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Tuesday, August 28, 2007
Thoughts on Michael Vick's Guilty Plea, Supersonics' Possible Move, and new NFL-Related EEOC Claims

Some thoughts and links on various topics:

Michael Vick Guilty Plea

I have a new Sports column on Michael Vick's trial, entitled "What's Next for Vick After Guilty Plea." I hope you get a chance to read it. I know I said my column, "Sports and the Law," would run once a month, but it may run more regularly.

I was also interviewed for a story by Tim Tucker in the Atlanta Journal-Constitution entitled "Vick's Wasted Fortune of Epic Proportions." It's an excellent article, particularly for those of you interested in how the Falcons can get their money back from Vick--who may end up losing over $100 million. I also discussed this topic in an interview with Chris Clark of Sports Radio 850 (Raleigh, North Carolina)--thanks to Chris for having me on last night.

Can Seattle Keep the Sonics?

The Sonics may have received a breath of fresh air in the off season by adding two outstanding young players in Kevin Durant and Jeff Green. But the people of Seattle may not enjoy the franchise's resurgence for long, as Sonics' owners, dissatisfied with the city-owned KeyArena and frustrated by the city's reluctance to build a new arena, want to move the team to Oklahoma City. Their capacity to do so may come down to a specific performance clause in the Sonics' contract with the KeyArena.

I discussed the significance of the specific performance clause with Jim Brunner in his terrific Seattle Times story on the topic entitled "Can Lease Keep Sonics Here?" (and many thanks to Jim for linking to Sports Law Blog on the Times' website--and a welcome to those of you who came to our blog from the Times). Jim also interviews University of Alabama Law Professor Alfred Brophy, who writes for PropertyProf Blog, for the story.

Be sure to also check out Henry Abbott's excellent coverage of the Supersonics possibly moving on True Hoop.

Odell Thurman and Torrie Cox filed EEOC claims against NFL

A few weeks ago, I wrote about Roy Tarpley's successful EEOC claim against the NBA. Tarpley, a longtime alcohol and drug abuser, based his claim on the American with Disabilities Act. The post generated a number of terrific reader comments, and I appreciate all of those who commented.

We now see two suspended NFL players, Odell Thurman of the Cincinnati Bengals and Torrie Cox of the Tampa Bay Bucs filling discrimination claims with the EEOC. Both players claim that they were suspended for being alcoholics in violation of the ADA, and they cite Tarpley's successful claim as support for their proposition.

University of Mississippi School of Law Professor Paul Secunda, who is Chair of the AALS Section on Employment Discrimination Law and an editor of Workplace Prof Blog, examines the claims and how those currently abusing alcohol are not covered by the ADA, while those who have a record of alcoholism and have received treatment are considered disabled for purposes of the ADA. Paul's post is a great read.

Additional great comments on these claims come from David Fischer, who practices at Shook Hardy & Bacon in D.C. and is an editor of Antitrust Review. He lays out the claim:
Odell Thurman, a young, promising but deeply troubled linebacker for the Cincinnati Bengals filed a disability complaint with the EEOC against the Bengals and the NFL claiming he is being discriminated against because he is perceived as an alcoholic. Not surprisingly, Thurman's lawyer mentions the Tarpley case . . .

Thurman was drafted by the Bengals in 2005 (from Georgia), started as a rookie (middle linebacker) and lead the team in tackles (148 tackles, one sack, five interceptions, nine passes defensed and four forced fumbles). Bright future ahead of him (especially playing for Marvin Lewis who has always had great middle linebackers). During the off-season, he missed a drug test and was suspended for four games. During his suspension, he was arrested for DUI and the suspension was increased to a year. He applied for reinstatement this past summer but was the reinstatement was denied. This was a surprise since the Bengals (and Thurman) thought he would be reinstated and said so publicly. One reason for the optimism was that he had served his suspension and was in compliance with all of its terms (or at least the Bengals thought so).

