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  • Deshaun Watson's 'Fair Notice' Argument Draws Upon Past Precedent and 'Law of the Shop'

    By Daniel Wallach Talk about burying the lede. The path to federal court for Deshaun Watson lies in the last 5 pages of Sue L. Robinson's August 1st decision. Despite concluding that Watson committed sexual assault against four women and engaged in a "pattern of conduct" which she characterized as both "predatory" and "egregious" -- Judge Robinson suspended Watson for only 6 regular season games. In declining to suspend Watson for the entirety of the 2022 NFL regular season and post-season, Judge Robinson explained that principles of "fair notice" and "consistency of treatment among players similarly situated" required her to reject the NFL's proposal, which she characterized as both a "dramatic" and "extraordinary change" in position when compared to past disciplinary cases. For cases involving "non-violent" sexual conduct[1] -- the longest suspension previously imposed by the NFL under the Personal Conduct Policy was only 3 games. And in that case, the player -- believed to be Jameis Winston, who allegedly touched an Uber driver "in an inappropriate and sexual manner without her consent" -- had been previously warned about his conduct. Judge Robinson observed that the discipline imposed in that case -- involving similar allegations -- was "far less severe" than what the NFL seeks in the Watson case. In cases involving "domestic or gendered violence" -- for which a minimum 6-game suspension would attach -- Judge Robinson noted that no player had ever been suspended for a full season. The "most commonly-imposed discipline" in such cases was 6 games. While there were three prior cases where players accused of domestic or gendered violence were suspended for 8 games (two players) or 10 games (one player), those cases involved "multiple incidents of domestic violence," the "assault of multiple victims," or "multiple incidents of domestic violence" for which the player pled guilty to a battery. When compared with those prior cases -- none of which came anywhere close to a full-season suspension (even when multiple incidents of domestic violence and/or multiple victims were involved) -- Judge Robinson characterized the NFL's pursuit of a full-season suspension for non-violent conduct as "a dramatic shift in its culture without the benefit of fair notice to -- and consistency of consequence for" -- those in the NFL subject to the Personal Conduct Policy (which encompasses both players and owners). While conceding that it may be "entirely appropriate" to more severely discipline players for "non-violent" sexual conduct -- perhaps even more so than "violent" conduct in certain situations -- Judge Robinson cautioned that such an "extraordinary change" in the league's approach would require "fair notice" to the players similar to the notice they received in 2014 when the NFL revised its Personal Conduct Policy to include a presumptive 6-game suspension without pay for certain first-time violent offenders. By revising its policy, "the NFL gave fair notice to its players and to the public of the probable consequences of such violent conduct" -- namely, that players would face a minimum 6-game suspension. By contrast, there was no notice given to the players that non-violent sexual conduct could be punished more "more severely" than violent sexual conduct, Judge Robinson emphasized. In setting Watson's suspension at only 6 games -- which she called "the most significant punishment ever imposed on an NFL player for allegations of non-violent sexual conduct -- Judge Robinson explained that she was "bound 'by standards of fairness and consistency of treatment among players similarly situated.'" Advance Notice of Discipline Severity is the 'Law of the Shop' in the NFL The words "fairness" and "consistency" have been given short shrift by those who are quick to criticize Judge Robinson's discipline as being too lenient. That might be a valid criticism if her decision were made in a vacuum. But it was not. Rather, as the NFL has acknowledged time and again, player discipline must be "fair and consistent." See In the Matter of Ray Rice, Decision of Hon. Barbara