Category: Legal Trends

Prosecutors Give Eric Holder a Home Run Pitch

By

Webb Hubbell.

Most commentators believe the prosecutors who caused a mistrial in the Rogers Clemons’ case knocked our Attorney General down with a bean ball. This is at least the second time in a high profile case, Holder’s Justice Department prosecutors have been called on the carpet for being overzealous. The first was in the trial of the late Senator Ted Stevens where prosecutorial misconduct led to dismissal of the case. In the Clemons’ case, the judge ordered a mistrial because prosecutors disobeyed the Judge and introduced evidence in the trial that the judge had specifically said was inadmissible and could not be introduced.

For a complete description of what happened and an analysis of the likely result read Jeralyn Merritt’s column at TalkLeft.com As always it is excellent and thorough.

While most people can’t believe that after all this time and money the case has to start over, and believe his prosecutor’s have given Holder another shiner due to a “wild pitch.” Holder has a chance to turn this “sow’s ear into a silk purse.” He can call an end to this prosecution and any other prosecutions including the investigation of Lance Armstrong involving steroid use in professional athletics, at least for the period of time when steroid use wasn’t illegal. Prosecutors are going after high-profile athletes with a zeal and intensity that should be reserved for axe murderers and slave traders. They know what the individuals did, if they did it all, is not illegal so they go after them for not being truthful to Congress or investigators about investigations that shouldn’t have occurred in the first place. It’s as if prosecutors are saying we know we can’t prosecute you for what think you did. It is not a crime. So we are going to embarrass you enough in public that we get you deny doing something and then we are going to prosecute you for it. By the way, the only evidence we have that you are lying is because we made a deal with people who did break the law and are known liars. That’s okay, they aren’t big fish or likely to get me publicity, so we will cut a deal with them to get Mr. or Mrs. High Profile.

General Holder needs to say that he is not going to be the puppet of Congress anymore. In Clemons’ case, Former Senator Mitchell did a complete investigation of steroid use in baseball and issued a report. He did not recommend Clemons’ be prosecuted. Why did we waste time and tons of money simply repeating what Sen. Mitchell wrote in his report and then haul ballplayers in front of Congress other than to further humiliate them and set them up for prosecution. If Congress hasn’t noticed we have some problems called unemployment, education, and public health that maybe should be higher on your priority list than whether retired ballplayers used steroids back before they were illegal. That cart is already out of the barn.

Step up to plate General Holder,tell the people of this country you will not tolerate prosecutors who violate Court orders, you will not continue to prosecute high profile athletes for denials of doing something that’s not illegal in the first place, you are going to prioritize your department in areas that are of real concern to the communities of this country. When you do so, and you have the courage and gumption to do so, you will making immense strides to restoring Justice in America.

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Jul 15, 2011 | 0 comments View Post

Bad Facts, Make Bad Law

by Webb Hubbell

There is an old adage in politics and the law that “Bad Facts, Lead to Bad Law.” In law, a horrible fact situation full of sympathy for one side can lead to a Judge or a jury making a poor decision or bad precedent. In politics a bad or terrible tragedy may lead to sympathtic legislators making a law that seems to redress one inequity, but it has terrible consequences for society.

Many of the laws placed on the books placing employment restrictions on arrested or convicted individuals are examples of bad facts making bad law. One bad incident with an offender stealing drugs from a hospital to feed his/her habit likely led to a total ban from drug offenders working in any health care facility. One offender going on public school grounds to harass a teacher probably gave rise to total bans from school grounds of people who long ago made a mistake and have lived exemplery lives since.

The public’s reaction to the Casey Anthony not guilty verdict is likely to lead to a plethora of bad laws, meant to redress what people view as a wrong decision, but will affect others way beyond any original intent. Florida legislators are all ready introducing a bill called Caylee’s law. It would make it a felony for a parent not to report a child is missing. Online petitions for a federal law are going viral. Laws named for specific crime victims are almost always a bad idea. They reek of vigilante justice. Laws should not be passed in response to singular events, no matter how tragic. Cooler heads are needed.

Whatever the outrage over a singular set of circumstances or verdict, a broad stroke legislative pen is not the answer. Justice for a little girl should not include a legacy of bad laws and further tragedy.

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Jul 08, 2011 | 0 comments View Post

Charities — Cleaning House or House Cleaned?

By Webb Hubbell

Last week, nearly 275,000 charities had their non-profit status revoked, with the Internal Revenue Service releasing a list of non-profit groups that either failed to complete the required forms or had not submitted documentation for the last three years.

This represents about 17% of non-profits across the country, and although it is likely that a large portion of the de-listed organizations are no longer in existence this is a problem for more than just the charities that failed to do their paper work. What about the donors who may be continuing to fund de-listed charities? How do you determine your due diligence before making your contribution is still valid? Are long standing commitments still valid if a charity is de-listed? What about the nonprofit organizations that still exist, but have been de-listed? How do they get back non-profit status, and what do they do about contributions in the interim?

The one thing is certain is every non-profit better find out their status. If your charity is de-listed find out how do you get your status back and be prepared to answer your donor’s questions. I recommend hiring a professional like my friend Carlye Christianson to steer your charity out of “troubled waters.”Are you prepared to return donations? Can’t afford a professional, think again unless you are prepared to return donations.

If you have not been delisted, be prepared to prove your status to all potential donors. An old 501c3 letter would not do the trick if I were a substantial donor. Finally, if I am a contributor I want to know the current status of any recipient of my contributions, and if I get word that one of my donations went to a de-listed charity I recommend consulting with my tax advisor.

If your charity had its status as a nonprofit revoked, there may still be some time to file your paperwork. If your organization has annual gross receipts below $50,000, the IRS will allow you to apply for reinstatement before the end of 2012.

If you dodged the current bullet don’t think you are Scot-Free. Remember that, in all likelihood, you will need to file yearly forms with the IRS if you wish to maintain your tax-exempt status. The IRS is providing a bit of leeway given the recent changes in law, but next time you might have to go to greater lengths should your status as a non-profit be revoked.

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Jun 21, 2011 | 1 comment View Post

John Edwards Had More To Consider Than Just Prison Time

By Webb Hubbell

The media when its writing about John Edwards’ decision to fight the charges versus pleading guilty seem to focus solely on whether Edwards would have prison time as part of his sentence or not. Forget the presumption of innocence, they also seem to discount what a convicted individual faces post conviction or guilty plea, especially supervised release. Even if Edwards serves no time in prison, he is likely to be sentenced if he pleas or is found guilty to two or three years of supervised release. Although it is certainly not “prison time,” supervised release in the federal system is not a piece of cake.

Here are some of the limitations:
• First and foremost, if Edwards were to commit another crime even a traffic offense he risks being sentenced to spend the remainder of his time on supervised release confined in prison or in some other form of confinement.
• Edwards will have to report monthly to a probation officer about his work, activities, financial condition, etc. The probation officer may inspect his home and require more frequent reporting.
• Edwards will not be able to travel outside the Judicial District without permission, and wherever he travels he may be required to report to a local probation officer and have his activities supervised by the local officer.
• Edwards may be required to undergo drug testing and/or restrictions on alcohol consumption.
• Edwards may be restricted in whom he may contact or associate with during the time of supervised release.
• The Court may place other restrictions on his travel, employment, associations, and activities.

This will be only the beginning had he plead guilty or if he is found guilty. Depending on crime he will face a plethora of restrictions on his civil rights, employment opportunities, associations, and even places he can visit, long after any prison sentence or supervised release.

His decision to fight the charges is not simply a decision to undergo prison or not. Prosecutors do not like to discuss supervised release or collateral civil consequences of a guilty plea or conviction because it heightens awareness that to some extent a conviction or guilty plea involves a lifetime of going from one type of prison to another – from a prison of walls made of brick and razor wire to different prisons made with walls made of a different material.

Next time you read about Edwards decision to fight the charges realize that his decision is more than about a few months in prison it’s about a lifetime.

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Jun 16, 2011 | 0 comments View Post

Million Dollar Verdicts Continue Against Employers

By Webb Hubbell.

Time and time again when I was evaluating client’s exposure to risk, I would come across an employer or manager who thought employment related practices insurance was a waste of money and time spent on an employment practices audit was wasted time. “There employees were happy, they had anti-discrimination rules in the employee handbook, etc.,” they would argue. What happened to other employers wasn’t possible in their workplace. Here are a couple of companies who probably did have procedures in place but wish they took their risk manager’s advice more seriously.

