Monthly Archives: July 2011

Friday Morning Workout

The legendary Larry Bird illustrates the gamesmanship behind professional basketball.

The NFLPA executive board and the player representatives for each of the 32 teams voted unanimously on Monday to approve the proposed CBA and end the 4½-month lockout.

Click here to get a breakdown of the final agreement in laymen terms.

In the fight between the league/owners and the NFLPA, which resulted in a new CBA, who are the winners and losers?

Should the NCAA present a case to the NFL that Terrelle Pryor could have been eligible for any portion of the upcoming 2011 college football season, The NFL likely will deny Pryor’s application to participate in the 2011 supplemental draft.  According to NFL spokesman Greg Aiello, “[the supplemental NFL draft is for players whose circumstances have changed in an unforeseen way after the regular (college) draft. It is not a mechanism for simply bypassing the regular (draft).”  Though the NFL has yet to consider Pryor’s eligibility to participate in the supplemental draft, on Tuesday, OSU’s athletic director issued a letter declaring Pryor ineligible for the entirety of the 2011 college football season.

After pleading guilty to a misdemeanor driving while intoxicated charge in NY last Friday, Jets’ star WR Braylon Edwards could face jail time if a Cleveland judge determines that the plea violates his probation related to an October 2009 incident of disorderly conduct.

Cooperstown honors new Hall of Fame inductees.

The NBA’s 2010-11 season audit reveals that basketball-related income and player compensation increased by close to 5%, a sizable jump in comparison to the last two seasons.

The NBA players who intend to jump ship for Europe next season could learn a lot from the American-born, European veteran/legend Marcus Brown.

Taking advantage of his time off during the lockout while demonstrating the importance of education, Cavaliers’ guard Baron Davis returns to the UCLA campus 12 years after he left.

Kareem Abdul-Jabbar, as an ESPN guess writer, attributes the loss of revenue by small-market NBA teams to the slow development (or total lack thereof) of players who enter the league too early with enormous contracts.

An NCAA special panel proposes to broaden the definition of “agent” to include “people marketing athletes to colleges, not just professional teams, for profit.”  This would include family members, such as Cam Newton’s father Cecil, who marketed Cam to Mississippi State for money prior to Cam’s enrollment with Auburn.

Following the NFL lockout, is it possible for fantasy football to recover as a moneymaking industry this year?

This summer has seen business as usual for NFL ad sales.

Michael Rosenberg of SI gives his take on why elite student-athletes should be paid.

NBA star Kevin Love gives Pro Beach Volleyball a go.

Peter King of SI reports HBO has cancelled its 2011 season of Hard Knocks.

 

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Pop Culture – League Dress Code

As promised, THIRDandFOUR will occasionally mix in pop culture to keep things fresh and exciting.  This week, we address the various dress code policies that have been implemented within the professional sports leagues.  Our focus concerns the manner in which certain professional athletes, e.g., Amar’e Stoudemire, have taken advantage of these restrictions to further their professional image and create new professional opportunities for themselves either away from the field or off of the court.

***

As an attorney, I have grown accustomed to regularly wearing either business casual attire or suits.  I’ve accepted that this attire—though uncomfortable at times—is necessary for co-workers, clients, and adversaries to perceive me as professional and as someone who takes his work seriously.  The key to enjoying such attire, however, is to have a little fun with it.  I accomplish this level of fun by wearing immaculately shined shoes, custom-fitted shirts, uniquely lined blazers, colorful pocket squares, and signature argyle socks.  Often, I stand out in a room full of people.  But who doesn’t like a little attention? It can be the deciding factor as to whether you get your dream job or meet your future wife.

For many professional athletes, loafers, wingtips, slacks, dress shirts, blazers, and ties are as foreign to them as a consistent golf swing is to me.  Understandably, these athletes consider this attire bizarre, when their typical daily attire throughout high school, college or the minors consisted of either athletic shorts, sweats, t-shirts, or hoodies.  In comparison to most young Americans, Individuals who strive to become professional athletes never partake in semester or summer-long internships that require a business attire “uniform.” They work on their game.  Thus, this conservative attire never becomes an integral part of their professional lives.

That being said, once professional athletes reach the “league,” most of them yearn to stand out and fully project themselves.  As entertainers, they are drawn to the spotlight and naturally crave attention.  Unlike me or someone else who maintains that 9 to 5…6…7…8…9…10…11 job, they are naturally less worried about what their teammates, their boss, or the opposing players think about their attire.  Generally, professional athletes are of the mindset that if their clothing or jewelry draws attention—any attention—to them, they have accomplished what they set out to achieve.  It’s natural for them to think this.  These material things display their personality, wealth, and level of success.  Moreover, some, but certainly not all, professional athletes believe that once they strip away the uniform and step off of either the field or the court, their bosses, the media, and the fans no longer judge them.  Thus, they aren’t required to present themselves in a manner that is considered professional by either the league, the media, or the fans.  These individuals are misguided.  Professional athletes—as entertainers—are under a spotlight 24 hours a day, 7 days a week.  To be successful, at all times, they must cater to the audience (i.e., white-collar fans) that roots for them, purchases expensive tickets to their games, buys ridiculously overpriced beers and hotdogs, and ultimately pays their salaries.  As a result, most professional sports leagues have recognized this principle and implemented some sort of off-the-court dress code policy that controls what players can wear while conducting league business.

