2. 1
A. Warm up
Here in America, the professional athlete is a celebrity in the spotlight every day, not just
during the season they play. Offices and schools are filled with water cooler talk about news,
stats, scores, and lives of the professional athletes. Grown men and women wear the names of
their favorite athletes on the back of their shirts during games and around town. Newscasters
talk about their stats and what these athletes purchase for themselves during everyday segments.
As a country, sports are essential elements of society’s daily life. Everyone knows athletes make
millions of dollars every year and live the lifestyles to show for it. Expensive cars and multi-
million dollar homes are just the tip of the iceberg. Athletes throw money around like it is
yesterday’s paper. These individuals get to play a sport that they have loved their entire life for
money, and a lot of it. Companies throw apparel, merchandise, and contracts at them to endorse
their products. Kids idolize their favorite athlete and dream of one day reaching that milestone
of the World Cup, Super Bowl, Championship, or Stanley Cup. It appears the dream job is the
greatest thing that can happen to an amateur athlete. Getting their name called and signing that
contract will, in their eyes, take them to a level they have never been before. They have truly
made it. They are a “Professional Athlete.”
Sounds amazing but the reality is that this fairytale is not that glamorous. There are
many dark tales and sad stories for several athletes. Unfortunately, this is the current state of life
for them. Now the lucky ones are able to capture that true “fairytale” life for the most part.
However, even the success stories have gone through trials and tribulations to get where they are.
Athletes push their bodies to the absolute limit for their sport. Training six times a week,
practicing constantly, and playing with injuries that have not fully healed themselves would be
difficult for anyone. They have been athletes since they were in high school, some starting as
3. 2
early as second grade. Coaches push them to be better, faster, and stronger than their
competition. Families instill in them encouragement and faith that they are truly the best. News
and tabloids chronicle the best and the worst times they face. People view some athletes as
someone they can take advantage of or someone who owes them a favor. Injuries, money, and
the future are all uncertain for these players. Ray Lewis, a retired NFL linebacker, had his own
misfortunes in his career but he stated, “Life is about being a versatile athlete and training in all
realms of life.”1 This is what athletes and coaches today need to embody.
There is a need for change and reform in Sports. The news and stories of athletes
committing crimes, losing their money, dying prematurely are too prevalent. The subculture that
has created the current state of professional sports is reaching a point that cannot be sustained.
New methods of hiring, researching, and prevention can change the way athletes behave, the way
they are treated, and the way they live life after their careers. Currently, there are solutions out
there that can solve many of these issues. The best solution is the Therapeutic Jurisprudence and
its particular vector of Preventative Law. The purpose of this paper is to explain the benefits of
Preventative Law to reform the subculture of sports. Preventative law eradicates unnecessary
litigation for criminal acts players commit in daily life. It also improves the education and
guidance for the athletes to create successful futures for themselves. Finally it provides legal
insight to plan for the future of the athletes once the cleats and jerseys are hung up in the locker
room for the last time.
B. Therapeutic Jurisprudence and Preventative law.
In COMPREHENSIVE LAW PRACTICE: LAW AS A HEALING PROFESSION, a book by Susan
Daicoff, defines TJ or Therapeutic Jurisprudence as focusing on the therapeutic or counter
1
Telephone Interview by Doug Farrar with Ray Lewis, Professional NFLLinebacker, Baltimore Ravens.(July 22,
2010).
4. 3
therapeutic consequences of the law and legal procedures on the individuals involved, including
the clients, their families, friends, lawyers, judges, and community. It attempts to reform law and
legal processes in order to promote the psychological well-being of the people they affect.2 On
her website she states, “It does not suggest that therapeutic concerns are more important than
other consequences or factors, but it does suggest that the law's role as a potential therapeutic
agent should be recognized and systematically studied."3 This idea was introduced by David
Wexler in his book Therapeutic Jurisprudence: The Law as a Therapeutic Agent which was
published in 1990.4
There are several vectors to Therapeutic Jurisprudence. For example, professional
leagues are already using mediation. All major American Pro Sports—Football, Baseball,
Basketball and Hockey—offer arbitration, and they have used it frequently in recent years.5
“The major difference between arbitration and mediation is that in arbitration an arbitrator is a
decision-maker, whereas in a mediation session the mediator plays the role of settlement-
facilitator,” according to Epstein.6 Mediation is usually used for contract disputes, disciplinary
disputes, and broadcast disputes.7 Preventive Law is another vector that will help the athlete and
team with legal troubles outside of sports, with their money, and help them plan for life after
sports.
