Sports Law Scoreboard

Live Strong, But Not Necessarily Forever

Jeffrey S. Kravitz — Mon, 06 May 2013 11:34:00 -0500

As featured in Marketwatch, a mutual fund is now changing its name from Live Strong, given the disgrace that Mr. Armstrong has brought on his brand. While the F. Scott Fitzgerald maxim (soon to be rekindled when the new version of Gatsby hits the screen) that there are no second acts in America has been disproven many times, there are certain trademarked brands that go away forever. When the scourge of AIDS hit in the ‘80s, the diet supplement AYDS just died. Marks are meant to bring about positive associations and not derision.

Will Jason Collins be the New "42"?

Jeffrey S. Kravitz — Tue, 30 Apr 2013 09:37:22 -0500

We have to start somewhere and congrats to Jason Collins for being a man of courage. In Sports Illustrated, the free agent NBA center announced that he was gay. All the pundits will have something to say, but it comes down to guts and his reference to the Boston Marathon was so apt. I am proud to say that my son went to the same high school, albeit a few years later, and that I have been privileged to meet his parents.

I once joked with his folks about another basketball player who had bought a house for his mom, and they told me that the family dynamic was somewhat different in their household. Remember that when the Collins twins picked Stanford over UCLA, they were asked why and one of them said it was because they could. These are very proud people and today their son did them proud. There is law and there is convention and sometimes they both have to move..

Why a Lawsuit Against Lance Armstrong is Not a Good Idea

Jeffrey S. Kravitz — Thu, 25 Apr 2013 12:20:19 -0500

As featured on KPCC's Take Two the Justice Department is poised to sue Lance Armstrong for unjust enrichment, demanding that he return the reported $14 to $16 million that he pocketed as spokesperson for the U.S. Postal Service. The problem is, according to KPCC, the Postal Service realized roughly $140 million as a result of the campaign. Don’t ask me how they came up with that number. The Service is obviously not going to return that money to consumers and is faced with larger problems than this (in eight figures or more). His argument will likely be that he delivered the sizzle, regardless of how he got there. To be continued...

Catching the Right Analogy Before Your Jury: Boston You're My Home

Jeffrey S. Kravitz — Fri, 19 Apr 2013 18:49:39 -0500

The President spoke at an interfaith service yesterday in Boston. Regardless of your politics, at moments like this, our Commanders in Chief tend to get it right. Consider George W. Bush after 9/11 or Bill Clinton after Oklahoma City.

The commentator I watched (who will remain nameless), missed something. He, of course, grasped easy references like the Red Sox and Bruins. But, he missed the meaning from the President's intonation “Boston, you’re my home.” That reference is to a ‘60s song about Boston called “Dirty Water.”

When the Sox were on the verge of winning it all for the first time in generations, someone reunited the band to play at Fenway and the crowd went wild. Maybe too obscure for a national audience.

Practice Takeaway

When presenting to a jury, make sure they "get it” if you choose to use a reference. I used to tell jurors that akin to a particular film, where numerous points of view on the same story were told. Problem now, is that this is film is likely too old to reference for present day jurors, save the occasional cinema wonk. Now, I have to talk about the various iterations of the Harlem Shake or Gagnam Style to get the same point across.

Insurance Risk in Major League Sports

Jeffrey S. Kravitz — Tue, 02 Apr 2013 11:34:39 -0500

As featured in the Economist, major league sports have major league headaches softened by insurance for catastrophic injuries. The New York Times this past weekend, regaled us with how the Yankees decisions are muted by the ongoing Alex Rodriguez contract, which is starting to appear outsized for what is now an aging superstar. A certain proportion of injury risk is laid off on insurers, willing to take a gamble on the health of a major league player.

The soft and squishy part of these stories is likely played out in very private....what is an injury? Did the athlete take a dive? What is career ending? A surprising few of these matters end up in court, with the only one I can remember being the all-flop Brian Bosworth, who was never in the pros that which he was at Oklahoma. Maybe teams should start putting the names of their insurers on the backs of their players to defray the cost, but it is quoted in the Economist as only being four percent, which is a reasonable bet for the owners.