For instance, the Commissioner of the National Football League—probably the most lenient of the big-four leagues when it concerns attire—retains jurisdiction over the players’ attire for ninety minutes after the end of games.  Thus, according to the Houston Chronicle, players are not permitted to conduct interviews while wearing clothing with visible logos of non-NFL licensed apparel.

According to the Communications Manager of the Major League Baseball Players Association, no MLB dress code exists.  However, individual clubs have the discretionary authority to compel players to abide by certain standards.  Many teams, such as the Yankees, have taken advantage of this authority.  The Yankees, for instance, prohibit all facial hair other than sideburns and mustaches.  Similarly, NFL teams maintain the discretion to instill a dress code, for instance, when traveling to and from the hotel or the stadium.

The National Hockey League is quite unique with respect to its dress code.  ESPN columnist Scott Burnside sums it up best: “hockey players have been told what to wear for years, long before they reach the NHL.  Most junior and minor-pro teams have some form of dress code covering what is and isn’t to be worn to games and around the rink.  Dress codes for minor hockey teams are also common and are seen as a way of fostering team unity and cohesion.”  According to Tampa Bay Lightning star Vincent Lecavalier, “everybody wears a suit.  We’re just used to it.”  Burnside also noted that although an unofficial dress code exists in hockey, Exhibit 14, Paragraph 5 of the collective bargaining agreement officially checks those players who have a tendency to venture offsides (pun intended).  It states: “[p]layers are required to wear jackets, ties and dress pants to all Club games and while traveling to and from such games unless otherwise specified by the Head Coach or General Manager.”

***

Over the past two decades, the National Basketball Association has been synonymous with hip-hop culture.  For instance, during the 1990’s, Shaquille O’Neal—now, the “Big AARP”—rapped his way through his entire career with the Orlando Magic and three seasons with the LA Lakers.  He produced such great hits, like “What’s Up Doc? (Can We Rock)” on his 1993 album Shaq Diesel; “Freaky Flow” on his 1994 album Shaq-Fu: Da Return; “Strait Playin” on his 1996 album You Can’t Stop the Reign; and “48 @ The Buzzer” on his 1998 album Respect.  And let’s not forget about his favorite Lakers’ teammate Kobe Bryant, who collaborated with model Tyra Banks to produce the hit song KOBE.

So during the 2005-06 season, when—to the surprise of most of their players—the NBA implemented a very strict dress code, the new restrictions created quite an uproar.  In a memo issued to NBA players on October 17, 2005, commissioner David Stern required players to wear “business casual” attire while engaging in “team or league business” (i.e., all activity conducted on behalf of the team or the league during which the player is seen by, or interacts with, fans, business partners, members of the public, the media, or other third parties).  During players’ attendance at games in which they are not playing, they must additionally wear a “sport coat” along with “dress shoes or boots, and socks.”

Following his review of the memo, then Phoenix Suns guard Raja Bell expressed his discontent regarding the new rules, stating in a quote to ESPN, “I understand they’re making it out to make us look better to corporate and big business.  But we don’t really sell to big business…  We sell to kids and people who are into the NBA hip-hop world.  They may be marketing to the wrong people with this.”

Wrong!  Try again, Raja.  As explained above, “corporate and big business” pay your bills.  David Stern understood this principle in 2005 and certainly wasn’t going to let something as simple as his players’ attire drive away the substantial amount of revenue obtained by the league through corporate America.

Editor-In-Chief of Vogue Magazine Anna Wintour and Amar’e Stoudemire attend the Tommy Hilfiger Spring 2011 fashion show

So when life gives you lemons, make lemonade.  Since the inception of the NBA dress code policy, the Knicks’ star power forward Amar’e Stoudemire (aka STAT – Standing Tall And Talented) has done just that.  In the illustrious words of Vogue’s editor-in-chief Anna Wintour, over a five-year period, Amar’e has become a fashion icon.  He has enlisted the help of stylist Rachel Johnson and 6’5″ tailor Waraire Boswell to conquer his 6’10” height–a fashion barrier for many.  While Lebron James and Dwayne Wade sit beside each other during post-game press-conferences dueling over whose windsor knot is larger, Amar’e consistently appears before the media solo, dressed confidently for success.