• Wal-Mart was hit with an $187.6 million dollar verdict over meal breaks and rest breaks in Pa. While the $187.6 million verdict is probably one of the largest single verdict Wal-Mart has faced over meal breaks and rest breaks, Wal-Mart has previously agreed to pay about $640 million in damages in 2008 to settle around 60 other state and federal lawsuits over missed breaks, according to Bloomberg. Can your business afford to even defend a similar claim? Ask your independent insurance agent or risk consultant for help before you are sued, not after a judgment.

• What did Wal-Mart do wrong? Well, if all the facts in the complaint are true – and apparently a Pennsylvania jury thought they were – they were violating state law by encouraging employees to cut their meal breaks and not take their rest breaks. Many states have laws that require employers to give employees certain breaks throughout the work day. Not all of these breaks may be paid, and many states require only unpaid breaks. But, breaks are usually required – and must be given, otherwise employees can file suit.

• Ashley Alford sued Aaron’s in a sexual harassment lawsuit. The jury awarded her a verdict against the company to the tune of $95 million. Aaron’s Inc. is a national rent-to-own furniture store. This one plaintiff, Ashley Alford, a former employee, claimed that she suffered humiliating and degrading sexual harassment from the store manager at the branch where she worked, reports the New York Daily News.

Each month I continue to be amazed at the judgments that are reached in these type cases. Do not let this happen to you and your company.

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Jun 15, 2011 | 0 comments View Post

Sweet Home Alabama — No Longer Sweet For Millions

by Webb Hubbell

Move over Arizona, Fox News, and Rush Limbaugh. A new Alabama immigration law has hit the books, and it makes y’all look like card carrying members of the ACLU.

Alabama enacted by far the country’s toughest immigration law on Thursday when Governor Robert Bentley signed HB 56 into law.
The new law covers a broad array of topics, many of which have civil rights groups not only questioning the law’s legality, but wondering where they should begin in testing its provisions.

Effective as of September 1, the new Alabama immigration law includes the following:
• Police must ascertain a suspect’s immigration status. Better carry your passport and birth certificate next time you go watch your team play Alabama or Auburn.
• Police must detain anyone they suspect of being undocumented. Forget about a school trip to Huntsville to see the spaceships. Several kids may not make it back home.
• Public schools must verify and report the immigration status of students. This will dissuade a lot of kids from going to school anymore. They are better off roaming the streets.
• Businesses may have their licenses revoked for hiring undocumented workers.
• It is illegal to knowingly transport an illegal immigrant. Forget about being a good Samaritan, you may find yourself in jail.
• It is illegal to knowingly rent a dwelling to an illegal immigrant. They obviously want more homeless in Alabama.
• You cannot knowingly enter into a valid contract with an illegal immigrant. Are you going to ask for the immigration status for every person you do business with such as a lawyer, banker, doctor, or your car dealer. Employment and asking for services are contracts. An oral promise to provide something for consideration is a contract. Taken to extreme you better ask the immigration status of anyone you order goods from in case the company they work for is in Alabama.

Asking for someone’s immigration status violates many Federal laws. To comply with the Alabama laws, many citizens will be inadvertently be violating U.S. law. With such provisions, we can expect lawsuits very soon. However, a definitive answer concerning the legality of the new Alabama immigration law likely won’t be available for years.

I have added my sarcasm to this report, but to the millions of individuals that laws like these will affect there is no humor to be found in this attempt to once again segregate our society. Let us all hope for the good of our country that Alabama lawmakers will have an epiphany, and rid Alabama jurisprudence of this black mark.

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Jun 10, 2011 | 1 comment View Post

Locked Up, Locked Out

The social costs of incarceration

by Bruce Western from the July 2011 issue of Reason

Do prisons make us safer? By taking would-be offenders off the streets, prisons clearly have reduced crime in the short run. In the long run, though, imprisonment erodes the bonds of work, family, and community that help preserve public safety.

Three effects are fundamental. First, former prisoners do worse economically than if they had never been incarcerated. We can see some evidence in a study I conducted in 2004 with the Princeton sociologist Devah Pager. We ran an audit experiment that sent trained testers to apply for more than 1,000 entry-level jobs throughout New York City. The fake job applicants were dressed similarly, gave similar answers, and provided résumés with identical education and work experience. At each job interview, however, one randomly chosen tester would tick the application box indicating a criminal record and submit a résumé that mentioned a prison and provided a parole officer as a reference.

