Former NHL Player Receives Probation For Drug Offense

Former NHL player Kevin Stevens avoided a federal prison sentence following a hearing this week in U.S. District Court in Boston.  Stevens, who played in the NHL for 16 years (1987-2002), including  parts of 11 seasons with the Pittsburgh Penguins, also starred at Boston College and for the 1988 U.S. Olympic team.  In the early 1990s, Stevens was considered one of the most dominant power forwards in the game, playing on a line with Mario Lemieux and scoring over 40 goals in four consecutive seasons.

 Stevens was charged in May, 2016 with conspiracy to possess with intent to distribute the addictive painkiller, oxycodone.  The criminal charges resulted from wiretaps and surveillance activity by the FBI and Massachusetts State Police into drug activity in the South Shore region of Massachusetts, which has been especially hard hit by the opioid crisis sweeping the nation. 

 Jackson Lewis helped to guide Stevens’ through the criminal justice process, in which he elected to plead guilty and accept responsibility for his actions.  As more fully detailed in a sentencing memorandum filed with the Court, it was argued that Stevens’ involvement with addictive painkillers resulted from a devastating on-ice injury that he suffered during a Stanley Cup playoff game in May, 1993.  Stevens was knocked unconscious while checking an opposing player and fell defenselessly face-first to the ice, resulting in multiple broken facial bones and a severe concussion.  The injury required extensive surgery, the insertion of several metal plates, and over 150 stiches.  To deal with the intense pain, Stevens was prescribed powerful painkillers, including Percocet, Vicodin and Oxycodone.  Unfortunately, he developed an addiction to the drugs, which he battled for the next 25 years.  It was the grip of this addiction which led Stevens to continue to seek out painkillers and eventually become the subject of an ongoing investigation by law enforcement.

Despite facing up to two years of incarceration, U.S. District Judge George O’Toole accepted the defense recommendation and imposed a probationary sentence and a $10,000 fine.  Judge O’Toole was impressed with Stevens’ progress since his arrest, and his demonstrated commitment to sobriety over the past year.  The Judge also commented that he believed that Stevens could be an effective advocate to young people concerning the dangers of drug use and addictive painkillers, and thus could make a contribution which might help solve the ongoing opioid crisis.  Following the hearing, counsel for Stevens’ commented: “the sentence imposed today reflects the proper balance between punishment for criminal activity and a recognition that the conduct at issue resulted from a combination of head trauma and a resulting addiction to painkillers.  Kevin Stevens has made great progress with his sobriety since his arrest in this case, and I am confident that will continue.”  Stevens was represented by Paul Kelly and John Commisso of Jackson Lewis (Boston).

 

Campus Sexual Assault Investigations Need Greater Fairness for All Parties, Trial Lawyers Group Says

The American College of Trial Lawyers (ACTL) has released a White Paper on Campus Sexual Assault Investigations aimed at improving the process employed by universities to address campus sexual assaults.

Concerns over sexual assaults on college campuses had prompted the U.S. Department of Education’s Office for Civil Rights (OCR) to issue a Dear Colleague Letter, as well as a subsequent 2014 clarification, significantly expanding the federal government’s interpretation of Title IX by establishing new procedures for colleges and universities to respond to allegations of sexual harassment and assault.

Members of law school faculties have opined that the accused in such assault cases are being denied fundamental rights.

State and federal court cases also similarly highlighted concerns about fairness during the investigative process.

The ACTL White Paper calls for the inclusion of due process mechanics during the investigative process. Recognizing the issues faced by universities at risk of losing federal funding for failure to comply with Title IX, the Paper notes, “These not-so-subtle pressures may contribute to partially discriminatory investigations and the absence of protection for the accused.”

The ACTL advocates for encompassing essential elements of due process, including a fair and impartial investigation and hearing by qualified factfinders, the right to counsel for both parties, access to evidence, notice of allegations, and some form of cross-examination.

The White Paper focuses on the rights of the accused, suggesting they be provided:

(1) a hearing with due consideration for partiality that could arise from the factfinders’ other responsibilities;

(2) timely details of the allegations;

(3) notice of their right to counsel and right to be accompanied by counsel at all phases;

(4) access to all evidence at a meaningful time and manner so they may respond adequately; and

(5) written findings of fact on completion of the investigation sufficiently detailed to permit meaningful appellate review.

