Category Archives: Civil Lawsuits

Does A Federal Lawsuit Pave The Best Path For Alex Rodriguez To Get Back Onto The Baseball Diamond?

After an arbitration panel upheld 162 games of a 211-game suspension previously levied by MLB, Alex Rodriguez sued MLB, the Office of the Commissioner of Baseball and MLBPA.  In the lawsuit brought in federal court, Rodriguez raises three claims:  breach of the duty of fair representation by MLBPA, breach of the collective bargaining agreements by MLB and vacatur of the arbitration award.  Overall, Rodriguez seeks the court to overturn the arbitration decision and award whatever other relief is just and equitable.

In the wake of MLB’s investigation into him for alleged illegal performance enhancing substance use, Rodriguez has levied most of his disfavor of the process against MLB.  Rodriguez and his legal team have publicly challenged MLB’s suspension of Rodriguez and its subsequent legal maneuvering during the arbitration process.  Surprisingly, though, in his lawsuit, Rodriguez takes a bigger swipe at a different entity: MLBPA.

The bulk of the 77-page complaint filed by Rodriguez takes aim at what he alleges to have been the union’s breach of its duty of fair representation during the grievance process.  According to Rodriguez, MLBPA refused to act upon his request that it object to MLB’s alleged breaches of the Joint Drug Agreement and Basic Agreement.  Additionally, Rodriguez requested MLBPA to intervene in and seek dismissal of MLB’s state court proceeding in Florida against Tony Bosch, the founder of Biogenesis.  According to the lawsuit, MLBPA refused to do this.  Furthermore, Rodriguez alleges that MLBPA made derogatory public statements about him and points to comments made publicly by former MLBPA executive director, Michael Weiner, in this regard.  Due to these issues, Rodriguez sought to select the arbitrator of his choosing to hear his grievance.  MLBPA denied him this request and instead selected an arbitrator of its choosing–as is normal procedure–for the three-member panel.  In his lawsuit, Rodriguez objects to this.

Under federal law, a labor union–like MLBPA–owes its members certain duties.  One of those duties is the duty of fair representation.  Under the duty of fair representation, MLBPA is required to represent the interests of all of its members without discrimination.  To show that a union acted discriminatorily, more than negligence or ineptitude in its representation of a member must be shown.  Rather, the totality of the circumstances must show that MLBPA violated its duty of fair representation by arbitrarily or in bad faith discriminating against Rodriguez in the representation of him throughout the grievance process.

In his lawsuit, Rodriguez raises allegations in an attempt to argue that MLBPA acted discriminatorily in its representation of him throughout the grievance process.  Overall, Rodriguez’s argument is that MLBPA did not want to risk its reputation and good favor with MLB and the arbitration panel in fighting Rodriguez’s case.  Rodriguez points to alleged incidences of this conduct as behavior which amounted to the requisite discriminatory conduct to be violative of the duty of fair representation.

Given the claims Rodriguez’s lawsuit brings and the goals of the lawsuit, the question becomes, did Rodriguez bring his claims in the right forum?  While Rodriguez names as defendants MLB, MLBPA and the Office of the Commissioner of Baseball, a review and understanding of applicable precedent demonstrates that the party against whom he has the strongest claim is MLBPA.  This is due to the fact that in labor disputes, courts rarely intervene and/or find in the favor of a plaintiff unless an employer (here, MLB and the Officer of the Commissioner of Baseball) act arbitrarily or capriciously or in disregard of their own rules or the law.  Although Rodriguez has asserted that MLB and the Office of the Commissioner of Baseball have acted in disregard of the Joint Drug Agreement and Basic Agreement, given the flexibilities present in those documents, his arguments against these parties are arguably his weakest.  Negating the argument that MLB and the Officer of the Commissioner of Baseball acted arbitrarily or capriciously is MLB’s allegedly uncovering of significant evidence that Rodriguez allegedly used performance enhancing substances.  The evidence MLB allegedly holds and legal precedent make it unlikely that a court will find against MLB and the Office of the Commissioner of Baseball.

That then, leaves the MLBPA.  Given the duty of fair representation, it appears that the strongest claims in Rodriguez’s lawsuit are those raised against MLBPA.  As such, was a federal lawsuit the best route for Rodriguez to bring these claims?  It turns out that another avenue may have presented a more timely disposition of Rodriguez’s claims.  That avenue is an unfair labor practice filing alleging that MLBPA breached its duty of fair representation by discriminating against Rodriguez throughout his grievance against MLB.

Due to Rodriguez’s main goal in bringing his lawsuit appearing to be returning to the baseball diamond, time is arguably of the essence when it comes to the resolution of his claims.  Given the motions and discovery processes in federal court, it could easily be over a year before Rodriguez’s lawsuit is resolved.  An unfair labor practice, however, could see disposition in a more timely manner.  The issue with this route, though, is the remedies available to Rodriguez.  The filing an unfair labor practice charge against MLBPA would unlikely bring about the result Rodriguez is seeking of having his MLB suspension shorted so that he can return to play this year.

While the legal minutiae is tough to sort through in this case, one thing is certain:  The road for Rodriguez back to the baseball diamond is one that will span over a year.  Whether serving a suspension or battling in court, this matter is not one that will disappear soon.

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Filed under Civil Lawsuits, MLB, MLBPA

Jerry Jones’ 1995 Risk Allows The Dallas Cowboys To Become Leaders In The Growing Women’s Sports Apparel Market

Risk taking is necessary for a business to grow.  For Dallas Cowboys owner Jerry Jones, a risk that he took in 1995 has had a significant payoff in his team’s ability to enter into the growing business of women’s sports apparel.

Seven years before Jones became the Cowboys’ owner, NFL owners voted to create the NFL Trust.  This resulted in each team transferring the exclusive right to use its club marks for commercial purposes to the NFL Trust.  The NFL Trust then entered into license agreements with NFL Properties to provide NFL Properties the exclusive right to license the trust’s property.  The motivation behind creating the NFL Trust was the thought that when placed into the market together, the value of all NFL team marks would be higher than if teams attempted to negotiate licensing deals on their own.

In 1993, NFL owners began capitalizing upon their decision to create the NFL Trust.  That year, Coca-Cola signed a five-year contract worth a reported $250 million to become the official soft-drink of the NFL.  In 1995, Visa USA would sign the then second-largest partnership agreement with the NFL, a five-year deal worth $50 million, to become the NFL’s exclusive payment card sponsor.

In the background of these deals, though, was Jones.  Not a team owner when NFL owners voted to create the NFL Trust, Jones realized that he and the Cowboys were in a situation unique from most other NFL teams:  The Cowboys didn’t need a stable of teams to secure lucrative endorsement deals.

With the business savvy cured from his education, which includes a Master’s degree in business, and successfully running his own Jones Oil and Land Lease, Jones set out to capitalize upon the brand recognized as “America’s Team.”  The owner of not only the Dallas Cowboys, but also their stadium, Texas Stadium Corporation, Jones entered into multi-million dollar sponsorship agreements with American Express, Pepsi and Nike through Texas Stadium Corporation.

While arguably not directly contravening the terms of the NFL Trust, since only teams and not stadiums were part of the trust, Jones nonetheless secured the ire of the NFL.  At an owners meeting in Atlanta in 1995, Jones was served with a $300 million lawsuit filed by NFL Properties.  The lawsuit raised claims including violations of the Lanham Act, breach of contract, breach of the implied covenant of good faith, unjust enrichment and tortious interference with contractual rights.

In response to the lawsuit, Jones and the Cowboys filed a motion to dismiss.  This motion was granted in part.  Then, Jones took a big risk:  He filed a $750 million antitrust lawsuit against the league.  It was this legal maneuver that put the Cowboys on the ground to becoming the most valuable NFL franchise.  In 2013, Forbes valued the team at a league-wide high of $2,300 million.

With portions of its lawsuit dismissed, Jones’ antitrust lawsuit motivated the NFL to do one thing:  Settle.  The settlement agreement Jones reached with the NFL allowed Texas Stadium Corporation to maintain its contracts with American Express, Pepsi and Nike.  It also provided every other NFL team the opportunity to sign their own stadium sponsorship agreements.  Arguably, though, Jones was the big winner of the settlement agreement, as he also retained the right for the Cowboys to enter into their own licensing agreements.  It is this right that allows the Cowboys to create merchandise apart from the NFL’s licensing agreements.

Today, the Dallas Cowboys are using the footing they gained through the contentious litigation to further build the value of their brand.  With the NFL identifying 44-percent of its fans as being female, in recent years, the league has taken a proactive approach to providing women with apparel choices that better suit their fashion sense.  Leading the league in this effort, are the Dallas Cowboys.

In recent years, the Cowboys have utilized their licensing capabilities to enter into team-exclusive partnership agreements with women’s apparel designers, including PINK by Victoria’s Secret and Peace Love World.  The partnership with PINK was born six years ago. According to Cowboys executive vice president and chief brand officer, Charlotte Jones Anderson, “Sales of PINK merchandise in our pro shops was so successful, that PINK wanted to create a stand-alone store in our stadium.  We are the only team to have our own stand-alone store and the first team to enter into a licensing agreement with PINK to produce Cowboys-only apparel.”

Seeing how female fans flocked to the team’s PINK merchandise, Jones Anderson set out to find other licensees to partner with to create Cowboys women’s apparel lines.  ”Seeing how successful our PINK line was really inspired us to go out again and find another partner to do something similar,” Jones Anderson said.  Earlier this year, the Cowboys partnered with Peace Love World to create a line of women’s apparel featuring tops, tanks, hoodies and pants with phrases including, “I Love Sundays” and “I am Dallas.”

For Peace Love World founder Alina Villasante, the growing trend of teams and leagues investing in women’s apparel opportunities has been good for business.  Launched in 2007, Peace Love World was born as a brand focused upon “spreading peace and love all over the world,” according to Villasante.  In wasn’t until 2013 when that the spreading of that message reached the sports space.

During the Miami Heat’s 2013 NBA Finals run, Villasante, a Miami resident, was contacted by Heat executives to begin producing women’s apparel for fans.  Through promotion solely on social media streams, Villasante’s creations, featuring phrases like, “I am Champion” and “I am Miami,” sold out in seven minutes.  ”The clothes got to the AmericanAirlines Arena and within seven minutes, they were sold out.  The team called me and told me to take the pictures of the items off of Instagram, because they had already sold out.  It was a great introduction for what I was going to be facing in the future in partnering with sports teams,” Villasante recalled.

The taste of success in the sports marketplace that Peace Love World experienced during the NBA Finals allowed Villasante to recognize that sports could provide a unique opportunity for her company to grow.  ”Women have been hungry to show up to games looking like we are ready to go out with our friends and to be very fashionable.  I wanted to provide women with clothing that gives them the feelings of femininity and loyalty, while also looking like a sports fan,” Villasante said.

Seeing the success that Villasante and Peace Love World achieved in their partnership with the Miami Heat, the Cowboys contacted her to build a line for the team.  Throughout the season, Peace Love World merchandise has been promoted not only in the Cowboys’ team store and online storefront, but in pop-up shops and at an NFL style lounge event.  For someone whose business plan did not initially include entering the sports marketplace, Villasante calls her sports partnerships with the Heat and Cowboys “the best thing that’s happened to me in the four-and-a-half years since I’ve launched Peace Love World.”

Jones Anderson credits the Cowboys’ capabilities to license their own merchandise for providing the team with an opportunity to take risks in the women’s apparel arena.  ”We are the only team that can produce, license and sell our own merchandise as a complete business,” Jones Anderson noted.  This ability has allowed the Cowboys to test the marketplace in ways that other teams are unable to.  ”For the longest time, people in retail believed that jerseys, hats and plain t-shirts were driving sales in the industry.  Taking a step into a market that is more luxury-oriented, like women’s apparel, was thought to have more risk behind it.  People didn’t have the cojones to jump in and try something if it wasn’t going to work,” Jones Anderson said.

