Archives: Sports History

Looking forward to Ken Burns’ 4 hour salute that premieres tonight. A few previews worth noting:

  1. He was a UCLA Bruin. The Dodgers wanted a college man for its first African-American player.
  2. 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.
  3. 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.”
  4. 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.
Copyright: rachellidangelo / 123RF Stock Photo
Copyright: rachellidangelo / 123RF Stock Photo

As featured everywhere, including USA Today, Yogi is dead. I have always been struck by the wise malaprops that both he and Samuel Goldwyn coined. So much wisdom in each man. I have used Goldwynisms and Yogiisms before juries and each never fail to draw a chuckle from the audience. As a tribute, let me quote from Mr. G….”An oral contract is not worth the paper it’s printed on” and “I will never talk to you again unless I need something from you.” RIP.

I never knew Dean Smith, but his former players worship him. Jerry Tarkanian was a client. He may not have taken Phi Beta Kappas in but he dearly, truly cared about his “boys,” including having tutors for them.

I owe a huge debt to my Dean/Shark, whose name was Norm Peek. Peek was the supervising deputy at the California Attorney General’s Office and one of the finest trial lawyers I have ever met. He taught me how to do everything from trying a case to ethically fighting one. He always would say, “give people an out as you are going to need one yourself one day.”  Notoriously anti-social, he honored me by coming to my wedding. What little contribution I have made to the profession I owe to his care and feeding. All young attorneys should be as lucky. Firms grow and prosper (or not) to the degree that senior lawyers invest in their young charges. A good lesson for us all.

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo

Leaving a job is easy – if not stressful – for almost the entire population: you leave on your own accord or are asked to leave by your employer. Some people have employment contracts which provide specific compensation or benefits upon separation; other people sign agreements with specific clauses which bar them from using their skills in a specific geographic location or directed at a certain clientele (aka, “non-compete clauses”). 

Employment contracts are a powerful instrument. They dictate the conditions of employment, the compensation of the employee and the circumstances which could result in their dismissal. The idea of termination by “cause” is usually defined by the employment laws of the state, but typically means behavior which any reasonable person would identify as “wrong.” It usually doesn’t mean incompetence, though gross negligence would fall into that category. An employment contract serves to secure both the employer and the employee in the employment arrangement.

All of those concepts, however, go out the window in the world of professional and college athletics. Everyone knows and basically understands that contracts in the world of professional athletics are ruled by the collective bargaining agreements of the sport. Football is notorious as being the most dangerous sport with the least amount of guaranteed money. Seeing a player cut from the roster one year into their three year “contract” happens all the time.

Increasingly, however, is coverage of the machinations of how coaches change jobs. The NFL has had “Black Monday” coverage for years – when coaches get fired the Monday after the last game of the year. Like the athletes they coach, coaches, typically sign multi-year contracts.  These “employment contracts” offer some security, yet every year at this time the proverbial “coaching carousel” starts with coaches fired and others hired away from their jobs in the middle of their contracts.

Let’s use college football as an example. Having just finished the regular season, college football programs began firing and hiring their coaches (some before the season ended) immediately. Athletic Directors hoped onto their schools private plane to begin recruiting other coaches to fill their vacant positions. How can this happen so easily? How can Wil Muschamp be fired with three years left on his contract? He wasn’t fired for “cause” (Florida fans would argue losing to Vanderbilt and Georgia Southern – in the same season – were crimes in of themselves), but he was nevertheless terminated from his job and will be paid $2 million per year until his contract expires in 2017, notwithstanding any off-set from his contract to be the defensive coordinator at the University of Auburn.

Coaching football is not too different in some respects than many jobs, except the determination of success or failing to meet expectations can be easily identified in the Win/Loss column. A college coach – be it head coach or assistant – signs a contract with the university. It is often a multi-year contract with incentives for specific achievements and other benefits beyond their salary.

Unlike almost any other industry, however, college football coaching appears to skirt all the accepted contract principles when it comes to hiring and firing. As seen by the situation with Wil Muschamp, and his successor, former Colorado State University head coach, Jim McElwain, universities do not honor contracts or have any issue actively recruiting a new coach away from his current employer. Jim McElwain had Florida’s athletic director, Jeremy Foley and his staff at his house December 1st – despite that CSU still had a bowl game to play (which they lost). Five days later, he was announced as their new head coach. How can it not be said that Florida has tortuously interfered with McElwain’s contract with CSU? The easiest – and probably the truest answer – is that no one cares enough to raise, let alone enforce, that issue. In other words, this is the business of college coaching. If CSU pursed damages or an injunction against Florida for stealing their coach, how attractive will that job be for the next coach if he knows the university will actively try to block his chance at a higher profile job? Not only that, CSU would effectively be hobbling itself in its coaching search by not being able to do to some other university exactly what Florida did to them.