Jones (ret.) Hearing Officer, at p. 16 (Nov. 28, 2014) (quoting NFL Commissioner Roger Goodell). During the Ray Rice arbitration, for example, then NFL Senior Vice President of Labor Policy Adolpho Birch testified that, in determining player discipline, the league is “bound in large part by precedent in prior cases, decisions that have been heard on appeal in the past, and notions of fairness and appropriateness.” Birch further acknowledged that "the reality is that we have to make decisions that are fair and consistent with both the prior case law and the prior precedent . . ." Judge Robinson's analysis of the "fair notice" issue adheres to a long line of NFL arbitral precedent recognizing that players are entitled to advance notice of prohibited conduct and potential discipline. The NFL has even gone so far as to characterize this as the "law of the shop." See Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n, 820 F.3d 527, 539 (2d Cir. 2016) (“[T]he parties agree that the ‘law of the shop’ requires the League to provide players with advance notice of prohibited conduct and potential discipline.”). Such notice is also required in order to comport with industrial due process. See, e.g., William E. Hartsfield, Investigating Employee Misconduct, Vol. 3, Ch. 15, Arbitration, Sec. 15.7 (July 2022 update) (stating that the concept of industrial due process "includes fair notice of the rule and the consequences for violating it. "); Elkouri & Elkouri, How Arbitration Works, Ch. 15-71, Knowledge of the Rules (8th ed. 2017) ("An employee must receive clear notice of both what the employer expects as well as the range of penalties that may be imposed."). The NFL has acknowledged the continued vitality of the "fair notice" requirement in matters of player discipline. During the 2014 arbitration arising out of the 6-game suspension of Ray Rice, Commissioner Goodell described the change to the Personal Conduct Policy -- which added a minimum 6-game suspension for certain types of violent conduct -- as "forward looking because the League is 'required to provide proper notification'" to players. The BountyGate and Hardy Decisions Judge Robinson's "fair notice" analysis will likely be one of the linchpins of the NFLPA's motion to vacate arbitrator Peter C. Harvey's modified discipline. In its motion papers, the NFLPA may wish to highlight two arbitral decisions in particular as exemplifying the broad reach of the "fair notice" doctrine: the BountyGate and Greg Hardy appeals heard by NFL-selected arbitrators. In BountyGate, former Commissioner Paul Tagliabue (serving as the arbitrator) vacated discipline based on the lack of notice, holding that "[a] sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change." In Hardy, despite "multiple separate assaults" and a finding that the conduct at issue was "egregious," Arbitrator Harold Henderson reduced Hardy's suspension from 10 games to 4 games because it violated the CBA requirement of advance notice that increased penalties would be applied. According to Arbitrator Henderson, "ten games is simply too much, in my view, of an increase over prior cases without notice [to the players of the potential for increased discipline]." If a suspension of 10 games were "simply too much" in a case involving "multiple incidents" of domestic violence where the NFL-appointed arbitrator found the conduct to be "egregious," then how might a federal judge view a suspension of 17+ games where the underlying conduct was non-violent and the longest suspension in that category was only 3 games? It suggests that the NFL may not necessarily have an easy time of it in federal court, particularly if the NFLPA succeeds in having the case heard in Delaware federal court, where Sue Robinson served as a judge (including as chief judge) for more than 25 years. [1] The NFL's case included no allegation or evidence that Watson engaged in violence, made threats, applied coercion, or used force. See Judge Robinson's August 1st Decision, at pp. 5 & 13 ("There is no allegation that Mr. Watson exerted any force against any of the therapists. . . . It is undisputed that Mr. Watson's conduct does not fall into the category of violent conduct that would require the minimum 6-game suspension.").

  • Court Holds Rutgers Not Required to Disclose Game Film to Man Training Football Strategist Daughter

    Today, the Superior Court of New Jersey affirmed a lower court decision that Rutgers University is not required to produce film of a December 5th, 2020 football game between Rutgers and Penn State pursuant to an Open Public Records Act (“OPRA”) exemption. On January 22, 2021, Rutgers received an OPRA request from plaintiff John Caroff, who said he wanted the film to show his thirteen-year-old daughter, whom he believes “possesses the necessary skill set for her to have considerable future career success as a football strategist and studying college football video advances her qualifications should she seek future employment with a college football staff or as part of the media covering college football." Rutgers’s Custodian of Records, Jewell Battle, denied Caroff’s OPRA request in a February, 2021 email. She explained that the video was exempt from OPRA due to “trade secrets and proprietary commercial or financial information obtained from any source” and “competitive advantage.” Thus, on April 2, 2021, plaintiff Caroff filed a lawsuit against Rutgers and Battle, seeking to compel the University to disclose the Penn State game film. Caroff made it clear that he was “not interested in commercializing it or uploading it to YouTube,” but wanted the video only to “educate his daughter.” Lower court Judge Alberto Rivas didn’t find Caroff's argument persuasive and ruled in favor of Rutgers, finding that OPRA’s proprietary information exemption applied and precluded disclosure of the video. The judge found that Rutgers did not “just give [the video] willy nilly to any person ho asks for it; it is within a defined universe.” Today, the Superior Court of New Jersey affirmed Judges Rivas’s decision, holding that the video is exempt from OPRA disclosure. The court said, “[t]he purpose of OPRA is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.” Further, the court discussed OPRA’s intended role in government transparency, which clearly doesn’t apply in this case. There are 23 explicit OPRA exemptions, including information deemed to be trade secrets and proprietary commercial or financial information. Judge Rivas only held that the video was exempt as proprietary information, not as trade secret, which the appellate court agreed with. The Superior Court also agreed that requiring disclosure of game film would give an unfair advantage to Rutgers’s competitors, as they wouldn’t have to send out scouts to observe the games, for example. With that, the Superior Court of New Jersey ruled in favor of Rutgers University and Battle. Ultimately, I respect this father doing whatever it takes to support his daughter's passion but agree with the court's ruling. The December 5, 2020 game between Rutgers and Penn State ended 23-7 in favor of the Nittany Lions. The teams combined for just 255 total yards through the air. Jason Morrin is a recent graduate of Hofstra Law School. He was President of Hofstra’s Sports and Entertainment Law Society. He will be joining Zumpano, Patricios, & Popok as a law clerk, awaiting July, 2022 Bar Exam results. He can be found on Twitter @Jason_Morrin.

  • The Business of NASCAR as Explained by Driver Ryan Ellis.

