California will allow college athletes to profit from endorsements under bill signed by Newsom (via Los Angeles Times)

Gov. Gavin Newsom has signed a bill that will allow California athletes to earn money from the use of their names, images and likenesses, despite warnings from the National Collegiate Athletic Assn. that the measure would upend amateur sports.

Senate Bill 206 by Sen. Nancy Skinner (D-Berkeley) garnered national attention, with athletes including NBA stars LeBron James and Draymond Green lauding the California effort to give college athletes a share of the windfall they help create for their universities and NCAA. The bill passed the state Legislature unanimously.

Newsom signed the bill on an episode of UNINTERRUPTED’S talk show The Shop with James, WNBA’s Diana Taurasi and former UCLA basketball player Ed O’Bannon, saying the new law addresses a “major problem for the NCAA.” . . .

The bill would prohibit the NCAA from barring a university from competition if its athletes are compensated for the use of their name, image or likeness beginning in 2023. NCAA rules strictly prohibit athletes from profiting in any way from their sports.

While the bill would allow athletes to sign endorsement deals with major companies, it would also open up smaller opportunities that were previously prohibited, such as paid youth coaching positions. SB 206 would still forbid schools from directly paying athletes.

The NCAA sent a letter to Newsom in September while lawmakers were mulling the bill, calling it “unconstitutional” and a “scheme.”

In September, a New York state senator introduced legislation similar to Skinner’s bill with the added provision that college athletic departments share 15% of annual revenue from ticket sales with student athletes. … Read More

(via Los Angeles Times)

Court grants broad exception to athlete liability for in-sport actions

Supreme Court of Utah: “participants in any sport are not liable for injuries caused by their conduct if their conduct was inherent in the sport.”

The court elaborated:

We think it appropriate to establish an exception to tort liability for certain injuries arising out of voluntary participation in sports. But we do not deem it appropriate to require proof that a defendant’s conduct was reckless or intentional. Nor do we think it is necessary to limit the exception to an arbitrary subcategory of “contact” sports. Instead we hold that voluntary participants in a sport cannot be held liable for injuries arising out of any contact that is “inherent” in the sport. Under our rule, participants in voluntary sports activities retain “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” But there is no duty to lower or eliminate risks that are inherent in an activity.

Excerpts from last week’s opinion in Nixon v. Clay, which arose out of an injury sustained in a church-league basketball game, and a link to the full opinion are available here.

March Madness on the Bench: Are judges distracted by the NCAA Basketball Tourney? (via The Volokh Conspiracy)

Past research suggests that natural preferences for leisure influence the ways in which federal judges carry out their work. We consider the extent to which incentives for leisure reduce the speed with which judges work and the quality of their output. We take advantage of a natural experiment caused by an annual sporting event that creates differential distractions across judges. Using a difference-in-differences design, among federal courts of appeals judges we show that a judge’s alma mater’s participation in the National Collegiate Athletic Association Men’s Basketball Tournament both slows the rate at which opinions are drafted and ultimately undermines the opinions’ quality, even accounting for the additional time judges spend writing them. The findings suggest that incentives for leisure influence important normative concerns for swift and high-quality justice. … Read More

(via The Volokh Conspiracy)

Sports Law Roundup – 1/20/2017

aslr

I used to write the sports technology roundup at TechGraphs, an internet website that died, and now I am writing the sports law roundup at ALDLAND, an internet website.

Here are the top sports-related legal stories from the past week:

  • Hockey head injuries: In a discovery dispute in a case between the NHL and over one hundred former players alleging that the league knew or should have known that concussions can lead to CTE, the NHL filed a motion seeking a court order compelling Boston University’s CTE Center to turn over research documents the former players say constitute evidence supporting their claims. Thus far, BU, which “maintains what it calls the largest brain repository in the world dedicated to the study of CTE,” had refused to provide the league with the requested information on confidentiality grounds.
  • Atlanta Braves Community Fund: A lawsuit alleges that, since at least 2010, the Atlanta Braves have failed to make adequate payments to a nonprofit entity known as the Community Fund as required under the team’s contract with the city (technically the City of Atlanta and Fulton County Recreation Authority) for Turner Field. That contract required the Braves to pay specified shares of revenue from both baseball and non-baseball events at Turner Field to the Community Fund, which now claims that the team underpaid in violation of that contract. The Braves played their final game ever at Turner Field last October.
  • Beatles’ declaration worth many pennies: Since we’re thin on sports law stories this week and sometimes cover music on this site, here included is comment on Paul McCartney’s recent lawsuit seeking a declaration that his prior exercise of certain rights under copyright law will not cause a breach of publishing agreements with Sony. McCartney is hoping to gain control of the rights to songs he wrote prior to 1978 but fears retribution from Sony, which could not provide “clear assurances he won’t face contract troubles for taking back his songs.”

Sports court is in recess.

Sports Law Roundup – 1/13/2017

aslr

I used to write the sports technology roundup at TechGraphs, an internet website that died, and now I am writing the sports law roundup at ALDLAND, an internet website.

Here are the top sports-related legal stories from the past week:

  • College football head injuries: A group of former Texas Tech, Oklahoma, and TCU football players has sued the NCAA and Big XII conference, alleging that those entities breached contractual obligations to warn players of and take adequate steps to prevent head injuries. The plaintiffs are seeking class action status, and their lawyer has said that he expects to file similar lawsuits on behalf of more players this year.
  • Olympic surveillance: Two years ago, the former mayor of Salt Lake City and six SLC residents filed a proposed class action against George W. Bush, Dick Cheney, David Addington, Michael Hayden, the FBI, and the NSA, alleging that the federal government improperly spied upon people attending the 2002 Winter Olympics. Now, a judge has denied the NSA’s motion to dismiss the case and will allow it to proceed.
  • Gymnast abuse: In more Olympic news, eighteen women sued USA Gymnastics, the national governing body for gymnastics in the United States; Michigan State University; and a gym in the Lansing area. Their complaint alleges that an affiliated doctor molested and sexually assaulted the plaintiffs, some of whom were as young as nine years old when the alleged attacks occurred, and that the defendants failed to act appropriately upon their knowledge of this doctor’s actions. This is the third civil action involving this doctor, and criminal complaints also have been filed. The FBI reportedly recovered child pornography from the doctor’s electronic devices and is in possession of video evidence of the doctor perpetrating sexual assaults.
  • Baseball land shark attack: The judge overseeing a dispute between the Miami Marlins and a fan who alleges she suffered a serious neck injury in 2013 when a shark mascot, following an on-field race with other mascots, leaned into the stands and pretended to bite her head has ordered the parties to participate in mediation in advance of the case’s June trial date.
  • Concert dodgers: A concert promoter sued the Los Angeles Dodgers and Guggenheim Partners, the entity that owns the team, because, the promoter alleges, they failed to pay him a share of the proceeds from concerts by Paul McCartney and AC/DC hosted at Dodger Stadium for his work in securing those performances. The promoter says he’s owed $2 million, while a leaked draft response from the defendants reportedly tells him to “forget about the check, we’ll get hell to pay.”
  • Sports gambling legalization: Legislators in South Carolina and New York separately proposed amendments to their state constitutions that would legalize sports betting. The South Carolina proposal would allow all forms of gambling, while the New York one would be limited to allowing sports gambling at racetracks and casinos.
  • Preemptive free agency: Last week, we highlighted an article suggesting that a California employment law could allow certain athletes playing for teams in that state to unilaterally opt out of long-term contracts and become free agents. High-profile baseball agent Scott Boras subsequently weighed in on the subject and counseled against the idea largely because the transactional costs of attempting the move (i.e., years of litigation) likely would outweigh– and, due to time delay, probably completely negate– any potential benefit to the player.
  • CTE: This also is not a legal news story, exactly, but this space has highlighted a number of sports-related head-injury lawsuits in the past, which makes sharing this compelling and well-told story of a young person’s struggles with CTE appropriate. If you only click through to one link in this post, make it this one.

Sports court is in recess.