Preventative Law or PL is a vector of Therapeutic Jurisprudence that, “explicitly seeks to
intervene in legal matters before disputes arise and advocates proactive intervention to head off
2
SUSAN DAICOFF, COMPREHENSIVE LAW PRACTICE: LAW AS A HEALING PROFESSION (CarolinaAcademic Press 2011)
3
COMPREHENSIVE LAW, (JUN. 5,2015) HTTP://SUSANDAICOFF.WEBS.COM/COMPREHENSIVELAWLINKS.HTM.
4
DAVID B. WEXLER, THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENT (CarolinaAcademic Press 1990). The
concept of “therapeutic jurisprudence” is firstbroughtup.
5
MARK GRABOWSKI,BOTH SIDES WIN:WHY USING MEDIATION WOULD IMPROVE PRO SPORTS,HARVARD JOURNAL OF SPORTS &
ENTERTAINMENT LAW, VOL. 3 (2014),194-195,HTTP://HARVARDJSEL.COM/WP-CONTENT/UPLOADS/2014/11/GRABOWSKI.PDF.
6
Id.
7
Id.
5. 4
litigation and other conflicts. It emphasizes the lawyer-client relationship, relationships in
general, and planning and is a long-standing, harm-averse movement.”8 Attorney and law
professor Louis Brown, created the idea in the 1930’s and it emerged as an entity in the 1950s.9
Preventing lawsuits is believed to be less costly than litigation and so it attempts to prevent or
avoid any litigation before it arises.10 Check Ups are an element of Preventative Law that
suggests a client to come in for annual or regular “check-ups” to determine any “soft spots” in
the client’s affairs.11 These soft spots are situations that may lead to litigation and where the
lawyer can intervene to implement legal techniques to prevent litigation from occurring.12 The
“rewind technique” analyzes legal disputes and reported events that are currently happening in
order to prevent lawsuits.13 The question it asks is, “if this situation were rewound back in time,
what could have been done in an attorney’s office to have prevented this lawsuit from arising?”14
This allows the party to compare events that could be very similar to their clients and address its
issues based on the wisdom from the current issue. Oppositely, there is the “fast forward”
technique.15 This technique employs thinking of a situation in the future to assess whether any
future litigation potential exists that can be avoided by using preventative measures now.16 It
will look at outcomes that can occur from the event today and the likelihood of the situation
occurring again. It is a way of futureproofing the legal decisions but can only look at potentials
in a limited aspect. This is better than not planning for the future as it is challenging to analyze
8
Diacoff,supra note 2.
9
Id. See also.PowerPoint Comprehensive lawTj & Preventative Law. Fall 2014.Judge Michael Jones.
10
Id.
11
Id.
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
6. 5
all of the possibilities that could occur. In Preventative Law, there is also a psychological aspect.
Diacoff’s article in the Pepperdine Dispute Law Journal states, “The integration of TJ and PL,
collectively referred to as therapeutically-oriented preventive law ("TOPL"), merges the well-
developed lawyering skills of PL with the psychological sophistication of TJ. From this
integration developed the concept of lawyers foreseeing not just legal soft spots but also
"psycho-legal soft spots" and acting to prevent situations from occurring that were troublesome
both legally and psychologically.”17 For a TOPL lawyer to succeed; they must employ excellent
communications skills and interpersonal sensitivity, as well as a familiarity with psychology.18
Though there are many proponents to this theory, there are just as many opponents to the
idea of Preventative Law. The main one was addressed by Daicoff in her book, as some believe
should be “what good lawyers” already perform for their clients.19 If that is so then why do so
many similar mistakes occur and the same event or case takes place? By becoming narrow in a
practice field, like Preventative Law, the gamble of chance with litigation is reduced by
intentionally focusing on penetrative practice.20 The other problem is some feel it is unnecessary
to pay for legal “check-ups” when there is no legal issue at the time.21 Corporations routinely
use Preventative Law to prevent future litigation in hiring processes, trades, and business deals.22
They will pay an attorney to address issues that can arise in the future in order to avoid lengthy
and costly litigation.23 Corporations see the benefit to up front smaller fees to a larger settlement
fee plus court and attorney fees. The professional sports arena has hundreds of lawyers
17
SUSAN DAICOFF, LAW AS A HEALING PROFESSION:THE"COMPREHENSIVE LAW MOVEMENT”, 6 PEPP.DISP.RESOL.L.J. 120 (2005)
18
Id.
