Lowering the Bar

Another Football-Related Trial Continuance Granted

Last season, a judge agreed to continue a trial date after counsel pointed out that the date would impair the parties' ability to watch the New Orleans Saints play for the NFC championship.  Now a judge in Baton Rouge has granted a similar motion, this time based on a college bowl game.

Specifically, the national championship game, to be played this year in the Superdome between LSU and Ohio State.  Steven Babcock, who is defending an insurance company in the lawsuit, and who has tickets to the game, moved to continue the trial's start date because of the conflict.  The motion was unopposed.

"All counsel to this matter unequivocally agree that the presence of LSU in the aforementioned contest of pigskin skill unquestionably constitutes good grounds [for the continuance]," Babcock stated in his motion.  This unequivocal agreement may have been in part because plaintiff's counsel also have tickets to the game.

"We might disagree on the merits of the case," Babcock told reporters, "but everyone was in agreement on this, for sure."

Babcock said he didn't know if the judge who granted the motion, Judge Alvin Batiste of West Baton Rouge Parish, was an LSU fan.  "[M]ost people around here are," though, he said.  Even if he isn't, it seems unlikely there are many Ohio State fans in the area.

Link: CBS News
Link: Motion to Continue (and order granting same)

UPDATED: Patriots and Belichick Sued for "Violating Integrity of the Game"

A Jets season-ticket holder has filed a $184-million class-action suit against the New England Patriots and their coach, Bill Belichick, based on the penalties assessed against them for videotaping their opponents' signals in the season opener, in violation of league rules.  (The Patriots beat the Jets in that game 38-14.)

Carl Mayer, represented by Bruce Afran (Mayer is also an attorney), claims that the defendants "deceived customers" by their actions -- essentially arguing that the games were "fraudulent" because fans were led to believe they would be played according to the rules.  "They were deceiving customers," said Mayer.  "You can't deceive customers."  Afran agreed that it was a "type of misrepresentation," and one that "violated the integrity of the game."  In the language of the complaint, the actions violated the "expectations and rights" of Jets ticket holders to "observe an honest match played in compliance with all laws and regulations."  Yes, every football fan has the right to expect all league rules to be followed without exception in each match.  Why those men are out there negligently dropping flags all over the field, I have no idea.  We'll deal with them next.

The $184-million demand is apparently based on the total ticket value that fans paid to watch the eight "fraudulent" games that the Patriots have played against the Jets in Giants Stadium since Belichick became the Patriots' head coach in 2000.  Plaintiff calculates that amount at $61.6 million, which he wants tripled under RICO and the New Jersey Consumer Fraud Act.  That seems a bit much -- surely Jets fans got some value out of these games, and since the Jets have compiled a sparkling 59-56 record since 2000, plaintiff may be overestimating the value to Jets season-ticket holders in the first place.  Frankly, if this lawsuit goes anywhere, I may sue the Jets and their quarterback, Chad Pennington, for a series of crappy performances that have violated the integrity of my fantasy-football team and disappointed the valid expectations I had when I drafted them.  That has "RICO violation" written all over it.

According to the Associated Press, Mayer and Afran are "public interest lawyers" who are well-known in the state "but generally have had little success in their causes."  Both have not been elected to public office, and Mayer also helped the Nader campaign not succeed.  They did not successfully get a special election to replace former Governor James McGreevey in 2004, were not able to block Governor Corzine's appointment of someone else to fill his Senate seat, and did not persuade a federal prosecutor to launch a probe into gifts Corzine made to a former girlfriend.  It appears that the Patriots are next.

After I first reported on the Patriots' legal woes, I learned that star pro se litigant Jonathan Lee Riches had also gotten involved.  Riches, the inmate who has heroically sued defendants including Michael Vick, the CIA, Barry Bonds, the Mossad, and so forth, has filed his own suit against Belichick and the Patriots organization based on the videotaping scandal.  Among the new allegations, Riches claims that the Patriots organization also videotaped patrons in the men's bathroom and had a monthly contract to sell the footage to Idaho Senator Larry Craig.

That's pretty good stuff, actually.  It's a shame Riches is wasting his talent on felonies.

Link: Boston.com (Boston Globe)
Link: The Smoking Gun

Locking Kid in Closet During Packers Game Results in Jail Time

On Monday, a Milwaukee couple were sentenced to jail time after they pleaded guilty to charges that they locked the woman's 7-year-old son in a closet while they went to a casino to watch a Packers game last season.

