The Seattle PI reported last week that a group of former season ticket holders of the Seattle Sonics are going to continue their lawsuit against the Oklahoma City ownership group that moved the NBA team from Seattle to Oklahoma City this season.  http://seattlepi.nwsource.com/basketball/389624_fans27.html?source=rss

Three Sonics fans are suing in U.S. District court and are seeking to obtain a class action certification to include all season ticket holders from last season.  The fans amended their complaint this week to allow the fans to obtain priority seating at Oklahoma City Thunder games for next season at the same prices they were guaranteed in Seattle.  This would end up displacing Oklahoma City fans who have already purchased season tiecktes for this season and may wan to renew their seats.  The suit also states that Clay Bennett, Oklahoma City Chairman of the Professional Basketball Club which owns the Thunder, must also pay attorneys fees and damages.  The suit originally required Bennett’s group to pay for flights to Oklahoma City for former sonics fans, but that request was wisely dropped as that request makes the suit even more rediculous than it already is.

Requests for summary judgement have been filed by the PBC and a judge will rule on the motion shortly.  The fans are basing their claims on breach of contract theory and a breach of the Washington Consumer Protection Act (WCP).  I am not familiar with the WCP, but I can give some insight into general contract law as best I can without actually looking at the contract entered into by the parties.

In order for a contract to be formed there must be an offer, acceptance, and consideration.  The issue here is whether or not a proper offer was made.  One of the elements of an offer is that the offer must be definate.  This means that the material terms and parties to the contract must be stated in the contract.  A main term would be where the team was going to play its home games. The fans most likely signed a contract which stated home games were going to play in Seattle, but that is unknown.  Therefore for there to be a contract the Sonics must have most likely played in Seattle and at Key Arena this season.

In addition the PBC will argue that they revoked their offer of providing season tickets when the team moved to Oklahoma City, before any renewal or acceptance was made by Sonics fans.  The fans were on notice and most likely informed by letters that the team was not going to play in Seattle, resulting in a proper revocation.  Furthermore I am almost certain that most sporting event tickets state that the tickets may be revoked for any reason, and the team has the right to sell to whomever they wish.

What makes this claim near impossible to win is the fact that damages must also be proven in a breach of contract claim.  In this situation the Sonics fans have not suffered any financial damages since they only paid for tickets through last season.  With no financial damages I don’t to see how this claim can move forward against PBC.

As a loyal Sonics fan I do not understand the rational of the season ticket holders bringing a lawsuit.  Are they really going to travel all the way to Oklahoma City to watch the worst team in the NBA, a team that has already been boo’d off the court in Oklahoma City?  It would be great to see the team move away from Oklahoma City in the next few years and show what a blunder David Stern made in his judgement and moving away from Seattle, a great NBA city.  Sonics fans need to be patient and hope the Washington state legislature steps up and provides funding for renovating Key Arena.  If they do, the Sonics will likely be back in action in five years with the backing of Microsoft CEO Steve Balmer as owner.

Micheal Vick

ESPN has reported that Former NFL quarterback Michael Vick yesterday pleaded guilty to state dogfighting charges, perhaps paving the way for an early release from prison and return to the NFL.  A cruelty to animals charge was dropped as part of his plea deal.    http://sports.espn.go.com/nfl/news/story?id=3725060

Vick has been serving a 23 month sentence in Leavenworth, KS for bankrolling dogfighting and participating in the killing of under performing dogs. Vick is scheduled to be released July 20, 2009 but will then have to serve three years of probation.  It looks like he will potentially be released just in time for the start of an NFL training camp assuming everything goes to plan.  According to ESPN, by pleading guilty to state dogfighting charges Vick hopes to spend three months of his sentence in a halfway house and have another 3 weeks of home detention.  This will allow him to move on with his life at a faster rate and put the ugliness of his past behind him.

It looks as if Michael Vick received some good legal advice.  By taking responsibility for his actions he can hope that the NFL will show him mercy and allow him to return to competition.  Hopefully Prison ball has been enough to keep him in good enough shape over the last couple of years.  http://www.nydailynews.com/sports/football/2008/04/05/2008-04-05_michael_vick_playing_prison_football.html

The first issue that must be resolved for Vick to make a return to football is to get clearance from NFL Commissioner Roger Goodell.  In my opinion if Adam Pac Man Jones and Tank Johnson can get multiple chances to redeem themselves, why not Vick? I really don’t think his suspension will be an issue as long as he plays ball and abides by the stipulations set out by the NFL for his return.

