Welcome to the Symmes & Hsu Law Blog. This is an interactive blog that details current events in sports, entertainment and gambling law as well as discusses legal issues and projects that are currently being undertaken by attorneys Richard Symmes and Jay Hsu. Feel free to leave a comment and weigh in on any blog entries.
July 5, 2009
Supreme Court to Decide Whether the NFL Licensing Agreement Violates Antitrust Laws
The Supreme Court of the United States has decided to take on the case of American Needle v. National Football League which is scheduled to be heard later this year or in early 2010. http://seattletimes.nwsource.com/html/politics/2009391296_apussupremecourtnfl.html
The case will have a significant impact on all sports leagues and will determine whether the NFL is acting as a single entity or 32 different businesses when negotiating licensing agreements or other contracts on behalf of NFL franchises. The case arose after the NFL signed an exclusive apparel contract to Reebok International Ltd in 2001. American Needle was one of many firms who manufactured head gear for some NFL teams prior to 2001, and they argue that the the NFL is breaching antitrust laws by dealing with only one company in outfitting teams. The NFL seeks to end antitrust law suites against them in the future by arguing the NFL is acting as a single entity when enterting into contracts on behalf of NFL franchises.
This case will have a signifacant impact on all sports leagues going forward. If the NFL wins, it will not have to fear being suied for antitrust lawsuites in the future which could significantly impact how all sports leagues conduct business.
June 20, 2009
So How Much Money is a Song Worth Anyways?
Jammie Thomas-Rasset
A jury last week determined the decade old question of just how much money a song is worth if it is illegally downloaded. The jury’s answer: $80,000 per song. Jammie Thomas-Rasset was accussed of illegally downloading 1,700 songs through the file sharing program Kazaa, although she was only prosecuted by the Recording Association of America (RIAA) for illegally downloading 24 songs. Thomas-Rasset alleged that other people in her family may have been responsible for the downloads, she replaced her hard drive because it was broken and not because of illegal downloads that would have been found on it, and that she never received any sort of cease and desist orders despite the plaintiffs producing such evidence that such messages had been delivered. http://technology.timesonline.co.uk/tol/news/tech_and_web/article6534542.ece
The RIAA said that they tried to settle the case with Thomas-Rasset for a sum of $3,000-$5000 but she refused to settle. Thomas-Rasset was the first person to refuse to pay a fine and challenge the RIAA in court. The RIAA, however is still willing to settle the case despite winning a $1.92 Million verdict.
The RIAA is taking the high road on this case and doesn’t want to alienate music fans. By settling the case for a small sum, the RIAA will deter people from infringing on music, but not alienate fans at the same time by looking like some kind of ogre. The RIAA said they are moving away from suing individuals for infringment and are trying to work out arrangement with internet service providers to take action against infringers.
Ms. Thomas-Rasset was extremely ignorant and misinformed by her lawyers that she had any chance of winning this case. The evidence was too concrete and stacked against her from the beginning. When a case can be settled for a couple thousand versus having to potentially pay millions in damages and lawyer fees, it doesn’t make any sense to try the case. This is why most rational people settle their infringement cases and move on with their lives.
For a play by play analysis of how the trial went down, check out: http://arstechnica.com/tech-policy/news/2009/06/jury-selected-in-thomas-retrial-shockingly-law-abiding.ars
June 14, 2009
Cardinals Manager Tony La Russa takes Twitter to Court, Will Probably Lose
Tony La Russa
The name, image, and likeness of a celebrity or sports figure is viewed by the courts to be the intellectual property of that particular individual. With the creation of Twitter, Facebook and other social networking sites, individual’s intellectual property in their names have the possability of being infringed upon in a new medium. Tony La Russa, the St. Louis Cardinals manager, is the first well known celebrity or sports figure to sue Twitter for the actions of an individual who used a name or likeness that didn’t belong to them on a Twitter page. http://www.law.com/jsp/law/careercenter/lawArticleCareerCenter.jsp?id=1202431321477&rss=careercenter
La Russa alleges that an unknown person had been tastelessly using his name and image, tweeting from an account named “TonyLaRussa.” La Russa’s suit claims that the impersonator is ruining his reputation among other things. In order to win a case for trademark infringement La Russa would have to prove that the average viewer of the fake Twitter page would confuse the postings as being those of the actual La Russa. Therefore, because of the nature of the posts (making fun of his drunk driving, and a Cardinals pitcher who had died earlier) it is unlikely that the average person would be confused that the actual La Russa made the offensive “tweets.”