I am surprised that - as far as I know - the players association has not appealed the denial of reinstatement or publicly commented on it. I would think the union would NOT take kindly to the league refusing to reinstate a player who has served his suspension and complied with its terms. If I was the union, this would be a major issue I would want addressed.


I'm curious, does the judge know what was in the superseding indictment? I realize that it never became part of the charges, but can the judge use his knowledge in deciding how long Vick should serve?

I have heard that a first-time offender gets a break. But what if the offender is the whole brains and money in the illegal enterprise? I see all kinds of first-time offenders (usually white-collar), get very severe sentences, even when they are old. The Enron bunch, Michael Milikan, Martha Stewart, the hotel lady that just died (Queen of Mean).

It could be argued that this enterprise would never have existed to this extent if Vick had not bank-rolled it.

Three things about his speech I think looked a bit contrived. First of all, he found Jesus. I'll leave it at that.

Then he claimed he made a MISTAKE. Running an illigal operation that buys, trains, kills, and fights dogs across state lines for 6 years, is not a mistake.

Toward the end of his speech he tries to make the audience just like him or visa versa. He said "We've all made mistakes"

I just don't see how this nuance language makes points with this judge. From the comments made from the judge, he seems like a plain spoken man. I doubt he will be swayed by Vick's dialogue.

I think you make a good point about doing something for the community. Maybe Habitat for Humanity. I'd stay away from dog groups. Vick is a bit thin-skinned, and it might end up putting him back in the headlines.

Anonymous Anonymous -- 8/28/2007 7:37 PM  

I guess we can only guess what the judge will do. The Associated Press 8-22-07 had a article "Vick Judge has tough-but-fair reputaion"

The article said in part: "Tough but fair" is the description most often heard from lawyers who appear before Hudson, who owns a bichon frise dog and declined to be interviewed.

"He's a good trial judge, but on sentencing he tends to be in the middle or upper range of the sentencing guidelines," said attorney Murray Janus. "A lot of judges start at the low end. Not Judge Hudson."

Still, Smallenberg was caught off-guard by how hard Hudson came down on his client. The judge sentenced Robert Evans to 10 years in prison -- double what was called for under federal sentencing guidelines -- declaring "the abuse of trust here is absolutely immeasurable."

"I wasn't surprised he went above the guidelines, but I was surprised he went that far," Smallenberg said Thursday.

I wonder how Judge Hudson would describe Vick? If I were Vick, I would not be too confident that it's going to be on the low side. It was a first offence for Evans.

Anonymous Anonymous -- 8/28/2007 10:09 PM  


PATA seems to be the pot calling the kettle --well you know.

PETA (Still) Kills Animals

Posted On March 3, 2006

Washington, DC -- People for the Ethical Treatment of Animals (PETA) has just updated its animal-control statistics for 2005, and the numbers aren't pretty. According to the Virginia state veterinarian, PETA killed 1,946 cats, dogs, and other pets last year, in addition to 141 wild animals. In 2005 PETA managed a startling 90 percent kill rate (worse than the 86 percent the year before), adopting or transferring out only 215 animals. Added to PETA's earlier numbers, these new figures tell us that since July 1998 the group has killed over 14,400 cats, dogs, and other pets in Virginia.

“Pet lovers should be outraged,” said Center for Consumer Freedom Director of Research David Martosko. “PETA relies on the good will of compassionate Americans who will be shocked at its hypocritical angel-of-death routine. There are hundreds of worthwhile animal shelters that deserve Americans’ support. PETA is not one of them.”

Virginia isn't the only place where PETA is killing animals. In neighboring North Carolina, two PETA staffers have been charged with felony animal cruelty and obtaining property (the animals) by false pretenses. Adria Hinkle and Andrew Cook allegedly killed cats and dogs in the back of a PETA-owned van, stuffed their bodies into trash bags, and threw them into a dumpster. The pair is currently awaiting trial.

Martosko continued, “PETA’s president is on record saying that her organization is dedicated to ‘total animal liberation.’ And her employees are following through by liberating adoptable animals from life itself. In September, PETA bragged about bringing 32 stray dogs back to Virginia from the Hurricane Katrina disaster area. I’m guessing at least 28 of them have already been put down.”

