By Alan K. Fertel*
There is a significant problem in the sports world today. The current environment, in which every 1/100th of a second or percentage point counts, causes athletes go to extremes to get any possible edge on the competition. This forces teams, trainers, coaches and agents to become complicit. When it does, it can compromise them all, but the most compromised class is the one that includes one of America’s least favorite professionals: lawyers.
Despite ubiquitous lawyer jokes, this is no laughing matter. Cheating, however defined, corrupts the sports industry by causing every athlete to become suspect. Concealing and combating doping in sports also raises serious ethical, statutory and constitutional issues for attorneys whose practices involve athletes and athletics. Anyone involved in their representation risks getting ensnared in doping controversies that can threaten their lives, careers and reputations as well.
While certain athletes recover – and some even thrive – after weathering false allegations, others find their careers irretrievably destroyed. These are the ones out of the spotlight: the coaches, trainers, agents and lawyers who suffer the fallout from the accusations hurled at the athletes in their charge.
These are the people for whom the legal system presents potential problems. For attorneys representing the team – that is, say, the player, coach, trainer and any other member of the official entourage – the legal ramifications converge to the point where the attorney’s conflicts force him or her to make the choice not to represent anyone. Such a conflict can cause to a violation of state ethics guidelines. In some states, such as Florida, such a violation can lead to a grievance being filed. In extreme cases, the filing of such a grievance could result in disbarment.
To pluck a scenario from the headlines, consider the Barry Bonds saga. Bonds’s pursuit of Hank Aaron’s home run record and his suitability for Hall of Fame induction are both clouded by doping allegations that have dogged him for years.
In testimony before a grand jury in December 2003, Bonds acknowledged receiving substances that matched the description of “the clear” and “the cream,” two undetectable drugs from the Bay Area Laboratory Co-Operative. The substances were supplied by Greg Anderson, Bonds’s personal trainer. Anderson previously served three months in prison and three months of home detention after pleading guilty to steroid distribution and money laundering in the investigation of BALCO. He subsequently served a total of 51 days in prison since July 2006 for refusing to testify before a grand jury investigating Bonds. He was released from prison only after the grand jury’s term expired before being re-incarcerated on Nov. 15, 2006 for his continuing refusal.
As Bonds remains dogged by these accusations of steroid abuse, he also faces possible federal indictment on perjury and income tax evasion charges. To protect themselves, the Giants inserted a non-indictment clause in Bonds’s recently signed contract. Some experts have expressed concern that such a clause could be found to be a violation of Major League Baseball’s basic agreement with its Players Association.
Any lawyer representing Team Bonds faces a minefield of ethical, statutory and constitutional issues. The Constitution guarantees the right to representation of one’s choice. But attorneys, caught between their professional obligations and their ethical requirements, may choose to avoid conflicts altogether by representing none of their clients who may be on opposite sides of an allegation or investigation. Such a decision deprives individuals of that constitutional right.
The Bonds case is one of many that expose a significant problem in the sports world today. Athletes, trainers and doctors are better at hiding the drugs than the leagues are at finding the cheaters. The leagues must pursue cheating allegations as vigorously as the cheaters avoid getting caught. Otherwise, the cheaters will continue to win – with dire implications for the sports industry and sports lawyers.
Alan K. Fertel is chair of the entertainment and sports practice at Miami-based Ferrell Law.