19
SUSAN DAICOFF, COMPREHENSIVE LAW PRACTICE: LAW AS A HEALING PROFESSION (CarolinaAcademic Press 2011)
20
Id. See also.PowerPointComprehensive lawTj & Preventative Law. Fall 2014.Judge Michael Jones.
21
PowerPoint Comprehensive lawTj & Preventative Law. Fall 2014.Judge Michael Jones.
22
49 Miss.L.J. 533 (1978) PREVENTIVE LAW - TAILORING THE CORPORATE FORMOF BUSINESS TO ENSURE FAIR TREATMENT OF ALL;
O'NEAL, F. HODGE Articleon the use of preventive lawin the corporate structure.
23
Id.
7. 6
employed within it and representing athletes. These off the court incidences and future problems
shouldn’t be occurring if these advocates are doing “what good lawyers” do, according to their
adversaries. To better understand how Preventative Law can help change the sub culture of
sports, as advocates, the psychology of the athlete has to be fully understood and accepted.
C. Brain Games
Young minds are the easiest to mold. This is where the professional athletes start to
develop their on-field and off-field personalities. Experts say that a sense of entitlement can
begin playing a role in an athletes’ life as early as Little League, Pop Warner football or AAU
basketball. Once a child displays a special ability – shooting a perfect free throw, hitting a
homerun or throwing a spiral – he or she is at risk of drawing attention that focuses solely on
athletic ability at the expense of their holistic wellbeing.24 This type of talent brings on elements
that will fill the individual up with narcissism. A recent Forbes article pointing out flaws to an
ESPN report stated, “a childhood surrounded by adult and peer sycophants, up to and including
parents, travel coaches, other people’s parents, other people’s coaches, national web sites
glorifying local high school exploits, national sports networks (ahem, ESPN) televising high
school events, self-styled agents on the make, budding entourage members and fawning
members of the opposite sex (or same sex, when applicable), and scads of college coaches
blowing recruiting kisses.”25 By exposing this to children at young ages from T-ball to College
ball the athlete feels that they are the best and become entitled from the first exposure. It is
comparable to an addictive drug, once they get a taste of the attention- they are hooked.
24
VINNIE ROTONDARO, AN ELABORATE AND SEDUCTIVE DANCE, COLUMBIA SPORTS JOURNALISM,
HTTP://COLUMBIASPORTSJOURNALISM.COM/2010/07/01/THE-ENTITLED-ATHLETE/ (lastvisited Jun.23, 2015).
25
BOB COOK,WHAT ‘OUTSIDETHE LINES’ MISSED ABOUT ‘ENTITLED’ YOUNG ATHLETES, FORBES.COM, (JUN.25, 2015),
HTTP://WWW.FORBES.COM/SITES/BOBCOOK/2013/01/08/WHAT-OUTSIDE-THE-LINES-MISSED-ABOUT-ENTITLED-YOUNG-ATHLETES/.
8. 7
The athlete develops a self-assessment that has a tendency to overestimate their standing
relative to others on a wide variety of valued attributes which researchers have called the Lake
Wobogen Effect.26 Most athletes have an “I can do what I want attitude”.27 These kids move
through the ranks being touted as the best from the coaches, parents, and fans; the athlete is
going to believe that and naturally think they are above the majority of their peers. If an athlete
in school gets in trouble they usually receive minor punishments building that narcissism.28 This
eventually compounds the problem. These actions can lead to exemptions: athletically gifted
children may not have to run the same amount of laps, they may be excused for being late to
practice or class, and they may be passed along the academic ladder.29 According to Dan Doyle,
“Young athletes need to aspire to be the best but also mental and character skills need to be
developed. Deficiency in one or both can be a huge problem. When a child is feeling entitled
one or both of these anchors are affected.”30 Everything we do is in moderation and anything in
excess or scarcity can cause developmental issues that can have negative future effects. Doyle
stated, “It is often said that in the sports world, if you’re not confident, you fail. But the natural,
and potentially healthy, confidence a child may develop as a result of winning can quickly morph
into cockiness, brashness and a sense of permission if it is not counterbalanced.31 One sentiment
to counterbalance is to humble the player and make a player responsible for their actions with
consequences that not only affect them but the team as a whole. According to former defensive
end Pat Toomey “Anytime someone is inflated or brought out of balance with extreme levels of
26
EZRA ZUCKERMAN AND JOHN JOST, WHAT MAKES YOU THINK YOU’RE SO POPULAR? 2001 Vol. 64 Pg. 207
27
LAURIE NICOLE ROBINSON,PROFESSIONAL ATHLETES-HELD TO A HIGHER STANDARD AND ABOVE THE LAW: A COMMENT ON HIGH-
PROFILE CRIMINAL DEFENDANTS AND THE NEED FOR STATES TO ESTABLISH HIGH-PROFILE COURTS,73 Ind. L.J. 1313 (1998) at 1318
28
Id. at1320
29
Rotondaro, supra note 24
30
Id.
31
Id.
9. 8
entitlement, the environment will bring that person back to their knees.”32 This usually occurs at
the professional level.
The mentality of the athlete is not only self-serving but craves instant gratification.
Athletes live in an environment that is geared towards the short-term outcomes.33 The athlete’s
goal to be the best focuses them on career achievement rather than career goals. The biggest
attribute that leads to the win-at-all-cost attitude is the short career they have.34 Professional
athletes are aware of the fact that their professional career is short and if there is an opportunity
to win a competition (regardless of cost) there is no guarantee that this opportunity will occur in
the future.35 The average career length in the NFL, NBA, and MLB is 4 to 5 years.36 Women’s
tennis can experience a career average of 7 years.37 Usually there are three deciding factors that
force retirement: chronological age or decline in performance due to age, de-selection, and
effects of injury.38 Athletes competing for instant gratification and to support their entitlement
can lead to off the field issues. Players will take performance enhancing drugs just to stay on top.
They take advantage of their celebrity status. The on-field culture enforces the hit hard, play
hard mentality; players look to drugs to alleviate injuries stress, and fatigue.39 Media outlets
search for dirt to uncover all they can about players in today’s world.40 The media used to hide
off the field problems like the example of Babe Ruth missing a game for venereal disease, the
32
Id.
33
ALEX KRUMER, TAL SHAVIT, AND MOSI ROSENBOIM,JUDGEMENTAND DECISION MAKING.Vol. 6 no. 6 August (2011)
HTTP://JOURNAL.SJDM.ORG/11/11315/JDM11315.PDF.
34
Id.
35
Id.
36
Id.
37
Id.
38
Id.
39
LAURIE NICOLE ROBINSON, supra note 27 at 1321.
40
Id. supra note 27 at1324.
10. 9
public was told a bellyache was the cause.41 For society it would be hard to comprehend the
effects these concerns would have on your mental stability. Everyone has dark days in their past.
Unfortunately, for Professional athletes; the outbursts, drinking, addictions to drugs, and other
problems are brought to the forefront. These entitlement issues and mentality groomed over
their careers are being exposed everyday on the news. The most costly and easily prevented
issues are criminal acts.
D. Intentional Foul
Suspended for four games and fined $300,000 dollars. That is a news headline that is no
longer a rare occurrence. Today the biggest thing for the media to cover are athletic off the field
behavior. Players are seemingly unable to stay out of trouble. The domestic violence incidents
and Driving While Intoxicated are commonalities with athletes. Until recently players would
receive just a slap on the wrist and a few suspended games. Recently the public outcry for equal
justice has swayed the leagues to levy harsher punishments. Athletes have been seen as a
particular group that is able to avoid any real punishment for the crimes they commit. The cost
of defending the high profile cases is immense. The consequences it has for the team who hired
that tortfeasor are going to outweigh the rewards the player returns.
Statistics of arrest rates for athletes are pretty amazing. The thing that stands out is the
fact that every arrest seems to be news for the public. Arrest nation is a database that compiles
all of the arrests for many professional and amateur sports. The site created an average basing
the professional sports to a more relatable average of arrests per 100,000 of non-athlete arrests.