Lebron James and Dwayne Wade address each other and the media after Game 6 of the NBA Finals

Amar'e Stoudemire addresses the media following a First Round Playoff Game against the Boston Celtics

Amar'e Stoudemire addresses the media following a First Round Playoff Game against the Boston Celtics

THIRDandFOUR applauds Amar’e Stoudemire.  He has taken the restrictions imposed upon him by the NBA and turned it into a love for fashion and a way to further himself professionally off of the court.  His new friend Anna Wintour has featured him on the cover of and within Vogue Magazine.  There, he is complimented for “his fashion instincts” that “are remarkably honed.”

Moreover, he has partnered with fashion designer Rachel Roy to design and release a women’s fashion line in fall 2011.  As for the rest of the NBA, many players should take notice:

Friday Morning Workout

Former UGA football coach Jim Donnan accused of making millions via a Ponzi scheme.

Mendenhall Sues Champion based on his terminated endorsement deal.

15 Popular Athletes who squandered their millions—many of whom you’d never guess.

Odds are good that Clemens will face another trial despite his argument regarding double jeopardy.

USC’s Kiffin suspends senior starting running back Marc Tyler for making inappropriate comments to TMZ.

Lance Armstrong fights back against prosecuting attorneys, claiming they leaked inappropriate grand jury investigation information to the media.

Laker’s Odom was a passenger in a vehicle that struck and seriously injured a motorcyclist and killed a young pedestrian in New York.

Bengals’ Cedric Benson jailed on assault for the second consecutive off-season.

Deron William and Zaza Pachulia officially sign contracts to play in Turkey contingent upon the NBA work stoppage continuing through the start of the season.

LA Lakers longtime trainer Gary Vitti recounts the days leading up to and after Magic’s announcement to the world that he had contracted HIV.

Once the NFL season commences, replay officials will automatically review every scoring play during NFL games, likely lengthening games considerably.

Insurance costs could hinder NBA player participation in the London 2012 Olympic games.  Stern and FIBA are scheduled to meet this coming Tuesday to discuss.

The Women’s World Cup final set the record for tweets per second.

Tiger Woods abruptly fires caddie Steve Williams after a 12-year relationship in which Tiger won 72 times and 13 major tournaments.

Rick Reilly’s suggestions to Tiger concerning how he can revamp his image and his game.

SEC Commissioner Slive opened the Southeastern Conference media day on Wednesday by pushing the NCAA to make extreme changes, including toughening academic requirements for student-athletes and broadening recruitment rules.  Interestingly, Slive chose to push for these changes in a year when more than one of his schools faces sanctions or an investigation by the NCAA.

Continuing to ride the comeback wave, Vick snags additional endorsement deals.

75 Ex-players sue the NFL and Helmet maker Riddell, claiming defendants intentionally withheld from players their knowledge about the long-term, adverse impact of multiple concussions on the brain.

Former NFL GM Vinny Cerrato offers five rules that the 32 NFL teams should follow when tackling this year’s abnormally short free agency period.  Can these teams feasibly sign hundreds of players in a number of days?

Ivy League football decreases full contact practices from five to two a week to limit the risk of concussions.

The NCAA strikes again, sanctioning the LSU football team after an assistant coach improperly provided a JUCO player transportation and housing.

A generation with a strong sense of self-entitlement is rewarded for pouting.

Chad Ocho Cinco, allergic to the sun?!?

 

Rashard Mendenhall Sues Champion – Good Move?

This week, Pittsburgh Steeler’s running back Rashard Mendenhall sued Hanesbrand, parent company of his ex-sponsor Champion apparel, for $1,000,000 for their termination of his endorsement contract with them.  As you may recall, on the night that United States forces killed Osama Bin Laden, Mendenhall used his Twitter account to voice his opinion about the killing of Bin Laden.  Specifically, Mendenhall tweeted the following:

“What kind of person celebrates death? It’s amazing how
people can HATE a man they have never even heard speak. We’ve only heard one
side.”

In regards to the 9/11 attacks he continued:

“I’m not convinced he was even behind the attacks we have really seen no
evidence to prove it other than the gov telling us.”

Those tweets were condemned by just about everyone.   Shortly thereafter, Champion terminated its deal with Mendenhall which went through April 2015, stating that “while we respect Mr. Mendenhall’s right to express sincere thoughts regarding potentially controversial topics, we no longer believe that Mr. Mendenhall can appropriately represent Champion.”

While Mendenhall could have just kept his head down and let this fall by the wayside, he decided to fight for the remainder of his contract.  And while its nearly impossible to make a sensible public relations case or defense for Rashard, this suit does raise a very interesting legal issue – can an athlete or celebrity be in breach of a moral turpitude clause of a contract just for voicing an opinion?

Almost every endorsement, appearance, or performance agreement involving a public figure includes a moral turpitude clause that gives the hiring party the option to void the contract if the public figure is in violation of the moral turpitude clause.  These clauses are fairly standard in language, and Rashard’s deal with Champion was no different.

