Sports Law Scoreboard

Mondo Condo

Jeffrey S. Kravitz — Mon, 23 Aug 2010 23:47:37 -0500

As featured in the July 26-August 1, 2010 Sports Business Journal, Texas Tech is eliminating its PSLs (Personal Seat Licenses) for basketball games and replacing it with tiered benefits due to lack of interest. The St. Louis Rams among others have used condo-like features to sell rights to seats in the past. This perhaps highlights the differences between a license (a limited often non-exclusive right to use something, from a condominium (rights in a discrete piece of property) and a coop (membership in an organization that owns real property). Will leave it to our tax lawyers and readers as to whether any owners of sports rights have tried to deduct or depreciate these assets. Contributions welcomed.

Say it Ain't So Roger

Jeffrey S. Kravitz — Thu, 19 Aug 2010 18:19:38 -0500

Roger Clemens, one of baseball's all-time great pitchers, has been indicted for perjury, obstruction of Congress and making false statements. Given the testimony and non testimony of other baseball players, this is somewhat breathtaking. What did he say or do that others did not? While selective enforcement is rarely a defense, this does give one some pause. Does the steroid era really need to go on and on? If a Chicago jury can barely convict Blogo of anything, how do the feds think they are going to convict a national hero. While we firmly believe in the rule of law, one has to pause and consider that Clemens has now been indicted and Congress passed on numerous officials who were less than candid in describing U.S. enforcement practices against captured insurgents. Perhaps it is time for those who either did or did not put their bodies at risk to quietly fade into sports history.

Pennsylvania Case Emphasizes Importance of "Participants" and "Circumstances" in Determining Liability for In-Game Injuries

Jeffrey S. Kravitz — Wed, 18 Aug 2010 12:03:43 -0500

Peter C. Buckley authored this article.

A recent decision from the Pennsylvania Superior Court shows that not every injury that occurs during a sporting event is so inherent in the game or so “common, frequent and expected” that the one causing the injury can escape liability. The case of Zeidman v. Fisher, 980 A.2d 637 (Pa. Super. 2009), suggests that the assumption of the risk and “no duty” rules cannot be blindly applied and that the circumstances of each injury must be examined to determine whether to impose liability. According to the court, liability for in-game injuries requires a detailed examination of the game situation and an in-depth study of the participants focusing on their physical attributes, skill level, recent performance amateur status, and knowledge of etiquette and rules of the game, among other factors.

View entire article.

LeBron James' Father Far From One

Jeffrey S. Kravitz — Tue, 27 Jul 2010 23:06:41 -0500

On July 8, 2010, Bill Mears of CNN.com reported that a lawyer sues LeBron James claiming to be his father.

Lebron James may be disliked by most sports fans, except in Miami, for his recent ESPN 30-minute announcement to leave Cleveland for Miami, but this man suing him claiming he is the father of Lebron should be despised. He knows he had sex with a woman, who then had a baby boy. He then cowardly waits on the sideline for the entirety of this child’s minority making no move to have a paternity test and prove he is the father. Isn’t that what most concerned father’s would do who think a child is theirs? Not this man; there is no way this man wants to risk raising a child or paying child support to the mother. He is scared to go through normal legal channels to prove paternity because then he'd really have to step up and be a father to this child.

Only when this baby boy becomes an adult, is famous and is rich does this attorney decide that he needs to connect with the man he believes is his son. So what tactic does he take? Does he apologize for bailing on him? Does he hug him? Does he show him old pictures? Does he take a trip down memory lane with him? No, he sues Lebron for money. Even having the knowledge that he has blood test which shows that he is not the father of Lebron James, does not stop this attorney. He continues on in his pursuit of fame and the big pay day by claiming the test is a sham. One would hope that the justice system will work and toss the attorney to the street. If that does not happen, I’d like to be a fly on the wall at the next James family reunion. Oh happy days.

Pat Haden: Sports Lawyer and Athletic Director

Jeffrey S. Kravitz — Sun, 25 Jul 2010 14:25:37 -0500

On July 21, 2010, USC announced appointment of former professional quarterback Pat Haden as their new athletic director. Hayden is a lawyer by profession, having gone to Loyola Law, my alma mater.

My favorite story involves a friend (not a sports fan) meeting Haden on a line (before there was online) to buy books. Hayden, who is not a large guy, asked my buddy what he did in his spare time and my friend replied that he played handball. Pat's response was that he played a little football. My friend responded that "I always considered those guys to be jock brains" completely unaware that Haden was a phi beta kappa and former Rhodes Scholar. Enchanted with someone who did not love him for his place on the field, the two became fast friends.

