Tony Gwynn has been one of the great players in baseball during my lifetime. He also was a lifelong user of smokeless tobacco. He is also dead. Now his family is suing the tobacco industry, alleging negligence and product liability.
What makes this different from other tobacco cases is that Tony G was given the product as a free sample made available to athletes when he was in college. Go back to old footage of games and you will see many athletes chewing and spitting. Was the company negligent? Was he? In California, where the case is filed, the jury will be asked to assign relative responsibility to the company and the decedent. Tough to predict results, but the corny old adage re narcotics – “the first one is free, kid“ – appears to be literally applicable here. Then the argument will migrate to more familiar territory, that the product was addictive. I think we are long past the point where a tobacco company can argue to the contrary.
A celebrity is by and large someone who has always viewed themselves as one…even before they obtain fame. Look at any number of people who knew they were superstars before the world knew. A friend of mine had Obama as a law professor. Obama started a hypothetical “Assume that I was president of the United States…..” The class laughed and Obama retorted, “What is so funny about that?”
You may not need talent, but you need to be unique. You also need the ability to accept rejection and come back for more. I believe it was Dumas who received hundreds of rejection letters. It took David Seidler, the writer of “The King’s Speech,” decades for his project to come to screen.
Baseball once had a role player who was never used in a game. His moniker was, “Bench me or trade me.” Football once had a punt returner who became famous as “White Shoes Johnson.” Yes, he was talented, but above all, he was colorful. Sports careers last a finite period of time.
Good athletes work with their sports lawyers to cultivate an image that will work for them throughout their working lives. Lawyers work with athletes to see to it that fame transcends their career on the field.
As predicted in my blog of March 14, Erin Andrews has settled her lawsuit. She is and was the reporter spied on in a hotel. The terms of the settlement were not released – a very frequent pattern when there is a large to overly-large verdict ($55 mllion) and bad facts and law for the losing party. Appeal, and negotiate.
Women soccer players have complained that they are not paid the same as their counterparts on the U.S. Men’s National Team. How would this play in the courts? California passed amendments to Labor Code section 1197.5 through the California Fair Pay Act, which mandates equal pay for substantially equivalent work. It passed without controversy and with the approval of the California Chamber of Commerce. Yesenia Gallegos and I gave a webinar on the act recently.
What does it mean? Is a chemical engineer’s work substantially equivalent to that of an electrical engineer? Women tennis players have argued successfully that their show is as good as (or better than) that of the men. Is the women’s soccer game substantially equivalent? Perhaps the courts will decide.
Three women’s basketball coaches are under investigation for alleged mistreatment of their players, the coaches at Duke, Nebraska and Loyola of Chicago. Each is considered a great coach, but they have had an inordinate number of transfers. Other programs have allegations of racial prejudice and over-involvement in personal lives. Big-time pressures and big-time worries come to big-time women’s sports. Keep in mind that the boundaries on intentional infliction of emotional distress vary from state to state, but sooner or later, a lawsuit is more likely than not.
Not too soon to invoke Spider-Man, “With great power comes great responsibility.. “
Looking forward to Ken Burns’ 4 hour salute that premieres tonight. A few previews worth noting:
- He was a UCLA Bruin. The Dodgers wanted a college man for its first African-American player.
- There was no law against having Black players. There was not anything in the baseball rules. It was a “Gentleman’s Agreement” that was ruining our national game.
- There were no anti-discrimination laws in those days. If you were born Black or Jewish, you lived with this as an everyday reality. The NAACP fought on a daily basis to get rid of discrimination. It was so awful that when there was a lynching, they would hang a banner outside their New York headquarters proclaiming “A man was lynched yesterday.”
- Beware blogs, tweets, Facebook posts or any other social media entries that talk about the “good old days.” The courts existed to help some but not all.
Take a look at his highlight reel. Looks good. Great backstory (from war-torn Sudan). And wants to play pro ball. He is 19 and is at one of those finishing schools back east. Essentially a 5th year of high school. The NBA says you have to be 19 and graduate high school to be in the draft.
It was Dickens who said “the law is a ass, a idiot.” (sic) I think the rule of reason should apply here. If you are the commish, why make him go to China for a year? In this case it serves no educational or commercial purpose.
Thomas R. Basta, Associate in Fox Rothschild’s Roseland, NJ office, published recently on our Employment Discrimination Report, “USWNT: Complaints of Being Kicked to the Curb by US Soccer.”
An excerpt from the post:
“There are really two issues to the suit filed by lead plaintiffs Alex Morgan, Hope Solo, Carli Lloyd (she of the World Cup hat trick), Megan Rapinoe, and Becky Sauerbrunn, which are applicable to any workplace. First, are they similar situated to Tim Howard, Clint Dempsey, & Co. on the Men’s team? And second, if the answer is yes, do the profit centers of each particular team mandate that they be paid in accordance with them? Attorneys for the USWNT offer an emphatic yes to both questions, arguing that the team has been more profitable than the Men’s team for years.”
Continue to follow our Sports Law Scoreboard and Employment Discrimination Report for more on this case.
D’Angelo Russell is the talk of the town because he tape recorded his Lakers teammate, Nick Young, gossiping about Young’s love life away from his fiancé, Iggy Azalea. In California, you cannot tape record someone without their permission. I think that doubly so, given that the conversation was in a locker room, where there is an unwritten rule that what starts there stays there. Violation can be a misdemeanor with a fine.
Theoretically, Young could sue for invasion of privacy, but former Clippers owner Donald Sterling tried that to no avail. Then again, as pointed out in the L.A. Times, the trust lost is priceless.
P.S. – Given that Mr. Young is a pro athlete, who knows what is truth and what is braggin’ here.
Easter season is as good a time as any to realize that we all are mortal and have feet of clay. Whether it is an athlete hitting his/her mate or an inadvertent comment (see Coach K, who I am sure meant well) the smartest, albeit not easiest thing to do is to apologize.
A gracious, not begrudging one. From the heart and not the pocketbook. Take a look at the comments of my colleague Mike Paul, who has dealt with any number of intractable problems made simpler by a simple apology. The only time I got clobbered on a jury trial (which was reversed by the judge) was a wrongful death case, where I did not explicitly say that my client was sorry for the loss by the plaintiff. A little empathy goes a long way in life, sports and law.