According to CNBC’s Darren Rovell, the language in Mendenhall’s deal stated that Champion had the right to terminate Mendenhall if he “commits or is arrested for any crime or becomes involved in any situation or occurrence tending to bring Mendenhall into public disrepute, contempt, scandal or ridicule, or tending to shock, insult or offend the majority of the consuming public.”  As far as moral turpitude clauses go, this one is actually fairly broad, as it seems to cover any situation where Mendenhall is involved in a scandal that offends the public, and is not limited to just specific actions by Mendenhall.

However, Mendenhall’s legal team thinks he has a case.  According to the suit – “this case involves the core question of whether an athlete employed as a celebrity endorser loses the right to express opinions simply because the company whose products he endorses might disagree with some (but not all) of those opinions”.  To be sure, this is a very interesting question moving forward, especially as celebrities have more and more ways and means to express themselves to large groups of people.  But upon a closer look at the language of Mendenhall’s contract, it seems like he’s arguing a case that he can’t make for himself.

The language of his contract seems to clearly state that if Mendenhall “….becomes involved in any situation or occurrence tending to bring Mendenhall into public disrepute, contempt, scandal or ridicule, or tending to shock, insult or offend the majority of the consuming public” he will be in violation of his agreement with Champion.  Given that his comments were wildly read throughout the internet and on newspapers across the country, and were almost unanimously condemned and ridiculed by both pundits and the public, its pretty obvious that his actions are in breach of his moral turpitude clause.  A plain language interpretation yields a poor result for Mendenhall in this fight.  His lawyers seem to be focusing on the fact that Champion didn’t agree with what Mendenhall’s opinion was on Bin Laden, and that they can’t terminate him for that.  And they may be correct about that.  But the language for termination isn’t based on Mendenhall being at odds with the morals of Champion.  Its based on him denigrating himself through his actions in such a way that offends the majority of the public, which he clearly did.

The basis of 95% of all moral turpitude clauses are not because celebrities need to live up to the morals the company sets forth.  Rather it is to ensure that the company is getting what it is paying for.  As a spokesperson for a company, there is an understanding that the reason a company is working with the celebrity is because of the value of that celebrity’s reputation and recommendation in the marketplace. Once a celebrity has tarnished that through their actions, they no longer provide that same value to the company.  Both Michael Vick and Tiger Woods lost endorsement contracts for their actions based on this.  If your spokesperson is no longer worth the millions of dollars you were paying him to endorse your products, the company needs a way to get out of those deals.  That is the purpose of a moral turpitude clause.

Had Mendenhall’s contractual language been more finely tailored to limit his moral turpitude to just specific acts or arrests, and not included the broader language of insulting or offending the majority of the public, he may have had a stronger legal footing.  But the language here actually seems to contemplate this specific type of scenario, where Mendenhall’s words or actions insulted and offended the masses.  And there seems to be no doubt that is what occurred here.

Beyond the legal case, which he will likely lose, Mendenhall is on a slippery public relations slope.  While his comments were big news when he made them, he has largely avoided the spotlight since then.  And while this story will probably never be entirely wiped off of his Wikipedia page, the masses were beginning to forget, as they tend to do.  Now Mendenhall has gone to great lengths to remind everyone of what he said, and in doing so further tarnished his image.  If there was a slam-dunk case for him to win the $1,000,000, it may have been worth it.  But since that case is dubious at best, he’s now left without an endorsement deal and is reminding fans and sponsors why he’s not a good person to be doing business with.  Mendenhall is putting all of his eggs in this one endorsement basket.  As it was, he was unlikely to garner any other national endorsement opportunities.  That is even more so the case now that he has taken it to the courts.

It seems like Rashard has gotten some bad advice, because this is a loss in the courtroom, a loss in the court of public opinion, and a loss in the endorsement game.

Weekly Correction – Let the Kid Pout!

This past Tuesday evening, the San Francisco Giants played the Los Angeles Dodgers before a uniquely tense home crowd.  The crowd was emotional, not because a Giants’ win against L.A. would have decided whether the team maintained its NL West Division lead (the Giants are in the driver’s seat with respect to the division, holding a 4-game lead over their closest competitor the Arizona Diamondbacks), but because a Giants’ foul ball went to its rightful owner.

For those of you who missed the fiasco that transpired in the Giants’ stadium Tuesday night, here’s a quick synopsis: In the fourth inning of the game, first baseman Brandon Belt zinged a foul ball into the upper deck stands.  As the ball headed directly at an adult male fan, in true first, second or third date form, the fan sacrificed his left hand to snag the ball, and then gifted it to the beautiful lady that accompanied him to the game.  Upon receiving the gift, the “damsel in distress” smiled and celebrated, while her man described to the people around him the pain he endured while seizing her prize.