The next question is, will an NFL team want to take a chance on a former superstar turned potentially out of shape criminal.  My guess is that somebody will give him a tryout and offer up the league minimum.  It is a small risk for a potentially very high reward.  Any team that retains Vick’s services would certainly have to deal with some bad public relations when PETA activists and others show up at games to protest.  If one thing is certain, winning football games can change almost anybody’s attitude in a community.  Here’s hoping that Vick can turn things around, and if he can’t I’m sure the CFL or the Arena League would take him with open arms.

Brian McNamee

Although the allegations of performing enhancing drug use against former baseball standout Roger Clemens have been quiet in recent months, a case is apparently moving forward against Clemens for committing perjury for testifying in front of Congress that he had never used performance enhancing drugs. The Mitchell Report on doping in baseball contained testimony from Clemens’ former trainer Brian McNamee who stated that he injected Clemens at least 16 times during the years 1998, 2000 and 2001.  Here is a link to the New York Times article for background information about the case: http://www.nytimes.com/2008/11/25/sports/baseball/25drugs.html?ref=baseball

The New York Times reported earlier this week that federal investigators asked Roger Clemens’ former trainer Brian McNamee to turn over personal DNA samples to compliment evidence he turned over last January. McNamee had collected Clemens’ DNA evidence on syringes, needles, and gauze pads that McNamee alleged were used to inject Clemens with steroids and human growth hormones which are banned substances in baseball. McNamee’s lawyers believe that the evidence will link Clemens to the use of performing enhancing drugs and show that McNamee was telling the truth in his testimony while Clemens committed perjury. In response Clemens has filed a defamation lawsuit against McNamee and denies McNamee’s allegations.

Are the DNA Samples on the Syringes, Needles, and Gauze Admissible as Evidence in a Court of Law?

The short answer in my opinion and the opinion of Clemens’ lawyers is that the evidence is not admissible and it will never see the inside of a court room.  In order for evidence to be admissible it must be authenticated.  Under normal circumstances this is an easy standard to meet, however in this case it will be extremely difficult to prove due to the evidence being from at the earliest 2001 and there being no record of who has had custody of the evidence in the past.    

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent (McNamee) claims. Also there must have been an unbroken chain of possession. In this case, the evidence in question is the syringes, needles, and gauze with Clemens’ DNA linking him to performance enhancing drugs. However there is no way in which to show that McNamee injected Clemens with performance enhancing drugs even if the evidence contains performance enhancing drugs as well as Clemens’ DNA. McNamee as Clemens’ trainer for many years likely injected Clemens with many non banned substances over the years in which syringes, needles, and gauze were used. McNamee or somebody else could have easily tainted the evidence with performance enhancing drugs or Clemens’ DNA after the needles were used and at some point after 2001. In short, there is no way to authenticate the evidence to show that McNamee injected Clemens with performance enhancing drugs. There is no unbroken chain of possession as McNamee claims that the evidence was sitting in his basement for many years before it was turned over to authorities. There would have to be a witness, video evidence or something to that affect. All that is present is that there are needles with Clemens’ DNA and performing enhancing substances present, not that Clemens actually used the drugs. Therefore this evidence will most likely never see the inside of a courtroom and Clemens’ will not be found guilty of perjury due to this evidence. 

What About Clemens’ Defamation Claim Against McNamee?

In January 2008, Clemens filed a defamation lawsuit against McNamee in response to McNamee’s performance enhancing drug allegations.  In order for a party to be found guilty of defamation of a public figure the plaintiff (Clemens) must prove that (1) there was a defamatory statement (2) of or concerning the plaintiff (3) publication to a third party and (4) damages to the reputation of the plaintiff.  In addition if the plaintiff is a public figure (which Clemens is) (5) falsity and (6) actual malice must be shown.

