Tag Archives: NBA

Donald Sterling, Adam Silver, and the Ends Justifying the Means

December 15, 2015

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By Ian Walker – Thompson Rivers University JD Student

On November 16, former Los Angeles Clippers owner Donald Sterling lost his appeal to regain the team after his estranged wife sold it for $2 billion after he was banned from the NBA for life. The ban was part of a league-imposed penalty for racist remarks Sterling made to his girlfriend. The penalty also included a $2.5 million fine, the largest fine allowed under the NBA rules, and a threat from the league to seize and auction the team.

Sterling’s wife, Shelly, took control of the family trust that owned the team and sold it to former Microsoft CEO Steve Ballmer. Sterling sued his wife to block the sale, but a Los Angeles Superior Court ruled against him and approved the sale last summer. This recent appeal found that Shelly Sterling properly removed her husband from the trust, as she relied on the opinions of two doctors who found Sterling had signs of Alzheimer’s disease.

The court found that the sale to Ballmer prevented the trust from an “extraordinary loss”. The decision also relied on the fact that before Sterling refused to sign off on the sale, he had congratulated his wife on the price she had negotiated, which was $400 million higher than the next best offer. The appeal court held that Sterling failed to prove the lower court, in approving of the sale, made any legal errors.

This appeal decision appears to bring the Donald Sterling saga to an end. However, Sterling still has lawsuits pending against his wife, the doctors who examined him for Alzheimer’s disease, and the NBA. So while the sale of the Clippers appears to be final, this is likely not the last we will hear from Sterling. The case, however, has been interesting to follow for a number of reasons, and it involves many important issues and concerns surrounding professional sports.

The incident that led to Sterling’s forced departure from the NBA took place in private and away from the media. His comments were secretly recorded and were never meant to be public. This raises important privacy issues. When the news first broke, many commenters were surprised by the severe punishment for such a private act, despite the content of Sterling’s remarks.

The league justified its actions by charging Sterling with damaging the league and its teams by his remarks. The incident also appeared to be a kind of final straw, as Sterling’s unsavory behavior had a long history. Because of that history, few people felt sorry for Sterling. And yet, as uncomfortable as it may have been to think so, the penalty still struck many people as particularly severe.

The incident took place shortly after Adam Silver’s term as NBA commissioner began. Many people applauded Silver’s swift and strong actions. They were a stark contrast to Silver’s predecessor, David Stern, who had known of Sterling’s volatile behavior in the past and did little to deal with it. But Silver’s dealing with Sterling, and the severe punishment he imposed, serves as a strong reminder of the extensive influence and powers of professional sports league commissioners in today’s sports climate.

The loss of this appeal seems to have spelled the official end of Donald Sterling’s days with the NBA, and he would be hard pressed to find anyone who feels sorry for him or who will miss him. But this appears to be a case of the ends justifying the means. Everyone is glad he is gone, but there lingers for many an uncomfortable feeling that even though he may be despicable and what he said was despicable, his punishment seems severe for comments made entirely in private. There also seems to be a self-contradictory sentiment that Adam Silver’s swift use of his extensive commissioner power was quite harsh, and yet, should be applauded.

 

 

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Do NBA cheerleaders deserve to be paid?

November 22, 2015

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By Afras Khattak – Thompson Rivers University 2L JD Student

The Milwaukee Bucks of the National Basketball Association (NBA) are purported to have been engaged in unlawful pay practices for their cheerleaders for allegedly failing to comply with the minimum wage and overtime requirements of the Fair Labor Standards Act (“FLSA”). I posit that the Bucks will likely follow the recent stream of NFL cheerleader pay practices case law, and settle out of court even if they can establish an exemption under the FLSA.

This case materialized when Lauren Herington, former cheerleader of the NBA’s Milwaukee Bucks, filed a lawsuit alleging that the team failed to pay her in accordance with federal and state minimum wage laws. Ms. Herington contends that the team required its cheerleaders to spend upwards of thirty hours per week in mandatory practice and workout sessions, in addition to their game-day duties. Because these workout sessions (as well as mandatory salon visits) were unpaid, the complaint was brought forward to substantiate Ms. Herington’s claim that the Milwaukee Bucks not only failed to pay their cheerleaders the minimum wage, but often neglected to pay them overtime as well.

The Bucks could argue that the team is exempt from at least the federal minimum wage and overtime requirements under s. 213(a)(3) of the FLSA, a statutory provision covering seasonal amusement and recreational establishments. Under this exception any amusement or recreational establishment may pay its employees a sub-minimum wage (without overtime) so long as one of the following two conditions are met: either (A) the establishment does not operate for more than seven months in any calendar year, or (B) the establishment’s revenue in its six lowest revenue months in the previous year was no more than 33 1/3% of its revenue received in its six highest revenue months.
One major factor that could bolster this argument is that because the Bucks were eliminated in the first round of the NBA playoffs this past season, the team’s entire 2014-15 pre-season, regular season, and post-season only spanned seven months in its entirety (from October through April). The Bucks could very well likely argue that this qualifies it as a seasonal establishment under s. 213(a)(3)(A), and therefore that the team is not required to pay its cheerleaders in accordance with the FLSA.

NBA teams can credibly contend that they qualify for the s. 213(a)(3) exemption in at least some portions of their operations given the existing statutory language and accompanying regulations. Nevertheless, despite this potential defense, it would not be surprising if the Bucks ultimately chose to settle the suit before impending litigation commences. This would seem analogous to the path several National Football League (NFL) teams have chosen. NFL cheerleader lawsuits often settle the claims even though they arguably have an even stronger argument for exempt status under s. 213(a)(3) given the shorter length of their playing season.

Most notably, the Oakland Raiders agreed to pay its former cheerleaders $1.25 million to settle their minimum wage claims even though the U.S. Department of Labor had issued an opinion earlier that same year concluding that the team was not subject to the FLSA due to s. 213(a)(3) (Caitlyn Y and Jenny C, et al. v. NFL and the Oakland Raiders, et al.).

It would also not be surprising if this case motivates other NBA cheerleaders to file separate lawsuits against their teams. For the NFL, five additional teams quickly faced their own cheerleader lawsuits within a period of just a few months after the league’s first case was filed. The NBA is likely hoping that its teams do not face a similar outbreak of cheerleader minimum-wage litigation. At a minimum though, this case shows that the allegedly unlawful pay practices of professional sports teams still remain a pressing issue for the sports industry, and it may get worse for the NBA in the foreseeable future.

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Smoothing out the wrinkles in the NBA salary cap

November 16, 2015

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By Afras Khattak – Thompson Rivers University 2L JD Student

The current National Basketball Association (NBA) collective bargaining agreement (CBA) is fixed to run through the 2020-2021 season. This however, is unlikely to happen as any time before December 15, 2016 either the NBA or the National Basketball Players Association (NBPA) can exercise an opt-out clause that would end the CBA on June 30th, 2017. The topic of controversy is understanding how the NBA’s immense nine-year, $24 billion contract with ESPN and Turner Sports (set to start in 2016) will affect the on-going negotiations to reach a new CBA. This infusion of money is going to increase the NBA salary cap from $63 million to approximately $90 million.

On the surface, players and fans would seem poised to celebrate a higher salary cap. There would be higher salaries for players, for whom teams would have more money to bid and in some cases might need to sign in order to satisfy the salary floor (90% of the total salary cap must be used). Along those lines, a higher salary cap would enable more teams to be “under the cap” and thus able to compete for free agents. Fans who feel as if their favorite teams are stuck in salary cap calamity would be granted a reprieve. However, assuming that either the NBA or NBPA opt-out and the two sides do not negotiate a new CBA before it expires in June 2017, it is likely that the NBA would be poised to lockout the players which would threaten the 2017-2018 season and potentially lead to antitrust litigation.

The issue for the NBA is that the NBPA does not seem poised to accept a proposal for ‘cap smoothing.’ Cap smoothing postulates that the salary cap be raised modestly and gradually over a several year span. The NBA believed that the NBPA would accept this term because players in multiple free agent classes would benefit from the surge in the salary cap. Additionally, the money from the players’ 51 percent of league revenue would still be split between all players so they still receive this payout. However, the NBPA has rejected this proposal.

NBPA chief Michelle Roberts explains: “The union should not have to police how much the owners spend. That’s not the job of the union. All of the caps that are on salaries now, the max deals and the shorter lengths and all of that, it’s all stuff that has been done to protect owners from themselves. [We have] been pretty strong on saying, hey, it’s not the job of the players to protect owners from other owners. Why should that fall on the players?”

Put simply, the NBPA is concerned that any form of cap smoothing would likely depress players’ salaries from rising as fast as they should or could under a more open system. This mode of reasoning likely stems from the players’ belief that they sacrificed a great deal in the last CBA, when the players’ share of league revenue fell from 57% to 51%. This will likely lead to a lack of cooperation as concessions will be expected and highly coveted in the next CBA negotiations.

The problem here lies in that the inability of the NBA to get a cap smoothing policy would lead to a disproportionately small number of benefiting players: those who are set to become free agents in 2016 and those whose salary negotiations are tied to available salary cap space. On the other hand, a cap smoothing structure would not reduce the amount of money received by the players; it would dictate how equitably and in what sequence the money is distributed.

The rejection of the smoothing proposal by and large means that the NBPA appears interested in negotiating policy changes within the framework of negotiations for a new CBA, rather than in piecemeal. Overall, the NBA may essentially have to accept the NBPA’s stance and make calculated tradeoffs to achieve their cap smoothing agenda because the longer it takes for both parties to agree on a strategy for incorporating the TV money, the clearer it becomes that there is a fraying relationship.

If one were to formulate a ratio for the likely labour dispute it would probably read: Fans who were irritated by the 2011 NBA labour dispute are going to despise the 2017 NBA labour crisis.

 

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Attention NFL, NBA, & MLB: There’s A Big World Out There

November 7, 2015

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By Douglas Cottier – Thompson Rivers University 2L JD Student

In the next fortnight, the World Series will culminate and Major League Baseball will have a new titleholder. When this happens, it will be yet another occurrence of an American-based league making an outrageously abhorrent claim which should be legally prohibited: the winner of MLB baseball will be anointed “World Champions”.

Along with the MLB, the NBA and the NFL are also guilty of this appalling claim. Throughout the history of these three leagues, the championship teams have hung banners in their stadiums and bejewelled their players with rings that read “World Champions” having only bettered competition from the United States of America (and one team from Canada in the case of the NBA and MLB).

The common justification for this fallacy is that the best athletes in the respective sports play in these leagues, therefore their champions are surely capable of defeating any external opposition. Whether or not this is true is absolutely irrelevant. You are either a champion of the world or you are not, there is no place for opinion or speculation. It is entirely a matter of fact and the undeniable certainty is that a team that only competes in approximately one two-hundredth of the geopolitical globe is not a world champion, and there is no explanation that makes it even remotely justifiable.

The best basketball players in the world play in the NBA, which for the sake of argument provides the highest level of basketball competition on the planet. Any basketball savant would agree and would likely also agree that the next best quality of basketball is played in Europe, in the Euroleague. In the past season across the Atlantic, twenty-four clubs from twelve different European countries (who have surpassed clubs from even more countries in qualifying rounds) competed for the Euroleague title. The victors were Real Madrid of Spain who are the current European Champions of club basketball. This title cannot be disputed as any worthy opponent from any European country had the opportunity to compete. Despite reigning supreme over an entire continent, the Euroleague has the humility to never even have the faintest notion of using the term “World Champions”. This is fundamentally due to its outright incorrectness, but more practically because roughly three-quarters of the world would be unrepresented.

The Golden State Warriors won the NBA Finals this past June, making them the best of twenty-nine American clubs (and one Canadian club), and will raise a “World Champions” banner at the commencement of the new NBA season. Less than two percent of the countries of the world are represented by the NBA. The incontestable reality is that the Warriors are NBA Champions, no more and no less. Not only is the use of the term “World Champions” factually wrong, it is shockingly arrogant and egotistic, and only these American leagues have the audacity to make such a disgraceful assertion. This is illustrated by the fact that this trend does not extend to the National Hockey League, a league which is 23% Canadian, whose titleholders are accurately designated “Stanley Cup Champions”.

The problem is that these leagues erroneously feel entitled to make a statement that is one-hundred percent incorrect, which generates a completely unsubstantiated superiority complex amongst impressionable followers. The detestably vain use of the term “World Champions” will perpetuate in American-based professional sports leagues until it is legally forbidden; perhaps foreign leagues could file an action in fraud or misrepresentation. A more probable resolution would be rational thinkers in the public eye like longtime San Antonio Spurs head coach Gregg Popovich (whose team is the only one to aptly hang “NBA Champions” banners) communicating its categorical incorrectness. Coach Popovich made the following statement in 2010:

“There are no World Champions in the NBA, so anybody that has the flag up that says world champions is not correct, it’s not appropriate. The world champions, I believe, are the Spanish team right now. USA is the Olympic champion. The Lakers are the NBA champion. It doesn’t make sense for an NBA team to call themselves world champions. I don’t remember anybody playing anybody outside our borders to get that tag. Isn’t that true? I keep waiting for somebody to tell me I’ve missed something. The world’s bigger than North America. I know sometimes we as arrogant Americans don’t respond to the rest of the world, but it’s true. There’s a big world out there.”

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Battle of the Commissioners: Legalization and Regulation of Sports Betting

December 19, 2014

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By Sangin Safi – Thompson Rivers University 3L JD Student

In an op-ed published in the New York Times on November 13, 2014, NBA Commissioner, Adam Silver, argues for the legalization and regulation of sports betting. According to him, “despite legal restrictions, sports betting is widespread.” He points out that since there are only a few legal options available, those who wish to bet resort to illicit bookmaking operations and shady offshore websites. According to an estimate that he provides the underground industry is worth nearly $400 billion annually.

Mr. Silver argues that times have changed since the passage of the Professional and Amateur Sports Protection Act (PASPA), which generally prohibits states from authorizing sports betting. According to him, gambling has increasingly become a popular and accepted form of entertainment in the United States. He points to trends within the United States (i.e. New Jersey’s referendum demonstrating overwhelming support for legal sports betting) as well as international trends where sports betting is widely legal and subject to regulation. In light of these trends, Mr. Silver argues that Congress should adopt a federal framework for legalizing and regulating sports betting, subject to strict regulatory requirements and technological safeguards.

NHL Commissioner Gary Bettman disagrees. (As a hockey fan from Canada, I am not too surprised by Mr. Bettman’s cynical position!)

According to Mr. Bettman, “… some attention needs to be paid to what sport is going to represent to young people.” He further states, “[s]hould [sport] be viewed in the competitive, team-oriented sense that it is now? Or, does it become a vehicle for betting, which may in effect change the atmosphere in the stadiums and the arenas?” Mr. Bettman seems to be concerned that by legalizing sports betting, fans would be rooting for the spread instead of rooting for their favorite team.

However, Mr. Bettman seems to miss Mr. Silver’s point. By legalizing sports betting, Congress is not introducing sports betting. Sports betting already exists. By legalizing and strictly regulating it, the government would be bringing sports betting out of the underground and into the sunlight where it can be appropriately monitored and regulated, as Mr. Silver argues.

Furthermore, Mr. Bettman’s concern regarding how sports betting would affect young people as well as the atmosphere at sporting events seems to stem out of his moral judgment on the merits of gambling. However gambling is a form of entertainment just like sport is. As Mr. Silver points out, gambling has increasingly become a popular and accepted form of entertainment in the United States. Gambling and sport have co-existed without having a particular affect on young people or the atmosphere at sporting events. Therefore, it could hardly be argued that by legalizing and regulating what already exists, there would be a negative affect on young people and the atmosphere at sporting events.

Moreover, Mr. Bettman seems to suggest that rooting for the spread and rooting for your favorite team are mutually exclusive things. However, most sports fan are able to differentiate between the two and can partake in both activities without affecting their enthusiasm and loyalty to their favorite team. Indeed, it could be argued that sports betting might actually increase the level of interest ordinary citizens might have in sports and in attending sporting events.

In conclusion, while Mr. Silver’s offers a pragmatic opinion on the future of sports betting, Mr. Bettman seems to think that by legalizing and regulating an estimated $400 billion a year underground industry, society would be sending the wrong message to young people. In this battle, Mr. Silver is clearly leading 1-0.

 

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A Flaw in the NBA Doping Policy

October 2, 2013

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By Charlie Livermore – Thompson Rivers University 2L JD Student

Over ten years ago, a prominent member of the World Anti-Doping Agency research committee made a comment concerning the newly implemented steroid-testing program in the MLB labour agreement.

“It’s not a drug test. It’s an IQ test.”

The point was clear, and it’s a point that has been expressed by sports commenters many times since. Pro athletes often don’t fail drug tests because they take drugs; they fail tests because they fail to beat the system. And the system isn’t a hard thing to beat.

While baseball has been turned upside down since BALCO, and the NFL is under increasing scrutiny for steroid violations, one game has largely avoided the performance enhanced spotlight. The National Basketball Association has, for the most part, been relatively free of steroid scandal. Suspensions have occurred, but they are infrequent, inconspicuous, and largely restricted to players coming off the bench.

Defenders will occasionally argue basketball is fundamentally different than its harsher and more physical siblings, contending the game doesn’t lend itself to the advantages PEDs offer football or baseball players. This argument seems at best childishly naïve and at worst deeply irrational.

Basketball players would, of course, be better at their craft if they could run faster and longer, jump higher, and recover from injuries more rapidly. NBA insiders tend to agree; it isn’t that basketball doesn’t have performance enhancing drug users, it’s that they don’t get caught- and there are plenty of good reasons why.

Among the critics is WADA director David Howman, who has asserted the NBA believes they do not have the same issue with PEDs as other leagues, and “therefore haven’t addressed (doping) in quite the same way.” Other leaders in doping abuse have criticized the holes in the NBA’s current policy. There is no blood testing, no biological passports, and the system is vulnerable to microdosing (a practice recently made notoriously effective by Lance Armstrong’s medical team.)

It is commonly accepted that the Big Four professional sports leagues fall short of the  international anti-doping standard set by the Olympic movement and the WADA code, but the NBA has one gap in particular that deserves discussion: the timing and frequency of testing in the NBA is fundamentally flawed. And it’s flawed in a basic, and weird, and pretty stupid way.

According to the collective bargaining agreement between the Players Association and the League, which was revised in 2012, “all players are subject to four random tests each season” as well as “two random tests each off-season.”

If you believe the league sincerely wishes to prevent doping (which is a debate for another day,) the problem is simultaneously obvious and elusive. Players are only contractually obligated to give a sample four times per season, and those four times are generated randomly, regardless of when the previous test occurred. If a player’s number gets called four times before the season ends, it’s a legal certainty they will not have to give another sample until at least July. According to NBA writer Bill Simmons, it is a “running joke” in NBA circles that “once you pee in that fourth cup, you’re good to go.” The same applies, with only two tests, in the offseason.

While statistics dictate this can’t happen all that often, there’s no way to tell, and the rumors are that it does. If a player is looking to recover from a torn knee near the end of the season, bulk up during the summer, or supplement their training program with testosterone, they can use the timing of their contractual obligations to their advantage.

While certainly a dedicated doper could manipulate the toothless testing regime even when they still have required tests left, a more casual violator may see the chance to dope as a no-brainer if given such the indisputable opportunity this provision provides. In a grinding and exhaustive eighty-two game season, (long lamented by players for being too long,) it seems clear a few players, and more than a few trainers, would seize the chance to help their team with such a loophole. And they might be the type of players who don’t come off the bench- the type whose positive test could shatter professional basketball.

For an NBA player seeking a competitive advantage in the form of a banned substance, there are plenty of ways to beat the current system. Counting to four shouldn’t be one of them.

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Web-interview with Fletcher F. Cockrell

November 8, 2010

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Fletcher F. Cockrell – Author, litigation attorney, former college basketball player and coach, NBA agent and now Chief Legal Counsel for Texas Association of Basketball Coaches has kindly answered our questions:

