Andy Kennedy

Many basketball coaches have fiery personalities so that they can get the most out of their players but last week in Cincinnati, Mississippi men’s basketball coach Andy Kennedy took his coaching style to the back seat of a cab where he was arrested after he allegedly struck a cab driver with a closed fist and berated the cab driver with racial slurs.  Kennedy was charged with misdemeanor assault.  http://sports.espn.go.com/ncb/news/story?id=3783491; http://sports.espn.go.com/ncb/news/story?id=3777703

My question is why was Kennedy charged with a misdemeanor assault claim instead of a battery claim?  In order to prove criminal battery a plaintiff must prove application of force to another person resulting in bodily injury or offensive touching; whereas assault requires an (1) attempt to commit battery and intentional creation of reasonable apprehension in another person of imminent bodily harm. If your injury was caused by someone else’s negligence, a personal injury attorney may help you seek compensation that can be used for your medical treatment.

Since Jiddou was struck in the face by Kennedy’s fist it would seem that a battery claim would fit best since Jiddou suffered a swollen face.  Kennedy may try to argue that he was intoxicated and therefore could not form intent.  However this defense would fail since assault and battery are general intent crimes and don’t require intent.  The racial slurs, whether uttered or not will have no effect on the outcome of this case unless they caused intentional infliction of emotional distress which is not likely here.   

Kennedy will also argue that Jiddou is not telling the truth about his allegations.  In fact Kennedy has filed a defamation claim against Jiddou and a witness, Michael Strother. Kennedy argues that the accusations of Jiddou and Strother have ruined his reputation and therefore he is entitled to $25,000.  In order for Kennedy to win on the defamation suit he will have to prove that a (1) defamatory statement (2) of or concerning Kennedy was (3) publicized to a 3^rd party and (4) damage to the reputation of Kennedy occurred.  Additionally since Kennedy is a public figure he must also prove that the statements were false and that the defendants had actual malice or intended to make false statements.  In this case Kennedy cannot prove what the defendants are saying is false.  Therefore he will lose on any defamation claim unless he can come up with convincing evidence of the false statements. 

Kennedy should take responsibility for his actions and drop his suit if the allegations are true.  As a role model to his players and his university he should not have been out late at night, possibly intoxicated in the first place.  Kennedy is lucky to keep his job and he needs to move on and not drag out a bad situation.  Hopefully Kennedy and other coaches will learn a lesson from this and not let it happen again in the future.  However if one thing is certain it’s that scandals and allegations will never go away in high profile sports.         

Update 4/20/08 – Kennedy pleaded guilty to a reduced for of disorderly conduct and received 6 months probation and 40 hours of community service.   http://sports.espn.go.com/ncb/news/story?id=4083219

Joe Barton

Last week Texas Congressman Joe Barton introduced a bill that would pave the way for a college football playoff it were to be approved.   http://sports.espn.go.com/ncf/news/story?id=3760232

In order for the bill to become law it must be approved by the house and senate and then be approved by the President.  Here is a detailed description of the entire process.    http://clerkkids.house.gov/laws/.  Currently the bill does not include details about the playoff system.  These details will be left up to law makers on committees if the house determines that the bill should move forward.  The big question will be whether lawmakers feel that it is their duty to impose rules on the NCAA and College Football or whether they should allow College Football to set their own rules as they see fit.

At this point in the process the bill is a long ways away from becoming law as both the supporters and opposition to the bill have valid arguments.  Supporters of the BCS bowl system, the opposition of the new bill,  have cited that the current bowl system generates significant revenues and that a playoff system would put the historic bowl games in jeopardy.  The supporters of the bill argue that a college football playoff  system could incorporate the current bowl games, would end up generating even more revenues than the current system and would allow for teams from smaller non BCS conferences to have a legitimate chance at winning the national championship.

There is reason to believe that some sort of bill will be passed within the next 4 years as President-elect Barack Obama has been quoted as saying that he supports a college football playoff system.  Therefore it is likely that if a bill gets approved by the house and congress that the President would sign such a bill into law.