La Russa could have also brought some torts claims against the individual posters who made the tweets for misappropriation of his name and likeness and being portrayed in a false light. The false light claim would have the best chance to succeed as he would have to prove (1) publication, (2) of views he doesn’t believe, (3) which are objectionable to reasonable person. Misappropriation of name or likeness requires a person to use another’s name or image for profit which did not happen in this case. The outcome of a suit of this type would probably be up to a jury to decide.
Celebrities and athletes should be careful in suing their own fans and those that actually follow their careers, especially if any damage is minimal as it is in this case. Suing fans of the game, could cause a backlash and project a negative image upon a person or sport. La Russa should have accepted that Twitter agreed to remove the page from the site and move on with his life. This is a frivolous claim that he will probably lose.
UPDATE 7/7/09: La Russa pulls Twitter suit – http://www.law.com/jsp/article.jsp?id=1202432045385&rss=newswire
May 17, 2009
Redskins Win Right to Keep Their Nickname…..For Now
The NFL’s Washington Redskins have won another legal decision against a group of Native Americans who claim that the team’s nickname “Redskins” is racially offensive. http://sportsillustrated.cnn.com/2009/football/nfl/05/15/redskins.ap/index.html
The battle between the Native Americans and the NFL franchise for the right to use the “Redskins” has been going on for over 17 years. The attorneys for the Redskins based their case on trademark law, claiming that if the team lost to their right to use the nickname, the organization would lose millions that have been spent on the Redskins brand. The Redskins trademark was first registered and used in commerce in 1967. The Native Americans challenging the trademark, first challenged the mark in 1992, 25 years after it was first used in commerce and the court ruled that the Native Americans waited too long to challenge the mark.
Another group of Native Americans plan on challenging the mark and will try to get the case challenged on its merits, that the term “Redskins” is racially disparaging and scandalous. The Native Americans plan on challenging the mark under under section 2(a) of the Lanham Act which states that “no trademark shall be refused unless it “consists or comprises of immoral, deceptive, or scandalous matter.” To determine whether a mark is disparaging the court must look at (1) the likely meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the services identified in the registrations and (2) whether that meaning may be disparaging. To determine whether a mark is scandalous the court will look at (1) the view of the general public and (2) in the context of contemporary attitudes.
As the court ruled in Harjo v. Pro Football Inc. (1999), I believe a court would find that disparagement could be proven, but not that the mark is scandalous. The Scandalous test cannot be met as the general public views the Redskins mark in association with a proud NFL franchise in which the players are akin to warriors. Some Native Americans have even been quoted as saying that they don’t mind the Redskins mark as long as the team depicts Native Americans in a favorable manner. Disparagement could be proven under the test stated above, as it is possible that the mark is disparaging.
Even if it can be proven that the trademark is disparaging, it will be extremely difficult for anybody to challenge the mark at this point as the mark should have been challenged when it was first approved by the U.S. Patent and Trademark office in 1967. The mark is now accepted by the general public and a multi-million dollar brand. The courts are hesitant to take away a mark if those offended by the mark did not challenge the mark at an appropriate time when they had the chance.
May 9, 2009
New Legislation May Lift Ban on Using American Credit Cards for Online Gambling
Barney Frank
Currently in the United States it is illegal for Americans to use credit cards to place bets of any kind online. This rule was enacted in 2006 under the Uniform Internet Gambling Enforcement Act (UIGEA). Representative Barney Frank (D-Mass.) seeks to repeal the UIGEA and make it possible once again for American banks to allow their customers to place bets online. http://www.creditcards.com/credit-card-news/frank-bill-authorize-online-gambling-1282.php.
