When: September 8, 2011 (9 a.m. – 5 p.m.)

Where: Locatelli Center, Santa Clara University (map)

Topics: Concussions (Keynote: DeMaurice Smith, Executive Director, NFLPA), Steroids (Keynote: Mark Fainaru-Wada, ESPN Investigative Reporter), Labor Strife (Keynote: William B. Gould, IV, former Chairman of the National Labor Relations Board), and the Use of Player Images (Keynote: Sonny Vaccaro, Former Director of Basketball Programs at Nike, Adidas and Reebok).

The Reception speaker will be William Neukom, Managing Partner, San Francisco Giants, and Jim Brown will be an honored special guest at the event.

Other speakers include:

• Dan Coonan, Santa Clara University Athletic Director
• Bill Duffy, CEO of BDA Sports Management
• Dan Rascher, University of San Francisco Sports Management Professor
• Retired NFL players Ben Lynch and Shawn Stuckey
• Mike Gilleran, Former WCC Commissioner
• Don Gralnek, General Counsel of San Jose Sharks
• Paul Haagen, Co-Director of the Duke Law School Center for Sports Law and Policy
• Andy Schwarz, Sports Economist
• Professors Kevin Greene, Lateef Mtima and Tyler Ochoa

Cost: Early registration (before July 1, 2011) = $125.  Regular registration = $175.  Deadline to register = August 25, 2011.  Free entry for all college students.  Register here.

2011 Santa Clara Sports Law Symposium from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Barry Bonds‘ trial has been well publicized and discussed.  From the news stories we hear Bonds’ mistress, Kimberly Bell, testify about his perceived steroid rage and the growing (and shrinking) parts of his body.  We hear Kathy Hoskins, Bonds’ former personal shopper testify that Greg Anderson, Bonds’ longtime trainer, injected Bonds with “a little something for when [Bonds goes] on the road.”  We also hear former Major League Baseball players, specifically the Giambi brothers and Randy Velarde, testify that they also had relationships with Anderson and knew he was giving them steroids.  We hear Michael Murphy, the longtime San Francisco Giants’ clubhouse manager, testify that Bonds’ hat size increased significantly from the time he began with the Giants until he retired.  All of this testimony was widely publicized … so how did they become evidence in this trial?

I hosted a seminar featuring Professor Marc Ginsberg at The John Marshall Law School in Chicago, regarding these issues in evidence. Obviously, the Rules of Evidence are much more complicated, with many more rules and exclusions and exemptions, but this will be a small primer.  What Professor Ginsberg brought to light was that in 2010 in U.S. v. Barry Bonds, the Ninth Circuit paved the way for how the Government was eventually going to try the most recent suit that led to Bonds conviction.  In the 2010 case, the Ninth Circuit ruled that the Government could not introduce into evidence the Bay Area Laboratory Co-Operative (BALCO) laboratory records that presumably linked Bonds, because there were no other reliable witnesses, other than Anderson (who refused to testify, sat in jail, and was considered an unavailable witness) who could lay a proper foundation for the introduction of these important records.  The Government needed to come up with another way to prove Bonds took steroids and lied about it … and it decided to introduce all of the testimony that we eventually saw played out on news stories across the country.

Evidence needs to be relevant in order to be admitted.  This means that if the thing you are trying to admit has any tendency to make the existence of a fact more or less probable, then it can be admitted.  However, some relevant evidence is still inadmissible if the “prejudicial value outweighs the probative value.”  What this means is that if the Judge finds that the piece of evidence helps prove the existence of a fact, then the Judge needs to decide whether that piece of evidence will be prejudicial.  Another important evidentiary issue that presented itself in Bonds’ trial is hearsay.  Hearsay is an out of court statement, in any form, offered in court to “prove the truth of the matter asserted” … unless there is an exception.  The prosecutors in Bonds’ matter were able to use those exceptions in order to get some of the major testimony admitted.