Perhaps Maryland Should Join the Atlantic "Sun" (of FGCU Fame): State Schools, Open Meetings Laws and Confidentiality Agreements

Sekou Campbell — Tue, 02 Apr 2013 11:34:39 -0500

In the ever changing world of NCAA conference realignment, one school, the University of Maryland, forgot about its obligations under the “Sunshine Law.” Maryland’s flagship public university, like all public bodies, must comply with open meetings requirements. So, when Maryland’s Board of Regents met on November 18 and 19 of 2012 to discuss what would eventually become Maryland’s move to the Big Ten conference, it had to at least give notice of the fact that it was going to hold a closed session and perhaps even open portions of the meetings up to the general public. A Maryland administrative opinion roundly rejects the university’s reasons for falling short of the notice provisions in Maryland’s “Sunshine Law.” According to one Washington Post story, Maryland’s Big Ten contract is so confidential, it does not even possess a copy, which may pose more “Sunshine Law” issues.

The Maryland dust up raises an important issue regarding the balance of power between schools, conferences and the NCAA itself. On the one hand, powerful conferences and the NCAA have rules and regulations to protect its interests, on the other hand schools have policy in place to protect its interests. Those policies are not always harmonious. So, what should schools, conferences and the NCAA do? The new NCAA president, recognizing this issue, began to downshift the NCAA’s regulatory authority, or at least its activity. However, balancing power between local and centralized authorities poses age-old policy problems. In this city (Philadelphia), there were a couple of folks who had some ideas on the topic. Perhaps an NCAA Constitution could replace or at least complement its notoriously lengthy rule book starting with the phrase, “We the Student-Athletes of the National Collegiate Athletic Association…”

FIRST SALE, IMPORTATION OR JUST GIVE ME THE DAMNED BOOK

Jeffrey S. Kravitz — Wed, 20 Mar 2013 13:18:29 -0500

In a fresh breaking opinion by the United States Supreme Court, an enterprising USC student, who went back home to Thailand and bought lots and lots of textbooks for a pittance, sold them in the U.S. and made a reported $800,000. The book publisher was not amused and sued the student under the Copyright Act.

The case pits two portions of the Copyright Act (§§ 109 (a) (first sale doctrine) and 602 (a)(1) (importation provision) of Title 17 of the U.S. Code) against each other and the first sale doctrine won. As noted in the Los Angeles Times today, eBay says, "if you bought it, you own it" and the original seller cannot stop you from selling your product here. The question was whether the doctrine applied to items bought overseas and sold in the U.S.? The Court answered "yes" 6 to 3.

Prediction: look for publishers in all industries to seek to amend the Copyright Act, perhaps even employing copyright guru, former Representative, now lobbyist/lawyer Howard Berman.

Wise Words Tell Truths (at least on insurance applications)

Jeffrey S. Kravitz — Thu, 14 Mar 2013 11:12:39 -0500

Suddenly you are lying by the side of the road, dazed, dusty, and injured. You know that you are not dead, but you also know that things are not good: the car is a twisted mess and your head hurts like hell. What is your first thought when you "come to"? No problem, I will turn it over to my insurance carrier. What is your second thought? Gosh, maybe I should have told them about my prior DUI when I filled out the insurance papers.

You do not want this to be you - whether in dealing with auto insurance or with athletes' insurance. All policies that I have seen have an application to fill out. The application asks you for prior lawsuits or criminal history and prior matters that could give rise to a claim. At the end of the policy application, there is always a note that the application becomes part of the insurance policy and that failure to level with the insurer will void coverage. So, what does this mean? Treat it like a meeting with your doctor - tell them everything. Better to get it out in the open, then to worry about coverage being negative when you need it most.

Yes, juries may not be crazy about insurance companies, but judges generally do not have that attitude and if they do, they bury it. However, judges routinely throw out cases where the policy application is false; in many states that falsehood does not even have to be material to get rid of coverage. As my 5th grade teacher used to say, "A word to the wise should be sufficient."

Exceptional Insurance: Safeguarding the Superstar

Jeffrey S. Kravitz — Thu, 07 Mar 2013 11:00:00 -0500

By Jeffrey S. Kravitz, Esquire & Sekou Campbell, Esquire

Sam Kahn, Jr. of ESPN Radio recently reported that Johnny Manziel is exploring the option of "Exceptional Student-Athlete Disability Insurance," provided by the NCAA. The insurance coverage is reported to be routinely sought by players in Manziel's position. Insurance, a frequent theme on this blog, poses interesting questions for college athletics generally, and for the "exceptional athlete" in particular.

Most critically, perhaps, insurance may be a way to reconcile the NCAA's tension between amateurism and big-money media contracts. Generally, insurance is a type of compensation. Employees frequently receive health insurance, life insurance, retirement insurance and other forms of financial protection as part of their compensation. However, the actual payout is generally deferred until a "triggering event."