White testers who were assigned a criminal record received call-backs or job offers from employers only half as often as testers with clean records. For African Americans, a criminal record reduced employment opportunities by two-thirds. Labor force data from the National Longitudinal Survey of Youth paint a similar picture of incarceration’s negative effects: Wages fall by about 15 percent after prison, yearly earnings are reduced by about 40 percent, and the pay of former prisoners (unlike compensation for the rest of the labor force) remains stagnant as they get older.

The second important effect of imprisonment falls not on ex-inmates but on their families. About half of all prison and jail inmates are parents with children under 18. By 2008 about 2.6 million children had a parent in prison or jail. By age 17, one in four African-American youth has a father who has been sent to prison.

Because of their poor job prospects, formerly incarcerated fathers are less able to contribute financially to their families. Because incarceration strains marital relations, those fathers are also less involved as parents. Compared to otherwise similar kids whose parents haven’t been behind bars, the children of incarcerated parents are more likely to be depressed, behave aggressively, and drop out of high school. These problems appear to be more common for boys than girls. Incarceration, it seems, is weakening the bonds between fathers and sons.

The third important effect of incarceration is cultural, shaping how the institutions of law and order are viewed in high-crime/high-incarceration neighborhoods. The prison population is drawn overwhelmingly from low-income inner-city areas whose residents come to associate police and the courts with the surrounding social problems of violence and poverty. Police are viewed as unhelpful, and often unaccountable, contributing to what the Harvard sociologist Robert Sampson calls “legal cynicism” in troubled, crime-ridden neighborhoods.

Part of the power of punishment as a deterrent to crime is the shame and stigma of a criminal record. Where incarceration has become commonplace, as it has in poor African-American communities, the righteousness of the police is no longer assumed and a prison record is not distinctive. The authority of the criminal justice system has been turned upside down, and the institutions charged with maintaining safety become objects of suspicion.

The negative effects of incarceration reduce the penal system’s capacity to control crime. Drug dealing and other illegal activities are more attractive to people with prison records, who have few legitimate prospects. Children of incarcerated parents, without a secure and predictable home life, are at risk of delinquency and school failure. And a community, soured on a capricious and unaccountable police force, is less likely to call for help or assist in investigations.

Because of the mounting social costs of incarceration, the benefits of prison have reached a point of diminishing returns. Sixty percent of state inmates are re-arrested within three years of being released from prison. Recidivism rates have not fallen despite a fourfold increase in incarceration rates since the 1970s.

We may care little about the job prospects of ex-cons. We may not even care much about their children or neighborhoods. But if the social costs of imprisonment grow without limit along with the prison population, mass incarceration becomes a self-defeating strategy for crime control.

Reducing these social costs is an urgent priority. Successful programs now offer transitional jobs to released prisoners, support the children of incarcerated parents, cultivate police-community relations, and send fewer people to prison in the first place. Measures like these reduce the social damage of mass incarceration and promise a sustainable public safety.

Bruce Western (Bruce_Western@harvard.edu) is a professor of sociology and director of the Program in Inequality and Social Policy at Harvard University.

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Jun 09, 2011 | 0 comments View Post

Leaks of Edwards’ Plea Negotiations — May Backfire.

By Webb Hubbell.

Over the weekend the newspapers were full of stories from anonymous sources saying that Edwards was offered an opportunity to plea to a misdemeanor, but the prosecutors wanted to preclude Edwards from arguing against jail time. My suspicion is that the anonymous source came from the prosecution. Why? The article said that Edwards was willing to plead guilty to the same election law violations if they were misdemeanors on Friday morning, that he is denying he committed in Court and to the public on Friday afternoon. In other words, Edwards in his negotiations didn’t mind admitting he committed the crime, he just doesn’t want the punishment. Edward’s side doesn’t benefit from such a leak; on the other hand, the prosecution does. It gets out to the public and the jury pool that Edwards is willing to admit he is guilty. He just doesn’t want to go to prison. This negates any thought that the prosecution is “piling on”, and attempts to taint the jury pool.