They did provide him with a loaf of bread, some peanut butter and jelly, and a bucket, but the judge still did not consider this an example of good parenting.  (This poor kid even had to make his own sandwich, for God's sake.)  Calling their conduct "abhorrent" and saying that it "certainly shocks the conscience of the community," Judge Jeffrey Wagner ordered the two to undergo psychological screening in addition to serving seven and nine months (respectively) in jail, with another four years of probation.  The boy will stay with relatives.

According to the report, the assistant DA told the judge at the sentencing hearing that the couple had enough money to hire a babysitter, but didn't, and he showed the judge pictures of the couple's "extensive collection of Packers memorabilia."  Depending on when the conduct took place, he may also have mentioned that the Packers were not particularly competitive last year, so not only is the conduct abhorrent, it probably wasn't even a very good game.

The couple's defense attorney said he couldn't explain their behavior, but seems to have argued that it did not merit extensive jail time.  "What do you do?" he said to the judge.  "Maybe this coming football season, lock them in a room with a bucket and make them watch Bears games."

Well, we don't torture people, I've heard, so we can't do that.  If they can get NFL games in Egypt, though, we might think about sending them over there one weekend.

Link: CBS News

Celery-Throwers Face Charges in Britain

The soccer team Chelsea FC has banned three fans, and says it may press charges against them, for throwing celery onto the soccer pitch during the FA Cup quarter-final on March 19.  Two were arrested at the match; a third was arrested later, someone apparently having turned him in to the authorities as a suspected vegetable-thrower.

According to the report, Chelsea fans have been throwing celery at each other, and singing an "unprintable song" about the vegetable, for many years.  (So far, I have been unable to determine the significance of the celery, or what is being said about celery that is unprintable.  But only recently has the matter escalated to the point of throwing it onto the soccer pitch.  This came to management's attention after referees at two previous matches reported celery sightings, and the club had warned fans that anyone caught throwing it during the March 19 match would be in big trouble.

Another fan was banned for a "pitch incursion," which I assume is British for "running onto the field like a jackass."  The club stated yesterday that "[a]ll four people have been banned by the club and three will face court bans depending on the outcome of any criminal proceedings."  The report did not say what the penalty might be for being convicted of celery-throwing.

Link: Yahoo! News
Link: Chelsea FC's Website

Motion to Continue GRANTED

Hail to Judge Ernest L. Jones of Orleans Parish, who swiftly granted the motion to continue the trial originally set for Monday.  (According to this article the motion was granted on Wednesday, the same day it was filed.)  This gives the parties, attorneys and those stuck with jury duty the ability to watch the New Orleans Saints fight on Sunday to go to the Super Bowl for the first time ever, and to do it without worrying about next-day consequences.

A "Court insider who asked not to be identified" was said to be gleeful when told of the order.  "The world is safe for Saints football!" he or she reportedly exclaimed.  That might be stretching it a bit, since we still have to find out whether Chicago is safe for Saints football, but the feeling is understandable.

Link: NOLA.com (Times-Picayune)

NFL QB Demands Mom Stop Using Him in Campaign Commercials

On October 20th, Saints quarterback Drew Brees (or his agents, anyway) sent his mom a letter demanding that she cease and desist using his name and likeness in a TV commercial. Mina Brees is running for a spot on the Texas Court of Appeals.

In the commercial, Mina Brees notes that she is the mother of Drew Brees, the sister of former Texas quarterback Marty Akins, and the daughter of longtime high school football coach Ray Akins. She says that the commercial is intended to identify her with her sports-oriented family, which she says taught her the value of preparation and hard work.

They apparently didn't talk much about intellectual-property law around the dinner table, though, or at least that's what CCA Sports and its attorneys implied with their letter. "The unauthorized misappropriation of an individual's indicia (picture, name, etc.) for this current purpose is an infringement of his personal rights, property rights and common law trademark rights," the letter states. Probably a standard form letter that they have to send out to everyone who mentions Drew, but maybe one of our IP readers can clarify whether a trademark can really be diluted just because your mom uses your "indicia."

Mina Brees agreed to stop using the spot. Her media consultants were to have new spots ready on October 30. They will feature a different son, Reid, who is presumably not trademarked.

The incumbent judge, David Puryear, declined to comment, saying that the focus "should be on the qualifications of the candidates." Refreshing, but not really part of the game plan this time of year, as the chairman of the Travis County GOP made clear in a written statement. He called for Brees to withdraw from the race because of her shocking conduct. "Her failure to act appropriately and inform media outlets of her wrongful use of Drew Brees' indicia subjects her to litigation and demonstrates her morally rudderless political opportunism," the statement said.

