  The Eller complaint and case also varies from the Brady case because it can avoid the NFL's defense that the union illegally decertified.  

The NFL has always been about the fan's experience and interaction, so how could the fans resist jumping on the bandwagon to sue them?  Cleveland Browns season ticket holder Kenneth A. Lanci has filed a lawsuit naming both the Cleveland Browns and the NFL.  Lanci, the self made millionaire and owner of 10 season tickets and PSL's is seeking $25,000 from the NFL and $25,000 from the Cleveland Browns.  Lanci is basing his complaint on the fact that the NFL lockout is preventing him from possessing and using his seats for the games.  A few teams have adjusted their payment structures for season ticket holders, but Lanci has taken it upon himself to stand up to the NFL.  Lanci said in an interview with ESPN, "It's a fight between billionaires and millionaires. There isn't any sympathy for multimillionaires. It's just not going to happen. And somebody has to stand up and say, 'Enough's enough.' "  If you have ever been to the "Dawg Pound" in Cleveland, you know, don't mess with Brown's fans.

With all of these lawsuits, it doesn't seem like much progress is being made.  And of course if the season starts on time, all will be forgotten.  But, with more and more action in the courtroom, and less action happening on the field, look for more and more potential plaintiffs to emerge seeking their cut of the damage caused by the lockout.  Not only for the NFL, but the looming NBA lockout.  These cases could carry weight beyond serving as hot stove drama while the millionaires and billionaires that make up the NFL argue.  

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The creator of the Madden NFL video game, Robin Antonick, has sued Electronic Arts, seeking millions in unpaid royalties. The complaint, a copy of which can be seen here courtesy of Courthouse News Service, provides interesting details surrounding the creation of the video game, which was first developed for the Commodore 64. Antonik claims that his groundbreaking development of a football video game involving 11 players on each team was thought to be impossible, due to processing power limitations of hardware at the time (the first game was released in 1988).

Antonik seeks tens of millions of dollars in royalties. The Complaint alleges that Electronic Arts has sold 85 million copies of the various versions of the game, totaling approximately $4 billion dollars. The main contract, signed in 1986, lowered Antonik’s royalties from the 1983 contract, in exchange for a promise of long-term royalties, although at a lower rate. The royalty rate for Antonik’s product was reduced to 7%, and he received only 1% on derivative works. Antonik essentially claims that the current versions of the Madden game are not independent versions but follow the programming he developed, and therefore not “derivative works.” 

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By Mitchell Ayes

Tampa Bay Buccaneers cornerback Aqib Talib turned himself in to police in Garland, Texas on March 30, 2011, and was released after posting a $25,000 bond. Talib turned himself in after arrest warrants were issued for aggravated assault with a deadly weapon for himself and his mother, Okolo Talib. Talib was charged with a second-degree felony which can carry a prison sentence of two to twenty years while his mother was charged with possession of a firearm. The arrests stem from an incident in which Garland police believe that Talib and his mother shot at Talib’s sister’s boyfriend on March 21, 2011. According to police, the man was not injured. This incident was not Talib’s first run in with the law as he was involved in an altercation with a cab driver in 2009 which resulted in a one game suspension last season. As a result of the altercation, Talib was entered into a pretrial diversion program and ordered to attend anger management classes. Talib, the Buccaneers first-round selection in 2008, after a three year career at the University of Kansas, now leaves his football fate in the hands of Commissioner Goodell. While the NFL has locked out its players, they are still subject to the league’s personal conduct policy and disciplinary action may be taken after the lockout is resolved. Talib will need to look closely at the Plaxico Burress situation and what actions Commissioner Goodell takes with him after he is released from jail this June on his gun possession charge, as he may await the same fate. 

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Is a $9 billion pie enough to find peace for the players and owners. We may know by midnight on Friday.

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Earlier this week, we covered a story on channelsurfing.net's founder Brian McCarthy being arrested for streaming sporting events including WWE, UFC, NFL, and NBA events.  Originally, it was thought that McCarthy would be convicted of "copyright infringement" and "theft of intellectual property", but after reviewing the complaint, it appears that the main allegations are McCarthy's "linking" to websites containing copyrighted materials.  

Demandprogress.org makes an interesting point that this would incriminate anyone who ever sent a link to a copyrighted YouTube video.  An interesting point, that could change the way people go about their daily email habits.  Is the government going to go ahead a prosecute each and every person who puts up a link to a copyrighted YouTube video?  Let's hope not.

Law is something that is supposed to change with time and adapt to changes in society.  Obviously, the Internet and new technologies are uncharted territories for certain laws, and the government needs to be sensitive to how it handles each of these instances.  It is clear that profiting from the distribution and streaming of sporting events over the Internet should be strictly monitored and controlled, but could the broad allegations and repercussions of a lawsuit stemming from this matter affect more than just those trying to profit off of these sites? 

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Yesterday, we received that news that the NFL and the Players’ Union agreed to extend their Collective Bargain Agreement’s deadline until midnight tonight and to keep negotiating.

Immediately the pundits began to analyze what was the true meaning of this development? This must be good news, right? Or maybe, it’s just a short extension before an inevitable long lockout?

The truth is that only the people in the negotiating room know what this really means. However, it is fair to conclude that yesterday the parties agreed that there was enough reasons to keep talking. Unfortunately, that could change fairly quickly.

I think it’s fair to assume that if a new CBA is going to happen it may take a serious amount of time to hammer out all of the final details, this will require another (and much longer) extension of time to negotiate. It will also require that cooler heads continue to prevail.

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With all the commotion going on over profit sharing, NFL Players and Owners, and a potential lockout, Brian McCarthy was arrested by agents for operating a website that pirated and streamed telecasts of various sporting events (including the NFL).  

Unlike the main players in the NFL negotiations, who are more interested in signing major deals with the giant television channels, UFC has gone ahead and waged a war on the pirating of their Pay Per View Events and online broadcasts of their rapidly growing sport.  As more and more of these sites pop up, it is easier for fans to follow their out of town team without paying, or watching a Pay Per View event without shelling out the $50.00 price tag.  The UFC has taken exception and is looking to strike back.

McCarthy, the owner of Channelsurfing.net since 2005 made over $90,000 in profits from online advertising he sold to online merchants.  Was the $90,000 worth potentially 5 years in prison?  McCarthy will face up to five years if convicted of "copyright infringement" and "theft of intellectual property".  The Southern District of New York's Complex Frauds Unit will be handling the case.

After the UFC reached settlements with various online companies that had been illegally broadcasting UFC events in mid 2010, they are now out to make a statement and McCarthy may be filling that role.  Current President of the UFC Dana White was quoted saying, "When people start going to jail, people will stop doing it".  I guess we will see if McCarthy will be the poster child for the streaming of sporting events online.

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In what must have been a big shock to the NFL, Federal Judge David Doty overruled a recommendation of a special master and found that NFL violated its collective bargaining agreement (“CBA”) with the NFLPA Union when it negotiated the league’s TV contract. Judge Doty found that instead of negotiating the most lucrative deal it could for the owners and players, the NFL got itself a $4 billion slush fund to protect itself from a lockout.

I am assuming the NFL’s lawyers (and the owners) are stunned (probably with red faces) by this decision. First, in the federal court system, it is unusual (to quite rare) for a judge not to follow the recommendation of a special master. A special master is appointed by the judge to handle discovery in a matter and make a decision recommendation for the court to “approve.”

In most cases, that’s exactly what happens. The special master makes a recommendation and the district judge goes with it. But something went wrong here for the NFL.

From his decision, Judge Doty recognized that if the owners had given themselves a $4 billion lockout insurance policy, they violated the CBA’s requirement to negotiate the most lucrative deal for all (including the players). To fulfill this requirement, the NFL should have handed over 60% (as per the CBA) of the $4 billion to the players for their portion of “lockout money.”

Now Judge Doty can affix a financial penalty against the NFL for violating the CBA in its TV deal. I wonder what it will be?

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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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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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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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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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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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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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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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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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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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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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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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Eric Shelton, a former NFL player, filed a lawsuit on Monday in Maryland federal court against the NFL Player Retirement Plan (the "Plan"). Shelton alleges that on July 26, 2008, he suffered a career ending injury as a result of a helmet to helmet collision in a preseason game. He claims that the Plan, while acknowledging that he was totally and permanently disabled, denied him full benefits because his disabilities allegedly did not "arise" within twelve (12) months from the date of the injury. Thus, instead of receiving $220,000 per year, Shelton received $110,000. According to Shelton's Complaint, the Plan is relying upon the fact that Shelton briefly worked at Walgreen's in support of the its assertion that he was not totally and permanently disabled after the injury. Shelton, on the other hand, claims he attempted to, but could not work, and therefore this is proof that he was in fact totally and permanently disabled within twelve (12) months after the injury.

The Complaint, brought pursuant to the Employee Retirement Income and Security Act, appears to have merit despite the absence of a complete factual record at this stage. There is no question that the Redskins' doctors determined that Shelton was seriously injured as a result of the July 26, 2008 collision, and should never play football again. On the other hand, Shelton's attorney, while disputing the Plan's claim that Shelton worked at Walgreen's for any significant period of time, does not disclose the actual duration of Shelton's post-injury employment. This will be an interesting case to follow, as it will be perceived that the Plan is punishing players for attempting to return their lives to some measure of pre-accident status.

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Just a couple of days after what turned out to be a key interception in the Saints' 30-27 win over the Cowboys, Defensive End Will Smith was arrested after allegedly grabbing his wife's hair and pulling her down the street after leaving a Lafayette, Louisiana nightclub. Although Racquel Smith's injuries were reportedly minor, Smith was charged with domestic abuse and simple battery. Under Louisiana's criminal laws, Smith faces a minimum of ten days in jail, although he is eligible to have any sentence suspended, as long as he complies with the conditions of probation.

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It is being reported that Lawrence Taylor is attempting to cut child support for his daughter, who is afflicated with an intestinal disease that has no cure. Ebony Washington, mother of Erielle, Taylor's 12-year old daughter, filed a motion in Bergen County Superior Court in New Jersey to increase the $1,825 monthly child support payment. In response, Taylor filed a cross motion to reduce the child support payment by $500. Without reviewing the motion itself, we do not know the circumstances, but generally child support orders may be modified based upon "changed circumstances."

Taylor did not help himself by failing to appear in Court yesterday. It was reported that Taylor had his doctor send a last-minute email to the Court claiming that Taylor had a medical condition that prevented him from flying. This did not make Judge Melchionne happy, and he threatened issuing a bench warrant, even though Taylor's attorney did appear. Judge Melchionne nevertheless set a February trial date.

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Former New York Giant, New York Jet, and New England Patriot has been sentenced to 30 years in prison in South Carolina.  Meggett, a former Pro Bowl return man and Super Bowl winner has a has been found guilty of 1st degree criminal sexual misconduct and 1st degree burglary in South Carolina. 

Meggett is being accused of raping a college student in 2009.  Meggett has admitted to having sex with the woman, and has said it was a repayment agreement for a debt.  According to the prosecution, Meggett choked the victim and used physical violence to force the sexual act.  Meggett's attorney, Beattie Butler, told the jury, "Rapists don't ask for condoms, and they don't ask for forgiveness,'.  After nearly 5 hours of deliberation, jurors reached the verdicts and Meggett received his sentence.

Meggett has a troubled past with previous similar incidents in 1990, 1998, 2006, and 2008.  

• In 1990, Meggett was found not guilty of soliciting sex from an undercover police officer.  
• In 1998, Meggett was arrested for allegedly assaulting an escort worker in Toronto.  Those charges were dropped.  
• In 2006, Meggett was formally charged with Second Degree Rape of his girlfriend.  Meggett was convicted of sexual battery and given 2 years of probation in the case.  
• In 2008, Meggett was charged with third degree criminal sexual conduct of a 17 year old woman who also accused Meggett of rape.  

Meggett's criminal past is extensive, but not as prominent as other troubled New York Giants.  It is unfortunate to see a fan favorite go down like this, but it seems ability to elude the law just like he eluded defenders has caught up to him.  Meggett will attempt to appeal the case, but unless the decision is overturned, it is likely that Meggett will spend the remainder of his life behind bars.  

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Earlier this week, it was reported that Jenn Sterger would meet with the NFL’s investigators concerning the alleged sexual harassment by Viking’s QB Brett Favre. Now, it looks like she may be cancelling. Sterger cannot be allowed to hold up this investigation at her unreasonable option.

Sterger is not an unsophisticated person. She is an experienced media personality with a team of lawyers. The bottom line is her delaying is hurting the investigation. Either she wants to help the NFL get to the truth or not. These types of cases are only as good as the credibility of the “complaining witness”

Sterger’s endless delays are starting to make it look like she got a story sell into of a story to tell.

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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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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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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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Whether its Braylon Edwards, K-Rod, Lawrence Taylor or the many others, professional athletes have really done their part in keeping their lawyers busy.

Many were outraged that the New York Jets were not going to suspend their wide receiver, Braylon Edwards, after his DWI arrest for their upcoming game arrest the Miami Dolphins. Well, why should the Jets suspend anyone?

Dolphins' running back, Ronnie Brown and cornerback, Wil Allen, were both arrested for DWI themselves. Defensive end, Phillip Merling, was arrested for allegedly assaulting his pregnant girlfriend. Not to be left out, Tony McDaniel, was also locked up for misdemeanor battery. The Dolphins have all of these players, and their wrap sheets, ready to go, so why should the Jets suspend Edwards?

Suspending any of these players, without pay, in the Jets/Dolphins game would only serve to impede the players ability to pay their legal fees. Now, that's not good for business.

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The NFL has fined Brandon Jacobs $10,000.00 for his helmet toss this past Sunday.  Jacobs has also made it clear he has no intention of demanding a trade or a meeting with the New York Giants coaches or management. 

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Sunday's big match-up between the Manning brothers did not live up to the hype.  Lackluster run defense and surgical offensive execution gave the edge to Peyton Manning and the Indianapolis Colts.  Not only did the Giants lose on the field, but it looks like Brandon Jacobs' actions and his mouth have continued to embarrass the team on the sidelines and off the field.  

After one of the Giants many quick three-and-outs of the game, New York Giants running back Brandon Jacobs came off the field and launched his helmet into the stands.  Jacobs, whose frustrations has lead to off the field remarks including a trade request,  later told reporters he was sorry for the incident and lost control of the helmet as he attempted to throw it under the Giants bench.  The helmet landed 6 rows up into the Indianapolis Colts crowd and was knocked down by an Indianapolis Colts fans.  No one was injured stemming from the helmet toss, but there was an altercation between the Colts fans and the Lucas Oil Stadium security.  

The NBC broadcast caught the majority of fan and security personnel interaction, and it was clear the fan did not want to return the helmet.  It almost looked like a tug of war match between the two groups.  After it was all said and done, Jacobs got his helmet back and the disgruntled fan got what he was told was a game ball from the Colts.  

