By Alan K. Fertel
With the news of sports and litigation all over the media, some interesting cases have recently come to light. Michael Vick, Dante Stallworth, OJ Simpson and Barry Bonds have all recently found themselves on the wrong side of the law. One example that stands out in the public eye, given the many people whose lives have been shattered and careers that have ended, is the upside down world of Plaxico Burress. A star receiver for the New York Giants and Super Bowl champion during one season, and little more than a year later, a convict. Plaxico Burress’s misfortune not only affects him and his family, but also has a wide-ranging impact on his former team, teammates, the NFL, his doctors and his lawyer. How one mistake and one gunshot to the leg have caused so much harm to so many individuals and entities is startling. In this day and age in which athletes find themselves (at least in their own minds) needing to carry weapons, legally permitted or not, Plaxico Burress’s story still sparks outrage over his stupidity, as well as his poor choices and plain bad luck.
What caused Plaxico to carry a loaded hand gun? A sense of fear? A sense of entitlement? The manner or environment in which he was raised? He is now spending at least the next twenty months of his life in jail. In the event of good behavior, his twenty-four month sentence will be reduced to twenty months. It is believed that he was offered a three-month plea early in the game, but that his counsel, Ben Brafman, chose to reject it. A move, in hindsight, that has caused his client over a year and a half of additional jail time. The public outrage was such that New York City Mayor Michael Bloomberg made public statements reinforcing the idea that even a champion New York Giant was not above the law in New York and, if found guilty, Burress would do jail time for his unauthorized possession and use of a firearm. It is well known that there is a minimum mandatory sentence of 3 ½ years for anyone convicted of possession of, as well as discharging, an unlicensed gun in New York City. Mr. Burress did have a license for the gun in Florida; unfortunately, the license was expired. Burress was apparently under the impression (we will give him the benefit of the doubt), that the license in Florida was all that he needed, even when concealing the gun in the waistband of his jeans and entering a nightclub in New York City.
Plaxico Burress’s actions began to affect those around him once he informed Antonio Pierce, his teammate and good friend, after seeing red fluid (blood) on his sneakers that his gun had gone off and he had accidentally shot himself. Pierce contacted the New York Giants team trainer, who notified the team surgeon who all met Burress at the hospital. At this point, it is fair to say, that others bad decisions also came into play, in the form of lies and cover ups for the injured star. Pierce allegedly conspired with Burress, and Giants’ staff members present to give a false name to the doctor at the emergency room and then took the gun into his possession, eventually returning it to Burress’ home in New Jersey, crossing state lines in the process. It is possible that Pierce conspired with Burress and the giant trainer, doctor and the hospital doctors not to report the shooting and subsequent wound. Additionally, the treating doctor failed to follow the law and protocol by not reporting the gunshot wound to the police and by accepting a false name given to her by the doctor, trainer, and/or Pierce. And regardless of the depth of their involvement, their mere knowledge of the cover-up and presence makes the Giants’ staff members co-conspirators in the crime.
This was not Plaxico Burress’s first brush with controversy. In the past, he received a two-week suspension (which was reduced to one by the league) for missing practice and not notifying the team. He had a history of improper behavior issues. The Players Association was placed in the untenable position of having to file a grievance on his behalf and against the Giants (who were seeking to rescind the contract) and to require the Giants to pay portions of the signing bonus. They also filed a grievance against the Giants for their attempt to suspend him for two weeks without pay for personal conduct policy violations, including his failure to show up at practice and failing to inform the team of his whereabouts. He had his suspension reduced to one game, which was resolved through the NFL Management Council.
Since his appointment in 2006, NFL Commissioner Roger Goodell has ruled with an iron fist…suspend now, fight later. Utilizing the best interest of the game and personal conduct clauses of players’ contracts, Commissioner Goodell, sometimes known as “Fidel Goodell”, has handed out suspensions time and time again prior to adjudication. In this case, however, facts are facts. The Giants suspended Burress for the season and thereafter, waived him. They failed to pay him a $1 million dollar bonus due under his NFL contract and went on to lose numerous football games in his absence. They were unable to defend their championship.
The entire event has created more bad press for the NFL. More blood being shed on the streets of New York. Players carrying guns. Players fears being brought out into the open and the question remains unanswered…. how many athletes are packing? After Michael Vick, OJ Simpson, the shooting death of Carolina Panther Ray Caruth, the arrest and multiple charges of Cincinnati Bengal Chris Henry, and the bad press that their actions bring coupled with the NFL laying off employees, the death of Executive Director of the NFL Players Association Gene Upshaw, billion dollar Mega Stadiums, the failure to sell out home games and the economic situation confronted by many would-be ticket buyers, the NFL is caught like a deer in the headlights once again.
The sad truth of the matter is that Ben Brafman truly did a disservice to his client by not achieving the “best deal possible” for Burress. In this case, the best deal was the initial three-month guilty plea offer, an offer based upon information and belief, rejected by Brafman. Instead, Brafman engaged in a “4-Corner Stall Offense”, burning the clock and punting the ball, all the while making public statements referring to the “persecution” of his client, which then gave the media time to react to his crime, the court of public opinion to reach a decision, the NFL to make statements distancing itself from Burrell, and even the Mayor of New York to publicly condemn him.
Sports lawyers are, by the nature of the job, to “protect the show” not “be the show”. Brafman, in stalling the proceedings and, more importantly, allowing Burress to testify to the grand jury (the defendant in a criminal case has the right to refuse to testify before a grand jury) without an attorney present, did not protect his client. Burress was, in the end, guilty of a “Strict Liability Offense”; that he was unaware that his expired Florida license would not cover his possession of an unregistered firearm just didn’t fly.
While Plaxico Burress may sometime in the future play football again, he lost over $29 million of his $35 million dollar contract with the Giants. He has lost any chance of sponsorships and the opportunities that are regularly offered to championship athletes long after they have left the game. The collateral damage to friends and family has also been significant. After the shooting incident, Pierce was subpoenaed to give grand jury testimony and potentially faces not only punishment from the NFL, but criminal conspiracy charges to obstruct justice. The emergency room doctor who treated Burress was suspended by the hospital for her conduct and may be banned from practicing medicine altogether.
Burress’ wife is pregnant, his young son will not be able to play with his father for at least twenty months, and the superstar athlete, who up to last week was living with his family in a mansion in New Jersey will call a cell in a prison in Upstate New York his home for at least the next twenty months. Burress was transferred from Rikers Island to the Onieda Correctional Facility in Rome, NY, on October 1.
Is Plaxico Burress the most unlucky man on the planet or just another one of the entitled athletes who have been given everything they have ever wanted all their lives and are having trouble dealing with real world issues? Two bad steps, three bad years and the effect that it will have on the lives of many. This is not the last you will hear about Plaxico Burress or the Plaxico Burresses of the world.
Alan K. Fertel is a partner at the firm of Pathman Lewis LLP in Miami and heads the state court civil litigation division. Mr. Fertel is an accomplished litigator, having tried over one hundred jury and non-jury trials, and obtained verdicts and settlements of multi-millions of dollars. He is a tenacious and aggressive negotiator who protects the rights of his clients, in and out of Court. In Mr. Fertel’s twenty-five years of experience, he has represented a broad spectrum of clients. Mr. Fertel is also an accomplished and experienced sports and entertainment lawyer. He has represented many diverse individuals and entities in the entertainment and sports community, from athletes and entertainers to agents, leagues, radio stations, models, modeling agencies, restaurants and clubs, and he utilizes his wide range of skills to assist, counsel and advise his clients. He has consulted with eight first round draft picks in the NFL draft and has been featured on the NFL League Security Video filmed by NFL Films, shown to every NFL player as counsel on how to avoid the problems and pitfalls of being a celebrity professional athlete. Mr. Fertel has negotiated broadcast agreements with the Florida Marlins, the Miami Dolphins, the Florida Panthers, and the University of Miami Hurricanes.