The prosecutors, through all of the testimony, attempted to show there was a deep connection between Bonds and BALCO; Professor Ginsberg ran through some of the evidentiary issues that the prosecutors encountered in order to do so.  Why was the other Major League Baseball players’ testimony relevant?  Because it would allow the jury, by inference, to piece together that Bonds had to be completely naïve if he believed he was not taking steroids supplied by Anderson, even though all of Anderson’s other clients testified they were supplied and took steroids.

What about Kimberly Bell’s, or Michael Murphy’s testimony?  Why would they be able to testify about parts of Bonds’ body and his anger?  As Professor Ginsberg addressed, this was admitted because witnesses can testify as to what they have seen; and Kimberly Bell saw certain body parts of Bonds getting smaller and bigger, and witnessed firsthand his anger.  Michael Murphy did not testify as to what effect steroids have on the size of Bonds’ head; he just testified that Bonds hat size grew.  This testimony does not go into what steroids do to a person’s body or to their personality, so it is not being presented for “the truth of the matter asserted” … but a doctor can (and did) testify as to what steroids do to an ordinary person’s body and personality.  The jury, again, can piece together all of Bonds’ actions with those actions of an ordinary person on steroids.  What about the secret recordings of Anderson, talking about detectability, or Kathy Hoskins’ testimony that Bonds told her his injection was “a little something for when I go on the road.”  Isn’t this hearsay?  Professor Ginsberg pointed out these pieces of evidence were admitted because an exception to the hearsay rule is “admission of party opponent,” and those statements were from Bonds directly, so they were admitted.  The recordings were admissible because Anderson is unavailable as a witness, and the previously recorded statements were against his legal interests because the statements dealt with illegal steroid use at the time of the recording.  Obviously, there were many more issues and much more testimony that was presented at the trial.  But Professor Ginsberg touched on some of the “highlights” of the trial and how this damning evidence was admitted.

Barry Bonds’ case has brought up many issues as it relates to the Rules of Evidence.  It also raises concerns regarding clients and their legal issues, as attorneys are very clever in gathering and admitting evidence.  Just how Bonds’ case plays out in the future (Appeal?  Another trial?) is yet to be seen.

Hard-Hitting Evidence in the Barry Bonds’ Trial: How They Got It In from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Former Connecticut HS phenom, SU stand-out and Super Bowl Champ, Tebucky Jones, filed suit against a former employer for not providing an accurate medical diagnosis with regards to his career ending injury. Mr. Jones alleged that the New England Patriots fumbled when they did not inform him he suffered a severe tear to his knee ligament against the Washington Redskins on Aug. 26, 2006, at Gillette Stadium.

Let’s take a step back for a moment. I have been trying to help athletes, agents and execs to understand the necessity for more professional attention to complete human performance management. You can not ignore the sign of the times.

Let’s take a quick look at what has transpired over the last few years in sports.

• The Performance Enhancement Saga in MLB involving many of the biggest names in the sport.
• The DNA personal privacy issues also with MLB regarding their young and not-so-young prospects from outside of the US.
• Several musical entertainers named as persons reportedly receiving shipments of either steroids or HGH.
• The Mitchell Report revealed what we already knew, but cost millions of public dollars for the government to research the prevalence of drug abuse in MLB.
• Dozens of high-profile athletes were indicted related to the BALCO scandal from professionals to Olympic athletes alike.
• Prize fighters from many different disciplines have tested positive for illegal performance enhancing drugs over the past few years.

The only sports still left un-touched are mainly golf and hockey. However, if you think any sport is completely clean, then you are unfortunately mistaken.

Now, let us get back to the business of Tebucky’s lawsuit. It is not the first lawsuit of its kind, but it possesses the potential be the biggest. The Sporting World, much like the real world, is at a critical turning-point in history. The environment is heating-up and it is only a matter of time before we have a major meltdown.

