Fraud is defined as a misrepresentation (more on this in a second), which is either known to be not true or which the person making the statement has no reason to believe it is true, to another party, with the intent that the receiving party rely on that statement to its detriment, and that the receiving party suffers damage. Barron's Legal Dictionary defines "fraud" as "intentional deception resulting in the injury to another."
Fraud takes two basic forms - either the misrepresentation is done intentionally - the person knows it is not true, but makes the representation anyway; or, the person has no idea whether it is true or not, but makes the representation anyway. A misrepresentation can be either an affirmative statement of fact or it can be the affirmative omission of a fact. For instance, in the real estate arena, if a seller fails to disclose known defective conditions to a house at the time of sale, the seller has misrepresented known facts.
Normally, a party misrepresents a factual circumstance with the intent to induce another party to rely on such factual misrepresentation. In the example above, the seller hopes that the buyer will purchase the property for the price agreed upon. If the fact were truly represented, the buyer would likely not pay that price or not purchase the home.
For fraud to be actionable (that is, a defrauded party gets monetary damages in a civil court), the defrauded party must be injured. Thus, in the example above, if the defective condition was a hole in the roof, but the buyer had the intent to buy the house and replace the roof, then the buyer would not have sustained any damage (unless he later discovered water damage/etc. resultant from the hole in the roof).
In the sports' world we just learned that the Ohio State University football coach knew of NCAA violations of some of his players prior to the start of the 2010 season, but that he failed to disclose what he knew in a Certificate of NCAA Compliance to the school on September 13, 2010. Why did he fail to disclose this information? Because it would have had a severe result - the loss of several players for the entire 2010 season. Nevertheless, he kept this information to himself until at least early February 2011 (after the season had ended). OSU learned of the matter from the US Attorney's office, and subsequently fined the coach and suspended him for the first two games of 2011. But, should the punishment have been harsher?
Interestingly, in Mr. Tressel's media conference statement a couple of days ago, he basically said he had no idea to whom he needed to report this information - really? What is Mr. Tressel's understanding as to what the Certificate of NCAA Compliance is? In any other employment scenario, irrespective of the qualifications, experience, or success of the employee, Mr. Tressel's conduct would be subject to immediate expulsion.
That OSU has not taken this issue seriously - a 2 game suspension of non-conference games and a $250,000 fine - should be a cue for the NCAA to seriously sanction OSU for the coach's and his players' conduct. If the NCAA is serious about keeping itself untarnished, it must be forceful in this case.
Fraud - if done intentionally - is subject to an award of punitive damages to those injured. The NCAA has been seriously injured. Do what is right, NCAA (and OSU)!
What are your thoughts?
March 8, 2011
MLB - YOUTUBE VIDEO CRACKDOWN
You may or may not have heard, but the Major League has been cracking down on the proliferation of video streams uploaded onto the computer over the past several months. Much of the uploads are pieces of or snippets of longer broadcasts, sometimes taken from video equipment; other times taken straight off the TV; and, still other times, from cell phones or other equipment at the games themselves. What many fans do not realize, however, is that the MLB has extensive intellectual property rights to this footage, at least to the extent that such footage is actually taken from its broadcasts. Similar to movies/TV snippets, copyright laws are strictly construed in favor of the entity holding the copyright registration.
As the ABA Journal recently noted in its March 2011 edition, however, the extent of such claims is "gray". I am certain that, as social media continues to expand to wider audiences, this issue will get much more publicity than merely in legal journals. For now, it remains a wait-and-see issue, mostly because YouTube and other websites have not wanted to get into a legal battle (ie, costly/expensive/$$$$$) with the MLB on the issue.
Interestingly, however, other leagues welcome such uploads as free publicity for their respective sport. The NHL clearly wants people to tune into www.hockeyfights.com and other websites to view the latest and greatest the sport of hockey has to offer at a national level. My opinion is that, at some point, a lawyer will find a loophole that gets around such arguments.
What are your thoughts?
As the ABA Journal recently noted in its March 2011 edition, however, the extent of such claims is "gray". I am certain that, as social media continues to expand to wider audiences, this issue will get much more publicity than merely in legal journals. For now, it remains a wait-and-see issue, mostly because YouTube and other websites have not wanted to get into a legal battle (ie, costly/expensive/$$$$$) with the MLB on the issue.
