I was recently interviewed on The Price of Business, a talk radio show that airs on Business Talk 1110 AM KTEK in Houston. The topic was one that I’ve spoken on many times – factors to consider before filing a lawsuit.

Take a listen and I’d be quite interested in hearing your feedback.

Some additional thoughts:

  • First, you can win in court and lose in the court of public opinion. Years ago, Barry Bonds was sued by his ex-wife, who was German. He had a prenup that she was trying to invalidate. Win or lose (he won), he lost in the court of public opinion.
  • Second, what is your opportunity cost? If you are going to spend tons of time on it, maybe you would rather do endorsements or sharpen your golf game.
  • Third is a quote from deceased Senator Everett Dirksen: “We must all rise above principle. “ Some things just are not worth pursuing.

Woman Carrying Baby at Beach during SunsetEvery once in awhile, we see something that smacks of a hypothetical. Russell Wilson and his singer wife Ciara have announced that they are expecting (which is wonderful). She has a child by a former relationship with rapper Future. He has no children.

They have said that they want to have a brood. Defining rights could be a challenge. Russell plays football for Seattle and they live there. Theoretically, the child of the former relationship has no rights to his estate unless he adopts. If he were to die, how would that child feel? (I did not say this was a law school hypothetical.)

My point being, in blended families particularly, decisions need to be made as to who gets what. Failure to do so may result in hurt feelings at best, legal and psychiatric bills at worst. Facing up to mortality is tough for all, particularly athletes, but failure to do so creates chaos.

Risk and insurance
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It is well known that sports teams, leagues and players often have insurance to cover risks. In the past, I represented an insurer regarding coverage or non-coverage for a sports league strike. An ancillary question is the duty or not of an insurance broker.

A few inside baseball concepts here. First, an insurance agent is most often construed to be the agent of the insurer and is often an employee of the insurer. A broker is independent, presents risks to insurance companies and is either considered to be the agent of the insured or an independent intermediary. In Moje v. Federal Hockey League LLC et al., a minor league hockey league faced suit involving injury to a blinded fan. The fan took a default judgment against the league. The victim sued the broker and so far the broker has won on the grounds that the injured person was not signatory to the insurance policy and the policy did not cover the risk.

Brokers are often sued for malpractice on the grounds that they should have known that an insured should have particular coverage. Truth be told, the brokers usually win. Absent explicit instructions, it is too easy for an insured to say after the fact that they had asked for certain risks to be covered. Unlimited “he said, she said” in this arena would make it impossible for brokers to do business.

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Derrick Rose’s defense team is seeking a mistrial in his much-publicized case due to new evidence – namely text messages that were allegedly undisclosed prior to trial.

When I meet with clients I tell them, “Tell me everything; we will deal with it.” Despite this, there are times where six months into the lawsuit, the client says, “Can I level with you?” I thought we had been doing this all along.

Worse yet is when the lawyer gets surprised by his client at trial. Let’s just say that good things rarely happen as a result. Be transparent and put everything on the table at the beginning. It is better for everyone.

The Boise State Broncos famously have a blue artificial turf football field at Albertsons Stadium. In yesterday’s New York Times Sports section, the ramifications of their claim to trademark protection related to that feature were well explored.

Registered trademark and the Washington Redskins
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One of their administrators patrols violation of their registration. Believe it or not, Boise State claims empire over non-green fields (!) which raises some interesting questions, since they are not using any color other than blue. The courts have held that color may be trademarked if associated with a given product used, most recently in the dispute over Louboutin’s red-soled shoes. Sagely, Boise State has granted licenses to other schools using colors other than green, provided that they are not major college teams. Growing up in the dry cleaning business, I would see the Martinizing covers on clothes presses, which were a unique green color. Most cleaners would recognize that color and it was granted protection. Moral of the story may be, register your mark and do not overreach in moving to protect it.

One of my law school professors was well-versed in insurance law. He told me that he had any number of prominent non-coverage lawyers come to hire him as a consultant on discreet insurance questions. Invariably he would ask them upfront….”Have you read the policy?”  A surprising number answered that they had not, quickly got off the phone and oftentimes did not need to call back.

The 1977 movie “Black Sunday” portrayed an attempted terrorist attack at a stadium on Super Bowl Sunday. If this fictional attack had succeeded, would that be covered by insurance? Read the policy. In a June 1, 2016, article on active shooter incidents in Best’s Review, one insurance attorney noted that such events “can trigger a host of coverages such as general liability, business interruption and property insurance-to name a few.”

With given products, an incident that does not result in damage to a property is not going to trigger coverage for the extra expense or business interruption. It is not like a car crash or a tornado. In reaction to perceived need, certain insurers have developed specialty policies that have been dubbed “active shooter policies,” to fill in the gaps. While it is difficult to contemplate, sports executives should examine their policies to determine if they have coverage and if not, if they have a need.

Income tax
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When I took Federal Income Tax in law school, the professor got up in front of the class and for his opening line started out by saying, “The Federal Income Tax Code is a Social Policy Document.” And indeed it is. Taxpayers receive breaks for a variety of reasons, from owning a house and paying for child care to raising race horses.

How about Olympic medals? I bet you didn’t know that they are taxed. That’s right. An Olympic gold winner is awarded a $25,000 cash bonus per medal by the Olympic committee, and is taxed roughly $9,900.  Silver and bronze winners receive smaller cash bonuses ($15,000 and $10,000, respectively) and pay accordingly. Most states tax the recipient as well.

For someone who has carried the flag for his or her country, is this just? I draw a distinction between a Michael Phelps, who may or may not live on Wheaties, and an archery winner, who may be living in his parents’ garage. Just a thought, but it would seem to me that if you gross under $50,000 a year, the medal should be tax-free. Indeed, the U.S. Senate recently passed a bill to exclude Olympians’ and Paralympians’ winnings from their gross income. The House has yet to vote on a similar bill.

I once tried a police brutality case where the Highway Patrol (aka CHIPs) stopped a woman who had five children, not her own, in the car. We obtained her medical records and found out that she had suicidal ideation right before she got in the car with the kids. There went the plaintiff’s case. Half the jury thought that the cops had not hurt her, and the other half felt that SHE had a duty to warn the parents of the children that she was considering killing herself with five young ones in the car. Defense verdict.

Zika virus
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The duty to warn in California has a long history, but got expanded dramatically by the Tarasoff case. That involved a psychiatrist who had a patient that was allegedly threatening harm to a third party. The Court held that the psychiatrist had a duty to warn the intended victim if the threat as it was defined and the possible victim was certain.

Now let’s go to the upcoming Rio Olympics. A number of athletes have declined to attend on the premise that they are concerned about the Zika virus. Others have suggested that a number of golfers have bailed because there is no money to be had there. Do the team doctors have a duty to tell participating athletes about the threat? Is there a threat?

I would argue that

  1. The threat is minimal,
  2. Unlike Tarasoff, there is plenty of public information out there and
  3. Anyone going assumes the risk given public knowledge. It is a little like the abortive suit against the Oakland As for someone getting hit by a ball. You go, the risk is on you.