May 15, 2013 · 2:21 pm

The Curious Case Of Kobe Bryant’s Memorabilia: Will He Get It Back?

According to legal documents, for over fifteen years, Kobe Bryant’s mother, Pamela, held onto many of the mementos documenting her son’s illustrious basketball career.  Like many mothers before her, Pamela alleges that she asked Kobe if he wanted the items back.  Like many children before him, Kobe allegedly retorted that he did not.  Needing space in her home to create a playroom for her grandchildren, Pamela says that she placed a variety of Kobe’s basketball mementos into a storage facility, which cost her $1,500 monthly.  

While the course Pamela took in storing her son’s mementos is something many mothers before her have done before, the next move she made is one few have ever taken.  On December 27, 2012, Pamela allegedly contacted Goldin Auctions, offering a variety of Kobe’s items she was holding in storage for sale.  On January 2, 2013, Pamela signed a consignment agreement with Goldin Auctions.  In the agreement, she guaranteed that she was the sole owner of the consigned items and that she had full and clear title to the items.  She also agreed to be charged a commission rate of 20 percent from the items’ final bid prices, meaning that she would reap 80 percent of the price that they were sold for.  Upon signing the agreement, she was wired an advance of $450,000 on January 3, 2013.

Pamela did the foregoing without Kobe Bryant’s knowledge.  In fact, he remained oblivious to the above for over three months.  During that time, his mother allegedly took the $450,000 transferred to her by Goldin Auctions and put a down payment on a home in Nevada.  Goldin Auctions began preparing to sell the memorabilia Pamela had given it.  Part of that preparation included publicizing the auction.  It was only through those publicity efforts, which culminated in an April 30 press release picked up by national media outlets, that Kobe got wind of his mother’s intent to auction off many of his basketball mementos.

A story line like this has only one reasonable finishing place:  court.  Upon seeing the press release, Kobe Bryant hired law firm Loeb & Loeb LLP to issue a cease and desist letter to Goldin Auctions, demanding that it return the items to Kobe and forego the auction.  Then, Kobe sought a temporary restraining order in Orange County, CA in an effort to stall the auction’s June 2013 date.  This order was granted.  Subsequently, Goldin Auctions filed a lawsuit against Kobe in the U.S. District Court for the District of New Jersey.  Days later, Kobe filed a lawsuit against Goldin Auctions in California state court.  Goldin Auctions’ New Jersey lawsuit has been set for trial, which is to begin on June 17.  It is likely that Kobe’s lawsuit will be transferred to that court and the actions will be consolidated.

The question remains, though, as to whether or not Kobe will get the items he claims are his back from Goldin Auctions.  In his lawsuit, Kobe alleges causes of action for conversion and declaratory relief.  The conversion cause of action alleges that at all times, Kobe was lawfully entitled to possession of the items Goldin Auctions received from his mother and planned sell.  The declaratory relief cause of action asks the court to determine that Kobe had the right to possess the property exclusive of all others and that Goldin Auctions must return the property to him.  

In its lawsuit, Goldin Auctions seeks temporary and permanent injunctive relief, preventing Kobe from regaining the property.  Goldin Auctions also seeks delcaratory judgment that it is the legal owner of the memorabilia Pamela Bryant consigned to it.

The crux of both cases boils down to whether Kobe Bryant actually granted ownership of the items to his mother, or if she constructively owned them.  Goldin Auctions’ lawsuit includes allegations that Kobe and his wife, Vanessa, told Pamela that they did not want the items and that he said, “here mom, these are for you.”  On the contrary, Kobe’s lawsuit alleges that he has asked his mother for the items back repeatedly to no avail and that he would have never given her permanent ownership of them, as he plans to pass them on to his daughters.  Furthermore, he alleges that he believes some of the items were not in Pamela’s possession prior to being given to Goldin Auctions, but rather, in his home.

Given the differing accounts regarding the ownership of the memorabilia, is is plausible that these cases will see trial.  This is because it is unlikely that the parties will be able to reach a consensus during a pre-trial mediation as to who the owner of the property is.  To further complicate matters, Pamela Bryant is reportedly in Thailand, and thus, unlikely to be available for any pre-trial mediation.  Thus, one glaring issue likely facing a judge or jury’s decision, is who actually owned the memorabilia:  Kobe or Pamela Bryant?  As such, it will be important for both sides’ lawyers to fully construct a timeline of events related to each piece of property given to Goldin Auctions and what conversations were held or actions were taken regarding the ownership of those pieces of property between Kobe and Pamela.

While ownership of the items is the biggest issue facing each party, another hurdle stands in the way of Goldin Auctions’ claim.  In its cause of action seeking temporary and permanent injunctive relief, Goldin Auctions alleges that it will be irreparably harmed if it is not allowed to go forward with the auction.  As its basis for this allegation, Goldin Auctions alleges that it has already advanced $450,000 to Pamela Bryant and “. . . the sports memorabilia are one of a kind unique items that cannot be replaced and [Goldin Auctions] will lose all profits it rightfully expected from the auction.”  

The issue with this allegation, is that Goldin Auctions will not be irreparably harmed if it is unable to auction the items Pamela Bryant consigned to it.  As noted above, Pamela signed a consignment agreement with Goldin Auctions, whereby she warranted that she was the owner of the items.  If it turns out that Kobe was the owner of the items, Pamela breached the terms of the contract she signed with Goldin Auctions, since she was not the owner.  As such, Goldin Auctions could subsequently file a breach of contract lawsuit against her.  In this lawsuit, Goldin Auctions could remedy its harm, by  seeking as damages the $450,000 it advanced to Pamela.  Thus, it is on this argument that Goldin Auctions’ lawsuit against Kobe might fail, and thus, that Kobe may prevail in his attempt to block the auction.

