Sports Law Roundup – 5/5/2017

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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:

  • NBA profiling: In 2015, Mike Scott, then a member of the Atlanta Hawks, and his brother were pulled over and subsequently arrested after a search of their rented vehicle turned up marijuana, ecstasy, and $1,684 in cash.  The deputy sheriff who made the stop later was found to have been racially profiling drivers as part of a forfeiture scheme and placed on administrative leave. Records provided by the Scotts’ attorneys show that the deputy sheriff “pulled over more than 1,400 vehicles in 2015 and 2016 but issued only eight traffic citations. He also arrested 47 people, at least 44 of whom were minorities.” As a result of the profiling, the judge overseeing the Scotts’ drug case this week threw out the key evidence against the defendants.
  • Baseball broadcast settlement: In early 2016, MLB settled a fan antitrust lawsuit targeting the league’s television blackouts and other components of its broadcast system. While the blackouts survived, the fans did win reduced-price single-team subscription options for MLB.tv (I am a subscriber, to varying degrees of satisfaction), as well as a price reduction for the full MLB.tv package. The agreement also included a component that would allow MLB to raise prices in the future in exchange for providing more live streams of in-market games by 2017. That component now is at issue in a new motion filed by the fan group demanding that the court enforce the terms of the settlement agreement. The fans allege that MLB raised prices without the required corresponding in-market streaming increase. They concede that the league may have agreements in place with local television providers to provide the in-market streams, but, the fans argue, “the obvious purpose of the settlement was not that ‘agreements’ of some kind be reached, but that the actual games be available.” The fans also argue that, contrary to what they were promised, MLB has failed to make the “follow your team” game broadcasts available when the selected team is playing the team based in the fan’s local broadcast market.
  • Cheerleader wages: The Milwaukee Bucks and Lauren Herington, a former cheerleader for the team who alleged that the team violated federal and state labor laws by underpaying her and her fellow cheerleaders, have reached a $250,000 settlement of Herington’s proposed class action lawsuit that provides for the settlement funds to be divided as follows: $10,000 for Herington; $115,000 for Herington’s attorneys; and unspecified shares of the remaining $125,000 to Herington and other would-be class members who opt into the settlement based on their hours worked during the three-year period (2012-15) at issue. While not insubstantial, the Journal Sentinel notes that Milwaukee’s $250,000 settlement amount is less than what other teams– for example, the Oakland Raiders ($1.24 million), Tampa Bay Buccaneers ($825,000), and Cincinnati Bengals ($255,000)– have paid to resolve similar lawsuits. Upon learning that Herington was wavering on whether to agree to the settlement, her lawyer, who wanted her to accept the deal, reportedly was overheard telling her that “it’s a Bucks dancer’s choice my friend, better take my advice.”
  • Minor League baseball wages: As predicted two months ago, the court overseeing  the minor-league baseball players lawsuit against MLB for higher wages and overtime pay will permit the parties to appeal its recent ruling certifying the case for class-action treatment. In doing so, the court also decided to stay the case pending resolution of the class-certification issues by the appellate court.

Sports court is in recess.

Sports Law Roundup – 4/28/2017

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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.