They took the arrests divided by the players in the league times 100,000. There are 1,696 NFL,
41
Id.
11. 10
752 MLB, 690 NHL, and 439 NBA players.42 The average rates for arrests are: MLB 42.7
arrests, NFL 241 arrests, NBA 412.5 arrests, and the NHL 37.9 arrests.43 The NFL and NBA
have the widest range of offenses. The NFL had arrests for 16 different offenses from DUI to
Murder and over 70 alone were DUI.44 The NBA had a range of 10 offenses from DUI to
Assault.45 The most prevalent crime recently is domestic violence but only because of its media
attention. It has always occurred but now with the media people are becoming more aware.
There are 83 domestic violence arrests, making it by far the NFL’s worst category — with a
relative arrest rate of 55.4 percent.46 The domestic victimization rate for women in households
with income greater than $75,000 (3.3 per 100,000) was about 39 percent of the overall rate (8.4
per 100,000), and less than 20 percent of the rate for women ages 20 to 34.47 Only a small
number of these players will be prosecuted or disciplined.
Violence against women has been an issue throughout the history of sports. In the
journal article, Blue Collar Crimes White Collar Criminals, between the years 1989 and 1994 out
of 141 arrests for violence against women only 1 person was penalized by the league for their
actions.48 The league has said that they believe their punishment and counseling are sufficiently
used to curb crimes.49 It is hard to say that when so few are actually being penalized. The
42
ARREST NATION, HTTP://ARRESTNATION.COM (lastvisited on Jul. 2, 2015).This site contains statistics for multiplesports
and their criminal reports.
43
Id.
44
Id.
45
Id.
46
BENJAMIN MORRIS,THE RATE OF DOMESTIC VIOLENCE ARRESTS AMONG NFL PLAYERS,FIVE THIRTYEIGHT,
HTTP://FIVETHIRTYEIGHT.COM/DATALAB/THE-RATE-OF-DOMESTIC-VIOLENCE-ARRESTS-AMONG-NFL-PLAYERS/.
47
Id.
48
WEBB,BRANT. "UNSPORTSMANLIKE CONDUCT:CURBING THE TREND OF DOMESTIC VIOLENCEIN THE NATIONAL FOOTBALL LEAGUE
AND MAJOR LEAGUE BASEBALL." American University Journal of Gender Social Policy and Law20, no. 3 (2012): 742-761.
at 753
49
JANINE YOUNG KIM,MATTHEW J. PARLOW,OFF-COURT MISBEHAVIOR:SPORTS LEAGUES AND PRIVATE PUNISHMENT, 99 J. Crim. L.
& Criminology 573 (2008-2009) at584
12. 11
commissioner is the ultimate decider of punishment for the “best interest”.50 The leagues argue
that they have addressed the issues. For example; the NBA created a Good Moral Character
clause in their collective bargaining agreement.51 The NFL implemented in 2007 a Proportional
Personal Conduct Policy and the NHL has a Behavioral Health Program but are unable to give
info on how many used the program.52 These programs are steps in the right direction but
without enforcement they are just compliance Band-Aids that have no effect. There are several
examples of punishment from minor to extreme but there is no triggering mechanism to show
what would receive the different types of punishment.53 The commissioner again decides what
he thinks to be the best for the player and league. Usually public outcry is the motivator for
more severe quick action when it comes to athletes and crimes.54 An example of this would be
the beating of wife at the same time as the Michael Vick dog beatings and the dog beating is the
crime that gets punished.55 The unequal nature of this is pretty appalling.
The unequal punishments lead to more issues throughout sports. Another example is the
handling of a domestic violence occurrence between Jason Kidd and his wife. Jason Kidd was
arrested for domestic violence and the Commissioner punished him with anger counseling and
$200 fine. 56 The authorities then do not prosecute him for his crime.57 These occurrences lead
to growing fan resentment of players.58 This would probably not happen to a regular violator as
they would be prosecuted by authorities. The Preventative Lawyer can help the league and
50
Id.
51
Id. at583
52
Id. at583
53
Id. at594
54
Id. at596
55
Id.
56
DAVID RAY PAPKE,ATHLETES IN TROUBLEWITH THE LAW: JOURNALISTIC ACCOUNTS FOR THE RESENTFUL FAN, 12 MARQ. SPORTS L.
REV. 449 (2001)
57
Id.
58
Id.
13. 12
players avoid these situations. There are numerous policies regarding substance abuse so why
not a domestic violence policy that is as effective.59 In an interview with NBC sports, Troy
Vincent, a former NFLPA President said, “millions and millions, $8-10 million a year are spent
in court fees by the NFLPA on who should make a decision on someone who committed a crime.
Every dollar spent by the NFLPA the same or more is spent by the NFL.”60 That money could
be used to have preventative lawyers assess the policies and research potential litigation
problems. They can resolve the issue before it becomes one and putting those losses back into
the bank. But the NFLPA would rather spend huge sums of money as they spent 63.2 million
dollars last year in representation.61 Of that huge sum only 89,380 was used to research legal
issues and future exposures.62 Most was spent on Collective Bargaining Agreement problems.63
Instead of paying less upfront, paying more when a problem arises is the current model in
professional sports. If the league, players, and their unions become more proactive and use
specialized preventative lawyers then the savings could be exponential.
E. Injured Reserved
Injuries occur every day for Athletes at all levels of play. It is not about if they will occur
but more like when they will happen. Professional athletes are thinking about this quite often as
it can end their position on a team or even end their entire career. Even after their career, injury
can still lie in waiting to flare up causing problems for a former professional. If the injury occurs
59
ELLEN E. DABBS, INTENTIONAL FOULS:ATHLETES AND VIOLENCE AGAINST WOMEN, 31 Colum. J.L. & Soc. Probs.167 (1998)
60
TROY VINCENTINTERVIEW WITH NBC SPORTS,http://PROFOOTBALLTALK.NBCSPORTS.COM/2015/06/30/TROY-VINCENT-CRITICIZES-
UNION-SPENDING-ON-LEGAL-FEES/.
61
BRIAN BAXTER, SUPER BOWL SPECIAL:ALOOK AT THE LEGAL FEES RACKED UP BY NFL PLAYERS AHEAD OF THE LOCKOUT, THE AMLAW
DAILY,HTTP://AMLAWDAILY.TYPEPAD.COM/AMLAWDAILY/2012/02/NFLPA-FEES.HTML.(Jun.26, 2015)
62
Id.
63
Id.
14. 13
during their career there is some relief provided. Later occurring injuries from prior or
undiagnosed issues could result in severe health and monetary issues.
Grey Ruegamer, a former NFL lineman, said, “Injuries can get you playing time or take
your career away. You are a piece of meat out there and if you don’t return to playing caliber or
even have an injury at the wrong time, a team will find a replacement to get the job done as this
is a business. You are only as good as the service you are able to provide.”64 He stated that,
“you can have 4 years of medical coverage after the league. After that though you buy Cobra,
get insurance through your job, or your spouse. I am still dealing with injuries from my playing
years and luckily I have my employer and spouse’s insurance. While others are not as well off
since they didn’t plan ahead or think they would not have problems later on.”65 This is
something the entitled athlete would believe.
Athletic injuries are common and just recently the weight of how much is at stake is
making headlines. The NFL just settled a $765 million dollar case regarding concussion related
brain injuries.66 The settlement is great news for players with these ailments but there are
suspected alterior motives. This settlement will most likely allow the NFL to not disclose any of
their internal files possibly showing they knew of the multiple cases involving former players
and brain injuries.67 These files could show more neglect committed by the league like the ill-
equipped Mild Traumatic Brain Injury Committee formed by the league to address head
injuries.68 This committee was led by a Rheumatologist for ten years or as most refer as an
64
Telephone Interview with Grey Ruegamer, Former NFL Lineman, New England Patriots and Green Bay Packers.
(July 15, 2015).
65
Id.
66
NFL, RETIRED PLAYERS RESOLVE CONCUSSION LITIGATION;COURT-APPOINTED MEDIATOR HAILS “HISTORIC” AGREEMENT,
ALTERNATIVE DISPUTE RESOLUTION CENTER, AUG. 29, 2013,
HTTP://STATIC.NFL.COM/STATIC/CONTENT/PUBLIC/PHOTO/2013/08/29/0AP2000000235504.PDF (LASTVISITED JUN.30,2015).
67
Id.
68
Id.
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Arthritis doctor.69 The expertise would seem to be a mismatch for the leader of a brain centric
committee. Preventative lawyers would review the committee groups and assign parties that can
handle the situation by researching each member’s expertise.
F. Contracts guaranteed
The problem many athletes face is the knowledge and handling of their own finances.
More often than not a player will leave the league but without a secure financial future stemming
from bad investments, erratic spending, and the above mentioned lawsuits. There are ways to
avoid the fate so many face but few take the help due to their own entitlement issues. The Lake
Wabogen effect will strike again.
Players will sign deals worth $50 million to $350 million but some still come out with
less than they went in. Professional sports are like a casino; you never know when your luck will
run out. Two years out of the league; 78 percent of Football players will face bankruptcy.70 The
NBA is not much better with 60 percent facing bankruptcy after 5 years.71 Financier Barry
Ritholtz broke down what these huge contracts turn into, “Right off the top, Uncle Sam and the
resident state where he plays takes a hefty share — about half for someone in that top tax
bracket. Then you have the professional managers, lawyers, accountants, etc. The agent takes
$250,000, while the manager may take up to twice that amount. Trainers, nutritionists, travel and
courtesy tickets all eat into the net. Before spending the first discretionary dollar, the typical $5
million player is already down about 70 percent of the gross, to $1.5 million. That sounds like a
lot of money, but a naive kid who has a $5 million dollar budget in his head can quickly find
69
Id.
70
PABLO S. TORRE, HOW [AND WHY] ATHLETES GO BROKE, SPORTS ILLUSTRATED,(JUN.30,2015),
HTTP://WWW.SI.COM/VAULT/2009/03/23/105789480/HOW-AND-WHY-ATHLETES-GO-BROKE.
71
Id.
16. 15
himself way behind.”72 The type of spending a mid-twenty year old could accrue with that much
money could only be imagined.
It isn’t just their own self spending that leads to financial losses. In a poll of 178 athletes
with a minimum of $5 million net worth, 80 percent are concerned about being involved in
unjust lawsuits.73 The divorce rate of athletes is 60 to 80 percent.74 “You are suddenly around
your significant other at home bugging each other and now can’t escape anymore by going to
practice,” said former NBA center Mark West.75 Pre-Nuptial agreements are highly
recommended for athletes but few actually get one created.76 Some athletes even avoid making
wills since some believe if they do then they will die sooner.77 Agents don’t really focus on
these outlying issues since their main concern is the CBA and their client’s contract. The
preventative lawyer could advise and show the benefits to the player. Allowing more informed
decisions to be made that can suppress these concerns. The other problem facing athletes are
their own families and friends as many will come out of the woodwork in search of handouts.78
Players feel like they owe these individuals because they helped them or trained them since the
party preys on their emotions.79 Then the player who just recently gets in the leagues has the
clubhouse pressure. These pressures from their teammates are in effort to match the assets of the
72
BARRY RITHOLTZ,PROFESSIONAL ATHLETES NEED TO LEARN TO KEEP THEIR FINANCES IN GOOD SHAPE,(JUN. 23,2015),
HTTP://WWW.WASHINGTONPOST.COM/BUSINESS/BARRY-RITHOLTZ-PROFESSIONAL-ATHLETES-NEED-TO-LEARN-TO-
KEEP-THEIR-FINANCES-IN-GOOD-SHAPE/2014/05/30/FEA8D312-E68D-11E3-AFC6-A1DD9407ABCF_STORY.HTML.
73
Torre, supra note 70.
74
Id.
75
Id.
76
Id.
77
Id.
78
Id. Players sometimes have entourages of friends from their home and family members they will entirely
supportdue to their feeling of needing to pay back what they did for them. Sometimes what they did is nothing at
all and the emotional toll makes them believe they did.
79
Id. Some entourages are individually given thousands to spend on whatever. The friend or family member is
given some sortof minisculejob to justify the payment to that person. That job is sometimes never even
completed.