Given the above, why then is Goldin Auctions moving forward with litigation against Kobe?  In all reality, it most likely boils down to money.  Obviously, Goldin Auctions sees the possibility of turning a huge profit by selling the Kobe memorabilia.  However, it also probably realizes that if it is unable to sell the memorabilia, it is unlikely to recoup the $450,000 it advanced to Pamela Bryant.  This is due to the fact that she has reportedly already spent all of it to put the down payment on the Nevada home.  From their perspective, the thought is probably that if she had to sell her son’s mementos to afford the down payment, it’s unlikely that she’ll be able to come up with another $450,000 to repay them the advancement.  Who, then, has deep enough pockets for Goldin Auctions to recuperate this loss from?  The obvious answer is Kobe.  

The outcome of this case will likely provide guidance for athletes in how they store their memorabilia going forward.  As a result, some may choose to draft written agreements with their parents fully setting out who owns any property that is stored at the parents’ homes.  The sad truth demonstrated by this situation, though, is that nothing really comes easy for athletes.  For years, grown children have stored their mementos at their parents homes without the interference of legal action.  Yet, as it oftentimes does with professional athletes and celebrities, even this simple task appears to have been complicated in this case.  

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May 2, 2013 · 2:27 pm

The Chicago Cubs Face Serious Backlash In Building A 6,000-Square-Foot Jumbotron At Wrigley Field

The Cubs want only what almost every other MLB team already has:  A Jumbotron.  Part of a proposed $500-million renovation plan to the 99-year-old Wrigley Field includes placing a 6,000-square-foot video screen in Wrigley’s left field.  Along with enhancing the viewing experience of Cubs game attendees at Wrigley Field, Cubs officials assert that the Jumbotron will provide another key element:  revenue.  Cubs chairman Tom Ricketts recently asserted that advertising placement on the Jumbotron could create up to $20 million annually in revenue. This revenue would help pay for the costs of the proposed $500 million renovation.

Given the enhanced viewing experience and revenue generation it would create, what’s not to like about the proposed 6,000-square-foot Jumbotron being placed in Wrigley’s left field?  As it turns out, there is nearly as much not to like as there is to like.

The biggest opponents to the placement of the jumbotron are a group of rooftop owners whose buildings surround Wrigley Field.  For over two decades, these rooftop owners have been a thorn of sorts in the Cubs’ side.  The contention between the rooftop owners and the Cubs began when rooftop owners began selling packages to view Cubs games from the rooftops, while also providing amenities like food and beverages and telecast views of the games.  Many of these ticket packages exceeded $100 in costs, with the Cubs receiving no cut of the money.

After another renovation proposal was rejected, wherein the Cubs sought to add additional bleacher space to Wrigley Field, in 2002, the ball club sued a group of the rooftop owners.  The lawsuit, in federal court, asserted four causes of action:  copyright infringement, trademark infringement, misappropriation and unjust enrichment.  In its lawsuit, the Cubs noted that the rooftop owners created million-dollar businesses by charging individuals for entry onto their rooftops to watch Cubs games.  The Cubs asserted that the rooftop owners’ businesses were built on the backs of the millions of dollars the Cubs invested in building a team and maintaining Wrigley Field.  Not only did the rooftop owners not provide the Cubs a cut of their revenues, but they had not obtained copyright or trademark licenses from the club, which the team asserted were necessary for the rooftop owners to profit off of selling opportunities to view the games.

The Cubs’ lawsuit resulted in a settlement agreement, in which the rooftop owners and the team signed a 20-year agreement, whereby the owners give the Cubs 17 percent of their gross revenue annually.  This gross revenue amounts to an estimated $2 million per year.  While this settlement agreement provided the Cubs with an additional $2 million in revenue and at the time, a solution to one of the team’s greatest dilemmas, it may now create new problems for the ball club.

The rooftop owners who were part of the settlement agreement assert that building a Jumbotron that blocks their view amounts to a breach of the settlement agreement.  The owners claim that if the Jumbotron blocks their rooftops’ view, it will dismantle their businesses.  This is because the rooftop owners assert that without a clear view into Wrigley Field, patrons will not pay to watch the games from their rooftops.  Thus, the rooftop owners assert that any action taken by the Cubs to thwart their view into Wrigley Field during the term of the 20-year settlement agreement constitutes a breach of the settlement agreement.

The terms of the settlement agreement were reached out of court, and thus, are private.  Hence, it is unclear what licenses, rights or assurances the Cubs granted the rooftop owners.  Knowing what, if any, licenses, rights or assurances the Cubs granted the rooftop owners is necessary to determine whether the rooftop owners could file a lawsuit to successfully block the team from building the Jumbotron.

Given the lucrativeness of the rooftop owners’ business, it is unlikely that they would settle a lawsuit on this matter quickly or for a small amount of money.  From all accounts, it is clear that the Cubs want a Jumbotron, and at that, one big enough to be taken seriously in the age of mega Jumbotrons.  Given this, it is possible that said Jumbotron will block some of the rooftop owners’ views into Wrigley Field.  If the Cubs want the advertisement revenue that comes along with the proposed Jumbotron, depending upon the terms of the previous settlement agreement with the rooftop owners, there is a chance that the team will have to shell out serious cash to the rooftop owners.

