Friday, December 14, 2007

Steroids and the Mitchell Report: MLB at fault

I'm not sure how many of you have had a chance to read the 409-page Mitchell Report. I'm as guilty as the rest of you in passing judgment based on news reports and talking head speculation.

I'm less interested in the names of the ball players that are included in the report. I think it stands to reason that these men are the epitome of the word competitive. It is in their blood, or genes, or souls. I don't have a hard time believing that they would take any step necessary to be the best at what they do. I'm not naive enough to forget that being the best means being paid like the best. But I still say that the competitive juices that flowed through their bodies before the chemical juices ever did, still drive them in their professional careers.

What I think the report shows is that rather than being a problem for a single individual or team, it shows that the steroid problem is a BASEBALL problem. It's one that the entire organization turned its head away from for the sake of its bank accounts and maybe even its very existence.

I didn't grow up a baseball fan. I thought the game was slow and boring. I preferred football to baseball any day. It wasn't until I had a room mate from Puerto Rico that I began to understand and appreciate baseball. For some reason, he grew up loving the Cincinnati Reds. Because they were in the same division as the Astros, I began following the Astros. That summer, I memorized pitching rotations and ERAs, BA's, K's, the works. I spent hours with newspaper print stained hands. Then the strike happened. I couldn't believe it. I felt like I had wasted all that time.

Just like the rest of America, I didn't come back to baseball until the homerun race between Mark McGuire and Sammy Sosa. Baseball knew what it was doing in bringing the fans back. MLB should be as much to blame as anyone named in the report.

So what's the legal angle here?
Noted defense attorney, Rusty Hardin, is now representing Roger Clemens. According to Mr. Hardin, he is only representing him in regards to public relations. There are no criminal or civil claims directed at Clemens.

I think the real fight is going to come along Labor lines. The Commissioner, Bud Selig, has said he will discipline current players as necessary. The Players' Association's lawyers should be busy in 2008 defending its members from these actions. Will MLB break the union or will it pass on this fight for the benefit of the game.......and the owners' wallets?

Monday, December 10, 2007

Who does the mortgage broker represent?

Recently, I had a client ask me to bring a complaint against a mortgage broker for failing to secure financing for a home purchase. It seems that in this time of instability in the mortgage world, there might be more similar complaints. I came across this case from the Texas Supreme Court which hits on an interesting point.

There's an interesting new case from the Texas Supreme Court, (Gaines v. Kelly, 235 S.W.3d 179 (Tex. 2007), which addresses express and implied authority of agents to bind their principal. What's it all about and what does it mean?

The basic facts of the case are that Roger Kelly ("Kelly") had a lease on a large chunk of real estate with an option to purchase. He contacted Robert Thompson (mortgage broker) to help him find financing for the purchase. Thompson contacted Russell Gaines ("Gaines") with Southwest Guaranty Mortgage Corp. to try to get the loan. Thompson received the loan application from Gaines and gave it to Kelly's attorneys. Kelly filled out the application and returned it to Thompson who returned it to Gaines.

According to Kelly, Thompson told him the loan was a "done deal." Of course, it wasn't otherwise we wouldn't be discussing a lawsuit at this point. Gaines requested more information about Kelly's interest in the property and that delay caused Kelly to almost lose the deal and have to take on additional partners to finance the deal without Gaines and Southwest Guaranty Mortgage ("Southwest").

So Kelly sued Gaines and Southwest for breach of contract and fraud based on Thompson's statement that the loan was a "done deal." So the question before the court is (1) Did Thompson have either express or implied authority to bind Gaines/Southwest in the loan deal?

The answer from Judge Medina was NO. Thompson may have been an intermediary between the mortgage company and Kelly, but he never took on the authority to bind Gaines or Southwest on the loan.

Kelly's lawyers pointed out that they sent Gaines a letter referring to Thompson as "your agent." The court said that was not enough evidence to put Gaines or Southwest on the hook. Even if Thompson was an agent for Gaines or Southwest, there was no evidence his agency role included binding either of them to a loan commitment.

There are a lot of different types of agents. The only way to know what authority an agent has is to look at the actions (or inactions) of the principal and not the agents.

Many times, a property buyer will contact a mortgage broker to help secure financing. It's important to remember that the broker is usually just an intermediary. The funding and all those decisions come from the lender. And the lender is the one with the authority to make any financing plan a "done deal."

Thursday, December 6, 2007

Dreams to Passions to Plans to Profession

I came across this article from the CoolPeopleCare website. It's an interesting way to view the evolution of dreaming of possibilities and making them realities.

Tuesday, December 4, 2007

Denial of Unemployment Benefits

In Texas, we enjoy the benefits of "at-will" employment. Unless changed by an employment agreement, employees and employers have the right to start or terminate a job with or without cause.

This concept is different from the question of whether an employee is entitled to receive unemployment benefits after termination. That question is answered by the Texas Labor Code.

In essence, a former employee can be disqualified from receiving unemployment benefits for the following reasons:
  • discharge for misconduct connected with the work

  • voluntary quit for personal reasons

  • refusal of suitable work without good cause

  • work stoppage resulting from participation in a labor dispute

  • receipt of wages in lieu of notice, workers' compensation, or retirement pension

A recent case from the appellate court in Texarkana, addressed the first reason. In TEXAS WORKFORCE COMMISSION V. BL II LOGISTICS, L.L.C., No. 06-07-00031-CV, the appellate court held that an employer's mere suspicion of misconduct connected with the work is not enough to disqualify a former employee from receiving unemployment benefits.

Send me an email if you would like a copy of the case in pdf form. Email Houston Lawyer at