The Sports Law Guru

Entries from February 2009

The Commish IS to Blame

February 17, 2009 · Leave a Comment

Let me preface this article by saying that I’m not big on blaming people.  I would rather just acknowledge the problem and work on a solution.  ….but Bud Selig is just asking for it.  In this article on ESPN.com, MLB Commissioner Bud Selig says he doesn’t deserve to be blamed for the rampant use of steroids in baseball and lack of  a drug testing policy in past years.  He claims that he tried to put a stop to it, but there was nothing more that he would do.  Pardon me, but that’s just a big pile of steaming bull —-.  He’s the Commissioner of baseball and he doesn’t have the power to stop it?  Did he say that with a straight face?  Of course he’s to blame; he runs the league and the league makes the rules.  Sure, the league seeks the approval of the Player’s Association, but ultimately it’s the league’s call.

Bud Selig
Bud Selig

If you can’t blame him, then who can you blame?  You can blame the players; they do certainly shoulder the ultimate blame.  But come on, in what other industry can the chief executive be aware of a significant issue, take improper steps to address it, and then say he’s not to blame?  You can’t think of one… That industry doesn’t exist!  The chief executive is ultimately in charge and must be accountable for the actions of the company.  That’s why he gets paid the big $$$$s.  For Selig to think differently shows an astounding lack of accountability.  …maybe he should apply for a job as a Wall Street CEO?

Given Selig’s position, let’s take a look at his justification.  Selig says that there is nothing more he could have done.  He says he was in favor of a strict policy, but was hesitant push too hard, because he was afraid that the Player’s Union would strike.  From my seat in the stands that’s terrible reasoning and weak negotiating.  Of course it wouldn’t be good if the players strike, but can you imagine how badly the players would look if they elected to strike over the implementation of a steroid testing policy? Granted, steroids wasn’t such a hot button topic 10 years ago, but the media would have ripped the players to shreds.  I just don’t buy it.  Selig didn’t implement drug testing because he simply didn’t push hard enough.  The Player’s Union would have eventually caved in.

I don’t think Selig is a bad guy, and actually think he’s done some pretty decent things for the game.  However, for him to come out and make such a public statement about not being the guy to blame, is just wrong.  He’s not the only one to blame, but if you’re going to blame someone, he’s certainly right at the top of the list.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

Categories: Baseball · Contracts · Professional
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A-Rod and the Morality Clause

February 12, 2009 · 1 Comment

Come on, you knew I couldn’t completely avoid it.  How could I?  To date, it’s the biggest off-the-field sports story of 2009.  The photos of American wonderboy Michael Phelps taking bong hits is a close second — and I haven’t written about that one either.  Not sure if I will.

alex_rodriguez

Alex Rodriguez

As for A-Rod, I was listening to Mike & Mike on ESPN Radio yesterday and they were discussing a very interesting topic.  Greeny and Golic were bantering back and forth about whether or not the Yankees could get out of A-Rod’s contract based on his use of steroids.  Each of them concluded that they probably could not, but cited fraud and misrepresentation as one possible approach that they could take.  Their reasoning was that A-Rod used steroids when he was in Texas and the Yankees accepted A-Rod’s $250,000,000 contract based on his performance in Texas.  However, since he was violating MLB’s rules by using steroids to enhance his performance, he was in fact misrepresenting his ability by cheating.  The problem with this reasoning, which Greeny and Golic acknowledged, is that A-Rod’s performance did not deteriorate when he went to the Yankees. ….and supposedly stopped using steroids.  Thus, the fraud and misrepresentation claims would be hollow, as the Yankees suffered no damage.

This got me to thinking.  Maybe A-Rod didn’t defraud the Yankees, but he may very well have hurt their reputation, as well as his own.  This brings me to my point (…which I’m sure Hank & Hal Steinbrenner have already thought of) if you really want terminate A-R0d, or just negotiate his salary down, the morality clause is the key.  You see, in just about every professional sports contracts, and most employment agreements for that matter, there is a clause that says something along the following lines:

Athlete agrees to conduct himself with due regard to public conventions and morals, and agrees that he will not do or commit any act or thing that will tend to degrade him in society or bring him into public hatred, contempt, scorn or ridicule, or that will tend to shock, insult or offend the community or ridicule public morals or decency.

A-Rod’s relatively squeaky clean image has most certainly been significantly tarnished by his admission to the use of steroids.  In fact, he has been scorned and ridiculed by just about every newspaper in the country over the course of the last week.

The question is, will the Steinbrenners do anything about it?  I doubt it.  Sure, they might be successful in negotiating his contract down, but if they do that are they going to get 100% effort from A-Rod?  Maybe, maybe not.  It’s an interesting legal exercise, but unless the player was clearly on the downslide or had done something that would truly impact the image of the team, I don’t think they’re going to go down that road.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

Categories: Baseball · Contracts · Professional
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Update: Logan Young’s Discrimination Claim Against IHSAA

February 11, 2009 · Leave a Comment

Back in November I wrote about a column about Logan Young, a freshman at Bloomington South High School in Indiana, who was denied the right to play baseball, because she was a girl and softball was offered as an alternative.  Logan sued the Indiana High School Athletic Association (IHSAA) based on a 14th Amendment discrimination theory, as well as Title IX.  Check out the column for background.

In my prior column I offered rulings from other jurisdictions tending to show that Logan would very likely be successful with her claim and that it would be in the IHSAA’s best interest to settle this claim quickly.  Well, it appears that the IHSAA agrees and is amending it’s rules such that baseball and softball are not considered alternatives, which would mean that girls are eligible for high school baseball.  Attached is the motion which was jointly filed by Logan and the IHSAA staying the case while the IHSAA approves the amendment.  According to the motion, subject to the IHSAA rules being amended, the lawsuit would be dropped by Logan.  The amendment will not be finalized until May, but the IHSAA commissioner sees no reason to believe it will not be finalized.

While I’m not yet sure if I agree with the outcome (I struggle with the concept that baseball and softball are really that different), the IHSAA’s rules on the topic will now largely comport with those standards which have been adopted recently in other jurisdictions.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

Categories: Uncategorized
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Football Player’s Heat Stroke Death Leads to Indictment

February 9, 2009 · 1 Comment

This past August, Max Gilpin, a 15 year-old high school football player in Kentucky, died of heat stroke during a preseason practice.   He is one of 6 athletes, which were confirmed to have died from heat stroke in the United States in 2008.  Such deaths are relatively rare, but unfortunately seem to occur a few times each year.  What makes this case so unique is that Max’s coach, David Stinson, has been indicted on charges of Reckless Homicide related to Max’s death.  So you ask, what did Stinson do that was so terrible to bring about a murder charge?  Force steroids on his players, ala the 1963 San Diego Chargers?  Nope, nothing like that.  He did exactly what thousands of other coaches across the country do every year.  He made them run winds sprints.

Before I get ahead of myself, let’s look at what Reckless Homicide is.  For our purposes, Reckless Homicide is generally defined as the conscious disregard of a substantial and unjustifiable risk that a person may be killed.  That is, the person must act in a way that is a gross deviation from the way that an ordinary person would act in the same or similar circumstances.  This is where I have trouble with this case.  Football coaches all across the country require their players to run wind sprints in full pads in hot August weather all the time.  This is a generally accepted practice. Is it a completely safe activity?  Certainly not.  Extreme heat, coupled with hot gear can create a dangerous situation.  However, until our sports culture changes significantly, it is still something that an ordinary football coach would do.

I have read some reports that suggest that the coach in this case may not have provided his players with enough water and did not call for emergency help as quickly as some would have liked.  These claims seem to have arisen from Max’s parents in the course of their civil litigation against Mr. Stinson and the school district.  On the other hand, there are allegations that Max had recently taken creatine and was on Adderall for ADHD.  Creatine is a perfectly legal supplement and widely accepted as safe when used correctly.  However, when used incorrectly it can cause dehydration.  Adderall, also perfectly legal with a prescription is a stimulant, which also could have been a contributing factor in Max’s heat stroke.

The presentation of these facts will likey be key to the jury’s determination of guilt or innocence.  Whatever the outcome, this case is the first of it’s kind and will likely cause coaches across the country to think twice before demanding that final wind sprint. I’ll try to update this article as the case progresses.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

Categories: Uncategorized
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