Commonwealth of Kentucky v. David Jason Stinson: Should Coaches be held Criminally Liable for Athletes’ Deaths?

Professor Michael McCann from the Vermont School of Law has a column up on SI.com about this case that could reach high-school coaches across America. The excerpt from the Sports Law Blog is below:

I have a column on SI.com concerning the first case in which a high school coach has been criminally charged with a player’s death. The trial will begin on Monday. Here’s an excerpt of the column:

* * *

Former Pleasure Ridge High School (Louisville, Ky.) football coach Jason Stinson faces charges for reckless homicide and wanton endangerment, felonies which each carry maximum five-year prison sentences, for the August 2008 death of sophomore offensive lineman Max Gilpin. Gilpin collapsed at the end of a series of wind sprints held in allegedly 94-degree temperatures. When taken to the emergency room, Gilpin’s body temperature was reportedly 107 degrees. Gilpin died three days later.

Other facts remain in dispute and will be contested during Stinson’s trial, which is scheduled to begin on Monday. According to prosecutors, Stinson, despite having been trained on the dangers of heat-related illnesses, subjected Gilpin to “barbaric conditioning” in the form of the sprints, which Stinson allegedly used to punish and motivate underperforming players. There are also conflicting reports as to whether, and to what extent, Stinson allowed players to drink water during certain moments of practice.

* * *

. . . [I]f Stinson is convicted or pleads guilty to a lesser offense that carries a prison sentence, his case could produce major changes in high school football and high school sports in general. It could, for instance, compel high school coaches and school districts to treat players with much more care, and to provide them with added safeguards, such as ensuring that trainers are on-hand at all times, that coaches have undergone extensive sensitivity training, and that purportedly harsh practice conditions (e.g., denying a player water at any time; ordering sprints in hot and humid conditions) be eliminated. Practices could thus become more safe though also more regulated and potentially more costly, including for the taxpayers who fund local sports.

Stinson’s case may also force coaches and school districts to condition the playing of sports on players’ passage of rigorous, possibly invasive health tests. While players are already subject to physicals, the prospect of criminal sanction and prison time accompanying the death of a player may spur coaches to demand greater certainty of players’ physical health. In that same vein, the profession of high school football coaching may take a hit. If a player’s death on the practice field can lead to a coach facing criminal prosecution, the profession suddenly becomes a much less attractive one. The added possibility of tort liability under a wrongful death civil claim only amplifies that point.

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To read the rest, click here.

9th Circuit strikes down seizure of BALCO names

FIU’s own Professor Howard Wasserman has a post on the Sports Law Blog stating how the 9th Circuit struck down the seizure of the names in the BALCO seizure. Here is the post:

The en banc Ninth Circuit today held that government investigators violated the Fourth Amendment when, during a raid on BALCO, they seized the names of 104 MLB players who tested positive for steroids, while acting on a warrant targeted at only ten players. (H/T: Jon Pessah).

The opinion is 63 pages long (I have not had a chance to read it yet); the majority is by Chief Judge Alex Kozinski, one of the sharpest judicial minds on the federal bench and someone on the libertarian/conservative side. There are two partial concurrences/dissents and one full dissent. I would predict Supreme Court review, just because of the high-profile nature of the case.

Update:

Orin Kerr has a series of posts on the case at the Volokh Conspiracy. Orin knows the Fourth Amendment better than most people, so it is worth a read.

6 former NFL players sue over their likenesses

As detailed by Nooman Merchant of the Associated Press, a group of retired NFL players are suing the NFL under the Lanham Act over the NFL’s use (and particularly NFL Film’s use) of their identities. Merchant interviewed me for the story. Here is an excerpt and my comments:

* * *

NFL Hall of Famer Elvin Bethea [#65 above, a defensive lineman who played for the Houston Oilers and recorded a lot of sacks while doing so] and five other players sued the league for using their names and images for profit without their permission.

The players filed a class-action lawsuit Thursday in federal court in Minneapolis. The lawsuit accuses the NFL of exploiting retired players’ identities in films, highlight reels and memorabilia to market the league’s “glory days” without compensating the players.

“It’s really turned into a big property,” said Bob Stein, a lawyer for the players.

* * *

In this case, the NFL would likely refer to its collective bargaining agreement with the NFLPA. The player contract in that agreement gives publicity rights to the league.

“Whether there’s sufficient language in there affecting retired players remains to be seen,” says Michael McCann, a sports law expert and professor at the Vermont School of Law.

In June, a group of more than 2,000 retirees won a $26.25 million settlement with the NFLPA over the use of their likenesses in video games, trading cards and other sports products. The retirees sued in 2007, accusing the union of failing to actively pursue marketing deals for such products.

* * *

To read the complaint for Dryer v. NFL, click here.

Court rules that Delaware gambling system violates ban

PHILADELPHIA — A federal appeals court ruled Monday that sports betting in Delaware would violate a 1992 federal ban on such wagering, essentially halting the state’s plans to start taking bets next month.

The plan was opposed by the professional sports leagues and the NCAA, which claimed it violated the federal Professional and Amateur Sports Protection Act, would harm their reputations and expose young people to gambling.

Delaware Gov. Jack Markell had pushed for sports betting as a way to help resolve an unprecedented shortfall in state tax revenues and balance the state budget. Attorneys who argued the case for the state appeared stunned by the ruling.

“We’re very disappointed with today’s ruling,” said Michael Barlow, the governor’s legal counsel.

Delaware was one of four states exempted from the federal ban on sports betting because it once ran an NFL sports lottery in 1976 that required parlay, or multiple bets, on at least three games.

The 1992 law restricts sports betting to the four states that met a deadline to sign up for it: Nevada, where Las Vegas sports books determine the odds for sporting events across the country; Delaware; Montana; and Oregon.

But the leagues argued that the exemption does not allow Delaware to offer bets on single games, or on sports other than professional football.

Speaking for the court, Judge Theodore McKee said Monday that the betting plan as currently envisioned violates the federal ban. The court was expected to issue a formal order later Monday, followed by a written opinion later.

Barlow said Markell administration officials would have to discuss whether to proceed next month with parlay bets on NFL games, which the leagues concede are legal. Administration officials also will meet with their lawyers to decide whether to appeal the ruling to the full appeals court, or to the U.S. Supreme Court.

The court heard almost two hours of argument from attorneys regarding the denial of an injunction that would have prevented the betting from beginning with the start of football season in September.

But instead of ruling on the injunction, the appeals court turned directly to the league’s claim that sports betting would violate the federal ban.

“We were hoping the court would rule on the merits,” said Kenneth Nachbar, an attorney representing the NFL, NBA, NHL, NCAA and Major League Baseball.

During Monday’s arguments, the judge questioned what would happen if the state began sports betting in September, then had it declared illegal by the district court several months later. Individual bettors would have lost hundreds or thousands of dollars on what essentially was an illegal state scheme, he said.

“What happens if you’re wrong?” McKee asked Andre Bouchard, an attorney representing the state.

“Caveat emptor,” Bouchard replied, citing the Latin admonition of “buyer beware.”

Article located here.

Entertainment Law Event on Sept. 11, 2009

The EASL Section of the Florida Bar is hosting an event on September 11, 2009 entitled “One for the Road…Touring, Talent, Venues, and More.” This event is taking place at the Adrienne Arsht Center for the Performing Arts of Miami-Dade County, and is located at 1300 Biscayne Blvd., in Downtown Miami. The event is scheduled to begin at 12:30pm (registration) with opening remarks at 1pm. The price for the event is $40 for law students, $95 for EASL members, and $120 for non-section members. The event itinerary is as follows:

12:30 p.m. – 1:00 p.m.
Late Registration

1:00 p.m. – 1:30 p.m.
Opening Remarks
Faculty & Steering Committee Introduction
John Richard, President and CEO of the Adrienne Arsht
Center for the Performing Arts of Miami-Dade County
Nina-Dawne Williams, 2009-2010 EASL Chair, Aventura

1:30 p.m. – 2:30 p.m.
Getting My Act Together and Taking it on the Road:
Deal Points from Venue and Promoter Perspectives, Insuring the Stage, Insuring the Act and Considerations in Routing the Tour
Moderator: Steven E. Eisenberg, Esq., Jones Walker, Miami
Panelists:
Aaron Zimmerman, Adrienne Arsht Center, Miami
Louis Tertocha, Esq., Adrienne Arsht Center, Miami
Gary Reshefsky, Esq., MDW Insurance Group, Coral Gables
Marlon Hill, Esq., delancyhill, P.A., Miami