The Paper also suggests the accused should be found liable for such conduct only if the evidence satisfies the “clear and convincing” standard of proof. According to the ACTL, this more stringent standard is a compromise between the “preponderance of the evidence” standard, recommended by the OCR, and the “reasonable doubt” standard applicable in criminal proceedings.

The due process recommendations may prove especially useful in view of reported increases in college athlete assault and harassment investigations that have been widely covered by major media outlets. The same concerns also apply where coaches are accused of harassing or assaulting student-athletes. ACTL notes that the public’s instinct to credit alleged victims, especially where such a power differential exists between the accused and the student, highlights how the proposed due process mechanism during the investigative process may help.

 

NCAA To Address Historic Early Recruiting Legislation

Landmark reform to restrict colleges’ aggressive early recruiting tactics of student-athletes is on the agenda at the National Collegiate Athletic Association Division I Council April 12-14 annual meeting.

One item, Proposal 2016-26,

could make lacrosse the pilot program for creating specific restrictions for the recruiting of high school athletes prior to the beginning of their junior year of high school.

If approved, the proposal will go into effect on August 1, 2017.

The NCAA will monitor the program for its potential use as a model for broader reform in all sports.

The early recruiting process, especially in lacrosse, has come under harsh criticism for years. In recent years, colleges have sought verbal commitments from prospective student-athletes (PSA) who are high school freshmen and even younger.

Most college coaches agree that early recruiting of such young athletes is a no-win situation for both athletes and colleges.

Early recruiting has increased the pressure for PSA to verbally commit to colleges before they are physical or emotionally ready to make such decisions. The process also leads to mistakes by college coaches who must commit to players years before the PSA will join their program.

The latest in the long history of the NCAA’s efforts to curb the early recruiting problem is the NCAA Student-Athlete Committee’s approval of bans on unofficial visits and off-campus contact in April 2016. However, the Committee balked at including restrictions on incoming telephone calls to college coaches. College coaches saw this as a loophole that defanged the recruiting restrictions.

According to US Lacrosse Magazine, the lacrosse community lobbied NCAA Division I Council members for Proposal 2016-16 (which includes a prohibition on incoming phone calls) and on the importance of keeping it intact.

Proposal 2016-26 would amend the NCAA’s existing legislative bylaws to bar coaches from all communication with prospective student-athletes and their families – including incoming and outbound phone calls, unofficial visits, or off-campus contact – prior to September 1 of the student’s junior year of high school.

Proposal 2016-26 has strong support from the Steve Stenersen, CEO of US Lacrosse. Stenersen notes, ”[T]he positive culture of youth lacrosse is being destroyed and the best interests of children are being ignored as a result of early recruiting practices, which now require young athletes to engage in the college selection process long before they are physically, cognitively and emotionally prepared to do so.”

Stenersen continued, “On behalf of US Lacrosse, the sport’s 450,000-member national governing body, I want to reiterate our organization’s strong endorsement of the full legislative proposal introduced by the Intercollegiate Women’s Lacrosse Coaches Association (IWLCA) and supported by the Intercollegiate Men’s Lacrosse Coaches Association (IMLCA) to designate September 1 of a prospective student athlete’s [] junior year as the initial date for contact between a college coach and a PSA.”

The options for the NCAA Division I Council are clear. They can: (1) adopt the proposal, (2) amend and adopt it, and (3) reject it. We will report on these important developments in NCAA recruiting.

 

 

 

 

 

Agents Convicted for Smuggling Cuban Baseball Players

The criminal conviction of two sports agents for smuggling Cuban baseball players into the United States in an attempt to sign them to lucrative contracts serves as a reminder for agents, potential agents, and everyone else in the sports industry that compliance with the law is essential, even in the competitive business of sports management.

As reported by the Associated Press, on March 15, 2017, agents Bartolo Hernandez and Julio Estrada were convicted on conspiracy and alien smuggling charges after Miami jurors heard about six weeks of testimony, including from high-profile Major League Baseball players.

Evidence showed a general Cuban smuggling operation that brought people from the island to Mexico that, in 2009, became a platform for the much more lucrative trade in baseball players. Hernandez and Estrada oversaw the new scheme. Players were shuttled from Cuba to Mexico or Haiti in a speedboat, and then they signed papers claiming residency in the new country. The players were eventually cleared to sign with baseball teams.