Although a person may get around the UIGEA regulations by using foreign companies to place bets; repealing the UIGEA is a much simpler alternative. Frank argues that the government should not interfere with a persons liberty interest to make online bets. The new legislation is called the Internet Gambling Regulation Consumer Protection and Enforcement Act and establishes framework that would allow online operators to obtain licenses to accept bets from U.S. residents. In order for the operators to obtain a license, they would have to meet strict requirements and pass background checks.
Allowing Americans to place wagers online while doing it in a matter that protects the consumer and requires background checks of online operators can only be beneficial. The online gambling business currently generates $10-$12 Billion a year, and the U.S. is being cut out of the action. This new law if enacted would be good for the U.S. economy and good for the American entrepreneurs while protecting consumers who are using foreign websites to meet thier gambling needs.
May 3, 2009
Philadelphia Phillies Pitcher Blames Supplement Maker for Suspension and Files Suit
Philadelphia Phillies pitcher J.C. Romero was suspended for the first 50 games of this season after testing positive for steroids last year. Romero filed a lawsuit against nutritional supplement manufacturer ErgoPharm, Inc. for manufacturing the supplement 6-OXO and 6OXO Extreme without indicating on the label that the supplement included Androstenedione (”Andro”), a MLB banned substance. http://sports.espn.go.com/mlb/news/story?id=4105353
Patrick Arnold, a chemist who runs ErgoPharm and has a history working with steroids, put out a statement claiming that there is a warning label on the 6-OXO supplements which states “Use of this product may be banned by some athletic or government associations.”
In order to have a product liability claim for having an inadequate warning label, a plaintiff must prove that the average person looking at the warning label would find that the label failed to warn of possible dangers or cause consumers to not understand, be confused by, or find the warning label is not properly visible. The outcome of this case is extremely hard to predict as the case will probably be tried in front of a jury. Juries can be extremely unpredictable and nothing is ever guaranteed no matter how good a case a party may have. In any event, if Romero’s lawyers can prove that the warning was inadequate, he will probably be entitled to damages in the form of lost salary due to the suspension and possibly punitive damages to make an example of the company.
Athletes use supplements at their own risk, but it should be the manufacturers who are held accountable if they are aware of potentially banned substances being included in their supplements and not giving proper warnings. In order to help athletes make better choices when choosing supplements to put in their body, major league sports should be required to provide a list of approved substances if they don’t do it already. Thus, if a player tests positive from the use of an approved supplement they shouldn’t get in trouble and risk losing salary due to unjustified suspensions.
April 26, 2009
The Little Guy Takes on the Yankees in a Constitutional Lawsuit
The century-long rivalry between the Yankees and the Boston Red Sox has carried over to the court. Only this time, the Evil Empire has been sued by “the little guy”—a Red Sox fan. What else makes for a better headline?
On April 16, 2009, the New York Civil Liberties Union filed a complaint against the Yankees and the NYPD on behalf of Mr. Bradford Campeau-Laurion, a 30-year old resident of Astoria, Queens, who was allegedly forcibly ejected by NYPD officers during the seventh inning stretch when the song “God Bless America” was played.
According to the original Complaint, April 26, 2008 was the day Mr. Bradford Campeau-Laurion’s would attend a game at the old Yankees stadium for the last time. After pouring a few beers down the hatch, he got up to use the restroom but was stopped by a few NYPD officers, who tried to restrict him from moving while the song “God Bless America” was played. He declined to obey their request; they threw him out; he asserted that his First Amendment rights, among others, have been violated; and he sued.
What were the NYPD officers doing serving bouncer function during a baseball game? The Complaint points out that the NYPD has a “Paid Detail” program, which allows private business entities to hire fully uniformed police officers to “appear to be on duty” so that they can maintain order and security inside the Yankees stadium. In the case at hand, the NYPD officers working under the program were responsible for enforcing the “no-movement” policy, which seeks to restrict fan movement during the playing of “God Bless America.” The policy was approved by George Steinbrenner and is supposed to express patriotism and honor the nation.
The central issue here is whether the plaintiff can establish the Yankees as a state actor. Generally, the constitutional guarantee under the First Amendment is applicable only when state actors – federal, state or municipal governments alike — are involved. In other words, the Constitution protects individuals from constitutional violations by governments but not by private actors.
However, there are always exceptions. A private actor’s conduct will be deemed state action under four legal tests the courts have developed. These legal tests are: (1) symbiotic relationship; (2) entwinement; (3) exclusive public function; and (4) state compulsion. If the Plaintiff cannot establish the Yankees as a state actor under these tests, then the Yankees could easily argue that the fan merely had a revocable license or privilege granted by his license, but not an inherent right, to be on Yankees property. Or alternatively, the Yankees could argue that the fan has failed to perform his contractual obligation to follow the no-movement policy during the seventh inning stretch when the song “God Bless America” was played.
The Complaint goes into details trying to establish a “symbiotic relationship” between the government and the Yankees based on the old stadium being leased by New York City to the Yankees on favorable terms, and both parties received financial benefits from their joint use of the stadium. Further, there appears, arguably, a certain level of entwinement between the City and the Yankees, as NYPD officers were hired to “appear to be on duty” and to enforce the no-movement policy instituted by the Yankees. According to the Complaint, a NYPD document states that officers should be “working directly for the vendor (the Yankees).” In deciding whether entwinement exists, the court will take all of these relevant facts into consideration.
This is an excellent case for students of constitutional law and sports law, but one more complex than it seems. It would be interesting to see how the court rules.
Meanwhile, George Steinbrenner probably couldn’t care less about the little guy, or a Boston fan. He is more worried about how much more money will be spent to win just one game.
Click here for the story: http://www.law.com/jsp/article.jsp?id=1202429939252&rss=newswire
April 12, 2009
How Facebook and Twitter are Affecting Major Sports and Individual’s First Amendment Rights
Social networking sites such as Facebook and Twitter have made a profound impact on the world of sports, especially in the past few months. Some leagues and sports teams have taken the stance that postings should be censored or eliminated, which could violate an individual’s First Amendment freedom of speech rights.
Twitter is a social networking site in which users post real time updates in 140 characters or less for their followers to read. Coincidentally many athletes and individuals involved in the sports world have decided to become involved in the Twitter revolution and publish their thoughts online for everybody to see. The phenomenon has affected the NBA the most. When Milwaukee Bucks forward Charlie Villanueva decided to Tweet at halftime during a game last month, he was heavily criticized by his head coach Scott Skiles who has since banned Twitter from the locker room. http://nba.fanhouse.com/2009/03/17/skiles-no-tweeting-in-the-locker-room/ The coach’s argument was that tweeting during half time gives the appearance that his team is not focused. Other popular NBA personalities such as Shaquille O’Neal and Dallas Mavericks owner Mark Cuban have climbed aboard the Twitter bandwagon and post about such things as new endorsement deals to bad officiating. Cuban was fined 25K when he criticized the officiating in a game last month. http://nba.fanhouse.com/2009/03/28/mark-cuban-rips-refs-on-twitter/
Facebook is a hugely popular social networking site in which users can reconnect with old friends, share pictures, and also start and join fan groups such as the group “John Wall Please come to NC State!!!!” There are several groups on Facebook that attempt to encourage a recruit to attend a particular school. However the NCAA has taken objection to fan groups on Facebook that could influence a student athlete to choose one school over another and believes that the groups violate NCAA rules. The NCAA has attempted to take action against individuals who start groups such as the one mentioned above. Such action could include refusing to sell tickets to individuals who start such groups and dissociation from an athletic program. http://seattletimes.nwsource.com/html/collegesports/2009021968_facebook11.html
This begs the question, should the NBA, the NCAA and other sports governing bodies be able to limit an individual’s First Amendment freedom of speech rights.
The NBA is a private entity who employs and regulates individuals who must abide by the NBA’s collective bargaining agreement and team rules. As a private entity with their own set of rules and regulations, the organization may limit what employees and those associated with the league may say. The team’s are who is paying an NBA players salary and if the players don’t like the rules, then they can play somewhere else. If the NBA felt that Twitter was a problem, they could add a rule banning it from locker rooms and limit the content to non NBA activities if they felt that the tweeting was getting out of hand. At the moment the NBA has not indicated that they will seek to limit the use of Twitter among those associated with the NBA. In Cuban’s case, criticizing an official in any medium whether online or not when you are an NBA owner is grounds for a fine.
The NCAA is also a private entity, however many universities are public and cannot limit the speech of individuals as long as the speech does not fall into a regulated category such as being obscene or inciting violence. A University may always refuse to sell tickets to whomever they please or choose not to let an individual participate in University sponsored events. However any other action taken that could limit speech would not be allowed. Therefore if an individual seeks to start a Facebook group and has no intention of attending a game or interacting with a University they have little to worry about in terms of getting in any serious trouble as they are not governed by the NCAA. However the NCAA could decide to punish schools who allow such groups to be formed. I have trouble seeing how these types of groups will be regulated in the future unless the NCAA forces Facebook to restrict such groups by threatening to pull all NCAA related content from Facebook, such as March Madness Brackets or other fan groups.
With Twitter and Facebook still in their infancy it will be interesting to see how they evolve and continue to influence the world of sports and entertainment.
March 26, 2009
New York Jets Fans’ Suit Thrown Out of Federal Court
Carl Mayer
Many NFL football fans have been disappointed in their team’s performance at one point or another. That doesn’t mean that said fans should be able to go out and sue their team or other teams for the conduct of a teams personnel or coaching staff for actions not causing actual damages to fans. One New York Jets Fan thought differently. Carl Mayer, a Jets season ticket holder and solo attorney from Princeton N.J. thought it would be a good idea to sue New England Patriots head coach Bill Belichick and the NFL over the infamous taping of Jets signals by the Patriots back on September 9, 2007.http://www.law.com/jsp/article.jsp?id=1202429353302&rss=newswire
As a young lawyer I thought to myself what kind of lawyer would even consider taking a case that seems impossible to win. For a plaintiff to win a case, they must suffer some sort of damages. I don’t see how Mayer could have incurred any kind of damages simply from being a fan of a NFL team that was cheated against. Luckily for Mayer, he is a solo attorney himself and can incur the financial responsibility of bringing a case in federal court himself. He also cannot get anybody else in trouble for bringing a frivolous claim in which the courts may impose sanctions against an attorney if they deem proper.
Mayer claimed the videotaping “violated the contractual expectations and rights of New York Jets ticket-holders who fully anticipated and contracted for a ticket to an honest match played in compliance with all laws, regulations and NFL rules.” Mayer also claimed tortuous interference with contractual relations and violations of the state Consumer Fraud Act, Deceptive Business Practices Act and Racketeer Influenced and Corrupt Organizations Act. Mayer sought statutory, punitive and compensatory damages, restitution, equitable relief and attorneys’ fees on behalf of fellow season ticket-holders.
It is not the best time to be a lawyer these days with the economy in shambles, but Mr. Mayer must have had way too much time on his hands. The costs of bringing such a case and lost income due to time spent on this case far exceeds any damages (the costs of season tickets) that he could expect to receive. The Federal Court ruled that the seller of tickets to an entertainment event “does not contract to provide the spectacle, only to license the plaintiff to enter and view whatever event transpires.”
If this suit were allowed to continue fans would be suing their teams for every bone head personnel or coaching mistake that occurred on a field or court in any sport. The legal Court dockets are backed up with cases that actually matter; I really hope that Mr. Mayer does not appeal this case. If a fan is not interested in a team or league don’t go to the games or watch on T.V. That is a much easier and economical solution to filing a federal lawsuit.