The big question now is what happens from here.  Jacobs claimed it was an "accident" and the NFL and the New York Giants have yet to take any to penalize Jacobs for his outburst, but it was clear Sunday night and in recent statements from the Colts fan that he was very displeased with the entire incident.  In other sports, fans have gone ahead and sued players individually and manufacturers for their roles in injuries the fans have been subjected to due to play on the field.  But in this case, it may be a question as to whether or not the fan should assume the risk that a players' helmet will take flight into the stands.  

In a recent action filed in Manhattan court, involving the New York Mets and the Rawlings company has given some precedence that fans can sue for their injuries sustained due to a bat being shattered on the field.  This is a different type of incident though.  Although no injuries have been reported to date, this fan may decide to come back after Jacobs and the Giants for his "accidental" heave.  

In a release to ESPN, the fan says he is an avid Colts fan and goes to all the games.  Would you be surprised if your "Average Joe" fan decided to claim in the future some type of trauma due to the incident?  

To date, no threats of a lawsuit have been made, but with attorneys smelling blood in the water and the Giants running back reeling from his recent off the field remarks anything is possible.

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The New York Jets have confirmed that their wide-receiver, Braylon Edwards, was arrested last night on the west-side Manhattan for allegedly driving while intoxicated.

According to preliminary reports, the NYPD stopped Edwards, in his Range Rover, on 34th Street and 12th Avenue, for having illegally tinted windows. After the vehicle stop, the police detected alcohol on Edwards' breath. After taking a breathalyzer exam, Edwards blew a .16 blood alcohol level, double the legal limit of .08.

Edwards will be charged with misdemeanor DWI in a Manhattan courtroom this morning. In NYC, there is no plea bargaining on DWI charges. If he pleads guilty, Edwards (on a first offense) will face 3 years probation, loss of his driver's license for 6 months, required driver education and fines. If he has a second offense, he will be looking at jail time.

As a former NYC prosecutor, I have handled hundreds of DWI cases. When a defendant, like Edwards, blows over .15, he is dangerously drunk. When you cross a reading of .2 on a breathalyzer you are close to blackout drunk. While there is no excuse for any DWI, Edwards' actions (if true) are more than disgraceful as he could have used part of his seven figure salary to pay for a cab.

We will following whether this arrest will violate Edwards' existing probation, in Ohio, for an October 2009 bar fight involving Edwards and a friend of Lebron James. If this arrest violates his probation, a court in Ohio may issue a warrant for his arrest.

Once again, stay tuned.

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So New Orleans Saints' running back Reggie Bush expects us to believe that his decision to return the 2005 Heisman trophy is "not an admission of guilt." Then what the heck is it? An admission that he followed all the NCAA rules to the letter?

This is just another example of the double-talk nonsense used by professional athletes in the hopes of satisfying the fans and media. To make matters worse Sean Payton, Bush's coach, said that the disgraced college player had "matured a ton" since he was drafted.

I beg to differ.

If Bush had actually matured, at all, he would have come clean about his improper conduct at USC and, at minimum, apologized for his lies and misdeeds. That's what a mature person would have done.

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According the published reports, Saints QB Drew Brees, who doubles as a member of the NFLPA's board of directors, has stated that more public "solidarity" displays by NFL players are planned for this season.

There is no question that the players for the Vikings and Saints caught the NFL (and NBC) off guard when they walked on the field and raised their collective index fingers as a sign of labor unity. This week there were rumblings that the NFL would balk any more television coverage of these types of NFLPA displays during games. The truth is that these actions by the NFLPA are news and a potential sign that the union is willing to put up
more of a fight in a coming 2011 lockout. As such, it would be an absolute failure of journalist integrity if the networks simply ignored covering them.

Remember that in a league were the injury rate is 100%, the NFLPA has allowed its members (the players) to be saddled with non-guaranteed contracts that can be repudiated by the teams. This means if you get hurt, you get cut. We will be watching, in the coming months, to see if the NFLPA has set its sights on implementing guaranteed contracts to protect its players from being thrown on the NFL scrap-heap.

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New York Jets cornerback Darrelle Revis' holdout is starting to get dangerously close to the beginning of the season. A Jets' defense without its best player, Revis, certainly will put the team at a disadvantage entering the regular season where the team hoped to make it to the Super Bowl.

But for Revis, there is much more at stake then just his holdout for payment as the best cornerback in the NFL. According to the NFLPA head DeMaurice Smith a NFL lockout may be inevitable for the 2011 season. Smith has complained that the NFL owners want billions of dollars back from the players in any new collective bargaining agreement ("CBA") to save the 2011 season.

Well, where will those billions of dollars come from if a new CBA can be reached?

In the NFL labor world, the owners want less and less guaranteed money to be paid to its players. In a league with an 100% injury rate, the owners continue to press from non-guaranteed contracts.

This is the problem for Revis. If he holds out too long, like the entire season, Revis may return to a very different NFL with a much different contract landscape. Let's face it, the NFLPA hasn't done a great job protecting its players. In the NFL, the owners have had the upper hand in the CBA outcomes.

If Revis doesn't grab as much guaranteed (and upfront) money in 2010 as he possibly can, there may not be any left if and when the NFL comes back after a nasty lockout battle.