Sports Law Roundup – 1/6/2017

aslr

I used to write the sports technology roundup at TechGraphs, an internet website that died, and now I am writing the sports law roundup at ALDLAND, an internet website.

Here are the top sports-related legal stories from the first week of 2017:

  • Baseball stadium funding: The Arizona Diamondbacks, seeking the right to “explor[e] other stadium options,” have sued the Maricopa County Stadium District after the District refused to authorize funding for the $185 million needed for capital repairs and improvements to Chase Field, which opened in 1998, according to an assessment completed by the District.The team has expressed willingness to cover all of the District’s expenses, but the District apparently must give its permission to proceed and thus far has declined to do so.
  • Student-athlete classification: In a case we have been monitoring in this space (here and here), the U.S. Court of Appeals for the Seventh Circuit has denied the request of a group of former Penn student-athletes for full-court (en banc) review of that court’s earlier rejection of their claim that they were employees entitled to minimum-wage compensation under the Fair Labor Standards Act. The denial of the request for further review leaves in place the court’s decision handed down last month. It is unclear whether the plaintiffs will request permission to appeal to the Supreme Court.
  • Daily Fantasy Sports: A DFS website argued that daily fantasy sports actually are illegal gambling in an attempt to avoid a $1.1 million lawsuit based on an advertising and sponsorship contract with the Minnesota Wild. I wrote more about this case here earlier this week. Meanwhile, a Maryland law authorizing the lawful, regulated conduct of DFS contests in that state, which is regarded as less restrictive than similar measures in other states, went into effect on Monday; a Florida legislator introduced a bill Wednesday that would declare DFS legal in that state; and FanDuel earned another win in a patent-infringement suit brought by two gambling technology companies in Nevada.
  • Preemptive free agency:  Nathaniel Grow has an interesting article on FanGraphs that illuminates a California employment law that could apply to allow even union employees like professional athletes to unilaterally opt out of long-term contracts after seven years of employment. This poses a potentially tantalizing, if legally unproven, opportunity for someone like Mike Trout, a generational talent not yet in his prime who likely could fetch an even more historically large contract were he to hit the open market now, at age twenty-five, rather than after the 2020 season, which is when his current contract ends.

Sports court is in recess.

Daily fantasy sports site argues that DFS is illegal in attempt to escape advertising contract

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Draft Ops was a daily fantasy sports (“DFS”) website, like FanDuel and DraftKings, that used to be the “official fantasy partner” of a number of sports teams and media outlets, including the Minnesota Wild. Last spring, the Wild sued Draft Ops, alleging that the site owed the team $1.1 million pursuant to an agreement that allowed Draft Ops to use the Wild’s name and logo in advertising materials.

In a creative, if risky, attempt to avoid its contractual obligations to the Wild, Draft Ops argued that the agreement was void because, it further argued, DFS constituted illegal gambling in Minnesota. After years of litigation and lobbying by DFS operators to expand and protect the legality of their enterprise, it is fairly remarkable to see a DFS site argue that its business is illegal.

On the other hand, if any DFS site was going to turn state’s evidence, it makes sense it’d be one like Draft Ops, which appears to be out of business, filed for bankruptcy last week, and is more concerned about how it’s going to make good on the $1.1 million it allegedly owes the Wild than it is about the ongoing viability of the business model.

Draft Ops hit a roadblock in the Minnesota case last week, though, when the judge allowed the case to proceed, explaining that it was not clear that DFS was illegal under Minnesota law, and that, even if DFS clearly was illegal in the state, there still could be grounds on which the court could enforce the contract, which, the judge noted, was a sponsorship and advertising contract, not a gambling contract.

If this strategy sounds familiar, that’s because it essentially is the same one people who lost money playing DFS tried in lawsuits they filed against the DFS sites themselves last year.

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Related
DraftKings and FanDuel finally announce inevitable merger agreement
Lose money playing DraftKings or FanDuel? File a lawsuit.

Sports Law Roundup – 12/30/2016

aslr

I used to write the sports technology roundup at TechGraphs, an internet website that died, and now I am writing the sports law roundup at ALDLAND, an internet website.