At the trial, Chicago White Sox star Jose Abreu testified that he ate a piece of his phony Haitian passport while flying to the U.S. in 2013, because he feared repercussions if he landed in Miami with a fake document. Shortly arriving in the U.S., Abreu signed a $68-million deal with Chicago. Another player, Reinier Roibal, testified about witnessing an armed confrontation at a Mexican boatyard between one of the smuggling ring’s original leaders, Joan “Nacho” Garcia, and a group of men. Roibal said he heard gunshots and Garcia, who prosecutors called “the chief thug of Cancun,” was never heard from again.

In each case, the players were required to sign contracts agreeing to pay Estrada and his organization about a third of whatever they made with U.S. teams, with Hernandez getting five percent to represent them in negotiations with teams. Abreu, for example, said he paid Estrada more than $7 million after signing his White Sox contract.

The defendants’ attorneys told jurors that the defendants ran legitimate businesses and were not overseeing an illegal smuggling ring. They asserted that the defendants provided the Cuban players with training, food, and lodging and helped them navigate the complexities of becoming cleared to play in the U.S. despite the economic embargo against Cuba. Unpersuaded, the jury convicted the two agents.

Even as the U.S.-Cuba relationship improves, strict immigration and other laws must be followed for bringing anyone into the United States from anywhere else.

The Browns Employ Creative Use of NFL Salary Cap Structure For Future Success

In a league well known for the copycat tendencies among its franchises, the Cleveland Browns may have set a new National Football League (NFL) standard for evaluating and completing trades.

After flirting with a 0-16 season in 2016, the Browns entered the offseason with a record $100+ million in cap space. The NFL’s mandatory salary floor requirement would have forced the Browns to spend at least 89% of that amount on players’ salaries. The team’s unmatched spending power placed them in position to leverage their financial flexibility to potentially sign multiple free agent players to help reinvent the franchise.

In sharp contrast, while the Houston Texans finished the 2016 season with a 9-7 record, winning the AFC South before losing in the playoffs to the eventual Super Bowl champion New England Patriots, the team entered the offseason with the seventh smallest cap space to sign players, only about $25 million. Numerous NFL pundits suggested that the remaining three years of quarterback Brock Osweiler’s (Osweiler) four-year $72 million contract would be an albatross that would hinder the Texans’ ability to improve and move forward as a Super Bowl contender.

The immediate needs of both teams created the perfect opportunity for the type of trade that is frequently seen within the salaried cap structure of the National Basketball Association (NBA), but never before completed between teams in the NFL.

The Browns and Texans combined on a trade that sent the Browns fourth-round draft pick in 2017 to the Texans in exchange for their second-round draft pick in 2018, a sixth-round draft pick in 2017, and Osweiler and his contract. Suddenly, the Browns ability to add draft pick assets showed other franchises in the NFL that the Browns valued the cost of the combined draft picks, especially the second-round draft pick in 2018, at or above $16 million — the ultimate salary cap impact for Osweiler’s 2017 contract.

By acquiring Osweiler and a pair of draft picks, the Browns may have manipulated their cap space to acquire valuable draft pick assets that they view as more valuable than any free agent player they would have secured with the same $16 million.

Ultimately, the Browns were willing to absorb Osweiler’s contract in order to get the Texans’ second-round pick in 2018 and a sixth round pick in 2017.

While Cleveland will owe Osweiler $16 million in 2017, it can part ways with the him after next season with no penalty and his acquisition helps the team get closer to the mandated salary cap floor without having to enter into a risky long-term deal with a free agent player that could have easily exceeded $16 million in salary guarantees.

From the Texans’ perspective, the removal of Osweiler saves them $16 million in cash and provides $10 million cap space for the 2017 season and prevents future cap issues that would have remained as a result of Osweiler’s contract after the 2017 season.

The trade has been lauded as a creative win-win for both teams.

Browns’ senior executive officers Sashi Brown and Paul DePodesta have received substantial credit for the deal. DePodesta is renowned for his creation and application of the “Moneyball” analytic model during his time with Major League Baseball’s (MLB) Oakland Athletics. Despite being limited by one of the smallest payrolls in MLB, DePodesta helped the Athletics remain consistently competitive within MLB’s uncapped salary structure by using an analytic approach to exploit market inefficiencies to sign the best available players.

The deal’s novelty has not been universally celebrated.

Some have compared the trade to NBA “salary dumps,” in which teams absorb large contracts for draft pick compensation. Hall of Fame General Manager Bill Polian called the trade “a joke.” “Houston did a good job. They made a mistake and got out from under it…,” he said, “But the idea of paying $17 million for a second-round pick, to me, is ludicrous.”

Will other teams make similar moves in the future? Only time and the ultimate desire of each NFL franchise to win a Super Bowl will tell.

Judge Recertifies MLB Minor League Collective and Class Action

Federal Magistrate Judge Joseph C. Spero struck a blow to MLB when he reversed course on his earlier decision and recertified a minor league collective and class action against MLB.

In July 2016, the court decertified the minor league collective and class action in Senne, et al. v. Kansas City Royals Baseball Corp., et al., No. 14-CV-00608-JCS. However, on August 4, 2016, the Court granted in part the plaintiff’s Motion for Reconsideration, giving them the opportunity to narrow the class definitions and address the court’s concerns expressed in its July decision.

The previously proposed class included “All persons who under a Minor League Uniform Player contract, work or worked for MLB or any MLB franchise as a minor league baseball player within the relevant state at any time.” The court found too many individualized issues to certify the class.

The new classes approved by the court include a Fair Labor Standards Act collective consisting of minor league players participating in the California league, spring training, instructional league, or extended spring training on or after February 7, 2011. The court also recertified a California class consisting of minor league players who participated in the California league on or after February 7, 2010.

In reversing course, Judge Spero stated,

“The Court now reaches a different conclusion and finds that the classes have been narrowed sufficiently that any individualized issues that arise in connection with the representative evidence offered by Plaintiffs will not predominate over common issues.”

In its previous decision, the court took issue with the plaintiffs including winter conditioning activities as part of the class definition. The court found that players are given wide latitude in their winter conditioning workouts, giving rise to too many individualized issues. By excluding these winter activities under the new class definition, the focus is on team activities and conditioning, rather than individualized winter programs of each player. The court also relied on the fact that “many of the individualized inquiries cited by Defendants go to damages and not liability, and therefore do not present an impediment to class certification.”

The court ordered the parties to file a proposed schedule of the case by April 28, 2017. Ultimately, MLB may be forced to take this issue to trial. We will monitor the case and provide updates. Please contact Jackson Lewis with any questions.

 

 

 

 

Texas Spotlights Transgender Athlete Issues as Bill Progresses in Legislature

The Texas University Interscholastic League’s constitution requires that student-athletes compete according to the gender on their birth certificate. In February, a 17-year-old transgender male was required to wrestle against females, despite his preference to compete in the boys’ league. He went on to win the Class 6A 110-pound girls’state championship in Texas high school wrestling to both criticism and support.

In a 21-10 vote, the Texas Senate has approved the controversial SB6, commonly known as the “bathroom bill.”

SB6 would not only require that all Texans use the bathroom matching the sex on their birth certificates in public schools and government buildings, it also would prohibit local governments from enacting anti-discrimination ordinances on the same issue.

This move comes on the heels of President Donald Trump’s decision to reverse the Obama Administration’s May 2016 guidance providing that Title IX protects the right of transgender students in public schools to use bathrooms and locker rooms corresponding with their gender identity.

If SB6 becomes law, Texas may be faced with opposition similar to that seen in North Carolina after that state’s controversial HB2 “bathroom bill” was passed into law in 2016.

The NBA, ACC, and NCAA have moved several lucrative events out of North Carolina, and this trend may continue as the North Carolina Sports Association has reported that the NCAA has threatened to pull the state’s bids for all major events through 2022. This could result in severe financial losses for the state.

The NFL and NBA have warned that Texas may be jeopardizing its chances at hosting future events should SB6 become law. Since 2004, Texas hosted three NBA All-Star Games and three Super Bowls – including Super Bowl LI played at Houston’s NRG Stadium between the New England Patriots and the Atlanta Falcons. While the NFL’s stance does not affect the state’s chances of hosting a Super Bowl in the near future since sites have been selected through 2021, none of which are in Texas, the same cannot be said for Texas landing the 2020 or 2021 NBA All-Star Games for which Houston has been considered a frontrunner.