By the way, perfect choice for a school under heavy fire. Pick a guy who knows the law and has been trained to follow it.

Trading Punches in Sports Usually Does Not End Up in Court

Jeffrey S. Kravitz — Tue, 20 Jul 2010 19:28:41 -0500

As featured in VeloNews.com on July 9^th, 2010, two contestants traded punches at the finish line, one asked for an apology, the unwritten law in sports is that this sort of thing, while not condoned, is allowed (well, maybe in hockey).

I am not aware of anyone filing charges or a civil suit except for the Rudy Thomjanovich case with the Lakers a generation ago. Rudy T was a perpetual all-star and never was the same after an eye injury. Case settled for what was then big bucks. Would be interested to know if any readers are aware of other civil suits involving sports contestants in combat with each other.

World Cup: Nike vs. Adidas, Did "Ambush Marketing" Win?

Jeffrey S. Kravitz — Tue, 13 Jul 2010 12:56:10 -0500

Post contributed by Jaysen Chung, Summer Associate

Who won in the marketing contest between Nike and Adidas in this World Cup? Sometimes spending millions of dollars to be an official sponsor of an event like the World Cup just doesn’t pay off. This seemed to be the case for Adidas, an official sponsor of the World Cup, as it appeared to be beat out by unofficial brand Nike in “connecting with soccer fans and consumers,” the Sydney Morning Herald reports. The unfortunate situation for Adidas may be best highlighted by two main advertisements released by Nike and Adidas. Many fans have stated that Nike’s “Write the Future” ad is simply more appealing than Adidas’ “The Quest” ad, and thus it is not a surprise Nike won with soccer fans and consumers. Nike is engaging in “ambush marketing,” which occurs when companies that are not official (i.e., paid) sponsors of an event nevertheless engage in marketing campaigns that create the impression that they are associated with the event. This is not necessarily a new phenomenon, and occurred during the Winter Olympics this year, as discussed in Fox Rothschild’s fashion law blog.

Is it a smart decision to save on paying to be an official sponsor of an event and instead invest that money on effective “ambush marketing”? In the United States, there is not currently a law specifically addressing ambush marketing, so parties complaining of “ambush marketing” must rely on broader intellectual property claims. Is the United States in need of such a law, similar to how South Africa amended its Merchandise Marks Act in 2002 in an attempt to “protect events” from ambush marketing? Or would this be going against various principles we value, including intellectual property law’s principles of encouraging innovation and creativity?

While Nike may have won the marketing contest against Adidas, perhaps Adidas came out on top in the end: the ultimate champion of the World Cup, Spain, wore Adidas.

Home Run Victory for Barry Bonds?

Jeffrey S. Kravitz — Tue, 15 Jun 2010 13:07:35 -0500

Post contributed by Jaysen Chung, Summer Associate

The latest news for Barry Bonds’ perjury charges (for swearing under oath in 2003 that he did not take performance enhancing drugs, in light of 2001 BALCO tests showing otherwise) is looking good for him. Last Friday, the 9th Circuit affirmed the district court’s decision to exclude hearsay evidence that would have otherwise been terrible for Bonds’ case. This evidence includes statements made by Bonds’ trainer, Greg Anderson, who allegedly confirmed that the urine sample was that of Barry Bonds when he gave the sample to a BALCO employee for testing in 2001.
On appeal, the government prosecutors made two arguments: 1) that, under Federal Rule of Evidence 807, Anderson’s statements fall under an exception because it provides “circumstantial guarantees of trustworthiness; and 2) that pursuant to Federal Rule of Evidence 801(d)(2)(D), Anderson’s statements are not hearsay because he was an agent or servant of Bonds who made those statements during and within the scope of his employment or agency. The 9th Circuit rejected the first argument, holding that Anderson’s statements were not trustworthy, largely in part because the BALCO employee admitted that he had “once mislabeled a sample when Anderson told him to do so.” The 9th Circuit also rejected the second argument, holding that Anderson was not Bonds’ employee and that Bonds had a “Dude, whatever” attitude to Anderson’s actions.
So, is this a home run victory for Bonds? Not necessarily so. As Lester Munson wrote on ESPN.com, the prosecutors do have the option of trying to bring an appeal to the Supreme Court (although this is a longshot). It will be interesting to see what their next step will be. In the meantime, Bonds can’t be too upset with how this case is progressing (or not) so far.

The World Cup: Knock-Off Soccer Jerseys

Jeffrey S. Kravitz — Mon, 14 Jun 2010 15:40:22 -0500

Post Contributed by Jaysen Chung, Summer Associate

With the World Cup in full swing, vendors selling knock-off national team soccer jerseys are sure to be out in full force in the host nation of South Africa (and of course, other soccer-devoted nations). In the past months, South African authorities have been trying to crack down on these sales. The Dawn Media Group reports that according to the Counterfeit Goods Act in South Africa, conviction for possession of fake goods can result in a three-year jail term or a 5,000 rand (approximately 650 US dollars) fine per item found in possession. Reportedly, the official brands of these soccer jerseys (Adidas, Nike, etc.) will lose thousands of dollars in sales.

On Fox Rothschild’s Fashion Law Blog, Staci Riordan has discussed the debate over whether knock-offs can hurt or help fashion designers. Although these official brands will unfortunately lose thousands of dollars from these knock-offs, perhaps they can grab some benefit as well. With more people wearing these "fake" jerseys (that look like the real thing) sold all over South Africa, this could be yet another advertising tool for the official brands to sell their own jerseys. For instance, if people in the US want to buy a Bafana Bafana (the nickname of the South African national team) jersey, they will likely have to go to the store to purchase one made by the official brands.

While it may be inevitable that knock-offs will continue to be sold throughout the remainder of the World Cup, perhaps the official brands can turn lemons into lemonade…even though that lemonade will still be pretty bitter.

NFL Players Feel Left Out of Deals with TV Networks

Jeffrey S. Kravitz — Fri, 11 Jun 2010 18:40:46 -0500

In "NFLPA Files Complaint Against NFL Over Television Deals", SI.com deals with the issue of the NFL players vs owners in the event of a lockout or strike. Seems the owners have more protection than the players and players are crying foul. A longtime agreement requires the owners to try to maximize revenue to the players and the players feel that the covenant of good faith and fair dealing has been broken. Every contract has an implied covenant of good faith and fair dealing in California, which is basically the Golden Rule. Much commentary from the players on this one and none from the owners. Will be interesting to see their reply and we will be following.

Defamation Lawsuits and Steroid Use

Jeffrey S. Kravitz — Thu, 10 Jun 2010 11:36:05 -0500

Post contributed by Jaysen Chung, Summer Associate

Manny Pacquiao has finally agreed to undergo a drug testing schedule, SI.com reports, after he and Floyd Mayweather reached an impasse earlier this year in their negotiations for a much-anticipated fight. Negotiations in January resulted in a stalemate, largely because of a defamation lawsuit Pacquiao filed against Mayweather after Mayweather made statements implying Pacquiao engaged in steroid and performance-enhancing drug use. As of a few weeks ago, the lawsuit was still pending, and this will be an interesting factor in any further negotiations for a Pacquiao-Mayweather bout.

I’m glad Pacquiao has finally agreed to this drug testing schedule, but these defamation lawsuits regarding implications of performance-enhancing drug use seem all too familiar. Remember when Roger Clemens sued ex-trainer Brian McNamee for claiming to have injected Clemens with performance-enhancing drugs? Or, what about when Barry Bonds threatened to file a defamation lawsuit against Curt Schilling for commenting on Bonds’ alleged steroid use and Bonds’ former mistress’ potentially damaging testimony about his use? In a way, it seemed as though filing (or threatening to file) these defamation suits were being used as attempts to deny such allegations. However, we all know how those two cases turned out.

If Pacquiao does actually undergo a drug testing schedule, hopefully his results will be more positive (excuse the pun). Perhaps, instead of filing defamation lawsuits in response to steroid use allegations, athletes should take a hint from the late Coach John Wooden, who said, "Be more concerned with your character than your reputation, because your character is what you really are, while your reputation is merely what others think you are."

NCAA Violation Frenzy

Jeffrey S. Kravitz — Wed, 09 Jun 2010 12:34:10 -0500

Post contributed by Jaysen Chung, Summer Associate

Today, as reported by ESPN, the University of Southern California is scheduled to respond to the NCAA committee’s investigation findings of NCAA violations by the USC football and basketball programs (namely, Reggie Bush and O.J. Mayo). In light of this news, it is interesting to note the slew of other athletic programs that have recently been alleged to have committed their own NCAA violations. Included are University of Oklahoma basketball, UConn basketball, University of Michigan football, and University of Kentucky football. Violations range from players receiving money to help get a high school transcript cleared so that he could play for the team to impermissible phone calls and texts from coaching staff to recruits.

It seems as though we are always hearing about some college athletic program violating NCAA rules. Is it because the rules are too lenient? Perhaps, the NCAA is in need of stricter rules that will serve as a better deterrent to coaches and athletic department staff and will push programs to monitor their staff more closely. Alternatively, could the courts step in? In Shelton v. NCAA, 539 F.2d 1197 (9th Cir. 1976), the Ninth Circuit held that it is not judicial business to tell a voluntary athletic association such as the NCAA how best to formulate or enforce its rules. The courts’ function is only to determine whether the NCAA has selected a method of protecting amateurism which is reasonably related to that goal. So, for now, it looks like it’s all up to the NCAA. Who knows? Maybe the NCAA enjoys dealing with this headache.

Fountain of Youth or Falsification of Identity?

Jeffrey S. Kravitz — Tue, 08 Jun 2010 12:36:53 -0500

Post contributed by Jaysen Chung, Summer Associate

As reported by ABC News, Odessa, Texas, a sports-obsessed city and the inspiration for the movie Friday Night Lights, is now the setting for a falsification of identity case involving a 22-year-old man posing as a 16-year-old sophomore basketball star. Guerdwich Montimere, a naturalized citizen from Haiti who graduated from high school in Florida and had briefly played basketball at a community college, enrolled at Permian High School last year and has since led the basketball team to much success. The school’s basketball coach, thinking that Montimere was homeless, had even allowed Montimere to stay at his home for some time. However, the coach and school officials claim they had no idea that Montimere, who stands at 6’5", was actually the age of a typical college senior.

Of course, mere height does not necessarily coincide with age, but can we really believe no one had any clue Montimere was actually older than he claimed to be? While it may be true that the coach and school officials did not actively engage in this falsification of Montimere’s identity, they may have turned a blind eye to any doubts regarding his age once they witnessed his athletic prowess. If that was the case, could they be liable as accomplices in this fraud or for mere negligence? Perhaps, they should just receive a slap on the wrist with a suspension or probation. Ultimately, however, I don’t buy their apparent ignorance of Montimere’s age. I have seen Montimere’s picture, and he certainly did not drink from the fountain of youth. He must be the oldest-looking 16-year-old I’ve ever seen.

Girl's Disqualification in Pole Vaulting for Wearing Bracelet Is Uncalled For

Jeffrey S. Kravitz — Fri, 21 May 2010 19:54:12 -0500

As featured in sportsillustrated.com’s “Where’s the sportsmanship? Girl Disqualified for wearing bracelet,” a coach waited until the opposition cleared her pole vault and then had her disqualified for wearing a friendship ring. Perhaps the most famous legal quote is from Dickens...."The law is a ass, a idiot"(sic) . We do not cultivate respect for law with such rules.

Dwyane Wade's Ex-Wife Lawsuit Against Actress for Distress

Jeffrey S. Kravitz — Fri, 21 May 2010 19:19:47 -0500

Scott Weston contributed to this post.

On May 5, 2010, sportsillustrated.com reported that Dwyane Wade’s estranged wife file an emotional distress suit against actress Gabrielle Union. Wade and his wife are in the middle of a heated divorce.

Some belief that the lawsuit is nothing short of pure harassment and leverage. She tried the same claims within the divorce and failed. She will have a difficult time proving up her case, especially since the divorce alone and major custody battle would be the primary cause of any child’s stress at their age. The wife has already failed to follow court’s orders in the divorce and is facing a difficult custody battle.

Can you imagine losing custody to an athlete whose time commitment and demands are so great? You would have to be a complete disaster to face such a risk. She may be concerned the Court may put the kids with Dwayne and has sour grapes against this gal because she actually may have a good relationship with her kids. Maybe she hopes to cause a rift between Wade and his girlfriend by dragging her into litigation and hoping she says to Wade she can’t stand it. The lawsuit may be short lived.

Building Athletic Brand Name and Fan Base

Jeffrey S. Kravitz — Wed, 12 May 2010 17:46:59 -0500

In sportsnetworker.com’s article, “How Athletes Can Build Their Personal Brand,” the author provided both text and video as to athletic brand building. To our mind, no one can touch the Jersey TV lad who trademarked his abs. Nice to know that in a land with almost 10% unemployment, the big issues are being tackled.

Of more interest to us are "Los Suns" the jerseys modeled the other night by the Phoenix Suns to highlight Cinco De Mayo and to (perhaps) offer a subtle comment on Arizona's new immigration law. Interesting to see if the Phoenix team aggressively markets these both here and in Mexico.

