And the Fowler Sues White Sox, Sports Facilities Authority Over Injury

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January-February 2018 l Volume 8, Issue 6 and the Fowler Sues White Sox, Sports Facilities Authority Over Injury

By Ed Edmonds position in right field. Yankees starter Luis Cessa retired the first two White Sox batters THIS ISSUE hursday, June 29, 2017, is a date that before José Abreu lined Cessa’s third pitch Fowler Sues White Sox, TDustin Fowler will never forget. Fowler down the right field line. Fowler sprinted Sports Facilities Authority made his major league debut that evening towards the ball as it sliced foul towards the Over Injury 1 playing right field for the New York Yankees seats. The ball eluded Fowler’s grasp, and he Appeals Court Dismisses against the Chicago White Sox in a game crashed into a low wall and nearly flipped Ex-Coach’s Defamation at Guaranteed Rate Field. After flying from into the first row of seats. Unfortunately, he Suit Against Attorney 1 Syracuse to join his major league teammates, also slammed his right knee into an unpad- ded, exposed metal box that supports Wi-Fi Reed Smith Adds Fowler battled traffic from O’Hare Inter- Insurance Recovery national Airport to arrive at the ballpark transmissions. Fowler tried to return to his Partner Richard Giller 2 about 2 hours and 30 minutes before the position. He hopped on his left leg but scheduled first pitch. The start of game quickly crumpled to the ground. Yankees Aspen Institute Panel manager Joe Girardi, center fielder Jacoby Examines Whether was subsequently delayed for 2 hours and Football Is at Risk 3 50 minutes by heavy thundershowers that Ellsbury, eventual right field replacement rolled through Chicago that evening. After Rob Refsnyder, first base coach Tony Peña, Pirates Threaten Legal Action Against Park Owner 4 the Yankees scored in the top of the first and a member of the Yankees medical staff inning to take a 1-0 lead, Fowler took his See FOWLER on Page 19 A Good Governance Approach to Stadium Appeals Court Dismisses Ex-Coach’s Subsidies 5 Hawks Name Leftwich Defamation Suit Against Attorney Salary Cap VP 8 Baseball’s Economic he 11th U.S. Circuit Court of Appeals describing three specific incidents, as System Now Favors Thas upheld a district court’s dismissal reported by the Dallas Morning News: the Owners 9 of a defamation suit lawsuit brought by Turner’s gift of a male “blow-up doll” to former Miami Dolphins Offensive Line Greenberg Glusker Hire of an anonymous lineman taunted for sup- Sports Law Attorney Mirell 11 Coach Jim Turner against attorney Ted posedly being gay; texting Martin while Wells, who led an investigation on behalf the-Dolphins lineman Richie Incognito Study Finds Inebriation at Sporting Events Is Growing 12 of the NFL into the role of Turner in the was criticized in the media and accused of allegations that Dolphins teammates bul- bullying; not stopping some of the “sexually Examining the Legal lied their teammate, offensive lineman crude references” about Martin’s mother Consequences of a Jonathan Martin. Research Study that and sister. Wells’ 144-page report suggested that Shows CFL Players Hiding By way of background, the following Turner’s “unprofessional conduct played a Concussion Symptoms 13 was written by Shawn Schatzle, of Havkins role in Martin’s struggles.” Rosenfeld, Ritzert & Varriale, for Sports Revisiting Intersection of But the appeals court found that the Pro Football, Class Actions 14 Wells report did not defame Turner when See APPEALS COURT on Page 15

Reed Smith Adds Insurance Recovery and the Partner Richard Giller In Los Angeles eed Smith LLP has announced that includes successfully resolving their insur- RRichard C. Giller has joined the ance disputes involving disability, loss-of- HOLT HACKNEY Insurance Recovery Practice Group as a value, and workers’ compensation claims. Editor and Publisher partner in the firm’s Los Angeles office. “I was drawn to Reed Smith because JEFF BIRREN Giller was formerly a principal in the of its well-respected and award-winning Senior Writer Los Angeles office of Polsinelli, where his insurance recovery practice; perhaps the THE ROBERTS GROUP practice focused on insurance disputes most acclaimed insurance recovery group Design Editor and insurance recovery with an emphasis in the country if not the world” Giller on sports and entertainment insurance said. “Just as important though, were the EDITORIAL BOARD Gregg Clifton, recovery. He also has a complex litigation people I met while interviewing at the Jackson Lewis LLP and appellate practice. firm; Reed Smith defines the collegial and Carla Varriale, “Richard is an exceptional fit for Reed entrepreneurial climate in which I thrive.” Havkins Rosenfeld Ritzert & Varriale, Smith,” said David M. Halbreich, Practice In addition to a focus on insurance LLP Group Leader of Reed Smith’s Insurance recovery dispute resolution, Giller coun- Jeff Gewirtz, Recovery Practice Group. “He is a strong sels clients about their insurance needs Executive Vice President of Business Affairs & Chief Legal Officer, Brooklyn advocate for policyholders and his work and claims; analyzes and advises complex Nets and Barclays Center with the sports and entertainment indus- insurance coverage issues; deals with in- Irwin A. Kishner, tries on loss-of-value and event cancella- solvent insurance carriers, retrospective Herrick, Feinstein LLP tion insurance is particularly well aligned premium disputes, and captive insurance Robert E. Wallace, Jr. with the needs of our clients served by our programs; as well as prosecuting and de- Thompson Coburn LLP global Entertainment & Media Practice.” fending insurance coverage and bad faith Scott A. Andresen Giller is one of a handful of lawyers cases. His general litigation background Andresen & Associates, P.C. in the country representing professional includes defending complex products li- Laura A. Zwicker athletes in the NBA, NFL and MLB in ability, environmental and toxic tort cases. Greenberg Glusker, LLP insurance recovery matters. Among his Giller has tried a number of state and Richard Giller, Esq. clients are Los Angeles Dodgers pitcher federal cases and has substantial arbitra- Reed Smith Walker Buehler, the team’s first round tion and mediation experience as well as Benjamin R. Mulcahy draft pick in 2015, Mitch Moreland, the extensive appellate experience, including Jenner & Block LLP first baseman for the Boston Red Sox, numerous appearances before several David Cohen Meyers Leonard, center for the Portland California Courts of Appeal and author- Tampa Bay Buccaneers Trail Blazers, and Brady Aiken, a pitcher ing several amicus briefs filed with the Please direct editorial or subscription for the Cleveland Indians, among others. California Supreme Court. inquiries to Hackney Publications at: Giller is a 1984 graduate of Southwest- Reed Smith’s Los Angeles Managing P.O. Box 684611, Austin, TX 78768 ern School of Law. He has represented both Partner Lorenzo E. Gasparetti said, “Our (512) 716-7977 individual and institutional policyholders Insurance Recovery attorneys are provid- [email protected]. nationwide in complex business disputes ing a great deal of the vision and leader- Professional Sports and the Law is with insurers, and secured substantial ship driving our growth in the California published bimonthly by Hackney defense and indemnity payments for market. Richard is well positioned to play Publications, P.O. Box 684611, Austin, TX 78768. Postmaster send changes to clients under a variety of insurance lines. a key role in meeting the demands and Professional Sports and the Law. Hackney His representation of professional athletes needs of our clients.” l Publications, P.O. Box 684611, Austin, TX 78768. Copyright © 2018 Hackney Publications