Kevin Williams

Earlier this week Minnesota Vikings defensive linemen Kevin and Pat Williams along with three members of the New Orleans Saints were suspended for four games each for testing positive for bumetinide, a diuretic banned by the NFL, contained in the supplement Starcaps.  Starcaps did not list the diuretic in it’s ingredients and the players claim they did not know they were ingesting bumetinide, which can be used to mask steroids.  The players with the help of the NFL Players Association challenged the suspensions in court and argued that the NFL did not properly inform players about the banned substance.  The NFL argues that the NFL collective bargaining agreement prevents any action by the players suspended and the NFL had no duty to warn players not to ingest a particular supplement, only that the particular diuretic should not be ingested.

Today a federal judge in Minnesota prevented the NFL from suspending  the players so that he could analyze the legality of the suspensions.  The judge granted temporary restraining orders that will allow the players to participate in this weeks upcoming NFL games.    The judge is expected to give a final ruling as to whether the suspensions are legal sometime next week after analyzing the arguments of both sides.   The full article can be found here:  http://sports.espn.go.com/nfl/news/story?id=3747957

It is always a good thing to be an advocate for players rights, however delaying the suspensions could cause the players to miss valuable playoff games that could cost their teams their seasons and a chance at the Super Bowl if the court ruling drags on much longer.  If the judge rules that the suspensions should be enforced, the four game suspension will be served immediately and the players would miss the next week of play after the rulings.  If the players had a good argument then it would make sense to challenge the ruling, however in this case the NFL collective bargaining agreement clearly states that players are responsible for what they put in their body, and here, they ingested a banned substance contained in a weight loss supplement.   The moral of the story is, an NFL athlete must always know all the ingredients of everything that they are ingesting, whether the ingredients are listed on the label or not.   Lets just hope that no playoff games are missed because of this challenge.

Plaxico Burress

If you haven’t heard New York Giants star WR Plaxico Burress accidentally shot himself in the leg over the weekend while at a nightclub in New York and is being charged with two counts of  Criminal Possession of a weapon in the 2nd degree, a class C Felony.  Burress faces between 3.5 and 15 years in prison and is expected to plead not Guilty on March 31, when he is set to appear in court.   http://sports.espn.go.com/nfl/news/story?id=3736356

SI.com’s Michael McCann did a great job in breaking down all of the common questions one may have about the Burress situation from a legal prospective which can be viewed at:  http://sportsillustrated.cnn.com/2008/writers/michael_mccann/12/01/plaxico.burress/index.html

In order to be found guilty, Burress must have used his own gun in the shooting or must have had the gun with him in New York.  It looks like Burress’s only defense will be that the gun he shot himself with does not belong to him and was not present in New York.  If it can be proven through witness’s or camera footage that the gun did belong to Burress, then he will be found guilty because New York’s law states that the mere possession of a an unlicensed weapon is enough to be found guilty of second degree criminal possession of a weapon.  It does not matter that Burress did not intend to use the gun.  However I would look for a plea bargain to be entered into before this case goes to trial. Burress is a first time offender and may be eligible for a reduced sentence.

The NFL and the New York Giants will also have to decide what to do with Burress who may have violated the NFL Handgun Policy which can be found here:  http://sports.espn.go.com/nfl/news/story?id=3378990 Burress will be found to have violated the policy only if he is convicted on the criminal possession charges since he did not have a gun at any NFL sponsored function.  NFL player contracts may be terminated at will, and usually guaranteed money must be paid.  However if it is found that Burress committed conduct detrimental to the NFL or the New York Giants he could lose money that was guaranteed to him in the contract which runs through 2012.  This language is present in every NFL standard player agreement and it would be up to the Giants whether they want to pay Burress anything or not.

It is sad to see another athlete make such a bad lapse in judgement.  Often times it is up to the people around a player such as agents and advisers to warn an athlete of potential risks.  There is no doubt that athletes are targets when it comes to crime and may need to protect themselves and their families, however there are smart ways to do it.  Burress, has a 35M contract and can can afford to hire private security whenever he goes out in public so that he is not the person holding a gun and getting in trouble with the law.  Imagine if he accidentally shot somebody?  He would be facing murder charges instead of criminal possession of a weapon charges.  He has no excuse and according to New York Mayor Michael Bloomberg, Burress will be prosecuted to the full extent of the law.  May this be a lesson to all athletes and advisers out there that athletes need to be smart, abide by the law, and surround themselves with a network of professionals who can dispense invaluable advice.