If I am wrong as to the source of the leak, I apologize to the prosecution. If I am right, here is what I hope happens:

• The Defense files a motion for dismissal accusing the prosecution of Jury tampering and leaking Grand Jury deliberations. I know this will not happen, but the prosecution already has all the advantages. Why does it need to leak?
• The Judge, on his own motion, asks both the prosecution and the defense if they are the source of the leak. I am sure neither side will admit it, but then take it one step further and subpoena the reporters and ask for their sources. They will get all high and mighty and refuse, but the Judge can remind them that they are potential conspirators to tamper with the jury. It might at least get the reporters to think twice before they continue as pawns to the prosecution.
• The Attorney General should call into his office the head of the Public Integrity section and say he is concerned about the leak. In the Senator Stevens case, the prosecution ended up with egg on its face. The Attorney General should remind the Head of Public Integrity he does not want even a hint of improper conduct by his lawyers. He should also ask his internal watchdog investigate the leak.

Why am I so troubled by Prosecutors leaking this type of information? A criminal trial is already so loaded in their favor they win over 95% of their cases. They don’t need to cheat to win. The Justice Department doesn’t need to tamper with a jury pool anywhere in the U.S. Written in stone on the Justice building in Washington, DC are the words “ When Justice Is Done In Its Courts, the U.S. Wins. That means an acquittal as well as a conviction. That means you play by the rules, and you don’t get close to the gray areas. When the Justice Department cheats we all lose.

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Jun 06, 2011 | 2 comments View Post

Finding a Stake Disquised As a Needle In a Haystack

By Webb Hubbell.

Finding an employment disqualification or restriction for an accused or convicted individual is many times like searching for a needle in a haystack. Take working in the insurance business after a conviction is concerned, for example. Insurance is regulated by states not the Federal government, so if one was searching for a restriction on working as an insurance agent, for example you might begin logically to look in the laws of the state where you wanted to start to work. Unfortunately, it doesn’t work that way.

There are no laws in the Federal Statutes regulating commerce as well, but again that would be logical. One has to go to the Violent Crime Act of 1994. A law that primarily deals with violent criminals to find a provision that doesn’t even deal with violent criminals. 18 USC Sec. 1331 prohibits someone who has been convicted of a financial crime or one dealing with dishonesty from engaging in the “business of insurance” unless you get a waiver from the state insurance commissioner. The law makes it extremely difficult for you to do anything related to insurance, such a clean the offices of an insurance company, because of the breadth of the meaning of “business of insurance.” Plus, it is almost impossible to get a waiver if you aren’t trying to get license. The insurance commisioner is not set up to grant waivers for janitors, accontants, actuaries, secretaries, counsels, or receptionists, only agents. They are not set up to waive prospective employees as well. So you are caught in a dilemna. You can’t get a job without a waiver, and you can’t get a waiver without one. Add, to the difficulties is the process itself which there is no guarantee and depending on the state varying degrees of scrutiny and success. Many employers just throw in the towel, and wish you luck in the future.

This is just one instance of the patchwork quilt of hurdles to employment someone faces. Even when you find the needle it often turns into a stake that is driven right through your heart.

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May 31, 2011 | 0 comments View Post

NFL and Super Bowl Ticketholders Butt Heads In Court

by Webb Hubbell.

The NFL and Dallas Cowboys owner, Jerry Jones, were in court last Thursday, asking that the Judge dismiss a lawsuit that seeks damages for ticket-holding football fans left seat less on game day for the Super Bowl. You may remember, the weather right before the Super Bowl was not what anyone expected, and several thousand individuals for safety and other reasons were at the last minute, without a seat to the game. Can you imagine the money each person spent to get to Dallas and stay at a hotel only to find out “no game.” You have a ticket, but end up watching on a big screen. Sometimes life really is unfair.

The NFL and Cowboys have technically offered to reimburse displaced fans, but the fans argue that their measures do not go “beyond [their] contractual obligations” and falls way short of what they are out.

The lawsuit, filed in February, was brought by a group of about 3,200 fans who were moved to new seats or forced to watch the game on a video screen after temporary seats at Cowboys Stadium were left uninstalled. Now how many fans actually are participating is unknown. The law suit is brought as a class action and only a few fans are nominal plaintiffs. What each individual is actually out and wants comes later, maybe. The lawsuit is controlled by lawyers who want fees, not necessarily what each of their clients really wants.
Personally, I would hope the NFL would agree to arbitrate each claim with the individuals one mediator, no lawyers, no travel, just a written submission of what each individual was out by way expenses, and the NFL responds if they think the claim is out of line. Add to it a ticket to the next Super Bowl and 99% would be satisfied. But that’s not the way the system works. So here is what is more likely to happen: the lawyers for the plaintiffs will spend enough time to justify a big fee, there will be an ultimate settlement where the lawyers get millions in fees, and the individuals will get pennies. Meanwhile the lawyers keep going and everyone waits for justice.