While the rooftop owners continue to pose a threat to the team’s renovation plans, perhaps another factor presents a bigger obstacle to the Cubs.  That factor would be Wrigley Field’s recognition as a historic landmark by the Commission on Chicago Landmarks in 2004.  As a result of its status as a historic landmark, renovations to Wrigley Field must be approved by the Commission on Chicago Landmarks.  Given the historic nature of Wrigley Field, there is a chance that the commission would reject a plan to modernize the field by adding a 6,000-square-foot Jumbotron.  A potential argument exists that addition of the Jumbotron, which would bring Wrigley Field up to par with other, more modern baseball stadiums, would impact its historical nature.  Thus, while the Cubs’ proposal has received support from a number of essential Chicago politicians, perhaps the biggest hurdle the team’s plans face is convincing the commission that addition of the Jumbotron does not thwart the historic nature of Wrigley Field.

Over the coming months, the Cubs face some serious battles in their plan to renovate Wrigley Field.  While chairman Ricketts has asserted that if the team’s renovation wishes are not met, it may be forced to move, such a decision will not come without a full economic analysis of alternative stadium locations.  Although the Cubs have built a legion of loyal fans over the years, the team’s home at Wrigley Field remains an important component to its economic success.  As the team has only three post-season appearances in the last decade, it’s safe to say that many who attend Cubs games do so based upon the lure of visiting the second-oldest ballpark in MLB.  Uprooting the team over the potential inability to construct a Jumbotron then, arguably poses a great risk to continued ballpark attendance.  Thus, it is to be seen, whether that is a risk the Cubs are willing to take.

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Filed under MLB, Stadiums

· 9:13 am

I Run For Boston

By:  Kaitlyn Kacsuta, Ruling Sports Intern (Twitter:  @KRKacsuta)

When I arrived in Boston, I was not particularly excited for the Marathon.  It has been my experience with marathon and ultra running that pre-race events are fairly low-key, and those who are most excited about the event are generally the runners.  That is not the case with Boston.

From the time I landed in Logan Airport, I saw Boston Marathon race jackets everywhere I turned.  Some wore the 2013 jacket; others wore jackets from previous years.  There was an immediate sense of camaraderie with fellow Boston Qualifiers.  Everyone I met shared their personal running history, number of Boston Marathons they had run, and tid-bits of advice for me as a first-timer.

I took the Green Line to a friend’s office, on Boylston St.  The skeleton of the finish line was already up, and I realized that this was not just another race.  At the Marathon expo, there were throngs of people and a buzz of excitement.  That excitement carried on with everything that I did leading up to the Marathon.

On Saturday afternoon, I attended my first Red Sox game.  Fenway Park was in Boston Marathon spirit, with American marathon legends throwing out the first pitch, the scoreboard welcoming all runners to Boston and wishing us good luck.  During that game I decided that I was a Red Sox fan.  Admittedly, the Pittsburgh Pirates have not had a winning season since I was three-years-old and it was not very hard to change my loyalties.  But I sang “Sweet Caroline” with Boston, danced to Dropkick Murphys, “Shipping Up to Boston,” and cheered as the Red Sox won in extras and played “Dirty Water” to signal victory.

On Marathon Monday, Patriot’s Day, Boston was up early to cheer.  It is a long ¾ mile walk from the school in Hopkinton to the race start, but people lined the streets, partied and played music to watch us walk.  Beginning with a long downhill, all I could see was people – masses of runners and spectators.  And that sight never changed.

Spectators make that race special.  I saw people dancing to “Party Rock,” on mini trampolines along a sidewalk, I heard the Wellesley College scream tunnel from nearly a half-mile away.  And every new sight, every crowd and every cheer made me run better.  It gave me a spark and a rush of adrenaline.  The crowds of fans made my run the best race I had ever had; I have no doubts about that.

After I finished and received my medal, I met my friend inside her office.  She works on Boyleston Street, in a building right next to the finish line.  I was changing out of my race gear when I heard the boom.  I didn’t think anything of it at the time, but within a few seconds, my friend ran in to find me and told me we needed to leave.  We exited the office and made sure that everyone was accounted for.  Then we reconvened at an apartment in Cambridge to watch the news, contact friends and family.

Over the two weeks since the Marathon, I have seen, watched, and read about the love and support that Bostonians have shown for one another and for perfect strangers they had never met before.  I saw runners come together to show solidarity.  I have experienced the spirit of a city that will not quit, will not give in, and will not be deterred.

Now that I am back in Pittsburgh, I have decided to run in honor of all the victims of the Marathon tragedy.  I will run a total of 180 miles over 26 days, with the hope that I can encourage people to donate to One Fund Boston.  Thus far, One Fund Boston has raised well over $20 million for those most affected by the Marathon tragedy.  Boston-based businesses and marathons across the country have also pledged millions to One Fund Boston.  It is both wonderful and inspiration to see that outpouring of support from across the world.

In the midst of heartbreak, the compassion of a nation has shown through.  While marathon security will undoubtedly change in the wake of Boston, the Boston Marathon will always be the pinnacle of running achievement.  President Obama was absolutely right when he said, “And this time next year, on the third Monday in April, the world will return to this great American city to run harder than ever, and to cheer even louder, for the 118th Boston Marathon.”  I’ll be there to run even harder, too.  But until I get back to Boylston Street in 2014, I’ll run for Boston.

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Filed under Endurance Sports

April 25, 2013 · 12:11 pm

How NFL Draft Picks Affect An NFL Team’s Salary Cap

As the names of young men are called from the podium on the Radio City Music Hall stage tonight, draft experts and team’s front offices will consider how their picks will impact their team’s salary cap.  The 2013 NFL salary cap is set at $123 million.  The rookies a team drafts and subsequently signs to a contract will have salaries that will be counted under their respective team’s salary cap.  Given this, an understanding of the salary cap and the role rookies’ contracts play in it is important going into the NFL Draft.