How much involvement do these issues require of the government? Will we get a resolution to move forward for all parties concerned if that happens? This is one of the main reasons I came to work in the profession of human performance. I was in a quest for the most effective and efficient way to live in an effort to progressively perform at your best. Sport science was shrouded in mystery and may possibly be even more so now.

Through the advances of science and technology, we are able to accomplish incredible feats today. I talk to some of the most remarkable minds on the planet everyday, and each day I am blown away by what scientists are discovering. I guess the major questions are: what is the purpose of sport, who is responsible for the well-fare of today’s athletes and does anyone care if an athlete can enjoy life after competitive sports?  There are many all natural, healthy alternatives to the dangerous performance enhancement drugs out there. Why is it then that athletes pay so little attention to these all important areas of their professions? Continuously exposing your body to the harmful side-effects of harmful illegal drugs from locker room dealers does not sound like a true professional. The first missing piece is education genuinely targeted at developing smarter athletes and fans.

Agents and executives may be next in the line of fire if they don’t take a definitive positive action on behalf of the athletes and also the fans. If you are currently an agent, exec or athlete might I suggest taking a little more stock in getting the best information available to increase the performance of today’s elite athletes. Real performance enhancement allows for a sustainable athletic future. That means it is everybody’s responsibility to take care to ensure that our athletes play their best every time out. The Tebucky case is a lesson for all of sports to learn from.

Resources on the web:

http://www.popsci.com/scitech/gallery/2008-07/juicing-30
http://www.bostonherald.com/news/regional/view.bg?articleid=1190012&srvc=rss

http://www.patriots.com/news/index.cfm?ac=latestnewsdetail&pid=24208&pcid=47

Tebucky Jones Attempts to Recover One Last Fumble from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

An agent could be directly providing clients with undetectable cutting edge drugs and foolproof masking agents. Or the agent’s role could be as nebulous as pointing a player in the direction of a doctor or anti-aging clinic that dispenses PEDs.

The article seems to have special focus on Scott Boras, who has had a good chunk of his clients testing positive for performance enhancing drugs.  The main question is: Was Boras [and other agents] naive or complicit?.  Another good point raised by Lisa Olson is that, while Boras’ empire is more vast than the Sultan of Brunei’s, it is entirely possible Boras’ only connection with PEDs is circumstantial.

MLB Investigating Role Of Agents With PEDs from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

The juiced era reportedly began in 1994 and ended around 2004. The BALCO investigation was at its climax in 2005 and enhanced the spotlight placed on Major League Baseball and its star performers, which included Tejada’s “testimony”. With the continued intervention of Congress on the issue, the list of admitted steroid users started growing even larger. Some wrote books blaming others, calling out players and naming fellow users. Some chose the path of Mark McGwire, Roger Clemens and Barry Bonds, and continue to deny their transparent use of the substances, while others like A-rod and Andy Pettitte decided the best option was to bite the bullet and come clean. Whatever path these players chose, there have been no legal ramifications, until now.

A few days after Rodriguez’s interview and apology Houston Astros star shortstop Miguel Tejada became the first player to be officially convicted of a crime in the juiced era. Last Wednesday, Tejada pled guilty to the charge of misrepresentation to Congress by withholding information. The weird aspect about this big-time conviction is that it predominantly talks about Miguel’s lying to congress about his teammates use of illegal substances. He did however, acknowledge his individual use of Human Growth Hormone (HGH) when he was in Oakland, but still claims that he “threw away the HGH that he purchased before using it.”

The crime is a misdemeanor and with Tejada’s continued cooperation he will likely receive probation as opposed to any jail time. The direct terms of Tejada’s plea bargain state that by agreeing to the deal he may still be subject to “detention, deportation and other sanctions at the direction of the United States Immigration and Customs Enforcement.”

According to Fox News, a Customs Enforcement agent replied to the statement saying the agency “individually reviews cases of legal permanent residents convicted of a crime to determine if they should be deported.” The agency would not talk about Tejada’s case in any more detail because it does not discuss individual cases.