17. 16
veteran players with cars to houses.80 These veterans have gotten into their second contracts or
secured several more millions than the rookies who are trying to compete with them. Jack Clark,
a former slugger back in 1992; was playing in the majors and going through a bankruptcy.81 He
had debts of $6.7 million while in the middle of an $8.7 million dollar contract; plus owning 18
cars, 17 of which still had lienholders requiring payment.82 An example of a huge spender that is
still wealthy is Shaq who would spend enormous amounts of money. During a divorce filing it
was shown that Shaq spent $875,015 each month including $26,500 mortgage, $24,300 on gas,
and $17,220 for clothing.83 If a rookie is being pressured to come in and compete with that then
trouble follows close behind. The entitlement of the player pushes the player farther in debt
since they can, in their minds, get out of any situation. They will think they will recoup with the
next contract but nothing is guaranteed. They think they know how to spend, save and invest.
This is proven wrong for many. Again the much needed guidance of a preventative lawyer
would be highly beneficial to avoid the road so many former athletes went down.
G. Conclusion
Many opponents will say that you can give guidance and advice forever but it will not
help. Plans can be created to prepare for the future but doesn’t mean the athletes will follow it.
Opponents will advise that their agents already give this advice. No one is going to pay someone
for prevention as this is just career “insurance” for possible problems. The Collective
Bargaining Agreements of every league are too strong and none of this would be required per a
contract. This is possibly true. If agents already do this why are Athletes still facing the same
issues? Why are teams now starting to make harsher penalties for players off the field behavior?
80
Id.
81
Id.
82
Id. He was makinga 1.2 million
83
Id. The divorceeventually did not go through and they reconciled privately.
18. 17
Why to this day are the statistics about players going broke after their careers occurring? If the
leagues take care of their players, employees, their assets; why has nothing changed?
The reason is because the leagues are reactive rather than being proactive. Preventative
Law is able to be hired by an individual, team, league, or any party involved with professional
sports. It allows the subculture to change to a preventative methodology for hiring and dealing
with athletes. The “legal checkups” would allow players to plan for the future and make the
most of their careers. Changing the subculture to think proactively ensures a better life during
and after their sport. Breaking that barrier of the athletes’ entitled thinking should start earlier in
their lives. If that younger players sees their idol humbling themselves and utilizing a
preventative lawyer to plan their future instead of living beyond their means, a valuable lesson is
learned.
Teams can utilize their preventative lawyer resources to increase their profits and avoid
costly legal issues. The lawyers can look at player’s backgrounds and assess based on prior
litigation what problems could occur. This enables the team to make a more informed decision
on the players they bring to their team. The team at least has the chance to see the risks before
they weigh the rewards. It can mean the difference of a $40 million guaranteed contract and a $5
million contract. Using a preventative lawyer to look at potential litigation from a player or issue
could allow the team to get ahead of the situation. They might still have to issue out some
money for litigation but proactively addressing an issue early can avoid the already observed
costs later. The knowledge can be used to help negotiations for players. It is prevalent that
something needs to change to make these issues go away so the focus can go back on the sport.
These preventative practices could lead to the reform in the Collective Bargaining
agreement. It could reform the way trades and players’ salaries are determined. But there is no
19. 18
way to know if change can occur if nothing is done to try and change the current culture of
sports. Preventative law provides an outlet to get ahead of issues. The preventative lawyer will
look at the player on the psychological level to think of them as a person instead of a number.
Agents focus on what is best for you while playing regarding your contract. Preventative lawyer
will view and advise what is best for you thirty years from now. Providing a more therapeutic
approach to deal with the entitlement that is prevalent in all professional leagues will lead to
improved outcomes. It takes away the finger pointing and gives the ability to say we gave them
the outlook. It places the primary responsibility on the player so they can’t escape by placing
blame somewhere else. The commissioner, team, teammates, and league will do what is best for
themselves. A player needs to sit down and talk with an outside professional that is legally
knowledgeable but compassionately cares for their wellbeing.
Players practice almost every day during their careers, so why would it be so hard for
them to practice and plan ahead with a different type of coach. Their legal coach will prepare
them for the game after their professional career. That game is about being a regular contributor
to society without the glitz and glamour. This approach is not for everyone and that is
understandable. However, if the Preventative Law vector can help a hundred, a handful, or just
one then that is a win in itself. Athletes have a game plan for the championship. They should
have a game plan for every other aspect in their lives.