With their own merchandising entity, Dallas Cowboys Merchandising, Ltd., the Cowboys had the flexibility to take risks when entering the women’s apparel marketplace.  ”For us, since we are able to do it just for us, we can run a test to see if there’s real traction in the brand.  It’s been incredible.  Our fans have been very receptive and they love that we are thinking of them differently,” Jones Anderson said.

Like business, success in fashion involves taking risks.  With the NFL finding that its women’s apparel sales have tripled in recent years, taking risks to meet the wants of fashion-forward female sports fans is likely to pay off for teams like the Cowboys and women’s sports apparel creators like Peace Love World.

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Filed under Civil Lawsuits, NFL, Sports Business, Trademark Law

Inside The Legal Fight To Change The Washington Redskins’ Name

A battle of public opinion is being waged with respect to whether the Washington Redskins should change their name.  Members of the Oneida Indian Nation are airing ads in strategic NFL markets asking that the Redskins abandon their team name, which the group and other Native American groups alleges amounts to a racist slur.  In a halftime monologue during the October 13 Sunday Night Football broadcast, Bob Costas referred to the team’s name as “an insult, a slur.”  Perhaps the biggest name to raise a stake in the battle, is President Barack Obama, who recently opined, “If I were the owner of the team and I knew that the name of my team, even if they’ve had a storied history, that was offending a sizable group of people, I’d think about changing it.”

The problem, though, for Obama and those on his side of the debate, is that the owner of the Redskins, Daniel Snyder, is emphatic that he is not changing the name of his team.  Snyder arguably summed up his point best when he told USA Today earlier this year, “We will never change the name of the team.”  Snyder’s rationale for this lies in a myriad of factors.  Snyder and those who oppose the name change base their opposition largely on the history of the team’s name.  They point to this history as a sign of honor–and not disparagement–of Native Americans and the courageous nature that demarcates their history as a people.  From their perspective, it is notable that in 1933, when the Boston Braves were renamed the Redskins, the team’s head coach was a Native American.

While the trial of the court of public opinion will likely continue to play out over television as the NFL season continues, a quieter case is taking place within the legal system.  It is the outcome of this case which may play the biggest role in whether Snyder changes his team’s name.

Snyder purchased the Washington Redskins in 1999.  For a man who said he would never change the team’s name, an event that took place that same year could have caused enough of an economic burden to twist his hand into doing so.  In 1999, the Trademark Trial and Appeal Board cancelled six trademark registrations held by the Redskins.  This decision meant that the rights and benefits associated with owning these trademark were no longer afforded to the team.  From a monetary perspective, this legal decision could have cost the Redskins potentially hundreds of millions of dollars.  Losing a trademark in place for over thirty years signals the loss of the goodwill developed since the trademarks’ creation in 1967, the subsequent loss of licensing deals created around those trademarks and finally, a loss of stature in the marketplace.  At the end of the day, those factors ultimately equate to the Redskins not only losing trademark protection, but losing money.  Big money.

What caused the Redskins’ trademarks to be canceled in 1999?  The cause was a case filed by a group of Native Americans, Harjo v. Pro Football, Inc.  That case argued that the trademarks held by the Redskins were disparaging, and as such, violated Section 2 of the Lanham Act (the body of law governing trademark protection in the United States).  The plaintiffs’ arguments in theHarjo case were largely similar to the arguments being raised today in the court of public opinion:  the use of the word “Redskin” in a team name amounts to using a racial slur as a team name.

Realizing the ramifications of losing trademark protection, the Redskins appealed the Trademark Trial and Appeal Board’s decision in the Harjo case.  Through a series of appeals, a federal district court overturned the Trademark Trial and Appeal Board’s decision.  The federal district court’s basis for doing this, was based in part upon a finding that the doctrine of laches barred the plaintiffs from bringing their claim.  Further appeals were made.  Ultimately, the Supreme Court denied to hear the case.  As such, at the end of the Harjocase, the Redskins maintained their trademark protection.  The Native Americans offended by the team’s use of a word that is one of the most disparaging used against their culture faced a new uphill legal battle to change that name.

Currently, a claim similar to that raised in the Harjo case is pending before the Trademark Trial and Appeal Board.  This case, Blackhorse v. Pro-Football, Inc., has been pending since before the conclusion of the Harjo case.  Like theHarjo case, it argues that six of the Redskins’ trademarks should be cancelled, because they are disparaging.  This case was built utilizing strategy gleaned from the outcome of the Harjo case.  Yet, that strategy does not mean that theBlackhorse legal team faces a clear and easy path to successfully arguing for the cancellation of the Redskins’ trademarks.

The uphill battle faced by Native Americans wishing for the Redskins to change their team name was paved by the federal district court who overturned the Trademark Trial and Appeal Board’s decision in Harjo.  First, the Harjodistrict court’s reliance upon the doctrine of laches arguably presents difficulties for the group.  Laches is an equitable legal defense, under which claims can be barred if a person waits too long to bring them.  In the Harjolitigation, the district court found that the plaintiffs’ claims were barred using laches, because the Redskins were awarded their first trademark in 1967.  TheHarjo plaintiffs, however, didn’t bring their case until 1992–some 25 years after the Redskins’ first trademark was approved.

The time clock for the doctrine of laches begins ticking when a plaintiff reaches the age of majority.  In the Harjo case, the youngest plaintiff was only one-year-old in 1967, when the Redskins obtained their first trademark.  However, on remand, the district court found that even this plaintiff’s case violated the doctrine of laches, since he waited eight years after reaching the age of majority to bring his case.

Seeing how the Harjo court ruled when it came to laches, the biggest difference between the the Harjo case and the Blackhorse case, is the age of the plaintiffs.  The plaintiffs in the Blackhorse case were between the ages of 18-and-24 when the case was filed.  It is expected that their attorneys will argue that the case this time around is not barred by laches, since the plaintiffs brought their case within six years of reaching the age of majority.

The question, though, is whether this legal maneuver is enough to make a court find in favor of the Blackhorse plaintiffs and cancel the Redskins’ trademarks?  Looking at the Harjo case, it does not appear so.  Rather, it is only the beginning of the battle.

The biggest legal hurdle that the Blackhorse plaintiffs face, is not their age.  Rather, it is showing that the Redskins’ trademarks are disparaging.  This hurdle will not be overcome by anything leaders of the Oneida Indian Nation, famous broadcasters or even the President of the United States says in 2013.  That is because the plaintiffs must prove that the trademarks were disparaging when they were granted; not whether they are considered disparaging today.

When it comes to showing that a trademark is disparaging,the plaintiffs must meet a two-part test:  (1) the likely meaning of the mark and (2) if that meaning refers to an identifiable group, that the meaning is disparaging to a substantial composite of that group.  Meeting the first part of this test is relatively simple from an evidence producing standpoint, as the the Trademark Trial and Appeal Board can only decipher the “likely meaning” of a trademark from dictionaries, encyclopedias and other reference materials.  Thus, the Blackhorse plaintiffs will point to materials of this type from when each of the trademarks was granted to argue prong one of the two-part test.

Proving the second part of the two-part test, however, may prove to be more difficult for the Blackhorse plaintiffs.  The reason this is difficult, is that the plaintiffs must show that a substantial composite of Native Americans–not in 2013, but from 1967-1990 when the trademarks were granted–found the trademarks disparaging.  The question becomes, then, how do the plaintiffs go back in time and show that a sizable enough number (although not a majority) of the Native American population felt this way?

It is unclear whether the Blackhorse plaintiffs have the substantial evidence necessary to meet the burden of proving that the Redskins’ trademarks are disparaging.  This should come as no surprise, as the district court in the Harjocase found that those plaintiffs did not have enough substantial evidence to show that then that the Redskins’ trademarks were disparaging.  Unless the attorneys for the Blackhorse plaintiffs have unearthed new evidence demonstrating that the Redskins’ trademarks were considered disparaging when they were granted, it is unlikely that the plaintiffs will succeed in this regard.