Concurrent with this celebration, a young male child, sitting just one row behind the guy who snagged the ball, threw an absolute fit before his father and, unbeknownst to him, the viewers watching at home, at bars, and wherever else people watch baseball games in San Fran.  Shockingly, this child’s reaction was not reminiscent of the childish fit you expect from someone his age—in other words, the fit most children throw when they can’t eat candy before dinner.  This kid pressed his chin tightly into his chest, squinted his eyes, stared intently at the man and his date, and reminiscent of a scene from the 1988 movie Child’s Play, gave the couple the look of “Chucky” (i.e., death).  Notwithstanding his father’s attempts to reason with him, the kid continued this spectacle for close to a minute and a half, until the Giants’ television announcers arranged for the stadium’s staff to deliver to him and the calm child sitting next to him two baseballs similar to the one in the lady’s possession.

***

Now, as a preface to what I’m about to say, I do like children.  I even love certain children.  In fact, I hope to be a father one day.  Nonetheless, the manner in which the Giants’ announcers and stadium staff reacted to and dealt with this kid absolutely infuriates me.

I understand that at a young age, it’s natural for a child to have a strong, yet unrealistic sense of entitlement.  However, those individuals around the child must curtail it immediately.  Under the circumstances described above, even though the foul ball travelled and eventually landed in an area far from the pouting child, he still believed that he deserved the ball because of this unrealistic sense of entitlement.  I can just imagine the thoughts that ran through his head after he didn’t receive the foul ball: “I’m seven.  I usually get whatever I want from my family.  I want this ball.  I will pout until I get what I want.”

This line of reasoning and natural reaction is absurd—even for a child his age—and should not be rewarded.  Here, I pat the father on the back for not succumbing to his son’s moaning and whining.  The father generally ignored him, and when the child eventually threw his hands up in disgust, the father shook his head, as if to say, “your reaction is not okay.  This is life.”  Thank you, dad!

On the other hand, the Giants’ announcers supported, and essentially advocated for, a thriving generation of individuals who believe that they can obtain whatever they desire without earning it.  For a case in point, look at all the Wall Street snobs and Ponzi schemers who defrauded Americans of their hard-earned money and still don’t quite understand why everyone, including the government, hates them.  These guys and gals were probably raised with this same unrealistic sense of entitlement.

 

In final, let’s give it up for the boneheaded Giants’ announcers—the guys who fed the bear when the sign specifically said, “Don’t Feed the Animals.”

Friday Morning Workout

Friday Morning Workout

Welcome to your Friday Morning Workout, THIRDandFOUR’s new weekly post for those of you who missed the week’s news concerning sports law, sports business, sports media, or sports public relations.  Dig in and make sure you break a sweat!

Selig fully supports David Einhorn’s purchase of one-third of the Mets from principal owners Fred Wilpon and family, notwithstanding the $1-billion plus lawsuit that has been brought against the Wilpons by Trustee Irving Pickard on behalf of victims of Bernard Madoff’s ponzi scheme.  The Court recently granted the Wilpons’ motion to move the case from the bankruptcy court to a federal district court, where Judge Rakoff likely will limit the plaintiffs’ recovery based on a theory that the Wilpons’ failure to investigate Madoff’s investments did not constitute “willful blindness” or culpable intent.  Read more.

Erin Andrews opens up about her stalker.  Read more.

The assistant to Canadian sports doctor Anthony Galea claims that though the doctor treated Tiger Woods after his 2009 knee surgery, he did not inject Woods with any illegal substances.  Read more.

Shaquille O’Neal decides to join TNT’s NBA Coverage. Read more.

Former Cowboy’s wide receiver and sports commentator Michael Irvin appears shirtless on the cover of the gay men’s magazine Out, where he explains that his passion for marriage equality is a direct result of his relationship with his gay brother who died from cancer in 2006.  Read more.

ESPN Now Making Candy Bars too?  Read more.

The NFL and the NFL Players Association project that they will ratify a new CBA by July 21, 2011 in order to save the entire NFL pre-season.   The most complex issues yet to be resolved through negotiations are veteran free agency and the rookie wage system. Read more.

See how sports figures use Twitter. Read more.

The NFL salary cap will undoubtedly be lower than before once a CBA is adopted.  With a hypothetical $120 million cap, the following six teams already exceed it: (1) the Dallas Cowboys; (2) the Oakland Raiders; (3) the New York Giants; (4) the Pittsburg Steelers; (5) the Minnesota Vikings; and (6) the Indianapolis Colts. Read more.

CNBC’s SportsBiz expert Darren Rovell provides 100 rules for using Twitter. Read more.

Pursuant to the 1999 NBA collective bargaining agreement, the NBA withholds 8% of player salaries and places it into escrow each season to ensure that these salaries do not exceed 57% of league revenues.  Unlike every other season, the NBA will soon return this year’s money to the players due to increased revenue throughout the 2010-11 season—a welcome surprise for certain players and fuel to the players’ argument that the League does not need to overhaul the current financial system.  Read more.