Only a year ago, Tejada (34) divulged in an interview that he lied about his true age and produced a fake birth certificate when he originally entered the United States from the Dominican Republic to play in the league. After making this voluntary declaration, Tejada was never punished, other than harsh comments and criticism in the media, and he still remained in the America. Although nothing happened after this first incident, Tejada’s past admittance and repentance certainly was on the minds of some people.

In the complaint, the government states that Tejada violated 2. U.S.C. 192, entitled “Refusal of witness to testify or produce papers.” Tejada accordingly was under oath in August of 2005 when congressional staffers from the House Committee on Oversight and Government Reform questioned him in a Baltimore hotel room.

U.S. Code, Title 2, Section 192 expressly states that “Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $ 1,000 nor less than $ 100 and imprisonment in a common jail for not less than one month nor more than twelve months.”

Using 2. U.S.C. 192. Tejada did not fully comply with congressional staffers when he was interviewed regarding questions pertaining to the use of HGH and other banned substances.  Yale 2L Aaron Zelinski analyzed the topic and pointed out that this was the first case to date brought under 2. U.S.C. 192 that contained facts from acts that took place in a hotel room with only a group of congressional members and the defendant.

Although, I believe Tejada is clearly and blatantly guilty, as does Mr. Zelinski, we differ when I contend that Miguel did violate the expressed language in 2. U.S.C. 192. However, I do agree with him when he suggests that this interpretation of the law broadly stretches the government’s reach on matters concerning perjury.  When are you really under oath? Can it be any time you talk to members of congress?  If that is what emerges from this case then we are all in trouble.

With Tejada’s fall from greatness, it seems that the government is looking to make a statement by investigating and reporting on big name players. This is understandable, as something drastic must be done to try and halt the use of banned substances in baseball. Alex Rodriguez was only one name on a huge list of players randomly tested by the MLB. His name was leaked and he was induced into finally confessing. 103 more names still remain on that list. The way these players and their agents and advisors handle the disclosure of that list is really the determinative factor regarding the government bringing a suit against them.

A-Rod’s decision might have kept him outside of a cell for now, but many lost faith in his every word and still do not believe he is telling the complete truth.  Roger Clemens is currently the one feeling the most heat from the F.B.I. for his adamant denial in front of congress last year. The Rocket might be the next one to fall from the ranks of baseball greats.

Tejada’s sentencing will take place on March 25^th. Although he is the first in the steroid era, he certainly will not be the last. This decision could lead to many more individuals facing charges and should send signals to others who plan on talking about the juiced era.

Tejada They Come, Tejada They Fall from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Football

• A big-time Gator is on the market [Taylor, set to make $6M, cut by Jags].
• A lot of talk that Thomas Mills got Hayden a really nice deal [Hayden, Colts strike deal].

Baseball

• The guy is only 26-years-old and averages a strikeout per inning pitched [Santana avoids arbitration with Angels].
• Gotta love the amount of deals that are struck in the final hour [Pirates, McLouth agree to 3-year deal].
• Should we be blaming the MLBPA instead? [Commish doesn't want steroids blame]

Sports Agents

• For our readers overseas [Superagents” reality TV show to launch in UK this week].
• Doug Eldridge of DLE Sports Management Group is trying to raise $100k [Reginald T. Dogan: Racer makes strides for wounded vets].

Basketball

• The story on Anthony Randolph switching agents made the latest Carnival [Carnival of the NBA #63: Stress Relief].
• The Chicago Bulls have been very active lately [Knicks trade for Bulls' Hughes].