First, one must consider how the NFL arrives at its salary cap.  The salary cap is a collectively bargained amount that is a percentage of what the NFL calls “all revenues.”  Article 12 of the NFL collective bargaining agreement defines what is considered “all revenues.”  Essentially, “all revenues” equals gate receipts + copyright royalties + concession revenues + parking revenues + local advertisement and sponsor revenues + internet operations and program sale revenues + novelty revenues + NFL Ventures revenues + barter income + equity instruments + revenues related to stadium releases based on non-NFL activities + recoveries under business interruption insurance policies + expense reimbursements from government entities + proceeds from rights to receive.

After accountants determine the “all revenue” number, that amount is subdivided into three categories to calculate something called the “player cost amount.”  We’ll discuss the “player cost amount” in greater detail below, but it is one factor used in calculating the NFL’s salary cap.  The three sub-categories that “all revenue” is divided into are:  league media, NFL Ventures/postseason and local all revenue.  Specific revenues that make up “all revenue,” as calculated above, are put into each of the three buckets.

Once “all revenue” is subdivided into the three buckets, “player cost amount” is calculated.  “Player cost amount” equals 55% of league media all revenue + 45% of NFL Ventures/postseason all revenue and 40% of local all revenue.

Accounts also calculate the amount of benefits teams pay to players.  These benefits include:  pensions, insurance, injury protection, workers’ compensation, preseason per diem accounts, travel expenses for offseason workouts, rookie orientation program expenses, postseason pay, medical costs, moving and travel expenses, severance pay, annuity programs, tuition assistance, minimum salary benefits, performance based pools, health reimbursement accounts, payments to players suffering from dementia, legacy benefits and the neuro-cognitive disability benefit.

The salary cap can be calculated once the values described above are determined.  The salary cap amount equals the “player cost amount” for the year – the projected benefits for the year divided by the number of teams in the league for the given year.

Once the salary cap is determined, teams must begin working to comply with the salary cap.  The collective bargaining agreement defines salary as “the compensation in money, property, investments, loans or anything else of value to which an NFL player. . . is entitled to. . . but not including benefits.”  Teams must comply with the salary cap on the first day of the league year.  No team can exceed the amount of the salary cap.  Additionally, the new collective bargaining requirement requires each individual team to spend at least 89 percent of the salary cap’s limit.

While a team must comply with the terms of the salary cap, there is a sub-category of the salary cap that relates especially to rookies.  Teams must not only be under the NFL salary cap, but they cannot spend an amount greater than the “rookie compensation pool.”  The rookie compensation pool was a term negotiated during the course of the most recent collective bargaining negotiations, which essentially limits the amount of money all NFL rookies can earn during the course of their first four seasons in the NFL.  Each year, the NFL designates an amount for the total rookie compensation pool and teams are told, based on their draft slots, how much money they get from the pool.  Teams are given enough from the pool to pay players at least the NFL minimum salary ($405,000 in 2013) plus, if applicable, bonuses based on a sliding scale depending upon a player’s draft spot.  Thus, teams must work to comply not only with the salary cap, but to ensure that the contracts they offer rookies are within the limits of the rookie compensation pool is applicable to their team.

Upon drafting a rookie, a team is charged with that rookie’s salary under its cap space immediately.  The amount charged to the team is the minimum active list salary.  This year, that amount is $405,000.  For each rookie a team signs, this amount will count against its cap space until the player, the team waives the player or the player remains unsigned through the tenth week of the regular season.  If the player is signed, the amount of cap space taken by the rookie could increase, as bonuses or incentives may be included in the player’s contract.  If the player is waived or unsigned, the $405,000 will not count against the team’s cap space.

The fact that only the minimum active list salary counts against a team’s salary cap space upon drafting a rookie is notable.  There are a handful of teams that have very limited salary cap space presently available.  Thus, if these teams had to add in bonuses they plan on paying rookies at this point, they would be over the salary cap.  Furthermore, it is also of note that only the salaries of a team’s top-51 paid players count against the team’s salary cap during the off-season.  Thus, teams have a fair amount of time to cut players, renegotiate contracts or make trades to get under the salary cap before all players’ salaries count against the cap when the NFL season begins.  It is for this reason that although drafted by a team, most rookies do not sign contracts until later in the summer or after training camp.

While the NFL salary cap is a complicated topic which takes years of training to understand, the basis of it and how it impacts a team’s rookies is relatively simple.  Given this, it will be interesting to watch and see when teams actually sign their rookies and the amount of bonuses they receive.

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Filed under Contracts, NFL, NFLPA

April 16, 2013 · 11:50 am

A Look At Oregon’s Alleged NCAA Violations: What Could Hurt The Ducks The Most

After making a public records request in December, the Oregonian and KATU.com received over 500 pages of documents related to alleged NCAA violations committed by Oregon’s football program between 2008 and 2011.  The documents detail findings related largely to Oregon’s payment to a recruiting service company, whose talent scout, Will Lyles, allegedly had impermissible contact with prospective Oregon student-athletes.  While reports have focused upon Oregon’s payment of $25,000 to Lyles’ recruiting service agency, it appears that the bulk of the NCAA’s concern does not lie with that payment, but rather, practices that Lyles allegedly engaged in.

One such practice, is that Lyles allegedly did not provide written or video reports about recruits to Oregon.  Under NCAA bylaw 13.14.3, recruiting services must provide subscribers with written or video reports quarterly.  Up until 2011, Lyles allegedly provided neither, but instead, provided Oregon with oral reports about prospective student-athletes.  On the face, this practice seems like a minor issue and another instance of the NCAA making a mountain out of a molehill.  However, the NCAA requires recruiting and scouting service companies to provide written or video reports to prevent institutions from gaining unfair advantages when it comes to gleaning information about recruits.  Requiring written or video reports ensures that each institution subscribing to the service receives the same information.

Given that Lyles allegedly was providing oral reports to Oregon, the notion is that Oregon was getting information about recruits that other institutions using Lyles’ services were not receiving.  It is unknown whether this was the case, but a number of recruits with ties to Lyles eventually signed with Oregon.  This, however, does not in and of itself depict any impropriety by Oregon or Lyles.

Perhaps the biggest issue Oregon faces, though, is explaining allegations that upon the NCAA’s discovery that Lyles wasn’t providing Oregon with written or video reports, that Lyles allegedly provided “outdated” reports to Oregon.  From the outside, this allegation depicts a cover-up of sorts.  If a cover-up was in fact orchestrated, it is for the NCAA to decide who ordered the cover-up.  Did Lyles earnestly provide written reports to save face with the NCAA in an honest attempt to continue being an NCAA-sanctioned recruiting service?  Or, did Oregon ask him to do so after the NCAA realized that Lyles hadn’t provided the report?  In the coming months, Oregon should prepare to answer this question.  Should the NCAA find that the cover-up was upon Oregon’s request, the program will likely suffer stiffer penalties from the NCAA.

For now, the biggest issue Oregon faces is whether the football program’s alleged receipt of Lyles’ oral reports on recruits was a major or secondary NCAA violation.  Secondary infractions are those isolated or inadvertent instances that only provide minimal recruiting, competitive or other advantages.  Major infractions provide major recruiting or competitive advantages.  Over the coming months, the NCAA’s committee on infractions will issue a final report on its findings related to whether a major or secondary violation was committed.  Thereafter, sometime within the year, Oregon will have a hearing before the committee on infractions.

The good news, perhaps, for Oregon is that reports indicate that the NCAA found neither a lack of institutional control nor unethical conduct present.  These factors should help Oregon avoid some of the NCAA’s harsher penalties.  However, one issue Oregon continues to face is that the NCAA may determine it is a repeat violator, as the alleged violations came within five years of Oregon’s 2004 violations.  Should Oregon be deemed to be a repeat violator of the NCAA bylaws, harsher penalties could be imposed on that ground.

Overall, Oregon must prepare the case as to why this alleged violation did not amount to a major violation.  To do this, it must show that it did not receive major recruiting or competitive advantages.  This may be difficult, given the recruits Lyles was allegedly tied to who committed to Oregon.  Reports indicate that Lyles served as a “mentor” to LaMichael James, Tra Carson, Dontae Williams and Marcus Davis, all of whom committed to Oregon.  Thus, Oregon must work to demonstrate that it would have recruited those student-athletes even without the information Lyles provided them with orally.  Given the talent level of these players, this arguably won’t be difficult to accomplish.  Additionally, Oregon must demonstrate that those recruits’ decisions to commit to Oregon were unattached to any relationship they may have had with Lyles.  This may prove to be the more difficult task for Oregon.  However, given the program’s offerings and success over recent years, it likely will not be impossible.  Nonetheless, spring is shaping up to be a busy time for Oregon’s athletics department.

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Filed under NCAA

April 15, 2013 · 11:46 am

The Impact Of A $3.1 Million Verdict Against Riddell On Future Football Concussion Litigation

Jurors in a small southern town in Colorado found that Riddell Helmets contributorily negligent in the head injuries a former Trinidad High School (CO) football sustained in 2008.  As a result of its verdict, the jury awarded damages in the amount of $11.5 million, of which Riddell is responsible for paying $3.1 million.

The lawsuit arose after Rhett Ridolfi participated in a “Machine Gun Drill” during an early morning practice.  During the course of the drill, Ridolfi allegedly made helmet-to-helmet contact with another teammate.  This contact resulted in Ridolfi sustaining a serious head injury, which according to Ridolfi’s attorney, has left Ridolfi with impulse and behavioral problems and has left in a walking brace and with limited functions on his body’s left side.

Ridolfi’s mother filed the lawsuit on his behalf in March 2010.  The lawsuit alleged negligence not only against Riddell, but also against six of Ridolfi’s football coaches.  Three of the coaches were found by the jury to be negligent.  However, reports indicate that damages were not ordered to be paid by them.  Ridolfi’s attorney told the media that he will be filing a motion to have Riddell pay all of the $11.5 million in damages awarded by the jury.  Riddell plans to appeal the verdict.

While the court transcript has not been reviewed, it appears that Ridolfi’s attorney argued that the defendants were liable for two types of products liability negligence:  product defect and failure to warn.

With respect to the product defect claim, Ridolfi’s attorneys argued that the padding in the front of Ridolfi’s helmet which was manufactured by Riddell wasn’t safe enough.  They also argued that another type of padding could have been used which would have protected Ridolfi.  This argument was rejected by the jury.

However, the jury found that Riddell was negligent in the type of warning it provided on its helmet, which was worn by Ridolfi.  Under tort law, a product may be defective as a result of the manufacturer’s failure to give adequate warnings as to the risks involved in using the product.  For liability to attach, the danger must not be apparent to users.

Reports indicate that Riddell has included a warning label on its helmets since 2002.  However, in this instance, it appears that the Colorado jury found that the warning label present on Ridolfi’s helmet in 2008 was inadequate.  This was likely due to the fact that the warning label did not warn against the possibility that the helmet would not protect against concussions and serious bodily injury sustained from instances including helmet-to-helmet contact.