    Recently I had the pleasure of sitting down with 10-year NASCAR veteran Ryan Ellis to discuss contracts, crash clauses, and other legal aspects of a NASCAR driver’s daily life. In other sports, contracts and their terminology are an integral part of the process. According to Ellis, however, NASCAR’s smaller teams do not place as much emphasis on contracts. [00:00:43.830] - Jack Bradley … When did you sign your first contract in NASCAR? [00:00:58.890] - Ryan Ellis Yeah, I could be wrong on this. I think my first contract was probably with BK Racing in 2016. So that was probably four or five years, I guess three or four years into my NASCAR real start. But I might have had one before then, but don't remember. But I know I had that one that was like the one obviously I remember signing. I'm pretty sure most of them [contracts] were just like, “Hey, don't crash your car. Here's the race car. Good luck.” [00:18:22.570] – Jack Bradley You're working in these lower teams. You don't really have a contract. Would you call it trust in NASCAR? Do they really trust the drivers or are contracts just not fashionable? [00:18:45.830] – Ryan Ellis I could be wrong here. Maybe it's just me being who I am, but I think the sport is very chaotic in a lot of ways. Teams have week-to-week deals. Some get put together [at the] last minute. So I think some of it is just we're constantly doing something and they might not cross their mind. I could just be slightly naive on how many contracts are out there. I just… I don't think there are really that many out there. If they are, that's with the really new kids. I'm sure obviously the big team[s], they have their deals, but with the mid-pack or mid-tier teams down, it's kind of week to week. And then part of it is as a driver and as a team, you never want to be known as somebody that's suing somebody, a sponsor. You don't want your name in the press doing that. I've been part of some really bad deals and I'm sure teams have. Everybody has. It's just business. That's life. And if I were out there and I sued everybody that did me wrong, one, I'd probably have less money than I did if I didn't sue them. And two, I would probably not be in the garage very often because people would be like, well, Ryan might sue me. So it's just like I think they just know it's not very actionable in a lot of ways, especially with the money that we're dealing with. And they don't want their name associated and they don't want their partner's name associated with it. One important feature of NASCAR contracts is the crash clause. [00:01:26.910] - Jack Bradley I know a lot of race teams use it, but can you explain what a crash clause is and how you've had to deal with that? [00:01:37.730] - Ryan Ellis Yeah, I'll actually have to think of the last time I've had one of those. Once again, I could be wrong on this, but I think the last time I had a crash clause might have been like, in Grand Am racing. But I know if you don't have a large racing background, some of these teams, they're operating at cost, so it's not uncommon to have a crash clause. Usually, it's limited to a certain degree, but I think it depends on driver to driver. Some are like, hey, if you crash the car up to $5,000, you're liable for damage, you're liable for this, but it's hard to delineate some stuff because you can be like, well, the right front tire blew, and I knocked the fence down. That's on the team, but the same with motor stuff. But I'm sure it's changed a lot since I'm so freaking old. But it's scary because as a driver, you're kind of operating at cost, too, for the most part. So I've never been able to really sign a crash clause. So the best-negotiating power is always the power to go down to zero. And I was just like, Well, I can't drive then. … I think it's veteran based. There are probably a few races for three to five years. You're probably past that, I assume. I just don't ever remember having one. I might have had one at my first race, but at the end of the day, as I said, I can just go down to zero and be like, I can't race. If I break like my Xbox, I can't buy a new Xbox. [00:02:45.210] - Jack Bradley When you've driven in the past, say, five or six years, is it just a handshake agreement when it comes to a crash clause? Or when you're bringing your funding in, are they just well aware that the race car gets wrecked? Is it just on them? [00:03:00.770] - Ryan Ellis .... For these small teams, it's not typical to have a crash pause, probably more likely, especially if you're in your first race. But with most of my guys, I wouldn't survive if I was tearing up stuff. So I'm able to bring up probably a little bit less in terms of sponsorship money just because they know what they're getting. Coming off a crash last week, it doesn't really sound great, but yeah, it's kind of just like, hey, we trust you. We know you've been here, just do your job, and be smart. And at the end of the day, I know that our team will operate better if I don't strike the stuff in. So it's in my best favor to use my head. Another important aspect of a NASCAR driver’s life cycle in the sport is obtaining funding via sponsorship. [00:04:30.910] - Jack Bradley … Your owner, Tommy Joe Martin, stressed the importance of funding and sponsorship to whom they put in the car. You were mentioning your funding. I've seen it in the past, just with Costa Oil and some of your other partners you've had this year. How important is it to find these partners, to get these contracts or deals done to put you in these cars? [00:04:57.190] - Ryan Ellis I guess without these sponsors, I'm just not racing, period. I've been around for a long time, but there are certain rides that pop up that are just, hey, you don't need to bring anything, we’ll pay you a little bit. Sometimes they're a good deal, sometimes they're not. Sometimes if you can make the race you're in, you might make a little bit. But with Tommy Joe, I'm always transparent, always honest, and basically, if I don't bring the money, I'm not racing. And it's like that for everybody in our team. It's not just me. So without, without team parts, I'm not at Alpha Prime Racing because that was the base of my deal, and that's what allowed Tommy to make a commitment to me. And then from there. He said, hey, we have these ten, six, whatever it was, races at the time open, and me and my marketing girl Sarah went after it and just said, we're going to try to get as many as we can and we lock a lot down, knocked a lot out, and we’re already doing that for next year. [00:20:45.390] – Jack Bradley You mentioned that when you have a sponsor come in, you of course have a contract with them. Is that contract exclusively with you and you just bring the money to the race team, or is it a contract between the three parties? [00:20:57.870] – Ryan Ellis So I think done correctly, it's a sponsored driver to team, driver to sponsor, and then driver to the team. But there's no contract between the sponsor and the team. I think that's done correctly from a driver's standpoint because that keeps the separation between sponsor and team, which is one thing that is scary because the drivers always worry about losing the sponsors to teams. Teams are worried about losing their sponsor to drivers. So I think that's the right way to do it, but everybody does it differently. I think that's probably just the most mainstream way. I work with Spire Sports and Entertainment. I have been for about three or four months now and I think we're finally going through our first set of contracts like last week. And as far as I know, I don't even know if there's a team mentioned in it right now. So it's probably just sponsor to me, and then I have a deal with Tommy, and that just keeps it separate and I'm way too dumb to know why that is, but I think it's just mainly from a legal standpoint of having a sponsor and team sue each other. The ins and outs of contracts in NASCAR are very different from that of other professional sports. I’d like to thank Ryan for his time and for helping build a picture of the business of NASCAR from a legal aspect. Jack Bradley is currently a Law school student at Duquesne University School of Law and an alum of Georgetown University (MPS) and Penn State University (BA). Jack is also the Co-founder and President of Poppy Packs, a 501c3 charity, and former Head of Marketing and Communications within NASCAR. Linkedin: Twitter @JackWBradley