Aspen Institute Panel Examines Whether Football Is at Risk

By Ellen J. Staurowsky, Ed.D., Pro- the health risks associated with the game. that while the sport is flawed, it ought fessor, Sport Management, Drexel Numerous positions were taken on the is- not to be removed without something of University sue. Some argued that such a step would significance to replace it. Contributing Writer alleviate concerns about placing children Borland, in turn, questioned the at risk of harm when their brains are still fundamental moral basis on which the n Jan. 25, 2018 the Aspen Institute developing. Pointing out that numerous game is premised, challenging the idea OSport and Society Program hosted a NFL players (current and former) did not that whatever lessons learned by playing roundtable discussion entitled “The Future start to play tackle football until they went football are exclusive to it and could not of Football: Reimaging the Pipeline” that to high school, there was some sentiment be learned by playing other sports or from featured an array of perspectives from that delayed exposure to the sport would other activities. Among the panelists, Bor- panelists representing various sectors of not undermine the ability of players to land uniquely situated the concern about the football community. Representatives succeed and for the quality of the game in injuries in football as a public health issue. included an executive from a football the elite levels to be served. Others pointed He commented, “I’m somewhat incredu- governing body (Scott Hellenbeck, USA out that, in the absence of a national policy, lous that we discuss the reasonability of Football), former National Football a determination of age restrictions on a hitting a 5-year-old in the head hundreds League (NFL) players (Chris Borland, state-by-state basis could potentially cre- of times. It baffles me.” San Francisco 49ers linebacker who left ate a more dangerous situation as athletes Much of the discussion focused on the game after one season; Dominique moved up the pipeline to college. Forxworth, former president of the Na- Notably, Foxworth and Borland, the promoting flag football as an alternative tional Football League Players Association youngest members of the panel and the at the youth level and developing public and writer with ), physicians (Dr. Robert ones who played the game, both rejected policy to facilitate that step. Tom Farrey, Cantu, Legacy Foundation; Dr. Andrew the framing of the question itself. Embed- the director of the AI Sport and Society Peterson, University of Iowa team phy- ded in the title of the program was an Program, indicated that following the pro- sician), coaches (Tom Green, athletic assumption that the pipeline to the game gram, audience members and participants director and head football coach, Eleanor needed to be preserved. While Foxworth would be given an opportunity to complete Roosevelt High School; Buddy Teevens, did not argue outright for an end to the a survey and offer their perspectives on Dartmouth head football coach), and a game, he indicated that he did not expect the issues. Based on responses, a report is parent (Jennifer Brown Lerner, Aspen In- that he would allow his son to play given expected to be issued in the future. stitute). Held in the Aspen Institute’s new the unavoidable toll the game takes on the For those interested in the Future of offices in Washington, D.C., the timing health of people who play it. He talked Football: Reimaging the Pipeline program, of the program was contemporaneous to about the need to reframe expectations for it can be viewed online here. l legislators introducing bills in New York men in terms of how they express their and Illinois calling for bans on tackle masculinity and the pressures that boys References football in youth leagues and in schools and men experience in the sport to be Associated Press. (2018, January 25). Illi- (Associated Press, 2018; Belson, 2018; “tough” and the penalties associated when nois lawmaker proposes bill to ban tackle football for children under 12. Retrieved Kenning, 2018). The New York bill, which accused of being “soft” (i.e., coaches who from https://www.si.com/nfl/2018/01/25/ at present does not have any co-sponsors, punish players with more drills when their illinois-youth-football-law-concussions would prevent children ages 13 and under teams are seen as not being tough enough). Belson, K. (2018, January 24). New York legisla- from playing tackle football while the Il- He also spoke about the racial dynamics tor renews effort to bar tackle football for children. Retrieved from https://www.ny- linois bill sets an age standard of 12 years. at play and the issues associated with the times.com/2018/01/24/sports/youth-tackle- The primary focus of the program fact that there are far fewer alternatives football-ban.html centered on the question of whether al- for young black males to play sports other Kenning, C. (2018, January 25). Lawmakers in lowing youth sport athletes to start playing than football that provide the social capi- Illinois, New York propose tackle football bans for youth. Retrieved from https://www. tackle football at age 14 was a feasible and tal, access to upper mobility, and proving reuters.com/article/us-football-youth-tackle/ realistic way to ensure the sport’s future ground that football offers. As such, he lawmakers-in-illinois-new-york-propose-tack- in light of growing awareness regarding along with other panelists, pointed out le-football-bans-for-youth-idUSKBN1FF09V

Pirates Threaten Legal Action Against Ballpark Owner

By Zach Spedden, August Publications expense, but the Pirates have come out in The two sides have argued for more than disagreement. Via team senior vice president a year over how much the authority was ontending that it owes them a larger Bryan Stroh, the Pirates indicated that they obligated to pay. Creimbursement for ballpark improve- will not rule out taking the authority to court The SEA pays for capital improvements ments, the Pittsburgh Pirates are consider- over the issue. More from the Pittsburgh through money generated by a 5 percent ing legal action against PNC Park’s owner. Tribune-Review: surcharge on tickets. The Pirates receive the The issue between the Pirates and ballpark “It’s not a dollar-for-dollar where they seek first $1.5 million generated annually by the owner Sports & Exhibition Authority of reimbursement and we pay them,” board surcharge and the SEA receives $650,000, Pittsburgh and Allegheny County (SEA) is Solicitor Morgan Hanson said. “There’s a authority Executive Director Mary Conturo the amount of money that the team is owed due diligence process that we’re required said. Anything left over goes to the team, for upgrades that were completed at PNC to do under the lease to ensure it’s a correct she said. About $2.5 million remained in Park prior to the 2017 season. The authority reimbursable expense. That process was fol- the fund after Thursday’s payment. did approve a $2.6 million reimbursement lowed with the use of several different experts Among the upgrades that were com- to the team for some of those renovations. and independent consultants at arriving at pleted prior to last season included seating However, the Pirates—who say that they this amount. We respect that they have a replacements, along with a new out-of-town spent over $10 million on upgrades before different view on that issue.” the 2017 campaign—had sought a $4.5 Stroh said the team would seek the re- scoreboard, improved field lighting, and new million reimbursement, and contend that mainder in court if necessary. carpeting and painting in some areas of the they are owed the remaining $1.9 million. “This does not resolve the outstanding facility. SEA owns PNC Park and the Steelers’ SEA officials believe that they properly capital repairs the Pirates put into PNC Park Heinz Field, among other area venues. l followed the due diligence process in making over a year ago,” he said. “We intend to con- This article was reprinted with permission their decision on what was a reimbursable tinue to pursue our rights under the lease.” of August Publications.