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May 31, 2011 | 0 comments View Post

John Edwards — Just Let Him Go!

By Webb Hubbell.

There are times I would like to sit down with at least one reporter who covers the Justice Department and have a heart-to-heart about being an unwitting tool of prosecutor’s tainting the jury pool campaigns. When I was there I had one rule for my staff and myself, no one talks “off the record.” I told my staff, “you may talk to the press, but it must be for attribution.” I explained to them and I believe today that Justice is better served totally out in the open, and if you have something to say, you ought to be willing to stand in front not hiding behind the cloak of “off the record.” Those days are clearly gone, for instance in today’s papers were articles about the likelihood that the indictment of John Edwards had be given the go ahead from “Main Justice” quoting an anonymous source. This “unauthorized leak” is no more “unauthorized or anonymous” than the “man in the moon.” It is part of a carefully planned and crafted media strategy that is meant to co-op the press and get them to get out in the media the prosecutor’s version of the facts.

Anonymous sources saying, that John Edwards is weighing the millions that Edwards will have to spend versus pleading guilty, is planted by the prosecutor’s to imply that Edwards is really guilty and only millions of dollars can get him off. When is the last time you read an article about how much the prosecution spends on a case like Edwards? When have you read about the vast amount of money allocated to do what disclosure does much better – end political careers? My suspicion is that the amount of money spent on Edwards greatly exceeds ten million dollars and for what? – to kick a man and his family when they are down for the count. John Edwards is through running for elective office. Why don’t they let him try and rehabilitate himself, do some good, and spare all of us from another retelling of his fall from public grace.
I think there must be something in the curriculum at “prosecutor’s school” that says you haven’t done your job if your target has a penny left to his name or any blood left in his veins.

The media has also bought into the prosecutor’s propaganda that all Edwards has to do is plead guilty to one count and he saves himself money and all of us further attention to this matter. A guilty plea is not just about any jail time attached, it is about supervised release, collateral consequences, fines and restitution, and permanent bans from employment and civil rights. Few prosecutors, defense lawyers, or judges, much less the public at large are aware of the ramifications of being accused and convicted. Prosecutors are looking for a notch on their belt and care little about the life time effects on the individual the notch represents.

Although it might seem from reading this column I am anti-prosecution and prosecutors. I am. I am when it comes to pursuing an individual for what even the confidential sources admit is a “creative theory” of election law. Politics and elections have moved on, the family has suffered enough, and John Edwards deserves a chance to remedy his mistakes. A prosecution and conviction will set back the potential good that can come out of this incident back for years if not forever. The resources of our Justice system can be better spent. It is time to let this one go, like it was time for Frodo to let the Ring go, it is weighing us all down.

And to my friends who get a call from a prosecutor asking to go off the record, once ask, “Why?”.

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May 26, 2011 | 0 comments View Post

NFL and Players Continue to Go Through The Motions

By Webb Hubbell.

Coach Johnson used to yell at one of us at least once a day, “You are just going through the motions.” It meant we were blocking the sled and running plays without enthusiasm or emotion. We weren’t trying to improve or “getting better” as Coach Broyles used to say.

The NFL and the Players are continuing to just go through the motions. The lawyers are just going from courtroom to courtroom, the spokepersons are spinning their respective sides of the story, and Judges rule and both sides holler appeal. It feels like waching two Giant Sumo wrestlers collide in the middle and then back off to run at each other again.

The 8th Circuit has stayed the lower court’s injunction, thus for the near future the player’s are locked out from practicing or getting paid. The players are in another court trying to get at the Owner’s war chest of cash from the TV Networks, but regardless of the ruling the loser will appeal and attempt to reverse whatever decision the Court makes. Meanwhile the time to lace up one’s pads up is fast approaching with neither side appearing willing to give ground.

In the negotiations the stalemate appears to be solely about money. There is no underlying right or principle at risk, like free agency or pension or health care security. If it is, neither side has been able to articulate the issue. So what needs to happen?

When we couldn’t seem to muster up some enthusiasm on the field and continued to “go through the motions,” the coaches would decide to ramp up the intensity. Drills like “bull in the ring” or the “suicide drill” would be ordered up, and then forget “tip-toeing around,” practice would be held at “full speed,” until someone “drew blood.”

How can that happen in the polite atmosphere of “negotiation” and “mediation,” where suits and ties are substituted for “full pads?”
I suggest a “closed practice.” In football it is where there is no press and no spectators are allowed, and you go at it until “you hear glass.” In these negotiations, I suggest you close practice to the “suits,” those who have no “skin in the game,” — the lawyers, the agents, and the mediator. Several of the owners played enough football to understand what I mean by “going till you hear glass.” I know the players do. I suspect out of such a session, the parties would have the basis for an agreement, leaving it to the suits to pick up the pieces.

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May 17, 2011 | 0 comments View Post

Employment Handbooks — Risk Waiting To Happen

by Webb Hubbell

Is an employee handbook the company gave out on Day One a contract enforceable against the employer? When is the last time it was updated? Is it on the Company’s Intranet? Does it conflict with your Union Contract? If so, what controls. Does it matter if employee never received a copy? Is there disclaimer language in the handbook? Has every employee signed that they have read the handbook and had an opportunity to ask questions? The list of issues goes on and on, and what about the manager who says, “Since when, have we had a handbook?

At least thirty states will enforce terms stated in an employment handbook or personnel manual, reports the ABA Family Legal Guide. In most of those states, a copy of the handbook must have been distributed to the employee. What if you operate in multiple states, what law applies? What if the language isn’t specific. A promise like “all employees will be treated fairly” might not get enforced in court, since the terms are vague. But a promise like “employees will be fired only for just cause” can be a specific, enforceable promise.

If the employee handbook contains a clear disclaimer, courts will probably find no contract. So something like “this handbook does not create a contract, and can be changed or revoked at any time” will probably mean the handbook created no contract, reports the ABA Family Legal Guide.

How enforceable are the changes you make to the handbook once you realize it is a walking time bomb? The Arizona Supreme Court ruled in Demasse v. ITT Corp. (1999) that employers may not change employee handbooks or other personnel policies, under certain circumstances, unless the employees accepted the proposed changes and were compensated for the policy modification. Wow, imagine having to value changes you make to an employee handbook and pay the value out. Try running this by the CFO.

Maybe it is time you had that drink after work with that labor attorney who wants to do a little marketing. Bring the handbook with you, but not your wallet. He/she will be in it soon enough.

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May 11, 2011 | 0 comments View Post

Antitrust Liability: DOJ Opens Official Inquiry Of Bowl Championship Series

By Webb Hubbell.

While Oil Company’s are reaping obscene profits at the expense of the consumer; and while our oceans, rivers, lakes, and streams are being polluted daily, our Justice Department has turned its attention to important issues such as — college football. Now, I would applaud an inquiry into the abuse of young athletes as slave labor for Universitys’ profits, but obviously that is not important to DOJ. What is important apparently, is who get’s to play for a mythical championship and a trophy, while ignoring thousands of young men and women whose bodies and minds are abused and not compensated for their work or injuries.

It’s been a few years since Senator Orrin Hatch (R-UT) brought to Congress what he considered the “plight” of college football and the Bowl Championship Series, his crusade for “mid-major” colleges and unviversities, not the student-athletes themselves is now getting some legal backing.

The Department of Justice announced Wednesday afternoon that it has opened an official inquiry into whether the BCS violates federal antitrust laws. In a letter sent to Mark Emmert, current NCAA president, the head of the DOJ’s Antitrust Section questioned whether the BCS is in the best interests of college football, and asked why football is the only major NCAA sport without a playoff system. Nothing in the letter asked about the individual athletes and their sacrifices.

While this is just the beginning of the inquiry, there is some evidence that BCS antitrust violations exist. The BCS has claimed that it is not an actual corporation or legal entity. However, it is a group of entities who, through contractual agreement, collectively control the process by which teams are chosen to play in collegiate bowl games.