After a week off for Christmas, we’re back with the top sports-related legal stories from the past week:

  • Soccer CBA: The collective-bargaining agreement between the U.S. Women’s National Team Players’ Association and the U.S. Soccer Federation is set to expire this weekend, and reports, centered around the union’s termination of its executive director on Wednesday, indicate that the two sides are unlikely to reach a new agreement in time. Compensation appears to be a central issue of contention for the players, who already have a pending wage-discrimination complaint with the Equal Employment Opportunity Commission. Absent a new agreement before the deadline, the existing CBA would remain in place (though either side then would have the right to terminate the agreement on sixty-days’ notice).
  • NFL head injuries: The lawsuit filed last month by thirty-eight former NFL players against the league and its teams seeking an amendment to the NFL-NFLPA CBA to provide for workers’ compensation benefits for CTE for living patients and loss-of-consortium compensation for their spouses is over. In an apparent attempt to avoid having the case lumped in with already-pending NFL concussion litigation, which is in the settlement phase, the plaintiffs voluntarily dismissed this suit and intend to re-file individually in various state courts.
  • Soccer witchcraft ban: This isn’t really a legal update, but it has been a slow few weeks in the sports law world, so there’s room for a note on the national governing body of soccer in Rwanda’s new ban on witchcraft during games. The restriction only applies to coaches, and the penalty is a four-match suspension and a fine. It appears that sorcery, however, remains legal in Rwandan soccer.

Sports court is in recess.

Sports Law Roundup – 12/9/2016

aslr

I used to write the sports technology roundup at TechGraphs, an internet website that died, and now I am writing the sports law roundup at ALDLAND, an internet website.

Here are the top sports-related legal stories from the past week:

  • College football defamation: On Thursday, former Baylor head football coach Art Briles sued three Baylor regents and the university’s senior vice president and CEO claiming that they defamed him by stating that he had knowledge of sex crimes reportedly committed by his players and failed to provide that information to proper authorities. In addition, Briles alleges that the officials sought to prevent him from securing another coaching position elsewhere. He also included a claim for intentional infliction of emotional distress, and, in total, seeks unspecified damages in excess of $1,000,000. Here is a picture of Briles’ longtime attorney, Ernest H. Cannon, riding a horse at a rodeo.
  • Football player suspension challenges: In related stories covered in this space last week, two NFL players represented by the same Ohio law firm launched collateral attacks on the NFL/NFLPA collective bargaining agreement targeting alleged procedural deficiencies in the suspension-appeal process after both were suspended for drug violations. The NFL and NFLPA now have taken action in one of those cases by appointing a third arbitrator to hear a rescheduled appeal by Green Bay Packer Mike Pennel. The absence of a third arbitrator is central to the claims Pennel raised in the lawsuit he filed in Ohio federal court. In connection with that suit, Pennel also sought a temporary restraining order, which the responsive actions by the league and union were designed to moot. On Tuesday, Pennel agreed to drop his lawsuit in exchange for a reduction– from ten games to four– in his suspension, which will allow him to play in the postseason should his Packers secure a playoff berth. (Pennel’s attorneys also represent Philadelphia Eagle Lane Johnson, who filed similar complaints with the National Labor Relations Board and U.S. Department of Labor around the same time Pennel filed his lawsuit.)
  • Student-athlete classification: The United States Court of Appeals for the Seventh Circuit rejected claims by a group of former Penn student-athletes that they are employees entitled to minimum-wage compensation under the Fair Labor Standards Act. The trial court granted a motion to dismiss the defendants– the NCAA, Penn, and more than 120 other NCAA member schools– filed, and the appellate court affirmed. The court agreed that dismissal as to the non-Penn defendants was appropriate because of a lack of standing; the plaintiffs had attended only Penn and had no basis to recover wages from any school they didn’t attend. The court also agreed that dismissal was appropriate as to Penn, because the plaintiffs had failed to state a claim for relief from Penn. Noting the “revered tradition of amateurism in college sports” and the weight of judicial and regulatory precedent holding that student-athletes are not employees, the court concluded that the FLSA does not apply to student-athletes. While many disagree with this outcome, it is consistent with the original meaning and purpose behind the “student-athlete” designation. (In a concurring opinion, Judge Hamilton cautioned against broad application of the court’s decision, noting that the plaintiffs participated in a non-revenue sport– track and field– for a school that does not offer athletic scholarships, and suggested that he might have voted differently had the plaintiffs been student-athletes on athletic scholarship in a revenue sport.)
  • Hockey head injuries: A group of former NHL players suing the league for its alleged failure to warn them of known risks of head trauma now have requested class certification in that case for two classes of former players based on the different measures of relief sought: damages for those already diagnosed with neurological injuries and medical monitoring for others. Attorneys from a number of large law firms, including Skadden Arps Slate Meagher & Flom, are representing the NHL in this case. Skadden is the anchor tenant in a new commercial real estate development in Manhattan that also will be home to the NHL’s offices when it opens in 2019.
  • Minor League Baseball lobbying: MiLB has created a political action committee in order to boost lobbying efforts. The impetus for this move likely is the class-action lawsuit minor-league players filed alleging that their compensation violates federal wage and hour laws and the leagues’ attempt to snuff out that suit by way of congressional action. The proposed Save America’s Pastime Act would create a carve-out in the Fair Labor Standards Act exempting minor-league players from minimum-wage and overtime protections. There has been essentially no action on the bill since Rep. Brett Guthrie of Kentucky introduced it in June, leaving plenty of time for MLB to say dumb things about it.
  • Soccer ban: The Court of Arbitration for Sport denied former FIFA president Sepp Blatter’s request to overturn his six-year ban from all national and international soccer-related activity and fine of 50,000 Swiss francs for his involvement with bribes and kickbacks during his leadership of FIFA.
  • Canadian Super Bowl commercials: There is a thing in Congress called the House Northern Border Caucus, and four of its members, representing districts in North Dakota, New York, and Washington, sent a letter asking the Canadian government to reverse its decision to block Canadian advertisers from running commercials on the Canadian broadcast of the Super Bowl. Canadian broadcasters used to have an agreement with the NFL that allowed Canadian commercials on the Canadian broadcast of the game, but, in 2015, Canadian regulators changed course in response to viewer demands to see the popular American commercials that run during the game. Canadian broadcasters and advertisers and the NFL, which is losing out on Canadian advertising revenue as a result, all oppose that change. The company that holds the Canadian broadcast rights to the Super Bowl, Bell Media, also has sued the regulatory body in an attempt to reverse the policy.
  • Hockey logo: Things are off to a rough start for Las Vegas’ first major professional sports team after the U.S. Patent and Trademark Office denied the Golden Knights’ registration application, citing a “confusing[] similar[ity]” to a mark registered by the College of Saint Rose. Arguable visual similarities aside, I didn’t even know there was a Saint Rose, much less a College of Saint Rose, and I certainly didn’t know the school’s mascot is the Golden Knights, and neither did you, which means that, however similar these marks might be, the likelihood of confusion here is very low. This likely is little more than another instance of the USPTO seeking a moment in the sports sun.
  • Gambling: The nation of Antigua and Barbuda has issued a threat to the United States if the U.S. does not meet a year-end deadline to comply with a 2003 World Trade Organization order ruling that American online sports betting and gambling laws violate international law. If the U.S. does not comply with the WTO order, which also carries an annual noncompliance penalty of $21 million and has accrued to over $250 million, Antigua and Barbuda intends to suspend intellectual property protections for Americans, effectively permitting Antiguans to establish websites hosting royalty-free downloads of American IP (e.g., books, music, movies, television programming, etc.).
  • Baseball ambassador: Bobby Valentine, former MLB player and manager of the Mets and Red Sox, reportedly is under consideration by president-elect Donald Trump for the position of ambassador to Japan. Valentine, who currently serves as athletic director at Sacred Heart University, is popular among Japanese baseball fans thanks to two successful stints as manager of a professional baseball team there.

Sports court is in recess.