A Good Governance Approach to Stadium Subsidies

By Ryan Gauthier, Assistant Professor at Thompson that the team would have to move. The night of Nenshi’s re-election Rivers University in Canada saw the communications director of the Flames, Sean Kelso, take a more direct stance: Publicly Financing a Stadium — Back in The ongoing dispute in Calgary is emblematic of a larger the Saddle(dome) problem in North America — the public financing of stadiums for professional sports teams. algary, Canada, held their municipal elections on October 16, C2017, re-electing Naheed Nenshi for a third term as mayor. Public Financing of Stadiums in North What makes this local election an interesting issue for sports, and America — A General Overview sports law, is the domination of the early days of the campaign North American cities have subsidized stadiums for professional by one issue — public funding for a new arena for the Calgary sports teams for decades. However, cities rarely simply transfer cash Flames. The Flames are Calgary’s National Hockey League (NHL) to a team. Instead, more complex mechanisms are used: issuing team, and they play in the Scotiabank Saddledome. bonds, tax increases, lotteries, and the use of “eminent domain”. The team began play in 1972 as the Atlanta Flames, moving to First, cities may provide money for stadiums through providing Calgary in 1980. The Saddledome was built in 1983 to support bonds to team owners. These bonds are tax-exempt, and are nor- both the newly-arrived Flames, and Calgary’s 1988 Winter Olympic mally used by cities for public improvements. Cities have been able Games. Today, the Saddledome is the oldest arena in operation to justify their use for stadiums, and the tax-exempt nature of the in the NHL. Due to its age, and the damage caused by floods in bonds lowers the lifetime borrowing costs for a team. Second, cities 2013, the Flames are looking for a new home. As is the norm in may simply increase taxes. Cities used to increase property taxes to North America, the Flames have no intention of going it alone, but raise money for stadiums, but local residents began to resent such are seeking a deal with the City of Calgary where the city would subsidize part of the arena. Negotiations have been ongoing for increases. Today, cities often increase “sin taxes” (e.g., on alcohol, several years, with a few possible sites discussed. or gambling), or taxes on hotels, in an attempt to move the burden Shortly into the 2017 municipal election campaign, negotiations of increased taxation to out-of-town people who won’t be voting between Calgary and the Flames broke down. The City of Calgary in the next municipal election. Third, cities may set up lotteries, publicly released their proposal for a $555 million stadium, where in conjunction with the state or province, to raise money for the the city would effectively subsidize 33% of the stadium through stadium. Finally, cities may exercise their use of “eminent domain”. a mix of funding, land, and demolition of the old Saddledome. This tactic enables cities to condemn the land, with payment of The team would pay 33% of the costs, and the fans would kick just compensation (which is often not market value) to the original in the final 33% through a ticket tax. The Flames responded by owner, for the furtherance of a “public purpose” (what constitutes a releasing their proposal for a $500 million stadium, where the public purpose is broad, following the US Supreme Court decision city would provide 45% of the funding through a ‘Community in Kelo v. City of New London, 545 U.S. 469 (2005)). Revitalization Levy’ (a loan from the province of Alberta, paid off After understanding the what, the question remains: why do cit- by property taxes on new developments around the arena), with ies subsidize sports stadiums? Ultimately, there is a limited supply the team providing 55% of the remainder. The difference in costs of major-league teams, and cities view being a “major league” city may be that the Flames’ proposal does not appear to consider the as a benefit. Unlike European professional leagues, where any local demolition of the old Saddledome. While the team’s proposal has team could make it to the top league through promotion, the top the team paying more costs up-front, it would also see the Flames leagues in North America are closed leagues, currently limited to pay no property tax or rent during their tenure in the new stadium, 30-32 teams in the “big four” leagues. Cities that want to be home while keeping all revenue generated by the arena. to a professional team must convince a league to expand, placing Canadian national media praised Mayor Nenshi for not simply a new team in their city (as Las Vegas recently did with the NHL), capitulating to the demands of the Flames. Print media exhorted or convince an owner of an already-existing team to relocate (as taxpayers to “Just say ‘No’” to subsidizing the Flames, and called Las Vegas has done with the National Football League’s Oakland Nenshi’s re-election “a win for every city blackmailed by a sports Raiders). One way to encourage expansion or relation is to offer a team”. The Calgary Flames, and the NHL were less sanguine, as subsidized stadium. It can be argued that these tactics are no differ- NHL Commissioner Gary Bettman blamed Nenshi for not getting ent than a city offering a subsidy to convince a company to establish a new arena for the Flames, and Flames’ management suggesting See A GOOD on Page 6

A Good Governance Approach to Stadium Subsidies

Continued From Page 5 or relocate an office — like what is happening with Amazon right has restrictions on government assistance to private industries, to now — except for the scale of the subsidy. prevent the distortion of competition across the EU — these are Boosters of stadium subsidies have argued that cities should be known as the “State Aid” rules, found in Art. 107 of the Treaty happy to have sports teams, as the teams will generate an economic on the Functioning of the European Union. In practice, the EU boost. They claim that the team, and their new stadium, will increase has an uneven history of applying the State Aid rules to sport. local income, employment rates, property values, and the well-being However, it has shown more enthusiasm over the past year to find of citizens. However, economists have generally debunked these evidence of state aid that is incompatible with the Treaty, including claims. While there are examples of successful stadiums, they are in a case that involved a questionable deal involving land next to generally not as successful as predicted, often not worth the costs, Real Madrid’s Bernabéu Stadium. However, legislative solutions and the few successes are drowned out by every other instance are unlikely to be enacted by either the American Congress or the where the economic impact was not realized (sort of like hosting Canadian Parliament (or local legislative bodies). There appears to the Olympic Games or FIFA World Cup). be no interest to do so, and why would there be? Politicians can benefit from new stadiums by working with business elites who Proposed Legal Solutions to Halt Public support the stadiums, and the evidence of repercussions at the Financing of Stadiums ballot box appear to be mixed. Given the lack of economic benefits generated by stadiums, Some legal scholars have suggested regulatory or judicial solu- particularly given the hundreds of millions of dollars of subsidies tions, such as: halting the tax-free status of municipal bonds, end- granted to each stadium, legal scholars have proposed legislative, ing the use of eminent domain to obtain land for stadiums, and regulatory, and judicial solutions to halting this gravy train. advocated a stronger role for antitrust oversight over the conduct of In regards to legislative solutions, Canada and the United States teams and leagues in this regard. However, courts have construed could follow the model of the European Union (EU). The EU See A GOOD on Page 7

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A Good Governance Approach to Stadium Subsidies

Continued From Page 6 these particular laws broadly enough to allow the public financing out, this deal would not have gotten done...If it had gotten out, of stadiums to continue. more people would have started taking the position of, ‘We don’t want that to happen. We want to see how viable this was going to A Good Governance Approach to the be.’” Eventually, the deal needed to be voted on by Cobb County Public Financing of Stadiums — Atlanta commissioners. At the public vote held in May 2014, only twelve Braves Case Study speaking slots were available to the public. Stadium supporters had When even Calgary’s stance, which had the city subsidizing at lined up by 2pm for the 7pm meeting, and the Commissioners least 1/3 of the stadium, is considered brave, it seems reasonable denied any additional speaking slots. The same Commissioners to presume that publicly-subsidized stadiums will continue apace voted 5-0 to fund the stadium. Opponents of the stadium filed a in North America. As such, it may be more helpful to consider suit in the Georgia courts, alleging that the bonds used to finance what happens after a stadium project is proposed. Applying a good the new stadium violated the Georgia state constitution, and governance approach to stadium financing could be a helpful way various state laws. However, the opponents were defeated in the forward. If stadiums are going to be built, regardless, then it is best courthouse, too, as the Georgia Supreme Court upheld the valid- to make those who build stadiums — governments and teams — ity of the bonds as they provided at least some plausible public accountable to the taxpayers and fans. benefit. The stadium opened in 2017 to positive reviews from fans Good governance principles have been increasingly applied to and ballpark enthusiasts. the organization of sport — particularly the governance of inter- In examining the Atlanta Braves new ballpark by applying prin- national sporting organisations. While good governance can be ciples of good governance, the results are discouraging. Transparency defined in a myriad of ways, it is often broken down to particular was almost non-existent throughout most of the process, as the principles. In examining stadium projects, I suggest that four deal was completed in secret, as admitted by the president of the principles should be considered: transparency, public participation, team. Public participation was curtailed throughout the process, solidarity, and review. These principles closely track those used by and most galling, at the eve of the final vote on the funding. There the Sports Governance Observer. have been no solidarity benefits that have come to the forefront, One recent stadium project seems to have studiously avoided although it should be noted that it is possible that money that was all of these principles entirely — in a way that demonstrates the raised to pay for public parks was diverted to funding the stadium, need for these principles to be applied in the first place. This proj- which cuts against the idea of solidary benefits. Finally, there will ect took place in the Calgary Flames’ old home of Atlanta, USA. likely be no post facto review of the stadium and any attendant In 2013, the Atlanta Braves announced that they were leav- benefits it may claim. While there was review of the deal itself ing their current stadium in downtown Atlanta. They weren’t through the courts, the Georgia Supreme Court noted that “we do moving to a new city, but were moving 32 kilometres north to not discount the concerns Appellants have raised about the wisdom the suburb of Cobb County. The reason for the move? A brand of the stadium project and the commitments Cobb County has new, publicly-financed stadium. The Atlanta Braves had played at made to entice the Braves to move there. But those concerns lie Turner Field since 1997. Not even twenty years later, the stadium, predominantly in the realm of public policy....”. originally built as the centrepiece of the 1996 Summer Olympic Games, was deemed to be obsolete by the Braves. Enter Cobb The Value of Good Governance Principles County. To pay for a new stadium for the Braves, Cobb County in the Stadium Debate issued $368 million in municipal bonds (originally estimated at The case of Atlanta demonstrates the importance of good gov- $276 million). The Braves, in chasing public money, bucked the ernance in the public financing of stadiums. Proponents, critics, trend of teams moving closer to the city centre, as suburbs are not and scholars can apply these principles to evaluate and engage in conducive to stadiums. While the rationale and the dollar figure should raise some more thoughtful debates over the processes of public financing eyebrows, the process used to secure funding for the stadium of stadiums. Since stadiums are likely to receive public funding, should be deeply disturbing to fans of democratic processes. The regardless of the merits, a better process should improve the benefits deal itself was negotiated in secret between a single Cobb County to the public, while constraining the costs. commissioner, and the Atlanta Braves. The president of the Atlanta Applying principles, as opposed to enacting legislation, may Braves, John Schuerholz, stated that if news of the deal “had leaked See STADIUM on Page 8