Julie Roe Lach, the NCAA’s Vice President of Enforcement, has made it clear that the NCAA is not done investigating Auburn with respect to its dealings with Cam Newton.  Read more.

ESPN initiates suit against Ohio State University, accusing the school of violating the state’s public records law by denying requests for information concerning the NCAA’s investigation of Tressel and Pryor.  Read more.

Despite Prince Fielder’s displayed adoration for his sons during the MLB All-Star festivities this week (a true image booster), he has no intentions of rebuilding the torn relationship between him and his father, former all-star first baseman Cecil Fielder.  Read more.

Sports Illustrated’s List of 100 people in Sports To Follow on Twitter.  Read more.

Adam Pacman Jones may have, for once, been profiled and improperly targeted leading up to his July 10th arrest.  Read more.

The NCAA nabs its next victim: Georgia Tech over a mere $312. Read more.

Breaking News Analysis: The Roger Clemens’ Trial

Roger Clemens in 2008 before the Congressional Committee

Yesterday afternoon, multiple media outlets broke the news that U.S. District Judge Reggie Walton had declared the Roger Clemens’ perjury trial—just two days into witness testimony—a mistrial due to improper prosecutorial conduct.  Here’s the gist of what transpired: Judge Walton clearly understood entering the trial that testimony by Clemens’ former teammate Andy Pettitte (a future witness for the prosecution) would likely dictate the outcome of the trial.  Pettitte was scheduled to testify that Clemens represented to him in 1999 or 2000 that Clemens actually used human growth hormone—a statement in complete contradiction to Clemens’ prior testimony in 2008 before the Congressional House Oversight and Government Reform Committee.  Had the prosecution sufficiently established this contradiction, the jury likely would have found Clemens guilty of perjury, and the Government would have prevailed in its “fight” against banned performance enhancing substances.  However, the prosecution royally screwed up in the following manner before it could even place Pettitte on the stand:

During the first few days of trial, the prosecution demonstrated that it intended to initially set a foundation concerning Clemens’ congressional testimony prior to putting on the witness stand important witnesses, such as Pettitte, who would draw a stark contrast between Clemens’ congressional testimony and the supposed truth.  As part of this tactic, yesterday morning, the prosecution played to the jury a video of Clemens’ 2008 testimony, in which Representative Elijah Cummings (D-Md.) described Pettitte as being “credible” and then made the following statement about an affidavit provided to congress by Pettitte’s wife Laura: “Let me read to you what his wife said in her affidavit.  I, Laura Pettitte, do depose and state, in 1999 or 2000, Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones.”

D’oh!!!!!!

To agree with and quote District Judge Walton, “I think a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence.”  From the point of view of a former first-year law student and now an attorney, I’ll explain to you the problem with what the prosecution did.  Apparently, the other media outlets think America is too dumb to understand simple evidentiary rules.

The primary principle you need to understand is “hearsay,” which is an out-of-court statement used to prove the truth of the matter asserted.  Hearsay evidence is generally inadmissible in a court of law. Here, the prosecution attempted—maybe by accident—to use the out-of-court statements of Rep. Cummings and Pettitte’s wife to (i) add credibility to Pettitte’s character; and (ii) corroborate/bolster Pettitte’s future testimony that Clemens previously confessed about using human growth hormones.  So you’re probably thinking to yourself, isn’t Clemens’ testimony before congress also hearsay, and therefore inadmissible?  Well, no.  As an exception to the hearsay rules, generally, former testimony of an individual is admissible, so long as the testimony was provided under certain conditions.  Additionally, an admission by a party-opponent—i.e., a prior statement by a party (i.e., Clemens) offered as evidence against him/her—is also generally admissible.  As a result of the prosecution’s actions, the jury saw and heard evidence that (i) should not have been admitted; (ii) was certainly prejudicial to Clemens; and (iii) would have likely prevented the court from providing Clemens a fair trial.  What’s more, the prosecution had already been informed by Judge Walton that it could not call Pettitte’s wife as a witness because she never actually spoke with Clemens.  Her testimony would lack credibility because she would be providing a perception of Clemens based solely on hearsay!

Nonetheless, stay tuned.  These prosecutors may get another bite at the apple.  Should Judge Walton determine on September 2nd that a new trial would not violate Clemens’ protection via double jeopardy, we could watch these same bumbling idiots present the same case before the court and this country in a couple months.  Sigh…

Weekly Correction – James Harrison

One of the best things about covering sports media, image, law, and pr is that you never have to search too far for a story.  And some days, you get an athlete who gives you a mushball straight down the middle of the plate.  This week’s “Weekly Correction” goes to Steeler’s Linebacker James Harrison who decided to take on Commissioner Roger Goodell, his teammates, his opponents, and several broadcasters in an interview in this month’s Men’s Journal.