Well, that's okay, but not great. Let's see if we can punch it up a little bit.  How about something like this:

Until this moment, Ms. Brees, I think I never really gauged your cruelty, or your recklessness. Little did I dream you could be so reckless and so cruel as to do an injury to your own son's indicia. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your morally rudderless political opportunism, I would do so. I like to think I'm a gentle man, but your forgiveness will have to come from someone other than me. Let us not assassinate this lad's indicia further, Ms. Brees. You've done enough. Have you no sense of decency, ma'am, at long last? Have you left no sense of decency?

Yeah, that's more like it.

Link: Law.com (reprinted from Texas Lawyer)
Link: "No sense of decency"

Federal Appeals Court Affirms Right to Call Outfielder a "Fat Ass"

In September, the U.S. Court of Appeals for the Sixth Circuit reinstated a lawsuit brought by a Cleveland Indians fan, Jeffrey Swiecicki, who had been ejected from a game and later convicted of resisting arrest after he loudly referred to the size of the buttocks possessed by outfielder Russell Branyan.  "Branyan, you have a fat ass," Mr. Swiecicki was heard to say.

Swiecicki also opined that Branyan "suck[ed]," according to witnesses.

Branyan did not care, if he even heard, and he actually had three hits that night.  But an off-duty policeman who was working security objected, and when Swiecicki refused to quit he was escorted from the stadium.  The two then got into an altercation and Swiecicki (and that's the last time I'm typing that name) was arrested.

His conviction was later overturned, and he then sued the arresting officer for, among other things, violating his First Amendment rights to free speech.  That lawsuit was dismissed, but the Sixth Circuit's ruling reinstating the case guaranteed that it would continue to consume tax dollars as it has since it began in 2001.

In the 2-1 ruling, the court held that baseball fans are expected to be exuberant (even in Cleveland, I guess) and have a long history of hurling insults at players. These particular insults, the majority found, were protected because of that context and because they did not amount to "fighting words," which are not constitutionally protected.

Since false statements are not entitled to any First Amendment protection at all, I infer from the outcome that Branyan's ass is, in fact, big.

Link: Cleveland Plain Dealer

Identical Twin of Michael Jordan Drops $800-Million Lawsuit

Allen Ray Heckard sued Michael Jordan and Nike founder Phil Knight in Oregon state court, alleging that they had ruined his life by making Jordan so well-known.  Heckard is virtually Jordan's twin, although Heckard is eight years older, 30 pounds lighter, and six inches shorter.  Also, one of them cannot effortlessly slam-dunk a basketball after leaping from approximately the free-throw line. I forget which.

International Athletic Superstar or Pro Se Plaintiff?  You decide.

They are similar in some ways, as both are African-American, both have shaved heads, both wear a single earring, and neither is any good at baseball.

Still, Heckard's claim that Jordan and Knight were liable to the tune of $832 million ($416 million each: $52 million in damages and $364 million in punitives) because Heckard was tired of being mistaken for the famous basketball player seemed like a bit of a stretch. Specifically, Heckard alleged "that Michael Jordan high profile life style with the contributed of Phil H. Knight help has infected an injury upon his [Heckard's] life style that, according to every reasonable probability, will continue throughout the remainder of his life."  He said that continual public harassment because of the alleged resemblance "has trouble heckard nerves" and denied him peace of mind for at least 15 years, causing him trouble at work, inflicted emotional distress, and rendered Heckard unable to capitalize proper names or use the possessive form of nouns.

Heckard dismissed the complaint last week, though, without giving a reason.  A Nike spokesperson said Heckard had not been paid any money, and speculated that he had "finally realized he would end up paying our court costs if the lawsuit went to trial."  Heckard's lawsuit was effective, though, in linking him even more closely to Michael Jordan in a way that, according to all reasonable probability, will continue throughout the remainder of his life.

Link: The Oregonian

Judge Admonished About Cheering for Seahawks

Earlier this year I reported on an incident in Washington where a superior court judge had asked all those in the courtroom to shout "Go Seahawks" before being seated.  (As you may or may not recall, the Seahawks were in the Super Bowl last year.  They came in second.)  Dissatisfied with the response, she demanded a second, louder cheer.  Having created a suitably festive atmosphere, she then sentenced a defendant to 13 years in prison for manslaughter.

Some of the spectators, in particular the stepmother of the man who died, objected to the cheer and Judge Grant later apologized, and in fact filed a judicial-conduct complaint against herself.  "Although my intentions were to defuse the courtroom situation," the judge stated, "I realize now the inappropriateness of my opening comments."  The AP reported this week that the state Commission on Judicial Conduct had issued the judge an admonishment, a written reprimand that is the lowest level of punishment possible, somewhat in the same way that the Seahawks administered the lowest level of punishment possible to the Steelers during the Super Bowl.