UPDATE 8/20/09 – Burress pleads guilty and will serve 2 years:  http://sports.espn.go.com/nfl/news/story?id=4411373&campaign=rss&source=ESPNHeadlines

The Seattle PI reported last week that a group of former season ticket holders of the Seattle Sonics are going to continue their lawsuit against the Oklahoma City ownership group that moved the NBA team from Seattle to Oklahoma City this season.  http://seattlepi.nwsource.com/basketball/389624_fans27.html?source=rss

Three Sonics fans are suing in U.S. District court and are seeking to obtain a class action certification to include all season ticket holders from last season.  The fans amended their complaint this week to allow the fans to obtain priority seating at Oklahoma City Thunder games for next season at the same prices they were guaranteed in Seattle.  This would end up displacing Oklahoma City fans who have already purchased season tiecktes for this season and may wan to renew their seats.  The suit also states that Clay Bennett, Oklahoma City Chairman of the Professional Basketball Club which owns the Thunder, must also pay attorneys fees and damages.  The suit originally required Bennett’s group to pay for flights to Oklahoma City for former sonics fans, but that request was wisely dropped as that request makes the suit even more rediculous than it already is.

Requests for summary judgement have been filed by the PBC and a judge will rule on the motion shortly.  The fans are basing their claims on breach of contract theory and a breach of the Washington Consumer Protection Act (WCP).  I am not familiar with the WCP, but I can give some insight into general contract law as best I can without actually looking at the contract entered into by the parties.

In order for a contract to be formed there must be an offer, acceptance, and consideration.  The issue here is whether or not a proper offer was made.  One of the elements of an offer is that the offer must be definate.  This means that the material terms and parties to the contract must be stated in the contract.  A main term would be where the team was going to play its home games. The fans most likely signed a contract which stated home games were going to play in Seattle, but that is unknown.  Therefore for there to be a contract the Sonics must have most likely played in Seattle and at Key Arena this season.

In addition the PBC will argue that they revoked their offer of providing season tickets when the team moved to Oklahoma City, before any renewal or acceptance was made by Sonics fans.  The fans were on notice and most likely informed by letters that the team was not going to play in Seattle, resulting in a proper revocation.  Furthermore I am almost certain that most sporting event tickets state that the tickets may be revoked for any reason, and the team has the right to sell to whomever they wish.

What makes this claim near impossible to win is the fact that damages must also be proven in a breach of contract claim.  In this situation the Sonics fans have not suffered any financial damages since they only paid for tickets through last season.  With no financial damages I don’t to see how this claim can move forward against PBC.

As a loyal Sonics fan I do not understand the rational of the season ticket holders bringing a lawsuit.  Are they really going to travel all the way to Oklahoma City to watch the worst team in the NBA, a team that has already been boo’d off the court in Oklahoma City?  It would be great to see the team move away from Oklahoma City in the next few years and show what a blunder David Stern made in his judgement and moving away from Seattle, a great NBA city.  Sonics fans need to be patient and hope the Washington state legislature steps up and provides funding for renovating Key Arena.  If they do, the Sonics will likely be back in action in five years with the backing of Microsoft CEO Steve Balmer as owner.

Micheal Vick

ESPN has reported that Former NFL quarterback Michael Vick yesterday pleaded guilty to state dogfighting charges, perhaps paving the way for an early release from prison and return to the NFL.  A cruelty to animals charge was dropped as part of his plea deal.    http://sports.espn.go.com/nfl/news/story?id=3725060

Vick has been serving a 23 month sentence in Leavenworth, KS for bankrolling dogfighting and participating in the killing of under performing dogs. Vick is scheduled to be released July 20, 2009 but will then have to serve three years of probation.  It looks like he will potentially be released just in time for the start of an NFL training camp assuming everything goes to plan.  According to ESPN, by pleading guilty to state dogfighting charges Vick hopes to spend three months of his sentence in a halfway house and have another 3 weeks of home detention.  This will allow him to move on with his life at a faster rate and put the ugliness of his past behind him.

It looks as if Michael Vick received some good legal advice.  By taking responsibility for his actions he can hope that the NFL will show him mercy and allow him to return to competition.  Hopefully Prison ball has been enough to keep him in good enough shape over the last couple of years.  http://www.nydailynews.com/sports/football/2008/04/05/2008-04-05_michael_vick_playing_prison_football.html

The first issue that must be resolved for Vick to make a return to football is to get clearance from NFL Commissioner Roger Goodell.  In my opinion if Adam Pac Man Jones and Tank Johnson can get multiple chances to redeem themselves, why not Vick? I really don’t think his suspension will be an issue as long as he plays ball and abides by the stipulations set out by the NFL for his return.

The next question is, will an NFL team want to take a chance on a former superstar turned potentially out of shape criminal.  My guess is that somebody will give him a tryout and offer up the league minimum.  It is a small risk for a potentially very high reward.  Any team that retains Vick’s services would certainly have to deal with some bad public relations when PETA activists and others show up at games to protest.  If one thing is certain, winning football games can change almost anybody’s attitude in a community.  Here’s hoping that Vick can turn things around, and if he can’t I’m sure the CFL or the Arena League would take him with open arms.

Brian McNamee

Although the allegations of performing enhancing drug use against former baseball standout Roger Clemens have been quiet in recent months, a case is apparently moving forward against Clemens for committing perjury for testifying in front of Congress that he had never used performance enhancing drugs. The Mitchell Report on doping in baseball contained testimony from Clemens’ former trainer Brian McNamee who stated that he injected Clemens at least 16 times during the years 1998, 2000 and 2001.  Here is a link to the New York Times article for background information about the case: http://www.nytimes.com/2008/11/25/sports/baseball/25drugs.html?ref=baseball

The New York Times reported earlier this week that federal investigators asked Roger Clemens’ former trainer Brian McNamee to turn over personal DNA samples to compliment evidence he turned over last January. McNamee had collected Clemens’ DNA evidence on syringes, needles, and gauze pads that McNamee alleged were used to inject Clemens with steroids and human growth hormones which are banned substances in baseball. McNamee’s lawyers believe that the evidence will link Clemens to the use of performing enhancing drugs and show that McNamee was telling the truth in his testimony while Clemens committed perjury. In response Clemens has filed a defamation lawsuit against McNamee and denies McNamee’s allegations.

Are the DNA Samples on the Syringes, Needles, and Gauze Admissible as Evidence in a Court of Law?

The short answer in my opinion and the opinion of Clemens’ lawyers is that the evidence is not admissible and it will never see the inside of a court room.  In order for evidence to be admissible it must be authenticated.  Under normal circumstances this is an easy standard to meet, however in this case it will be extremely difficult to prove due to the evidence being from at the earliest 2001 and there being no record of who has had custody of the evidence in the past.    

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent (McNamee) claims. Also there must have been an unbroken chain of possession. In this case, the evidence in question is the syringes, needles, and gauze with Clemens’ DNA linking him to performance enhancing drugs. However there is no way in which to show that McNamee injected Clemens with performance enhancing drugs even if the evidence contains performance enhancing drugs as well as Clemens’ DNA. McNamee as Clemens’ trainer for many years likely injected Clemens with many non banned substances over the years in which syringes, needles, and gauze were used. McNamee or somebody else could have easily tainted the evidence with performance enhancing drugs or Clemens’ DNA after the needles were used and at some point after 2001. In short, there is no way to authenticate the evidence to show that McNamee injected Clemens with performance enhancing drugs. There is no unbroken chain of possession as McNamee claims that the evidence was sitting in his basement for many years before it was turned over to authorities. There would have to be a witness, video evidence or something to that affect. All that is present is that there are needles with Clemens’ DNA and performing enhancing substances present, not that Clemens actually used the drugs. Therefore this evidence will most likely never see the inside of a courtroom and Clemens’ will not be found guilty of perjury due to this evidence. 

What About Clemens’ Defamation Claim Against McNamee?

In January 2008, Clemens filed a defamation lawsuit against McNamee in response to McNamee’s performance enhancing drug allegations.  In order for a party to be found guilty of defamation of a public figure the plaintiff (Clemens) must prove that (1) there was a defamatory statement (2) of or concerning the plaintiff (3) publication to a third party and (4) damages to the reputation of the plaintiff.  In addition if the plaintiff is a public figure (which Clemens is) (5) falsity and (6) actual malice must be shown.