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo

Schools and coaches do have additional options, however. A great example of the fluidity of coaching is at Arkansas State which has seen three coaches leave in the past four years for high profile jobs: Hugh Freeze went from offensive coordinator, to head coach, to his current position as head coach of Ole Miss; Gus Malzahn took over for a year before leaving for the head job at Auburn University, and; Bryan Harsin spent a year as head coach before moving up to Boise State.  Rather than fight against their coaches signing multi-year contracts and leaving after a year or two, Arkansas State and other universities have established buy-out figures paid by the hiring university to release the coach from their contract. Coaches, meanwhile, have negotiated into their contracts “dream job” clauses which allow for them to void their contracts if a particular school offers them a job. Reportedly, Jim McElwain had such a clause with Colorado State.

For schools like Florida or Notre Dame, who allegedly paid the $1 million buyout payment Brian Kelly owed the University of Cincinnati – a pittance compared to the $4.75 million the University of Texas paid the University of Louisville for Charlie Strong’s services, who then turned around and paid $1.2 million to Western Kentucky University to hire Bobby Petrino. Petrino, ironically enough, left Louisville in 2006 for the Atlanta Falcons shortly after signing a contract extension. Confused, yet? These are just a few examples among many which occur every year. And we haven’t even touched the concept of “dead money” paid to coaches who were fired, but by contract are owed money by the university. Some schools continue to pay millions of dollars to coaches who they fired in addition to the millions of dollars they are paying to coach they replaced him with (and, of course, the money paid to the university they hired him away from).

College football is a huge business and the coaches deserve the money they earn. Coaching is a tough job and the money involved in the industry makes it a high pressure, performance focused job. Alumni pressure, administrative pressure, and the pressure to keep 17-22 year old young men in line could be a full-time job itself. Long hours and long years of climbing the coaching ladder for opportunities at “dream jobs” is standard. If not for the fluidity with which coaches can change jobs and pursue the best situation for them, the sport and the industry would not nearly be at the level it enjoys today.  

On August 11, 2014, the ownership group for the Toronto Blue Jays, Rogers Blue Jays Partnership, filed a Notice of Opposition with the Trademark Trial and Appeal Board of the United States Patent and Trademark Office, opposing the registration of Creighton University’s redesigned Bluejay logo.

On September 18, 2013, Creighton filed a trademark application with the USPTO for the new logo, described as a “stylized capital C with the head of a bird placed over top of the letter C,” to appear on shirts, pants, jackets, footwear, hats and caps, and athletic uniforms. As depicted in the logo evolution below prepared by Creighton fan site, White and Blue Review, the new logo is quite a departure from 1972 iteration, which resembles a surly, hand-drawn Peanuts character:

 Jays

Toronto apparently believes that the new Creighton logo hits too close to home, with its “thick, clean lines and outline with no gradient or shading,” which “results in a bold, two-dimensional mark” that is substantially similar in design to the Toronto Blue Jays recently-refreshed logo:

Twin Jays

This isn’t the first time Toronto has sought to protect its trademark against a college/university.  In 2001 and 2002, Toronto opposed (or threatened to oppose) an attempt by my alma mater, Elizabethtown College, to register its flying jay and fighting jay marks, depicted below in all their black and white, pixelated glory:

Etown

(Elizabethtown has since adopted a much cooler and far-more aggressive representation of the otherwise harmless acorn-eating Corvidae.)

In fact, Toronto has filed or threatened approximately a dozen trademark oppositions since 2000, including a joint effort with the Tampa Bay Rays baseball club in 2010 to prevent a Virginia-based entertainment vendor known as “Ray Jay’s” from using this iconic mark for the following highly-specialized and succinctly-stated business purpose:

Amusement arcades; Arranging and conducting nightclub entertainment events; Arranging and conducting special events for social entertainment purposes; Arranging, organizing, conducting, and hosting social entertainment events; Booking of entertainment halls; Bowling alleys; Children’s entertainment and amusement centers, namely, interactive play areas; Entertainment in the nature of a bicycle park; Entertainment in the nature of baseball games; Entertainment in the nature of basketball games; Entertainment in the nature of hockey games; Entertainment in the nature of laser shows; Entertainment in the nature of light shows; Entertainment in the nature of roller skating competitions; Entertainment services in the nature of providing outdoor facilities for playing paintball; Entertainment services, namely, a video arcade housed in a mobile trailer; Entertainment services, namely, conducting contests; Entertainment services, namely, conducting parties; Ice skating instruction; Leasing of figure skating equipment; Movie theaters; Organisation and provision of sports installations for figure and speed skating championships; Organising and holding figure and speed skating championships and competitions; Organizing and conducting a bowling event the proceeds of which are donated to charity; Providing bowling alleys; Providing children’s party centers for the purpose of entertaining children and celebrating birthdays; Providing facilities for movies, shows, plays, music or educational training; Providing facilities for playing paintball games; Providing skating rinks; Rental of roller skates; Rental of skates; Roller skating instruction; Roller skating rinks; Video arcade services

Ray Jay’s abandoned the ship approximately two years after filing its application.

