Like father, like daughter?

I have been a sports fan since I was about six years old and as a youngster did not handle my favorite teams losing--tears, yelling, mild swearing, thrashing, shouts to the heavens, and cries of "why didn't ___ happen" were a common occurrence. When my wife and I had a daughter, I hoped that she would become a sports fan, and have been pleased that she has at a young age. She even is showing some decent five-year-old soccer skills (ironic, since that was long the sport that I just did not get).

Well, the family connection became very clear with the US loss to Japan in the Women's World Cup Final today, which precipitated a crying meltdown for the ages. Being more dramatic than I was, hers even got somewhat existential--wondering why she had been born, why she bothered watching, and threatening never to play or watch soccer again (the last part passed quickly and she is looking forward to attending FIU women's games in the fall).

It obviously hurt to see her that upset. But a small part of me felt a twinge of happiness and pride that she has developed such a passion for this.

New SI Column on Roger Clemens Mistrial

Be sure to read Howard's excellent post and then I hope you have a chance to check out my column for Sports Illustrated.

Mistrial in Clements case

Judge Reggie Walton declared a mistrial in the perjury prosecution of Roger Clemens, after prosecutors presented evidence that the judge previously had excluded in limine. The evidence at issue was a mention of a statement by Andy Pettitte's wife that Andy had told her that Clemens had admitted to him that he had used HGH, apparently in response to Clemens' defense that Pettitte had either misheard or "misremembered" what Clemens told him. The exclusion of the evidence seems like the correct call, particularly if Clemens' defense is that Pettitte misheard; Pettitte repeating what he misheard does not rebut the possibility that he, in fact, misheard. On the other hand, if Clemens' defense was that Pettitte's memory failed, this evidence may have become relevant later in the trial. So there is a nice question whether a mistrial was appropriate at this point over a fairly small piece of credibility evidence that might even have become relevant later

The government now must decide whether to retry the case and Judge Walton has scheduled hearings for later this month and next month to decide whether it can or whether jeopardy has attached (sometimes the case when the government's misconduct causes the mistrial). And perhaps the government will consider whether this all is worth the candle in any event.

Line of the hearing from Judge Walton (who apparently raised his voice throughout): "I think that a first-year law student would know that you can't bolster the credibility of one witness with clearly inadmissible evidence." First-year law students, take note.

Update: Nina Totenberg talked about the ruling on NPR's All Things Considered. From her description, it sounds as if three things triggered the mistrial: 1) Pettitte is a key witness, so this was vouching for a key witness; 2) this is the second time the government had ignored a prior ruling; and 3) when the parties conferred with the judge right after the inadmissible material came out (on the video of the congressional hearing), the government left the video frozen on the improper point showing the hearing and a transcript of what was being said. In other words, during a several-minute sidebar conference, the jurors were staring at the objectionable evidence. Number 3 strikes me as the big one--it's not just that the jury heard inadmissible evidence, but that they were staring at it for several minutes.

Further Update: Last night, I was interviewed about the case on Seattle's KJR Sports Radio.

Here We Go, Again: Home Runs and Taxes.

Christian Lopez, the fan who recently caught Derek Jeter’s record setting home run baseball, which constituted Jeter’s 3,000^th hit, joins a small group of fans who have caught historic home run baseballs only to find there may be tax consequences. First, there was the groundskeeper who retrieved Mark McGwire’s 62^nd home run baseball in 1998, only to give it to McGwire. Most recently, there was Matt Murphy, who caught Barry Bonds’ record setting 756th career home run in 2007.

In 1998, the Service issued conflicting statements regarding the tax treatment of a fan who caught a historic home run ball and returned it to the player. The Service ultimately issued a press release stating that the fan would not have taxable income or gift tax issues upon catching the ball or relinquishing the ball to the player, absent a situation where the fan sold the ball. In 2007, the Service was more cautious, declining to comment on the possible tax treatment of the fan who caught Bonds’ record setting home run ball. Based on the belief that merely obtaining the ball constituted gross income, Murphy sold the baseball to create liquidity with which to pay the resulting tax liability.

