The California Labor Commission ruled that Uber driver, Barbara Ann Berwick, is an employee as opposed to a contractor. If this ruling is applied to all Uber drivers this could potentially mean higher costs for the app-based taxi service, including extra costs such as social security and unemployment insurance. Ms. Berwick will be awarded more than $4,000 of expenses. The award includes reimbursable business expenses such as tolls, parking citations, mileage, legal fees and interest.
Uber states that the ruling only applied to this one driver and will not affect other Uber drivers. Five other US states have ruled Uber drivers as contractors. Uber is appealing against this ruling for Ms. Berwick.
Uber drivers have complete flexibility and control. They have the ability to earn their living from multiple sources including other ride sharing companies. The drivers also pay for their own cars, insurance, gas, tolls and general costs of operating and are paid 80% of each fare.
Uber is currently operating in more than 50 countries and is worth an estimated $50 billion making it one of the world’s most valuable start-up companies.
The New York Appellate Division, Second Department in Brooklyn ruled that 31 year old Cesar Vargas of Dream Action Coalition (DRM), an undocumented immigrant who came to the United States as a child, is eligible to practice law in the state. Federal law prohibits undocumented immigrants to become practicing lawyer unless there is a state law that allows it. The ruling is the first favorable action in New York that has allowed undocumented immigrants to practice law in New York. This ruling only applies to those who are enrolled in the Deferred Action Childhood Arrivals, which aims at helping those who came into the country illegally as children and are under the age of 30 in 2012.
Cesar Vargas was brought to the United States from Mexico by his mother at the age of 5. He qualified for a renewable two-year amnesty through the government program Deferred Action for Childhood Arrivals. Vargas passed the state bar exam after attending New York City public schools, St. Francis College in Brooklyn and CUNY Law School. He is an advocate for reforms to immigration laws. The Appellate Division found that Mr. Vargas met all the qualifications necessary to get a law license, including meeting the good character and general fitness requirement for the NY bar admission.
The Obama administration argued in a brief submitted by the Department of Justice that Vargas was forbidden from obtaining a license by the Personal Responsibility and Work Opportunity Reconciliation Act. However, the New York’s attorney general also supported giving Mr. Vargas a license.
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.
Lindsey Lohan can’t seem to escape the law, but this time she is heading back to the courtroom where she is the one pursuing the lawsuit. Lohan is suing the makers of Grand Theft Auto for using her “likeness” in the video game’s fifth installment. In her suit, she alleges that the creators based one of their characters, Lacey Jones, on Lohan, without gaining her permission. According to a Forbes article, Lohan stated that the creators incorporated her voice and image, by using Lohan’s fashion line, including similar hats, hairstyles, sunglasses, and jean shorts. The game’s minor character is described as a famous actress who complains about fame and reveals that she is anorexic (Lohan has admitted to having in an eating disorder in a past interview with Vanity Fair). It also features a hotel named the Gentry Manor, a hotel based on a real Los Angeles hotel where Lohan lived for a time.
Like Lohan, many celebrities, and even athletes, use right of publicity laws to prevent others from profiting on unauthorized uses of their names or likeness. In Re NCAA student-Athlete, a college football player sued EA for right of publicity and false endorsement under the Lanham Act for using his image, including his same height, weight, skin tone, hair color, home state, and play style (In Re NCAA Student-Athlete Name & Likeness Litigation 724 F.3d 1268 (9th Cir. 2013) In this case, the Ninth Circuit used a transformative test to see whether the avatar was sufficiently different to obtain 1st Amendment protection. This test, also used in the Third Circuit, looks to whether the new work added significant creative elements so as to be transformed into something more than the original work. The court held that the video game creators replicated the player’s likeness and in doing so, the company sought to “capitalize on the respective fan bases for the various teams and players” knowing that “consumers enjoy and, as a result, purchase more EA-produced videogames as a result of the heightened realism associated with actual players” (In Re NCAA at 1272).
Right of publicity laws were created to allow a person to control the use of his or her image, and generally, video games get a high level of protection because they are works of entertainment. In order for Lohan to prevail, she needs to prove that the Grand Theft Auto creators profited by clearly using her image in a non-parody way, without adding any form of expression. It seems to me that she will have trouble convincing the court that she has been blatantly exploited by the game’s creators.
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.
Germany has emerged victorious for the 4th time in the nation’s history, and first since 1990. They have accomplished what many work their entire lives for, and a select few actually achieve. Now that the drama on the field has concluded, the off the field drama that was hushed during the month long tournament have resurfaced. Accusations that bribery was at the heart of the 2010 decision to award Qatar, a nation with no history of soccer, no national league, and summer temperatures that hover above 110 degrees, began when the Sunday Times reported that Mohamed bin Hamman had distributed $5 million from a slush fund to various soccer officials around the world. Bin Hamman has since been banned from soccer for life, giving more credibility to the accusations, but a full investigation is being conducted by Michael Garcia, and ex-prosecutor from the United States charged with uncovering any corruption in the Qatar 2022 decision as well as the Russia 2018 bid. However, the investigation might never have taken place if not for the pressure of some extremely familiar names. In the coming weeks and months we will see just how much pressure they can apply, and just how far FIFA is willing to be pushed.
