Sports Law Roundup – 6/23/2017

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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:

  • Football trademark: As predicted (not by me) back in 2015, the Supreme Court heard and now has ruled on a trademark case involving a band called The Slants that has a direct effect on the Washington Redskins, whose trademark registrations were revoked under the same policy applied to The Slants. That policy sought to ban registration of trademarks that were disparaging or offensive, but a unanimous (8-0) Court held that the ban violated the First Amendment. “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” Justice Samuel Alito explained.
  • NFL fan access: A Green Bay Packers fan has sued the Chicago Bears because the Bears won’t allow him on the sidelines before games at Soldier Field while he’s wearing Packers attire. The fan is a Bears season-ticket holder who built up enough “points” to receive an award in the form of a pregame warmup sideline experience. Despite his entitlement to that experience under the terms of the Bears season ticket program, the Bears refused to allow him to participate while wearing Packers clothing.
  • Daily Fantasy Sports: The inevitable merger between DraftKings and FanDuel announced last November has hit a probably inevitable regulatory hurdle. The Federal Trade Commission has filed a lawsuit in an attempt to block the merger, which, the FTC says, would create a single company that controls ninety percent of the daily fantasy sports market. On Tuesday, a judge granted the FTC a temporary restraining order that halts the merger for now.
  • Golf drugs: The PGA has asked a judge to reconsider her May ruling that the tour breached an implied duty of good faith it owed to Vijay Singh in connection with a 2013 suspension the PGA issued to him after he told a reporter he’d used a product called The Ultimate Spray, which contains “velvet from the immature antlers of male deer,” something that supposedly aids golf performance. The PGA’s arguments in support of reconsideration involve evidentiary matters pertaining to witness testimony regarding the financial consequences of Singh’s suspension and the judge’s understanding of whether the PGA reviewed materials from the World Anti-Doping Agency (“WADA”), which maintains the tour’s agreed list of banned substances, to confirm that the spray in fact contained or constituted a banned substance. During Singh’s suspension, WADA issued a public statement clarifying that use of the spray was not prohibited, and Singh argued that the PGA should have confirmed this fact with WADA before it suspended him.

Sports court is in recess.

The Redskins and The Slants: How an Asian American band name case may affect the Redskins trademark (via The Volokh Conspiracy)

A federal district court today upheld the Trademark Trial and Appeal Board’s cancellation of the Redskins mark. A federal statute bars registrations of marks that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute”; the district court agreed that the Redskins fell within this prohibition. This decision doesn’t bar the Redskins from using their name, but it does reduce their ability to use trademark law to stop various infringing Redskins gear.

The analysis strikes me as unpersuasive: I don’t think that historically trademarks have been used to “communicate[] messages from the [government].” I don’t think “the publicly closely associates [trademarks] with the [government].” And while the government does have and does exercise some control over which trademarks are allowed, I don’t think that this itself can suffice to justify viewpoint discrimination, since in all viewpoint-discriminatory programs (including ones the Court has condemned), the whole dispute was about the fact that the government was trying to exercise control about what speech is allowed.

Instead, it seems to me that trademark law is much closer to the programs in which viewpoint discrimination is forbidden . . . . The special government-provided benefits given to trademark owners — or copyright owners — are similarly private speech, despite the government involvement, and the government shouldn’t selectively deny those benefits to speakers who have certain views. … Read More

(via The Volokh Conspiracy)

Mike Shanahan channels Brady Hoke, Falcons hang on to win 27-26

redskins-falcons 2013As reported, I was on hand to watch the Falcons host the Redskins (Monuments?) yesterday afternoon, and it was everything you’d hope a late-season pairing of three-win teams would be. Atlanta’s offense was boring but effective in the first half, relying primarily on Steven Jackson, back in action after an early season injury, and Tony Gonzales, who in the second half became just the fifth NFL player ever to tally 15,000 receiving yards. On the other side of the ball, Kirk Cousins’ performance was a mixed bag. Against Atlanta’s soft defense, Cousins posted better passing numbers than Robert Griffin III– spotted wearing warmups on the sideline– has this season, but a couple of interceptions proved costly. Washington nevertheless was in a position to take the game to overtime, or win it outright, thanks to a late touchdown that ran the score to 27-26. Opting to go for the regulation kill on the road, Mike Shanahan made like Brady Hoke and called for the two-point conversion, which failed. Atlanta recovered the sloppy onside kick to seal the one-point win.

Having read about far more NFL games than I’ve attended, the game experience was a bit odd. Even taking into account Atlanta fans’ reputation for lacking a feverish commitment to their teams, the vibe was beyond mellow in the Georgia Dome on Sunday. The noise level was somewhere between a Braves game and the Masters. One fan in our section who caught a free t-shirt used it as a pillow to rest. Another took a nap without similar support. And these weren’t alcohol-induced rests– the only even semi-drunk person we saw was a mom indulging in too much smuggled adult fruit punch– it really was that quiet. Our entire row, and most of our section, including the man pictured above who stood with his back to the field and wouldn’t get out of my picture even though I didn’t ask him to, left before the end of the third quarter, when the Falcons led by only four.

We didn’t find any of this upsetting, and our people-watching experience was further enhanced by the skilled camera operators feeding the nice video boards with fun fan shots. (The ushers probably could stand to lighten up a bit, though. 3-9 vs. 3-9 in December deserves a lighter touch from the regulatory folks.)

falcons-redskins 2 Continue reading

ALDLAND goes live to Redskins-Falcons

The biggest NFL story of the past week is Washington head-coach-for-the-moment Mike Shanahan’s decision to bench healthy starter Robert Griffin III in favor of backup quarterback Kirk Cousins. The Redskins are in Atlanta to play the Falcons today at 1:00, and ALDLAND will be there. I am excited to take in my first NFL game since a few Lions games at the Silverdome in the early 1990s. Most Falcons fans are hoping their team will lose out so as to ensure a high draft pick (Jadaveon Clowney is their preference), but I’d like to experience a home victory. I also am looking forward to seeing MSU-grad Cousins in action. I don’t know whether some or any of Cousins, Griffin, or Shanahan will be in Washington next season, but Cousins has a big professional opportunity to make the case that he deserves to be an NFL starter next year.

Stay tuned here and on twitter for updates from downtown Atlanta this afternoon.

Brainstorm: The Washington Football Team’s new mascot

It finally is time for ALDLAND to weigh in on the NFL controversy that has reemerged in force this season: What To Do Or Not Do About The Washington Redskins From A Mascot Perspective.

If you haven’t been following this story this year, don’t worry: no one has said anything insightful about, and no one has changed positions on whether the Redskins should change their name. Washington owner Dan Snyder is not going to change his mind, and he isn’t going to change the name unless NFL Commissioner Roger Goodell forces him to do so, and Goodell has been maybe waffling on the issue.

I don’t have anything to add to the debate, but now feels like a good time to move past the preliminary phase of the conversation and start proposing some alternative mascots. And by “now,” I mean the day after the team’s current running backtight end, Fred Davis, said Snyder should rename the team the Fredskins. Not bad. Inspired, this came to me in a flash this morning:

washingtonmonumentI think the Washington Monuments really would be a great new name for the team. It’s location-specific, addresses Snyer’s concern for honoring history, and is only indirectly linked to Anglo-American racial hegemony.

If you’re still thinking about the Fredskins, here‘s an artist’s rendering of a possible logo along that line. If you have another idea, post it in the comments below.

Tuesday Afternoon Inside Linebacker

tail3ALDLAND’s weekly football review returns after an infamous fall wedding weekend. Bear with us as we attempt to piece together the happenings of the last few days.

College Football

Pregame:

  • After the Game of the Century of the Season of the Week last week in College Station, everybody predicted a scheduling letdown this week. Sports predictions have become (always were?) completely useless and devoid of meaning, but once in a while, the wisdom of the crowd gets it right. Throwing out expired food? No, actually. A soft slate of week-four matchups? For the most part, yes.

The games — That 70s Show:

  • Clemson opened the week of play by getting punchy on Thursday night in a closer-than-it-should-have-been win over North Carolina State. So far as I can tell, the Tigers have played only fellow Carolinians to this point in the season. A check of their schedule confirms this, and the trend will continue this weekend. (EDIT: Except for that little game against UGA in week one.) Clemson 26, North Carolina State 14.
  • A number of teams posted gaudy scores and spreads. Since they already had their fun, they’re all getting grouped in this one paragraph. Ohio State 76, FAMU 0. Louisville 72, FIU 0. Miami 77, Savannah State 7. Washington 56, Idaho State 0. Baylor 70, Louisiana-Monroe 7 (that one’s actually a little surprising). Florida State 54, Bethune-Cook 6. Wisconsin 41, Purdue 10. UCLA 59, New Mexico State 13. Texas A&M 42, SMU 13. And others.