  1. Why did you write “Dismissed with Prejudice” and what is it about? I wrote “Dismissed with Prejudice” in order to deal with the legal aspects of being terminated as a collegiate coach and how it relates to university administrations and the NCAA.  The story is about an assistant coach who gets fired (dismissed) by a dirty, political and philandering head coach.  The coach literally throws the young assistant under the bus in order to keep the NCAA from digging in to his program for other issues that he has regarding his wealthy and crooked booster.  A young attorney in a neighbouring city becomes enamoured with the pattern of this head coach because he has done the same thing over and over for years.  The attorney decides to offer his services to the fired assistant and a legal battle uncovers layer upon layer of fraud, cover ups and back-room deals that lead all the way to the Governor’s office.
  2. Do things like this really happen in collegiate basketball? This type of thing could easily happen in collegiate basketball involving a big money program.
  3. What inspired you to write this book? I wrote this book because of my background in collegiate coaching and also my experience as a practicing trial attorney now.
  4. Based on your experiences, what lessons would you teach an up-and-coming basketball coach in the league today?  I would tell them to listen more than you talk, bootstrap yourself to someone who is squeaky clean and trust no one.
  5. What exactly is your role as Chief Legal Counsel for the Texas Association of Basketball Coaches and how do you work with athletic directors?  My role as Chief Legal Counsel for the Texas Association of Basketball Coaches is to represent coaches when they have been fired or have issues regarding their employment.  I communicate with the athletic directors at times to try and mediate some of the problems and issues with the coaches in question.
  6. Were there any difficulties in moving from a coach (poacher) to helping to regulate the sport (gamekeeper)? I do miss coaching at times but am very comfortable where I am in my life.  I wouldn’t trade my life experiences for anything in the world.
  7. Assuming the biggest threat to basketball are agents and big money, and how do you think this can be fixed? I don’t think the agent/money issue can be totally fixed but the only way it can be addressed is through the threat of imprisonment and serious fines.
  8. What has been the most interesting case you have been involved in and why? My most interesting case is when I represented an illegal immigrant from Mexico working as a contractor for a huge conglomerate company in Arkansas.  They were basically hired illegally at a very low rate of pay.  One of the workers lost his hand in a work accident, and they just tried to send him home without compensation of any kind. I exposed them and they settled in order to avoid further media exposure.  It was a very sad experience and really opened my eyes about one of the biggest companies in the United States.
  9. How do you see the relationship between the NCAA, the NBA and FIBA?  The NCAA is a money-making business that thrives on television contracts.  The NCAA feeds the NBA, and their relationship is tenuous at times.  The NBA is a company run by one of the brightest business minds in sports, David Stern, and they will continue to grow.  FIBA is becoming more and more popular as basketball is the biggest sport worldwide.  The money being paid by European teams leads me to believe that the NBA could become global at some point.
  10. It strikes us as unusual that few athletes who have had successful playing careers go on to become successful lawyers. Is this unusual and why isn’t anyone following in your footsteps? It is very unusual for a former college coach to enter the legal field and I think the reason no one has followed in my footsteps is because they aren’t quite as crazy as I was.  It was a very stressful and difficult road attending law school, passing the bar and practicing law after 15 years of collegiate coaching.  But as I said, I wouldn’t trade the road I have travelled for anything in the world.
  11. What will your 2nd book be on? My next novel that I am working on deals with a big oil company in Houston, Texas.  This company has a risk manager that evaluates the dangers of oil and gas contamination throughout the country.  He is basically a bean counter that weighs the financial risks of excavation of dangerous contaminants versus simply allowing them to remain in the ground and what the costs of litigating wrongful deaths caused from the poisons below the ground. This risk manager is desperately trying to move up in the company and is trying to cut costs by gambling in certain areas where the toxins are.  His young assistant discovers what he is doing and begins investigating it, finding numerous deaths in certain areas where their company has old wells.  He contacts his roommate from college who is a struggling street lawyer and the attorney begins doing his research as well.  As the lawyer uncovers what is really going on, it leads to uncovering the fraud of one of the largest oil companies in the United States who also has ties to the Oval office.

For more information on Fletcher’s first novel, “Dismissed with Prejudice”: http://www.amazon.com/Dismissed-Prejudice-Fletcher-Cockrell/dp/1448919002.

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Ok maybe it shouldnt be if you are old enough, you are good enough!

February 16, 2009

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ESPN Reports that: Elgin Baylor (former Los Angeles Clippers General Manager) has sued the franchise, the NBA and Donald Sterling (Team Owner) alleging employment discrimination following his dismissal last year, after 22 years with the team.

The lawsuit maintains that Baylor was “discriminated against and unceremoniously released from his position with the team on account of his age and his race” and that he was “grossly underpaid during his tenure with the Clippers, never earning more than $350,000 per year, when compared with the compensation scheme for general managers employed by every other team in the NBA.”

The Clippers attorney said that he could not comment on the specific allegations as he had not seen them, but he added that Baylor had never made any of these claims of unfair treatment before his departure.

Source: http://sports.espn.go.com/nba/news/story?id=3901091&campaign=rss&source=ESPNHeadlines

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