Here is an article about Jeremy Tyler in which our friend Sonny Vacarro is quoted. Tyler is a junior in high school who will forego his senior year in high school to earn money playing professional basketball in Europe. After his first year, logic would hold that he should be eligible for the NBA draft, like the European kids who pursue the same path. But the NBA eligibility rules have a curious wrinkle that treats American kids differently than European kids and he will not be eligible until the following year when his current classmates graduate.

Alan Milstein

Alan Milstein

Jennings mounts a quiet revolution while Madness reigns

By Vincent Thomas, for NBA.com
Posted Mar 27 2009 10:31AM

Instead of helping the resilient Arizona Wildcats maim the No. 1 seeded Louisville Cardinals on Friday, my favorite teenage ballplayer and best pro prospect will be toiling somewhere in the Mediterranean, which, in March basketball terms, is no different than floating in the ether. Forget Stephen Curry. The real injustice is that I don't get to watch Brandon Jennings out-flair and out-strut competition in the NCAA Tournament, all while resurrecting some retro haircut from the '80s just for the Madness. (Instead, I'll have to settle for Levance Fields and his cornrows. Not a bad Plan B, I guess.) Jennings, as we know, chose to go be a sports pioneer with a squad you probably never heard of in a country on the other side of the world. Some have likened the young cat to Jackie Robinson. We'll see.

For a pro basketball zealot like me, college basketball's main function is to sift through the glut of players and key in on the professional talent. It's a platform for me to conclude that, no, DuJuan Blair may not be Larry Johnson, but, yes, he's a pro talent; it allows me to determine if Hasheem Thabeet will more likely be a Dikembe Mutombo or Patrick O'Bryant.

In 1995, Kevin Garnett shook up decades of convention when he skipped the "college showcase" and jumped straight to the NBA. Others followed. But then, in 2005, commissioner David Stern, the owners and the Players Association put the young fellas -- no matter how precocious -- on ice and told them to go ball in college for a year before they came knocking at the league's door. Technically, there were other options, like prep school, the NBA D-League, etc. But we all know the unpaid realm of the NCAA was the true farm system. That was until Jennings took his ball, showmanship and evolving game to Italy to play for Pallacanestro Virtus Roma. His point guard peer, Jrue Holiday, will likely leave college after this season with barely a year's worth of college credits and relatively empty pockets. Jennings is reportedly being paid $1.2M to get a pro basketball baptism. His decision is groundbreaking in its defiance of the "system."

Rome is where ESPN writer Chris Broussard shadowed the youngster last summer and documented some of his struggles acclimating to a new societal and sports culture. Italy is also where Bryant Gumbel caught up with Jennings for a revealing segment on this month's Real Sports on HBO. Gumbel -- a journalist as venerable and serious as they come -- referred to Jennings as a "reluctant revolutionary." At one point he asked Jennings if playing in Rome was like "purgatory"; somewhere he was stuck because he wasn't "allowed" to go to NBA Heaven. Jennings shrugged, with a smile too honest, and said, "I guess. Yeah." Then Gumbel -- on a whim, but in hopes of casting some perspective -- added, "could be worse." "Yeah, it could be," the youngster said after a beat. "I could be in college ... I could be in class right now." It made Gumbel reel in laughter. I just sat in front of the TV, smiling, pumping my fist like I was Arsenio Hall or something.

For anyone that wants to get into wrangling about that comment's perceived lack of respect for education, and the deeper truths it reveals about the ambivalence that undoubtedly fuels the education gap facing the black community, it speaks to a more condemnable idea -- the sham of the "student-athlete" in big time college basketball. "One and done" is the new "straight to pro," only now the young savants don't get paid and end up flouting any real semblance of an academic mission. It has anti-establishment, pro-player antagonists like Sonny Vaccaro -- the man responsible for the rise of high-profile AAU ball and Jennings' broker in his deal with Roma -- excoriating the NBA and NCAA's relationship as an "unholy marriage" and old-school NCAA guardians like Bob Knight calling for the league to raise the age minimum.

Apparently, a one-year restriction is not enough. Some folks, including Stern, are seriously considering raising the league-mandated age minimum to 20 when the collective bargaining agreement is up in 2011.

I spoke to the Commish last season about a range of topics, focusing on how the league handled challenges and potential problems, only to come out years later in better shape than many of us predicted. With the NBA's image troubles in the rearview, I asked Stern why he would cause another potential uproar by challenging the age limit. Again. So soon.

He said, matter-of-factly, that he's not going to lose sleep over it, that it's always a negotiation, but that it's also something that he feels is in the owners' best interests. I won't argue that. But what about the young dudes?

With a possible lockout looming and players searching for areas of concession, it seems like denying access to non-union members and competition for finite roster spots might be among the first issues addressed. And, at that point, the legal precedent of Maurice Clarett's failed suit against the NFL and its three-year eligibility rule is an ominous sign for any teen looking to immediately put his talents to work in their "industry's" most financially rewarding and viable organization.

That's why Vaccaro would say, with a straight face, that Jennings has the opportunity to be a trailblazer on the level of The Trailblazer, Jackie Robinson. But that's only if Jennings' successors follow his lead.

This week's Newsweek cover story professes to be "The Thinking Man's Guide To Populist Rage." It details ways for government to harness the angst and outrage at all the bailouts and bonuses and private jets and other linchpins of greed and excess. Part of the umbrella question asks, "Do populist outbursts like the one sparked by the AIG bonuses represent a threat to capitalism?"

Ahhhh, the old Marxism threat of proletariat uprising. Obviously, I'm not advocating a hostile revolt. I don't realistically envision a mass exodus of athletes off college campuses to the D-League or overseas.

But, boy, would I love for a critical mass of "reluctant revolutionaries" to Be Like Brandon. Change the culture. Change the options. Do you, on your terms. After playing against grown men for the past few months with a pro contract, Jennings is already hundreds of thousands of dollars richer and a much tougher and prepared player for the competition and rigor of American professional basketball. And it's tough love overseas, too, with coaches like Jasmin Repesa and players calloused by everything from circumstances to previous failures.

It all rides on Jennings and where he falls in the Draft. While his peers are facing the high stakes of win or go home, Jennings faces a more selfless burden (albeit indirectly) of a Movement. If he's drafted high, his decision to play overseas will be a more attractive and feasible option for the John Walls and Jordan Hamiltons and any other brave soul.

So, yeah, I feel ripped off that I can't watch Jennings on the NCAA's grand stage. But I'm never one to begrudge a could-be revolution.

Vincent Thomas writes "The Commish" column for SLAM Magazine and is a contributing commentator for ESPN. His "From The Floor" column appears weekly on NBA.com. Vince invites your feedback at vincethomas79@gmail.com.

Here is a Post  over at Sports Log Blog about an upcoming panel at Yale University where I will be a participating panel member.

Yale Law School Sports Litigation Panel

Next Wednesday, February 25th, Yale Law School will be hosting a panel discussion on sports litigation.

I am honored to be moderating the event, which has some phenomenal speakers.

The panel will take place from 4:10 to 6 p.m. and is open to the public.

Here are the details:

Yale Law School

Yale Entertainment and Sports Law Association hosts a Panel Discussion on Sports Litigation

February 25 2009 4:10 to 6:00 p.m.

Moderator:

MICHAEL MCCANN (Professor at Vermont Law School; Legal Analyst at Sports Illustrated)

Panelists:

HAL BIAGAS (Deputy Counsel, National Basketball Players Association; plays a lead role in collective bargaining for players and has advised Stephon Marbury in his on-going dispute with the New York Knicks)

BILLY MARTIN (has litigated on behalf of Michael Vick, Allen Iverson, Jayson Williams, and other athletes; has represented other notable clients, including U.S. Senator Larry Craig and the parents of former White House intern Monica Lewinsky)

ALAN MILSTEIN (has litigated on behalf of Maurice Clarett, Allen Iverson, Eddy Curry, jockey Eddie King, and other athletes, and also a nationally-recognized expert on bioethics and clinicial trials litigation)

JEFFREY MISHKIN (has litigated on behalf of the National Basketball Association in all of the league's key litigations over the last 20 years, including in NBA v. Williams and NBA v. Motorola; formerly served as Executive Vice President and Chief Legal Officer of the NBA)

JAY REISINGER (legal adivser to Andy Pettitte and Sammy Sosa during Mitchell Report and Congressional hearings on steroids; also represents MLB players in salary arbitrations)

MICHAEL ZARREN (Assistant Executive Director of Basketball Operations and Associate Counsel of Boston Celtics; directs Celtics in legal matters, including those concerning player contracts and endorsement and licensing deals; also plays a key role in the evaluation of players)

Special thanks to Michael Bloom, a 3L at Yale Law School and Co-Chair of the Yale Sports and Entertainment Law Association, for putting this event together. For information on attending, please contact Michael at michael.bloom[at]yale.edu

Alan Milstein

On Monday February 9, 2009, the New Jersey Senate Judiciary Committee passed legislation which requires palimony agreements to be in writing and signed to be enforceable.  The legislation modifies N.J.S.A. 25:1-5, which requires that pre-nuptial agreements be in writing.  The Statute provides: "A promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of such relationship or after its termination" shall be in writing and signed by the party to be charged.

Palimony claims are expensive and difficult to litigate because the claims are intensely fact sensitive, unavoidably acrimonious  and are not based upon express agreements.

To prove a case of palimony, the person seeking support must establish (1) that the parties are in a marriage-type relationship; (2) that, during this period of cohabitation, defendant promised plaintiff that he/she would support him/her for life; and (3) that this promise was made in exchange for valid consideration.

The principal of palimony rests on the notion that "a marital-type relationship is no more exclusively dependent upon one partner's providing maid service than it is upon sexual accommodation.  It is, rather, the undertaking of a way of life in which two people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship, and fulfilling each other's needs, financial, emotional, physical and social, as best as they are able.  And each couple defines its way of life and each partner's expected contribution to it in its own way."  Levine v. Konvitz, 383 N.J. Super. 1, 3 (App. Div. 2006).  

The law of palimony has been the subject of recent controversial decisions, which prompted the new legislation.  In 2008, the 3rd Circuit Court decided, Carino v. O'Malley, which complicated this area of law by dispensing with the requirement that cohabitation is a necessary element to prove a claim for palimony.  

The Statute provides certainty where, prior to the new legislation, litigating palimony claims was like a boxing match, one loses big and one wins big, but everyone comes out bloodied.

Matt Podolnick 

               

This first appeared at Sports law Blog.

In a long awaited decision, an Ohio state court has ruled in favor of Oklahoma State University star pitcher Andrew Oliver. You might recall, Oliver was suspended by OSU before a critical college tournament game after news emerged that years before he had met with Minnesota Twins representatives with his attorneys while contemplating whether to retain his amateur status and attend college or turn pro after high school. NCAA Bylaw 12.3.2 allows amateurs to retain attorneys or advisors while considering such options as long as such professionals are not present at any meetings with professional clubs.

Oliver challenged his suspension in the Court of Common Pleas of Erie County, Ohio, arguing among other things, that such a rule interfered with his attorney client relationship and was against public policy, kind words for a rule that is emblematic of NCAA hypocrisy and arrogance. The NCAA presumably wanted 18 year olds and their families to have to deal with professional clubs without professional help, thus limiting the ability to choose the best option between turning pro and remaining ineligible until the athlete’s junior year. Oliver also challenged his suspension under Bylaw 19.7, which essentially allows the NCAA to punish member schools if they do not immediately suspend an athlete the NCAA finds has violated one of its sacred By Laws.

Judge Tygh M. Tone’s Opinion is remarkable on several fronts. First, the Judge held that student athletes are third party beneficiaries to the agreements between the NCAA and its member schools and that the NCAA thus owes a duty of good faith and fair dealing towards student athletes. Those are concepts long missing from the manner in which the NCAA treats the kids on the playing fields and in the gyms on college campuses across this country. Second, the Judge declared NCAA By Law 12.3.2 “unreliable . . . capricious…illogical . . . and arbitrary” and declared it void and unenforceable. The Judge made a similar finding with respect to By Law 19.7, also declaring it void.

The Court then enjoined the NCAA from issuing any disciplinary action with respect to Mr. Oliver and announced the case would proceed to the next step of establishing damages Oliver suffered by the tawdry treatment he received from an institution thought to be impervious to the standards that govern the rest of us.

Alan Milstein

     

   Divorce litigation has been characterized in many terms, none of which is attractive.  Divorce, if nothing else, is emotional, complicated and expensive.  Whether carving up 401(k)s, IRAs, and stock options, valuing businesses or tackling child custody, divorce litigation takes its toll on the parties and consumes all aspects of their lives.

          Adding to the fire, a recent New Jersey trial decision has paved the way for a mother or father to bring a claim in the divorce action against the other for intentional infliction of emotional distress and seek monetary damages as a result of the other parent’s poisoning the relationship with the children.  The Hudson County case, Smith v. Smith, grappled with the issue of whether pursuing damages under a theory of intentional infliction of emotional distress is a veiled attempt to seek damages for alienation of affections, a cause of action which was abolished by statute in 1935.

          The trial Judge found that the claim for intentional infliction of emotional distress is a separate and distinct claim and may proceed.  The matter is complicated because a Morris County trial Judge found the opposite in August 2008.

          It is important that the New Jersey Court’s address the issue of alienation of affections.  Nothing is more painful than a child’s affections being torn away by the other parent.  Alienation of affections is difficult and expensive to prove.  To establish the claim, it is necessary to have expert testimony from the appropriate mental health professional.  Moreover, the children would be thrown into the litigation, by meeting with the therapist and possibly testifying.  This makes pursuing the issue extremely expensive, prolongs the litigation and involves children in a process from which they should be kept far away.      

Matt Podolnick

Minnesota has become an odd crime capital.  Yesterday, a story was circulated about sexual misconduct charges leveled at some male executives stemming from conduct at a Hilton Hotel banquet facility. Today, the Smoking Gun reports that a group of teenagers working at a Minnesota nursing home abused and sexually humiliated elderly residents suffering from Alzheimer's disease and dementia.

According to the report, six young female caregivers were named in criminal complaints charging them with a variety of cruel behavior. Apparently, nursing home residents were spat upon, spanked, improperly touched, and tormented by the teenager caregivers.  These wonderful children allegedly poked one resident's breasts, spit into the mouth of another elderly person, and one caregiver in particular purportedly "put her bare butt" in the face of a nursing home resident, "inserted her finger into a resident's rectum," spit water on another "vulnerable adult," and would deliberately bathe a resident in a rough manner so the elderly man would become physically excited. The minor caregivers are charged with 11 criminal counts and face a year in jail.

This is actually insane.

John M. Hanamirian

A Colorado newspaper reports that a hunter thinking two gunshots with his .270-caliber rifle had killed a male deer he had hunted was woefully wrong.  The hunter said the deer looked dead to him, but seconds later the nine-point, 240-pound animal came to life.

The deer apparently got up, knocked the hunter down and attacked him with his antlers. The deer ran a short distance and went down, and died after the hunter fired two more shots.

Soon thereafter, the report states, the hunter started feeling dizzy and noticed his vest was soaked in blood. He  required seven staples in his scalp and was treated for a slight concussion and bruises.

The hunter described the ordeal as "15 seconds of hell." The deer was not fortunate enough to comment on how the gunshots affected him.

John M. Hanamirian

A worker died after being trampled and a woman miscarried when hundreds of shoppers smashed through the doors of a Wal-Mart Friday morning.

The unidentified worker, employed as an overnight stock clerk, tried to hold back the crowds just after the store opened at 5 a.m. Apparently, the shoppers knocked the man down, he fell and was stepped on until he died. In the same store around the same time, a woman was knocked down just a few feet from the dying worker. She was pregnant. A witness relayed that:

"When the paramedics came, she said 'I'm pregnant".

Paramedics treated the woman inside the store and then, according that witness, told the woman:

"There's nothing we can do. The baby is gone.

Okay, let's stop this.

John M. Hanamirian

U.S. Unveils New Programs to Ease Credit read the headline in the 
November 25 Edmund L. Andrews Times Article. Massive programs are not 
needed.  The Financial Market Plan is simple.  First, each homeowner 
is allotted up to $500,000.00 of mortgage relief on their principal 
residence. That amount equates with the current married taxpayer 
capital gain exclusion on the sale of a principal residence. Second, 
no money actually changes hands; it is all a paper transaction. The 
lending institutions still get the bailout monies they are currently 
receiving, but that money is used by them to cover the three to six 
month income gap created when the individuals for whom the relief is 
provided no longer are making mortgage payments or are making payments 
on a now lesser mortgage principal balance. Third, what will those 
homeowners do with their newfound wealth? They will do what all good 
American consumers do, spend it either by selling their home that now 
has a reduced or no mortgage at all and with the acquisition of a new 
home, obtain a new mortgage or just good old fashioned spending the 
money in retail. A simple plan that will undoubtedly create the flow 
of cash necessary for recovery in a short period of time. We are 
already giving the lending institutions the money to cover their 
investment in what are the 2008 equivalent of "junk bonds".  While we 
are spending the money, how about we fix the economy?

John M. Hanamirian