Hawks Name Leftwich Salary Cap VP Stadium Subsidies Continued From Page 7 he Atlanta Hawks Basketball Club has hired veteran NBA executive TMichelle Leftwich as Vice President of Salary Cap Administration, lead the reader to ask “can these principles be enforced?” In the team announced last month. terms of traditional legal enforcement, namely recourse to In this role, Leftwich will assist and advise Hawks General Manager a regulatory body or a court, a city would probably need to and Head of Basketball Operations Travis Schlenk with all aspects of implement these terms into a Memorandum of Understanding with the team. For principles such as solidarity, particulars the league’s salary cap rules, as well as player contract planning matters. could be written into the final funding agreement. This “Michelle’s expertise and knowledge of the CBA and its complexi- has been done, for example, with the Community Benefits ties will be a great asset to the Hawks,” Schlenk said. “She is widely Agreement implemented between the City of Edmonton, and respected throughout the NBA and brings a tremendous amount of the Edmonton Oilers hockey team, for a publicly-subsidized institutional knowledge that will benefit our organization.” stadium that opened in 2016. Leftwich joins the organization after 21 years at the league office, However, even if the city itself refuses to implement these including the last 10 years as NBA Vice President and Assistant General principles, they do provide a framework to hold decision- Counsel, where she assisted Rick Buchanan, NBA General Counsel, makers to account. In instances where the government has and Dan Rube, NBA Deputy General Counsel, with a variety of legal done wrong by the citizens, but there are no judicial remedies, matters. Her broad duties at the NBA involved salary cap and player the remedy is then to vote the government out. In establishing contract matters, collective bargaining with the players’ union, player these principles, they then provide standards by which the trade approvals, and operation of the CBA’s escrow and tax system. government can be held to account, if not formally, then at Prior to joining the NBA in 1996, Leftwich worked for the New least through the ballot box. l York law firm formerly known as Paul, Hastings, Janofsky & Walker. This article appeared first in the Asser International Sports A native of Buffalo, N.Y., she received her Bachelors of Science degree Law Blog at http://www.asser.nl/SportsLaw/Blog/post/a- in Accounting from Canisius College and her Juris Doctor degree from good-governance-approach-to-stadium-subsidies-in-north- New York University School of Law. america-by-ryan-gauthier

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Baseball’s Economic System Now Favors the Owners

By Jordan Kobritz, Esq. lines. “Something that doesn’t seem very binders and rhetoric” was a not-so-subtle fair (is) going on,” said Hill. “Players just jab at uber-agent Scott Boras who, as usual, f you think this winter has been a cold want what’s fair.” Objective observers of represents a majority of the big names in Ione, it’s been even colder for a majority this winter’s slowly developing free agent this year’s free agent market. of MLB free agents. When the first training market might counter that what players The unrealistic nature of Hill’s com- camps opened on February 13, more than see as fair apparently differs from what the ments are in sharp contrast to the realism 80 players, including five of the consensus owners view as fair. exhibited by the Oakland Athletics’ Bran- top 10 free agents, remained unsigned, One prominent agent went so far as to don Moss. In an interview with the MLB many of them wondering if they’ll have a recommend a boycott of spring training, Network, Moss said the players’ union job this season. which never materialized. Adding fuel to has to take responsibility for the balance Whether owners have shied away from the fire, closer Kenley Jansen, a 2016 free of power that has obviously tilted greatly the free agent market or players have agent who signed a five-year $80 million towards ownership. “It’s our own doing,” priced themselves out of work depends on contract with the Dodgers, suggested the said Moss. “These past two collective whom you ask. A number of unscientific players should consider a strike. bargaining agreements…I think that we theories have been advanced to explain the Similar to inexperienced investors who have given the owners…who are very, very stalemate, including: a less talented group were under the impression stock prices only business savvy, a very good opportunity to of free agents this year; the loss of draft- went up and were blindsided by the market take advantage of a system that we have picks as compensation for signing players correction in early February, the players created for ourselves…We have the right who were offered one-year contracts by and their agents are expressing shock and to bargain and set our price just like the their prior teams; formerly free-spending disappointment that teams were neither owners have the right to meet that price.” clubs – the Dodgers and Yankees among acquiescing to their demands nor bidding After Moss made his comments, and them – sitting on the sidelines, hoarding against themselves. Just because baseball before spring training games got under their resources for the star-studded group as an industry is awash in cash, clubs have way on February 23, there was a flurry of of free agents anticipated next year; the decided, at least for one off-season, there free agent signings, including two monster financial benefits of staying under the is no need to throw exorbitant amounts deals. The San Diego Padres signed first competitive balance tax – also known as of money at the players, especially given baseman Eric Hosmer to an eight-year, the luxury tax–this year; and the dreaded the mountain of evidence that suggests $144 million contract. That was followed “C” word: collusion. players over 30 are on the downhill side by a five-year, $110 million contract agreed There were exceptions to the inactive of their careers. While teams are willing to between the Red Sox and J.D. Martinez, market, most notably the six-year, $126 to pay for quality, analytics show that in a deal that had been speculated to hap- million contract given to Yu Darvish by many cases younger players can provide pen since free agency began in October. the Cubs just days before camps opened. as much, if not more, production as free Despite those late moves, Moss couldn’t Because he was traded during the 2017 agents at a much lower cost. have said it better. The players have ceded season, Darvish wasn’t subject to the Not surprisingly, MLB Commissioner the higher ground to the owners by allow- compensation rules. Darvish’s contract Rob Manfred favored the “free market” ing the balance of power to shift from the fell short of the 7-year, $217 million deal view. “Drawing lines in the sand based union to management. the Red Sox bestowed on lefthander David on a perception that your market value is Marvin Miller, the first executive direc- Price two years earlier. The signing added something different than what the market tor of the MLBPA, would be aghast at the fuel to the argument advanced by players is telling you your value is, that doesn’t and their agents that teams were inten- make a lot of sense,” Manfred said. “It is direction the union has taken in recent tionally depressing the free agent market. a fact that markets dictate value. Values times. Under Miller, the union was primar- The players’ position is best illustrated are not dictated by big, thick, three-ring ily focused on economic issues – salaries, by the comments of Dodgers’ pitcher Rich binders and rhetoric about who’s better pensions, arbitration and free agency. Hill, who signed a three-year, $48 million than whom. They’re dictated by markets. When Miller came on board in 1967, the contract after the 2016 season and watched That’s the system we negotiated.” Man- average player salary was $19,000. Today, this year’s free agent market from the side- fred’s reference to “big, thick, three-ring See BASEBALL’S on Page 10