With a report near submission, FIFA announces confidentiality, for now.
FIFA has announced that they will not be releasing the details of the report Michael Garcia is set to provide them at the end of this month, only the decision that it renders based on the extensive corruption investigation. As a private international organization, they have no duty to make such records public and are exercising that right. However, it would seem that the same pressure they received to investigate these claims and have this report made in the first place, could put pressure upon the world soccer power to release the findings of the investigation.
The World Cup is one of the highest rated international television programs in the world. The unfortunate reality of this fact is that a lack of viewership is not a realistic threat that FIFA need worry about, however, lack of sponsorship is. We are seeing the current model of worldwide capitalism actually force an essentially unregulated enterprise into practicing self-accountability. FIFA has hired Michael Garcia to investigate these charges of corruption and bribery only after major sponsors such as Coca-Cola, Adidas, Sony, Hyundai, and Visa expressed their discontent with the accusations. Each company has publicly demanded that FIFA expose the corruption and remedy whatever fraudulent acts it uncovers.
Between these companies and FIFA, an estimated $1.5 billion dollars in revenue is received over EACH of the 4-year World Cup cycles.
Now that these corporations have successfully forced an investigation, what is to stop them from forcing FIFA to make the details of the report public? While there is no regulatory agency that has control over the soccer conglomerate, these companies have shown that there is power in numbers (especially when the number prefaced by a dollar sign) and that they have the ability to invoke serious change. It would be interesting to see if such power is used on other organizations, whether within the sporting world or elsewhere.
This is not the first time we have seen the corporate condemnation of a member of professional athletics. In 2010, on the heels of his very public divorce and admitted sexual deviance, Tiger Woods lost over $22 million dollars in endorsements from companies such as Gatorade and AT&T. While this is just an example of the many times that companies have shown that morality is linked to association with their brand, here we have a different breed of influence.
Although the benefits are easy to see, the negatives could be equally daunting. This is a lot of power to be giving unelected officials who sit on a board of trustees making decisions based 100% on finances rather than the benefit of the people (not to say governments do not do the same thing). If we see FIFA being compelled to make these reports public by these major corporations, then we might see the same such pressure across professional sports. Then again, completely dimwitted individuals do not run these organizations, which means they will be doing their absolute best to ensure such an investigation is never necessary. It will be interesting to see how the rest of this plays out and just how far their sponsors push FIFA before they are forced to make a decision to either break ties or concede to further demands.
In the meantime, all that can be done is to wait and see if the FIFA committee decides to overturn the decisions of Russia and Qatar in favor of less scandalous locations. For what it is worth, the United States was runner up to Qatar for 2022, and we already have the infrastructure to sustain such an event (as we proved in 1994), which Qatar is so obviously lacking.
Race Debate Continues
The 2013 Zimmerman trial (State of Florida v. George Zimmerman) was without a doubt one of the most racially charged trials of this decade. Zimmerman’s acquittal led to thousands of protests across the United States, many of which broke out into dangerous riots. Many black leaders even demanded that authorities pursue a civil rights case against Zimmerman, including the NAACP, one of the largest black advocacy organizations in the nation.
According to a Pew study, 62 percent of white Americans thought the trial focused too much on race, while 72 percent of black Americans thought race played a major role in the outcome and needed to be discussed. Now, about one year later after the Florida jury found Zimmerman not guilty on all counts, the race debate continues. This time, Zimmerman brought a suit for defamation against NBC, but the Florida judge ruled that he had no case because he failed to prove that the television network acted maliciously, a factor required to win a defamation suit involving a public figure.
Zimmerman argued that the network’s broadcasters made him appear racist with their edited version of his 911 Call that he made on the night of Trayvon Martin’s shooting. In 2012, NBC broadcasted excerpts of the call, which read: “This guy looks like he’s up to no good…He looks black.”
The full transcript of the call reflects that Zimmerman never volunteered that Martin was black, but was instead answering a question from the police dispatcher about the teen’s race. The unedited transcript read: “The guy, is he black, white, or Hispanic?” in which Zimmerman responded: “He looks black.”
Zimmerman stated that the edited version made his call seem racially motivated, and since the airing of the transcript, he claimed that he has been publicly ridiculed and harassed. NBC acknowledged the error and issued an apology to Zimmerman.
In order for Zimmerman to have prevailed on his defamation claim he needed to show actual malice because he is considered a “public figure,” (such as a celebrity or politician) a standard set in the New York Times Co. v. Sullivan, (1964). The judge presiding over the case stated that Zimmerman became a public figure after he shot Martin, and at the time of the aired transcript he was engaged in an extremely important case of public concern.
Under case law, public figures are held to a higher standard because they have assumed public roles and therefore have a greater opportunity to publicly defend themselves to defamation and libel claims. If Zimmerman was able to show that he was a private individual, he would have only had to prove negligence, a lower standard. Private individuals generally lack the resources to defended defamation claims and are therefore afforded greater protection by not having to prove actual malice.
Because Zimmerman was not able to prove that NBC acted in actual malice, his case was thrown out. Mere manipulation of the transcript was not enough to show that the network acted in way to intentionally hurt Zimmerman.
– Skylar Young