Monday, April 27, 2015

Second Shooter: Why The Pageau Goal Was Not Reviewable

Down by a goal and facing elimination in Game 6, the Ottawa Senators were playing for their lives Sunday evening against the Montreal Canadiens.

It looked like the Senators tied it up at 1 when Mark Borowiecki's shot was mishandled by Carey Price and Jean-Gabriel Pageau swooped in and knocked in the rebound.

The problem: before Pageau shot the puck, referee Chris Lee blew the play dead when he lost site of the puck. No goal. 

Here's the play as it unfolded:

There has been some talk that the goal was reviewable. The play, however, was not reviewable. While it should clearly have been a goal, this was not an instance where the play could have been overturned via video replay. 

The confusion stems from the NHL's summary of its new rules, which was published back in September. In the summary, the NHL announced that the new video review rules would "allow Hockey Operations to provide guidance to referees on goal and potential goal plays where the referee has blown his whistle (or intended to blow his whistle) after having lost sight of the puck."

The wording is sufficiently broad to capture the Pageau goal since it basically says a play can be reviewed if a goal was scored after the play was blown dead.

Here's the problem: the summary of the rule is not the actual rule. The actual rule, which is Rule 38.4(viii), is a lot narrower in scope. 

This is what it says:
The video review process shall be permitted to assist the Referees in determining the legitimacy of all potential goals (e.g. to ensure they are “good hockey goals”). For example (but not limited to), pucks that enter the net by going through the net meshing, pucks that enter the net from underneath the net frame, pucks that hit the spectator netting prior to being directed into the goal, pucks that enter the net undetected by the Referee, etc. This would also include situations whereby the Referee stops play or is in the process of stopping the play because he has lost sight of the puck and it is subsequently determined by video review that the puck crosses (or has crossed) the goal line and enters the net as the culmination of a continuous play where the result was unaffected by the whistle (i.e., the timing of the whistle was irrelevant to the puck entering the net at the end of a continuous play).

The key part of this rule is the reference to "continuous play". The play is only reviewable if we are dealing with a continuous or uninterrupted play. 

Borowiecki took the shot, Price stopped it, lost sight of it and then Pageau jumped on the loose puck. 
That is not considered a continuous or uninterrupted play. 

It has two distinct components: the Borowiecki shot and the Pageau shot.

If Borowiecki had taken the shot and it got by Price after a quick whistle, then it would have been a continuous play and therefore reviewable. The second shooter (Pageau) broke up the play, which is ultimately fatal if you were looking for video review.

For that reason, the play was never reviewed. Rule 38.4 more appropriately applies to a scenario where a shot is taken, the goalie gets a piece of it, the whistle blows and the pucks slides or trickles into the net without anyone else laying a stick on it. That's what happened in Vancouver when Jannik Hansen was credited with a goal after the play was reviewed:

One more thing. Price is a great goaltender who doesn't give up many rebounds. It's possible that had another goalie been in that net (like Jimmy Howard), the whistle would have been blown later. Effectively, Price's reputation - and not Price - made that save.

And another thing. We too often hear in similar circumstances that the team victimized by a terrible call had plenty of other opportunities to score but couldn't capitalize. The idea of course is to diminish the importance of the bad call. At a fundamental level, this statement is flawed. In sports today, there is not only parity among teams but also among athletes and often times games turn on a single moment. 

And Pageau was one such moment. 

Friday, April 17, 2015

TSN Article: Why Aaron Hernandez Will Spend His Life in Prison

Aaron Hernandez has been convicted of first degree murder. Click here to read my TSN article on how we got here, what this means and what's next.

Thursday, April 16, 2015

Subban On Stone: No Ordinary Slash

In Game 1 between the Canadiens and Senators, PK Subban slashed Mark Stone sending the forward to the ice in obvious discomfort. Subban was assessed a major for slashing, which in turn calls for a game misconduct (I wrote about that here during the game because I was lonely).

As a result of the slash, Stone suffered a micro-fracture in his wrist together with ligament damage. Subban was not suspended for the slash.

Slashing is not an uncommon occurrence in the NHL. We see it repeatedly every game. It's part of the game and part of the culture.

Now to the hard part because I'm a diehard Habs fan. I love my Habs. I once pretended Jean-Jacques Daigneault was my father. I also pretended to lift André Racicot's spirits.

Subban's slash was no ordinary slash. At the time of the slash, the puck was nowhere near Subban or Stone. Erik Karlsson had the puck at the Habs blue line and Subban and Stone were in front of the net.

But puck location by itself is insufficient to characterize the Subban slash as crossing the line. Those types of slashes away from the play happen all the time. I was slashed by an old lady at the grocery store today while buying some milk. Again, it happens a lot.