The Exceptional Student-Athlete Disability Insurance Program, however, limits who can pull the "trigger" and makes the "trigger" itself tiny compared to the potential losses all student athletes face. The policy provides coverage for a limited number of athletes (top round draft picks in baseball, basketball, football, and men's hockey), charges a premium (though there is a mechanism for impecunious players to acquire the necessary coverage), and pays out in a limited number of circumstances ("permanent total disability," requiring what amounts to a career-ending injury).

However, the NCAA's insurance policy is, at worst, a tepid acknowledgment that at least some of its athletes bear a burden by playing NCAA sports. Advocates for compensating athletes may be able to convince the NCAA that the success of its nearly 25-year old insurance program may be due for some broadening for two reasons.

First, this policy does not cover the "late bloomer" exceptional athlete. For instance, the current insurance policy would have likely excluded the likes of Scottie Pippen, Tom Brady, or Randy Johnson. Second, athletes who decide to "go pro in something other than sports," also bear a risk from injury. For instance, a student-athlete may suffer a hand injury foreclosing her from a career as a surgeon. There are obvious costs to expanding exceptional athlete insurance, but those can be captured in premiums, deductibles and other terms, as with any insurance package.

Concussion Conundrum: March 15 Villanova Law School Symposium

Sekou Campbell — Wed, 06 Mar 2013 09:52:12 -0500

Our friends at the Villanova Law School's Jeffrey S. Moorad Sports Law Journal have organized what will surely be a fascinating symposium on the "concussion conundrum." They have four panels of former professional athletes, doctors, lawyers, and journalists all exploring the numerous issues implicated by concussions in professional sports and the litigation involving the NFL. Click here for more details on and to register for the symposium, which offers 2 CLE credits. Stay tuned for our series on the topic as well. The scheduled panels and panelists are:

Panel 1: Framing the Issue

The Symposium will begin with a conversation between Andrew Brandt and former athletes, including some that have taken strong and public positions about concussions in sports. Brandt and the players will discuss concussion awareness, prevention and treatment from their playing days as well as their view of the present environment.

Brian Westbrook, former Philadelphia Eagles player
Keith Primeau, former Philadelphia Flyers player
Jim Nelson, former Green Bay Packers, Minnesota Vikings, Indianapolis Colts, and Baltimore Ravens player
Taylor Twellman, former Major League Soccer player, current ESPN analyst and concussions commentator

Panel 2: Building the Case— A Legal and Medical Background of Concussions

This panel will explore liability issues of amateur and professional sports and bring a medical perspective to diagnosis and treatment of concussions. It will also feature a perspective of a Villanova Law Student who has written about and experienced the effects of concussions in her and her family’s life.

Marc Edelman, Associate Professor of Law, Barry University
Dr. Michael Marino, MD, Attending Physician at Drucker Brain Injury Center
Cailyn Reilly, current student at Villanova University School of Law

Panel 3: Concussion Injury Litigation v. NFL: Looking at Both Sides

This panel will explore the key arguments of the case against the NFL featuring one of the lawyers representing the players, Sol Weiss, a class action defense lawyer and the founder of the definitive Internet site on concussion litigation. It will be a balanced and in-depth look at the major issues of this key case in sports right now.

J. Gordon Cooney, Jr. Partner at Morgan Lewis, expert on the defense of class actions suits
Sol Weiss, Shareholder at Anapol Schwartz
Paul D. Anderson, Practicing attorney

Panel 4: What‘s Next?: Parents, Media, Administrators, and Scholars Look Ahead

This panel will feature media personalities such as Roger Cossack and Ashley Fox of ESPN who, along with Brandt, will look at the state of the sport of football in light of concussions, whether parents should let their kids play, and where the NFL will be in 20 years.

Roger Cossack, Legal Analyst, ESPN / CNN
Ashley Fox, NFL Columnist, ESPN
Peter Keating, Senior Writer, ESPN Magazine
Taylor Twellman, ESPN Soccer Analyst

MARVIN MILLER, A DIFFERENT VIEW

Jeffrey S. Kravitz — Tue, 05 Feb 2013 10:27:31 -0500

By Jeffrey S. Kravitz, Esq.