A statement released by Riddell indicated that it believed that if testimony from a “warnings” expert would have been admitted by the judge, that it would have been fully exonerated in this case.  It is likely that Riddell’s appeal will argue that point, as well as the damages awarded and that its warning was sufficient.

This case, which arose out of a small town in Colorado, likely has larger implications than the damages which Riddell is facing paying.  First, it demonstrates juries’ willingness to hold helmet manufacturers liable for failing to adequately warn of the injuries football players can sustain even while wearing a helmet.  This factor is relevant as Riddell is currently facing at least two other cases on this issue, one of which is brought by 4,000 former NFL players.  Whether juries in other jurisdictions–where the other cases against Riddell are located–will find similarly will only be determined by time.  Furthermore, it is to be seen whether other courts allow Riddell’s “warnings” expert to take the stand and how that testimony may impact the outcome of the trial.

Riddell, however, can likely breathe a small sigh of relief that the Colorado jury did not find the design of its product to be defective.  Thus, Riddell may feel fairly certain that the product design defense it has created may be successful in other jurisdictions and in front of other jurors.

Nonetheless, the road for Riddell is not clear.  In coming months, it faces cases against plaintiffs who are more well-known (for example, the family of the late Junior Seau), have deeper pockets and greater media attention on their sides.  It is to be seen whether given these factors, juries return similar verdicts to that reached by the Colorado jury.

Alicia Jessop is a Colorado-based attorney and the founder of the sports law website RulingSports.com.  Nothing in this article is legal advice and no attorney-client relationship is intended to be created by this article.  Follow Alicia @RulingSports and at AliciaJessop.com.

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Filed under Civil Lawsuits, NFL

April 5, 2013 · 11:43 am

Auburn Justice: The Serious Issue Facing Former Auburn Football Player Mike McNeil

Selena Roberts’ serious allegations against the Auburn athletics department earlier this week caused an uproar among members of the media and college football fans.  If true, the story’s accusations of rampant drug use by football players, coaches handing players money under the table and academic officials changing football players’ grades to ensure their eligibility, are enough to turn Auburn athletics on its head.  Tucked away in the story, though, is an issue more pressing and with greater possible harm than any NCAA sanction can impose.  It is one that may cost former Auburn football player, Mike McNeil, his freedom.

McNeil is currently facing trial on two felony counts of first-degree robbery.  The charges stem from allegations that four former Auburn football players robbed a home while armed.  While building allegations of Auburn’s alleged athletic improprieties to a crescendo, Roberts quickly slipped a fact into her story that a trained legal eye would not let go unnoticed.  Eight paragraphs into Roberts’ Auburn expose, was the following quote,

“To show you how innocent he is, Mike is willing to go to trial because he says he didn’t do it,” says Ben Hand, who recently was dismissed as McNeil’s attorney after the family formally complained that he had a conflict of interest. “Mike McNeil didn’t rob anyone.”

As it turns out, McNeil’s attorney previously represented a man who lived in the house that McNeil allegedly robbed.  In the legal world, this is called a “conflict of interest.”  And in the legal world, a conflict of interest is a reason for which a criminal defendant can appeal the outcome of his case, should he be convicted.

Roberts’ assertion in her article that Hand was dismissed as McNeil’s attorney is incorrect.  That is because today, the Auburn educated judge hearing McNeil’s case ruled that Hand could not withdraw as counsel for McNeil’s case.  Rather, McNeil’s case will proceed to trial next Monday.

At that trial, McNeil faces three options when it comes to legal representation.  The first, is to be represented by a lawyer who once represented someone whose home McNeil allegedly robbed.  The second is for McNeil, without a college degree, to represent himself in a felony case in which he faces 21 years to life in prison.  The third option, is for McNeil to hire a new attorney who will assist his conflicted attorney.  That attorney will have 72 hours to prepare for a trial that took the prosecution nearly two years to bring to fruition.

Arguably, there is not an attractive choice present in this bunch.  As depicted above, Hand has maintained McNeil’s innocence to the media and will likely advocate zealously for him.  Additionally, the presiding judge in McNeil’s case, in ruling that Hand cannot withdraw from the case, determined that the prosecution will only proceed to trial against McNeil on two charges, as opposed to the seven charges he was originally facing.  This was based upon the judge’s finding that conflicts existed between Hand and those charges, but were not present in the two charges McNeil continues to face.  Regardless of these facts, questions likely persist in McNeil’s mind as to whether his attorney bears any biases towards him and if he will receive a fair shot at justice.

As the time on the clock dwindles down to McNeil’s trial date, a review of 11th Circuit (the circuit in which Alabama is located) and Supreme Court case law is necessary.  One basis upon which a defendant can appeal his conviction is for ineffective assistance of counsel.  The United States Supreme Court has ruled that a criminal defendant’s right to effective assistance of counsel is violated where a defendant’s attorney has an actual conflict of interest that affects the defendant adversely.  Something is an actual conflict of interest when a lawyer has inconsistent interests.  11th circuit case law says that a conflict of interest exists when a defendant can point to specific instances in the record to suggest an actual conflict or impairment of interest.  Specific instances could include an attorney choosing to elicit or failing to elicit evidence helpful to one client but harmful to another.

The question here, then, is does Hand have inconsistent interests when it comes to representing McNeil?  While Hand represented a resident of the home McNeil allegedly robbed, that representation came on an unrelated matter that occurred prior to the alleged robbery.  Given the differential between the matters and the time that has passed sense, does an actual conflict exist?

