[MUSIC] Let's fast forward to the mature athlete. He's past his arbitration eligible years. Now he runs into a problem. A PED, a bio-genesis sort of issue you've had, without getting into client confidences, some experience in that area. How would you advise and represent professional athlete that's confronted? Let's start with a Congressional investigation, a Sosa or a Petit or an A-Rod. How do you counsel them when they're in a crisis mode like that? >> Well everything is very case-specific. But the first thing that you have to do is, you have to evaluate the risks and rewards of any strategy that you're going to employ. And representing a professional athlete is much different than representing let's say a CEO of a national company that's under Congressional investigation. Because a lot of that player's value both to the club and, and to himself, involves public relations. The value of his brand. And, and so you have to balance protecting him legally, while also still protecting his brand. And sometimes those two matters, those two issues conflict. Because there are certain things that you might do legally to shield your player from certain things, but given that he is a public figure you rely upon, or he relies upon his brand for his livelihood. Sometimes you have to make adjustments in your legal strategy to account for, for the value of that brand. What would you say in an Sosa or a Petit or an A-Rod, I think you worked you told us, on all three of those, to a certain extent, honesty is the best policy, beginning, middle, end? >> Oh, absolutely. I mean, first of all if you're going to have your client testify in any form. You can't knowingly as a lawyer sponsor to perjury or false testimony. So when a client is placed under oath, you have to be very careful and certainly the truth is always the best option, and that's the one that we've employed with my clients. >> I know you didn't represent Clement's but do you think his going and, and pursuing it and pursuing it was brand damaging or brand enhancing sort of trajectory? >> Well, ultimately I thought his strategy was brand damaging. At the point that he decided to continue to fight the criminal charges in a way that he pursued them. You know, ultimately all that evidence spills out into the public eye. And the fact that he was acquitted, I don't think changes the public's opinion with respect to whether he used or did not use performance enhancing substances. So, I think the war that he engaged in was somewhat misguided. >> Yeah, a Pyrrhic victory perhaps. Yeah. And I guess that goes to when you're managing a brand, which you also do. And the superstar athlete, let, let's go forward into, the Biogenesis. So we've dealt, dealt with the Congressional situation, Pettit, Sosa and so on. And now, now we're into the Biogenesis scandal and you told us you represent as many as eight of those people who were involved. At that point and you didn't have A-Rod, but he continued to fight it, and fight it, and fight it, even sued the Players Association at one point. In managing a brand where do you just say enough is enough, I'll take my penalty and I'll move on? >> Well, ultimately, that's what all of my clients in Biogenesis decided to do. They accepted 50 game suspensions under the Joint Drug Agreement for their alleged transgressions under the Joint Drug Agreement. But again, it's all particularized to the individual facts. The players that I represented both or, all of them presented somewhat unique circumstances. I represented, for example, Nelson Cruz. Nelson Cruz was in the final year of his contract with the Texas Rangers and was going to be a free agent in 2014. Had Nelson decided to appeal his suspension, there's no way, or it would have been extremely unlikely, that a decision on his 50 games would have been made before the beginning of free agency, which would have affected his value in the free agent market. And tack on to that, any club signing him would run the risk that he'd be suspended for 50 games if he didn't prevail in his appeal. I also represented a number of minor leaguers, and those minor leaguers were eager to break spring training camp in 2014 and attempt to make the big league club. Had they fought their suspensions, it would have interfered with their ability to compete for a Major League job in Spring Training in 2014. So all of my clients presented somewhat unique circumstances, but they all led to the same path, and that ultimately was accepting, the negotiated deal with Major League Baseball for 50 game suspensions for all of them. >> What about the criticism, that's a great answer, but what about the criticism of Ryan Braun? Oh, I'll take maybe 65, but that's okay. You know, and other players are now reacting against the Johnny Peralta. I'll take 50 games, but then I'll come back and sign a big deal. A big multi-year deal, and they're clamping down. Both the Association and Major League Baseball, even under HGH testing, for example. Are you in favor of that? I'm not in favor of human growth hormone testing. I don't think, I don't believe that it is a scientifically valid test at this point. I still think more work needs to be done on it before it can be proven to be scientifically valid, so I was not in favor of HGH testing. Add onto that that it's invasive. It's a blood test, which was the first time that the players had agreed to blood testing for performance enhancing substances, so I was not in favor of it. With respect to other players' criticisms of Melky Cabrera, to some extent to Jhonny Peralta, that have been punished for their transgressions and ultimately signed multi-year contracts. Look, there is a penalty prescribed under the Joint Drug Agreement for the first-time violators of the program, and that's a 50 game suspension. And they accepted their penalties. That's what the penalty was in the Joint Drug Agreement. There's nothing in the Joint Drug Agreement that says they should be penalized contractually or anything else. So that's what the collective bargaining agreement and the Joint Drug Agreements say, they serve their penalty, and they have the right to continue on in the game. >> Let me just ask you about that, for our audience, this is a strict liability regimen, if I'm correct, so in other words, it's not a defense to say, oh, I didn't realize that that which I ingested could be on, the prohibited substance list. Is that a fair summary of how the strict liability regimen works? >> As a general rule, that's right. Now for example, if you do take a substance that is on the NSF list, which is the approved list, and ultimately, one of those substances turns out to be tainted you would have the ability to fight that on the basis that there's no way you could have known or should have known that there would have been a prohibited substance, if that substance is on the NSF list. And that NSF list is circulated, to all the trainers in Major League Baseball. The players are made aware of it. So if you took something like that, and you triggered positive, you would have the opportunity to challenge it before an independent arbitrator. But if you go into, let's say, GNC, and you buy a protein shake. And that protein shake isn't on the NSF list, and you ingest it and it triggers a positive test a strict liability will kick in, and you'll be held responsible. >> How did Ryan Braun and his attorney, David Cornwall get his strict liability first time overturned? Was that a chain of custody issue of some kind? >> Yeah, Ryan Braun was a little bit different. There was a chain of custody issue with respect to Braun's urine sample, instead of being immediately placed in a FedEx package and sent to the lab because the FedEx facility closest to the field was closed. It was a Friday night. The collector kept it in his refrigerator over the weekend, and then sent it in on Monday. And that was a violation of the chain of custody rules that exist under the Joint Drug Agreement and, ultimately, Braun was exonerated. I would note that I believe that was a Players Association argument with respect to the chain of custody. >> Okay. Let's just finish up Jay, you've been great wisdom and source of knowledge here. But let's just talk about the rebranding of an athlete that's been through a crisis, a superstar player, like a Nelson Cruz. Is it just about winning, like Al Davis says, “Just win, baby.” Is that what it is? Really? On the other side of whatever it might have been. And sort of in tandem with that, could an A-Rod ever repair the damage to his reputation to be able to push a product again? >> Well, whether you're able to rebuild your brand or push a product may be two separate questions, that need to be answered. You know, look, America forgives. It's something unique to our culture. We are a forgiving culture, but nothing, nothing is better to rebuild a brand than performance. If a player can come back from a situation like a Biogenesis suspension and play well on the field, you'll find that people embraced that player. Take Nelson Cruz for example, Nelson Cruz accepted his penalty, served 50 games last year and now he's going to start in the All-Star Game leading the league in home runs and RBI's. So Nelson Cruz is well on his way to rebuilding his brand. But the other thing is that America also likes to see contrition. And I think that's what's negatively affected Ryan Braun. Ryan Braun was not contrite with respect to the way things were handled and I think that negatively affected his brand and continues to negatively affect his brand. Can Alex rebuild his brand to pitch a product? I think the answer is yes. You know, look, Alex, Alex is unique. He is one of the elite athletes ever to play the game. My representation of him, it was somewhat funny. I had never represented an athlete of that caliber, of that magnitude. You know, I had represented Sosa. I'd represented Pettit. But Alex was different. The public treated him different. And you know, Alex will have an opportunity to take the field again in 2015. And if he performs well on the field, if he is contrite, there is a means, there is a way for him to rebuild his brand. >> Let me just ask you the famous Hall of Fame question. Should there, should these, any of these people who've admitted PED issues be admitted to the Hall of Fame? Pete Rose can't get in. He gambled. How is this different? >> Well, I think gambling in baseball is different than the use of performance enhancing substances. When you look back at the steroid era, the 90s and the early 2000s, I think that, there's is something to be said that everybody in at least a large portion of the players were using performance enhancing substances. And you're to be judged in Hall of Fame voting against those that you played against. And so for those players that allegedly used back in the 1990s and the 2000s, I think they should be judged against their peers who were also probably using, and they should be admitted. With respect to guys that used for one time or a limited period of time, I think you have to take that into account and contrast it with their performance over their entire career. And if, ultimately, you've determined that, for their entire career that they're deserving of a Hall of Fame vote on the basis of their statistics, they should be in. It should not be an automatic prohibition to getting in, which is really what it is right now. >> Yeah. Is, is Craig Biggio somebody who should be in the Hall of Fame? Eventually? >> Well, I think Craig Biggio should be in the Hall of Fame. First of all, there were nothing but accusations with respect to Craig Biggio. Nobody ever caught him, he never tested positive. He was never found in possession of steroids or anything like that, so the fact that some people, surmise, that he was using performance enhancing drugs is absolutely, it's not fair. It's not fair and the fact that he's not in it, it's criminal. >> Should Derek Jeter, last question, should Derek Jeter be a first ballot Hall of Famer? >> He should be a unanimous first ballot hall of famer. >> Amazing. The Captain, he's here in Cleveland playing the Tribe. So, he his first home run here back in his rookie year. Jay, we want to thank you so much. Is there anything else you'd like to add, to tell our audience about what it is to represent the professional athlete in Major League Baseball, through and including his mature years. >> Yeah, the one thing that I would say is that, there's no magic secret to what I do for professional athletes. You know, I am a litigation lawyer. I've been trained in litigation both in white collar and in complex civil matters and I merely apply those skills to the representation of professional athletes. And for those that are looking for a career in sports law, I strongly urge you to get a broad base of legal skills. And then try to apply it to the sports law job of your dreams. >> It's just complicated commercial, sophisticated, semi-criminal work that happens to be for superstar athletes. So that's the way I describe it, right? Sobe skillful and you'll be successful. It's really what you're saying, I think. >> Absolutely. >> Great. Great answer. Jay we can't thank you enough for being here, we have your bio up for our audience, and I sure thank you very much for being with us today. >> Anytime, I enjoyed it. [MUSIC]