Shabbat Shalom: Friday Wrap-Up (2/20/09) from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Steroids are not allowed.  Diuretics and water pills are forbidden.  Besides Pat and Kevin Williams, four others have been suspended for the final four games of the regular season: Charles Grant, Deuce McAllister, Bryan Pittman, and Will Smith.  Three out of the four are on the Saints roster.  Maybe they need to hire more nutritionists at that organization alone.  As an advocate for players, you may think that I am pulling for the Williams’ in a law suit.  However, the rule of the land is that you are responsible for knowing what the laws are.  In a collective bargaining situation, you must be aware of the rules and regulations.  In various memorandum sent out to the players, the NFL has clearly noted that players are responsible for what goes in their bodies and that all products are taken at the players’ own risk.  The appeals process may not be completely fair toward the players, but again, that’s not the main point of this post.

We, the players and agents, need to have some accountability.  Instead of fighting substance abuse policies through litigation, we must do whatever is necessary to prevent suspensions from being proferred.  If that means hiring a nutritionist, then so be it.  Look at what happened to baseball because of the onslaught of steroids.  The NFL is doing its best to stay clear of such a situation.

How Can We Stop The Substance Abuse? from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

As an agent, you must also be a good scout of talent, or at least employ a separate scout that will help judge who your agency should be recruiting.  You should always keep in mind what scouts and GMs are looking for.  If there is a trend away from the slower, bulkier power hitter toward a smaller, more agile player, your recruiting strategy may need to deviate from what it has been in the past.

Speed/Athleticism > Power from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Is money the issue?  Bonds has expressed that he will play for a pro-rated share of the major league-minimum salary of $395,00 with the funds donated to charity.  Still, no team has expressed an interest in Bonds.  Are steroids the issue?  While Bonds is the poster boy of the steroid era, Major League Baseball is currently littered with steroid users.  Players such as Jason Giambi and Andy Pettitte have admitted using steroids and HGH, yet this has not prevented them from earning millions of dollars on major league rosters.  The same can be said about other players named on the Mitchell Report such as Gary Sheffield, Miguel Tejada and Rick Ankiel.  Is Bonds’ character the issue?  I doubt that as well.  Manny Ramirez in recent weeks shoved the Red Sox traveling secretary to the ground, slapped a teammate in the dugout, and sat out an important game against the New York Yankees for no apparent reasons.  Yet these character flaws will not prevent Ramirez from signing a multimillion dollar deal in the offseason.  Philadelphia Phillies pitcher Brett Myers was arrested and charged with assault after punching his wife Kim Myers after an argument in 2006.  Yet Myers was welcomed back to the Phillies.

Bonds, now 45 years old, is reportedly in great shape.  Bonds’ agent, Jeff Borris, said Bonds told him:

“He would be ready in a very short period of time. He thinks he can be ready 10 days, two weeks. And with the first trading deadline coming up, I can’t understand why my phone is not ringing off the hook.  No one is even asking about him.  I talk to the clubs every day for a variety of reasons and his name is never brought up anymore. I’m more convinced now than ever that he won’t be in a major league uniform in 2008, and I think that’s a pathetic way for him to go out. I think he’s deserving of better. He gave his heart and soul to this game.”

Union head Donald Fehr recently examined possible collusion against Bonds, but has yet to file a formal grievance.  Borris hinted at the possibility of collusion:

“If everything were fair and equal in the world, Barry should get a fair market value offer,” he said. “But since everything is not fair and equal, I decided to offer him for the minimum. I thought for sure there would be a taker, and there were none. If that doesn’t raise the level of suspicion, I don’t know what does.”

Major League Baseball is filled with players named on the Mitchell Report; players with poor character and players with criminal records.  These players continue to sign million dollar contracts.  Yet Barry Bonds, possibly the greatest player in our generation, if not in all of Major League Baseball history, the player who led baseball in O.B.P. in 2007, remains unsigned.  Any team can have Bonds’ services for the small price of $395,000.  Yet not a single team has shown any interest at all in Bonds.  Smells like collusion to me.  Stay tuned to see how this story plays out.

Cries of Collusion from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

The MLB Steroids Situation Doesn’t Seem That Bad Anymore from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules