GARY CHESTER

The U.S. Supreme Court has struck down a federal law that prohibited most states from legalizing sports betting.  The Court ruled that the federal law infringed on the powers granted to the States under the 10th Amendment to the U.S. Constitution.  The 10th Amendment basically gives the States the authority to regulate certain types of activities that Congress is not authorized to regulate.

The decriminalizing of sports gambling, which had been legal only in four states but practiced mainly in Nevada, leads to some interesting questions:  When a criminal activity is made legal, is there an increase or a decrease in that activity?  Will the decriminalization of sports betting lead to the decriminalization of other so-called “victimless” offenses such as marijuana consumption and prostitution?

The first issue is interesting because both Congress and the state legislatures assume that criminal laws deter law-abiding citizens from engaging in activities that are illegal, even if they are victimless crimes.  There will certainly be an increase in sports wagering as it is estimated that some 35 states will quickly legalize sports betting.  But how much of an increase will we see?  If there is only a 10-20% increase, would it mean that most of the folks who were interested in sports betting ignored the law and found illegal ways to gamble, whether online or otherwise?

Given our society’s obsession with sports and with the need to make each game more meaningful, one would expect a huge increase in sports gambling and a new source of revenue for the states that legalize it.  That would mean that the law prohibiting sports gambling had a profound effect on those who wished to gamble, deterring them from engaging in an activity only because it was illegal.

The second question is even more fascinating.  Possession of marijuana is a federal crime.  It is still enforced on occasion even though medicinal marijuana is legal in 25 states and recreational marijuana is legal in four states.  This makes no sense, as laws are supposed to advise persons on what they can and cannot do.

With a conservative-leaning Supreme Court that tends to favor states’ rights over federal power when looking at the Constitution, it may only be a matter of time before the federal prohibitions against marijuana and other victimless activities are successfully challenged.

Revelations of pervasive sexual harassment by movie mogul Harvey Weinstein has opened the floodgates of social awareness and condemnation of sexual harassment in America.  While federal law protects women, minorities and others from harassment and discrimination at work, the New Jersey Law Against Discrimination is a strong state law that affords women and other “protected classes” of persons legal remedies when they are harassed or discriminated against in employment, housing, public accommodations, and in business contracts.

Sexual harassment under NJ law occurs in two ways:  quid pro quo, which involves requests for sexual favors; and, more commonly, creation of a “hostile work environment” in which no reasonable person can be expected to work.  In the latter case, a co-worker or supervisor harasses a woman by directing sexual remarks to her in a course, outrageous manner on multiple occasions.  Mere rudeness does not qualify, so that when a male worker refers to a female co-worker as “babe” it is inappropriate but not illegal.  However, referring to a female co-worker consistently as “babe” and asking when she is going to finally go to bed with him is intolerable conduct that violates the law by creating a hostile environment at work.

Harassment (or discrimination based on race, religion, etc.) by a co-employee does not necessarily mean that the victim can sue the employer under NJ law.  If the harassment is by a supervisor, then the employer may be found liable to the victim.  However, if a co-employee does the harassing, the victim must promptly report the misconduct to the employer.  If the employer has knowledge of the misconduct and takes little or no action to prevent further harassment, then the employer may be found liable under NJ law for failing to take the necessary action.  Reporting the harassment to the employer is the tricky part, as many human resources departments fail to take sexual harassment complaints seriously; consultation with an attorney immediately after the harassment but before it is reported can be valuable in this regard.

As society increasingly accepts sexual harassment complaints as possibly, if not probably true, employers will hopefully take these complaints more seriously and act decisively.  Employers should take preventative measures by requiring all workers to undergo some of the very good online training courses available to businesses who are serious about this important issue.

A trial is basically the telling of a story through various witnesses.  In civil cases, an expert witness is an important story-teller because this is the only type of witness that is allowed to voice an opinion to the jury.  For example, in a dangerous products case, an engineer reads all of the pretrial testimony and becomes familiar with the product that allegedly malfunctioned and caused an injury, and comes to a conclusion as to whether the product was dangerous or whether the injured party simply misused the product.

An expert opinion can make or break a case by persuading the jurors to vote for or against the injured party.  That is why it has long amazed me that lawyers often spend little time finding the right expert – they simply hire an engineer, send the evidence to him or her, and wait for a written report from the expert.  But a more effective use of an expert is to take a little extra time and find an expert who is a specialist – not just an engineer who will look at the product, but a specialist with experience designing or manufacturing the specific product involved in the case.  For example, it is acceptable for an engineer to say that an electric coffee maker caught fire because of a design defect; however, it is much more effective if your expert spent 30 years working in the small appliance industry, including working with coffee makers, and can base the opinion on real-life experience and expertise with that specific product.

I am proud to have presented a seminar on the subject of expert witnesses for Lawline, one of the leading providers of continuing legal education for attorneys, and to have earned a 97% “excellence” rating from the attorneys who viewed my seminar.  I look forward to presenting similar programs in the future.

(You may view an excerpt from my Lawline seminar by clicking on the video on the right side of this page.)

 

 

The film “Concussion” tells the shameful story of the National Football League’s mishandling of a pervasive and serious medical issue among its players.  Lawsuits by former players alleging that the NFL hid the full medical risks of concussions from players have been or are being resolved.  But now that the medical risks have been disclosed, does that mean football players at any level assume the risk of any long-term effects from sports-related concussions and cannot sue an employer or league organizer for negligence?

We assume the risk of many dangerous activities and give up the right to sue others if we are injured.  For example, if you buy a ticket to a baseball game and are struck by a foul ball or even a bat that slips out of the batter’s hands, you cannot file a claim for personal injuries against the team, the league or the owner of the stadium.  By attending the game, you are assuming the risk of this sort of injury.

Similarly, if you are playing high school, college or recreational sports and are injured as part of the game, you cannot sue the player who caused your injury.  By playing the game, you are assuming the risk of certain injuries.

However, as I instruct my students while teaching part-time at Montclair State University and at Ramapo College, “assumption of risk” is an idea that is not favored in the law.  In general, the law allows those who are wrongfully injured to sue for monetary damages.

The primary exception to the idea of “assumption of risk” is simply that no one should be allowed to make a known risk greater than it already is.  For example, a hockey player can be checked by another player because it is part of the game.  Fights sometimes occur. Injuries that result are generally accepted as being a part of the game.  But if a player loses his or her temper and viciously assaults another player (or a referee or a fan, for that matter) with a hockey stick, then the player may be held responsible because that sort of behavior is outside the normal conduct in the game of hockey and is not the type of risk that a hockey player assumes.

I have handled sports cases where injured participants were able to overcome the “assumption of risk” hurdle.  For instance, where a softball player slid into second base and injured her leg due to a dangerous condition under the surface of the infield, she did not assume that sort of risk.  How can someone assume a risk that is hidden under the infield dirt?

As for the NFL players who have sustained concussions and will suffer the long-term effects of that type of injury years after they retire, at this point their best remedy is to negotiate a favorable compensation plan through their union.  For everyone else, including those of us who are “weekend warriors,” the right to sue will be determined by the circumstances of each case.

[For more sports law viewpoints, go to sportstalkflorida.com, type my name in the query box, and check out host 1040 AM Tampa sports talk host Jenna Laine’s interviews with me on a variety of college and sports issues.]