The problem with the Subban slash is that it's more like a tomahawk chop. That together with the location of the puck makes the hit dangerous, reckless and frankly unacceptable. 

Look for yourself:

Subban rears back with his stick and chops down on Stone. This isn't hockey. I'm sorry.

For a Habs fan, Subban's actions are gravely disappointing. This is a person who would have welcomed the captaincy of the Canadiens. This entire incident - from the slash that put his team a man down for 5 minutes to the half-dressed tantrum he threw after being tossed - suggests he still has some maturing to do. This is not how leaders behave. If Subban wants to be a captain one day, he needs to act like a professional.

By way of full disclosure, I am a big Subban fan. Subban is a spectacular and gifted defenceman. He’s a terrific skater, has a great shot, is physical, has great vision and is clutch. In short, Subban is pretty special. I wrote about it here

That being said, Subban can do better - and he will do better.

Now on to the absence of a suspension. For me at least, the snapshot above clearly demonstrates that this was no ordinary slash. Subban's actions, in my view, are suspendable. And let's not get distracted by intention, which is too often misapplied. So long as Subban intended to slash Stone, he is responsible for the harm that follows. That is a basic legal principle.  The other issue of intent - whether Subban intended to injure Stone - is a separate consideration that has the effect of increasing a suspension (and not vacating it altogether).

Subban intended the slash, and by extension, is responsible for the harm that followed - Stone's broken wrist. Yes, a suspension is warranted.

It is not difficult to understand why Subban escaped suspension. The hockey culture has indulged similar behavior in the past. It's part of the game so to speak.

The problem is that it shouldn't be. As a result of a reckless and ill-conceived slash, hockey fans will either be deprived of watching the likely Calder trophy winner play, or best case scenario, will get a watered down version. That's a damn shame, particularly for a team that had an unprecedented and historic run just to get into the playoffs.

The league should be protecting its players from unnecessary injuries.

This isn't good for the game.

And a suspension would have sent that very message.

Wednesday, April 15, 2015

Why P.K. Subban Was Tossed from Game 1 after Slash on Stone

P.K. Subban received a game misconduct for his slash on Mark Stone. For many, this was a surprise to see. How on earth did the referee make that call?

It all starts with Rule 61.3 of the NHL Rule Book, which provides as follows:

61.3 Major Penalty - A major penalty, at the discretion of the Referee based on the severity of the contact, shall be imposed on a player who slashes an opponent. When injury occurs, a major penalty must be assessed under this rule.

This Rule doesn't require that the player who was slashed be injured as a result of the slash (although it would probably help). Rather, the referee can assess a major penalty if in his discretion the slash was sufficiently "severe". That's a judgement call. 

Ok that's the rule for the Major Penalty. How do we go from the major penalty to a game misconduct? That's Rule 61.5:

61.5 Game Misconduct Penalty – Whenever a major penalty is assessed for slashing, a game misconduct penalty must also be imposed.

So the referee in his discretion believed the slash was sufficiently severe as to merit a major penalty. As a result, he then had no choice but to toss Subban from the game as per Rule 61.5.

It's not relevant that Stone came back to the game. All the referee has to believe is that the slash was severe enough to warrant a major penalty. Of course, if Stone didn't drop to the ice in a lot of pain, the call might have been different.

On to period three.

Saturday, February 28, 2015

Eric Lindros Lawsuit: The Problem With Paul Stewart's Defence

Earlier this week, I addressed the Eric Lindros defamation lawsuit against Paul Stewart in my TSN article "Legal Look: Lindros sues for defamation".

The real focal point of Lindros' claim is the denial he tore up Stewart's posters destined for a charitable auction. There are also denials that Lindros swore on the ice, but ultimately those allegations don't really matter too much. Lindros has been heavily engaged in charity work, and I expect the claim that he would undermine a charity in any way was the impetus for the lawsuit.

In response to Lindros' lawsuit, Stewart told NJ Advance Media that the "truth is always your shield." 

He's right - the truth is a complete defence to a claim for defamation. If Stewart can show that Lindros indeed tore up the posters and was told he did, Lindros' lawsuit will fail.

Remember Lindros only needs to show that Stewart's comments were capable of defaming him (which they clearly were); the onus then shifts to Stewart to show the comments were true. So defamation is a funny tort as its strict liability as the defendant (and not the plaintiff) needs to prove the key component of the case.

According to Stewart's own article, he never saw Lindros tear the posters. Rather, he was told by Flyers equipment manager Jim Evers that Lindros tore the posters. 

So here's the problem for Stewart: Evers is saying the whole thing isn't true. This is what Evers said on the Preston and Steve Morning show on WMMR: 
“I’ve been friends with Eric since the day he came to Philadelphia, and he would never do something like this. I’ve only ever seen him [Lindros] go out of his way to sign autographs for people. He’s not that kind of man.”
“I’ve known Stewie (Paul Stewart) for a while, he’s a UPenn grad, and you have to be pretty smart to go there. Maybe he had too many concussions over his career cause he wasn’t a very good hockey player, but I don’t know what would make him say something like that about Eric.” 
 “To my recollection, this never happened. I’ve known Eric for a very long time and he’s not the kind of guy who would do this."
So Stewart will need to establish that Evers is lying or bring in another witness to corroborate Stewart's version of events. 

This raises another problem for Stewart: who on earth would want to get involved in this mess? For example, I'm pretty sure Marc Recchi will want to stay as far away as possible. Note, however, that a witness who does not want to testify can be forced to do so by being served with a summons to witness.If they don't show up to testify, a warrant for their arrest is issued and they can brought to court to testify. So it's not totally a lost cause for Stewart but at the outset at least, things don't look great. Still, however, the case will turn on the evidence so we need to wait for Stewart's formal court defence (i.e., Statement of Defence).

Still the issue he faces is a substantial one. Since he did not witness the alleged destruction of the posters he will need to find someone who did. That is not going to be easy. Alternatively, he will need to establish that someone told him Lindros tore the posters. Again, tough one.

This raises the issue of the wisdom of writing an article attacking someone of doing something when you never saw it yourself. Relying on hearsay to defame someone is a risky proposition. Whether it's true or not, you may be inviting litigation.

As for Lindros, many have asked me why he's suing since his legal fees may well offset any damage award against Stewart. It's possible that Lindros is looking to change the narrative concerning his reputation. For some people at least, Lindros perhaps does not have the most positive reputation and reflecting back on things, he may want to correct the way he's perceived. Note, though, he's already done some tremendous charity work. For example, he's donated  $5 million to London Health Sciences Centre

So it's possible that's not at all the case. It may be as simple as Lindros just got fed up with people mentioning the article seven months after it was published.

Friday, November 28, 2014

Despite Winning Appeal Ray Rice May Never Play in the NFL Again

Running back Ray Rice has won his appeal. The celebration will be short lived, I suspect, as materially very little changes for Rice. He doesn't have a team and is unlikely to find one.

Here's my coverage of the story:

1) In this TSN article, I cover why Rice is unlikely to ever play in the NFL again. Spoiler alert - he's toxic.

2) I join TSN 1200 to talk Ray Rice.

Thursday, November 27, 2014

Full Coverage of NHL Player Jack Johnson's Parents Blowing His Money

It all started with Aaron Portzline's investigative report into Blue Jackets defenseman Jack Johnson having to declare bankruptcy after his parents blew is money.

Over his NHL career, Columbus Blue Jackets defenseman Jack Johnson has earned $18 million. In 2011, Johnson signed a seven-year, $30.5 million contract. And on October 7, Johnson filed for bankruptcy.

While the parents spending their kids money is not an isolated incident, the magnitude of Jack Johnson's betrayal is spectacular and astonishing. Also very surprising is a player declaring bankruptcy during his career (at the age of 27). Brutal and nuts.

Here is a summary of the coverage of the story:

2) My interview of Aaron Portzline of the Columbus Dispatch who broke the story.

3) My interview of Andrew Scott, sports agent at Octagon.

If you're a player, get a good agent and a good financial advisor. If your parents are Goldman or Sachs, use someone else. No family.

Wednesday, November 12, 2014

Friday, November 7, 2014

TSN Article: Can the Yankees Cut A-Rod

In light of the recent news that Alex Rodriguez has admitted to the DEA that he used PEDs, the question is now whether the Yankees can cut him.

For the answer, click here to read my TSN article.

Tuesday, October 21, 2014

TSN Articles: Pistorius & Voynov

I address the latest at

In this article, I discuss Pistorius' 5 year sentence and the possibility of appeal.

Here I write about Slava Voynov's criminal charges, prison time, the basis for the NHL suspension and his risk of deportation. 

Wednesday, October 8, 2014

TSN Article: Adrian Peterson Could Walk At Trial

My recent TSN article outlines the charges against AP, his jail time and why he may well walk at trial.

Read it here.

Thursday, October 2, 2014

Interview: Amani Toomer

Former elite WR for the Giants turned NBC radio host Amani Toomer joined me on my TSN radio show Offside yesterday. We first hit on the NFL as secondary law enforcement and his thoughts on Rice and AP.

After that, we did a rapid fire on a bunch of players including Kaepernick, Le'Veon, Donnell, Luck, Eli and Brady.

Amani is a top NFL analyst. He pulls no punches, isn't afraid to call it like it is and is also pretty damn smart.

Click here to listen.

Tuesday, September 30, 2014

Roger Goodell Should Not Step Down

There is no doubt that the NFL and the Ravens have mismanaged their handling of the Ray Rice case. They've told us that much.

When I interviewed Don Van Natta, the ESPN Outside The Lines Reporter and two-time Pulitzer Prize winner who wrote his expose on the Ravens handling of the situation, it was tough to conclude otherwise.

Calls for Roger Goodell to step down, however, are not only premature but unsubstantiated. While many believe Goodell saw the video, there is simply no concrete evidence to date to suggest that's the case.

Some argue he should resign on the basis that at the very least he should have known of the video's existence or was willfully blind to it. While I am sympathetic to that position, ultimately there is no evidence he knew of the dramatic and disturbing images on that video.

Historically, Goodell has been tough on all those associated with the NFL - players, coordinators, coaches and owners (see Vilma, Payton, Loomis, Vitt and Irsay).

So in light of Goodell's (fierce) past practice, what did he have to gain by covering things up? Not sure he did.

Perhaps a more likely scenario is that he treated this case as one in series of 89 domestic violence cases the NFL has faced since 2000 - and which have received on average a 2 game suspension. And perhaps a more likely scenario is that Goodell has become somewhat desensitized to instances of domestic violence and saw this as just another case.

The two videos are what caused the public uproar and backlash. However, there was no uproar or backlash in connection with the previous 88 domestic violence cases. And as a lawyer I will say this - that's what domestic violence looks like (and frankly sometimes it's a hell of lot worse).

And so perhaps a fair question to ask ourselves is whether as a collective we have become desensitized to domestic violence and whether, as a collective, we have also failed.

Thursday, September 25, 2014

TSN Article: It's Not Over for Tony Stewart

In my latest TSN article, I discuss the Tony Stewart case, including the grand jury process, the grand jury electing not to charge Stewart and what's next for Stewart.

In short, this isn't the end for Stewart. Expect Ward's family to sue Stewart for wrongful death. They hold him responsible for Kevin Ward's death.

Click here to read. 

Wednesday, September 17, 2014

TSN Article: Adrian Peterson's Indefinite Suspension & The Exemption List

Today, news broke that the Vikings had a change of heart and were suspending Adrian Peterson indefinitely by placing him on a mysterious Exemption List.

Click here for my breakdown.

TSN 1200 Radio: We Talk Adrian Peterson Indefinite Suspension

I join JR and Steve Warne on TSN 1200 to talk Adrian Peterson's indefinite suspension.

Click here to listen.

Tuesday, September 16, 2014

Bertuzzi Settlement: Who Generally Pays

The lawyers in the Steve Moore/Todd Bertuzzi lawsuit announced settlement recently. At this point, they are crossing the T's and dotting the I's with a view to formally dismiss the case with the Court. Once the dismissal is filed with the Ontario Superior Court of Justice, the lawsuit will officially come to an end. That should happen soon. That's correct - it's technically not over yet.

A common question that has been raised is who pays the Bertuzzi settlement, which may be in the tens of millions dollars. Is Bertuzzi on the hook for the whole amount? Do the Canucks or Orca Bay, the former owner of the Canucks, pay anything?

At law, an employer can be held liable for the acts committed by an employee in the course of his or her employment. This principle is called vicarious liability. That's why Steve Moore not only sued Bertuzzi, but also his employer Orca Bay.

So back to the question - who pays.

The terms of settlement in the Bertuzzi case are confidential so I can't speak to the actual arrangement. 

Generally, however, the lion's share of the settlement in these types of cases will be paid by the insurance companies. Bertuzzi's lawyer, Geoff Adair, was likely hired by the insurers.

There is a small wrinkle on the issue of the insurance coverage. Insurance policies typically will deny coverage in cases of criminal or intentional conduct. Bertuzzi committed a crime when he assaulted Moore and ended up pleading guilty to assault. That being said, Bertuzzi likely took the position that he did not intend to injure Moore, and as a result, the insurance companies may have stepped in and paid most of the settlement less any deductibles.

The other question I get a lot is this: how much is the settlement worth.

The short answer is I don't know and won't hazard a guess. The terms of settlement are confidential and will remain so. As well, anyone who is a party to the action will be contractually bound to keep the dollar amount strictly confidential, and breaching that agreement will come with penalties.

Monday, September 15, 2014

TSN Article: The Reactivation of Adrian Peterson

In this TSN article, I explain the charges against Adrian Peterson, his possible jail time, the legal options for the Vikings and what the NFL can do.

TSN Article: Judge Masipa Makes Grave Error in Conviction of Pistorius

Judge Masipa cleared Oscar Pistorius on the murder charge and convicted him on the lesser charge of culpable homicide. 

In my TSN article here, I explain why Judge Masipa made an error and should have convicted Pistorius of murder.

Friday, September 12, 2014

TSN's Off The Record: Pistorius, Ray Rice, Goodell & NHL Concussions

I join Michael Landsberg on his TSN show Off The Record. We take a 4 minute spin around the legal world of sports hitting on Pistorius, Ray Rice, Roger Goodell and the NHL concussion lawsuits.

Click here to watch.

Thursday, September 11, 2014

CTV National News: Why Judge Masipa Got It Wrong

I join CTV National News and discuss the Pistorius verdict. Click here to watch.

Same tie as below - sorry (same day).

CTV National News: Pistorius Verdict

I join CTV National News and break down the Oscar Pistorius verdict (day 1) in about 4 minutes.

Click here to watch.

Monday, September 8, 2014

TSN Article: NFL Could Revisit Rice Suspension

Here's my legal take in light of the breaking news of a new Ray Rice video showing him delivering a left hook to his fiancee at the time, Janay Palmer.

TSN 1260: We Talk Ray Rice and New Video

I join Dustin Nielson and Wil Fraser at TSN 1260 to discuss breaking news on Ray Rice. A new video has surfaced showing the RB knocking out his fiancee (at the time) in the elevator. 

We discuss what that means here.

Saturday, September 6, 2014

Tony Stewart & Possible Criminal Charges

As the investigation enters its fourth week, it remains an open question whether NASCAR race car driver Tony Stewart face criminal charges in the death of Kevin Ward Jr.

During a NASCAR race on August 9 in upstate New York, Ward’s car was spun out by Stewart. Furious, Ward unbuckled, climbed out of his car and walked onto the track to confront Stewart, at which point he was struck by Stewart’s car.

The District Attorney continues to investigate the death of Ward looking into whether Stewart, at the very least, intentionally revved his throttle as he passed Ward to put a scare in him. By hitting the throttle, the car fishtailed to the right into Ward, killing him. If the conclusion is that Stewart was looking to scare Ward, he could be criminally responsible for the death of Ward.

That would likely mean a second degree manslaughter charge. Also called involuntary manslaughter, this occurs when a person “recklessly” causes the death of another person. Reckless acts are generally deemed less serious or blameworthy than intentional acts. A conviction carries a minimum sentence 1 to 3 years in prison and a maximum period of incarceration of 5 to 15 years.

I wrote about the incident days for TSN here.

The DA is going to need strong evidence to be satisfied that criminal charges against Stewart are warranted. The track was dark, Ward was dressed in black and he put himself into an inherently dangerous situation by walking into oncoming traffic.

Bearing these circumstances in mind, it would be a surprise to see the DA pursue criminal charges against Stewart unless they believe the evidence, in its totality, suggests that Stewart not only failed to avoid Ward, but was reckless in the way he approached him. That reckless element is key and is your threshold for criminal charges.

I’m not making a declaration as to whether I believe Stewart intended to hit Ward or, at the very least, tried to scare him by getting close to him. I can’t crawl into Stewart’s mind to assess intent. And frankly, neither can the DA. So the evidence as a whole will need to be assessed to make a reasonable conclusion as to what likely happened that night.

And absent compelling evidence to the contrary, Stewart may get the benefit of the doubt and walk. 

While I have not had the benefit of reviewing the results of the investigation to date, my sense is that Stewart isn't likely to face charges. Of course, that could change depending on what the DA uncovers. Still, I would be surprised to see charges materialize.

That being said, it seems likely that Stewart will face a wrongful death civil lawsuit from Ward's family. If a person is killed as a result of the negligence or misconduct of another person, the surviving members may sue for "wrongful death". So long as the Ward family believes that Stewart is responsible, a lawsuit is inevitable.

Friday, September 5, 2014

TSN 1200 Ottawa: Bertuzzi/Moore

I joined Steve Lloyd and Chris Stevenson on TSN 1200 to discuss the Moore Bertuzzi settlement and what it means for the future of the game.

Click here to listen.

TSN Radio Toronto: Bertuzzi/Moore Settlement

I join Matt Cauz and Mike Hulk Hogan on TSN Toronto 1050 to talk Bertuzzi, Moore and Night Court's Markie Post.

Click here to listen.

Thursday, September 4, 2014

Interview: Former MLB Commissioner Fay Vincent

Anyone who has had the great pleasure of interviewing Fay Vincent, the former Commissioner of Major League Baseball, will tell you he is tremendous guest. And they're right. I interviewed Vincent and was left entertained by his insight wisdom, and above all, honesty.