The Sherman Act does not only prohibit monopolization, it prohibits contracts in restraint of trade. It’s been argued for years that the BCS algorithm and profit sharing agreement strongly favors the six largest conferences at the expense of the smaller conferences that get less air time. The cycle perpetuates itself, rarely allowing these teams to receive any recognition, and thus money, on the national stage.

Because this system is the outcome a group of contractual relationships, the entities that make up the BCS can be said to be party to an illegal contract in restraint of trade. If the DOJ decides that BCS antitrust liability doesn’t exist, it isn’t the end of the inquiry. Utah’s attorney general is currently looking for outside counsel to launch a federal antitrust lawsuit.

Maybe, an Antitrust inquiry will broaden to a inquiry into the treatment of the the student-athlete. If not, any result is mere reshuffling of a deck stacked against the participants.

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May 06, 2011 | 0 comments View Post

NFL Lockout Lifted by Judge

The NFL lockout has been lifted by a Minnesota federal judge. While everyone is hailing this as a victory for the Union and an advantage to the players I have a wrinkle that may just prove to be a real problem for the Union. What if the Owners say fine come on back, but there is no Union. We are going to negotiate individual contracts outside the Union and you may play when you sign a contract. The union can’t have it both ways and say you must negotiate with us since it has decertified. Just a thought.

Where we are right now is:

Judge Nelson granted the request of the players for an injunction that forces NFL teams to open for business and continue football operations, The New York Times reports. Nelson’s ruling gives the players an early victory in their battle with team owners over a new collective bargaining agreement. Owners locked out the players after negotiations broke down on March 11 and the players decertified their union. Judge Nelson did not stay her decision, which means the league will ask for a stay from her Tuesday to prevent the NFL from having to open for business immediately, the New York Times reports. If she does not grant it, the league would then turn to the 8th Circuit Court of Appeals. The 8th Circuit is a conservative circuit, but what will happen is a crap shoot. By the way St. Louis, Kansas City, and Minneapolis are the only teams in the 8th Circuit. If the stay is not granted by either court the NFL will perhaps put rules in place allowing players to return to work and free agency to open within days, creating a flurry of activity similar to the normal operations of an off-season, the NY Times reports. Teams will be allowed to hold workouts with players, players will be permitted to meet with trainers to rehabilitate injuries and coaches to study game film.

Here is where I would throw a wrench in the works. I would say come on back same pay, same benefits, but since Union is decertified we need a new contract. Some players might want better terms, but some players may not want to crap shoot. What about free agency? It is tricky anti-trust wise, but if the lawyers are worth the millions they are getting paid, they can find a way to avoid these concerns. If some refuse to sign a new contract then what have they lost. What I like about the wrench is everything has been mapped out sometimes it takes a wild card to break the log jam. Judge Nelson said she was swayed by the players’ argument that that the lockout, now in its second month, was causing irreparable harm to their careers, the AP reports. If that is the case how can the ballplayers object if the doors are opened back up?

The plaintiffs “have made a strong showing that allowing the League to continue their ‘lockout’ is presently inflicting, and will continue to inflict, irreparable harm upon them, particularly when weighed against the lack of any real injury that would be imposed on the NFL by issuing the preliminary injunction,” Nelson wrote. The NFL promised an immediate appeal.”We will promptly seek a stay from Judge Nelson pending an expedited appeal to the Eighth Circuit Court of Appeals,” the league said. “We believe that federal law bars injunctions in labor disputes. We are confident that the Eighth Circuit will agree. But we also believe that this dispute will inevitably end with a collective bargaining agreement…”Legal experts are divided on the league’s chances of success on appeal. Winning in District Court gives the players a decided advantage, but some legal observers consider the Eighth Circuit to be a business-friendly court, the NY Times stated.

My wrench probably will not work, but otherwise it seems neither side is hungry enough yet to really want to negotiate a deal. My heart is with the ballplayers, but even more so with college ballplayers who end up with nothing but life altering injuries at the expense of the University’s greed.

Related Resources:
• NFL Lockout Has Been Lifted (LA Times)
• NFL Lockout in Judge Susan Nelson’s Hands (FindLaw’s Tarnished Twenty)
• Will the NFL Players’ Lawsuit Bring Back Football? (FindLaw’s Tarnished Twenty)
• NFL Labor Dispute: Can Mediation Save Next Season? (FindLaw’s Tarnished Twenty)

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Apr 26, 2011 | 0 comments View Post
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