I would not expect The Economist to fall into line in worship of deceased sports labor leader Marvin Miller. In the interest of equal time, here is the link to another view. (HOW ABOUT A HEADSTONE WITH THE ADAGE "REST IN PEACE" AND THE BEGINNING HAVING THE WORD "DON'T')

DOES GOD CARE ABOUT THE SUPER BOWL? DOES THE TIGER CARE ABOUT PI? DOES ANYONE CARE ABOUT WHAT HAPPENS IN A COURTROOM?

Jeffrey S. Kravitz — Tue, 05 Feb 2013 09:52:12 -0500

By Jeffrey S. Kravitz, Esq.

The son of one of my partners is a rabbi, who wrote a provocative article about God and the Super Bowl. His conclusion is that God cares about all beings and if beings care about the Super Bowl, so does God on a certain level (you may have a different interpretation). For those of you who have seen or read "Life of Pi" the question comes up at the end of the movie/book (reveal here) about whether the tiger gives a rip about the boy who trained him and likely saved his life.

Does anyone care what happens in a court room (short of the litigants)? You would be surprised. After all of my years of practice people still approach me at cocktail parties to question decisions made in the courtroom (the Anthony case, the O.J. case, the Rodney King brutality case). I would argue that lay people have the wan hope that even if the universe is not universally moral, the court room is or should be! It is amazing how much faith people still have in the courts in a somewhat cynical society. More than in the President (whomever holds the position at any given time), more than the Congress (not even close) and more than City Hall. Thus, it is my job as a litigator to take those good angels into the courtroom and convince judge or jury that my case has some transcendent value that approximates justice in an uncertain world.

Catfishing: Online Impersonation Generally Not Illegal...Yet

LexBlog — Thu, 31 Jan 2013 17:14:52 -0500

By Maura L. Burke, Esq.

Earlier this month, news broke that Notre Dame football star Manti Te’o was the victim of an elaborate hoax involving an online relationship with an imaginary girlfriend. Aside from starting the newest Internet trend of “Teoing”, the linebacker’s well-reported fake girlfriend ruse brought to light the prevalence of “catfishing” scams. The term “catfishing” is taken from the 2010 documentary, titled “Catfish”, about an online romance that was predicated on a fictitious identity.

According to attorney and blogger, Bradley Shear, catfishing is generally not against the law. Some states have laws that only criminalize online impersonation of an actual person, but not of fictitious persons. Other states are trying to pass more aggressive legislation banning online impersonation, but they may ultimately raise First Amendment issues.

WHY IT IS BAD WHEN BROTHERS DO BUSINESS TOGETHER AND WHAT TO DO ABOUT IT

Jeffrey S. Kravitz — Tue, 29 Jan 2013 16:48:14 -0500

By Jeffrey S. Kravitz, Esquire

As discussed below, sibling rivalry extends to the far reaches of psychological, personal and, when brothers do business together, professional life. So, what do we do when we face our own Harbaugh situation? As with any conflict, we make sure to get informed consent form all parties involved. But, more importantly, document, document, document. Business, like family, is about relationships; preserving them, moving them forward, and always communicating about them. Family, unlike business for the most part, requires an interminable relationship. Indeed, as discussed in the earlier post, even when your brother is on another continent his familial relationships will follow him.

When dealing with family, no matter whether they are adversaries or comrades, specify the business relationship through contracts, licensing arrangements, settlements, etc. In addition, brothers, sisters, parents, children, spouses, etc. should also have a conversation about when and where the family relationships end. So that all is fair in war and love remains largely out of it.

WHY IT IS BAD WHEN BROTHERS FACE OFF THANK GOD THAT MY BROTHER IS NOT A LAWYER

Jeffrey S. Kravitz — Tue, 29 Jan 2013 16:47:41 -0500

By Jeffrey S. Kravitz, Esquire

Let's start with the obvious...the Harbaugh Bros. (Jim and John of the 49ers and Ravens respectively) are going to say that it makes no difference to them that their brother is their opponent. Over and over again….Right.

Now let's get up close and personal. When I got into law school, my parents were pleased. When my brother got into med school you would have thought that the Red Sea had parted again.

Turnabout is fair play. I am the older. Having the Kravitz name in Long Beach California was a rarity. Thus, when my brother would start class throughout childhood, the teacher would say, "Are you Jeff's brother?" He was both pleased…and not. Capper was when he went to England for his junior year abroad. His visiting professor had him over to dinner in London as she was on sabbatical, as was her husband, a professor at UCLA. Five minutes into dinner, he looked at my brother and questioned, "Are you related to Jeff Kravitz?" My brother called from London at two in the morning my time and without introducing himself proclaimed," You son of a ..... I am thousands of miles away and cannot get from under your shadow!" Let the sibling wars begin.