The first factor that must be proven by Clemens is that there was a defamatory statement present.  In order for this to be proven, Clemens will have to prove that he had never used any kind of performance enhancing drugs as McNamee originally claimed in the Mitchell Report.  This will be extremely difficult to prove because human growth hormone is difficult to detect and clean medical records may not be enough to prove Clemens’ innocence.  If Clemens is able to meet the first factor however, he will most likely be able to meet the remaining factors. The statements by McNamee concerned Clemens, and he will be able to prove that the statement caused damage to his potential Hall of Fame bid and reputation.  Additionally if Clemens is able to prove that there was a defamatory statement as required by the first factor, Clemens will be able to prove falsity, that is that the statements by McNamee was not true and false.  Finally Clemens will have to prove that actual malice was present.  This means that Clemens must prove that McNamee had knowledge of his false statements or was negligent in disclosing the information.  Clemens would be able to prove this factor if he is able to prove that McNamee had the intent to make false statements about his character and ruin his reputation.  In other words if McNamee knew Clemens never had taken any performance enhancing drugs and claimed that he had, then this factor would be met. 

After looking at the evidence available I believe that Clemens would have extreme difficulty in proving his defamation case against McNamee because he simply cannot prove his innocence that he has never used performance enhancing drugs due to the difficulty in tracking any sort of drugs in his body during the time the allegations were made.  He would also have a difficult time proving malice on behalf of McNamee. 

It will be interesting how this case plays out, but I believe the evidence will be found inadmissable and the defamation suit against McNamee will be dropped.    

I am often on the lookout for jobs in the sports industry that utilize law degrees and one of the most underrated jobs is that of a college athletics compliance officer.  There are over 342 Division I college athletic programs across the country, all of which utilize one or more compliance officers.  In addition, conference headquarters as well as the NCAA headquarters utilize compliance officers, most of which suggest that a law degree or other graduate degree be obtained before applying for the position due to the rule intensive nature of the job.

I recently had the opportunity to sit and chat with Anthony Archbald, an Assistant Commissioner and compliance officer for the Western Athletic Conference (WAC).  Anthony was nice enough to spend some time with me talking about compliance opportunities in college athletics and the role of the compliance officer at universities and athletic conferences.  Anthony attended Boston College as an undergrad, Tulane Law School and is licensed to practice law in New York.  The answers to the questions below have been paraphrased to the best of my ability.  I hope you find it as interesting as I did.

RS:  How did you get your big break into the sports business?

AA:  I got my first job in sports as an intern in the compliance department with Brown University making $17K a year.  I got the job through a former coach of mine who I knew through my days at Boston College.  I had to suck up a lot of pride as a licensed attorney making so little pay, but I felt that I wanted a career I would enjoy, rather than settling landlord/tenant disputes in New York as an attorney, which is what I did for 7 months after passing the bar exam in New York.  After working at Brown for a few years I was able to move west and take a compliance job with the Mountain West Conference, where I spent two years before taking my current position with the WAC.

RS:  What does your job and that of a compliance officer consist of on a day to day basis?

AA:  An entry level compliance officer or intern ends up doing a lot of auditing and busy work. It’s not the most exciting job but everybody in sports has to pay their dues.  That’s just the way it is for the most part.  In the early years it’s best to build as many connections as you can.  Right now I am on the road a lot, traveling to all of the WAC schools making sure all of the NCAA rules are being followed by the schools.  I talk to players, coaches, and administrators to make sure everything is being done the proper way and nobody is getting in trouble.

RS:  What are the perks of your job?

AA:  I really enjoy traveling and in my current position I have to travel a lot.  I’m not always going to big cities, but in January I am going to make my annual trip to Hawaii to check up on UH.  Other than the travel I have access to sporting event tickets, such as football bowl games or March Madness tickets.

RS:  What advice do you have for somebody seeking a job in compliance?

AA:  Landing a compliance job, like any job in sports, is extremely competitive.  It’s all about who you know, and not what you know.  I myself have been able to place a couple of former interns with athletic programs, but it’s not easy.  Currently the WAC does not offer an internship program, but I would encourage anybody interested in compliance to intern somewhere, pay your dues, get experience, and make connections so that you can try and stand out from the pack and obtain valuable compliance experience.  I know it is hard to suck up the pride, especially as a licensed attorney, but if you want it bad enough that’s what you have to do.