Sports leagues have come down hard on North Carolina for passing its “bathroom bill.” Texas may expect the same treatment if SB6 is passed.

 

 

 

 

NFL Owners, Commissioner Consider Question of NFL Conduct Policies Regulating Non-Football Offenses Once Again

New York Jets player Darrelle Revis is entering the third year of his approximately $70 million five-year contract with the team. He is slated to receive a $13 million base salary ($6 million fully guaranteed) and a $2 million roster bonus this season, but only if he remains on the Jets roster. Unfortunately, the cornerback may not be making the flight back to “Revis Island.” Revis has become the latest professional football player to force owners and the National Football League to consider if they can reprimand a player for off-the-field conduct and if a criminal indictment is necessary to find a player violated league conduct policies.

In connection with an altercation in Pittsburgh on February 12, 2017, police have charged Revis with two counts of aggravated assault, one count of robbery, one count of conspiracy, and a misdemeanor charge of making terroristic threats. His preliminary hearing has been adjourned to March 15, 2017. The $2 million roster bonus, as well as a portion or all of the $6 million guaranteed salary, is due from the Jets if Revis is still with the team on March 10, 2017.

Whether the Jets can negate Revis’ entire salary (including the roster bonus and guaranteed money) will depend upon contractual provisions. His contract can be voided under certain circumstances, including being fined or suspended for conduct detrimental to the team or for violating the NFL’s conduct policy. Moreover, the contract’s general catch-all clause allows the Jets to void the contract if Revis “engages in personal conduct reasonably judged by [the Jets] Club to adversely affect or reflect on [the Jets] Club.”

The NFL is investigating whether Revis may have violated league policies, too. If the Jets or Commissioner Roger Goodell issue any disciplinary decision prior to a court ruling, Revis and the NFL Players Association likely will file a grievance subject to their collective bargaining agreement’s arbitration procedures to challenge what conduct, actual or alleged, violates these clauses and whether Revis is owed at least a guaranteed portion of his salary.

This is not the first time that franchises and Goodell have considered punishing a player for non-football-related actions. In recent years, sanctions have ranged from suspensions for league policy violations (i.e., Josh Gordon and Le’Veon Bell) to immediate termination for actual or alleged criminal offenses (i.e., Ray Rice, Greg Hardy, and Josh Brown). These prior determinations, however, were subject to both positive and negative criticism. Thus, waiting for the court’s final determination on Revis’ criminal charges could delay a decision by the Jets camp or the NFL, which, in turn, would require the Jets to issue him at least $2 million on March 10, 2017. Quite a dilemma.

 

 

NLRB General Counsel Concludes Division I Scholarship Football Players are Employees under Labor Law

Scholarship football players in Division I FBS private sector colleges and universities are employees under the National Labor Relations Act, National Labor Relations Board General Counsel Richard F. Griffin has concluded. Accordingly, he explained, the players have all of the rights and protections available to employees under the Act. Click here to read the full article.

Update: Minnesota Football Team Ends Bowl Boycott

The University of Minnesota football team ended their boycott of the Holiday Bowl after attempting to overturn the suspension of 10 players for alleged acts of sexual assault and agreed to participate in the upcoming December 27th game against Washington State University.

After lengthy meetings with University President Eric Kaler and Athletic Director Mark Coyle, the team’s senior wide receiver Drew Wolitarsky read a statement on behalf of his teammates. In the statement,

the team acknowledged that their demand to have the suspensions of the 10 players overturned was “not going to happen”.

However, Wolitarsky also stated that during the course of the meetings an agreement was reached that assured each of the suspended players a “fair hearing” before a diverse review panel. The hearings will most likely be heard in January.

In addition, the team agreed that the players would use their status as “public figures to bring more exposure to the issue of sexual harassment and violence against women.” Wolitarsky comments further acknowledged how difficult and stressful the situation had been for everyone involved and he specifically recognized that

“there is only one way to treat all women, and that is with the utmost respect at all times.”

President Kaler reacted to the statement issued by the team and stated. “I think the statement by the students today around support for victims of sexual assault is important. I will continue to amplify the fact that the football team’s action in support of their teammates was not in support of sexual violence.”

 

 

 

 

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