2:30 p.m. – 3:00 p.m.
Question and Answer

3:00 p.m. – 3:15 p.m.
Break

3:15 p.m. – 4:15 p.m.
Keeping the Act Together Once on the Road: Artist Deal Points, Methods of Calculating Payout to the Artist, Technical and Hospitality Riders, Legal Issues for Big Tours and Stadiums, and Performance Rights Issues
Moderator: Steven E. Eisenberg, Esq., Jones Walker, Miami
Panelists:
Marc Stollman, Esq., S2BN, Miami Beach
David Rogero, Esq., David M. Rogero, P.A., Miami
Leslie Zigel, Esq., Miami
Stephen Carlisle., Esq., Fort Lauderdale

4:15 p.m. – 4:45 p.m.
Question and Answer

4:45 p.m. – 6:30 p.m.
Reception (Patron’s Lounge)

The registration form and brochure for the event can be found here.

Judge rules that the records in the Florida State Cheating Incident are Public

TALLAHASSEE, Fla. (AP) -A top official at the NCAA said a court ruling Thursday that documents dealing with cheating at Florida State are public records sets a precedent that will “rip the heart out of the NCAA” and its efforts to ensure competition is fair and equal.

David Berst, the NCAA’s vice president for Division I, said few witnesses other than school officials and employees would be willing to tell what they know about cheating, whether in recruiting, academics or other areas, without the promise of confidentiality.

“We could see copycat efforts in other states,” Berst said. “Yes, I believe that would rip the heart out of the NCAA.”

His comments from the witness stand came soon after Circuit Judge John Cooper rejected the NCAA’s claim that the documents in the Florida State case are not public.

The Associated Press and other media outlets had sued to get the records on the college athletics governing body’s plan to strip coaches and athletes of wins in 10 sports.

//

That includes football coach Bobby Bowden, who could lose 14 victories. Bowden’s chances of overtaking Penn State’s Joe Paterno as major college football’s winningest coach would dim if the NCAA rejects an appeal of that penalty. Paterno has 383 victories – one more than Bowden.

Florida law says records are public if they are “received” by a state agency. The NCAA claimed the Florida State documents were not because the school never physically possessed the documents in paper or electronic form.

Instead, the NCAA posted them on a secure read-only Web site that could be accessed by the law firm Florida State had hired for its appeal. School officials also could have gone to NCAA headquarters in Indianapolis to take a look at the documents.

Cooper rejected the argument.

After Berst’s testimony, he rejected the NCAA’s claim that even if the documents are public records they should not be released because that would violate free association, contract and interstate commerce rights under the U.S. Constitution.

The judge also found that making the documents public would violate neither state nor federal laws guarding the confidentially of student academic records. He made that ruling after privately reading copies of two documents being sought that had student names blacked out.

Media lawyer Carol Jean LoCicero in arguing to obtain the Florida State records cited a 1990 appellate court ruling that St. Petersburg and the Chicago White Sox violated the public records law through a scheme to hide documents on the team’s possible move to Florida. The papers were sent to a local law firm where they could be viewed by city officials and attorneys.

That was little different from what the NCAA and Florida State did, LoCicero said.

“Everything was done except touch a piece of paper,” she said. “You don’t have to touch a piece of paper to receive a document.”

Cooper agreed, ruling that viewing the NCAA documents on a computer screen was the same as receiving them.

Article located here.

The case referred to in the article involving the Chicago White Sox is Times Publishing Company, Inc. v. City of Saint Petersburg, which can be found at 558 So. 2d 487.

Should the MLB have tougher penalties on beanballs?

Harvard Law School Professor Alan Dershowitz (of many sources of fame, including being a member of O.J. Simpson’s successful legal team in People of California v. Simpson and successfully representing Claus von Bulow in his murder trial), has an interesting op-ed in the Boston Globe on what he considers to be inadequate penalties for big league pitchers who throw at and hit batters, as well as the managers of those pitchers. Dershowitz proposes dramatic increases in punishment.

Here’s an excerpt:

* * *

It has become routine in baseball to throw at a batter. Being beaned is part of the risk of playing baseball . . .
Such was the case with Kevin Youkilis, back in the Red Sox lineup last night after a five-day suspension. The throw that prompted Youkilis to rush the mound was, according the Major League Baseball, deliberate. He was hit on the back.

Youkilis and pitcher Rick Porcello were both suspended for five days even though the decision to throw at Youkilis was premeditated and deliberate whereas Youkilis’s response was unpremeditated and provoked. Death, serious injury, and the end to careers can result from being struck by a ball, particularly in the head; it is rare for anybody to be seriously hurt when a batter charges the mound with his bare hands. Accordingly, an equal penalty for these two very different offenses was outrageous.

Moreover, the penalties were anything but equal in impact. Youkilis, one of the most consistent hitters and fielders in Major League Baseball, and one of its most difficult outs, missed approximately 25 at bats and numerous fielding chances. During his five game suspension, the Red Sox lost 4 games and won only 1. The five day suspension of Porcello, on the other hand, barely affected his team. Normally a starting pitcher gets to the mound only once in five days, so Porcello didn’t even miss one full rotation . . .

The message conveyed by Major League Baseball, even if unintended, is that it pays for a pitcher to throw at a superstar. Since human nature will often cause a batter to respond impulsively to being struck, a pitcher can trade a meaningless suspension for a meaningful one against the opposing team.

Moreover, had Youkilis not charged the mound, it is extremely unlikely that Porcello would have been suspended at all. But even if he were to have received a slap on the wrist, managers will now have an incentive to continue to encourage pitchers to throw at valuable batters, since their team can derive a benefit.

* * *
The minimum penalty for a manager must be suspension for an entire season, perhaps even for life. For the pitcher, suspension for the season should be mitigated only if the pitcher turned in the manager. There should also be penalties for any baseball player who hears the manager or coach order the beaning of a player without reporting it.

* * *

To read the rest, click here.

My thoughts: Professor Dershowitz brings up some interesting points, but there are parts that I just cannot agree with. Sure, the penalties are not equal but, as we have seen throughout baseball history, if the batter just takes the pitch and runs down to first, everything is over. Case in point – Mark Teixeira this season when he was hit by Matt Garza of the Tampa Bay Rays. Tex took his lick and ran down to first and nothing happened. Benches did not clear, people weren’t suspended, and no one seemed to care. Fast forward to Youkilis getting hit and the simple fact that he charged the mound transformed everything. If he would have just ran down to first, or even just gotten to the point where he “screamed” at Porcello, then he presumably wouldn’t have been suspended. By taking it one step further and throwing his helmet at the pitcher, he made the situation what it became and he was (rightfully so in my opinion) suspended for 5 games along with Porcello. Had he just gotten over it, only Porcello would have been suspended.

Also,  a year penalty or even a lifetime ban for any manager? It’s pretty easy to give out outlandish ideas from an ivory tower at Harvard Law School. It really makes me wonder if Mr. Dershowitz has played baseball in his life. This is the most ludicrous thing I have heard in quite some time.

Another idea that I cannot get on board with is the fact that “often” human nature causes players to charge the mound.  I can come up with millions of examples where players did not charge the mound and a handful of instances where they did. I believe that Youkilis is the only player who has charged the mound this season and succeeded. Unless I am wrong, this is not what I’d define as happening “often.” Perhaps I’m way off, but I just cannot agree with what Professor Dershowitz has said in his op-ed piece.

Antitrust Case (American Needle) could be “Armageddon”

Fast forward to a high-definition picture of sports late in 2010. Here is the news of the day, scrawling across the bottom of your TV screen or mobile Web device:

• LeBron James, who had been expecting a free-agency bonanza when his contract with the Cleveland Cavaliers expired after the 2009-2010 season, opens the 2010-11 season with … the Cavs, the only team with the right to sign him. Cleveland retains the NBA MVP by slotting his salary into the new league-wide scale.

• Minnesota Vikings defensive coordinator Leslie Frazier, the hottest commodity for every opening in the NFL over the past six months, signs on to be the new head coach of the Dallas Cowboys … at a league-determined salary that will pay him far less than he’d have made if the Denver Broncos had chosen him over Josh McDaniels in 2009.

• The Ricketts family, new owner of the Chicago Cubs, scraps plans for its own cable channel because Major League Baseball has barred all such broadcasts, as well as webcasts, by individual teams.