ARMSTRONG ADVERTISING: FALSE OR FREE?

Jeffrey S. Kravitz — Mon, 28 Jan 2013 15:22:08 -0500

By Jeffrey S. Kravitz, Esquire

Armstrong's troubles continue. His book, titled It's Not About the Bike, was a big seller. Now a class action has been filed by two who say they bought the book based on his claims that he had not doped. I handled a similar case that I won because the allegedly deceptive statement was in the packaged dvd and buyers had already made their purchase decision by the time that they were exposed to it. It is chronicled in a published opinion Rice v Fox and is (blush) oft cited.

HUFF AND PUFF

Another interesting case was the old woman's investment club book, that should have been housed in the fiction section of bookstores. The claim was that they consistently beat the market way up there in Marin, when in fact they had not. Cali court threw the case out on the grounds that the inside leaf of the book was not advertising. The New York courts went the other way on exactly the same facts!!!! Rare to see these cases, which are on the border between free speech and unfair advertising. Stay tuned on this one.

THE CASE THAT WILL NOT DIE: MATTEL V BRATZ

Jeffrey S. Kravitz — Fri, 25 Jan 2013 19:42:36 -0500

By Jeffrey S. Kravitz, Esquire

Well, the 9th Circuit just gave us the latest chapter between Mattel and Bratz over suggestive little girl dolls. Jean Yung of the Los Angeles Daily Journal has written an awesome article, summarizing the holding. Presiding Judge Alex Kozinski wrote what I can only interpret as a broad hint, "While this may not be the last word on the subject, perhaps Mattel and MGA can take a lesson from their target demographic: Play nice."

Reminds me of the long war between Consumer Reports and a certain Japanese auto maker over rollover tests. After the case had kicked around for numerous years, Kozinski suggested that the combatants take the money they had spent on legal fees and devote it to good causes instead. Large companies must realize that they ideally want to prevail in court but in the court of public opinion as well. I am not commenting on the merits of either side's case, but it seems to me that a good arbitrator might be used for the next round. Arbitration, for all of its pitfalls, promises final finality to this long running controversy.

WHY I LOVE THE JURY SYSTEM AND DISLIKE LANCE ARMSTRONG

Jeffrey S. Kravitz — Fri, 18 Jan 2013 16:53:46 -0500

By Jeffrey S. Kravitz, Esquire

I was recently interviewed about Lance Armstrong (previously discussed here) by Steve Olenski. Both he and a certain gentleman at Notre Dame look to be twins this morning. Why do you think people avoid a courtroom. It is because a good trial lawyer cross examining them would take them down in short order.

CAN WORKERS BE FIRED FOR IRRESISTIBLE ATTRACTION

Jeffrey S. Kravitz — Wed, 02 Jan 2013 15:30:34 -0500

By Jeffrey S. Kravitz, Esquire

Several of my partners write on California Employment Law and one of them struck a nerve. As featured in a recent California Employment Law blog post, the Iowa courts have held that an employer may fire a worker for being, for want of a better expression, "irresistibly hot." Where does that leave Tom Brady, Jim Palmer or maybe even Eli Manning? Does every football player have to look like Dick Butkus?

For that matter, I have a now-retired partner who tried a case against a former opera singer of Italian extraction, who was....you know! My partner among other things had lost a leg in childhood and was never going to be compared to Brad Pitt. Out of frustration, he asked the jury in voir dire, "Are you going to hold it against my client because I am short, bald and ugly?" The jury loved him.

TO THOSE WHO WORKED THROUGH THE HOLIDAYS

Jeffrey S. Kravitz — Wed, 02 Jan 2013 15:06:24 -0500

For better and worse, holiday season tends to come in two varieties at law firms. Either things are dead, or it is Katie bar the door. This season we were quite busy, filings, ex partes, closings before the end of the year. As featured in the Washington Post Congress worked through the holiday season, resulting in some sort of bill (with everyone still trying to sort things out). At the end of the article, the reporter notes that reporters as well had their holidays trumped......as did lawyers, athletes playing on Thanksgiving, Christmas and New Years, and tons of service people helping us at the airport, at supermarkets and keeping the peace. No one gets a medal, many get well paid, but it would be nice to say "thanks" to each of these folks sacrificing family time, which knows no price. Happy New Year to all.

-Jeff and Sekou