A DISCUSSION OF LAW AND JOURNALISM

A Juicy Bet

Mark McGwire Got Juice

By Zachary Edelman

I would bet that all of us have made a bad wager or two in our lives. For some of us it was doubling down that pair of fours on the Blackjack table when we were feeling lucky. For others, it was a casual $1 bet with our sister as to which contestant would be eliminated next on “The Bachelor.” (Note to Sis: thanks for not making me pay up.)

Odds are that most of us have never bet $9.25 million; most of us don’t have that kind of money. And even if we did, we would be smart enough to fold on any bet raised that high. Green Bay Packers quarterback Aaron Rodgers must have skipped a few accounting classes in college as evidenced by his most recent gamble.

Back in February 2012, Mr. Rodgers bet a man he’d never met, Colorado nurse Todd Sutton, that he was ab-so-lute-ly certain that friend and business partner Ryan Braun, outfielder for the Milwaukee Brewers, was playing “clean” – despite allegations and rumor to the contrary. He was so ab-so-lute-ly certain, in fact, that he offered to pay Mr. Sutton his annual salary if he was wrong.

Fast-forward to August 2012, and he admitted to using PEDs after being linked to a Miami clinic that supplied steroids to many other professional athletes. He was subsequently suspended for the rest of the season (65 games).

The story has been reported by many media outlets, but none of them looked into the chances of Mr. Sutton’s chances of calling his marker on that bet. We’ll tell you what would happen if Mr. Sutton decides to roll the dice in civil court.

Some background for those of you not addicted to CNN:

In November 2011 Mr. Braun was crowned MLB’s MVP.  And then, before the year was out, it was reported that he’d failed a drug test. Mr. Braun vehemently denied using PEDs, and, in February 2012, came news that surprised everyone except Alex Rodriguez, Barry Bonds, and every other former Major League Baseball player who has ever used steroids and gotten away with it.

Mr. Braun was exonerated.

The outrage quickly spread to Twitter where Denver resident and cycling enthusiast Todd Sutton tweeted at Mr. Rodgers, “you really believe he didn’t use PEDs???? #delusional.” If there is one thing a cycling fan knows about, it’s PEDs (See Lance Armstrong). Mr. Rodgers quickly responded to the fan’s tweet writing, “ya I’d put my salary next year on it. #ponyup, #exonerated.”

So, back to our inquiry.  If Mr. Sutton chooses to sue for the millions, would he win?

Since most forms of gambling (excluding lotteries) are illegal in the majority of the United States, a court would likely look to contract law in order to determine whether Mr. Sutton and Mr. Rodgers had a legally binding contract. In order for an agreement to be binding there must be: (1) Offer and Acceptance; (2) Intent; and (3) Consideration.

An offer is “an expression of willingness” to enter into a contract “made with the intention that it shall become binding as soon as it is accepted”. Mr. Rodgers’ tweet could be interpreted as an offer. In essence he said, “I will give you my annual salary if Ryan Braun used steroids”.  Valid acceptance would require Mr. Sutton only to respond to Mr. Rodgers with an affirmation of assent to his offer with a simple, “We have a deal. ”Even an “OK” might suffice. Unfortunately for Mr. Sutton, it does not appear that he ever responded to Mr. Rodgers’ offer.

In order to determine intent, a court will look to whether the parties wished to enter a binding agreement. This is unlikely to bode well for Mr. Sutton, as it is doubtful that a court will conclude that Mr. Rodgers (or anyone for that matter) would be foolhardy enough to bet millions of dollars on a friend’s innocence. Mr. Sutton’s failure to accept Mr. Rodgers’ offer also reveals a lack of intent for the bet to be viewed as a binding contract.

Consideration is legalese, and simply means something of value that each party to an agreement agrees to give up in exchange for something else. Consideration from Mr. Rodgers?  Over $9 million.

And the consideration from Mr. Sutton? There was none.

Taking all of the elements of a contact into account, it is clear that Mr. Rogers and Mr. Sutton did not form a legally binding contract. Instead, the Twitter banter was no more than a social bet, similar to that one I made with my sister, and a wager of that type has no standing in the United States court system.

Since the now infamous tweet, Mr. Rodgers has signed a contract extension with the Green Bay Packers, which will put his salary for next year at measly $4.5 million (if you are worried about his wellbeing, fear not. Mr. Braun received a $35 million signing bonus).

Mr. Sutton told USA TODAY that he would settle for one of Mr. Rodgers’ game checks ($281,250 under Rodgers’ new deal). He shouldn’t hold his breath. It would take a Hail Mary for him to ever see a quarter from the quarterback; Mr. Rodgers has a history of failing to #ponyup.

Comments

3 Comments »

3 Responses

  1. GW student says:

    This is a great site! I hope to go into Sports Law but am just a 1L.

  2. Lola says:

    I actually agree with Ben Johnson — if everyone is doing it, why shouldn’t he? And everyone IS doing it. So why punish the guy who gets caught? Who’s it hurting, anyway? People wear contacts (improves their eyesight) and we have no problem with that. I think the brouhaha over the whole PED thing is hypocritical BS.

  3. Cathy Reynolds says:

    I think Sutton should sue pro se. He’d at least shame Rodgers into coughing up something. And if Braun were a real friend, he’d cover Rodgers’ bet.

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