- Lester Munson, Legal Analyst
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Lawlessness, liability and litigation. In our world, they're the gifts that keep on giving. Here's the latest from behind the headlines of sports and the law.
Today, we start with
A wronged woman, or a maestro of media?
Government prosecutors in Louisville are not sure about Karen Sypher, the woman whose sexual tryst on a restaurant table with Rick Pitino in 2003 has led to charges against her of extortion and lying to the FBI.
In pre-trial skirmishes with Sypher, the prosecutors are demanding she undergo a psychological examination, suggesting in court papers that the flashy, 49-year-old blonde mother of four is "irrational, erratic, and disjointed" and that she is guilty of "persistent irrational behavior." She is so unstable, they claim, that one of her own lawyers, Thomas E. Clay, "expressed concerns" about her behavior and "asked the United States to seek" a mental evaluation. Clay later withdrew from the case, asserting that he and Sypher had "irreconcilable differences."
Clay confirms well, pretty much everything.
"Here is the way I want to say it," he told ESPN.com. "Everything the prosecutors said about my request is accurate."
As they question her competence, the prosecutors also describe Sypher as a master of media manipulation, accusing her of strategic leaks of government documents to a Louisville television station and of "vigorously seeking to have media outlets report her scandalous allegations of multiple rapes and a forced abortion."
She is so clever, the prosecutors argue, that she was able to "make arrangements for a camera crew to be present" when she went to the Louisville Police Department to report what she says was a forcible rape after closing time in Louisville's upscale Porcini Restaurant.
Sypher and her current attorney, James Earhart (one of at least three who have represented her so far), say Sypher is just fine, thank you, and in no need of psychological evaluation. They say she is simply suffering through a "very stressful situation, having been charged with a serious federal felony offense at the same time she is embroiled in a litigious divorce and custody battle for her daughter," according to a brief filed by Earhart. They deny the accusation that she has attempted to spin the media and suggest that the real problem with pre-trial publicity comes from Pitino's news conferences and public apology.
Is Sypher unstable? Is she a maestro of media? The prosecutors aren't sure. It's now up to U.S. District Judge Charles R. Simpson to decide.
Take it to 'en banc'
Unhappy with court rulings that have allowed Minnesota Vikings linemen Kevin Williams and Pat Williams to avoid four-game suspensions for use of a banned substance, the NFL and its lawyers are playing a long shot in their efforts to enforce the suspension.
The NFL has already lost in the federal court in Minneapolis and in a unanimous three-judge ruling from the U.S. Court of Appeals in St. Louis. The Williamses' attorney, Peter Ginsberg, caught the league by surprise when he dug up Minnesota laws that govern drug testing and set requirements that go beyond the procedures agreed upon by the NFL and the players' union. Ginsberg managed to persuade these judges that the NFL must follow the Minnesota procedure and not merely the procedure required under the collective bargaining agreement.
Now, in a last-ditch effort to protect its program from the conflicting laws in the 22 states where the NFL tests for drugs, the league is asking for what is known as an "en banc" reconsideration of the decision made by the three judges in St. Louis.
"En banc" is legalese for all-in. The NFL lawyers want all 11 of the appeals court judges to look at the situation and determine whether the first three were correct in their decision. With three already on record against them, the NFL lawyers must now persuade six of the remaining eight judges that the NFL should be allowed to suspend the players.
It's a daunting task, but the NFL had few alternatives.
If the league does not succeed in its quest for the "en banc" reversal, then the answer to the problem defined by Ginsberg and the two players may be in the U.S. Congress.
Rep. Bobby Rush, D-Ill., the chairman of the House Subcommittee on Commerce, Trade and Consumer Protection, is already scheduling a hearing. Although the date has not yet been set, it's expected in the next week or two.
Rush will focus the hearing on the Williamses' use of the supplement known as StarCaps, a weight-reduction compound that contained a substance banned in the NFL, and the litigation that has prevented the NFL from enforcing its drug policy. Rush wasn't available for comment, but he has previously expressed his objections to sports leagues conducting their own drug tests and has suggested legislation that would establish a national testing authority.
To think: It started with a couple of defensive tackles who say they just wanted to make the weights specified in their contracts, and it could end with a radical restructuring of drug testing in all of professional sports.
With a little help from Ed Garvey?
It's been nearly two months since a group of NHL player reps concluded in a wild, pre-dawn meeting that they should fire executive director Paul Kelly. Now, a new group of reps has serious questions about that conclusion. These reps want to know exactly what was behind that meeting, and how it happened.
By a vote of 25-5, the new NHLPA executive board has approved "a review of NHLPA operations" and some recommendations on what to do to end the turmoil that followed Kelly's dismissal.
And instead of relying on embattled interim leader Ian Penny, the players are looking for someone outside the players' association to act as a consultant, sort things out and help them reset their union. It's a search that should not last long. When an earlier generation of hockey players faced an even more difficult set of problems created by the corrupt practices of its leader, Alan Eagleson, the players turned to Ed Garvey, the former executive director of the NFL Players Association and a lawyer with a rare combination of commitment to players, knowledge of labor law and skills in investigation.
Working quickly and effectively against vigorous resistance from Eagleson and the NHL, Garvey produced a 55-page report in 1989 that described Eagleson's shocking series of conflicts of interest and sweetheart deals with NHL owners. Garvey's report was the first step in a process that led to criminal charges against Eagleson in Toronto and in Boston and a term in an Ontario penitentiary.
Now, Garvey is available again to step into the current fray.
"I would like to be considered," he told ESPN.com from his office in Madison, Wis. "I know something about the way a player union can and should work and what it should be accomplishing for the players."
In addition to his mastery of investigative techniques and the technical issues of labor law, Garvey has charm, charisma and the capacity to explain difficult matters in ways that players can quickly comprehend. If the players really want to solve their problems, Garvey can help.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
Kevin and Pat Williams just wanted to make weight. Now look what they've done. The world of sports and the law just keeps getting weirder.