Link:  AP via FindLaw.com

Hawaii Supreme Court Rules Golfers Need Not Yell "Fore"

The Hawaii Supreme Court has ended Ryan Yoneda's quest for compensation from Andrew Tom, who he says hit him in the eye with a golf ball in 1999.  In a unanimous ruling, the court found that golfers assume the risk of injury when they play golf, because it is "common knowledge" that golf balls don't always go where a player intends them to go.  (Mine sure as hell don't.)  Since the risk of being struck by an errant golf ball is an "inherent risk" of the activity, the assumption-of-the-risk defense defeated Yoneda's claim.

In fact, the court said, Mr. Tom was not even required to yell "Fore," the traditional way of announcing, "Attention!  My golf ball does not appear to be going where I intended it to go, and may intersect one of your appendages or other parts."  ("Fore" is shorter.)  Tom conceded that he had not given any notice, but the court considered this a rule of "golf etiquette," not a legal requirement.

"That's not too good," Yoneda said of the court's ruling.  "I know what it's like to be hit and I don't want anybody to go through what I went through."  Well, you still have options even after the court's ruling.  Two suggestions: (1) the fairway is not the best place to watch somebody else tee off (although Yoneda's injury did involve a multiple-bounce post-chip-shot scenario), and (2) golf goggles.

The court cited numerous cases, many from my own wonderful state of California, holding that the risk of an errant golf shot is inherent and well-known, and if liability could be premised upon such a shot, the sport of golf, yea, indeed even civilization itself, might crumble:

While golf may not be as physically demanding as other more strenuous sports such as basketball or football, risk is nonetheless inherent in the sport. Hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction. If every ball behaved as the golfer wished, there would be little "sport" in the sport of golf. That shots go awry is a risk that all golfers, even the professionals, assume when they play.

Holding participants liable for missed hits would only encourage lawsuits and deter players from enjoying the sport. Golf offers many healthful advantages to both the golfer and the community. The physical exercise in the fresh air with the smell of the pines and eucalyptus renews the spirit and refreshes the body. The sport offers an opportunity for recreation with friends and the chance to meet other citizens with like interests. A foursome can be a very social event, relieving each golfer of the stresses of business and everyday urban life. Neighborhoods benefit by the scenic green belts golf brings to their communities, and wild life enjoy and flourish in a friendly habitat. Social policy dictates that the law should not discourage participation in such an activity whose benefits to the individual player and to the community at large are so great.

Yoneda (citing Dilger v. Moyles, 63 Cal. Rptr. 2d 591 (Cal. Ct. App. 1997).  Ah, the refreshing scent of the eucalyptus.  I guess I would agree that "a foursome can be a very social event" and a real stress-reliever, but the rest of those benefits seems a bit exaggerated.  Whoever wrote that has never seen "Caddyshack," that's for sure.

Link: Findlaw
Link: Yoneda v. Tom, No. 26271 (Haw. Apr. 28, 2006).

Dodgeball Game Leads to Assault Charges

Not stemming from dodgeball impact, either.

From my original home zone of the Midwest comes this story of dodgeball gone wrong.  A humble game of dodgeball at Crescent Lake Christian Academy in Liberty, Missouri, turned ugly in February when one of the 16-year-old participants hit his 27-year-old youth minister in the head with a ball.  His first throw at David Boudreaux missed, but the second hit his face and knocked off his glasses.

Turn the other cheek?  Oh, no.

Boudreaux went after the boy, who apologized, but Boudreaux knocked him down and, when he got up, kicked him in the groin just to drive the lesson home.  Boudreaux has since apologized, but was still charged Wednesday with one count of third-degree assault.  He has been placed on administrative leave and likely will not be ministering in high-impact situations anytime soon.

My Way News

Court Rules Workers' Comp Covers Hockey Player Injured in Fight

On Tuesday, the Virginia Court of Appeals upheld a ruling that a hockey player injured in a fight during a game was entitled to workers' compensation, on the grounds that "fighting is an integral part of the game of hockey." The team had argued that the fight was "willful misconduct" that would have precluded compensation for the injury.

Ty Jones was officially a power forward for the minor-league Norfolk Admirals, but the court found that he was acting in the course of his employment as an "enforcer" for the team. Jones claimed that the fight in which he injured his shoulder started after his coach told him to "go get" an opposing player. The injury required seven months of rehabilitation, and the court battle has been over who has to pay for that.

L. Steven Emmert, described by the Associated Press as "a leading Virginia appellate attorney and hockey fan with no connection to the case," said that the finding was obviously correct. "This court finds that fighting is an integral part of hockey," Emmert said. "Thirty million Canadians could have told you that."

AP via Detroit News