Vincent and I covered a lot in our interview, including his time as Commish, his legacy, Bud Selig, Bob Manfred, Pete Rose, PEDs, Expos, Bart Giamatti, his close relationship with the Bush family and his time as CEO of Columbia Pictures.

Wednesday, September 3, 2014

Friday, August 22, 2014

Save By The LeVeon Bell: My TSN article on Bell, Blount and Blunt

I take a look at possible punishments against Leveon Bell and LaGarrette Blount, and by extension provide fantasy advice. Click here to read my TSN article on Bell, Blount and Blunt.

Wednesday, August 20, 2014

Bertuzzi/Moore: It Ain't Settled Until the Fat Bailiff Sings

It's settled.

It's not settled.

Hang on - it's settled.

Wait - it's not settled. And that's where we are now.

Until such time as a Notice of Discontinuance is filed with the Court, there is no settlement. This type of Notice is filed with the Court with the consent of both parties letting the Court know it's over. Anything short of that means it's not technically over. And technically means a lot. 

These things can go sideways at the 11th hour and it's not unusual to believe that settlement has been achieved when in fact it has not.

I mentioned yesterday on Twitter it was highly unusual, if not completely unprecedented, to see a play by play of the tail end of settlement talks. I've never seen that in the context of an Ontario action and expect I never will. That made me wonder as to the legitimacy of the claims being made.

Ultimately, it is unclear where this confusion is coming from. However, it does raise some interesting questions.

Tuesday, August 19, 2014

Bertuzzi, Moore & Possible Settlement

TSN’s Bob McKenzie is reporting that lawyers for Todd Bertuzzi and Steve Moore are engaged in “deep negotiations” with a view to settling the lawsuit. He has also reported that settlement is not yet finalized. There have been reports that the lawsuit has been settled. However, those reports are premature.

Moore NHL playing career ended in March 2004 when Bertuzzi, playing for Vancouver, jumped on Moore of the Colorado Avalanche from behind, and drove his head into the ice. As a result of the incident, Moore broke three vertebrae and will not play NHL hockey again.

Typically in civil cases (suing for money), parties are engaged in settlement discussions throughout the entire process. While it’s a standard occurrence, as the trial date bears down on the parties, there is an added incentive for the parties to settle. The certainty of settlement is often preferred to the uncertainty of a trial decision. Parties are further incentivised to settle in light of Court rules that penalize parties if they refuse a reasonable settlement offer.

Reports are that Moore is seeking about $38 million. I can’t confirm whether that is accurate. His lawyer Tim Danson, though, will consider a number of factors when arriving at a proposed dollar figure.

First, he will want Bertuzzi to compensate Moore for his lost NHL earnings. Bertuzzi would argue that Moore was a fringe fourth liner that had very limited earning potential and may not have stuck around the NHL. On the flip side, Moore will argue that at the age of 25 he was coming into his own and was poised to enjoy a long and fruitful career in the NHL. For example, Danson could take the position that Moore would have played 10 years at an average salary of $2 million a year, which would take his hockey earnings to $20 million. That number may be low for a 10 year veteran, but that’s q starting point. Ultimately, it is difficult to predict and the sides would each bring in experts to opine on the likely trajectory of Moore’s career. As you can appreciate, the sides would have entirely different opinions.

Danson will also want compensation for Moore’s lost future earnings outside of hockey to the extent that Bertuzzi is responsible. Danson has alleged that 10 years after the incident, Moore is still suffering from concussion symptoms and has difficulty focusing on a given task. As a result, Danson would argued that his client’s future earning potential has been substantially compromised.

Danson would maintain that Moore’s earning potential outside of hockey was likely to be substantial. Moore is a Harvard grad who had aspirations to work in the financial sector. Theoretically, he could have been a good earner, but because of his cognitive injury, he won’t be. As a result, Moore must be compensated for that loss.

Part of the monetary equation will include compensation for Moore’s pain and suffering and payment of part of his legal fees.

The issue of quantum is certainly a complex one and requires expert evidence. Both sides will likely have very different ideas of what constitutes appropriate compensation under the circumstances. But you can see how quickly things add up.

Under settlement is formally announced and all documents are signed, the case is not settled.

And one more thing: the terms of settlement will be confidential unless the parties agree for partial disclosure of terms. In cases with great public profile, that can happen. However, in this case, don’t bet on it.

Wednesday, August 13, 2014

My 2 Minute Tribute to Robin Williams With The Help of Louis Armstrong

Here's my 2 minute tribute to Robin Williams with the help of Louis Armstrong. It starts with audio footage from 1971, where a rising star is introduced to a nightclub.

May Mr. Williams find peace.

Friday, August 8, 2014

Pistorius Resources: Offside Articles & Radio Shows

Today the Oscar Pistorius trial ended. Judge Masipa announced that a verdict would be presented on September 11, giving the Court a little over 1 month to sort all this out. 

I have covered this trial in some depth. On my TSN radio show Offside I have played an analysed a lot of the testimony. I have also written a number of articles on this high profile trial. 

I have been asked a number of times if I believe Pistorius will be convicted of murder,

So at the risk of repeating myself, I have decided to reproduce links to my articles and radio shows, which outline my views on this case. I'm of course happy to answer any questions. You can send me your questions or comments through Twitter - @EricOnSportslaw.

The radio shows below where I carve out his testimony and comment is a good starting point. Don't mind all his crying.


August 7, 2014

July 3, 2014

April 7, 2014

March 4, 2014

February 22, 2013


April 9 Offside Radio Show: Start here for review of key testimony 

April 15 Offside Radio Show: Review of more testimony

April 22 Offside Radio Show: More of Pistorius testimony

Thursday, August 7, 2014

Tuesday, July 29, 2014

TSN Article: Sterling Loses Lawsuit

A Court is allowing the sale of the Clippers by Rochelle "Shelley" Sterling.

Here's a link to my TSN article outlining what all this means.

Wednesday, July 23, 2014

Edmonton Listeners Fill In the Blanks

Listeners of TSN 1260 have always been pretty engaged in the smash hit morning show hosted by Dustin Nielson and Will Fraser. Some of the best listeners around.

Dustin likes to play a game with the listeners where he poses this question: 

"TSN 1260 Legal Analyst and __________ Eric Macramalla FILL IN THE BLANK FOLKS."

Last week, there were so many great responses. Here are the top 5 Twitter replies:

5) Eric Macramalla TSN1260 Legal Analyst and famed Jeterologist

4) Eric Macramalla TSN1260 Legal Analyst and professional twinky tester.

3) Eric Macramalla TSN1260 Legal Analyst and newest Preds centre

2) Eric Macramalla TSN1260 Legal Analyst and Mario Van Peebles stunt double

1) Eric Macramalla TSN1260 Legal Analyst and "My Buddy" doll creator

Here's a sample of some of the text messages sent in:

Tsn 1260 legal analyst and full time young and the restless blogger 
TSN legal analyst & sexy librarian, Eric Macramalla   

TSN legal analyst & professional male model, Eric Macramalla
Tsn legal analyst and child star of 1960's Bulgarian soap operas Eric Macromella 
Legal analyst and collector of celebrity hair clippings. 
TSN 1260 Legal Analyst and next host of the hit TV show Survivor
TSN legal analyst & creepy ex-boyfriend, Eric Macramalla 
Tsn 1260 legal analyst and creator of "is that hair gel?" hair products.
TSN legal analyst and adult diaper fashion model.         

TSN legal analyst and traveling hair growth tonic salesman Eric Macramella

Eric Macramalla TSN legal analyst and falafel connoisseur. 

Tsn 1260 Legal Analyst and Co-Star of the Super Terrific Happy Hour with Jerry Seinfeld
Legal analyst and "Chris Tucker Impersonator"

Legal analyst and guy in front of you at the grocery store till who has to go back for 1 more item. 

Eric Macramalla - TSN1260 Legal Analyst and Bea Arthur body double. 

Tsn legal analyst and assistant to the general manager of the Yankees

Wednesday, June 18, 2014

CTV National News: Redskins Trademark Cancellation

I joined Marcia MacMillan at CTV News to discuss the cancellation of the Redskins trademark registrations. 

Click here to watch.

TSN Article: Cancellation of Redskins Trademarks & What It Really Means

Today the USPTO ruled that the Redskins trademarks are to be cancelled. As a result of this ruling, there has been some confusion as to what this really means for the Redskins.

I clear it up here at

Spoiler Alert: not as bad as many are saying.

Wednesday, June 4, 2014

TSN Article: Dan Marino - Why He Withdrew From His Lawsuit

Dan Marino is withdrawing from his concussion lawsuit against the NFL. I address the withdrawal in my TSN article here.

I also wrote an article on the actual lawsuit before he withdrew, which can be found here at TSN. 

Dan Marino Sues the NFL

Hall of Fame quarterback Dan Marino has filed his own NFL concussion lawsuit. Marino, along with 14 other players, filed the lawsuit on May 28, 2014 in the U.S. District Court for the Eastern District of Pennsylvania.

Marino joins a little under 5000 retired NFL players and their families that have sued the league across approximately 225 concussion lawsuits. There have been many notable players that have filed lawsuits, including Tony Dorsett, Eric Dickerson, Mark Rypien, Tony Mandarich, Art Monk, Jim McMahon and Jamal Lewis, as well as the estate of the late Junior Seau. None, however, are as well known as Marino.