Yashin

The NHL’s illustrious New York Islanders:  winners of four consecutive Stanley Cups in the early 1980s.   Coached by the immortal Al Arbour and propelled by five future Hockey Hall of Famers, the Isles and their fans in Nassau and Suffolk Counties enjoyed one of the greatest runs in hockey history.  The names still resonate:  Bossy, Gillies, Potvin, Smith, and Trottier.

In 2000, businessman Charles Wang purchased a stake in the team.  Wang co-founded Computer Associates International, Inc. (now known as CA Technologies), and was integral in dictating the company’s direction until his sudden departure in 2002 under intense scrutiny.  In 2004, Wang obtained majority interest of the Islanders in a buy-out of his partner and convicted fraudster, Sanjay Kumar.

Since 2000, the Islanders have seen a dismal run of 431 wins in 1032 regular season games, five playoff appearances, and eight playoff wins.  The Islanders have watched numerous superstars come and go in deals that turned out to be complete laughers.  See, e.g., Bryan McCabe, Todd Bertuzzi, and a third round selection (Jarko Ruutu) for Trevor Linden; Zdeno Chara, Bill Muckalt, and a first round selection (Jason Spezza) for Alexei Yashin; Olli Jokinen and Roberto Luongo for Mark Parrish and Oleg Kvasha.  From a fan relationship standpoint, Wang’s ownership of the team has been troubled to say the least.  (To be fair, the 1990s were not exactly kind to the Islanders.)

Enter Andrew Barroway, a successful Philadelphia securities lawyer and co-founder of Merion Investment Management, LP.  Mr. Barroway has been linked to a purchase of the Islanders for months.  On August 11, 2014, Barroway’s entity, NY ICE, LLC, sued Wang and his various holding entities in the Supreme Court of New York, New York County (Manhattan), alleging that Wang reneged on a partially-consummated contract to sell the team to NY Ice for $420 million.

The lawsuit alleges that, after nine months of negotiations, Barroway and Wang memorialized their agreement in a 70-page Securities Purchase Agreement (the “SPA”).  The deal purportedly included a $100 million up-front payment, an $83 million promissory note, and assumption of $125 million in debt owed to Bank of America.  Wang’s ownership entities would, in turn, receive a 25% ownership interest in NY ICE.

Wang purportedly committed verbally and in writing to the deal, and the parties began the process of fulfilling the conditions of closing, including (a) seeking approval of the deal from the NHL, and (b) securing a $125 million credit facility to satisfy the Bank of America debt.

In June 2014, the parties met in New York City, at which time Wang allegedly pulled Barroway into a side room and expressed that he could command a much higher price for the team following Steve Ballmer’s $2 billion bid for the Los Angeles Clippers.  The parties met again in July, at which time Wang allegedly “blindsided” Barroway with a new $548 million demand.  Two days later, Wang announced his intention to sell the team to another investment group.

The seven-count Complaint sets forth claims for breach of contract (numerous grounds), promissory estoppel, and a permanent injunction.  The Complaint is aimed at compelling the sale of the franchise to NY Ice.  The lead count seeks specific performance in the form an order compelling a sale on the terms set forth in the SPA.  Further, the claim for injunction seeks to bar a sale to any other party.  In the alternative, NY Ice seeks liquidated damages under the SPA in the amount of $10 million, which it dubs a “break-up fee.”

Lost in the coverage of this dispute is the fact that Forbes recently valued the Islanders at $195 million.  Wang, who was purportedly to receive $183 million in cash for the team under the SPA, thinks the enterprise value of the New York Islanders is just shy of the NHL record $575 million paid by Molson for the iconic Montreal Canadiens in a 2009 leveraged buyout.  Putting all of this into perspective, Red Sox minority shareholder Jeffrey Vinik purchased the Tampa Bay Lightning in 2010 for $93 million – less than the up-front cash Barroway agreed to pay under the SPA.