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ESPN commentator Jay Mariotti pulled a Tito Ortiz this weekend and was arrested for domestic violence.  The incident happened late Friday night into early Saturday morning.  According to sources, Mariotti's altercation with his girlfriend went "Around the Horn".  Initially, Mariotti and his girlfriend were arguing at a club in Santa Monica.  It then spilled over into Mariotti's Venice apartment, where police were called at approximately 4:30 a.m..  Cincinnati Bengals wide receiver Chad OchoCinco broke the news via Twitter.  

Mariotti was released on a $50,000 bail.  It will be interesting to see how ESPN handles this incident with Mariotti.  Check back for updates.  

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Today, in a Rockland County (NY) courtroom, former Giants star Lawrence Talyor pleaded not guilty to felony rape charges allegingly involving a paid sex act with an underage girl.

So what happens now?

Well, the criminal legal process now begins its most boring but important phase. After pleading not guilty, LT now has the right to "discovery" of documents and tests from the prosecution. Over the next few weeks, the prosecution will have to give the defense every piece of paper created by the police in the case (i.e. all police reports). In addition, if the prosecution has any scientific tests (like DNA evidence), these results also must be given to the defense.

All of the this information is criticial to the defense. If this case goes to trial, LT's attorneys must poke holes in the prosecution's case that can lead to creating "reasonable doubt." A good defense attorney will use discovery to devise theories of attacking the prosecution's case by disputing police reports, finding errors in witness testimony and discrediting DNA evidence.

In short, for Taylor's attorneys, this is when the hard work starts.

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 -- JaMarcus Russell was arrested, in Alabama, yesterday as part of an 

undercover investigationinvolving the illegal possession of narcotic strength codeine syrup. Apparently, codeine syrup can be combined with alcohol and sugar (i.e. Jolly Ranchers) to enhance the effects of booze (refered as "Purple Drank"). Check the link here, about how Purple Drank makes you fat and out of shape.

Since JaMarcus is now unemployed, this might be a negative for his resume. Nice work, big guy.

-- Not to be outdone, Chris Simms, backup quarterback of the Tennessee Titans was arrested, in Manhattan after a traffic stop when he told police he was smoking "marijuana." Now Simms claims that he meant "cigarettes." I wonder if his car looked like it was out of a "Cheech and Chong" movie.

Oh well, the misdemeanor drug case is on for August 23. Normally, first time drug possession in NYC will result in a slap on the wrist.

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Virginia Beach Police are investigating a shooting that occured during a birthday party for Michael Vick that was "hosted" by his brother, Marcus Vick. Marcus Vick has had his own legal problems and failed to become an NFL player.

Apparently an individual was shot minutes before Michael Vick left the party (about 3 minutes according to surveillance video). Michael Vick denies any involvement in the shooting. The police aren't ready to rule anyone in or out.

The problem for Michael Vick is that he still doesn't get it. Apparently, this party was open to the public and may have been some scheme for Marcus Vick to make money from the gate. Once Michael Vick knew the party was open to anyone, he should have never gone there. This is precisely the situation where a crime or accident could occur.

Tony Dungy, Michael Vick's, "mentor" has openly criticized him for attending this party, Vick should listen. There is no question that Michael Vick only has one strike left, while this incident might not be it, you can be sure Commissioner Goodell is watching.

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Today, The Rockland County District Attorney's office took a major step forward against former NY Giant star Lawrence Taylor by indicting him on a statutory rape charge and other misdemeanor charges.

While this scandal will be big news and give the local NY papers some outrageous headlines, let's use this opportunity to get "technical" on the legal process of what happens to LT next.

The DA has now had a grand jury accuse LT of certain sexual abuse crimes carrying a sentence of 4 years in prison. When this indictment is reported to the local criminal court, the judge will transfer the case to Rockland County's Supreme Court (not the highest court in NY - only the trial level). The Supreme Court hears cases after a defendant is formally indicted, Once the case is transferred, LT's will shortly have his first court appearance and the judge (now in Supreme Court) will set a discovery schedule, which will mostly involve police reports, witness statements and evidence tests.

After discovery is complete, the court will select a trial date. It is important to note that Rockland County is not a particularly busy county for serious felonies like this case. As such, LT could get a trial date right after Labor Day.

One more thing to keep your eye on in criminal procedure of this case is the DA's inclusion of misdemeanor charges on the indictment. This could give the DA some flexibility to plea bargain if this case goes bad. If the DA is concerned that he will not get a felony conviction, he can dismiss the statutory rape charge and plea LT to a misdemeanor. Under NY law, a misdemeanor plea can give the DA wide latitude to offer "non-jail" dispositions, like probation, community service and fines.

Although technical nature of the case won't make headlines, it good to have important things in mind as LT enters the fight of his life.

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Vince Young now says that he regrets his ill-advised fight in a Dallas strip club. Well, of course, he does. He also claims that he has magically "matured" in the hours following the incident. Young must think we are all stupid.

When a new player comes into the NFL, he is warned not to engage in behavior that will make him a easy target for lawsuits, bad press, and You Tube. Vince has accomplished all that in one ridiculous move. He has been charged with a minor misdemeanor (penalty up to $500) and the fight was caught on video.

More troubling, however, is Young's inability to engage in "mature" judgment when faced with a simple situation. Apparently, at the "Club Onyx", a person showed Young a downward facing Texas Longhorn sign, this is deemed to be disrespectful. Instead of doing nothing (not to mention realizing he was in a strip club at 3:30 in the morning where nothing good can happen), he flew into a rage and attacked the other individual. Obviously, disregarding the choice to leave before anything bad occured.

Although Vince likely never considered the ramifications of his conduct, he better change his ways. If a NFL QB, in top athletic condition, connects in the right way with a punch on some loser in a strip club, the result can be a one-punch homicide. If you don't think that can happen, you're wrong. I have seen it my work as a NYC prosecutor and the result is a manslaughter charge.

At a minimum, Young may be out $500 and facing an NFL suspension for this incident. Next time, if there is one, he luck may run out. 

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In the small but important development category, the statutory rape case against Lawrence Taylor will be adjourned on Thursday to June 24, 2010 in criminal court.

The reason for the adjournment is simple, the district attorney's office has 5 years under NY law to indict LT for this crime. So why rush? The DA has indicated that he is waiting for certain lab results that will be needed to be presented to the Grand Jury.

In New York, the DA only must present sufficient evidence to show a crime was committed and the defendant committed. To do this, only a small amount of evidence is needed. The alleged victim's testimony and lab results are more than enough. This can be easily accomplished by June 24 if the lab tests are in hand.

The factor to watch is whether LT will exercise his right to testify before the grand jury. In one of strangest aspects of NY's criminal procedure, a defendant may speak directly to a grand jury. However, during the defendant's testimony, his defense lawyer may say NOTHING. The defense attorney can ask no questions or offer no objections. After the defendant is done testifying, he is then cross-examined by the DA.

For these reasons, most defendants don't testify before a grand jury. Most times, the defendant gets indicted anyway and all the accused has done is give the DA a preview of his trial testimony. The grand jury is no place for a shaky defendant, who never has to testify before any jury, ever.

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Geoffrey Calver breaks down the possible ramifications stemming from recent Supreme Court decisions involving American Needle, Inc. the NFL.  

John Madden Football has become one of if not the most popular gaming franchises ever and may have competitors emerge due to the recent decisions.  Interesting article that makes you wonder what other "officially licensed" merchandise may be affected by these decisions.   Allowing each team to act as a separate entity will definitely allow for more competition between companies, but what will it do to the relationship between the NFL and its teams?

Check back for a break down of the entire American Needle, Inc. case.

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Today, Dr. Anthony Galea, who has treated major athletes such as Tiger Woods and Alex Rodriguez, was charged with unlawfully treating athletes with illegal drugs including Human Growth Hormone (“HGH”). Dr. Galea, a Canadian citizen, was charged in Federal Court in Buffalo, NY.

The documents filed with the court allege that Galea illegally gave 2 HGH kits to at least one NFL player. The Feds also may have other NFL players that are witnesses to Galea’s alleged HGH distribution. Galea has not entered a plea to these charges as of yet.

We now know that the Feds believe they can connect Galea to HGH use in the NFL. If true, this another blow to the NFL and its apparent lack of enforcement to restrict HGH. The NFL already was rocked when Defensive Rookie of the Year, Brian Cushing, tested posted positive for steroids. This news of HGH allegations in the NFL doesn’t help at all.

The case may shed light on the “pass” the NFL has received on steroid and HGH use by its players while baseball has gotten the majority of the scrutiny. We also will be watching to see if Dr. Galea can be “flipped” to give up other star athletes that may have also received illegal drugs.

We will update once Galea’s lawyers begin to comment on the charges.
 

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Woody Johnson, the owner of the New York Jets has now proclaimed that he will not be blacking out his team’s home games, from TV, because the Jets can’t sell its remaining overpriced personal seat licenses (“PSL”). What a guy.

The Jets “stadium mates”, the New York Football Giants have sold more PSL’s than the Jets but are yet to sell out.

Let’s keep in mind that there is no way a New York media market team is going to rock the foundations of the NFL TV contract because they can’t sell a few seats. A blackout would be a financial disaster for the NFL as precious advertising money would be lost.

For those of you are not from the NY area, you need to know the following truths. Truth #1: there was nothing wrong with the now torn down Giants Stadium (where the Giants and Jets played). A simple facelift and some improvements with the concourses and the concessions stands would have made the fans happy. But no, the owners of the Giants and Jets had to build a $1.6 billion “white elephant” stadium instead to charge their fans for these PSL’s. Truth #2, the Giants and Jets badly mistimed the market. The teams hoped to squeeze out their loyal fans from their good seats (held by fans for generations) and replace them with well groomed stock brokers and hedge fund managers from Wall Street (oops). Truth #3: so now a family of 4 can sit on the 50 yard line, in the new stadium, for the “reasonable” price of $2,800 per game (I don’t know if that includes tax). That’s right; the best seats are now $700 a ticket. Did I mention those seats have PSLs of $20,000 per seat? Truth #4, once you pay for the PSL, there is no college fund for the kids.

So now that you know the ugly truths. What will the Jets and Giants do? They will screw their fans, of course. If they can’t sell their oppressive PSL’s with their outrageous ticket prices, the Jets and Giants will have to find a way out to save the NFL TV contract. They will give the seats to advertisers or maybe host those stock brokers to a free game in hopes of making a sale.

I wonder if they can use that TARP bailout money on a PSL?
 

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It just may be possible that former Giant great Lawrence Taylor is setting up some type of “fetish defense” to the statutory rape charges against him.

Yesterday, we learned that LT claimed that he never had sex with the girl prostitute but only engaged in masturbation. Today, it has been widely reported that “sources” are saying the girl told a friend that her “meeting” with LT was “easy money” because she “didn’t even have to f__ him.”

Remember, in a statutory rape case all the prosecution has to show is that LT engaged in sexual intercourse with a minor. However, the prosecution must prove that sexual intercourse occurred, not just masturbation or any “fetish-like activity.” This raises the strong possibility that LT may claim that he has some bizarre masturbation fetish involving young women.

While this certainly is an unsavory course of conduct, it is also a complete defense for LT that could save him from jail.

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Several news organizations are reporting that former New York Giant Lawrence Taylor has a new “defense strategy.”

Apparently, “sources” are saying that LT will claim that he never had sex with alleged victim but instead engaged in a “masturbatory act.” These same sources reveal that LT will admit to being inside the hotel room with the girl but continue to deny that any sexual intercourse occurred.

So what’s the purpose of this strange admission (if it is even true)? The NY Daily News is reporting that this “masturbatory act” is designed to “scuttle” the third-degree rape charges against him.

Well, they are half right. LT must know that the police may have DNA evidence against him. There also are rumors of a condom being recovered by the police from the hotel room. If this is the case, LT may need a story to explain the recovery of his DNA from the hotel room. An easy explanation is sex. While LT’s explanation may be embarrassing, he may have to convince a jury that it’s true to avoid prison.
 

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We know that Lawrence Taylor, through his lawyer Arthur Aidala (a former colleague of mine at the Brooklyn DA’s office) is strongly maintaining his innocence of the recently filed rape charges against him. Aidala has said, in sum, that LT didn’t know the girl and never had sex with her.

On Friday, documents filed in federal court seemed to say differently. In the case against the alleged pimp, Rasheed Davis, prosecutors claim that LT admitted paying $300 for “a meeting” and may have engaged in “sex acts.” The feds allege that Davis, besides engaging in human trafficking, may also deal drugs to his “Johns.”

We, at Sports in the Courtsblog, wonder what, if anything, security cameras in the Holiday Inn will show. Is there video of LT, the girl and Davis entering a room (apart or together)? If there is and if the allegations filed in federal court are true, LT is in major legal jeopardy and he better start looking for a favorable plea bargain now.
 

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Let’s assume for the moment that Lawrence Taylor is going to deny having sexual intercourse with the underage teenage girl (just like LT’s lawyer told us yesterday). Let’s also assume that the girl says there was intercourse with LT. Then, we may have a classic “he said/she said” case.

In the type of evidentiary “push” situation, how can the prosecution prove its case against LT “beyond a reasonable doubt?” Enter the alleged pimp, Rasheed Davis. Mr. Davis was arrested and charged with being the pimp in the sexual transaction with LT and the underage girl. If this is true, he must possess value and damaging evidence against LT. He must be able to testify about conversations with LT and their arrangements of this encounter. Davis may possess cell phone records, text messages or emails from LT that may contain proof of guilt.

As this case goes forward, Mr. Davis may become more and more important to the prosecution as he can act as “tie-breaker” between LT and the girl’s accounts of what happened that day. Now, the prosecution has to be concerned that Davis is less than a dream witness. He is on parole for a manslaughter conviction and is a violent felon. He can be easy prey for cross-examination on his credibility. The prosecutor has got to make it clear to a jury (if this ever gets this far) that the DA’s office does not get to order its witnesses from “central casting” in Hollywood. In criminal prosecutions, you get the witnesses who would be normally involved in such a disgraceful incident as is alleged in the LT case.

Mr. Davis will have every reason to want to cooperate with the DA because committing a felony like this while on parole means a long trip up the river (probably jail for the rest of his life or close to it) unless he finds a way to save himself. Look to see if Mr. Davis has a date to testify against LT in the grand jury real soon. 

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There is major breaking news concerning the arrest of former New York Football Giant star linebacker Lawrence Taylor.

The stunning criminal charges allege that LT, through a pimp in Rockland County (NY), set up a sexual encounter with a female who was only 16 years old. If these allegations are true, LT is guilty of statutory rape, a class E felony in New York.

Under NY law, an individual, under the age of 17, CANNOT consent to having sexual intercourse. Therefore, under the law, if LT (being over 21 years old) only had sex with the girl (without any force or intimidation whatsoever), he completed the crime.

While the issue of any sentence for LT is completely premature, since the “worldwide leader in sports” has already gotten it wrong, under NY law, a defendant convicted of a class E felony cannot receive more than 4 years in jail. HOWEVER, if a defendant has no prior felony convictions and the court finds that a long jail sentence is “unduly harsh” based on the nature and circumstances and “character of the defendant”, the court can impose a sentence of less than 1 year in jail.
In the end, LT may need a judge who isn’t a Cowboys fan

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On April 30, 2010, a lawsuit was filed by Geoffrey Santini, a plaintiff, his former employer the Super Bowl Champion New Orleans Saints.