As a footnote, anybody interested in jobs with NCAA Universities, they can be found at:  http://ncaamarket.ncaa.org/search.cfm

As Joshua Golka reported on his website http://athleteagent.blogspot.com/, sports agents in Colorado must abide by state athlete agent regulations.  Athlete Agents must get registered with the Department of Regulatory Agencies (DORA), Division of Registrations, by January 2009 in order to represent student athletes. This law primarily affects agents that are actively recruiting student athletes on college campuses.

The new provisions signed into law by Colorado Governor Bill Ritter also details regulations in which athlete agents must abide by in order to continue to to represent student athletes.  If an Agent fails to abide by the regulations, an athlete may void any contract he signed with a violating agent.

Athlete agents can register and get more information at:  http://www.dora.state.co.us/athlete-agents/index.htm

I find it interesting that at the moment no Athlete Agents have registered with DORA as there are several sports agencies in Colorado that actively recruit student athletes.  Those registered should have been found at:  https://www.doradls.state.co.us/lic_database_req.php.  There are only a few months for agents to get into compliance so Colorado agents better get with the program or be at risk of having all future contracts with student athletes voided.

For more information about getting registered, DORA is hosting a public meeting in Pueblo, CO, on November 21, 2008 to discuss Athlete Agent registration:  http://www.dora.state.co.us/athlete-agents/2008NewsReleasePueblo.pdf

I was recently hired by my colleague Chuck Humphrey over at www.gambling-law-US.com to research whether or not www.centsports.com engages in illegal bookmaking.  CentSports operates an interactive website in which the company gives players 10 cents of start up money in which to bet on sporting events.  If a player reaches $20 in winnings they may cash out their winnings if the company has enough funds to pay them off.  So the question is, is CentSports engaging in making an online sports book?

In order for an illegal book to be made, gambling must be involved and in order for an activity to be considered gambling the activity must consist of (1) Prize, (2) Chance, and (3) Consideration. The prize and chance elements would clearly be present, however the question is whether any consideration is involved.  Consideration is defined as a bargain for exchange, meaning both parties have to give something up or take a risk when making a bet.  It can be argued that centSports players are not taking any kind of risk since they are not betting with their own funds, only the funds that were deposited in their accounts by CentSports.  Furthermore they are not guaranteed to any winnings.  They will only be paid if centSports has the funding.  Therefore CentSports is most likely not engaged in illegal gambling, however a case could certainly be made for the other side.

Does CentSports violate NCAA bylaws?

CentSports is very popular across college campuses nationwide.  The website is a social networking tool and allows friends to compete against one another online and determine who has the best winning percentage when placing bets.  The NCAA membership has adopted specific rules prohibiting student-athletes, athletics department staff members, and conference office staff from engaging in sports wagering (Bylaw 10.3).  NCAA national office employees are also prohibited from engaging in sports wagering.  A violation of this law could cost a student athlete their athletic eligibility to play sports in college whereas NCAA employees would most likely be terminated.

The NCAA rules are similar to state law rules that prohibit gambling and sports wagering.  The NCAA member colleges and universities have defined sports wagering as putting something at risk – such as an entry fee – with the opportunity to win something in return.  With CentSports no entry fee is required and nothing of value is given up since the entry fee is provided and there is no guarantee of any payouts.  By definition no wager has been made.  Therefore I do not believe CentSports would violate NCAA rules as there is no consideration present, however the NCAA recently published an opinion on the matter which is discussed below.

UPDATE, 3/28/09 – The NCAA’s Agent, Gambling and Amateurism Activities division recently weighed in on whether CentSports violates NCAA Bylaws.  They have determined that the free 10 cents given to players is in fact considered “something of value” due to the potential payout down the road.  It is the policy of the NCAA that they do not want anybody associated with the NCAA to be involved in any sort of gambling, even if it is questionable as to whether the activities are actually gambling.  If you are an NCAA student athlete or employee of the NCAA you should refrain from using websites that engage in any sort of gambling or wagering, even if there is no guarantee of a payout.  The NCAA’s opinion on CentSports can be read in the AGA’s March 2009 newsletter available at:  http://www.ncaa.org/wps/ncaa?ContentID=6685

For more information contact Seattle Attorney Richard Symmes.