 

We have to start somewhere and congrats to Jason Collins for being a man of courage. In Sports Illustrated, the free agent NBA center announced that he was gay. All the pundits will have something to say, but it comes down to guts and his reference to the Boston Marathon was so apt. I am proud to say that my son went to the same high school, albeit a few years later, and that I have been privileged to meet his parents.

I once joked with his folks about another basketball player who had bought a house for his mom, and they told me that the family dynamic was somewhat different in their household. Remember that when the Collins twins picked Stanford over UCLA, they were asked why and one of them said it was because they could.  These are very proud people and today their son did them proud. There is law and there is convention and sometimes they both have to move..  

By Jeffrey S. Kravitz, Esquire

Jovan Belcher had his whole life ahead of him and now he and his girlfriend are gone. According to the Daily News, he kissed the corpse after he shot her, before killing himself. Law allows us to grow as we grow old. Athletics often rob us of that luxury. As immortalized in poetry:

The time you won your town the race
We chaired you through the market-place;
Man and boy stood cheering by,
And home we brought you shoulder-high.

To-day, the road all runners come,
Shoulder-high we bring you home,
And set you at your threshold down,
Townsman of a stiller town.

Smart lad, to slip betimes away
From fields were glory does not stay
And early though the laurel grows
It withers quicker than the rose.

Eyes the shady night has shut
Cannot see the record cut,
And silence sounds no worse than cheers
After earth has stopped the ears:

Now you will not swell the rout
Of lads that wore their honours out,
Runners whom renown outran
And the name died before the man.

So set, before its echoes fade,
The fleet foot on the sill of shade,
And hold to the low lintel up
The still-defended challenge-cup.

And round that early-laurelled head
Will flock to gaze the strengthless dead,
And find unwithered on its curls
The garland briefer than a girl’s.

From: To An Athlete Dying Young by A.E. Housman

By Jeffrey S. Kravitz, Esq.

Johnny Manziel is putting up numbers for Texas A&M that make him, if not the odds on favorite for the Heisman, at least a face that we will see at the New York Athletic Club when the award is given. And why not? Does anyone doubt that Kareem Abdul Jabbar was the best collegian in the land as a freshman or Bill Walton?

 

In those days, freshman were not even eligible to play varsity ball, but Johnny Football sure looks good for a kid you never heard of coming into this season. As the sentiment in the Dallas Morning News Blog has it, why not? In private law firms, freshman are most often relegated to the back room (my firm excepted) but in public employment, they often hand you a file and say "try this case."  As a young pup, I faced a veteran trial lawyer on a civil rights case who had a big reputation. I was too green to know who he was and my bosses let me run with it. Beat him to everyone’s surprise, I had a senior lawyer who did not want to try cases any more hand me a file, only to have me find out that I was facing the man known as the Desert Fox. Always loved the quote from Hall of Fame baseballer Dizzy Dean  "It ain’t braggin’ if you can do it."

One of the reasons I write this series is to illustrate the ways that sports can be the medium through which multiple cultures collide.  For instance, where else would a New Zealand Rugby team and a Hip-Hop impresario become embroiled in a conflict over cultural expression?  The dispute here hinges on the use of the phrase “All Black Everything,” recently registered by S. Carter Enterprises, LLC, owned by Hip-Hop star and trendsetter Jay-Z, and the New Zealand Rugby team named the “All Blacks.  The parties resolved their  dispute before the Trademark Trial and Appeal Board on May 24, 2012 when S. Carter Enterprises, LLC carved out Rugby and Rugby-related clothes from the scope of its registration.

Starting in 1905 and in every Rugby match since, the New Zealand Rugby powerhouse team, named the “All Blacks” because of the uniforms they adopted around the same time, perform a Haka, a Maori ritual.  The “All Blacks” help a country fraught with tension between Maori and European citizens unite, celebrate and identify with both cultural legacies (European Rugby and Maori Haka).

Of late, Jay-Z, an artist and Hip-Hop tastemaker, has capitalized on the (political, cultural, even fashion) statements “all black” and “all black everything.”  As an aside, the Brooklyn Nets, which Jay-Z has a minority stake in, will wear uniforms that are almost “all black” (and look relatively similar to the New Zealand All Blacks’ uniforms).  The “all black” and “all black everything” phrases have become popular in numerous Hip-Hop songs performed by the likes of the late Notorious B.I.G., Lupe Fiasco and Chamillionaire.

Given the agreement between the New Zealand Rugby team and S. Carter Enterprises, LLC, unless and until Rugby becomes an important part of Hip-Hop culture, it appears “all black” can be shared by not only New Zealanders of Maori and European heritage but also American Hip-Hop devotees.

More updates on “Culture & Commerce” in the sports world will be forthcoming as new developments arise.