• A young Detroit Red Wings fan who has saved his pennies for months shells out $300 to buy a replica sweater that would have cost him $80 in 2009.

• Lockouts and strikes loom large in all four major team sports as an era of relative peace on the sports labor front ends and owners begin to exercise their new power over player unions.

Unlikely?

Discouraging?

It could happen.

All of those scenarios, in fact, could become realities if the NFL triumphs in a case now under consideration in the U.S. Supreme Court. Experts agree that the case known as American Needle vs. NFL could easily be the most significant legal turning point in the history of American sports. If the high court rules in favor of the NFL, the development will be more important to the sports industry than Curt Flood’s battle against the reserve clause in the 1970s; than baseball’s collusion cases in the mid-’80s; than the NFL players union’s epic fight for free agency in a series of antitrust cases that stretched over a decade; and even than the enactment of the Sports Broadcasting Act in 1961, which is the legislation that is the foundation of the NFL’s television riches.

Article continued here.

NCAA: Memphis required to vacate wins and placed on probation

The NCAA Committee on Infractions will release its findings regarding Memphis on Thursday morning and the word “vacate” is included in the report, several sources told ESPN.com.

In May, the NCAA accused Memphis of several major infractions during its 2007-08 season under coach John Calipari, including a fraudulent SAT score by a player, later revealed to be Derrick Rose, and more than $2,000 in free travel for Rose’s brother, Reggie.

The potential penalties include vacating the Tigers’ Final Four run and NCAA-record 38-win season, a possibility that seems likely now, according to the sources.

Late Wednesday night, the Memphis Commercial Appeal, citing an unnamed source, said the school will have to vacate the regular-season wins and its 2008 Final Four appearance.

A source said the current Memphis program will not be penalized and will escape a postseason ban or loss of scholarships.

The NCAA planned a news conference in Indianapolis at 3 p.m. ET Thursday, and Dr. Shirley Raines, president of Memphis, told The Associated Press the school will hold its own media conference shortly afterward.

Memphis originally received the notice of allegations on Jan. 16 and appeared before the committee in June. The main academic allegation against Rose is that someone stood in for him during the SAT, even though the NCAA Eligibility Center later cleared Rose to play.

Calipari, Memphis’ coach at the time of the alleged infractions who is now the head coach of Kentucky, told ESPN.com’s Andy Katz on Wednesday that he wasn’t aware the report would be released Thursday.

Calipari, appearing at the Kentucky State Fair on Thursday, had no comment because the report had not been officially released, but did say he would be “disappointed” if Memphis was stripped of its trip to the Final Four.

“We don’t know anything, because I’m not going to comment because I have to wait on the finding,” Calipari said. “I would be disappointed if that’s what they chose to do.”

Kentucky Gov. Steve Beshear, appearing with Calipari on Thursday, said he isn’t concerned about the troubles at Memphis following Calipari to the Wildcats.

“I’m not worried about it because they have never said Coach Cal did anything wrong at all,” Beshear said. “I think he’s a very upstanding guy. I think that’s his reputation and I think that reputation will be with him here. I really don’t foresee any problems.”

Article continued here.

My thoughts: I’ve always thought Coach Calipari was dirty, and it appears that the NCAA is about tell us again that he is. He has now taken 2 teams to the Final Four (UMass and Memphis) and both have gotten stripped from the record books (if this report is true).  This just stinks to high heaven, and you figure that the University would do a better job of following the rules, but we all know this goes on at many major universities, especially ones with good sports programs. I hope Kentucky knows what they’ve gotten into because they just hired a coach who has now been stripped of wins in both places he coached prior to taking over their program and signing a very lucrative contract.

UPDATE: Memphis was required to vacate all 38 wins from the 07-08 season and was placed on 3 years’ probation as a result of their violations. In addition to the lost season, Memphis also must return the money it received from the NCAA tournament to Conference USA and will be prevented from receiving future shares doled out in the conference’s revenue-sharing program — a total loss estimated at $530,000 on top of the $85,000 already paid by the school. If Memphis loses its appeal, Johnson said approximately $300,000 in bonus money Calipari earned from that season would be paid back.

Paul Dee, the chairman for the COI, said in a teleconference that even though Memphis was not aware of Rose’s questionable test score until midway through his freshman year, once the score was invalidated by Educational Testing Service, Rose no longer met the initial eligibility standards.

“This is a situation of strict liability,” Dee said. “If he is ineligible and does not meet initial requirements, the penalties are related back to that time and a determination is then made: Did he play in any contests after the fact? In this case, he did.”

Article continued here.

Bud Selig wants Worldwide Draft & Capped Bonuses for MLB

Commissioner Bud Selig wants MLB to adopt  a worldwide draft and more rigid bonuses for picks when the current collective bargaining agreement expires after 2011, according to Dave Sheinin of the Washington Post. Selig said the Nats and Stephen Strasburg agreed on a “fair” deal, but wants to cap the bonuses draftees receive.

“There’s no question in my mind, in 2011, certainly a slotting system and a worldwide draft are things we will be very aggressive talking about,” Selig said.

Sheinin says a number of players are comfortable with the idea of capping bonuses for draftees, so there’s potential for change when MLB negotiates the next CBA with the players’ union.

Glen “Big Baby” Davis & the $500,000 diet

From our friends over at the Sports Law Blog:

Sports contracts include all sorts of bonuses in order to incentivize behavior, but this one caught my attention:

The Boston Celtics are bringing back Glen “Big Baby” Davis, who agreed to a two-year deal that could pay $6 million . . . Davis will receive $5 million in base salary and can earn an additional 500,000 per season for meeting certain weight clauses, a source told ESPN.com’s Chad Ford.

Davis, of course, has a history of weight problems, which may partly explain why he fell out of the first round in the 2007 NBA Draft and also why he struggled to attract much interest as a free agent this off-season (another reason is his height relative to position — 6’6 power forwards usually aren’t coveted).

The incentives in his contract suggest that Davis believes his weight woes are his own fault, or at least primarily his fault, rather than the fault of unusual metabolism or something else that would be beyond his control. After-all, if he thought his weight problems were beyond his control, then he presumably wouldn’t ascribe much value to the incentive.

With obesity rates soaring in the U.S., it will be interesting to see if more athletes encounter weight woes and if, correspondingly, teams turn to $$ as a way of discouraging players from putting on the pounds.
Any thoughts? Please feel free to chime in!

Former Olympic Gold Medalist charged with HGH possession

MCKEES ROCKS, Pa. — Pro wrestler and Olympic gold medalist Kurt Angle has been arrested on charges of possessing a human growth hormone and violating an order of protection in suburban Pittsburgh.

Angle was arrested about 7:50 a.m. Saturday in a Robinson Township strip mall parking lot. His girlfriend, who said she obtained a protection order about 1½ hours earlier after the two fought Friday night, alleged that he had circled the lot staring at her as she sat in a coffee shop, according to a police affidavit.

Police said they found the human growth hormone Hygetropin in Angle’s car, and the wrestler told them he had a prescription for the drug. He also told officers he had not seen the woman and was looking for a hotel because he was barred from his home.

Angle, 40, was charged with violating the order of protection, harassment, possession of drugs and paraphernalia and driving with a suspended license. He posted bail and is scheduled to appear for a hearing Tuesday on the drug and harassment charges and Wednesday on the charge of violating the protection order, a court clerk said.

Angle, the current heavyweight champion of Total Nonstop Action Wrestling, was scheduled to appear in a TNA Wrestling event Sunday night in Orlando, Fla. Steven Godfrey, spokesman for Nashville, Tenn.-based TNA Wrestling, declined comment on the arrest but said the main event between Angle, Sting and “The Blueprint” Matt Morgan would go on as scheduled.

Godfrey also said TNA has a drug policy in place for staff and performers, but he declined to release the details.

Angle’s phone number is unlisted. Messages left for attorney Michael Santicola, who has represented him previously, were not immediately returned.

Angle is a two-time NCAA Division I wrestling champion at Clarion University in western Pennsylvania. He won the 220-pound championship at the 1996 Olympics in Atlanta, defeating Iran’s Abbas Jadidi for the gold medal, and has been a professional wrestler since 1998.

In September, Angle was found not guilty of drunken driving in Moon Township outside Pittsburgh. A motorist told police Angle had cut her off while leaving a bar parking lot.

Article located  here.