Interestingly enough, according to this article in USA Today several NBA players have structured their contracts such that they were paid only half of their 2010-2011 salary during the 2010-2011 season and the second half will be paid during 2011-2012.  According to their agents, their deals were structured as such so they would continue to receive a paycheck even if there is a lengthy lockout (which, unfortunately, seems like it will be the case).

I get it.  The agents have seen enough guys spend their paychecks as fast as they come in and they want their guys to have some cash if there is a lockout. However, this still seems like a poor solution.  Not only does it prevent the player from possibly earning some interest on the money that he has already earned, but, more importantly, it reinforces poor financial habits and does nothing to prepare the athlete for future financial success.

While an agent’s primary job is to maximize an athlete’s earning capacity during his playing career, I would argue that it should also be to counsel athletes on strategies for living their life during their sports career.  Instead of expecting clients to blow through their cash and structuring deals to pay them over longer terms, why not take a more pro-active approach and, along with an appropriately experienced team that includes an attorney and financial planner, implement financial, managerial and life skill related plans and techniques which accomplish the short-term and long-term wants and needs of their clients?  The cost of implementing these plans and creating accountability for the athlete is relatively low and a much better use of resources than creatively structuring salary to fit present cash flow needs.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney at Breeden Legal and is based in Indianapolis, IN. He represents Sports & Entertainment properties, as well as many other entrepreneurial businesses, in a variety of matters, including: Athlete/Driver Contracts, Business Formation, Corporate Governance, Mergers & Acquisitions, Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Private Placements, Insurance & Risk Management, Creditors Rights, Employment Agreements and Litigation Management.  He can be reached at Matt@BreedenLegal.com

]]> http://sportslawguru.wordpress.com/2011/08/05/a-dollar-now-or-fifty-cents-now-and-fifty-cents-later/feed/ 0 mbreeden http://sportslawguru.wordpress.com/2011/01/25/wrote-a-guest-blog-post-for-my-friends/ http://sportslawguru.wordpress.com/2011/01/25/wrote-a-guest-blog-post-for-my-friends/#comments Tue, 25 Jan 2011 18:36:08 +0000 Matt Breeden http://sportslawguru.com/2011/01/25/wrote-a-guest-blog-post-for-my-friends/ ]]> Wrote a guest blog post for my friends @GRandGene and @GRandRuthie. Valuable insurance info for sports properties. http://wp.me/p1ePnv-1R

Under the Act Section 22(1), advertising is restricted such that:

…no person shall promote a tobacco product by means of an advertisement that depicts, in whole or in part, a tobacco product, its package or a brand element of one or that evokes a tobacco product or a brand element.

Further, the Act defines promotion in Section 18(1) as:

…a representation about a product or service by any means, whether directly or indirectly, including any communication of information about a product or service and its price and distribution, that is likely to influence and shape attitudes, beliefs and behaviours about the product or service.

Pappone argues that the new livery likely violates the Act because “the black colour and gold pin-striping that formerly promoted the JPS brand and associate it with the glitz and glamour of F1 would contravene the legislation.”  I think an argument could be made that this is true, but I don’t think it’s a winner.

A black and gold paint scheme, on its own, would seem insufficient to violate the Act. If colors alone violate the Act then the Ferrari cars, as well as the old Forsythe racing cars from the CART/Champ Car days would also violate the Act.  I’m aware that Health Canada gave Forsythe some heat for his liveries in the period immediately following Players’ exit from racing, but while Forsythe changed the liveries slightly over the following years, he never strayed far from original Players blue and Health Canada never shut him down.  Part of the reason is that the Forsythe livery defined the team as much as it did the prior Players sponsorship. If I were representing Lotus Renault, I would vigorously argue that color alone simply is not enough to violate the Act, as the restriction on trade which it represents is quite substantial.

As for the new Lotus Renault livery, while the colors may be substantially similar to the JPS colors, the execution is but an homage to the prior cars and not evocative of the JPS cigarette brand.  Afterall, the present car has no JPS logos or other insignia connoting the JPS brand, and doesn’t use the same font for numbering or lettering as the JPS brand.  Further, the stripes of the current car are much thicker and oriented in a very different manner than the JPS pin-stripes of the prior car, which were said by some to be similar to the JPS cigarette packaging.  Finally, the new car has substantially different sponsors, which would make it apparent to all that the car is not sponsored by JPS.  These are but a few of the substantial differences between the two liveries.

