American University Washington College of Law Sports and Entertainment Law Blog

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I would like to direct readers to the AU Sports and Entertainment Law Blog that was launched yesterday. We will have articles on the latest stories in sports and entertainment law written by students at the law school. Many of the posts that would normally be featured on this blog will be posted on the school’s blog, so please visit that site regularly for updates. Also follow the Sports and Entertainment Law Society on Twitter @WCLSELS! Thank you for your support!

 

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Defending Richie Incognito

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This might come a few hours too late in light of the statement by Jonathan Martin’s attorney, David Cornwell, but in the event that Martin sues Incognito, there are a couple of ways to approach a defense. The first way to deflect the accusations by Martin is to go after Martin himself. We’ve already seen a little bit of this from the Dolphins players as well as head coach, Joe Philbin. There have been rumors of Martin having a mental illness, being too soft for football, and rumors questioning his sexual orientation.

The other, more reliable way to for Incognito to defend himself, is to say he was only doing what the coaching staff instructed him to. My previous post details why this would be effective, but the general idea is to say Incognito was only doing what he was told. Based on recent reports, the instructions to toughen Martin up didn’t just come from the Dolphins coaching staff, but reached as high as General Manager Jeff Ireland (Yes, the same Jeff Ireland that asked Dez Bryant if his mother was a prostitute). Ireland reportedly told Martin’s agent that Martin should “punch” Incognito to resolve the issue.

As expected, all sides have lawyered-up: Martin has hired David Cornwell and the NFL has hired Ted Wells, a prominent New York attorney, as an investigator. The Dolphins, by suspending Incognito and denying knowledge of the extent of Incognito’s actions, are distancing themselves from the situation to avoid liability. It’s not clear yet whether Incognito has hired an attorney but it would be a good idea for him. It’s only a matter of time until the first shot is fired and the legal battles begin.

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Vicarious Liability? Incognito Told by Coaches to ‘Toughen Up’ Martin

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New reports are emerging that Richie Incognito was told by his coaches to toughen Martin up. I’m not sure whether Incognito has spoken to an attorney or received legal advice from anyone but if he’s responsible for this information coming out, it was a good move on his part. In the case that Martin were ever to go after Incognito legally, Incognito could claim respondeat superior which could limit his liability under certain circumstances. Respondeat superior is a doctrine under which an employer is liable for the actions of an employee, if the actions were committed within the scope of employment.

To limit his liability if a suit is brought against him by Martin, Incognito could claim the he was only following the directions of his superiors (the coaches) when he left the reported messages for Martin. One problem Incognito could run into under this doctrine is whether his actions were within the scope of his employment with the Dolphins. Courts generally weigh a number of factors when deciding whether an employee was acting within the scope of his employment. Three common factors that are considered are:

  1. Whether the act was committed within the time and space limits of the employer
  2. Whether the offense was incidental to, or of the same general nature as, the responsibilities the employee is authorized to perform
  3. Whether the employee was motivated to any degree to benefit the employer by committing the act

While so far, the only evidence of hazing that we know of are texts and voicemails, hazing does not occur in dark corners and the incidents are generally not isolated; they happen during practice, in the locker room and at other times when other people are present. Also, up to this point, it doesn’t look like Incognito was trying to hide his behavior so it’s likely that teammates, coaches and other team personnel witnessed more acts by Incognito against Martin. The next element may be challenging to prove as well. The Dolphins would argue that when coaches told Incognito to toughen Martin up, they did not condone the use of racial slurs and threats. They would also argue that they wanted Incognito to do so on the field within the practice environment. However, an employer is generally not released of liability just because an employee did something he should not do. The third element may not be difficult to prove. Incognito and Martin were both apart of the offensive line and toughening Martin up, would have helped not only Incognito but the team as well.

Alot of this analysis sounds very ‘nitpicky’ in the context of sports, however even if the legal analysis and jargon is removed, Incognito’s actions still crossed the line. In the past few days, a number of current and professional athletes have been making the rounds on national TV and radio shows. Most of their stories revealed that hazing was the norm on their teams but it was mostly in good fun. Funny haircuts, carrying bags, and paying for dinners are some acts that were mentioned, none of which raise red flags. Incognito went too far and he and the Dolphins may end up paying the price.

Posted in NFL, Rajiv Radia | Tagged , , , , | 1 Comment

Hostile Work Environment: Jonathan Martin, Richie Incognito and the Miami Dolphins

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By now most of us have heard about the story involving Miami Dolphin’s offensive linemen Richie Incognito and Jonathan Martin. In short, Martin left the team last week due to incidents of hazing and bullying by Incognito. According to multiple reports, Martin has turned over multiple text messages and voicemails sent to him by Incognito in which he uses racial slurs and threatens to kill Martin. The reports have most people defending Martin and questioning Incognito, but there are plenty of current and former NFL players and other personnel who are defending Incognito, while calling Martin soft. Although there is a tough-guy culture in the NFL and a tradition of hazing in almost all professional sports, the NFL and the Dolphins seem to be and should be navigating the issue carefully.

Fans love playing fantasy football and watching the NFL is apart of a relaxing Sunday. However, for players, coaches and others who work for the NFL, it’s a real job and real laws apply. The United States has laws against workplace harassment and discrimination and professional sports is no exception. Title VII of the Civil Rights Act of 1964 (“Title VII”) exists to prevent discrimination by employers on the basis of race, color, religion, sex or national origin. For a plaintiff to bring a suit under TItle VII, the employer must have fifteen or more employees. There are two types of work place harassment under Title VII, “quid pro quo” and “hostile work environment”. In this case it’s more likely that if Martin were to sue the Dolphins, it would be under hostile work environment.

In order for Martin to bring a suit under Title VII for a hostile work environment, he would have to prove five elements:

  1. He was subject to slurs, insults, jokes or other verbal comments or physical contact or intimidation of a racial nature;
  2. The conduct was unwelcome;
  3. The conduct was sufficiently severe or pervasive to alter the conditions of the his employment and create a racially abusive or hostile work environment;
  4. He perceived the work environment to be hostile or abusive; and
  5. A reasonable person in his circumstances would consider the environment to be abusive or hostile.

At first glance it seems like Martin would be able to hit each of the five elements very easily. In fact upon closer analysis it’s clear that he can. With text messages and voicemails from Incognito that he saved, Martin has made it easier for himself to prove element one. Incognito used racial slurs and threatened Martin in those messages which is evidence of racial discrimination. Elements two, three, and four may be met and demonstrated by Martin leaving the team last week. Element five would be in question only if a court took into account the culture of the NFL and required an NFL player as a “reasonable  person”. Otherwise any other person would likely find this an abusive or hostile environment.

This is the reason Dolphins coach Joe Philbin came out, and in my opinion, used very careful language when talking about the situation. Specifically, Philbin made clear that he had no idea the extent of what was going on. The one mistake Martin made if the reports are accurate, is not going to the coaching staff prior to leaving the team. Although “not knowing” may not save the Dolphins in a lawsuit, it would have helped Martin (in a lawsuit and maybe in the moment) to talk to the coaching staff.

There are much larger issues at stake here including and it will be interesting to see how things pan out. It will also be interesting to see which side the NFL Players Association (NFLPA) lands on. The NFLPA’s responsibility is to the players and but when larger social issues are at stake they will have to pick a side at some point. Their initial statement of wanting a “fair investigation” for all involved reflects the uncertainty of their stance.

Posted in NFL, Rajiv Radia | Tagged , , , , , | 5 Comments

Recusal: Prosecutors in Aaron Hernandez Case Ask Judge to Recuse Herself

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Prosecutors in the Aaron Hernandez case are currently making their case for Superior Court Judge Susan Garsh to recuse herself. Hernandez is present at the hearing which is being aired live on ESPN News. Many media outlets will detail what exactly happens during the hearing but here is an overview of what it means for a judge to recuse herself from a case.

The standard for recusal or judicial disqualification is provided by two sections of the United States Code. Section 455 of Title 28 of the United States Code (28 U.S.C. §455) titled “Disqualification of justice, judge, or magistrate judge” and Section 144 titled “Bias or prejudice of judge”.

Disqualification of Justice, Judge, or Magistrate Judge
Section 455(a) provides that, “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455 goes on to list a number of other reasons a judge should recuse herself from a proceeding.

Bias or Prejudice of Judge
Section 144 titled “Bias or prejudice of judge” provides another avenue for parties in a trial to request a judge recuse herself. Section 144 states,

“Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.”

In this case, the prosecutors seem to be asking the judge to recuse herself under Section 144 due to bias she has shown to prosecutors during questioning of witnesses. While attorneys may file a motion and be heard about why they feel the judge should recuse herself, it is a risky proposition. When filing such a motion, attorneys are essentially asking a judge to disqualify herself because she is biased against them or is not able to be fair. Often times recusal is fairly straightforward such as in a case where the judge has a financial interest in the outcome of the case. In this case however, the prosecutors are claiming the judge is biased against them which is far more personal.

While in a perfect world in which no emotions are involved, there would be no problem with this. However, people have egos; judges are people and some have very large egos. In the likely case the judge does not grant the motion and does not recuse herself, the prosecutors have to face the judge for the rest of the trial and may face consequences from that. While its unlikely a judge will hold a grudge enough to affect the outcome of a trial, she can make life difficult for one side or the other.

So far during the hearing the prosecution has stated their intent is not to “jugde shop”; in other words they are not out to search for a judge that will be partial to them. The defense is now at the podium making their case against the judge’s recusal. It will be interesting to see how the judge rules on this motion but it seems unlikely that she will recuse herself.

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What is ‘Insider Trading’ and Why Did the SEC Sue Mark Cuban?

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Dallas Mavericks owner Mark Cuban has been a polarizing figure since purchasing a majority stake in the team in 2000. He’s been one of the most outspoken owners in professional sports, but has garnered the respect of not only fellow owners, players, and fans of the NBA, but of businessmen and women around the world. Cuban made his fortune by taking risks and making shrewd business decisions when necessary, most notably selling internet start-up Broadcast.com to Yahoo for $5.7 billion in Yahoo stock in 1999. Recently, one of Cuban’s decisions caught up to him in the form of a civil lawsuit filed against him by the Securities and Exchange Commission (SEC). Fortunately for Cuban, he prevailed in the suit and was found not liable by a Texas jury.

Cuban owned shares of Mamma.com a search software company (now known as Copernic)  which he sold off in June 2004. Shortly after Cuban’s trade, the shares price dropped raising suspicions that Cuban had received information that led him to unload his shares before he lost money on them. Specifically the SEC alleged that Cuban was approached by Mamma.com Chief Executive Guy Faure, with information that the company was planning a private offering of the stock which would dilute the shares. The SEC argued that this information allowed Cuban to sell his shares and avoid taking a $750,000 loss.

Here is an overview of why the SEC sued Cuban. Congress enacted the Securities Exchange Act of 1934 (the “Act”) after the stock market crash of 1929. Section 16(b) of the Act prohibits profits from any purchases and sales within any six-month period (short-swing profits) made by corporate directors, officers, or stockholders owning more than 10% of the firms shares. Enforcement of insider trading laws are not limited to directors, officers, or stockholders owning more than 10% however. An “insider” can be anyone who trades shares based on material non-public information in violation of some duty of trust. In this case, the SEC alleged that Cuban was given information by Mr. Faure and was told to keep this information private. The information that the company planned to make a private offering is without question material information as it had a direct effect on the value of all of the shares. In addition, Cuban allegedly used this information to sell his shares prior to the information becoming public. This would make him liable if the SEC were able to prove that the facts above were true.

In insider trading cases, one of the toughest obstacles encountered is proving evidence. The phone conversation between Mr. Faure and Cuban was not recorded and the only evidence of it was Mr. Faure’s testimony. Cuban’s attorneys were able to poke holes in the SEC’s argument by questioning the validity of Mr. Faure’s testimony. Ultimately the jury found Cuban not liable because the SEC failed to prove that the information Cuban received was ‘non-public’ information. Cuban’s attorneys alleged that other investors knew of the private offering because they were approached about participating.

In addition, Cuban had the benefit of the case being prosecuted in Texas where he is well-known and generally well-liked. The SEC was at a tremendous disadvantage from the start and the lack of evidence and home-court advantage (pun intended) Cuban possessed, proved too difficult to overcome.

Cuban could have settled the case for $2 million, however in his typical defiant manner, he was determined to clear his name. In the process he likely spent more than the $2 million settlement in attorneys fees to do so. Also, in line with the way Cuban has commented on NBA referees in the past, Cuban accused SEC lead attorney Jan M. Folena of being a bully and a liar after the verdict was read. In true Cuban-like fashion, Cuban has paid the price, but has come out on top. One can only wonder what he has in store for the NBA now that he can turn his focus to his beloved Mavericks once again.