Interestingly, however, other leagues welcome such uploads as free publicity for their respective sport. The NHL clearly wants people to tune into www.hockeyfights.com and other websites to view the latest and greatest the sport of hockey has to offer at a national level. My opinion is that, at some point, a lawyer will find a loophole that gets around such arguments.
What are your thoughts?
March 2, 2011
"FREEDOM OF SPEECH" - THE GOOD BAD & UGLY
Today we were educated in the First Amendment's right of Freedom of Speech. It is sometimes amazing to think that this was the "First" Amendment and is so strongly rooted in our history; and yet, the Amendment is tested often. Earlier today, the US Supreme Court held that this freedom remains paramount to the liberties created by our forefathers more than 200 years ago.
The case, Snyder v. Phelps, et al (2011) 580 F.3d 206, affirmed the lower court's ruling and was decided by an 8-1 majority. In summary, defendants Phelps and the Westboro Baptist Church had a long history (20 years) of demonstrating at funerals of US soldiers to show solidarity in the belief that the US Military and the US have sinned against God by allowing homosexuals in the military. The demonstrators otherwise complied with public protest laws, but held signs saying things like: "Thank God for Dead Soldiers", "America Is Doomed", and "F--s Doom Nations".
The opinion (as summarized in the Court Syllabus) basically held the following:
The primary focus as to whether speech is public, is on the content. In this case, the Court clearly discerned that the content of the speech (the language on the signs) was public - the content dealt with defendants' opinions related to how the US and its military dealt with the issue of homosexuality in the military. Importantly, the Court noted that defendants in this case took great strides to remain peaceful and otherwise comply with all regulations then in effect with respect to picketing/demonstrating. The Court held it irrelevant that the content expressed was found by the jury to be "outrageous".
Thus, the freedom to speak against politicians you disagree with, the right to vehemently disagree with public officials, call them names, etc., is generally protected. The burning of the US flag has been upheld as being protected by the First Amendment. These freedoms are sometimes questioned, but the premise behind the freedom is that minority opinions are just as protected as majority opinions - this was the primary rationale for the Bill of Rights in the first place.
What are your thoughts?
The case, Snyder v. Phelps, et al (2011) 580 F.3d 206, affirmed the lower court's ruling and was decided by an 8-1 majority. In summary, defendants Phelps and the Westboro Baptist Church had a long history (20 years) of demonstrating at funerals of US soldiers to show solidarity in the belief that the US Military and the US have sinned against God by allowing homosexuals in the military. The demonstrators otherwise complied with public protest laws, but held signs saying things like: "Thank God for Dead Soldiers", "America Is Doomed", and "F--s Doom Nations".
The opinion (as summarized in the Court Syllabus) basically held the following:
The Free Speech Clause of the First Amendment can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. Hustler Magazine, Inc. v. Falwell , 485 U. S. 46 . Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values” ’ and is entitled to special protection.” Connick v. Myers , 461 U. S. 138 . Although the boundaries of what constitutes speech on matters of public concern are not well defined, this Court has said that speech is of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” id., San Diego v. Roe , 543 U. S. 77 . A statement’s arguably “inappropriate or controversial character … is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson , 483 U. S. 378 . Pp. 5–7.
The primary focus as to whether speech is public, is on the content. In this case, the Court clearly discerned that the content of the speech (the language on the signs) was public - the content dealt with defendants' opinions related to how the US and its military dealt with the issue of homosexuality in the military. Importantly, the Court noted that defendants in this case took great strides to remain peaceful and otherwise comply with all regulations then in effect with respect to picketing/demonstrating. The Court held it irrelevant that the content expressed was found by the jury to be "outrageous".
Thus, the freedom to speak against politicians you disagree with, the right to vehemently disagree with public officials, call them names, etc., is generally protected. The burning of the US flag has been upheld as being protected by the First Amendment. These freedoms are sometimes questioned, but the premise behind the freedom is that minority opinions are just as protected as majority opinions - this was the primary rationale for the Bill of Rights in the first place.
What are your thoughts?
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