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  • Fernando Tatis Sr. blasts MLB, says son's drug suspension is 'a catastrophe for baseball

    < Back Fernando Tatis Sr. blasts MLB, says son's drug suspension is 'a catastrophe for baseball Aug 16, 2022 Fernando Tatis Sr. strongly criticized Major League Baseball for the way it handled an 80-game suspension levied against his son for a positive drug test. Three days after MLB announced San Diego Padres shortstop Fernando Tatis Jr. had tested positive for the banned substance clostebol, the former major leaguer told "The Midday Show" in his native Dominican Republic that the incident unnecessarily damaged his son's reputation. "I don't think there was reason to destroy the image of a player over something as minor as that," he said in Spanish, according to ESPN. Source: Yahoo Sports Previous Next

  • Pirates’ Rodolfo Castro suspended 1 game after phone fell out of pocket during game

    < Back Pirates’ Rodolfo Castro suspended 1 game after phone fell out of pocket during game Aug 16, 2022 Pittsburgh Pirates infielder Rodolfo Castro was suspended for one game and fined on Tuesday for having his cell phone fly out of his pocket while running the bases last week, according to ESPN’s Jeff Passan. Castro violated Major League Baseball’s electronic device policy. He is going to appeal that suspension, meaning that Castro will be able to play against the Boston Red Sox on Tuesday night. Pirates infielder Rodolfo Castro was suspended for one game and fined for violating MLB policy when he played while having a cell phone in his back pocket. — Jeff Passan (@JeffPassan) August 16, 2022 Castro was sliding into third base during the Pirates’ game against the Arizona Diamondbacks last week when his phone flew out of his back pocket — which made for one of the stranger moments in the league so far this season. Source: Yahoo Sports Previous Next

  • NBA won't play games on Election Day to encourage everyone to vote in midterms

    < Back NBA won't play games on Election Day to encourage everyone to vote in midterms Aug 16, 2022 The NBA won't play any games on Election Day this year in an effort to encourage its players, staff and fans to vote in the midterm elections on Nov. 8, 2022, as well as promote "nonpartisan civic engagement." Teams will instead play games the Monday before during what the league called a "Civic Engagement Night." It's an unprecedented move for the league, which has played at least two games on Election Days in 2012, 2014, 2016 and 2018. The COVID-19 pandemic delayed the 2020 season until after Election Day in 2020. "We don't usually change the schedule for an external event," James A. Cadogan, the executive director for the National Basketball Social Justice Coalition told NBC News' Shaquille Brewster on Tuesday. "But voting and Election Day are obviously unique and incredibly important to our democracy and that's part of the value proposition that we want to make sure people understand that voting is unlike anything else." Source: Yahoo Sports Previous Next

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