Taken on the whole I do not see how Health Canada could successfully argue that the current paint scheme of Lotus Renault is an advertisement for a tobacco product and in violation of the Act.  The resemblance and correlation are just too remote.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney at Breeden Legal and is based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Corporate, Commercial and Banking Law. He represents Sports & Entertainment properties, as well as many other entrepreneurial businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Private Placements, Athlete/Driver Contracts, Insurance & Risk Management, Creditors Rights, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

In what is a break from a seemingly universal rule of professional motorsports, INDYCAR announced that it was going to permit persons nine (9) years and older into the garage area (except for the Texas Motor Speedway race).  For those of you unfamiliar with traditional sanctioning body rules, the minimum age is generally 18, except in the case of drivers under 18, for which other special rules apply. The reasoning behind the 18 year old requirement is that persons under 18 are incapable of being legally bound to contracts, and hence, generally incapable of being bound to liability release waivers of the type required to be signed by those persons entering restricted areas, such as the garage area.

How INDYCAR (I’m already tired of typing it in all caps!) will implement the rule and permit access to minors was not explained, but presumably they will institute a minor waiver and release system of the type that I discussed in an earlier post (check it out here). One issue that came to mind is that generally a properly executed minor waiver requires the signature and consent of all parents/guardians; otherwise the waiver cannot be enforced against the parent that did not sign the waiver.  For example, if Dad takes his ten year old son to the track and signs a minor waiver permitting his son access to the paddock, and while in the paddock the minor is injured, the father will likely be barred from collecting for his son’s injuries, as he signed the waiver and assumed responsibility. However, the son’s Mom, who was not present and did not sign the waiver, would not be bound by the waiver and would be free to sue and collect for the Son’s injuries. This is somewhat of an oversimplification of the law, but the principle is sound.  I will be anxious to see how INDYCAR addresses this issue. Seemingly the safest approach would be to require all parents/guardians to sign the waiver prior to the event so as to ensure that they have all signed. However, such an approach would be problematic for ‘walk-up’ attendees and other casual fans, as both parents may not be at the facility and available to sign.

In addition, by permitting minors in the garage area, the league will be held to a considerably higher safety standard. For example, where a simple passive device like a sign saying “CAUTION” may be sufficient notice to an adult, a more active deterrence such as a fence or other barrier may be needed for a minor given the fact that some minors may not be able to read and fully understand the sign, as well as the fact that minors are generally less responsible than their adult counterparts. Thus, I would venture to guess that the actual freedom of access afforded to those holding garage passes will be somewhat reduced given that minors are now permitted. If it is not, INDYCAR will certainly be rolling the dice on the increased risk and will be relying on parents to watch after their children (Ha! Good Luck!).

This new rule will also have a significant impact on teams. On the positive side, teams will no longer be ‘Coyotes’ smuggling the underage children of their drivers and team owners into the garage area via golf carts.  On the other hand, there is some increased risk to teams. You see, a vast majority of the equipment moving throughout the garage area is team related. Whether it’s race cars or tires being towed around, or drivers and crew members whizzing around on scooters, most of the activity, and related risks, are from teams. Thus, teams will also need to be more vigilant in their safety practices, including being more cautious moving throughout the garage area and in properly securing their garage spaces.  For example, while a thin rope may deter adults, an interested child may walk right past (or under) it and grab hold of the glowing hot header or razor sharp carbon flugel.

I applaud INDYCAR for making their garage area, and events in general, a more fan friendly environment and certainly hope that they can implement policies and procedures which facilitate access by the largest number of persons as is safely possible, while also maintaining the openness in the garage area which INDYCAR teams and constituents have come to expect.  While many may see permitting children in the garage area as far too risky, I think that with proper controls in place it can be a relatively safe environment.  All outdoor spectator events involve some degree of risk, but given INDYCAR’s long track record of staging events, I feel confident that they can implement a policy which balances the need for safety with fan immersion.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney at Breeden Legal and is based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Corporate, Commercial and Banking Law. He represents Sports & Entertainment properties, as well as many other entrepreneurial businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Private Placements, Athlete/Driver Contracts, Insurance & Risk Management, Creditors Rights, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

FOR IMMEDIATE RELEASE

Indianapolis, IN – May 25, 2010 – Today prominent Indianapolis attorney Matthew Breeden announced the opening of Breeden Legal, PC.  Headquartered at The Pyramids in northwest Indianapolis, the firm will focus on serving the needs of sports & entertainment clients, entrepreneurial entities and individuals, as well as banking institutions.

Mr. Breeden’s unique and substantial experiences in sports & entertainment, as well as entrepreneurial ventures, makes him exceptionally qualified to handle a wide variety of legal and business issues faced by such entities and properties.  Prior to forming Breeden Legal, Mr. Breeden served as Vice President & General Counsel for the Champ Car World Series, and was Of Counsel with Benesch/Dann Pecar.  Thus, whether it’s international broadcast & sponsorship agreements, athlete/driver contracts, multi-million dollar private offerings, licensing and distribution agreements, new business formations, loan workouts or a variety of other matters, Breeden Legal is well suited to the needs of its clients.

When asked about the decision to form Breeden Legal, Mr. Breeden stated, “With the formation of Breeden Legal I will be able to offer my clients the same high level of client service and legal advice, but will have the added flexibility of a small and efficient organizational structure, which can be solely focused on the legal and business needs of my clients.  I’m very excited about the future, and I think my clients are as well.  I’ve always prided myself on practicing law in an intellectually agile and highly flexible style, while maintaining a personal connection with my clients.  These principles will continue to guide me and are the bedrock of the Breeden Legal structure.”

For more information or to discuss you or your business’ legal needs, please visit BreedenLegal.com or contact us directly by phone (317-735-1377) or email (Matt@BreedenLegal.com).

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

The team was 7th quick in  final practice and qualified 15th for the race.  Make your way out to the Indianapolis Motor Speedway for the race or catch it LIVE on VERSUS at 12:15pm (ET) on May 22, 2009.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

Those of you who know me know that I love racing, and I don’t think I’m alone when I say that one of the reasons that I love it is the element of danger.  The intensity created by watching cars, or motorcycles, battle for position at 200MPH is unmatched in any sport.  I’m not watching to see the accident; rather, I’m marveling at the skill it takes to maneuver a vehicle at those speeds and NOT crash.  However, when I see NASCAR hyping “The Big One” in its pre-race broadcast (as they did yesterday at Talladega) and then see Keselowski intentionally spin a competitor on the final lap, I get sick to my stomach.

This morning I was thinking more and more about this issue and realized that NASCAR, and its tracks and drivers, may be risking much more than huge insurance claims (assuming the insurance company will even honor the claim) and hits to their reputation, they may in fact be risking criminal prosecution.  Let me explain.  Assume that a wreck (notice I didn’t call it an accident;  accidents aren’t intentional….) like the one yesterday were to have killed a spectator.  I would posit that, a charge of negligent homicide is conceivable.

You see, the standard for negligent homicide (in most jurisdictions) is taking a substantial and unjustifiable risk that a person will be killed, when a reasonable and prudent person would not take the risk.  In the present case Keselowski seems to have clearly hit Edwards intentionally; afterall , it was the only way for him to move Edwards out of way so that he could win the race!  The question is whether or not hitting him in that manner was unjustifiable.  I would say that it most certainly was not justifiable.  Afterall, this was not a case of typical bump drafting (which I don’t agree with either), but was a case of intentionally spinning a competitor.  Keselowski had to have known that if he hit Edwards like that in the rear quarter panel, he was going to spin him.  It’s a simple principle that all racers know.  I also believe that Keselowksi and others NASCAR drivers are keenly aware that if you spin in the manner that Edwards spun, there is a high likelihood that the car will become airborne, and when a car becomes airborne in the tri-oval section of the track it is most certainly going to have a violent impact with the fence.  Fortunately, accidents like this are relatively rare, but I think can think of several that stick in my memory (including Bobby Allison at Talladega).  A reasonable person knows that this risk exists and wouldn’t have spun Edwards in the manner Keselowski did; it was simply to dangerous (not to mention a violation of the rules).

While NASCAR and ISC (the track owner) didn’t directly participate in the actions of Keselowski, they certainly didn’t do much to stop it.  Afterall, NASCAR acknowledges that bump drafting is part of the sport and even promotes the big crashes, as one of the reasons to watch the superspeedway races.

Granted, it would be a tough case for a prosecutor, but no one ever thought that hockey fights could bring about criminal charges and we’ve seen a couple of those in the last few years.  Something for the NASCAR attorneys to think about at least…

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

If you can’t blame him, then who can you blame?  You can blame the players; they do certainly shoulder the ultimate blame.  But come on, in what other industry can the chief executive be aware of a significant issue, take improper steps to address it, and then say he’s not to blame?  You can’t think of one… That industry doesn’t exist!  The chief executive is ultimately in charge and must be accountable for the actions of the company.  That’s why he gets paid the big $$$$s.  For Selig to think differently shows an astounding lack of accountability.  …maybe he should apply for a job as a Wall Street CEO?

Given Selig’s position, let’s take a look at his justification.  Selig says that there is nothing more he could have done.  He says he was in favor of a strict policy, but was hesitant push too hard, because he was afraid that the Player’s Union would strike.  From my seat in the stands that’s terrible reasoning and weak negotiating.  Of course it wouldn’t be good if the players strike, but can you imagine how badly the players would look if they elected to strike over the implementation of a steroid testing policy? Granted, steroids wasn’t such a hot button topic 10 years ago, but the media would have ripped the players to shreds.  I just don’t buy it.  Selig didn’t implement drug testing because he simply didn’t push hard enough.  The Player’s Union would have eventually caved in.

I don’t think Selig is a bad guy, and actually think he’s done some pretty decent things for the game.  However, for him to come out and make such a public statement about not being the guy to blame, is just wrong.  He’s not the only one to blame, but if you’re going to blame someone, he’s certainly right at the top of the list.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.