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

  • Hockey head injuries: The NHL suffered another loss in the pretrial discovery process in the ongoing head-injury lawsuit between the league and a group of former players. Last month, the court ordered the public release of certain internal NHL communications and other documents, some of which contained embarrassing and damaging statements by team and league officials, including Commissioner Gary Bettman. Now, the court has mostly denied the NHL’s motion to force Boston University’s CTE Center to produce research documents and information about test subjects, although it will allow production of documents pertaining to deceased players whose families authorize the release of those records, as well as documentation of the Center’s public statements to the press regarding research on NHL players. The league responded by filing its opposition to the plaintiffs’ request for class-action treatment, arguing that there is not a scientifically established link between head trauma and “neurodegenerative” diseases like CTE. According to the NHL’s filing, “any causal relationship between head injury in contact sports and later-in-life development of CTE remains scientifically unproven.” The league also argued that it would be inappropriate to certify a nationwide class for a medical-monitoring claim, since the applicable laws vary on a state-by-state basis.
  • More hockey head injuries: With the NHL already embroiled in head-injury litigation, two of its teams, the St. Louis Blues and New Jersey Devils, now face another lawsuit filed by a former player, Mike Peluso, addressing the same situation. Peluso, an enforcer for the Blues and Devils (as well as the Blackhawks, Senators, and Flames) in the 1990s, alleges that the teams had actual knowledge of the medical risks of additional head injuries he personally faced, yet continued to encourage him to play and fight on the ice. According to Peluso’s complaint, which also names an insurance provider as a defendant, “This is not simply a case were [sic] defendants are alleged to know the link between head injuries and permanent brain damage. This is a case where defendants knew the link between Mr. Peluso’s head injuries and permanent brain damage because they had their own Board Certified Team Neurologist tell them that Mr. Peluso would have brain damage if they allowed him to continue to receive head injuries” and hid that information from him. The complaint also alleges that Peluso suffers from permanent brain damage and dementia and is permanently disabled. Peluso, now fifty-one years old, claims he engaged in 240 fights in his nine-year NHL career and suffered at least nine grand mal seizures. A member of New Jersey’s 1995 Stanley Cup-winning team, Peluso finished among the top-ten players in the league in penalty minutes in four of his nine seasons, leading the league in the 1991-92 season. Mike Peluso should not be confused with his cousin, Mike Peluso, who had a brief NHL career with the Blackhawks and Flyers in the early 2000s.
  • Football biometric data: The NFLPA and Whoop, a company that sells wearable fitness monitoring devices, have entered into an agreement in which Whoop will provide players with devices that track “strain, recovery, and sleep” and can transmit that data to Whoop’s web-based applications. As part of the agreement, the players will be able to customize the aesthetic design of their device for their own use and for retail sale. Significantly, the agreement grants each player ownership rights of all data his device collects. While headline-writers have feasted on the possibility (apparently authorized under the agreement) that players may sell their data in some manner, the real purpose of this deal likely is to stem growing concerns that it would be the teams or leagues that would own (and potentially misappropriate) players’ biometric data.

Sports court is in recess.

ALDLAND Archives: Is the Worldwide Leader not long for this world? Imagining the end of ESPN

ESPN is in the midst of a significant layoff of on-air talent this week, and most of the casualties’ names are coming to light today. The cuts are leading many to ask some fundamental questions about the network’s future. Below, from the past, a potential answer to one such question.

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Is the Worldwide Leader not long for this world? Imagining the end of ESPN

December 7, 2015

My latest post at TechGraphs asks a simple question: why does ESPN still exist?

The full post is available here.

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 – 11/18/2016

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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:

  • Baseball stadium netting: On Wednesday, the trial court dismissed a lawsuit seeking increased fan-safety measures in baseball stadiums, including expanded safety netting behind dugouts and along the foul lines, based on a lack of standing. I previously wrote about this case over at TechGraphs (see here, here, and here), generally discussing the ways in which it– despite the legal weaknesses in the plaintiffs’ position– already was effecting change. Although those legal weaknesses proved to be the downfall of this suit, the court’s ruling was not without its admonitions to Major League Baseball. For example, an early footnote contains this observation: “Why Major League Baseball, knowing of the risk [foul balls pose] to children in particular, does little to highlight this risk to parents remains a mystery.” The order also expressly suggests the possibility that future litigation along these lines may be more availing in other states, where the “Baseball Rule,” which makes it very difficult for fans to recover against baseball teams and leagues, has fallen under attack: “Thus, it is conceivable that, under the right set of circumstances, a plaintiff could obtain the type of relief that plaintiffs seek here. Given the changing nature of both the baseball game experience and the injuries at issue, which are far different from those in 1914, what is a ‘reasonable expectation’ on an ‘ordinary occasion’ is not a static concept.
  • Football painkillers: Attorneys for retired NFL players in a lawsuit against the league alleging that team doctors dispensed painkillers “‘as if they were candy’ regardless of long-term effects” are seeking permission to depose team owners Jerry Jones and Jim Irsay. Outside of football, Irsay, who inherited ownership of the Indianapolis Colts from his father, is known for collecting famous guitars– including Jerry Garcia’s Tiger, Les Paul’s Black Beauty, and Prince’s Yellow Cloud— and having a history of abusing painkillers. The plaintiffs also have amended their complaint to add a RICO claim, which, among other things, introduces the potential for tripling their financial recovery in the lawsuit.
  • NCAA transfer rules: Johnnie Vassar, a former Northwestern basketball player, filed a putative class-action lawsuit against the NCAA, alleging that the rule forcing transferring students to sit out of their sport for their first year at their new school violates antitrust laws. Vassar claims that he attempted to transfer from Northwestern but was unable to do so, because all of his target schools only would accept him if he could play immediately. In recent years, Northwestern has emerged as a cradle of anti-NCAA legal activity.
  • Triathlon death: A wrongful death claim brought in connection with the drowning death of a competitor in the 2010 Philadelphia Triathlon cannot proceed, a Pennsylvania appellate court ruled, concluding that the triathlete knowingly and voluntarily assumed the risk of participating in the event when, in the course of registering for it, he executed a detailed liability waiver.
  • Cuban baseball-player smuggling: In a federal criminal case against a sports agent accused of conspiracy to smuggle Cuban baseball players into the United States, the government has listed numerous professional players, including Yoenis Cespedes and Jose Abreu, as trial witnesses. For more on this general subject, ESPN The Magazine’s feature on Yasiel Puig is a must-read.
  • Boxing fraud: The defendants– Floyd Mayweather, Manny Pacquiao, HBO, Top Rank, and others– in twenty-six lawsuits alleging that they improperly concealed Pacquiao’s shoulder injury leading up to the fighters’ 2015 bout in order to boost pay-per-view sales admitted that the plaintiffs– fans and bars– had standing to pursue their claims, even as the defendants denied that those claims had any merit.
  • Gambling: West Virginia, Arizona, Louisiana, Mississippi and Wisconsin are asking the United States Supreme Court to review a Third Circuit decision rejecting New Jersey’s attempt to open up sports gambling in its state. The five states, together, filed an amicus brief in support of New Jersey’s cert petition (formal request that the Supreme Court allow them to appeal the Third Circuit’s ruling), arguing that the manner in which Congress has regulated sports gambling is unconstitutional and threatens the balance of power between the federal and state governments. In an unrelated story, daily fantasy leaders FanDuel and DraftKings announced a merger agreement this morning.
  • Secondary football ticket market: Under pressure from state regulators, the NFL agreed to end its league-wide imposition of a price floor on game tickets sold on the secondary market that had prevented the resale of tickets at prices below face value. The agreement does not apply to tickets for the Super Bowl and Pro Bowl, nor does it prevent teams from acting “unilaterally” to enforce price floors, meaning that the practice could continue.
  • Campus police records: The Indiana Supreme Court affirmed a trial court’s dismissal  of ESPN’s lawsuit seeking the University of Notre Dame Police Department’s incident reports involving student athletes, deciding that the ND Police Department is not a “public agency” and thus cannot be compelled to produce the requested materials under the state’s open records law.

Sports court is in recess.

DraftKings and FanDuel finally announce inevitable merger agreement

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According to this morning’s press release, the two DFS companies “are merging to create a stronger entity that can focus on growing the fantasy sports market by developing new products and features, delivering enhanced user experiences and creating an overall stronger fantasy sports community, all aimed at creating a more diverse, exciting and appealing experience for fantasy sports players and sports fans generally,” which, sure.

There already was some probably unethical data sharing going on between these companies, and with the bills for difficult regulatory battles coming due, it makes perfect sense that these companies would merge. DraftKings’ CEO will become the CEO of the new company, and FanDuel’s CEO will become the chairman of the board.  The two sites will continue to operate separately through the 2017 NFL season, integrating only after the merger has cleared all regulatory hurdles and is finalized.

If you’re still playing these games without the use of a zombie computer army, well, good luck.

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Related
Lose money playing DraftKings or FanDuel? File a lawsuit.
Why I don’t gamble on sports, ep. 37

The latest news in sports technology

Daily fantasy sports now are legal in one state, Mike Trout’s high-tech bat could make him even better this season, free hockey streaming, and American soccer stats from a German car company, all in my most recent post for TechGraphs, a roundup of last week’s top sports technology stories.

The full post is available here.