Baseball’s Economic System Now Favors the Owners

Continued From Page 9 it exceeds $4 million. their overall cut of MLB revenues shrunk first time since the 1994 strike.l Don Fehr succeeded Miller and Michael significantly between 2002 and 2014, from Weiner assumed the reins of the union after a high of 56 percent in 2002 to 38 percent Jordan Kobritz is a former attorney, Fehr retired in 2009. Tony Clark took over in 2014. Baseball players now receive the CPA, Minor League Baseball team as executive director in 2013 after Weiner’s lowest percentage of industry revenues in owner and current investor in MiLB tragic death from brain cancer. Miller was the four major league team sports. teams. He is a Professor in and Chair an economist, Fehr and Weiner lawyers. Where do the parties go from here? The of the Sport Management Department Clark is a former player who enjoyed a current CBA doesn’t expire until after the at SUNY Cortland and maintains the blog: http://sportsbeyondthelines.com. 15-year career playing for six different 2021 season. While prior CBA’s have been The opinions contained in this column teams. His economic, financial and legal renegotiated on a number of occasions, are the author’s. Jordan can be reached background is limited to participating in most notably to address areas related to at [email protected]. union activities during his playing days. drug testing and rule changes, it’s doubt- Clark vowed to represent the players’ ful the owners, after years of watching the wants and needs and today’s players value union outmaneuver them at the negoti- “personal comforts,” like off-days during ating table, will be willing to reopen an the season, above economic issues. Or at agreement that currently gives them the least they did, until this off season. upper hand in financial matters. Unless In fairness to Clark, the players’ per- the rhetoric on both sides subsides, we centage of league revenue began shrinking could have a prickly relationship between before he negotiated his first CBA in 2016. the parties for the next four years followed Despite an increase in average player salary, by the possibility of a work stoppage for

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Greenberg Glusker Hire of Sports Law Attorney Mirell

reenberg Glusker has announced that Service of Los Angeles, Bet Tzedek Legal include the following: GDouglas E. Mirell has joined the firm Services and Public Counsel. • Serve as lead counsel on the $2 bil- as a partner in the firm’s litigation group. “I have long admired the attorneys at lion sale of the Los Angeles Clippers Mirell will continue his corporate and Greenberg Glusker, and consider many of professional basketball franchise to business litigation practice working with them my friends,” said Mirell. “My practice Steve Ballmer companies and individuals in media, enter- and clients will feel at home here.” • Represent the Oakland Athletics tainment and sports on First Amendment, Because of his prominence in the enter- professional baseball franchise in invasion of privacy and defamation claims; tainment industry, Mirell was instrumental the acquisition and development of publicity rights disputes; anti-SLAPP mo- in providing the legal analysis that helped approximately 140 acres of land for a tions; copyright and trademark infringe- win passage of two important pieces of new baseball stadium and entertainment actions; new and traditional media California legislation affecting the rights ment and residential project to be located in Fremont, California law issues; enforcement of civil rights of celebrities in the entertainment com- statutes; voting rights litigation; freedom munity: Senate Bill 771 (2007), authored • Represent Tyus Edney, 14-year of information, public records and other by former State Senator Sheila Kuehl, which NBA and international professional basketball player, starting point guard government access statutes. clarified that the statutory post-mortem for 1995 NCAA basketball champion “We are proud to have an attorney of right of publicity applies to those celebrities UCLA Bruins, UCLA Athletics Hall Doug’s stature and reputation join our who predeceased that law’s original effective of Fame and PAC-12 Hall of Honor firm,” said Greenberg Glusker’s Manag- date of Jan. 1, 1985; and Senate Bill 606 Member and current Director of ing Partner Bob Baradaran. “We always (2013), authored by State Senator Kevin UCLA Basketball Operations welcome attorneys who are best in class de León, which significantly enhances the • Represented the Los Angeles Kings in their fields as well as those who live the criminal penalties and creates a new civil professional hockey franchise in vari- values of our firm by representing clients remedy for the harassment of celebrity ous business matters who uphold First Amendment values and children under the age of 16 caused by the • Represented Wayne Gretzky in con- who work to ensure equal access to justice.” conduct of aggressive paparazzi. nection with the Phoenix Coyotes Mirell has held several leadership posi- Before co-founding Harder Mirell & professional hockey franchise Chapter tions during many decades of service on Abrams LLP in January 2013, Mirell was 11 bankruptcy case the boards of directors of both the ACLU an attorney with the international law firm • Advise San Jose Earthquakes profes- and ACLU Foundation of Southern Cali- of Loeb & Loeb LLP for 32 years, and a sional soccer franchise in the con- fornia. From 2005-2011, he served as a partner in the litigation department of its struction of their $90 million stadium City-appointed Commissioner of the Los Los Angeles office since 1987. • Represented Chicago Fire professional Angeles Homeless Services Authority, in- soccer franchise in connection with cluding terms as its Chair and Vice-Chair. About the Firm’s Work in the design and construction of its VIP Mirell was a founder of the California-based the Sports Industry club Progressive Jewish Alliance and a founding Greenberg Glusker’s Sports Group repre- • Served as special counsel to the Los board member of its national successor, sents professional sports franchises, athletes Angeles Coliseum Commission as to Bend the Arc: A Jewish Partnership for and sports-related businesses. The Group CEQA and related regulatory matters Justice. is comprised of skilled attorneys from in its negotiations with the National He has taught Constitutional Law (First multiple practice groups within the firm, Football League Amendment) at the USC Gould School of including: Bankruptcy, Corporate, Enter- • Represented Wayne Gretzky in con- Law and Legal Journalism at Loyola Law tainment, Emerging Technology & New nection with a consumer goods joint School. Mirell has also undertaken pro Media, Employment, Intellectual Property, venture, including negotiation of joint bono litigation on behalf of the ACLU Litigation, Real Estate, Taxation, and Trusts venture agreements, secured financing Foundation of Southern California, Mexi- & Estates. The firm has particular expertise agreements and license/endorsement can American Legal Defense and Educa- in handling the financing and construction agreements tional Fund, Asian Pacific American Legal of new stadiums and sports arenas. • Represented professional baseball Center of Southern California, Society Representative engagements for Green- player Alex Rodriguez in various busi- of Professional Journalists, Jewish Family berg Glusker’s Sports Industry Group See GREENBERG on Page 12

Study Finds Inebriation at Sporting Events Is Growing

n many western countries, public con- inappropriate entry, trained professional ac- licensed premises outside the arenas (101 of Icern about violence and other problems tors portraying individuals who were “obvi- 151 attempts), and 24.9 percent at premises at sporting events has increased. Alcohol is ously” intoxicated visited licensed premises inside the arenas (59 of 237 attempts). The often involved. inside and outside sporting arenas, and at- rate of denied entry to the arenas was only Research shows that approximately 40 tempted to gain entrance to the arenas. The 10.8 percent (11 of 102 attempts). The percent of the spectators drink alcohol while settings were three arenas hosting matches authors noted that the variation in server- attending U.S. baseball and football games, in the Swedish Premier Football League intervention rates could reflect a lack of train- especially when alcohol is served within that were held in the largest and second- ing in responsible beverage service among the arenas themselves. Alcohol-related largest cities in Sweden. The scenarios were serving staff at licensed premises inside the problems can be compounded at large developed by an expert panel, and each arenas as well as entrance staff. This lack of sport stadiums that hold tens of thousands attempt was monitored by observers who training could contribute to unacceptably of spectators. This study examined occur- assessed the rate of denied alcohol service high intoxication levels among spectators rences of overserving at licensed premises and denied entry to the arenas. and contribute to increased alcohol-involved both inside and outside the arenas, and Overserving and allowing entry of “obvi- problems within the arenas in Sweden. These allowing entry of obviously intoxicated ously” intoxicated spectators were frequent findings have implications for alcohol con- spectators into the arenas. at these sporting events. The rates of denied sumption at sporting events in other coun- To determine the level of overserving and alcohol service were only 66.9 percent at tries as well, including the United States. l