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Alex Rodriguez to Sue Yankees Doctor for Malpractice: Will he win?

Alex RodriguezAmong stories about Alex Rodriguez’s attorney, Joe Tacopina being surprised by Matt Lauer on the Today show, Rodriguez claiming a conspiracy to keep him out of baseball, and Red Sox pitcher Ryan Dempster beaning Rodriguez on Sunday night, yet another story has emerged showing Rodriguez is digging in for the long haul in his battle with the Yankees and Major League Baseball. ESPNNewYork.com reported yesterday that Rodriguez and his legal team are preparing to sue Yankees team doctor Christopher Ahmad for medical malpractice. Ahmad examined Rodriguez’s right hip during last years playoffs after Rodriguez complained about it “being off”.  Rodriguez had already had surgery on his right hip. The radiologist working with Ahmad reported the following about Rodriguez’s MRI:

“Stable postoperative appearance of the right hip with no evidence of labral re-tear, stable degenerative change, and only minimal gluteus medius insertional tendinosis. Partial evaluation of left hip revealing superior labral tear with small parabal cyst.”

According to the article, the above is a description of the radiologists report and does not include any interpretation from Ahmad. The notes were then sent to Dr. Phillippon who performed the original surgery on Rodriguez’s right hip. Dr. Phillippon reported that Rodriguez needed surgery on his left hip.

Rodriguez and his team believe that Ahmad knew he needed surgery on his left hip but did not disclose that information. The big picture here is that Rodriguez believes the Yankees put him in a position to fail by allowing him to play while he was injured. Rodriguez certainly did not disappoint going 3-for-25 in last years playoffs before being benched by Yankee manager Joe Girardi.

For Rodriguez to successfully sue Dr. Ahmad for medical malpractice, he will have to prove four elements:

  1. A duty was owed to him by the doctor;
  2. The doctor breached that duty or failed to conform to the relevant standard care;
  3. The breach was the direct and proximate cause of the injury; and
  4. Damages.

The first element will not be tough for Rodriguez to establish. As long as Rodriguez was under his care, Dr. Ahmad owed him a duty to conform to the standard of care that another professional in his position would. The second element will be where A-Rod will likely hit a snag. In order to prove that Ahmad breached his duty, A-Rod and his team will have to prove that another person in Ahmad’s position with the same expertise would have acted differently. In order to do so Rodriguez will have to find someone with similar experience as Dr. Ahmad to testify to that end.

Finding someone to testify that Ahmad did conform to the standard of care will not be a walk in the park either. The U.S. legal system has formulated a method of qualifying whether an “expert” witness is in fact, an expert. The approach, often called the ‘gatekeeper’ model is derived from three U.S. Supreme Court cases, Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 [1993]), General Electric Co. v. Joiner (522 U.S. 136 [1997]), and Kumho Tire Co. v. Carmichael (526 U.S. 137 [1999]). Using the gatekeeper model, there will be a hearing prior to the trial in which the trial court judge will consider evidence to determine whether the expert’s “testimony rests on a reliable foundation and is relevant to the task at hand.” (Daubert, 509 U.S. at 597). The Daubert hearing will consider four questions regarding the testimony that is being proposed:

  1. Whether a “theory or technique . . . can be (and has been) tested”
  2. Whether it “has been subjected to peer review and publication”.
  3. Whether, in respect to a particular technique, there is a high “known or potential rate of error”
  4. Whether there are “standards controlling the technique’s operation”.

Even if Rodriguez is able to find someone who passes this test, it’s likely the Yankees will produce their own experts who will attempt to show that Ahmad acted properly. In the unlikely event that Rodriguez is able to show Ahmad breached his duty, he will further have to prove that his injury was the direct and proximate cause of Ahmad’s breach and that there were damages caused by that breach.

Based on the facts presented and the reality that Rodriguez has to prove beyond a preponderance of the evidence that Ahmad acted improperly in treating him, it’s unlikely he will be successful in his lawsuit. Although he may not prevail in this lawsuit, Rodriguez and his team have created a sufficient distraction from the real issue: Rodriguez’s PED use. No matter how this suit turns out, they have successfully redirected the attention from his PED use to the Yankees and MLB through his accusations of a conspiracy to keep him out of baseball. In any case, the end to this story will not be pretty.

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