He then topped off his offensive and over the line quotes by posing for the picture you see above.

For those of you not familiar with James Harrison, this isn’t the first time he and Roger Goodell have butted heads.  In fact, this outburst is just another step in an ongoing feud.  Harrison came under fire from the Commish in 2010 for several late and violent hits – and was fined a total of $120,000, for which Harrison publicly questioned why he was being singled out.

In this latest interview, Harrison took things a step further by calling Goodell a “crook” and a “puppet” and stating that if “he (Goodell) was on fire and I had to piss him out, I wouldn’t do it”.  Harrison went on to call Goodell “stupid”, a “dictator” and even threw in an anti-gay slur for good measure.

But James was just getting started.  After going after Goodell, he trashed his own quarterback, Ben Roethlisberger, claiming that even though he gets paid like Peyton Manning, he isn’t as good.  And that the defense had to bail him out in last year’s Super Bowl for his interceptions.

Since taking on the Commissioner and his own team wasn’t enough, Harrison then went after Steelers rival the New England Patriots, accusing them of using stolen signals to beat the Steelers in the 2004 playoffs.  (There is evidence that the Patriots were taping practices of some teams during that season and were using it to their advantage).

He singled out Texans LB Brian Cushing for being “juiced” and called out broadcasters Tedy Bruschi and Rodney Harrison (both former Patriots) for being “clowns”.

I guess James didn’t have time to call out the fans or the owners of the Steelers, because they are pretty much the only people left to criticize who are associated with the NFL.

Now Harrison has always been known as a bit of a hothead, but this is on a whole different level.  This wasn’t a spur of the moment postgame quote or two.  This was a pre-meditated attack on his team, the commissioner, and the league in general.  There really is no excuse for it, and unless Harrison can prove he was misquoted (highly unlikely), it’s going to be nearly impossible for him to walk himself out of this.

An apology might help, but it likely won’t accomplish much since this was pre-meditated in a sit down interview.   Although personal apologies and explanations to any teammates he offended are probably in order.  And likewise, since the author of the article probably used a tape recorder, Harrison will face an uphill battle claiming that this was merely a misquote – especially when so much of the interview was negative in nature.  It’s pretty clear that Harrison said these things.

The only thing Harrison can do now is lay low and hope that the lockout ends this week, which will remove his name from the headlines.  With news organizations starving for stories due to the NFL and NBA lockouts, this is sure to get plenty of coverage.

And for those athletes wondering what James Harrison should have done differently, I think it’s pretty obvious – don’t say stupid things, especially when you know you’re on the record.

But…if you’re going to insist on ripping the Commissioner, who has already shown he loves to take large portions of your paycheck, then may I suggest that you don’t also rip the guys who would usually defend you in these situations, your teammates.  Don’t look for Ben Roethlisberger or Rashard Mendenhall to lobby on your behalf anytime soon.

But…if you insist on taking on the Commish and your teammates, you probably should avoid angering and disrespecting your opponents.  Given that you may have angered enough teammates to earn yourself a one way ticket out of Pittsburgh, you never know when “cheating opponents” may soon become new teammates.

But…if you insist on laying into the Commish, your teammates, and your opponents, it’s probably not a good idea to rip the broadcasters.  When the Commish, your teammates, and opponents are all placing your picture on a dartboard, you may not find another team to play on and may be looking to join the broadcast booth sooner than you think.  Something tells me the “clowns” you mentioned won’t be eager to give you a glowing recommendation to executives at their respective networks.

But…if you insist on burning bridges with the team, the opponents and the networks, you might want to avoid posing for a picture shirtless holding two handguns.  Especially given that NFL Receiver Plaxico Burress just left jail for a gun related incident, and NBA Guard Gilbert Arenas was suspended for the majority of the season for possession of handguns.  It’s pretty clear where the league stands on guns, James, and it is not exactly enthusiastically supportive.

I’m not sure there is a way for Harrison to spin this into anything positive.   The only remedy is to keep his mouth shut and hope it goes away.

Weekly Correction – Chad Ocho Cinco

Ocho Cinco: The Man, The Legend

It’s that time of the week again when THIRDandFOUR highlights an athlete who would have benefited by consulting our website prior to painfully stumbling before either the media, a professional team or college program, a professional league, an officiating crew, and/or similar individuals and entities.  Welcome to Weekly Correction—the Ocho Cinco addition.

Because we consider Ocho Cinco such a unique individual, today’s edition of Weekly Correction is somewhat of an aberration.  Instead of providing Ocho advice as to how he should have approached the media in one of his recent television interviews, we will push him to answer the most critical question regarding his career: what do you really want to do?!?