Santini, a former FBI agent, claims that he has evidence (maybe by video) that implicates Saints Head Coach Sean Payton and Saints’ Assistant Coach Joe Vitt in a scheme to improperly take Vicodin from the Saint’s controlled drug locker. Santini alleges that Payton and Vitt make have used or distributed Vicodin in the organization. The allegations seem to focus more on Vitt’s conduct than Payton’s. Neither Vitt or Payton are named as defendants in this case.

This is a classic “whistleblower” lawsuit, as Santini says he was forced to resign his position as Saint’s security director when he refused to falsify documents and participate in a cover-up of theft of Vicodin. This type of alleged unauthorized distribution of a controlled drug like Vicodin is a violation of federal law

We understand that the DEA is now investigating Santini’s allegations. As a former FBI agent, it is reasonable to assume that he collected evidence against the Saints and has turned it over to the Feds.

We are going to handle this important case with caution. These are only mere allegations and a complaint is proof of nothing. However, if the DEA makes arrests of Vitt or Payton (or anyone else in the Saints organization) and obtains a conviction, Santini has all the proof he needs. We will be following this one very closely. 

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Tiki Barber was a 3-time all-pro running back with the NY Giants. Now, he is just an all-pro heel. Barber has been sued for divorce by his wife for committing adultery. But this not "regular" cheating, this is a true all star low.

Tiki apparently has become romantically involved with his babysitter (who has model-like good looks) while his wife is 8 months pregnant with his twins (they also have 2 other young children). Did I mention Tiki's wife is also bedridden because of this pregnancy?

I hope Tiki doesn't spend too much money on his new fling. You see, New York is a "fault" divorce state, meaning that there must be "grounds" for a divorce not just irreconcilable differences. Adultery more than qualifies. New York, unlike other states, has no set formula for the awarding of spousal support (alimony). A New York court can fashion alimony payments based the the unique facts and circumstances of the case and the grounds for divorce.

Rest assured that pricing Tiki's latest personal foul will involve plenty of zeros and commas. Memo to Tiki, act like the Giants and move to Jersey.

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Make no mistake; Commissioner Roger Goodell’s suspension of Steeler’s quarterback Ben Roethlisberger is direct warning to the NFL players union to not challenge the Commissioner’s powers.

Ben Roethlisberger, (a.k.a. "Big Ben") was charged with no crime or offense and certainly convicted of nothing following the recent bar incident in Georgia.  Commissioner Goodell even conceded that the facts of the alleged incident were “disputed.”  What we know is that "Big Ben" caused alcohol to be served to underage females, after that the story goes in separate directions.  There is also ample evidence that Roethlisberger and his body guards took over the Georgia bar and demanded that alcohol be provided to the girls of his choice.

Even though "Big Ben’s" conduct doesn’t make anyone proud, how does Goodell arrive at a 4-6 game suspension?  Remember, no crime and no penalty was imposed by local law enforcement against the quarterback.  Why not a 1, 2 or 3 game suspension?

The answer is that Goodell is sending a message to the NFL player’s union in this case.  The message is “don’t mess with me when it comes to discipline.”  Goodell is imposing the most severe penalties to increase his power while removing the union from any real challenge to player discipline.  Yes, the union can grieve this suspension to an arbitrator.  However, the NFL’s personal conduct policy grants Goodell broad discretion in these cases.  Goodell wants to swing a mighty hammer with player discipline and strike a blow against the union in the upcoming negotiations for a new collective bargaining agreement

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Courtesy of MSG Game On

While making the obligatory trip to Florida over the Easter holiday, I was asked by displaced New York Giants fans this question: Why can't Plaxico Burress get a plea deal and return to the team?
To answer this question posed by these well-tanned Giants fans (who still remain bitter about the playoff loss to the Eagles), we have to understand a little bit about criminal law and procedure. There is no question that Plax would love to make a deal. But the star wide receiver is in a very difficult position. Burress is awaiting a grand jury's decision on whether to indict him or not (they almost certainly will). It's the reason why Burress agreed to adjourn the case against him until June and, had Burress not agreed to this adjournment, he would have more than likely have been indicted by now. If he is indicted on a felony weapons charge, he will be facing a prison term of at least three and a half years.

This is where the rock meets the proverbial "hard place." If Burress gets indicted, then any plea deal that does not involve jail time could easily be construed as favoritism (just ask Mayor Bloomberg). Even to get to a "non-jail" disposition, the felony counts would have to be dismissed and Burress would plead guilty to a misdemeanor charge. This type of dismissal is only appropriate when the prosecution could not prove a felony weapons charge (you know, they don't have eyewitnesses, the gun and a gun-shot wound, like this case).

I hope the lucky prosecutor who gets that job is a big Giants fan and needs help paying for a Personal Seat License.

Based on all the information known, the logical prediction is that Burress will get indicted and never play for the Giants, nor any NFL team ever again if he is convicted.

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