Tuesday Afternoon Inside Linebacker

tailSince “Monday Morning Quarterback” and “Tuesday Morning Quarterback” are taken and uninspired, and because I’m preempting my own exhaustion of “Monday“-themed alliterations, ALDLAND’s regular football/weekend roundup will move to Tuesday afternoons, which also permits incorporation of the Monday night NFL game. With week two of college football and week one of the NFL in the books, here goes:

College Football

Pregame:

  • Brendan and Physguy were in Ann Arbor for ESPN College Gameday, and the only evidence is a couple cryptic tweets from Brendan.

The games — No surprises:

  • I was able to find Michigan State’s game against South Florida on television in the Southeast, which may be thanks to USF’s participation in the game, but which also felt like finding a unicorn in the wild. MSU’s defense continues to outscore their offense, and that’s with three quarterbacks! Even Sparta only ever had two kings at once. Michigan State 21, South Florida 6.
  • I also found Vanderbilt-Austin Peay on TV, which is a reminder that it’s week two for the broadcasters as well. VU had no problem with its Middle Tennessee neighbors, winning 38-3.

ALDLAND Podcast

The ALDLAND Podcast might have taken two weeks off, but it is back and better than ever. Listen to your favorite cohost get all melodramatic about the NBA Draft before moving on to actual NBA discussion as we recap the exciting NBA Finals. Also featured is discussion of Darren Rovell’s interesting take on the Aaron Hernandez situation. Last, but not least, I unveil my innovative compromise to the Washington Redskins name situation.

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Download the ALDLAND podcast at our Podcasts Page or stream it right here:

RGIII continues to flip the script

Yes, he’s only played one professional football game, and yes, the cases for his extraordinariness and ordinariness have been made and made and made, and yes, I’m a fan of his, but still, Robert Griffin III continues to impress.

Often, we are able to view an athlete’s greatness directly. Such has been the case for Griffin, who previously played major-conference college football and now plays in the NFL. Other times, we are able to detect evidence of an athlete’s greatness indirectly. Those times may be tougher to identify, but they also may be more illuminating and demonstrative of greatness.

If you just pulled your head out of your old pile of Sports Illustrated for Kids and haven’t really paid attention to the NFL over the last ten years, you might not realize that Griffin’s current head coach, Mike Shanahan, doesn’t really have a great reputation these days. In particular, he’s got a bad one for ruining quarterbacks. Just ask Donovan McNabb.

That’s why one of the most amazing results of RG3’s stellar debut on Sunday has been the evaporation of anti-Shanahan sentiment in the media. Far from destroying the great potential Griffin represents, Shanahan installed a plan that is being called “brilliant” and “beaut[iful]” and a lot of other nice things around the web.

Should things continue along the path Griffin started down on Sunday, the redemption of Mike Shanahan won’t be RG3’s greatest accomplishment, but it might be one of his most telling. At the very least, it will tell us what we knew all along: it’s the players who ultimately make the coach, not the other way around.

New season Monday

Football is underway at all levels, which means that this weekly roundup/preview post is back.

College football’s second week portended less excitement than its opening week, and yet there seemed to be more surprising results this week than last. In particular, two teams with a lot of preseason promise took big hits on Saturday. The Wisconsin Badgers fell out of the Top 25 and fired their offensive line coach after a loss to Oregon State in which the traditional running power generated only thirty-five yards on the ground. Arkansas’ drop from the rankings was even more precipitous, as the Razorbacks lost to Louisiana-Monroe. Michigan, fresh off a no-show against Alabama, nearly lost their home-opener to Air Force, while Clemson nearly doubled up Ball State to stay undefeated, a status they’re likely to carry into their meeting with #5 Florida State in two weeks after facing in-state lightweight Furman this weekend. Michigan State also stayed undefeated with an easy win over Central Michigan, while Vanderbilt fell to 0-2 at Northwestern in a game I attended and more about which I will writehave written.

Robert Griffin III was the star of the NFL’s first Sunday of 2012, while Andrew Luck found himself grouped with more pedestrian rookie QB starters Brandon Weeden and Ryan Tannehill. The always-overhyped Jets turned in the surprise team performance of the day, a 48-28 win over Buffalo. The Lions, who have an official drum line, came from behind to beat the Rams in the last ten seconds of the game, and Peyton Manning returned to form in an ultimately convincing win over Pittsburgh.

Outside of the football world, Serena Williams gutted out a win at the U.S. Open, her fifteenth Grand Slam title, and Jeff Gordon announced that his “absurdly comical mustache” for the NASCAR Chase (i.e., playoffs), which begins this weekend in Chicago.