Man-Child No More

Jeffrey S. Kravitz — Wed, 12 May 2010 17:27:58 -0500

In rivals.com’s article, “Kentucky flopped in the classroom in Calipari’s first season,” two items caught our eye. First, John Calipari's Kentucky basketball team got barely passing grades in the classroom. School is not for everyone, and it appears time for the NBA and NCAA to huddle on the "one and done" rule, particularly when the best and basketball brightest can go to Europe for a year to circumvent. Has anyone talked with any of the one year guys to see if they found that year of college to be worthwhile outside the arena?

Second, and more positively, UCLA Center for African American Studies just honored Harry Edwards. Mr. Edwards served for years as professor of Sociology at UC Berkeley. He organized the '68 protest by Black athletes that dramatized the barriers confronting Blacks in sports and society. Mr. Edwards went on to serve as consultant on diversity for the three major sports, including a stint with the Golden State Warriors and the development of the Minority Coaches Internship and Outreach Program with the Forty Niners. Why not reach out again to a pioneer and see if he can work through some of these issues? Society and the athletes deserve it.

Some Anxious Athletic Mouths May Remain Shut Over Arizona's Immigration Law

Jeffrey S. Kravitz — Mon, 03 May 2010 00:22:35 -0500

As featured in myFOXphoenix.com on April 29, 2010, Chicago area baseball fans are planning a protest against the Arizona immigration act when the Diamondbacks come to town.

Feelings run high on both sides of these issues, but what is interesting for purposes of this blog is that over a third of baseball players are Latin American, who are typically associated with immigration issues. So far (at least as far as we have seen) none have stepped forward to offer an opinion on the act.

Throughout the years athletes have run the gamut from Jackie Robinson and Mohammed Ali speaking out on social issues to Michael Jordan and Tiger Woods (nada that we have heard). It will be interesting to see if Latino athletes are called out to express their opinions.

However, this may be less likely in an age where athletes are concerned about multi-million dollar sponsorship deals and image control. It may very well be that some prominent Latino athletes may have strong views about Arizona’s immigration law, but prefer to remain quiet in a controversial issue. Perhaps strong financial interests supersede 1^st Amendment rights for some athletes.

When a Promise Is Not a Promise in College Athletics

Jeffrey S. Kravitz — Mon, 03 May 2010 00:04:27 -0500

The law of contracts is designed to bind two or more parties to an agreement. You do "x" and I will do "y," and if you do not, I will go running to court to enforce the promise or collect damages. Letters of intent are designed to bind athletes to schools. And while no one goes to court to enforce them (at least as far as we know) it does get tricky for athletes to transfer after they start at a school and play for a team.

Enter Brandon Knight, who has signed an aid agreement, but not a letter of intent at University of Kentucky, as reported by Michael Rosenberg on ESPN.com’s article UK recruit Knight a game-changer even before he enters school. Is it a contract? Well, it is a promise by the school to give Mr. Knight a college education and at least from the outside looks to be a four-year commitment as opposed to traditional athletic situations where the school can drop you after a year. As pointed out by the author, this one, on which the athlete pleads ignorance, may have as much to do with the jumpiness of Kentucky's coach as anything else.

Still, we may be looking at a different paradigm in the world of athletic college contracts. Was it only two years ago that athletes decided to defeat the pros ban on signing youngsters by starting their careers in Europe? Let's see if this is a one off or the start of something new.

Do You Pull the Trigger First in a Sports Trademark Claim?

Jeffrey S. Kravitz — Wed, 28 Apr 2010 20:17:40 -0500

Assume that you have a mark in a sports' logo. You hop on line to see what traffic is out there regarding your mark and find that someone 1,000 miles away is using your mark in commerce and making money at it. Trying to be the gentleman (or gentlewoman), you nicely pick up the phone, place a call and try to resolve the matter over the phone. You tell the infringer that you want to resolve the situation, might be amenable to license and hope to keep those pesky lawyers out of the situation. You get a couple of grunts of assent and a promise to call you back. Rather than the callback, you get a summons and complaint in the mail, demanding that you respond in Kansas or Alabama rather than in your home forum. You call your legal beagle who advises that you may very well be stuck there.

That is the opinion of the U.S. Supreme Court in the MedImmune Inc. v. Genentech Inc., 549 U.S. 118 (2007) case and we think it bad law. The other side has filed a declaratory action against you alleging a lively controversy between your two companies. The Supremes ruled that this is likely sufficient to allow the other side to proceed in their forum.

Why is it bad law? It encourages lawsuits (you should have pulled the trigger first) rather than working things out. We are loathe to tell people to write their member of Congress when the country is still recovering from recesses ion, but somewhere down the line, this one needs to be addressed. For the time being, you need to give thought to filing first, calling second. Not the best of public policies.