Greenberg Glusker Hire of Sports Law Attorney Mirell

Continued From Page 11 ness matters professional athletes Serena Williams • Represent Total Golf Adventures for • Represented the World Boxing Coun- and Danica Patrick intellectual property counsel and cil in various business matters • Represented sports clubs in raising endorsement/sponsorship deals • Represented Major League Baseball capital and counsel for an online • Represent OnDeck Digital, a media player Pete Rose in various business athletic recruiting platform on capital company owned by a former profes- matters raising sional baseball pitcher • Represent players in connection with • Represented professional tennis stars • Represented one of the largest golf tax advice regarding foreign real estate Pete Sampras and Lindsay Davenport course owners in the United States in investments in various business dealings the disposition of a portfolio of golf • Represented Olympic gold medalist • Represented an Olympic gold medal courses in South Carolina for a pur- figure skater in connection with his and World Champion boxer Oscar chase price in excess of $50 million De La Hoya, as well as his boxing involvement in the production and company Golden Boy Promotions, in staging of a professional figure skating • Arranged sponsorship deals for motor- a variety of matters including business touring company sports events acquisitions, strategic alliances and • Represent numerous professional ath- • Advised companies and executives in grants of equity interests to boxers and letes in connection with estate plans, the martial arts business key executives premarital agreements and wealth • Served as real estate counsel to Anto- • Represented All American Heavy- transfer planning nio Esfandari, one of the world’s top weights/King Sports Worldwide in • Represented Fox Sports regional poker players connection with multimillion-dollar sports network in complex litiga- • Represented The Sports Club/LA in offering to pursue boxing promotion tion against TBS and Time Warner business and related corporate, em- arising out of breach of non-compete a series of credit facilities, totaling ap- ployment and real estate activities agreement with respect to the cable proximately $80 million, in connec- • Represented OPI Products in con- distribution of regional sports pro- tion with the refinancing of its health nection with its sports-related lines of gramming in the Southeast region of clubs in Southern California and products and endorsements, including the country eventually in its sale to Equinox l

Examining the Legal Consequences of a Research Study that Shows CFL Players Hiding Concussion Symptoms

By Jon Heshka, Associate Professor their current team or future teams and 20.9 be triggered by a violent blow to the head. at Thompson Rivers University (Brit- percent were fearful that being diagnosed Instead, there are myriad reasons why a less ish Columbia, Canada) and labeled with a concussion could affect severe hit may result in a concussion, includ- their financial income now or in the future. ing the brain not having fully recovered from he legal challenges facing former These results have the potential to dimin- a previous concussion or the cumulative TCanadian Football League (CFL) ish the veracity of the claims of retired CFL effect of many prior sub-concussive hits. players in their lawsuits may have got even players who allege that they didn’t know So, it is difficult, if not impossible, for it more formidable. about concussions or appreciate their risks. to always be detected and therefore treated In a study published in the in January It doesn’t take away, though, from other unless it is first self-reported. 2018, it was found that nearly eight in elements of the claims in various lawsuits The reasons cited for injured players not 10 football players who competed in the wherein retired players allege that the CFL reporting that they’d been concussed (fear CFL in 2015 believed they had suffered a knew of the long-term harmful effects of of being taken out of the game, fear of miss- concussion and did not seek medical atten- concussions and actively concealed these ing future games, fear of loss of current or tion. Eighty-six of the 309 (27.8 percent) facts, that the league breached its duty to future income) is, in a sense, understandable respondents who had played in the CFL take all reasonable and prudent steps to in leagues where non-guaranteed contracts during the 2015 season believed they had protect players’ health concerning con- motivate and incentivize players to squeeze suffered a concussion during that season and cussions and failed to warn players of the everything they can out of their contracts 79.1 percent (68/86) did not seek medical long-term medical risks associated with and consequently play hurt. This can only be attention during a game or practice. repetitive head impacts, and that the league addressed through collective bargaining be- The study was done by the McGill negligently misrepresented the science tween the league and the players’ association. University Health Centre and endorsed respecting concussions in order to induce There has been tremendous progress by the Canadian Football League and the players to play football. made and light shone on concussion preven- Canadian Football League Players’ Associa- It does, however, call into question the tion, diagnosis, treatment and return to play tion. The study involved a questionnaire extent to which the teams and league are in a protocols in collision sports like football being sent to all nine teams and distributed position to protect players who do not wish and hockey. Advancements in technology to players by each team’s head trainer/ their protection. Without players honestly and rule changes have reduced the severity therapist. There were 512 players on the disclosing signs and symptoms to team medi- and frequency of sports concussions. The CFL’s 2015 opening- day rosters and, due cal staff, the team’s capacity to diagnose and McGill University research which clearly to player turnover, 662 players participated treat brain injury is compromised. shows the extent to which players hide in at least one game over the course of the Whereas current established practices in concussions also shows professional football 2015 season. Four hundred and fifty-four the NFL (CFL concussion protocols are not is not out of the dark yet. players participated in the study. as robust) include unaffiliated neurotrauma It bears repeating that this study was The most common (48.8 percent) reason consultants, spotters, team physicians, the specific to players competing in the Cana- cited for “hiding” a concussion was that blue injury assessment tents, and modi- dian Football League. In 2017 the Court the player did not feel the concussion was fied versions of the Maddocks questions of Appeal for British Columbia in et al. serious/severe and felt he could continue and Sport Concussion Assessment Tool 2017 BCCA 186 upheld a judgment of playing with little danger to himself. Some (SCAT 5), the starting point in concussion the Supreme Court of British Columbia 41.9 percent said they felt that they would diagnosis and treatment is arguably in the which dismissed a CFL concussion lawsuit be removed from the game by medical staff players honestly self-reporting how they’re holding that the disputes raised by Bruce and didn’t wish for that to happen, 39.5 feeling after a hit (suspicious or otherwise) arose from the 2014 Collective Agreement percent were fearful that being diagnosed and suspected concussion. and can only be resolved through the griev- with a concussion would result in missing Neurologists and physicians are trained ance and arbitration process. The courts future games or practices, 33.7 percent and qualified to ascertain whether or not a declined to look at the merits of the case. were fearful that being diagnosed with a player suspected of sustaining a concussion Bruce has filed an application for leave to concussion would affect their standing with actually has one, but concussions need not appeal to the Supreme Court of Canada. l

Revisiting Intersection of Pro Football and Class Actions

By Scott P. Jang of Jackson Lewis PC tending the game, however, were allegedly U.S. 27 (2013), to proceed as a damages class intentionally kept in the dark and were not under Rule 23(b)(3), while a plaintiff’s class irst, Deflategate. Now, “Ticket-gate?” informed of the game’s cancellation until damages model may be an approximation, FStirring in the United States District three hours later. In the meantime, fans it still must be firmly tethered to the theory Court, Northern District of Ohio, a putative purportedly were ushered into the stadium of injury. Id. at 35. class action takes aim at an unsafe football and encouraged to buy food, drinks, and So how does Plaintiff’s damages model field, a cancelled preseason game, and over merchandise. Plaintiff, on behalf of himself purport to do so? According to Plaintiff’s a million dollars in alleged consumer class and “thousands” of putative class members, expert, Dr. Justine Hastings, it’s all in avail- damages. The case is Herrick v. National now seeks to recover not only the cost of the able records. Ticket damages? According to Football League, et al. (N.D. Ohio, Case Dr. Hastings, Defendant’s revenue data and No. 5:17-cv-00472-CAB). tickets, but also related out-of-pocket inci- dentals, such as travel and lodging expenses. secondary market statistics can approximate The Allegations ticket costs. Traveling expenses? According The 2016 Pro Football Hall of Fame pre- Class Certification to Dr. Hastings, ticket holders’ zip codes season game between the Green Bay Packers On January 15, 2018, Plaintiff moved for can predict the likely mode of travel and and Indianapolis Colts was scheduled to class certification. As framed in the motion, associated travel costs for individuals. And take place on August 7, 2016. But due to the question of liability on the sole claim lodging expenses? According to Dr. Hastings, compromised painting of logos and other for breach of contract might not be the ticket holders’ zip codes and the average hotel markings on the turf, the field was deemed main hurdle; rather, the central issue will be rate in the area ($289/night) can be used to unsafe and unplayable. That call, and the whether the class can proceed as a damages quantify lodging expenses. related call to scrap the game entirely, was class under Federal Rule of Civil Procedure Time will tell whether this secures cer- made, according to filings in the case, at 23(b)(3). Under the U.S. Supreme Court’s tification of a damages class under Rule 5:00 p.m. on the day of the game. Fans at- decision in Comcast Corp. v. Behrend, 569 23(b)(3). l

