Archive by Author | keithpedraniartherlaw

Why Tony Stewart Will Not Be Charged

By now, most have heard of the tragic incident at the Canandaigua Motorsports Park.  Most have seen the chilling amateur video.  For those that have not, a sprint car driven by NASCAR driver Tony Stewart struck and killed another driver, Kevin Ward Jr.  Ward exited his sprint car after crashing into the wall and walked out on the track screaming and pointing at Stewart.  The car in front of Stewart narrowly avoided Ward, but unfortunately Stewart’s back right tire struck and killed Ward.  In the aftermath of the tragedy, one of the main questions being asked is whether or not Stewart will or should face criminal charges.  Up to this point, Ontario County Sheriff Phillip Povero has made it clear there is insufficient evidence to charge Stewart with any crime.

Hopefully Mr. Povero maintains his stance and is not swayed by those pointing to Stewart’s past temper tantrums and aggressive driving tactics as evidence of criminal intent.  The video of the incident is being followed on many stations by footage of Stewart throwing his helmet or shoving a photographer.  Though juvenile, these past outbursts of anger hardly paint the picture of a murderer.  This is not to say Stewart is a model citizen or intended to suggest he is not aggressive on the track.  Stewart has caused his fair share of wrecks in various races throughout his career while trying to get ahead of other drivers.  He even admitted to causing a fifteen car accident in 2013 that left nineteen year old driver Alysha Ruggles with a compression fracture in her back.  But such wrecks are a danger inherent in the sport of racing and Stewart’s part in them should not be taken to suggest he would hit a driver outside of his car with the intention of injuring or killing the driver.  Even in the heat of competition, I do not believe Stewart would act in such a way.

To the same point, I hope Povero takes the accusations of Ward’s friend Tyler Graves for what they are: the angry words of a man who just lost a friend.  Graves accused Stewart of targeting Ward and hitting him on purpose.  Graves claimed that at the very least Stewart was trying to scare Ward by driving close to him.  Despite Stewart’s aggressive nature on the track and occasional outburst, there is hardly anything in his past behavior or in the video footage of the incident to suggest this was in fact the case.

Unless other drivers come forward and corroborate Graves’s account or something as to this point unseen in the video does, there will be no way to charge Stewart with any crimes where intent must be proven.  This takes murder in the first degree and manslaughter in the first degree off the table.  Manslaughter in the second degree would require proof that Stewart acted recklessly by driving the way he did.  According to the Model Penal Code, “a person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.  The risk must be of such a nature and degree that, considering the nature and purposes of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”  Essentially what this means is to charge Stewart with manslaughter in the second degree the prosecution would either have to prove he was in fact trying to scare Ward or that a person similarly situated would have acted differently to avoid hitting Ward.

Both of these would be difficult to prove, especially considering Ward created the situation by exiting his car and walking out on to the track.  Further, the track was not well lit and the car just ahead of Stewart avoided hitting Ward by a narrow margin.  The prosecution would be hard pressed to find a person more similarly situated than the driver ahead of Stewart.  The only realistic way a charge of manslaughter in the second degree would stick is if the prosecution could establish Stewart was in fact trying to scare Ward by driving close to him.  They likely will not be able to establish this and I do not believe that was his intent, but if they could establish this intent the more logical charge would be murder in the second degree.

Stewart intentionally driving close to Ward to scare him and then killing him instead would be enough to at least charge Stewart with second degree murder.  This would establish Stewart acted with a depraved indifference to human life.  There is no evidence other than Graves’s words of such an intent, and Stewart almost certainly will not be charged with any of the offenses discussed above.  The only possible criminal charge that may come from all this is one of negligent homicide.  There is no intent requirement for this charge, but the prosecution would have to prove Stewart’s negligent driving caused Ward’s death.  After watching the video more times than I ever wanted to, I believe Stewart reacted the best he could in the moment and I do not believe there is any evidence to support a charge of negligent homicide.  Povero has echoed this sentiment in every public statement since the incident.  Recently, Povero stated, “We have reviewed the investigation to this point with the Ontario County district attorney.  At this very moment, there are no facts in hand that would substantiate or support a criminal charge, or indicate criminal intent on the part of any individual.”

Stewart may be sued civilly for wrongful death by Ward’s family and the outcome of such a suit is much harder to forecast.  My instincts tell me any suit of that nature would be settled quickly for an undisclosed amount.

Ward’s death was undoubtedly tragic, but he exited his car and ran out on to the track.  Drivers are supposed to remain in the car unless it is on fire after a wreck.  Period.  Stewart may be a hot head, but he is not a murderer.  Hopefully, this tragic event prevents the next guy from exiting the car.  Trying to blame Tony Stewart, however, just does not make any sense.

 

-Keith Pedrani

 

Sources:

http://www.washingtonpost.com/blogs/early-lead/wp/2014/08/10/no-criminal-charges-pending-against-tony-stewart-at-this-time-sheriff-says/

http://www.si.com/racing/2014/08/10/tony-stewart-kevin-ward-legal-ramifications

http://wps.prenhall.com/wps/media/objects/13023/13335893/downloadables/model_penal_code_sel_sec2.pdf

http://www.nydailynews.com/sports/more-sports/nascar-champion-tony-stewart-hits-driver-reports-article-1.1898395

http://espn.go.com/espn/print?id=11340370&type=Columnist&imagesPrint=off#

http://www.cnn.com/2014/08/10/justice/tony-stewart-hits-driver/

 

Was Ray Rice’s Punishment Fair?

I’ll preface this all by stating Ray Rice’s actions were unacceptable and I am in no way defending them or Rice.  The purpose of this post is to examine whether or not Rice’s punishments from the Atlantic County Prosecutor’s Office in New Jersey and the National Football League, respectively, were appropriate.  The former originally charged Rice with third-degree aggravated assault of his then fiancée now wife Janay Palmer.  Had Rice been convicted of the felony charge, he could have faced three to five years in prison and a fine of up to $15,000.  Instead, Rice pleaded not guilty and subsequently applied for a pretrial intervention program to avoid formal prosecution.  Rice was accepted into the program and will avoid jail time upon successful completion of the programs requirements and could possibly have the charge expunged in the near future.  If Rice does not meet the requirements, the charges will come back in full force and this alternative will not be available.  This is important to keep in mind, as Rice has been given the opportunity to avoid jail time but the possibility is not extinguished.

This may seem lenient, but there were mitigating factors the court likely considered in deciding whether or not to accept him into the pretrial intervention program.  Rice had no criminal record, does a considerable amount of charity work, and began counseling with Palmer immediately following the incident.  Palmer remaining with Rice after the incident and subsequently marrying him also likely helped to illustrate this was abnormal behavior for Rice and not one in a pattern of violent episodes.  Given these circumstances, I believe even if Rice was not a famous athlete he would have been given the same opportunity to avoid a conviction and jail time.  The justice system is typically lenient on first time offenders, and especially those with a chance of rehabilitation without incarceration.  Had this not been Rice’s first brush with the law and Palmer indicated the incident was not an aberration, the results likely would have been much different.

This week, the National Football League announced Rice would be suspended two games and forfeit a paycheck for a third game he will be able to play in.  There has been considerable outcry that the punishment is too lenient, with many claiming it sends the message that commissioner Roger Goodell and by extension the League does not take domestic violence seriously.  I disagree, and think Goodell made the right choice in light of all the circumstances.  As the court in New Jersey considered mitigating circumstances, it is likely Goodell considered the same if not more.  Palmer went with Rice to meet with Goodell, something she clearly did not have to do, and while no one knows exactly what was said in the meeting it seemed to sway Goodell to err on the side of leniency.  Goodell also likely considered Rice’s work with anti-bullying programs in Baltimore and that he has never had to reprimand Rice for anything in the past.  Alternatively, Goodell may have just thought a two game suspension and a third without pay was punishment enough.  I understand two games doesn’t sound like a lot, but in the NFL it is just over 12% of the season.  The suspension is equivalent to a twenty game suspension in Major League Baseball or a ten game suspension in the National Basketball Association and the National Hockey League.  Further, Rice is losing over $700,000 in salary (nearly 18% of his total salary for the season) as a result of the punishment.  For a first time offender, I truly do not think this can be called a joke of a punishment or one that is far too lenient.  I do not believe this sends the message that the league does not take domestic violence seriously.

Many critics of the punishment are pointing to Goodell’s harsher punishment of players like Josh Gordon and Justin Blackmon as evidence that the league takes a stronger stance against illegal drugs than it does against domestic violence.  The comparison is simply not apt or fair.  The league has a stated drug policy and there are set penalties for violating it.  Of course, Goodell reserves the right to adjust these penalties when necessary and has been tough on repeat offenders like Gordon and Blackmon.  There are no set penalties for domestic violence and I do not believe there should be.  Each situation is unique and I think Goodell is better served addressing these situations as they arise.  Drugs are much more black and white than domestic violence: player tests positive or he does not, is arrested for possession or consumption or he is not.  Domestic violence can encompass a myriad of incidents varying greatly in severity and attempting to standardize punishments for charges that are not for standard incidents would be tedious and counterproductive.

Further, to compare Rice’s situation to those of Gordon and Blackmon is comical.  Gordon was suspended indefinitely in College for marijuana use, tested positive for marijuana in 2013 and was suspended by the NFL for two games only to test positive again less than a year later.  This triggered a full season suspension and then Gordon was arrested for driving while impaired shortly after the second positive test.  Only recently has Gordon checked into rehab to address his drug problem.  He has been a repeat offender and did not correct his behavior after receiving a lenient initial punishment.  Blackmon was arrested for driving under the influence twice in college, twice tested positive for illegal drugs in the NFL and while on indefinite suspension for these infractions was arrested for possession of marijuana.  Like Gordon, Blackmon never seems to learn and has not even checked himself into rehab.  Rice immediately went to counseling and apologized for his actions following the incident and every step he has taken since has been the right one.

This is not to say Rice is a saint.  What he did was deplorable.  However, this is the first time he has made a mistake like this or of any kind (at least publicly) and he deserves the chance to rehabilitate himself without having the proverbial book thrown at him.  To compare him, after his first offense of anything, to guys who have been punished for repeated offenses of different league policies and laws is inappropriate.  I believe Ray Rice has been punished fairly by both the judicial system and the NFL.  Hopefully, Rice does not follow the missteps of Josh Gordon or Justin Blackmon and takes advantage of his opportunity get back on the right path.

-Keith Pedrani

 

 

Sources:

http://www.rotoworld.com/player/nfl/4645/ray-rice

http://www.inquisitr.com/1372592/ravens-rb-ray-rice-suspended-for-2-games-after-elevator-assault-on-wife/

http://espn.go.com/nfl/story/_/id/11257934/justin-blackmon-jacksonville-jaguars-arrested-marijuana-possession

http://www.foxsports.com/ohio/story/cleveland-browns-josh-gordon-nfl-appeal-one-year-suspension-on-august-1-072414

http://www.usatoday.com/story/sports/nfl/ravens/2014/07/24/ray-rice-suspension-baltimore-janay-palmer/12783281/

 

Sports Betting in New Jersey: Dead or Alive?

The United States Supreme Court refusing to grant certiorari to New Jersey’s appeal of two lower court rulings maintaining the sports betting ban in the state is not stopping some proponents.  Last week, just a few days after the decision, State Senator Raymond Lesniak proposed a bill aimed at allowing privately run sports betting at horse-racing tracks and casinos.  The measure would repeal New Jersey state laws and allow companies to offer sports betting without state regulation.  This would not violate federal laws because they only prevent states from licensing or regulating sports betting (with the exceptions of Nevada, Delaware, Montana, and Oregon).  States can allow betting to occur unregulated if they choose to do so.  The bill passed through the state Senate and the Assembly with ease (38-1 and 63-6-2 respectively) and could prove to be an important step towards legalized sports betting in New Jersey.

However, critics of this tactic are unconvinced the federal government will not interfere with what some perceive to be an attempt to circumvent federal law.  Further, and more concerning in the immediate future, is Governor Chris Christie may not sign the bill into law.  After the Supreme Court’s decision, Governor Christie commented, “It’s always a long shot to get certiorari from the United States Supreme Court . . . that’s the way it goes.  They said no, so we have to move on.”  This could be interpreted as Christie moving on to a new way to legalize sports gambling, but the more likely scenario is that Christie wants to focus his energy elsewhere and distance himself from a public defeat.  If the governor still has White House aspirations, and it’s clear he does, then moving on from this issue would likely be in his best interest.

Still, it is not entirely out of the question that Christie could get behind this attempt to bring legalized sports betting to New Jersey.  If he did sign the bill into law there would be a myriad of questions, but perhaps none more important than how it would help the state financially.  The driving force behind the legalization effort from the onset has been to generate revenue for the state of New Jersey.  If the state allows private companies to offer sports betting without having to be licensed and regulated, the money would have to flow to the state in ways other than licensing fees and built in charges for government regulation of the industry.  One way could be in increased tax revenue from the companies and patrons, but without state regulation it may be prove challenging to keep accurate account of the money moving between patron and businesses.  Without regulation, it is also unclear how patrons would be protected from predatory lending practices, unfair odds, and unethical debt collection or payout practices.  There are many factors indicating the state would be inviting more problems than revenue if they allow private businesses to provide sports betting without any regulation.  The increased amount of money in law enforcement man hours would be enormous to deal with these types of problems.  Without a need for a license or any state regulation, there would not be much motivation for business owners or patrons to obey the letter of the law with respect to declaring wins and losses.

In other words, circumventing the federal law this way would probably not produce anything close to the expected financial windfall that would have accompanied government regulated legalized sports betting in the state.  For the sake of a fading Atlantic City and the state, I hope legislators can figure out a way to make money from sports gambling.  This bill could very well be the start of that, though it seems unlikely.  The movement towards legalized sports betting in New Jersey may still be alive for the moment, but it certainly seems to be on life support.

-Keith Pedrani

Information from the following sources were used in this article:

http://www.nj.com/politics/index.ssf/2014/06/nj_legislature_passes_bill_to_pave_way_for_private_sports_betting_operations.html

http://www.nj.com/politics/index.ssf/2014/06/us_supreme_court_allows_sports_betting_ban_in_nj_remain.html

 

 

 

Hail To The….?

On June 18th, the United States Patent and Trademark Office cancelled six trademarks belonging to the Washington Redskins on the grounds that the trademarks were improperly granted because the trademarked term was and is disparaging to Native Americans…again.  The same Trademark Trial and Appeal Board ruled this way in 1992 only to have a federal court determine on appeal the plaintiffs lacked standing to bring the suit in the first place.  Robert Raskopf, trademark attorney for the Redskins, stated after the ruling “the Trademark Trial and Appeal Board’s divided ruling will be overturned on appeal.  This case is no different from an earlier case where the Board cancelled the Redskins’ trademark registrations, and where a federal district court disagreed and reversed the Board.”  The lone dissenting board member also pointed out the evidence is the same as the last case, and as in the last case should have been held insufficient to support cancellation.  Still, this initial decision is being lauded by activist groups, Native Americans, and politicians who have been pressuring Redskins owner Daniel Snyder and National Football League commissioner Roger Goodell to change the team name for years.

Even if the decision stands, and given previous history it likely will not, the ruling would not force Snyder to change the name.  The Redskins would be able to remain the Redskins.  However, the value of the right to produce Redskins merchandise would take a substantial hit if the decision stands.  Sports business scholar Marc Edelman has said “the team will face increasing challenges moving forward in preventing others outside the United States from making merchandise bearing their team name and logos, and as a result may face a more difficult time licensing the rights to use their name and logos to third parties, such as apparel manufacturers.  Even if apparel manufacturers are indifferent to the social issues related to the use of Washington D.C.’s football team’s name, they may still be reluctant to pay the same amount to license the rights to use logos out of fear that it would be more difficult to enjoin unlicensed third parties form also using those marks in a competing way.”  The team would still be able to pursue action against unlicensed third party producers via state statutes but this would be difficult, costly, and tedious without the trademarks.

The Redskins will not be alone in having to deal with the economic consequences of the permanent loss of their trademarks.  The Redskins and every other NFL team except the Dallas Cowboys pool and split all merchandise revenue.  The Redskins contribute roughly $145 million to the estimated $9 billion total.  This means every team except the Cowboys receives approximately $290 million per year in merchandise revenue.  If Snyder decides to keep the Redskins the Redskins even if the decision stands, as most believe he will, other owners are sure to be upset by the potential loss, at least initially.  For the sake of argument, let’s pretend the decision stands and Snyder keeps the team name.  Even if Redskins merchandise revenue declines 50% (which is likely an overestimate) to $72 million and as a result the total merchandise revenue falls to $8,928,000,000, each team would still receive roughly $288 million.  I’m not dismissing the significance of $2 million per team, but with these figures it is hard to argue this would be a deal breaking amount of money.  How far would fellow owners really be willing to go over $2 million a year in shared revenue against the owner of the league’s third most valuable franchise?  Perhaps when the revenue sharing agreement is re-negotiated, they can protect themselves from situations like these, but as it stands now it does not appear the revenue sharing agreement provides other owners with much recourse.  Further, for the Redskins, taking the $2 million hit this way might make sense because renaming and rebranding the team has an estimated cost of anywhere from $10-20 million.  Granted, this cost could be offset by the team having unhindered trademarks on a new team name and ostensibly maintaining sales.

Daniel Snyder has an estimated net worth of $1.2 billion and the Redskins franchise is worth $1.7 billion.  FedEx Field will be sold out every game this season regardless of what the team name is.  The franchise will still get their share of television revenues.  Should the decision stand, Snyder could afford to keep the team name if he wants to and thanks to the revenue sharing agreement, other teams will help him (whether they like it or not) bear the cost.  Wednesday’s decision by the Trademark Trial and Appeal Board may have seemed like an important victory for those pressuring Snyder to change the team name, but even if the decision stands the name may as well.

-Keith Pedrani

 

Information from the following sources was used in this article:

http://www.ibtimes.com/redskins-name-trademark-canceled-whole-nfl-could-lose-millions-1605022

http://money.cnn.com/2014/06/18/news/companies/patent-office-redskins/

http://www.washingtonpost.com/local/us-patent-office-cancels-redskins-trademark-registration-says-name-is-disparaging/2014/06/18/e7737bb8-f6ee-11e3-8aa9-dad2ec039789_story.html

http://www.forbes.com/profile/dan-snyder/

The NCAA’s Collapsing House of Cards

The question is no longer if, but rather when and how college athletes will be compensated beyond scholarships.  Though it is a complicated issue, two factors indicate change is coming sooner rather than later. The recent settlement of the Keller and O’Bannon lawsuits against Electronic Arts, though important, are not what I am referring to.  I am referring to Judge Claudia Wilken and Jeffrey L. Kessler.  Judge Wilken is the federal judge presiding over the O’Bannon anti-trust lawsuit against the National College Athletic Association and Mr. Kessler is a labor attorney who filed an anti-trust suit against the NCAA in March directly challenging the economic model of the organization.

Essentially, Kessler’s lawsuit seeks to allow current college athletes to become free agents and negotiate for their compensation as such.  Kessler is widely credited with ushering in the modern era of free agency in the National Football League.  Kessler’s suit could prove more problematic for the NCAA if successful because they will lose almost all control over how athletes are compensated.  Further, schools paying more for athletes will likely want to restructure agreements with the NCAA (like television contracts) to limit the impact on their bottom line.

This type of change seems inevitable, with the traditional arguments being shut down by critics, attorneys, and most importantly, judges.  Though the NCAA still clings to them, as anyone would holding onto a golden goose, they no longer make too much sense.  Usually, the NCAA first goes with the paternalistic argument.  They claim an education is enough compensation and paying their athletes would corrupt them.  The reality, however, is that graduation rates for athletes in the big money sports (football and men’s basketball) are abysmal and their classes are either a joke or non-existent (just ask Rashad McCants, who accomplished the admirable achievement of Dean’s list without ever setting foot in a classroom at UNC).  To the second point, if the money would corrupt them at the time, then the teams and the NCAA could easily put the money in a trust fund the “student” athletes could not access until their playing days were over.  When this easy fix is pointed out, the NCAA then goes to the Title XI defense, asserting that “paying players . . . would inevitably lead to the elimination of non-revue sports”.  Why the NCAA’s Title XI excuse no longer works, Kevin Trahan. Judge Wilken’s, however, has seen through this argument in the O’Bannon case and ruled they cannot use the argument.  Wilken stated the NCAA “could mandate that Division I schools and conferences redirect a greater portion of the licensing revenue generated by football and basketball to these other sports.  The NCAA has not explained why it could not adopt more stringent revenue-sharing rules”.  Id.  There is a good reason they haven’t: because there isn’t one.  The NCAA is trying to claim they would be unable to govern revenues and in the same breath claim to have oversight of its members.  This did not fly with Judge Wilkens, and if O’Bannon eventually prevails the precedent could prove incredibly helpful to Kessler’s suit.  Kessler has the experience, expertise, and the financial resources to litigate what is sure to be a long legal battle.  The NCAA surely will not allow this without a fight, but it certainly seems they will be on the losing end.

 

Update coming soon.

-Keith Pedrani