With that background, what are the tax consequences for Lopez? Lopez gave the ball to Jeter, voluntarily. He was given season tickets and other items by the New York Yankees. Many are positing that the only tax issue in this scenario revolves around Lopez’s receipt of the tickets and items from the Yankees. Given the Service’s track record in handling these situations, this may be the end result.

I suggest there are other results possible. Among these other results, it could be asserted that the ball constituted an accession to wealth (i.e., gross income) to Lopez, to the extent of its fair market value. Lopez’s subsequent transfer of the ball to Jeter, coupled with his receipt of items from the Yankees, could be construed as a sale to the Yankees, perhaps at a loss. As the ball did not belong to Jeter prior to the hit, Jeter’s receipt of the ball from Lopez could be seen as compensation from the Yankees, which allowed the ball to pass to Jeter.

Determining the proper resolution of these situations is vexing. Attempting to develop ways to avoid the uncertainty, a number of articles have been written proposing non-recognition be afforded to fans who catch such baseballs, including an article I co-authored with Adam J. Poe entitled Home Run Baseballs and Taxation, an Open Stance: How a H.R. can be I.R.D., 3 Est. Plan. & Community Prop. L.J. 79 (2010) (available on Westlaw).

The Curious Case of Curt Flood

Sports law history aficionados will want to be sure to watch the new documentary, The Curious Case of Curt Flood, airing this month on HBO. The documentary, which premiered last night, chronicles Curt Flood's historic legal challenge to baseball's reserve clause and antitrust exemption, culminating in the United States Supreme Court's 1972 decision of Flood v. Kuhn. The New York Times' preview of the documentary is available here.

Meanwhile, those interested in the history of the Flood suit should also check out Professor Brad Snyder's excellent history of the case, A Well-Paid Slave.

Latest Update on NBA Lockout on NBA TV

I discuss the latest developments in the NBA Lockout on NBA TV.  I appreciate the shout-out from Dennis Scott!

Catching up with Links (Belated)

First off, our apologies for the lack of posts.  With the 4th of July, vacations, moves, summer weather (and not being on-line as much) and other life events, things have been really slow around here of late.  We'll resume regular posting soon, with original content as opposed to merely linking to stuff, as I'm about to do.

Here are some links from the last week or so:

* Paul Doyle's advice for Roger Clemens?  Don't talk.

* Geoffrey Rapp talks to CBS Sportsline about the NFL lockout.

* Rick Karcher talks to the Columbus Dispatch about the Ohio State mess.

* Ohio State law professor Douglas Berman, on Sentencing Law and Policy, comments on possible sentencing of Clemens and my prediction of 15 to 21 months if convicted on all counts.

* As always, two of the best sports law blogs around are Connecticut Sports Law Blog and Sports Agent Blog.  Be sure to check them out.  Tons of good stuff.

* My SI column on the Eighth Circuit's decision in favor of the NFL.  Not good news for NFL players, though it seems like they will reach a deal in the next few weeks.

* My SI column on Dr. Anthony Galea's guilty plea and what it could mean for his former clients/patients, who include Tiger Woods and Alex Rodriguez.  Be sure to also see my SI colleague Will Carroll's column on implications for A-Rod.

* My SI column explaining the NFL retired players' lawsuit against both the NFL and NFLPA.  Shouldn't retired players have a seat at the bargaining table?

* My SI preview of the Roger Clemens trial.  David Epstein and I also co-author several articles for SI on the trial -- "Strategies change in Clemens trial" and "Arguments over audio tapes"

* I've joined NBA TV as an On-Air Legal Analyst.  I was in Atlanta last week to talk with Kenny Smith and Antonio Davis about lockout in studio.  Here is a link to one of the clips.

* For SI I compare the NBA and NFL lockouts.  Here's the video: