Sports Law Roundup – 12/1/2017

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

  • Streaming data: The U.S. Court of Appeals for the Ninth Circuit has ruled that ESPN may share an individual’s streaming device identification number and record of videos watched without violating the federal Video Privacy Protection Act because that information does not constitute “personally identifiable information” under that act. The First Circuit previously had ruled that such information could be personally identifiable information, especially where combined with geolocation data, but that now is regarded as the minority position.
  • Bird death: A Massachusetts appellate court affirmed a trial court’s grant of summary judgment in favor of a truck manufacturer and the owner of automotive-related equipment in a wrongful-death case brought by the widow of Mark Fidrych. Fidrych died in 2009 of accidental asphyxiation when his clothing became entangled in the equipment while he was working underneath his truck. The court agreed that the equipment was dangerous and could have been designed in a safer fashion, but, because those designs were not defective and the risk that led to Fidrych’s death “arose out of the addition of other components and the decisions made, and actions taken, by downstream actors, the defendants had no duty to warn of those dangers.”

Sports court is in recess.

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Sports Law Roundup – 5/19/2017

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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:

  • Basketball mugging: Moses Malone Jr., son of NBA great Moses Malone, sued James Harden, claiming that Harden paid a group of people $20,000 to mug Malone Jr. at a Houston strip club last summer after critical comments by Malone Jr. about Harden’s youth basketball camp angered Harden. Malone Jr. posted a Facebook.com comment about the $250-per-attendee cost of Harden’s camp and then was beaten and robbed at the strip club. One of the men charged in the attack reportedly told Malone Jr. during the attack that Malone Jr. “disrespected James Harden and that he needs to be punished after that.” At this time, police have not established a connection between Harden and the attack.
  • Golf drugs: Vijay Singh won a victory in his lawsuit against the PGA this week when a court ruled that his claim that the tour breached an implied duty of good faith it owed to Singh could proceed. Singh’s case arises out of 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 performance. The PGA suspended Singh based on his admission before checking with 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. Singh’s contention is that the PGA should have confirmed this fact with WADA before it suspended him.
  • Football painkillers: The judge overseeing the proposed class action brought by former NFL players against the league’s thirty-two teams improper dispensation of painkillers dealt the plaintiffs another serious blow this week by dismissing almost all of the claims remaining in the case, and he does not seem to be impressed by the plaintiffs’ efforts: “perhaps the bloat of inapposite allegations is the product of some advocacy-based agenda rather than any attempt to comply with pleading requirements. For present purposes, however, this order makes clear at the outset that what matters is not whether plaintiffs have drawn attention to widespread misconduct in the NFL but whether each plaintiff has properly pled claims for relief against each individual club and, if so, whether those claims survive summary judgment.” At this time, the only claims that remain in the case are those brought by two individual players against three teams, the Green Bay Packers, Denver Broncos, and San Diego Chargers.
  • Baylor sexual assaults: Amazingly, Baylor’s legal troubles continue to mount. After a former student sued the university earlier this year, alleging she was the victim of a group rape committed by two football players in 2013 that the school ignored; that football players were responsible for numerous other crimes “involving violent physical assault, armed robbery, burglary, drugs, guns, and, notably, the most widespread culture of sexual violence and abuse of women ever reported in a collegiate athletic program”; and that, between 2011 and 2014, thirty-one Baylor football players committed a total of fifty-two rapes, including five gang rapes, another former student has sued the school based on similar allegations. The new case, filed by a former volleyball player for the university, is the seventh Title IX lawsuit brought against the school, and it alleges that up to eight Baylor football players drugged and raped the plaintiff in 2012. The complaint explains that the attack was photographed and videotaped and happened in connection with a football hazing program.
  • NBA ticket devaluation: A San Antonio Spurs fan has sued the Golden State Warriors and one of that team’s players, Zaza Pachulia, claiming that Pachulia’s contribution to the injury of Spurs star Kawhi Leonard “devastated the quality of the Spurs’ chances of being competitive,” thereby diminishing the value of the plaintiff’s tickets to future Spurs playoff games. Video of the play in question is available here. It shows Pachulia moving in front of Leonard, who is in the air releasing a shot, and Leonard subsequently landing on Pachulia’s foot, resulting in an exacerbation of Leonard’s ankle injury that caused him to miss the remainder of the first game and all of the second game of the NBA’s Western Conference finals. Leonard did not participate in practice yesterday, and his status for tomorrow’s game remains undetermined.
  • MLB streaming: Facebook and MLB have reached a live game streaming agreement that grants streaming rights to the social media platform for certain Friday night games. Streams will be free to users in the United States, and it appears that blackout restrictions will not be enforced, meaning fans located in the participating teams’ geographical regions should be able to watch as well. The initial deal includes twenty games, beginning with tonight’s Rockies-Reds matchup. More games may be added later. It is not clear whether this announcement has anything to do with the new lawsuit filed earlier this month by fans seeking to enforce a previous settlement agreement that required MLB to provide more live streams of in-market games by 2017, but it sure seems like it does.
  • Football jokes: An individual who posts jokes on the internet has sued Conan O’Brien, alleging that O’Brien stole a joke from him about Tom Brady winning the Super Bowl MVP award two years ago. Super Bowl MVPs apparently receive pickup trucks as prizes, and Brady, having won multiple such awards and having no use for a truck, has been giving them to a teammate he feels deserves it. Following New England’s last-second victory over Seattle in Super Bowl XLIX, Brady gave the truck to Malcolm Butler, who secured the game-winning interception. The essence of the joke was that Brady should’ve given the truck to Seahawks coach Pete Carroll, who, many thought, made a very bad play call on that play. I’m not sure what the statute of limitation is on joke-theft claims, but any joke that takes this long to explain probably isn’t worth stealing.  (It also seems kind of obvious, at least in retrospect.) A judge has ruled that the case will go before a jury, which will decide whether O’Brien infringed the individual’s copyright on that joke and two others.

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.

MLB in retrograde

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I’m not always the quickest to notice changes in my surrounding environment, including the baseball component thereof, and I’ve had a lot (of really good things) going on that have necessarily kept me from fully jumping into the still-young MLB season thus far. Last night, I had a little window, though, so I dialed up the Tigers and Rays on MLB.tv, only to be met with a video-streaming brick wall. After a couple hours with tech support, I discovered that MLB Advanced Media (“MLBAM,” which produces MLB.tv) had discontinued service to the device model– a Lenovo tablet running Android– I’d purchased last year for the sole purpose of running MLB.tv. I have cancelled my subscription and demanded a refund.   Continue reading

Sports Law Roundup – 2/17/2017

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:

  • Baseball human trafficking: The federal criminal trial began this week in Miami in a case in which an agent and trainer were indicted for their alleged roles in a smuggling network designed to move baseball prospects from Cuba into the MLB system.
  • Boxing non-fight fight: Boxer Alexander Povetkin sued fellow heavyweight Deontay Wilder after the latter withdrew from the pair’s scheduled fight last May following the former’s positive test for meldonium, the same banned substance for which Maria Sharapova was banned from tennis competition. This week, a jury returned a verdict in Wilder’s favor, but Povetkin’s attorney wants to keep fighting, alleging that Wilder’s lawyer engaged in “gross and extensive misconduct” during the litigation and implying that he would seek a mistrial.
  • NFL turf: In what the Houston Texans are calling “a case of first impression,” former NFL linebacker Demeco Ryans is suing the team for damages arising out of an alleged career-ending, noncontact Achilles tendon injury Ryans says he suffered when he landed on a seam in the turf while playing in a game against the Texans as a member of the Philadelphia Eagles. Ryans is seeking $10 million, but the Texans say the court should dismiss the case because the NFL collective bargaining agreement preempts his claims. Ryans is hoping to avoid CBA preemption by relying on a prior case involving Reggie Bush, in which Bush injured himself after running out of bounds and slipping on a concrete surface surrounding the field during a game in St. Louis. In Bush’s case, the court ruled that the CBA did not apply, since the injury happened outside the field of play. Ryans’ lawsuit, the Texans highlight, deals with the in-bounds playing surface itself, which, the team argues, is a critical distinction that renders the Bush case inapplicable.
  • Lance Armstrong fraud: A False Claims Act lawsuit against Lance Armstrong will proceed after a judge’s ruling on various motions this week. The case involves allegations that Armstrong, while lying about his doping practices, received millions of dollars from the federal government in connection with his cycling team’s sponsorship by the U.S. Postal Service. Although the government’s case can go forward, Armstrong’s side will be able to argue in mitigation that the government’s benefit from the sponsorship reduces the amount of financial harm it actually suffered.
  • Student-athlete scholarships: Last week, we mentioned a settlement agreement under which the NCAA will pay an average of approximately $7,000 to current and former football and men’s and women’s basketball players who played a sport for four years and were affected by alleged athletic scholarship caps. Now, one of the plaintiffs, former USC linebacker Lamar Dawson, has objected to the settlement, which requires court approval before it’s finalized. Dawson’s concern is that the settlement includes a release of certain labor law claims that were not litigated in that particular case and which he is pursuing separately in a wage-and-hour lawsuit against the NCAA.
  • NBA fan app: A court partially dismissed a fan’s lawsuit against the Golden State Warriors, ruling that, although the fan had alleged facts sufficient to show that she had suffered an actual injury as a result of the team’s smartphone app’s alleged secret recording and capturing of her private communications, she had not stated a claim for relief under the federal Wiretap Act because she had not shown how the team intercepted and used her communications. The judge is allowing the fan the opportunity to amend her complaint.
  • Tennis commentator: After ESPN fired him in connection with an on-air remark about Venus Williams during this year’s Australian Open broadcast, Doug Adler, who worked for the network for nearly a decade, has filed a wrongful-termination lawsuit against his former employer, alleging that he was dismissed for saying something he never said. While some heard Adler use the word “gorilla” in reference to Williams, he maintains that he used the word “guerrilla” in describing her approach during the match he was broadcasting. Thanks to the magic of the internet, you can render your own judgment after viewing the clip here.
  • Penn State child abuse: Earlier this month, a court ruled that three former Penn State University administrators will face criminal child endangerment charges stemming from the Jerry Sandusky sexual assault scandal inside the university’s football program. The trial is supposed to begin next month, but the three defendants are attempting an immediate appeal of the ruling that they must face trial, arguing that a two-year statute of limitations bars the charges, and that Pennsylvania’s child-endangerment laws don’t apply to officials in their positions. In other news, Sandusky’s son, Jeff, has himself been charged with sexually abusing a child.

Sports court is in recess.

What does Adam Schefter’s publication of Jason Pierre-Paul’s medical records mean for the future of athlete health information?

In the context of yesterday’s Jason Pierre-Paul fireworks/amputation news, my latest post for TechGraphs asks whether the increasing use of wearable sports technology could have negative consequences for athletes, and, further, whether athletes may be effectively powerless to avoid those consequences.

The full post is available here.