If an actual conflict of interest existed, case law also requires that the conflict adversely affected the counsel’s performance in order to successfully appeal on the basis of ineffective assistance of counsel.  A defendant must show three things to prove an adverse effect:  1.  That the defense attorney could have pursued a plausible alternative strategy, 2.  that the alternative strategy was reasonable and 3. that the alternative strategy was not followed because it conflicted with the attorney’s external loyalties.

At this stage, only McNeil and Hand know what alternative strategies exist, if any.  And at this stage, it is likely that they are the only two people who know why one defense strategy was chosen over another.

Should McNeil be convicted and wish to appeal his case, the real question that may persist is whether he waived his right to conflict-free counsel.  A defendant waives his right to conflict-free counsel when he chooses to proceed to trial with an attorney who has an adverse conflict of interest.  Arguably, this decision could bar an appeal on this issue, as the Supreme Court case of Johnson v. Zerbst found that a “waiver of the right to conflict-free counsel ‘disposes of the need to evaluate the actual or potential ineffectiveness of counsel caused by the alleged conflicts of interests.’”  To demonstrate a waiver, it must be shown that the defendant was aware of the conflict, recognized it could impact his defense and knew of his right to obtain other counsel.  Notably, today, the presiding judge in McNeil’s case advised him of his right to proceed to trial without an attorney or with a new attorney to assist Hand.  It is to be seen what decision McNeil makes.

Many unknowns face Mike McNeil at this moment.  The decisions facing McNeil as his trial approaches are lofty.  Truth be told, they are likely as big as the choice he made to commit to playing football at Auburn University.

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Filed under Criminal Law, NCAA

March 28, 2013 · 11:30 am

Job Opening: Executive Director, National Basketball Players Association

By:  Todd Burach, Ruling Sports Contributor (Twitter:  @ToddBurach)

By most accounts, LeBron James took over the decisive National Basketball Players Association Meeting at All Star Weekend in Houston as he would the fourth quarter of a playoff game. You can imagine the familiar look in his eye as if to say ‘this game has gone on too long, and I’m about to end it.’ On Saturday, February 16, in the middle of a successful showcase weekend for the NBA, twenty-four player representatives voted without dissent to remove Billy Hunter from his position as Executive Director of the NBPA. According to the NY Times, LeBron, along with respected veteran Jerry Stackhouse, “literally drove the discussion and rallied the players to make the change.” [1] In business, as in basketball, just give the ball to LeBron and get out of his way.

The vote to dismiss Hunter came in response to the findings of an independent internal investigation of the NBPA by the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP. While the report clearly states that the findings of the investigation do not show that Hunter engaged in criminal acts, the report found “the facts do show that, at times, Hunter’s actions were inconsistent with his fiduciary obligations to put the interest of the Union above his personal interest.” [2]  The referenced actions include not obtaining proper approval under the Union’s By-Laws for his current contract, receiving a $1.3 million payout for unused vacation time without adequate review, employing and contracting with several family members without full disclosure as well as the disinterested approval of Union leadership, and creating an atmosphere that discouraged challenges to his authority. The findings go on to list further actions including questionable investments, curious expenses, and failure to observe proper governance. Hunter and his representation have released a formal response to the Paul, Weis report, challenging many of the findings, and a legal battle is likely to ensue.

For the players, finding a replacement for Hunter is shaping up to be no easy task. It’s not that Hunter was so skilled and adept at his former post (in fact, the evidence would argue quite the contrary), the difficulty lies in the fact that a successful tenure as Executive Director of the NBPA requires an immensely diverse skill set. The individual must be well versed in labor law, seasoned at growing revenue for a global corporation, in tune with protecting the individual well-being of its members, while at the same time able to protect the collective interest of the whole. The role’s demanding requirements are analogous to LeBron’s role on a basketball court. His ability to score, rebound, assist, and play all-league defense led the Miami Heat to the 2012 NBA title. The players need to find an individual capable of wearing many hats, and given the demanding job requirements, the list of potential candidates has been sparse. David Falk, the long time agent for Michael Jordan, avowed, “If you offered me a billion dollars a year to do the job, I have no interest in doing it.”[3]  A source close to Donald Fehr, the current Executive Director of the NHLPA with a successful prior run as Executive Director of the MLBPA on his resume, quickly shot down his candidacy, saying he “has absolutely no plans to leave the NHLPA.”[4] Kevin Johnson, former NBA point guard and current Mayor of Sacramento, who is admirably fighting to keep the Kings in California, has been mentioned, however his second term as Mayor is not up until 2016[5].

Nearly a month removed from the decisive decision during All Star Weekend to replace Hunter, the search marches on for the Union’s next head. The players need someone to immediately reestablish credibility and a sense of order, then focus on growing the game, protecting their interests, and showing up at the next round of CBA negotiations better prepared. After the LeBron led meeting inHouston, many could argue that the proverbial ball of responsibility for ensuring that the right hire is made rests squarely in the King’s court. James has shown the ability to empower the players and has the prominence to get qualified potential candidates to listen. Heck, if LeBron called a certain someone at1600 Pennsylvania Avenue, I bet the man on the other end would at least pick up the phone, if only to appease the King.  With the direction of his league’sUnion in flux, it’s that point in the game where LeBron needs to call for the rock, give the look, and finish the play.

[1] “NBA Players Dismiss Union Leader” by Howard Beck. The New York Times, February, 16, 2013.

[2] “Report to the Special Committee of the National Basketball Players Association Concerning the Leadership and Business Practices of the NBPA: Executive Summary.” Page 1.

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March 12, 2013 · 12:25 pm

The Effectiveness of the NFL’s Three-Day Unrestricted Free Agent Negotiating Window

At 4:00 p.m. ET today, the 2013 NFL free agency signing period kicks off.  For NFL fans, general managers and players alike, the signing period marks one of the most exciting times of the NFL year.  It is a time where teams can rebuild rosters to further Super Bowl hopes and players can seek out new opportunities to build a lasting legacy in the league.

This year, the possibility exists that there will be a flurry of activity shortly after the start of the signing period.  This is due to the fact that this year marks the first time that a three-day negotiating window was opened before the start of the signing period.  During this time, NFL teams were allowed to contact and negotiate with agents for this year’s unrestricted free agents.  This period served only as a negotiation window, and teams and agents were not allowed to execute contracts until 4:00 p.m. ET on March 12.  In fact, the NFL even sent out a memorandum warning teams of “tampering” and reminding them that agreements between players and teams could not be reached during the three-day window.

Due to the fact that teams and agents had a chance to possibly hash out many of the details surrounding a player’s contract, chances are that some players will be ready to sign shortly after 4:00 p.m. ET.  However, signing an unrestricted free agent quickly after the start of the signing period may lead the NFL and other clubs to believe that tampering occurred.  As such, it is to be seen which team announces that it has signed the first unrestricted free agent of the 2013 free agent class.  Then, it will be seen whether the NFL and other clubs are satisfied that the respective agreement was made outside of the course of the three-day negotiating window and within the signing period.

Another reason why the three-day negotiation window may preclude a flurry of activity today, is during the window, unrestricted free agents were not allowed to visit other teams and could not have direct contact with team employees.  Thus, chances are that this negotiation window only represented a chance for agents to better test the market for their clients.  Due to the fact that many players are hands-on when it comes to selecting where they play, chances are most players want to get on the ground at a potential team’s site and visit with personnel from the team to learn how their presence on the team will be utilized.

Given these factors, the question exists as to whether this three-day negotiation window was necessary.  If teams and players were unable to reach agreements on various terms of a prospective contract, what is the point of negotiating?  If anything, the purpose the three-day negotiation window serves for both sides is an information grab.  By negotiating with a variety of teams during the window, unrestricted free agents can get a jump on getting an idea of where their best offer may lie.  Similarly, by negotiating with a variety of players, teams can get a sense of who best fills their team’s position needs and at what price tag.

Most agents and team executives would tell you that too much information is never a bad thing.  As such, it’s likely that the NFL will continue allowing the three-day negotiation window.  However, expect teams and agents to press forward for the right to reach agreements during the course of the window.  The NFL is unlikely to allow this, as it will argue that in doing so, the negotiation window essentially becomes a signing period.  Nonetheless, the three-day negotiation window has presented one more story line for NFL fans to watch this season, as they can now wait to see which unrestricted free agent is scooped up by a team the fastest.

 

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Filed under Agents, Contracts, NFL

March 4, 2013 · 7:25 am

How NASCAR’s Efforts After Daytona Nationwide Crash Will Impact Litigation

On February 23, at least 28 spectators were injured after a crash during a Nationwide Series race at Daytona International Speedway sent debris flying into the crowd.  Since the crash, NASCAR has reportedly begun investigating what mechanisms led to the crash and subsequent spectator injuries.  To do this, NASCAR is not only working to reconstruct driver Kyle Larson’s car, but is also working with fencing experts to determine how the track’s fencing may have played a role in the number of fans injured.

Hearing that NASCAR is taking these measures may have caused the injured spectators’ ears to perk up.  Reports indicate that numerous injured spectators have consulted with lawyers over the possibility of suing NASCAR for the injuries they sustained.  These individuals may believe that subsequent measures taken by NASCAR to improve the fencing around Daytona International Speedway may bolster any case they have against racing’s governing body.  However, such is not the case.

Given the amount in damages that potential litigants will likely demand against NASCAR, it is likely that a lawsuit would be filed in federal court.  Thus, the federal rules of evidence would apply.  The rule at issue here is Rule 407:  Subsequent Remedial Measures.  Notably, Florida’s state rules of evidence has a similar rule, Florida Statute § 90.407.

Rule 407 provides:

“When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction.  But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.”

In the case of potential lawsuits injured spectators may file against NASCAR, Rule 407 is notable.  Any lawsuit filed against injured spectators will more than likely include a claim of negligence.  This negligence claim will expectantly be based in part on an argument that not having higher fences at the racetrack was negligent on NASCAR’s part.  Should NASCAR in the coming days or months take the subsequent remedial measure of heightening the fences, potential plaintiffs could not use evidence of those measures to show that NASCAR was negligent in this instance.

From NASCAR’s perspective, the existence of Rule 407 is beneficial.  It is beneficial because NASCAR can make the necessary improvements to Daytona International Speedway in the wake of the crash without fearing that doing so will improve plaintiffs’ likelihood of success in litigation.  It is for this reason that Rule 407 exists.  However, as noted by the exception to Rule 407, plaintiffs will still likely raise any adjustments to Daytona International Speedway made by NASCAR in the wake of the accident during the course of litigation.  Most likely, plaintiffs will raise evidence of any subsequent remedial measures to negate any argument that such measures were impossible to complete.

Analysis of this small issue goes to show the battle that NASCAR stands to fight after the February 23 crash.  Not only must it evaluate the cause of the crash and research measures that could better protect fans, it must consider how those measures may impact its looming court case.  Thus, it’s safe to say that NASCAR’s lawyers will be putting in heavy hours in the coming months.

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Filed under Evidence, NASCAR