The first factor that must be proven by Clemens is that there was a defamatory statement present.  In order for this to be proven, Clemens will have to prove that he had never used any kind of performance enhancing drugs as McNamee originally claimed in the Mitchell Report.  This will be extremely difficult to prove because human growth hormone is difficult to detect and clean medical records may not be enough to prove Clemens’ innocence.  If Clemens is able to meet the first factor however, he will most likely be able to meet the remaining factors. The statements by McNamee concerned Clemens, and he will be able to prove that the statement caused damage to his potential Hall of Fame bid and reputation.  Additionally if Clemens is able to prove that there was a defamatory statement as required by the first factor, Clemens will be able to prove falsity, that is that the statements by McNamee was not true and false.  Finally Clemens will have to prove that actual malice was present.  This means that Clemens must prove that McNamee had knowledge of his false statements or was negligent in disclosing the information.  Clemens would be able to prove this factor if he is able to prove that McNamee had the intent to make false statements about his character and ruin his reputation.  In other words if McNamee knew Clemens never had taken any performance enhancing drugs and claimed that he had, then this factor would be met. 

After looking at the evidence available I believe that Clemens would have extreme difficulty in proving his defamation case against McNamee because he simply cannot prove his innocence that he has never used performance enhancing drugs due to the difficulty in tracking any sort of drugs in his body during the time the allegations were made.  He would also have a difficult time proving malice on behalf of McNamee. 

It will be interesting how this case plays out, but I believe the evidence will be found inadmissable and the defamation suit against McNamee will be dropped.    

I am often on the lookout for jobs in the sports industry that utilize law degrees and one of the most underrated jobs is that of a college athletics compliance officer.  There are over 342 Division I college athletic programs across the country, all of which utilize one or more compliance officers.  In addition, conference headquarters as well as the NCAA headquarters utilize compliance officers, most of which suggest that a law degree or other graduate degree be obtained before applying for the position due to the rule intensive nature of the job.

I recently had the opportunity to sit and chat with Anthony Archbald, an Assistant Commissioner and compliance officer for the Western Athletic Conference (WAC).  Anthony was nice enough to spend some time with me talking about compliance opportunities in college athletics and the role of the compliance officer at universities and athletic conferences.  Anthony attended Boston College as an undergrad, Tulane Law School and is licensed to practice law in New York.  The answers to the questions below have been paraphrased to the best of my ability.  I hope you find it as interesting as I did.

RS:  How did you get your big break into the sports business?

AA:  I got my first job in sports as an intern in the compliance department with Brown University making $17K a year.  I got the job through a former coach of mine who I knew through my days at Boston College.  I had to suck up a lot of pride as a licensed attorney making so little pay, but I felt that I wanted a career I would enjoy, rather than settling landlord/tenant disputes in New York as an attorney, which is what I did for 7 months after passing the bar exam in New York.  After working at Brown for a few years I was able to move west and take a compliance job with the Mountain West Conference, where I spent two years before taking my current position with the WAC.

RS:  What does your job and that of a compliance officer consist of on a day to day basis?

AA:  An entry level compliance officer or intern ends up doing a lot of auditing and busy work. It’s not the most exciting job but everybody in sports has to pay their dues.  That’s just the way it is for the most part.  In the early years it’s best to build as many connections as you can.  Right now I am on the road a lot, traveling to all of the WAC schools making sure all of the NCAA rules are being followed by the schools.  I talk to players, coaches, and administrators to make sure everything is being done the proper way and nobody is getting in trouble.

RS:  What are the perks of your job?

AA:  I really enjoy traveling and in my current position I have to travel a lot.  I’m not always going to big cities, but in January I am going to make my annual trip to Hawaii to check up on UH.  Other than the travel I have access to sporting event tickets, such as football bowl games or March Madness tickets.

RS:  What advice do you have for somebody seeking a job in compliance?

AA:  Landing a compliance job, like any job in sports, is extremely competitive.  It’s all about who you know, and not what you know.  I myself have been able to place a couple of former interns with athletic programs, but it’s not easy.  Currently the WAC does not offer an internship program, but I would encourage anybody interested in compliance to intern somewhere, pay your dues, get experience, and make connections so that you can try and stand out from the pack and obtain valuable compliance experience.  I know it is hard to suck up the pride, especially as a licensed attorney, but if you want it bad enough that’s what you have to do.

As a footnote, anybody interested in jobs with NCAA Universities, they can be found at:  http://ncaamarket.ncaa.org/search.cfm

As Joshua Golka reported on his website http://athleteagent.blogspot.com/, sports agents in Colorado must abide by state athlete agent regulations.  Athlete Agents must get registered with the Department of Regulatory Agencies (DORA), Division of Registrations, by January 2009 in order to represent student athletes. This law primarily affects agents that are actively recruiting student athletes on college campuses.

The new provisions signed into law by Colorado Governor Bill Ritter also details regulations in which athlete agents must abide by in order to continue to to represent student athletes.  If an Agent fails to abide by the regulations, an athlete may void any contract he signed with a violating agent.

Athlete agents can register and get more information at:  http://www.dora.state.co.us/athlete-agents/index.htm

I find it interesting that at the moment no Athlete Agents have registered with DORA as there are several sports agencies in Colorado that actively recruit student athletes.  Those registered should have been found at:  https://www.doradls.state.co.us/lic_database_req.php.  There are only a few months for agents to get into compliance so Colorado agents better get with the program or be at risk of having all future contracts with student athletes voided.

For more information about getting registered, DORA is hosting a public meeting in Pueblo, CO, on November 21, 2008 to discuss Athlete Agent registration:  http://www.dora.state.co.us/athlete-agents/2008NewsReleasePueblo.pdf

I was recently hired by my colleague Chuck Humphrey over at www.gambling-law-US.com to research whether or not www.centsports.com engages in illegal bookmaking.  CentSports operates an interactive website in which the company gives players 10 cents of start up money in which to bet on sporting events.  If a player reaches $20 in winnings they may cash out their winnings if the company has enough funds to pay them off.  So the question is, is CentSports engaging in making an online sports book?

In order for an illegal book to be made, gambling must be involved and in order for an activity to be considered gambling the activity must consist of (1) Prize, (2) Chance, and (3) Consideration. The prize and chance elements would clearly be present, however the question is whether any consideration is involved.  Consideration is defined as a bargain for exchange, meaning both parties have to give something up or take a risk when making a bet.  It can be argued that centSports players are not taking any kind of risk since they are not betting with their own funds, only the funds that were deposited in their accounts by CentSports.  Furthermore they are not guaranteed to any winnings.  They will only be paid if centSports has the funding.  Therefore CentSports is most likely not engaged in illegal gambling, however a case could certainly be made for the other side.

Does CentSports violate NCAA bylaws?

CentSports is very popular across college campuses nationwide.  The website is a social networking tool and allows friends to compete against one another online and determine who has the best winning percentage when placing bets.  The NCAA membership has adopted specific rules prohibiting student-athletes, athletics department staff members, and conference office staff from engaging in sports wagering (Bylaw 10.3).  NCAA national office employees are also prohibited from engaging in sports wagering.  A violation of this law could cost a student athlete their athletic eligibility to play sports in college whereas NCAA employees would most likely be terminated.

The NCAA rules are similar to state law rules that prohibit gambling and sports wagering.  The NCAA member colleges and universities have defined sports wagering as putting something at risk – such as an entry fee – with the opportunity to win something in return.  With CentSports no entry fee is required and nothing of value is given up since the entry fee is provided and there is no guarantee of any payouts.  By definition no wager has been made.  Therefore I do not believe CentSports would violate NCAA rules as there is no consideration present, however the NCAA recently published an opinion on the matter which is discussed below.

UPDATE, 3/28/09 – The NCAA’s Agent, Gambling and Amateurism Activities division recently weighed in on whether CentSports violates NCAA Bylaws.  They have determined that the free 10 cents given to players is in fact considered “something of value” due to the potential payout down the road.  It is the policy of the NCAA that they do not want anybody associated with the NCAA to be involved in any sort of gambling, even if it is questionable as to whether the activities are actually gambling.  If you are an NCAA student athlete or employee of the NCAA you should refrain from using websites that engage in any sort of gambling or wagering, even if there is no guarantee of a payout.  The NCAA’s opinion on CentSports can be read in the AGA’s March 2009 newsletter available at:  http://www.ncaa.org/wps/ncaa?ContentID=6685

For more information contact Seattle Attorney Richard Symmes.