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Appeals Court Dismisses Ex-Coach’s Defamation Suit Against Attorney

Continued From Page 1

Litigation Alert three years ago. offensive guard had a track record of ag- as Player “A” in the report — was found Turner commenced the defamation ac- gressive behavioral issues, which included to have been the victim of frequent homo- tion in 2015 against Wells in the United numerous fights during his college years as phobic name-calling. Martin, an African- States District Court, Southern District of a member of the Nebraska Cornhuskers. American, was said to have been ridiculed Florida. The suit also named prominent Thereafter, Wells was hired by the NFL. with racial insults, as well as sexually explicit law firm Paul, Weiss, Rifkind, Wharton The “Wells report,” as it was commonly remarks about his mother and sister. & Garrison LLP, where Wells is a partner, referred to in the media, was ultimately Turner was depicted in the report as as a defendant. released to the public in February 2014. enabling the harassment. The Dolphins’ Martin’s claims made national headlines Wells, who oversaw an investigation that offensive line coach, Wells concluded, initially in October 2013 when he promptly involved over 100 interviews with Dol- had to have been aware of the harassment, left the Dolphins’ team facilities, despite phins’ personnel, ultimately concluded especially in light of his participation in it his position as a starting member of the that multiple Dolphins players, led by on at least one occasion. Turner, for his offensive line. The Stanford graduate, who Incognito, engaged in a persistent campaign part, denied any knowledge that would was then twenty-four years old and in his of harassment directed towards Martin, implicate him. second year in the NFL, briefly checked another unnamed offensive lineman and During the 2012 holiday season, Turner himself into a hospital for emotional dis- an unnamed assistant trainer. gave the offensive linemen Christmas tress before flying to his parents’ home in Notably, the Wells report determined stockings, all of which were stuffed with California. It was later reported that Martin that the assistant trainer, an Asian-Amer- inflatable dolls. All of the players received had allegedly been the victim of prolonged ican, was repeatedly the target of racial female dolls, except Player “A,” who received bullying and harassment from other play- slurs and other derogatory language. The a male doll. Up to that point, the young ers, notably Richie Incognito. The veteran unnamed offensive lineman — referred to See APPEALS COURT on Page 16

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Appeals Court Dismisses Ex-Coach’s Defamation Suit Against Attorney

Continued From Page 15 offensive lineman was often referred to as a of Jesus Christ by Judas and its relevance to negligently or intentionally left out key wit- homosexual by the other players, although the idea of “snitching.” This seemingly cre- ness statements from his final report, which he was a heterosexual. During his interview ated an environment that would discourage has directly caused damage to Turner’s for the investigation, Turner stated that he victimized players from speaking out. Turner reputation and resulted in his inability to “could not remember” whether he pur- denied ever hearing the term “Judas” or “Ju- obtain further coaching opportunities in the chased a male doll for Player “A,” according das fine” in the offensive line locker room. NFL. The complaint repeatedly asserts that to the report, despite corroboration from After the harassment allegations against Wells was not an “independent” investiga- multiple players. Incognito became public, Turner advised tor and instead crafted a report that would Additionally, the Wells report included Martin by way of text message to “[d]o the satisfy the NFL’s public relations needs in statements from numerous players regarding right thing” and make a public statement exchange for hefty legal fees. the concept of “Judas fines” amongst the to “take the heat off [Incognito] and the Furthermore, Turner alleges that Wells Dolphins offensive linemen. The concept locker room.” “falsely accused [him] of helping to create involved a player imposing a monetary fine Within days of the release of the Wells [an] atmosphere that allowed bullying and on another player who “snitched” on him, report, Turner was terminated by the Miami harassment to happen.” Turner contends such as by accusing the player of being at Dolphins, along with a head trainer. Turner that he would be gainfully employed as an fault for a botched play in order to avoid the has not held nor been offered a position on NFL coach had Wells actually “present[ed] repercussions of his own mistake. Multiple an NFL team since his termination. a complete and accurate picture of the players who were interviewed during the Turner has now brought suit against situation in the Dolphins’ locker room.” investigation stated that Turner was aware Wells, seeking damages for defamation. Turner’s complaint contains numerous of the concept and had discussed it with In his complaint, Turner, through attorney attempts to explain or clarify his uncontro- them, even explaining the Biblical betrayal Peter R. Ginsberg, asserts that Wells either See APPEALS COURT on Page 17

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Appeals Court Dismisses Ex-Coach’s Defamation Suit Against Attorney

Continued From Page 16 verted actions. For instance, the complaint “To successfully assert a claim for defa- Sullivan, 376 U.S. 254, 279-280 (1964). asserts that the inflatable doll was given to mation under Florida law, a plaintiff must “Reckless disregard” requires that the defen- Player “A” not because he was a homosexual establish five elements: (1) the defendant dant “in fact entertained serious doubts as but, “[r]ather, ... [because] he did not always published the statement; (2) the statement to the truth of his publication.” St. Amant have success dating women.” Therefore, was false; (3) the statement was defamatory; v. Thompson, 390 U.S. 727, 731 (1968). Turner contends, the gift was merely a joke, (4) the defendant acted negligently; and (5) “[The public figure] designation may rest albeit a “slightly juvenile” one, as opposed the plaintiff suffered damages as a result of on either of two alternative bases. In some to a “cruel or homophobic” act. Notably, defendant’s publication.” See Suarez v. Sch. instances an individual may achieve such in attempting to provide a rationale for his Bd., 2014 U.S. Dist. LEXIS 66342 (M.D. pervasive fame or notoriety that he becomes behavior, Turner admits his involvement Fla. 2014). “When a statement facially de- a public figure for all purposes and in all in the situation, as opposed to his prior grades a plaintiff, brings her into ill repute, contexts. More commonly, an individual statement that he “did not remember” it. or causes similar injury with innuendo, the voluntarily injects himself or is drawn into Turner asserts causes of action for statement is defamatory per se.” Carroll v. a particular public controversy and thereby defamation and defamation per se. He also TheStreet.com, Inc., 2014 U.S. Dist. LEXIS becomes a public figure for a limited range claims that he is neither a public figure nor 156499 (S.D. Fla. 2014). of issues. In either case such persons assume a limited purpose public figure, most cer- When a claim of defamation is asserted special prominence in the resolution of pub- tainly in an attempt to avoid the heightened by a public figure, it must be shown that the lic questions.” Anderson v. Liberty Lobby, standard applicable to such persons. He statement was made with “actual malice”; Inc., 477 U.S. 242, 246 (1985). argues that Florida law applies, as it is the that is, “with knowledge that it was false Turner will therefore be facing an ardu- state with the most significant relationship or with reckless disregard of whether it ous task in proving defamation as against to the events at issue. was false or not.” New York Times Co. v. See APPEALS COURT on Page 18

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Appeals Court Dismisses Defamation Suit Red Sox Extend Safety Netting at Spring Facility Continued From Page 17 The Boston Red Sox have extended the Wells. He was arguably a limited purpose and his text message exchange with Martin. netting JetBlue Park, the facility it uses for public figure in light of his involvement in With that said, defamation claims often spring training. what was a national story at the time. This involve prolonged legal battles, especially Reportedly, the netting will extend past would impose a requirement that he prove when there are an inordinate amount of both dugouts, cover the infield areas of play that Wells had “actual malice,” which does potential witnesses that could be deposed, as and approach the outfield. Installation will not appear to exist. Even if Turner were to is likely the case here. Turner may very well be completed before the team opens its avoid a public figure designation, there are be keen to settle in light of the aforemen- spring training season with an exhibition strong indications that the statements and tioned legal issues and his alleged inability doubleheader against Northeastern and conclusions set forth in the Wells report to obtain employment as a football coach. Boston College on Feb. 22. were not false. In the event that Wells and his legal team The nets will rise 12 feet, 8 inches above Furthermore, to the extent there were dig their heels into the ground, however, the field, and be painted “field green” to any false statements or conclusions set forth a motion for summary judgment could minimize the impact to sightlines. In a press by Wells that could be deemed defamatory, be successful. release, the Red Sox noted that they would there appears to be a serious question as to As a practical matter, this case is an be willing to move season ticket holders whether such falsehoods would have had example of the changing environment in who are displeased with the development. any impact on the claimed damages. It is professional sports. Players and coaches “We have notified season tickets holders entirely possible that the Dolphins would alike should be mindful that conduct that of the netting extension and attempted to have terminated Turner without having may have been acceptable as recently as a design and engineer a system that offers op- reviewed the entire Wells report and based decade or two ago will no longer be toler- timal visibility for the viewing experience,” simply on a review of the uncontroverted ated, whether by sports leagues, fans or the said Katie Haas, Red Sox Vice President of evidence, such as the inflatable doll situation public at large. l Florida Business Operations.

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Fowler Sues White Sox, Sports Facilities Authority Over Injury

Continued From Page 1 all rushed to Fowler’s aid along the right Chicago (Local Rule 707 Counsel). and suffering and medical expenses.” The field line. Girardi signaled for the cart to Fowler’s counsel asserted in the complaint complaint does not quantify the amount of take Fowler from the field. He was taken that “the exposed box was positioned at a the lost earnings or medical expenses endured to Rush University Medical Center where hazardous location between the padded by Fowler. Typically, when a major league White Sox team physician Dr. Charles A. right field wall and the padded rail, at the baseball player is injured during the course Bush-Joseph performed the operation to suc- player’s knee level” creating “an extremely of a game, the medical expenses for surgery cessfully repair the player’s ruptured patellur hazardous condition hidden from the player’s and the cost of rehabilitation are covered by tendon. Fowler’s season was over before he view.” This was particularly significant in the team. Fowler was placed on the 10-day even had a chance to bat at the beginning Fowler’s situation because Guaranteed Rate disabled list on June 30. The following day, of the next inning. Field is not his home ballpark. As a rookie he was transferred to the 60-day disabled list. Girardi was obviously shaken by the in his first game at the stadium, he had a In both instances, he was listed as a center incident – “I was in tears, actually . . . I’m limited opportunity to discover any unusual fielder. Fowler accumulated 0.095 years of still in disbelief. I’m in tears for the kid. I aspects of the playing field. The complaint service time over the course of the remainder know he’ll fight and get back here, but he’s does not specifically discuss any changes in of the 2017 season. out for a while and he has to go through a normal playing condition based upon the In paragraphs 25 and 33 of the complaint, long, grueling rehab. It just doesn’t seem fair.” rain that delayed the start of the game and Fowler’s attorneys listed six factors that Fowler, one of the Yankees top prospects, an analysis of the video of the incident and contributed to either negligence, gross neg- was upbeat after the surgery: “Everything is the commentary of the announcers does not ligence, or recklessness by the Illinois Sports as good as it can be right now,” Fowler told indicate that Fowler’s injury was impacted Facilities Authority and the Chicago White the . “The surgery went well. That’s always by a slippery surface. Sox. The most telling of the six assertions a plus. I’m just going to take it day to day Fowler’s minor league career presents appears to be the final one – “(f) In failing to right now. It ruptured, but they were able another interesting factual scenario sur- pad, guard, cover and/or protect the exposed to put it back in place and there wasn’t any rounding his injury – Fowler’s minor league box in any way, with knowledge that it was other issues, so they said it’s going to be a experience during the 2016 and 2017 season foreseeable that persons such as Plaintiff pretty positive recovery. They said I’d be out was primarily as a center fielder. Fowler would come into contact with the walls at for about four or five months and then be played 70 games for the Scranton/Wilkes- high rates of speed,” the two defendants ready for the spring.” The Yankees, however, Barre RailRiders before his promotion to the “engaged in a course of action indicating an in search for additional pitching strength as Yankees on June 29, the day of his injury, in utter indifference to or conscious disregard they battled for a playoff position during the a number of roster moves by the Yankees. for the safety of the Plaintiff.” second half of the season, traded Fowler and Fowler primarily played center field (40 A similar case involving the Yankees and minor leaguers James Kaprielian and Jorge games) for the RailRiders, but he did play White Sox took place on June 13, 1975. Mateo on July 31, barely a month after the 14 games each in both left and right field. Center fielder Elliott Maddox injured his injury, to the Oakland Athletics for Sonny He played 119 of his 132 games for Trenton right knee while fielding ball and attempting Gray and international bonus slot money. in 2016 in centerfield. Thus, Fowler’s chief to throw the ball back to the infield. Unlike After reflecting on the circumstances concern involved the center field wall behind this case, the incident happened in New York surrounding his unfortunate injury, Fowler his normal playing condition and not the instead of Chicago, but Maddox’s injury, ultimately decided to file a negligence lawsuit possibility of running into any obstructions like Fowler, cost him the remainder of the against the Illinois Sports Facilities Author- in foul territory as he was sprinting towards 1975 and much of the following season. The ity, the state governmental agency that is a line drive in foul territory. As with the responsible for Guaranteed Rate Field, and conditions of the field, counsel did not raise Yankees were playing in the Shea Stadium, the Chicago White Sox. The complaint these factors in the complaint. their temporary home park, while Yankee was filed on December 15, 2017, in Cook Ultimately Fowler’s counsel claimed that Stadium was being renovated. The previous County Circuit Court. Fowler is represented “as a result of the negligent, grossly negligent, night’s game had been cancelled due to rain by John Bailly of Bailly & McMillan, LLP, reckless, willful and wanton conduct of the and standing water. The wet conditions still in White Plains, New York, and Michael Defendants” Fowler “sustained past lost earn- existed, and Maddox mentioned this to his J. Sorich of the Cavanagh Law Group in ings and potential future lost earnings, pain See FOWLER on Page 20

Fowler Sues White Sox, Sports Facilities Authority Over Injury

Continued From Page 19 manager and the ground crew, but he still Athletics. On Sunday, February 25, Fowler Surgery,” , February 17, 2018. agreed to play in the game. participated in his first game since his injury Susan Slusser, “Back From Knee Injury, A’s Dustin Fowler Makes ‘Really Good Impression,’” , Maddox sued the City of New York and at Guaranteed Rate Field. He batted leadoff February 25, 2018. the Thomas Crimmins Contracting Com- and played center field in a Cactus League pany in New York state courts. Thus, the game against the Kansas City Royals with Ed Edmonds teaches Sports Law case was tried in New York and not Illinois, the hope of making the starting lineup on Seminar at the Notre Dame Law so it is not a precedent with much authority Opening Day. In his first game since the School. Edmonds primary scholarly in Fowler’s lawsuit. Over a decade later in injury, Fowler grounded out in his first at- interests involves antitrust and labor 1985, the Court of Appeals of New York bat but walked and singled before leaving issues involving determined that Maddox assumed the risk the game. He even fouled a ball off of his baseball. In as a matter of law by playing on the wet reconstructed right knee with no ill effect. l particular, he surface and the case against the defendants has written and should have been dismissed on a summary Sources: spoken about judgment motion. The Court of Appeals Bryan Hoch, “Fowler’s Season Ends in 1st Inning the trilogy of United States rendered its opinion despite the enactment of Debut,” , June 30, 2017. Bryan Hoch, “Yanks FaceTime with Fowler After Supreme Court of N.Y. C.P.L.R. § 1411, a comparative fault Surgery,” , June 30 2017. cases (Federal statute, nearly a decade earlier. Like many , 487 N.E.2d 553 (N.Y. 1985). Baseball v. Na- states, New York still recognizes express as- Michael McCann, “Analyzing Dustin Fowler’s tional League, Toolson v. New York sumption of risk. Lawsuit Against the Chicago White Sox,” , January 23, 2018. Yankees, and Flood v. Kuhn) that While Fowler waits to see the result of Janie McCauley, Associated Press, “A’s Center Fielder created baseball antitrust exemption. his lawsuit, he has returned to play for the Suing White Sox Making Progress From Knee

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