To view photos of the dead cats and dogs allegedly killed by PETA (Warning: These are graphic images of animal cruelty), or for more information about the group’s massive euthanasia program, visit

To schedule an interview contact Andrew Porter at (202) 463-7112.

The Center for Consumer Freedom is a nonprofit coalition supported by restaurants, food companies, and consumers, working together to promote personal responsibility and protect consumer choices.

For media comment, contact our media department at 202-463-7112 ext 115

Copyright © 1997-2007 Center for Consumer Freedom. Tel: 202-463-7112.

Anonymous Anonymous -- 8/29/2007 3:06 AM  

(Cross-posted on Workplace Prof):

Thurman was suspended the second time (or his initial suspension extended) for a DUI, not specifically for using alcohol. So what is the rule if the suspension is based not on abusing alcohol itself, but on a violation of a specific legal rule, albeit a violation that occurred because of the disability of alcoholism?

Let's assume that six months of sobriety means someone no longer is actively abusing alcohol. If Thurman's argument flies, does it mean that a league punishment of longer than six months for a DUI (or any other alcohol-related misconduct by an alcoholic) violates the ADA, if the person has stopped drinking? Does it also mean that a criminal punishment of jail time or probation longer than six months for DUI violates the ADA, if the person has stopped drinking? That seems like a boundless argument.

Blogger Howard Wasserman -- 8/29/2007 2:53 PM  

Professor McCann, I hate to use this term, but is the EEOC not starting us down a "slippery slope" with the Tarpley ruling? If, by their determination, someone has an addiction that they have received treatment for, and will not affect their performance of their intended job, what is to keep any kind of addict from claiming the same kind of discrimination once they have received "treatment".

Could Pete Rose seek treatment for his gambling addiction, then ask Major League Baseball for reinstatement so that he may manage a minor-league team somewhere? And once MLB shoots him down yet again, he could turn around and file suit against MLB after claiming discrimination under ADA since the EEOC claims an addiction is protected?

Anonymous Ryan Kendall -- 8/29/2007 7:38 PM  

Seattle would do itself a favor by working something out to try and keep the Supersonics in town. They need to find a way to build that team a new arena because Key Arena is a dump. Oklahoma City? Look, I know that they have built a new arena trying to lure a pro sports franchise to their city but I have been to Oklahoma City and it is not that big. It's maybe a little bit bigger than Jackson, MS for those of you in Professor McCann's Sports Law class to relate to. Plus, how well would an NBA team do smack in the middle of football country. Don't kid yourselves, Oklahoma (just like Texas and many other southern state) is football country. An NFL team in OKC? Maybe, if enough Cowboys fans can convert. But the NBA? I just don't see it being viable there long-term. But then again, I could be wrong. I'm from Nashville and people said that hockey would never work there. But now the Nashville Predators are rapidly gaining popularity there. It will be interesting to see how this plays out for the Supersonics if and when they move.

Blogger John Biggs -- 8/29/2007 8:45 PM  

"I am surprised that - as far as I know - the players association has not appealed the denial of reinstatement or publicly commented on it. I would think the union would NOT take kindly to the league refusing to reinstate a player who has served his suspension and complied with its terms. If I was the union, this would be a major issue I would want addressed.

Fischer obviously has not seen this piece by's Howard Bryant. It is actually about the Vick case, but Bryant is calling out the NFLPA for not defending its players more vigorously. He believes the union values labor peace above all else - and given the prosperity of the league and its players (not to mention what a lead balloon the last players' strike turned out to be for the union) I can hardly blame them.

Blogger Joshua -- 8/30/2007 7:31 PM  

Actually, I had read the Bryant article. While I think the NFL player's union has done a great job increasing the average NFL player's salary the last decade, that does not mean that a union should choose to never oppose the NFL. I heard a report on ESPN today that the union will seek to prevent Vick from losing his signing bonus. If they are doing this, why not help Thurman practice his trade?

Blogger David -- 8/31/2007 6:42 PM  

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