Figuring out Jeffrey Kessler's Litigation Strategy for Deion Branch

Check out this curious statement in an afternoon posting by Michael Felger of the Boston Herald and ESPN Radio:

Furthermore, [Deion Branch's attorney Jeffrey] Kessler revealed today that if Branch loses both grievances, he will then seek damages against the Patriots for extra compensation this year. Kessler said Branch will seek to be paid the difference between what the Pats are scheduled to pay him this season (just over $1 million, minus fines) and the first-year money being offered by Seattle and the New York Jets.

If Branch loses both of his grievances against the Patriots, what grounds would he then have to sue the Patriots or seek arbitration against the Patriots for this alleged "extra compensation"? I could understand such an attempt if he wins his greivance, but if he loses? What contractual or other legally-cognizable obligation would the Patriots have in that instance? Or is Kessler--a hugely successful sports litigator--referring to a third greivance that would be filed if Branch loses the first two? Or has the NFLPA simply decided to make this some kind of test case?

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New Sports Law Scholarship

New this week:

Roger I. Abrams, Alcohol, drugs and the National Pastime, 8 UNIVERSITY OF PENNSYLVANIA JOURNAL OF LABOR & EMPLOYMENT LAW 861 (2006)

Paul A. Fortenberry and Brian E. Hoffman, Illegal muscle--a comparative analysis of proposed steroid legislation and the policies in professional sports’ CBAs that led to the steroid controversy, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 121 (2006)

Michael A. McCann, The reckless pursuit of dominion: a situational analysis of the NBA and diminishing player autonomy, 8 UNIVERSITY OF PENNSYLVANIA JOURNAL OF LABOR & EMPLOYMENT LAW 819 (2006)

Ryan Connolly, Note, Balancing the Justices in anti-doping law: the need to ensure fair athletic competition through effective anti-doping programs vs. the protection of rights of accused athletes, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 161 (2006)

Matthew G. Massari, Note, When fantasy meets reality: the clash between on-line fantasy sports providers and intellectual property rights, 19 HARVARD JOURNAL OF LAW AND TECHNOLOGY 443 (2006)

Jessica J. Penkal, Comment, When legislative regulation strikes out: proving a products liability case against metal baseball bat manufacturers, 67 MONTANA LAW REVIEW 315 (2006)

Ryan Schaffer, A piece of the rock (or the Rockets): the viability of widespread public offerings of professional sports franchises, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 201 (2006)

Matt Williams, Note, Making encouraged expression impercep-tible: the Family Movie Act of 2005 is inconsistent with the purpose of American copyright, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 233 (2006)

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Celebrating Labor Day: Is Wall Street or Norma Rae Winning?

Labor Day is often associated with rest and relaxation. And what better way to rest and relax than to check out a review of recent labor law postings. Paul Secunda and Richard Bales over at Labor Prof Blog have an extensive and engaging post today that does just that. They are hosting the 73rd Edition of the Blawg Review, and what better day for a couple of labor and employment law profesors to host it than on Labor Day.

Interestingly, for each post they discuss--and the postings are from a wide-array of blogs--they declare whether mangement ("Wall Street") or labor ("Norma Rae") won. For instance, they examine our Deion Branch post below and declare the winner to be Wall Street, in this case the New England Patriots (and they do so despite Colin's impressive efforts in the comments section). Be sure to check out Paul and Richard's post, it's both informative and entertaining.

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Indiana Appeals Court’s Latest Co-Participant Tort Liability Opinion

Indiana’s Courts of Appeals have offered some of the most analytical “sports tort” cases in recent years, such as Mark v. Moser, which attempted to “clearly define the standard of care one competitor owes another in a sporting event” and has found its way into one of the leading sports law casebooks, as well as more recent cases limiting the Mark rule, such as the one I discussed in this post.

On Thursday, the court published Bowman ex rel. Bowman v. McNary, 2006 WL 2506680 (Ind. Ct. App. Aug. 31 2006). One member of a high school girls’ golf team sued a teammate after the teammate unintentionally struck her in the head with a golf club during a driving-range practice (leading to blindness). In a footnote, the court notes “an increase in golf-related head injuries in recent years, particularly in children under age nineteen, as participation in the sport has increased, with those injuries being caused by mis-swung clubs, errant balls, and golf cart accidents.”

The Bowman court reaffirmed its commitment to the principle articulated in Mark v. Moser, namely that “as a matter of law, participants in sporting events will not be permitted to recover against their co-participants for injuries sustained as the result of the inherent or foreseeable dangers of the sport.” However, the court acknowledges that its “rationale for the rule originally stated in Mark has not been constant.” Sometimes the court has focused on the doctrine of “assumption of risk”, sometimes on the “absences of a legal duty”, and other on its concern to avoid chilling vigorous participation in recreational and competitive athletics.

The opinion offers a nice tour of Indiana law on this issue.

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Tony Allen's Trial: Contemplating Guilt

I have a guest piece on Celtics Stuff Live entitled "Tony Allen's Trial: Contemplating Guilt." It examines Celtics guard Tony Allen's upcoming trial for aggravated battery, including an analysis of the probability of guilt and, if he is found guilty, what factors might sway the judge in his sentencing. I also consider broader implications of the trial. Here's an excerpt:

Allen’s saga, like that of many professional athletes who run into trouble, invites sobering thoughts as to why many athletes run afoul of the law. Our reactions to their legal troubles might also be worth examining, especially if they tell us something about ourselves. Interestingly, social psychologists find that we tend to instinctually blame the actors closest to the crime, and we do so because it’s really easy to imagine their role in bringing about a crime. Here, if the charges are true, we can readily visualize Tony Allen ordering the shooting. Pretty basic, and blame seems easy to affix.

In that analysis, of course, we miss whether background factors, social context, and situational pressures could have influenced Allen, or helped bring him to that fateful moment, and whether responsibility extends to other actors as well. Really, what would bring a young man like Allen-who has wealth, youth, and fame- to order a shooting in a Chicago diner at 3 a.m.? Is it solely a reflection of his “bad choices,” “stupidity,” and “immaturity,” or is there something else going on as well?

I'll also be a guest on Celtics Stuff's Internet radio show tonight. The show begins at 9 PM (Eastern Standard Time), and I'll be interviewed at 10 PM. For more details, click on this link. We'll discuss Allen's trial and some other legal issues facing the NBA. Another guest will be Henry Abbott of True Hoop. It should be fun and I hope you get a chance to listen tonight or later when the show is archived. Also, thanks to Celtics Blog and Real GM's Celtics Board for promoting tonight's show.

Update (9/4/2006): the show can be heard at any time at this archived link. I come on in the middle of the show, at about the 1 hour and 5 minute mark. It was fun to be on, and I hope you get a chance to listen.

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Broken Deal to Deal? Deion Branch Files Grievance Over Patriots' Refusal to Trade Him

In what seems like an unprecedented move, New England Patriots holdout wide receiver Deion Branch has, through the NFLPA, filed a grievance against the team because it won't trade him. Branch, who was the MVP of Super Bowl XXXIX, is entering the last year of his five-year rookie contract, which over the last four seasons has paid him about the league-minimum (plus a $1 million signing bonus), and he is slated to earn about $1 million this year. He wants a new contract that will pay him at least $12 million in bonus and guaranteed dollars. The Patriots have steadfastly refused. (For more background on Branch's holdout, see Jerry Rice Slams Deion Branch's Holdout, 6/13/2006).

A couple of weeks ago, the Patriots granted permission to Branch and his agent, Jason Chayutt, to seek a trade. The move was seen as a way for the Patriots to show Branch that his market value wasn't anywhere near what he had estimated. In other words, the team didn't think that Branch would net his desired contract on the open market. Yet in the event that he did, the Patriots agreed that they would trade him if, and only if, the team offering the contract presented the Patriots with a "fair and reasonable" return in a trade.

And in the last 24 hours--and perhaps to the surprise of the Patriots--Branch has received two lucrative six-year contract offers, from the New York Jets and Seattle Seahawks, in the $36 million to $39 million range, with $13 million worth of guaranteed money. So he got what he thought he was worth. But here's the problem: both teams have apparently offered one second round pick and an established wide receiver (Laveranues Coles is said to be the Jets' offered player), whereas the Patriots are demanding two first round picks. To me at least, that seems like a rather pricy extraction for a 26-year-old player who has never had 1,000 yards receiving or caught more than 78 passes in a season.

And therein lies the essence of Branch's grievance: he contends that the Patriots are undervaluing his financial worth, but overvaluing his trade value, and they shouldn't be able to have it both ways, especially since they agreed to deal him for a "fair and reasonable" return. The NFLPA, led by attorney Richard Berthelsen, agrees that the Patriots have "reneged" on their deal, and that the team should be required to trade Branch.

On the other hand, what the heck does "fair and reasonable" mean, and who should get to decide that? Moreover, should players be able to "force" teams to trade them? A special master--who works for both the NFL and NFLPA--will decide all of that in the coming days in an emergency hearing.

My prediction: if the Patriots don't trade him over the weekend, Branch will lose his grievance, because for a special master to command the Patriots to trade him could set a curious and likely undesirable precedent whereby players could use the greivance process to compel not only trades, but the return teams obtain in those trades.

Update (9/2/2006): Through the NFLPA, Branch has filed two grievances against the Patriots. The first alleges that the Patriots broke their pledge to trade him for a "fair and reasonable" return. That claim is addressed above, and will be heard in the next seven days by one of two special masters, Professor John Feerick of Fordham University School of Law or arbitrator Shyam Das. Branch will be represented by NFLPA general counsel Richard Berthelsen, outside counsel Jeffrey Kessler, and his personal attorney, Peter Ginsberg. The second grievance alleges that the Patriots failed to negotiate in good faith over Branch's contract extension. It will be heard by special master Professor Stephen Burbank of the University of Pennsylvania Law School, although no date has been scheduled.

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Boras Almost "Steals" Another One

Four months ago, I discussed the merits of a complaint filed with the MLBPA against Scott Boras by Jim Munsey, the agent for Atlanta Braves catching prospect Jarrod Saltalamacchia, for soliciting his client in violation of MLBPA agent regulations. Boras' solicitation efforts involving the Braves prospect were ultimately unsuccessful, but I'm told by a reliable source that the fallout of Munsey's complaint was that the union (not surprisingly) just simply told Boras to stop doing it. Well, as one would expect, that didn't create any deterrence for Boras to stop soliciting other agents' clients.

Early last week, ESPN reporter Jerry Crasnick (and author of the book License to Deal) wrote that Carlos Lee, one of the top offensive players on the free-agent market this winter, informed the Texas Rangers that he was leaving his agent of eight years, Adam Katz, for Boras. However, just two days later, Crasnick reported that Lee changed his mind and went back to Katz. Crasnick's article begins by stating that Lee can expect to receive a multiyear contract this winter for at least $60M and then he poignantly notes, "The question is, which agent is going to collect the commission?"

Crasnick is right on, because that's what it's all about. The commission fee arrangement in the sports agent business is what fuels client solicitation and other agent misconduct. In fact, the economics are such that agents have a huge incentive to solicit and make all kinds of false promises to prospective clients. Think about it. If Boras makes a nominal investment in trying to land Lee as a client and just negotiates one contract for Lee this winter, Boras' standard 5% commission lands him a handsome $3M fee! So why wouldn't Boras and other agents have the incentive to spend a few grand soliciting (sorry, I mean "recruiting") Lee and doing what ever it takes to represent him? I discuss this issue in depth in my forthcoming article in the Willamette Law Review, which will be released in the upcoming weeks.

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