Ocho takes on Dancing With The Stars

The Cincinnati Bengals’ veteran wide receiver Chad Ocho Cinco certainly has enjoyed an above-average NFL career since exploding into the league in 2001.  From 2002 through 2007, he averaged per season 1,339 receiving yards and 8 touchdowns, leading the Bengals to the AFC North division title in 2005.  Since then, however, he has been the “King of Distractions,” while his performance on the football field has noticeably declined.  Though he logged 1,047 receiving yards in 2009—a year in which the Bengals won the AFC North title—he has averaged a mere 806 receiving yards and 5.7 touchdowns over the last three seasons.

Ocho's tryout with Sporting Kansas City

While Ocho has been anything but stellar as a wide receiver for the Bengals during this time period, he has successfully “caught” every non-football challenge thrown his way. Over the past four years, he has starred in the VH1 dating show The Ultimate Catch; raced and beat (with a head start) a professional horse at River Downs Racetrack in Cincinnati, Ohio; starred in ABC’s Dancing with the Stars; tried out for a spot on Kansas City’s Major League Soccer team Sporting Kansas City; rode a bull for 1.5 seconds at a Professional Bull Riders event in Georgia; and driven a racecar at 190 mph on a NASCAR track in Atlanta with Sprint Cup driver Jeff Burton.  Oh, and I shouldn’t forget to mention, in August 2008, Chad Johnson—number eighty-five for the Cincinnati Bengals—legally changed his name to Chad Javon Ocho Cinco in Broward County, Florida.  Get it: eighty-five translates to ocho cinco in Spanish.  Wait, what?  No, it doesn’t.

Dhani Jones

Anyway, I will momentarily digress: You are probably thinking, Ocho Cinco is not the first Bengal to tackle alternative sports during the NFL offseason.  You’re right; linebacker Dhani Jones stars in the Travel Channel’s show Dhani Tackles the Globe, which began airing in 2009 and features Dhani attempting to excel at sports that define cultures in different countries around the globe.  Dhani has taken on the ancient martial art of Pradal Serey in Cambodia; dragon boat racing in Singapore; cricket in Jamaica; polo in Croatia; and rugby in England, just to name a few of his adventures.  In an attempt to show that the love of sports is universal around the globe, Dhani immerses himself in the culture of the countries he visits.  He creates an educational experience for the Travel Chanel viewers, himself, and the individuals who live in the countries he visits.

Thus, Dhani is a true example of what THIRDandFOUR strives to foster: a professional athlete who is dedicated to his sport, yet aspires to create a professional image that will make the transition from football to his subsequent desired profession seamless.  From July through January/February, Dhani dives headfirst into the NFL season.  However, during the offseason, Dhani is, among other things, a television personality for the Travel Channel; a guest correspondent for ESPN2 and the NFL Network; and a writer for Page2 on ESPN.com.   Dhani runs a high-end bowtie company and occasionally serves beverages and food at his Bowtie Cafe in the historic Mount Adams neighborhood of Cincinnati.  Moreover, he writes books; on June 7, 2011, Dhani released his first book The Sportsman: Unexpected Lessons from an Around-the-World Sports Odyssey.

Now, I bring you back to your regularly scheduled programming on OCNN—the Ocho Cinco News Network.  On June 30, 2011 following Ocho Cinco’s recent NASCAR event, he participated in an ESPN interview on Sportscenter Express, where he opined about his upcoming challenge.  There, he informed us that he will make the trip to Okeechobee, Florida in the coming weeks to “catch a couple of gators.”  When asked, “are you really going to try to wrestle live alligators,” Ocho Cinco confidently responded, “have I ever steered you wrong any other time?  If I say I’m going to do something, I’m going to do it…  Wait and see what’s after the alligators.  I mean, if I get hurt—lose an arm—I can always be the kicker for the Bengals.”

Ocho Cinco’s June 30th announcement validated two things: (i) he is a living, breathing marketing ploy; and (ii) his marketing exploits do nothing to further either his professional football career or his seamless transition from football into another profession.

Indeed, Ocho’s offseason adventures cause people to take notice.  However, most individuals—including those involved with the Bengals organization—take notice and cringe.  First, most recently, Ocho Cinco has done everything possible to void his NFL contract with the Bengals.  Should he lose an arm wrestling alligators in the coming weeks, I’m pretty confident the Bengals won’t reserve a spot for him on the roster as a kicker (See former Chicago Bulls star Jay Williams and his non-existent basketball career following his 2003 motorcycle accident).  Second, unlike Dhani Jones, Ocho has not been selective about the avenues through which he markets himself professionally.  For the lack of a better term, he’s been all over the place.  He has failed to show that he is qualified to excel in alternative professions.

In sum, keep it coming, Ocho!  Sleep in a bed of snakes.  Take on Wladimir Klitschko…I’m pretty sure you can connect more punches than David Haye.  Swim with the sharks.  Shucks, juggle balls, while riding a unicycle and breathing fire!  I think it’s safe to say, Barnum and Bailey Circus will reserve a spot for you on their roster.