The Lawsuit that Saved the Spurs
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PRST STD
US POSTAGE
PAID
SAN ANTONIO
TEXAS
PERMIT 1001
the Spurs
that Saved
The Lawsuit
San Antonio
Features
5
I Know I’ll Miss Teaching:
Aloysius A. Leopold
By Sherry Barnash and
James Rodriguez
ON THE COVER:
8The Lawsuit that Saved the Spurs
By Steve Peirce
5
14
Texas Fracking Ban’s Brief
Attempt to Fill the
Environmental Regulation Void
By Rebecca Jo Reser
Departments
4
Thank you, Kim!
By Sara Murray
4
Feedback
21
Poem: Justice
By Judith Wemmert
22
Fourth Court Update:
Color of Justice
Contents
By Justice Rebeca C. Martinez
24
Federal Court Update
By Soledad Valenciano and
Melanie Fry
State Bar of Texas Honors San
26 Antonio Lawyer
By Erin Boren
8 July-August 2015
On the Cover: San Antonio buisnessman B.J. “Red” McCombs and San Antonio attorney Larry Macon. Photo by Alexa Perez.
Photo contributions from: Alexa Perez (p. 1, 3, 8, 12), Justice Rebeca C. Martinez (p. 22, 23), St. Mary’s University School of Law (p. 3, 5, 7)
Archives of the San Antonio Lawyer are available on the San Antonio Bar Association wesite, www.sabar.org.
San Antonio Lawyer is an official publication of the San Antonio Bar Association. Send address changes to the Bar Association address at the top of page 4. Views expressed in San Antonio
Lawyer are those of the authors and do not necessarily reflect the views of the San Antonio Bar Association. Publication of an advertisement does not imply endorsement of any product
or service. Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published. Please send all correspondence to jimmya@sabar.org.
Copyright ©2015 San Antonio Bar Association. All rights reserved.
San Antonio Lawyer 3 July-August 2015
Lawyer
San Antonio
Thank you, Kim!
The San Antonio Bar Association
100 Dolorosa, San Antonio, Texas 78205
210.227.8822 Fax: 210.271.9614 As many of you may know, Kim Palmer recently resigned from
her multiple roles with SABA, including her long-standing positions
Officers/Directors as editor of Subpoena and as managing editor of San Antonio Law-
President Secretary yer. Although, technically speaking, both publications are under the
Thomas g. Keyser Beth Watkins umbrella of the SABA Publications Committee, for many years Kim
President-Elect Treasurer
James M. “Marty” Truss Santos Vargas handled the publication of Subpoena almost single-handedly, en-
Vice President Immediate Past abling the Committee to focus primarily on publishing San Antonio
Bobby Barrera President Lawyer—with a lot of help from Kim, of course.
Rebecca Simmons
Directors The Publications Committee and the Editorial Board of San
Rosa Cabezas-Gil Steve Fogle Antonio Lawyer are extremely grateful to Kim for her many years
Tom Crosley Hon. Laura Parker of excellent, dedicated service. Her creative genius and talent for
Dave Evans Hon. Richard Price
Dawn Finlayson Christine Reinhard designing stellar layouts for the fine articles contributed by our au-
thors catapulted San Antonio Lawyer to the award-winning magazine
Mexican American San Antonio Bar that it has been for the past several years. Kim always completed
Bar Association Foundation
Jaime Vasquez Thomas g. Keyser her Subpoena and SAL tasks on time, kept the rest of us on schedule,
and never once wavered in her commitment to professionalism, pa-
San Antonio Young State Bar of tience, and kindness. Thanks, Kim! We will miss you.
Lawyers Association Texas Directors
Patricia Rouse Vargas Sara E. Dysart
Andrew L. Kerr Sara Murray
Bexar County Women’s Editor in Chief, San Antonio Lawyer
Bar Association Executive Director
Marissa Helm Jimmy Allison Chair, Publications Committee
San Antonio Black
Lawyers Association
Stephanie Boyd
Feedback
Editors
Editor in Chief
Sara Murray
Articles Editor Departments Editor
Natalie Wilson Leslie Sara Hyman
Managing Editor
Erin Boren
Editor in Chief Emeritus
Hon. Barbara Nellermoe
Re: Harry Munsinger’s “Ricardo Cedillo: The Dean of South Texas
Business Litigators,” published in the May-June issue of San
San Antonio Lawyer
Board of Editors
Pat H. Autry, Vice-Chair
Antonio Lawyer
Sara Murray, Chair
Ricardo’s decades of hard work and water walking achievements
Sherry M. Barnash Rob Loree
Barry H. Beer Burke C. Marold
Charles Butts Hugh McWilliams provided you with a banquet of resource material. However, your
Merritt Clements Harry Munsinger
Gayla Corley Curt Moy Ricardo Cedillo: The Dean of South Texas Business Litigators article
Ryan V. Cox Hon. Barbara Nellermoe is more persuasive and a finer work of art than any of his briefs or
Andrea Crouch Steve Peirce
Paul Curl Donald R. Philbin closing arguments. What’s your funeral oration by-the-line charge?
Cristina Tijerina DeLeon
Jane Rankin Dure
Rob Ramsey
Yanira Marie Reyes
Tanya Feinleib James Rodriguez —Mark Miller
Jose Galvan Alexis Adams Scott
Shannon Greenan Ronald D. Smith
Gilbert S. Gonzalez Regina Stone-Harris Great article on Ricardo. Bet that was fun.
Stephen H. Gordon
Per Hardy
Johnny W. Thomas
David Willis
—Don Philbin
Sam Houston Natalie Wilson
Leslie Sara Hyman
Rob Killen
Kevin Yeary
Good morning, Ricardo: Wonderful article about your family by Dr.
Munsinger. It brought back memories of Otila’s political help for
Ex Officio
Thomas g. Keyser Erin Boren Chellie Thompson me in Uvalde, the birth of your son while in trial in the 150th, your
brother at Luby’s on North Main and, of course, “time out.” Indeed,
For advertising inquiries, contact: we are in the fourth quarter of the Game, have had a great run, and
Monarch Media & Consulting, Inc. have won more than we lost.
512.293.9277 —Chief Judge Fred Biery
chellie@monarchmediainc.com
Layout by Erin Boren
Managing Editor, San Antonio Bar Association
San Antonio Lawyer 4 July-August 2015
I Know I’ll Miss Teaching
Professor Aloysius A. Leopold
in, and excelled at, St. tonio River. Upon his return five years
Mary’s Law School. later, the school was occupying the
Immediately Maverick-Clarke building in anticipa-
upon graduating with tion of moving to a new campus. His
the “highest [grade] first Christmas as a professor was spent
average,” Professor moving to the current campus.
Leopold was offered Professor Leopold’s new life as a
a teaching position professor required a few adjustments.
by then-Dean Ernest “I had to learn how to write an exam
Raba. Though tempt- that students, even the brightest, could
ed, Professor Leopold pass,” Leopold says. After reviewing
insisted on gaining the exam he wrote for that first domes-
some practical experi- tic relations class, he says he realized
ence first, telling Dean “[n]obody could pass” it, so he rewrote
Raba, “I can’t just it. His preference is to “go light on the
teach things without essay exam,” noting some students are
having done them.” better at “direct, short-answer ques-
He suggested Dean tions,” and others are better when they
Raba ask him again in can rationally work out the issues. Basi-
five years. cally, “I try to make sure nobody gets
Leopold earned it all!”
that practical experi- Professor Leopold believes multi-
ence as an associate ple-choice and “fill in the blank” ques-
with Kelley, Looney, tions are inappropriate for law school
McLean & Littleton because they cannot be written with-
and then as a part- out ambiguity. “No matter how you
ner, along with Lionel write a true or false question, it can be
Aron Peña, in Peña & qualified. It depends, and you’re not al-
Leopold, practicing lowed to depend” with these types of
property law in Ed- questions. He doesn’t believe a law stu-
inburg. Almost five dent’s grade should be based on such
years to the day later, ambiguity.
By Sherry Barnash and Dean Raba appeared Asked whether students have
James Rodriguez in Professor Leopold’s Edinburg office changed over the years, Professor Leo-
and renewed the offer to teach at St. pold replied, “Generally, no,” finding
P
rofessor Aloysius A. Leop- Mary’s, beginning with the upcoming a mix of bright, ordinary, and not-so-
old retired from St. Mary’s summer semester. As Professor Leop- bright students has always existed.
School of Law in May 2015. old remembers it, his first question was, Professors, however, are a different
After forty-eight years of teach- “‘Fine, what’ll I be teaching in prop- story. “In the days when I started teach-
ing at his alma mater, he says he’s erty?’ and [Dean Raba] said ‘Oh, you ing, the professor could be a tyrant, and
“hanging up the gloves.” The won’t be teaching property in summer; some of them were,” he says. “I tried
South Texas native (born in Nada) you’ll be teaching domestic relations.’” not be.” He believes professors are
celebrated his 80th birthday on When he couldn’t locate a book he more accessible today and more will-
March 16, 2014. liked, Professor Leopold simply wrote ing to help. “The entire time I went to
Professor Leopold earned his one for use in his class. The domestic law school, I went to see a professor one
J.D. in 1962 and eight years later relations case book would be the first time, and I was bawled out for it. They
earned his B.A. in history. Yes, of four Professor Leopold would write just weren’t that accessible.”
you read that correctly. “In those over the years, the others covering Along with the changes in his pro-
days,” as Professor Leopold puts community property and homesteads, fession, Professor Leopold notes the
it, one only needed three years of mortgages and real estate finance, and focus of the law school has changed
undergraduate schooling to at- the international law of stolen art and over the years as well. He has worked
tend law school. After complet- artifacts. for six different St. Mary’s Law School
ing those three years at seminary, When Professor Leopold gradu- Deans: Raba, Castleberry, Aldave, Pi-
and realizing it was not his call- ated, the law school was still located att, Cantu, and now Dean Sheppard. “I
ing, Professor Leopold enrolled downtown on the banks of the San An- would say that it started out as a really
San Antonio Lawyer 5 July-August 2015
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Professor Aloysius A. Leopold speaking at the Distinguished Law Graduate Dinner in 2013
academic endeavor, and somewhere in Mary’s University experienced a drop three daughters, and grandparents
the middle it got to be more of a social in enrollment and income. Enrollment of sixteen. He says he’s “not worried
endeavor. It’s coming back around now at the law school remained constant, about sitting around. I’d be dead
to where it’s almost entirely academic but its income had to help offset the next week if I did that. I have plenty
again, which is what I think it should University’s losses, resulting in stag- to do, but I know that I’ll miss teach-
be.” nant professors’ salaries. With children ing.”
“Everybody in my class passed [the about to go to college, private practice Professor Leopold says, “It’s
bar exam] on the first try. That 100% began to look like the best option until been a good life” and he can’t com-
continued for probably ten years after I “you might say ‘salvation’ came” in the plain. He recommends the profes-
graduated. It really plummeted in those form of two new opportunities. sion to anyone who believes they
middle years, and it really hasn’t come Willard Finkelstein recruited Pro- have a talent for teaching: “You have
all the way back up. That continues to fessor Leopold to teach bar review to have a feel for it.” While admitting
be one of our major problems—getting courses in property, providing him some “with only book learning” are
students prepared to the point where with “a good source of income.” At able to teach, he believes practical
they can pass the bar exam.” about the same time, a West Publish- experience can help a teacher instill a
Despite his love of teaching, Profes- ing representative came by his office better understanding and love of the
looking for someone to up- law in his students. And after nearly
“
date some of their Probate half a century of teaching, he should
Law textbooks. “It was a flat know.
fee—a pretty good fee,” he
I have plenty to recalls, “and so I got into the
writing business.” West has
do, but I know since published twenty-six
that I’ll miss
volumes on Texas law writ-
ten by Professor Leopold.
teaching.
As he begins retirement,
Professor Leopold has mixed
”
feelings about a life without
teaching or writing. He and Sherry Barnash serves as Of Counsel with
Agnes, his wife of fifty-two The Coquat Law Firm, PC, and has experience
years, live out in the coun- in construction, appellate, and probate law.
try where Professor Leopold James A. Rodriguez is a solo practitioner whose
sor Leopold once considered returning tends to sheep, does “a lot of garden- practice focuses on family law and probate
to private practice. When the Univer- ing,” and works in his wood shop. They matters. They both received their J.D. from St.
sity of Texas at San Antonio opened, St. are the parents of seven: four sons and Mary’s University School of Law.
San Antonio Lawyer 7 July-August 2014
B.J. “Red” McCombs
and Larry Macon at
McCombs’ office
purs
eS
th
ed spare, and he be-
v
came an owner and
The S a
the president of one
of the ABA’s inaugural
Lawsuit that
teams, the Oakland Oaks.
Boone went after the bright-
est young star of the day, Rick Bar-
ry. Barry had been the NCAA scoring
Red champion at the University of Miami
t a k e (’64-’65), the NBA Rookie of the Year
over the team. (’65-’66) and the NBA scoring champi-
By Steve Peirce With a lot of wheeling on (’66-’67) for the San Francisco War-
C
and dealing over the next couple of riors. The Oaks enticed Barry with a
orpus Christi, Texas, 1953. B.J. years, the team was able to pay all the big salary, and they also hired Barry’s
“Red” McCombs, then only creditors in full and turn a nice profit college coach and father-in-law, Bruce
twenty-five years old, stood as well. McCombs was hooked on the Hale, as the Oaks’ coach. The Warriors
before a group of angry credi- sports business, and for more than thir- sued, and Barry was enjoined from
tors, accompanied only by his ty years thereafter, he would, off and playing for the ’67-’68 season, but the
friend, attorney Bob Sorrell, who had on, own professional sports teams. next year (’68-’69), Barry won the ABA
gotten him into this deal. The Corpus From White Bucks to scoring title, and the Oaks won the
Christi Clippers minor league baseball Converse Chucks ABA championship.
team was on the verge of bankruptcy. The second-biggest charting artist Yes, Virginia,
The proposed solution was to make a of the late ’50s (behind Elvis) was Pat There is a Santa Claus
young car salesman with virtually no Boone. Boone loved basketball, and he Despite the Oaks’ success on the
means the new owner, with only the owned and played for a celebrity Hol- court, their financial situation was dis-
promise that he would turn the team lywood basketball team. In 1967, the mal. When the bank threatened fore-
around and get the creditors paid. American Basketball Association was closure on a $1.3 million loan to the
“Why should we trust this kid?” one formed. Merger with the National Bas- Oaks, Earl Foreman, a Washington, DC
of the creditors asked. “What choice do ketball Association was the goal from lawyer, stepped in to buy the Oaks.
you have?” responded Sorrell. “Do you the beginning. The idea was that you Foreman moved the team to Washing-
know what the market is for used jock could acquire an ABA franchise for a ton, DC, then to Virginia, where the
straps?” Figuring there was nothing to song, and then have an NBA team af- team would be re-named the Virginia
lose, the creditors agreed to let young ter the merger. Pat Boone had songs to Squires. Barry was to be featured on the
San Antonio Lawyer 8 July-August 2015
cover of Sports Illustrated in a Virginia financial trouble. Although Dr. J aver- team back to Dallas, but Dallas didn’t
Squires uniform, and Foreman was gid- aged 31.9 points per game in the ’72-’73 want it. Dallas waived the $800,000 op-
dy about the free national publicity. But season and became the face of the ABA, tion fee, so the Spurs got the team out-
you can’t judge a magazine by looking Foreman sold him to the Nets at the end right for half-price. With turning back
at its cover. The article was entitled, of that season. But the Squires still had no longer an option, the Spurs had to
“The Reluctant Virginian,” and it con- Gervin to start the ’73-’74 season. They keep filling the seats. McCombs was
tained quotes by Barry unfavorable to had also picked up 6’11”, 240 lb. rookie able to reach an informal understand-
the Commonwealth. Frustrated, Fore- center, Swen Nater, who had been Bill ing with the local press that the Spurs
man traded Barry to the ABA’s New Walton’s back-up at UCLA. would be covered in depth, but nega-
York Nets before the ’70-’71 season. The Here Come the Spurs tive comments kept to a minimum in
Squires had lost their first superstar. Back in Texas, the Dallas Chapar- order to encourage fans to come out to
In April 1970, NBA great Oscar rals had been established in 1967 as an the games. Spurs’ players were sent out
Robertson and other players filed a inaugural ABA team. By the end of the to the community recreation centers to
class action lawsuit in federal court in ’72-’73 season, the Chaps’ good fortune promote the team to the city’s youth.
New York to prohibit a merger between was that they had a star guard from Ste- With the help of the Baseline Bums, a
the ABA and the NBA on antitrust phen F. Austin State named James Silas. live band, two-dollar tickets, and an oc-
grounds (competition between the two Their bad fortune was that nobody casional ten-cent beer night, the Hemis-
leagues was good for player salaries). wanted to see Silas, or any of the other fair Arena became known as the noisi-
For several years, the Oscar Robertson Chaps, play. In the Chaps’ final season, est place in professional basketball.
suit would be an impediment to merg- they beat the first place Carolina Cou- And by the way, when that red, white,
er. gars in Dallas 112-110, but paid atten- and blue ball was tossed for the tipoff,
Charlie Scott was a Rucker Park dance was only 134 folks. They’d had the loudspeakers played Al Dean and
legend, said to have “invented the enough. The Chaps sent their play-by- the All-Stars’ “Cotton-Eyed Joe,” just
crossover.” He was an All-American play announcer and sometimes execu- to remind the opposing teams that they
at University of North Carolina, and tive, Terry Stembridge, to find a buyer were in South Texas. Was there a better
an Olympic gold medalist in 1968. for the team. Stembridge had heard way to spend two dollars and a fistful
Drafted by the Squires, Scott was ABA of Red McCombs, who had been re- of dimes?
Rookie of the Year (’70-’71) and scoring sponsible for several Houston Rockets’ Still, the Spurs knew that they
champ (’71-’72), setting the ABA single games being played in San Antonio the needed to improve the roster if they
season scoring record at 34.6 points year before. Stembridge (not looking were going to make a go of it. Drossos
per game. Near the end of that season, desperate at all) followed McCombs went to work on Earl Foreman. As the
Scott jumped to the NBA, another star to Duke University, where Red was story goes, Drossos was having dinner
slipping through Foreman’s hands. But visiting with his daughter. McCombs and drinks with Foreman at Dionysus,
things weren’t so bad for Foreman and felt that the quickest and best way for a Greek restaurant in New York City.
the Squires. They had acquired an even a city to gain an identity was through Drossos had found out that the Squires
better Rucker Park legend, one Julius pro sports. Plus, the city already had a were in dire need of cash to meet league
“Dr. J” Erving, an underclassman from place to play—the Hemisfair Conven- assessments and might be willing to sell
the University of Massachusetts. Dr. tion Center Arena, which held about Nater to the Spurs for $300,000. When
J averaged 27.3 points per game as a 10,000 people. So Red was in. Foreman returned from a trip to the
Squires rookie in the ’71-’72 season. The deal to acquire the Chaps was bathroom, Drossos handed Foreman a
Somewhere in Michigan, twenty- unique. McCombs and his other inves- $50,000 check as a down payment for
year-old George Gervin was adrift. tors would not buy the team, but would Nater. Foreman’s response was, “No
He had played only briefly at Eastern lease it for two years for $800,000 with deal. I need $300,000 now.” Drossos
Michigan, but was suspended from the an option to buy for another $800,000, asked Foreman if he would do the deal
team in March of 1972 for punching an and any losses over $400,000 were the if he could get him $300,000 in fifteen
opposing player. Then he dropped out responsibility of the former Chaps’ minutes. Foreman agreed. Drossos
of school and went to play for a minor owners. McCombs was named presi- called the bank and had the $300,000 in
league team, the Pontiac Chaparrals, dent of the team, and he and his friend fifteen minutes. Nater became a Spur in
for $500 per month. Former NBA great and fellow investor, Angelo Drossos (as November 1973, and would be named
Johnny Kerr saw Gervin score fifty secretary/treasurer), ran the franchise. ABA Rookie of the Year at season’s end.
points in one of those games and told Thus, the San Antonio Spurs were born, I Did Not Want to Say “the Iceman
the Squires about the skinny kid (6’ 7”, playing their first home game on Octo- Cometh” But the
180 lbs.) with the soft shooting touch. ber 10, 1973, and drawing a respectable Iceman Cometh
Gervin was added to the Squires’ roster 5,879 fans. Terry Stembridge became The next step was to acquire a high
as a rookie in the middle of the season, the Spurs’ play-by-play announcer, al- scorer, and the Spurs set their sights on
on January 26, 1973. Playing alongside ways closing out with the catch phrase the Iceman, who was averaging around
Dr. J, Gervin was nicknamed the “Ice- “there will be another night.” And there 25 points per game for the Squires. Mc-
man” by teammate Fatty Taylor for his always has been. Combs recalled, “He was so skinny that
coolness on the court. After the initial excitement wore you could see right through him, but
The word around the league was off, the Spurs’ attendance numbers we could see his talent and we knew he
that Foreman and the Squires were in dipped. The Spurs offered to give the was the real deal.”
San Antonio Lawyer 9 July-August 2015
Mike Storen, the ABA commis- pulled down 22 boards. By game time, Gervin missed the Squires’ February
sioner, was not happy about the dis- rumors had spread about the Gervin 5 game in Utah. The papers speculat-
mantling of the Squires. Commission- trade. A Virginia reporter said that he ed that Gervin might have grabbed a
ers are most interested in maintaining had seen the Gervin contract, and an- flight to New York with the intention of
the competitive balance in the league, other Virginia reporter said that Fore- jumping to the NBA. Some well-placed
and any more trades might mean that man needed $250,000, and “He got the misinformation, that.
there would not be another night for money, but God knows where he got On Wednesday, February 6, the
the Squires. In an early January 1974 it.” Storen publicly announced that he TRO hearing was held. J. Burleson
league meeting, Storen noticed Mc- would not approve of the deal. Fore- “Burley” Smith and Larry Macon rep-
Combs and Foreman passing notes to man told Gervin that Gervin was not resented the Spurs. Fred Clark of Nich-
each other. Figuring it was some kind going anywhere. Gervin did not report olas & Barrera represented the Squires.
of trade negotiation, Storen informed to San Antonio. Gervin’s agent called George Spencer, Sr. represented the
the two in no uncertain terms that there the Spurs and said that Gervin didn’t Commissioner. Judge Spears granted
was a “freeze” on the Squires’ roster. know if he wanted to play for the Spurs. the TRO, remarking, “I hate to see a
(Well, we’ll just see about that.) The Spurs dispatched a demand letter man handled like can goods” and, “un-
On a late Friday afternoon, on Jan- that Gervin could not play for anyone fortunately, the one most directly con-
uary 11, 1974, a twenty-nine-year-old but the Spurs. cerned, Mr. Gervin, has not even been
Cox & Smith associate named Larry The Full Court Press made a party to this suit, and it must
Macon was planning his weekend with In a minor story, it was reported on be disconcerting to him.” McCombs
his wife, Jane, when the phone rang. It January 31 that the ABA filed an anti- recalled that Judge Spears said that
was Angelo Drossos. There went the trust suit in federal court in San Fran- “there is something unconstitutional
weekend. The conversation went some- cisco against the NBA seeking over about prohibiting a man from making
thing like this: $300 million in actual damages. The a living.” So Gervin got to play for the
Drossos: Draw up a contract suit alleged that, beginning in 1949, the Spurs, at least for the next ten days.
for the Spurs to get Gervin from the NBA conspired to monopolize profes- Storen was quoted in the papers as say-
Squires. sional basketball, that the NBA restrict- ing, “This is just the first skirmish in a
Macon: Okay. For how much? ed acquisition of players by the ABA, many-battled campaign.” McCombs
Drossos: I’m gonna get you a and that the NBA controlled television recalled that Storen told him after the
cashier’s check for $200,000 and a blank coverage. hearing, “No court will uphold this.
check. You negotiate however much it On Friday, February 1, the Spurs You just lost your money.”
is over the $200,000 and pay the bal- filed suit against Foreman and the Meanwhile, Foreman had signed
ance with the blank check. Get on a Squires in federal court in San Anto- an agreement with some Norfolk busi-
plane and meet Foreman tomorrow at nio, and the case was assigned to Judge nessmen to buy the Squires, but that
the Braniff Club at the Dulles Airport. Adrian Spears. The Spurs sued for deal was dependent on Gervin’s stay-
Macon: Okay, but do you want breach of contract and sought a tem- ing with the Squires. The Squires’ buy-
to see the contract . . . porary restraining order to prohibit the ers intended to present the tentative
Drossos: No. Get it as low as Squires from interfering with Gervin’s contract for approval to the ABA board
you can, and don’t come back if the playing for the Spurs. That same day, in of trustees. The papers reported on Feb-
deal falls through. And by the way, we a conference call, Commissioner Storen ruary 6 that Gervin was in San Antonio
might have some trouble on this one. announced formally that the Gervin to negotiate a Spurs’ contract pending
And so, notwithstanding the freeze deal was not approved, and Storen the outcome of the suit.
on the Iceman, young Larry spent the followed with a telegram stating, Actually, the Money
weekend with Earl Foreman negoti- “[T]he Virginia Squires retain title to the Went North
ating the sale. With the aid of a cock- player.” Storen, as Commissioner, then On February 10, San Antonio Ex-
tail napkin addendum, the contract intervened in the suit. The TRO hear- press sportswriter Dan Cook reported
was signed on January 13, 1974, for ing would be scheduled for February 6. that the “225 Thou Went South,” sur-
$225,000, which was delivered to Fore- Judge Spears was quoted in the Febru- mising that Foreman had already spent
man via the cashier’s check and the for- ary 5 San Antonio Light as saying that the Gervin purchase price. On Febru-
merly blank check. (Macon did a great all he knew about the case was what ary 10, Denver played the Spurs under
negotiating job; Foreman had wanted he had “read in the papers.” And there protest, the Denver coach alleging that
$500,000 for Gervin.) There was one would be plenty to read in the papers. the Commissioner told him that the
twist. Virginia was hosting the ABA Gervin on Ice Spurs must forfeit all the games that
All-Star Game, so the trade was to be In the meantime, the Spurs con- Gervin plays in. This sparked debate
kept a secret from everyone (including vinced the Iceman that San Antonio about whether the Commissioner had
Gervin and the Commissioner) until af- would be the best place for him. So violated the TRO.
ter the game, whereupon Gervin would the Spurs arranged to have Gervin se- “So Boo Me” (The Commissioner
report to the Spurs. cretly flown to San Antonio, where he Comes to Town)
The ABA All-Star Game was played was picked up at the airport by Macon. An evidentiary hearing on the pre-
on January 30. Ironically, the star of the Unbeknownst to the Squires and the liminary and permanent injunctions
game was the former Squire-turned- Commissioner, Gervin was hidden in a was scheduled for February 15. Storen
Spur, Nater, who scored 29 points and San Antonio hotel under a false name. arrived in San Antonio for the hear-
San Antonio Lawyer 11 July-August 2015ing, with McCombs picking him up at Squires’ new owners vetoed it.) Foreman’s money problems
the airport. Storen attended the Spurs Strangely enough, Foreman did not weren’t getting any better. On Febru-
game on February 14, and 9,000 Spurs attend the hearing, and the papers re- ary 21, his lawyers, Nicholas & Barrera,
fans booed him in unison. To his credit, ported that even his lawyers did not filed suit against him in state court for
Storen remarked, “I’d rather be booed know of his whereabouts. failure to pay their $5,000 retainer. Then
by 9,000 than 900.” Spurs Coach Tom On February 15, Judge Spears is- the Phoenix Suns sued Foreman for
Nissalke, Drossos, and Storen all testi- sued a preliminary injunction that failure to pay $10,000 owed them for an
fied. McCombs recalls of the hearing, Gervin could stay with the Spurs exhibition game.
“I didn’t think we had a leg to stand temporarily, with the promise that he Although not a party to the suit, the
on. We knew going into the deal that would make a decision on the perma- heretofore quiet young Iceman made it
the Commissioner had not approved, nent injunction request within ten days. known where he wanted to be. In the
but we went ahead anyway because Storen remarked after the preliminary February 28 San Antonio Light, Gervin
we wanted Gervin so bad.” (It was injunction ruling, “It’s a shame that a blasted Foreman, stating that he had
later reported that Drossos agreed to a professional basketball league is being been treated “like a horse for sale.” In
settlement that would have provided run by a judge in San Antonio.” Dros- the same article, Gervin stated, “The
for a return of the money, a return of sos, being magnanimous in his tem- Spurs have good, solid ownership and
Gervin, and the Spurs getting forward porary victory, said that Storen “has they run a ball club like it should be
George Carter from the Squires, but the nothing but the best wishes for the con- run.” But then Gervin gave the Spurs
tinued success of the San Antonio fran- a scare when he unexpectedly missed a
chise” and that he and Storen “are March 5 practice to go to Virginia. As
still friends” and that Storen is it turned out, he just wanted to get his
“the best commissioner in car and terminate the lease on his apart-
pro sports, period.” ment. Whew!
On Monday, March 4, the ABA
board of trustees held a marathon
meeting that went through early Tues-
day morning. The papers reported that
it was rumored that the Gervin deal
was discussed, but no one would own
up to it.
The Home Court Advantage
On March 6, Judge Spears issued
his decision granting the permanent
injunction. To begin with, Judge Spears
noted that the equities were with the
Spurs because the Squires had not ten-
dered back the $225,000 consideration.
The ABA by-laws provided that the
Commissioner “shall hear and finally
decide any dispute” to which a player is
a party, and that “all disputes between
Member Clubs . . . shall be settled by the
Commissioner.” Judge Spears found
that there was no dispute between the
Spurs and the Squires “until the Com-
missioner injected himself into the mat-
ter by persuading Foreman to refuse to
deliver the player to the Spurs.” (The
Squires had alleged that the Spurs had
breached the contract, but Foreman
never showed up to testify about it.)
The by-laws further empowered
the Commissioner to cancel or termi-
nate any contract, after notice and a
hearing. Judge Spears found that only
The Manu Ginobili bobble informal discussions were held, for the
head collectible McCombs most part, on the run, between hotels
keeps on his office desk
and hallways, and that could not be
considered a full and fair hearing. Final-
ly, Judge Spears noted that the by-laws
allowed that the Commissioner could
San Antonio Lawyer 12 July-August 2015reassign a player to another member to litigate the Spirits’ claims for the tele-
club, provided that such a decision was vision revenues. In February 2014, the
approved and ratified by a vote of at Spirits settled the television revenue
least three-fourths of the member clubs, dispute with the NBA and its former
leaving open the possibility that the ABA teams.
Commissioner could still try to undo The Sine Qua Non
the Gervin deal. (This perhaps had al- of the Spurs
ready been attempted in the March 4 Drossos once said “George Gervin
marathon meeting, but in any event, it was to the Spurs as Babe Ruth was to
was not attempted again.) Macon re- the Yankees.” The Iceman won four
called, “There were only ten teams in scoring titles and, along with former
Investigations
the league, and the subject team got to Squires Rick Barry and Julius Erving,
vote, too. Drossos had at least two oth- was inducted into the Basketball Hall of
er teams that would always vote with Fame. Some say that, without Gervin,
him, so it would have been impossible
for Storen to get the three-fourths vote
the Spurs might not have made it into
the NBA. It’s not too hard to envision Since 1989
he needed.” No appeal was taken from an alternate history where Judge Spears
the order. McCombs recalled that, after rules against the Spurs, the Squires keep
the ruling, Storen, figuring he’d been Gervin, new Squires ownership takes All Types of
home-towned, told him, “I’ll never be
in a courthouse against you in San An-
over, the Squires get into the NBA, and
the Spurs are left out, but get a deal
Investigations
tonio again.” like the Spirits got. I don’t know how Including:
There Goes Ten-Cent the Spurs’ investors would feel about
Beer Night that, but as a Spurs’ fan, I’m sure glad it • Background Investigations
The Oscar Robertson suit contin- didn’t happen. • Due Diligence Investigations
ued to plod along. The ABA antitrust • Financial Investigations
suit against the NBA in San Francisco Steve A. Peirce practic-
• Insurance Investigations
was stayed pending the Robertson es business bankruptcy
suit, but it was still out there. The ABA law at Norton Rose • Transportation & Cargo
played its last season (’75-’76), and the Fulbright US LLP. He Investigations
merger with the NBA was finalized in can be reached at steve. • Surveillance
the summer of 1976. The merger set- peirce@nortonroseful-
tlement was approved by the federal bright.com or 210-270-
court in the Robertson suit (because it 7179. He profusely Kelly E. Riddle; TCI, TPLI
was a class action). McCombs recalled thanks Red McCombs Security Consulting
of the merger talks that “the NBA and Larry Macon for talking Spurs history
Including:
hated us, because we had taken their with him for this article.
players and their referees. But the key Larry Brown and Doug Moe were also • Vulnerability Assessments
to the merger was that NBA Commis- Virginia Squires, and both became Spurs • Threat Assessments
sioner Larry O’Brien convinced them coaches. In the first NBA season after the • Construction Consulting
that there was real liability in the San merger, ten of the twenty-four all-stars Countermeasures
Francisco antitrust suit, maybe over $20 were former ABA players. The Spurs hold Regional Offices:
million.” The NBA only took four ABA an NBA record 15 straight 50-win sea- Dallas, TX
teams: the New York Nets, the Indiana sons. As of March 2, 2015, the Spurs had Houston, TX
Pacers, the Denver Nuggets, and, of the highest total winning percentage (.614) Nashville, TN
course, the Spurs. One of the supposed of any franchise in NBA history. Angelo Tucson, AZ
losers was the ABA’s Spirits of St. Lou- Drossos, also without whom we might not Oklahoma City, OK
is, which was denied admission to the have the Spurs, passed away on January Miami, FL
NBA. As a throw-in, the Spirits were 9, 1997. In the movie Semi-Pro, the Will New York, NY
Atlanta, GA
given a percentage interest in television Ferrell character (Jackie Moon) is a sing- Los Angeles, CA
revenues from each of the four former er-turned-ABA-player-coach-owner, and Baton Rouge, LA
ABA teams in perpetuity. Reportedly, Terry Stembridge’s catch-phrase “there will Mexico:
the Spirits have received over $300 mil- be another night” is used in the movie. To Monterrey/Cancun
lion in payments over the years and the author’s knowledge, no ABA player was Guadalajara/Durango
claim to be owed much more, with the ever traded for a washing machine. Aguascalientes
payments never to stop as long as the
(888) 873-1714
NBA exists. This is the subject of the
ESPN documentary “Free Spirits,” and
www.kelmarglobal.com
Email: info@KelmarGlobal.com
it is said to be the greatest deal in the
2553 Jackson Keller, Suite 200
history of sports. In November 2011, San Antonio, TX 78230
the 1970 Robertson suit was re-opened © Copyright 2012 Kelmar and Associates #C05785
San Antonio Lawyer 13 July-August 2015Texas Fracking Ban’s Brief Attempt to
Fill the Environmental Regulation Void
By Rebecca Jo Reser Denton5 was a challenge brought by an mineral estate owners.
oil and gas trade association.6 While the lawsuits worked their way
I. The City of Denton’s Fracking Ban The legal dispute centered on the through the courts, the battleground
On November 4, 2014, voters of scope of jurisdictional authority that expanded to the Texas Legislature
the City of Denton, Texas, approved home-rule cities like Denton possess where the following House Bills were
an ordinance that banned fracking under Texas law to regulate exploration introduced in the latest session:
within the corporate city limits. While and development of mineral interests. • H.B. 539 required a city to pay back
other cities in Texas, i.e., Bartonville, Whether Denton’s ban on fracking the state for five years of lost state
DISH, and Flower Mound, have passed conflicted with state law that expressly revenue resulting from a city’s
ordinances restricting fracking,1 Denton allows fracking was the constitutional regulation of oil and gas activities.
was the first city in Texas to outright issue raised in these suits, since the This proposed new law required
ban the practice. Denton’s ordinance Texas Constitution prohibits home- a municipality to request a “fiscal
made it a misdemeanor, subject to a rule cities from enacting ordinances in note” and an “equalized education
fine of up to $2000 per day, to engage contravention of state law. funding impact statement” from
in fracking within city limits.2 On June The Railroad Commission, Texas’ the Legislative Budget Board for
10, 2015, Denton’s City Council voted oil and gas regulatory agency, although any oil or gas measure.
to repeal the fracking ban ordinance not a party to the lawsuits, has been at • H.B. 540 required cities to submit
because it became unenforceable when the center of these disputes, since it is any ordinance proposed by petition
Governor Greg Abbott signed into law the agency with statutory authority to from its citizens to the state attorney
House Bill 40, prohibiting cities from permit wells for enhanced recovery general before ordering an election.
adopting such bans.3 projects, including fracking.7 On • H.B. 40 expressly preempted the
Denton is one of more than 400 November 7, 2014, the Texas Railroad authority of “a municipality or other
local governments in the United States Commission (“RRC”) announced that, political subdivision” to regulate an
that have enacted restrictions or bans despite Denton’s vote, the RRC would “oil and gas operation” and gave
on fracking. Vermont and New York continue giving permits to companies exclusive jurisdiction to regulate an
have also banned fracking. This article wanting to drill inside the city limits. “oil and gas operation” to the state of
examines the litigation and legislation The issue raised by the preemption Texas, specifically the RRC.10 Under
generated by the Denton fracking ban, argument in both lawsuits was whether the terms of HB40, a municipality
why the lack of effective federal and these RRC-issued permits had to comply or other political subdivision
state legislation governing fracking with Denton’s municipal regulations cannot “enforce an ordinance or
has caused local governments to enact banning fracking.8 other measure, or an amendment or
ordinances restricting or banning This issue had implications beyond revision of an existing ordinance or
fracking, and the efforts to stop these the Denton ordinance since a number other measure, that bans, limits, or
local ordinances. of cities in the Barnett Shale region otherwise regulates an oil and gas
Denton’s ordinance banning had also enacted restrictive ordinances operation within its boundaries or
fracking triggered two lawsuits that the industry claimed amounted to extraterritorial jurisdiction.” This
seeking declaratory judgments that the de facto bans on fracking.9 Recognizing bill did state that municipalities
ordinance was unconstitutional and/ that fracking in heavily populated areas and political subdivisions retain
or preempted by state law. Patterson creates a special set of problems, the authority to “enact, amend, or
v. City of Denton4 was a challenge to RRC announced its intention to look enforce an ordinance or other
the ordinance by the Commissioner of more closely at the issue of drilling in measure that regulates only surface
the Texas General Land Office, which urban areas, including more inspections activity that is incident to an oil
leases state-owned mineral interests to of drilling sites. Another aspect of the and gas operation, is commercially
operators within the City of Denton; dispute involved whether the ordinance reasonable, does not effectively
and Texas Oil & Gas Association v. City of represented a taking of property from prohibit an oil and gas operation,
San Antonio Lawyer 14 July-August 2015and is not otherwise preempted by otherwise regulate the fracking industry. regulation of fracking at the grassroots
state or federal law.”11 When Congress considered whether level. As local concerned citizens
According to a national online poll to regulate more closely the handling contact their elected public officials
released by the University of Texas at of wastes from oil and gas drilling in about alleged contaminated water wells
Austin on April 28, 2015, a majority of the 1980s, it had the Environmental and the like, the public outcry has not
Americans and Texans support allowing Protection Agency research the matter. fallen on deaf ears. The Fracturing
cities to ban hydraulic fracturing, even EPA researchers concluded that some Responsibility and Awareness of
if state law otherwise permits it.12 This of the drillers’ waste was hazardous Chemicals Act, appropriately shortened
UT Energy Poll shows that 58% of the and should be tightly controlled.20 to the FRAC Act, was proposed in both
people surveyed nationally support However, the final report handed to the United States House27 and Senate
in 2009, 2011, and 2013, to no avail. The
giving cities the authority to adopt bans lawmakers in 1987 eliminated these
proposed legislation has never made it
such as the one passed by Denton. Only EPA recommendations concerning oil
out of committee because lobbying by
25% of those polled disagreed that cities and gas waste.21
the drilling industry has stymied most
should be allowed to ban fracking.13 Hydraulic fracturing was attempts to regulate the technology.28
The UT Energy poll surveyed 2,078 subsequently exempted from federal The FRAC Act would impose
people from across the country and environmental law regulation under the federal regulation on hydraulic
has a margin of error of 3 percentage Safe Drinking Water Act (“SDWA”); the fracturing operations in two ways:
points.14 By contrast, the Texas Oil Resource Conservation and Recovery (1) by repealing the SDWA’s current
and Gas Association earlier released a Act; the Emergency Planning and fracking exception; and (2) by requiring
poll claiming that 75% of Texans agree Community Right-To-Know Act; the fracking operators to disclose hydraulic
that the state should be in charge of Clean Water Act; the Clean Air Act; fracturing chemicals. Both the House
regulating the oil and gas industry.15 the Comprehensive Environmental and Senate bills propose removing the
Texas is a constitutional home- Response, Compensation, and Liability fracking exception and modifying the
rule state that has adopted a legislative Act (“Superfund”); and the National SDWA’s definition of “underground
model. House Bill 40 was enacted Environmental Policy Act.22 Many of the injection” to include “the underground
because Texas courts require the state exemptions for the above-listed statutes
injection of fluids or propping agents
legislature to expressly preempt a stem from, or were strengthened by,
pursuant to hydraulic fracturing
subject matter with unmistakable the Energy Policy Act of 2005 (“Act”).23 operations related to oil, gas, or
clarity.16 Texas courts have long upheld These exceptions came to be known
geothermal production activities.”29 If
a municipality’s authority to regulate collectively as the Halliburton Loophole
the bills pass, the EPA would have to
oil and gas development. In Tysco Oil because they are widely perceived to
promulgate “inspection, monitoring,
Co. v. Railroad Commission of Texas, the have come about as a result of the efforts
recordkeeping, and reporting
court established that municipalities of Vice President Dick Cheney’s Energy
requirements for fracking operations.30
in Texas have the authority to regulate Task Force.
Moreover, state Underground Injection
oil and gas development within their Natural gas drilling companies
Control (“UIC”) programs, not
corporate limits.17 The power to regulate have been given major exemptions from
currently requiring operators to seek
at the municipal level is based on the seven of the fifteen sweeping federal
a UIC permit prior to fracking, would
protection of their citizens and property environmental laws that regulate most
have to modify their UIC program and
within the corporation limits, under other heavy industries, and that were
seek EPA approval.31 Consequently, all
the municipalities’ police powers.18 In written to protect air and drinking
oil and gas operators intending to use
Trail Enterprises, Inc. v. City of Houston, water from radioactive and hazardous hydraulic fracturing techniques would
the City of Houston prohibited oil and chemicals.24 When coal mine operators
have to first obtain a UIC permit by
gas drilling within its watershed.19 The want to inject toxic wastewater into the showing that the underground injection
court upheld the ordinance as “a valid ground, they must get permission from of fracking fluids would not endanger
exercise of the city’s police power,” the federal authorities.25 However, when underground sources of drinking water.
finding it was reasonably related to natural gas companies want to inject The proposed bills would also
the legitimate goal of protecting the chemical-laced water and sand into the amend the SDWA to require the
water supply from pollution. In view ground during hydrofracking, they do disclosure of hydraulic fracturing
of this legal precedent, House Bill 40 not have to follow the same rules.26 chemicals.32 Prior to conducting any
was enacted to expressly preempt the
fracking operations and again within
subject matter of fracking regulation Proposed Federal Fracking
thirty days of completing operations, a
with unmistakable clarity. Environmental Legislation Fails: The
company would be required to disclose
FRAC Act
Environmental groups have “a list of chemicals intended for use . .
II. Fracking’s Exemptions from Federal . , including identification of chemical
Environmental Legislation: The been lobbying Congress to repeal the
SDWA’s hydraulic fracturing exception constituents of mixtures . . . , material
Halliburton Loophole
since the Energy Policy Act passed safety data sheets when available,
Regulation of hydraulic fracturing
in 2005. Feature films, TV shows, and the anticipated volume of each
operations can only be achieved at
documentaries, and newspaper articles chemical.”33 The FRAC Act would
the state and municipal level due to require the disclosure to be made to the
several key exemptions in federal regularly dramatize the potential harms
of fracking, spurring the push for federal state (or the Administrator, if the EPA
environmental legislation that would has primary enforcement responsibility
San Antonio Lawyer 15 July-August 2015in the state) and would require the • Oil and gas drilling sites are not state regulatory body takes control of
state to make the disclosure available grouped together for purposes of the information and maintains it for
to the public, “including posting the the Clean Air Act, which requires posterity.
information on an appropriate Internet other industries to count smaller FracFocus is a private website
Website.”34 The bills would further sources of emissions as a single that could be taken down at any
require: unit to reflect overall impact on air time. Additionally, FracFocus records
Whenever the State or the quality; contain no publication date and may
Administrator, or a treating • Oil and gas drillers are exempt be changed or updated by fracking
physician or nurse, determines that from the liability and clean-up cost companies at any time. When changes
a medical emergency exists and the provisions of the Comprehensive are made, the original record is not
proprietary chemical formula of a Environmental Response, preserved, and nothing indicates that
chemical used in hydraulic fracturing Compensation, and Liability Act; additions or deletions have occurred.
operations is necessary for medical and In fact, FracFocus explicitly states that
treatment, the person conducting • Certain oil and gas drilling activities it “assume[s] no responsibility for the
the hydraulic operations shall, upon do not require an environmental timeliness, deletion, misdelivery, or
request, immediately disclose the impact statement under the failure to store any” information.
proprietary chemical formulas or National Environmental Policy A few states give disclosing
the specific chemical identity of a Act. parties an alternative of submitting the
trade secret chemical to the State, information to a state agency. The level
the Administrator, or the treating Chemical Disclosure Laws of detail required to be disclosed and the
physician.35 While thirty states have fracking, timing of these disclosure requirements
The additional disclosures in only twenty-two states have passed varies from state to state. How states
medical emergency situations would chemical disclosure laws and/ protect trade secrets likewise varies.
be required regardless of whether or regulations. No federal law or Even if a disclosure law does not protect
a confidentiality agreement has regulation governs the disclosure information from public disclosure,
been reached.36 However, the FRAC of the chemical ingredients added other state laws, such as an exemption
Act explicitly states that it would to fracturing fluids. Fracturing fluid in an open records law, may keep this
“not authorize the State (or the composition varies with the nature information from disclosure. Disclosure
Administrator) to require the public of the formation, but it typically often depends on how states protect
disclosure of proprietary chemical contains mostly water; a proppant to trade secrets, as these protections may
formulas.”37 keep the fractures open, such as sand; allow submitting parties to withhold
The addition of disclosure and a small percentage of chemical information from disclosure at their
mandates is particularly troubling for additives. Some of these additives discretion or to submit fewer details
some drilling companies, fearful that have been found to be hazardous to about proprietary chemicals, except,
disclosure requirements could force health and the environment.38 The perhaps, in emergencies.
them to reveal valuable trade secret Shale Gas Production Subcommittee A few states require the submission
information. Calls for disclosure of of the Secretary of Energy Advisory of Material Safety Data Sheets (“MSDSs”)
hydraulic fracturing chemicals have Board (“SEAB”) has recommended for certain chemicals.41 MSDSs offer
increased as homeowners and others public disclosure of all of the chemical a relatively low level of disclosure, as
express concern about the potential ingredients added to fracturing fluids, the most specific details that parties
presence of unknown chemicals in on a well-by-well basis, with some currently must include on the data
tainted well water near oil and gas protection for trade secrets.39 sheets under OSHA regulations are the
operations. Chemical disclosure laws at the chemical or common names of certain
Even if Congress passes The FRAC state level vary widely. Fifteen of hazardous ingredients. A few state
Act, fracking would still be free of other the twenty-two state laws require laws require at least some disclosure
critical environmental protections. direct public disclosure of chemical of information about fracturing fluid
Specifically: information by requiring that the chemical composition before fracturing
• Wastes from oil and gas drilling parties post this information on is performed, but these states typically
are exempt from the disclosure the FracFocus chemical disclosure require less detailed information to
and hazardous waste handling website.40 The states with these laws are be provided before fracturing than
requirements of the Resource Alabama, Colorado, Kansas, Louisiana, afterward.
Conservation & Recovery Act; Mississippi, Montana, North Dakota, By contrast, California’s final
• Oil and gas companies are exempt Ohio, Oklahoma, Pennsylvania, regulations regarding hydraulic
from the requirement to report South Dakota, Tennessee, Texas, Utah, fracturing, approved December 30,
releases of toxic substances under and West Virginia. Effectively, these 2014, address the information operators
the Emergency Planning and states have entirely abdicated their must disclose to regulators and the
Community Right-to-Know Act; responsibility to manage hydraulic public and regulate the storage and
• Oil and gas construction facilities fracturing chemical disclosure records handling of well-stimulation fluids
are free of the Clean Water Act’s by requiring or allowing reporting and wastes.42 Surface property owners
requirement to obtain storm water directly to FracFocus without any within 1,500 feet of the wellhead or 500
runoff permits; state policy which ensures that the feet of the subsurface horizontal path of
San Antonio Lawyer 16 July-August 2015You can also read