The key allegation raised by Marino is the NFL concealed information. He is arguing that the NFL knew of the long-term neurological impact of headshots but failed to share those findings with the players. This issue of fraudulent concealment was also alleged in the other concussion lawsuits so it’s not new.

It’s tough to know if Marino will succeed as everything turns on the evidence presented at trial. To win, he will need to show that the NFL had key and important information about the long-term and devastating impact of headshots and concealed it.
The NFL, however, has certain defences available to it. First, it can argue that players were aware of the risk associated with playing football and they agreed to those risks each time they stepped onto the field. The NFL would also maintain that they didn’t conceal anything. As well, the NFL could point out that no one can say for sure what caused a player’s dementia, and even if it was caused by repeated headshots while playing football, how much of that damage was sustained outside the NFL in places like college or high school ball. So what caused the dementia and when it was caused become key issues.
The NFL can also argue that Marino’s lawsuit doesn’t belong in court in the first place, but rather should go to arbitration. The collective bargaining agreement provides that issues of player health and safety go to arbitration and not court. On the flip side, Marino would argue that since this case involves fraud in the form of concealment, it properly falls outside of arbitration and within the jurisdiction of the courts.

Bottom line is this: both sides face challenges in this case and that's where we generally see settlement.

All this is probably moot, as the league is working on finalizing a global settlement of these cases. You may recall that back in July 2013, the league announced it had settled the concussion lawsuits with the players. The negotiated settlement was for $765 million and would bind every retired NFL player, of which there are about 19,000. You should note, though, Marino is included among these players. So that means that Marino didn’t need to file the lawsuit at this time.

As well, while settlement was indeed announced, it was not finalized. Before the NFL can consider the case closed, the Court has to approve the terms of settlement. The problem is that on two separate occasions the Court has rejected the settlement on the basis that there is insufficient money to pay all players.

As well, even if the Court were to approve the settlement, any of the 19,000 players would have the option to opt-out of the settlement agreement. If a player believes that he can do a lot better filing his own individual lawsuit, he would tell the court and the NFL thanks but no thanks, I'm headed to court.

The Marino lawsuit may suggest that he is tired of waiting around for a payout from the proposed settlement and wants to take matters into his own hands.

Whatever Marino’s motivation, these concussion lawsuits are likely to continue for years. In the event a global settlement is approved by the Court, it seems likely that a number of players will opt out and file their own lawsuits.

Indeed, there is still a lot of track to cover.

Wednesday, May 28, 2014

Prust v. Moore: Why They Are Different

Some are saying that John Moore's hit on Dale Weise is the same as Brandon Prust's hit on Derek Stepan. 

While both hits were dirty and unacceptable, they are in fact different from the vantage point of the NHL.

Rule 48.1 of the NHL Rule Book is key when making this distinction. It provides as follows:
Illegal Check to the Head – A hit resulting in contact with an opponent’s head where the head was the main point of contact and such contact to the head was avoidable is not permitted.
When Prust delivered his hit on Stepan, the "main point of contact" was not Stepan's head (watch the GIF here). Rather, contact was made with the upper chest area and the jaw area. It may be seen as an issue of semantics, but "main" (or as previously referred to as "principal") means "chief" or "prime" point of contact. It cannot be said that Stepan's head was the main point of contact - even though it was a point of contact. Was the hit dangerous and unnecessary? Yes. Was the head the main point of contact? No.

So that's why in the NHL's suspension video, the hit was described as "significant head contact" but not "main" head contact. That resulted in a 2 game suspension for interference (which did seem a bit light given the lateness of the hit and the ensuing injury).

On the other hand, the "main point of contact" was Weise's head on the Moore hit. It's tough to see it any other way (watch a GIF here). Moore hit Weise square in the head. For that reason, expect this hit to be treated differently and possibly end with a longer suspension than that of Prust. Somewhere around 3 games. Two games, though, would not be a surprise since the league historically values playoffs games higher than regular season games.

With the fine distinction being made, are we splitting neurons? Maybe - but that's how it's interpreted at the league level.

Wednesday, April 9, 2014

TSN 1200 Hit - I Talk Pistorius on Day 1 of Cross-Examination

Click here to listen to my radio segment with Steve Lloyd and Jason York where I break down Day 1 of Pistorius' cross examination.

TSN Article: Instant Legal Analysis: Day 1 of Pistorius Cross-Examination

Click here to read my TSN article entitled "Instant Legal Analysis: Day 1 of Pistorius Cross-Examination". I hit the critical parts of Pistorius' testimony.