The discussion above details the tough legal fight the Blackhorse plaintiffs face in removing a word they believe to be a slur from the name of an NFL team.  Given that, one may wonder why the Blackhorse plaintiffs nonetheless choose to go forward with their cause of action.  Perhaps it is because, even if they do not win in a court of law, they will slowly but surely win their case in the court of public opinion.

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Why The Raiders May Hold The Keys To The A’s Leaving Oakland

Earlier today, the NFL sent out a press release notifying members of the media that the October 6 San Diego Chargers versus Oakland Raiders game would be postponed by seven hours and begin at 11:35 p.m. ET.  Other than the obvious–that this move may make this week five match-up the latest game in NFL history–other implications possibly arise from this move by the NFL.

As the press release continued, the reason for the game delay was made known.  The NFL wrote, “The move was made in response to today’s announcement by Major League Baseball of its ALDS schedule which has the Oakland A’s hosting a game on Saturday, October 5 at 6:07 PM (PT).  The Raiders share the O.co Coliseum with the A’s and the Coliseum requires time to convert back into a football stadium in order to host the game.”

What the NFL didn’t note in its release, is that the Raiders and the A’s are the only NFL and MLB teams respectively that share the same coliseum on a full-time basis.  What the release also didn’t note is the looming issue facing Oakland:  That one or both of its franchises may be hitting the road for new homes.

The Raiders’ current lease agreement is set to expire after the 2013 season.  To date, the Raiders have not announced where they will play beginning in 2014.  However, reports indicate that the team has expressed interest in building a new stadium on the current stadium’s site.  While this proposal is attractive to the city of Oakland, as it keeps the Raiders in town, it is problematic, as construction of a new coliseum could push the A’s out.

Like the Raiders, the A’s are in the last year of their lease with the coliseum.  It is no secret that the A’s wish to leave Oakland and relocate to San Jose.  However, territorial rights that the team previously ceded to the San Francisco Giants have prevented MLB from approving this move.  This, in turn, has resulted in litigation against MLB from parties including the city of San Jose.  Needless to say, from a legal and team perspective alike, the A’s way to San Jose is not clearly paved.

It is perhaps of no surprise that the Raiders desire to build a new stadium.  Originally opened in 1966 and most recently renovated over a decade ago in 1996, the Raiders and A’s have both recently raised concerns over the current state of the Oakland Coliseum.  The concerns were punctuated this season by sewage overflows the stadium’s visitor dugout and coaches’ bathroom.  Perhaps, though, the current state of the stadium was best described by current MLB commissioner, Bud Selig, when he referred to it as “a pit.”

The surprise, though, arguably lies in the Raiders’ willingness to rebuild on the current coliseum’s location.  In making the desire to move to San Jose known, the A’s have continuously lamented over the fact that the Oakland Coliseum is not surrounded by a vibrant downtown community.  The argument, from the A’s perspective, is that if the team played in a stadium surrounded by a downtown, ticket sales would increase, as fans would be more easily able to pop into the ballpark.

That argument aside, with the Giants’ territorial rights holding up a move to San Jose, reports indicate that the A’s have begun negotiating a new lease agreement with the Oakland Coliseum.  While some may see this move as the A’s waiving the white flag and succumbing to life in Oakland, the Raiders may slowly riding in as the A’s knight in shining armor.  The shield that the Raiders hold in this case, is that team’s desire to build a new facility on the current coliseum site.

The A’s have made it clear that they have no desire to rebuild or build a new stadium on the current coliseum site.  Thus, if the Raiders’ new stadium plan is approved the possibility exists that the A’s will be left without a place to play when construction is ongoing.  Thus, if this situation arises, might MLB be more inclined to allow the team to move to San Jose?

Who knew that the postponement of an NFL game could be the first move in a potential chain of events that may pave the way for an A’s move to San Jose?

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Filed under Arenas, Civil Lawsuits, Contracts, MLB, NFL

A Look At The NFL Concussion Litigation: Q&A With Paul Anderson – Part 2

By:  Jared Berman, Ruling Sports Intern (Twitter:  @RealSportsNLaw)

4.  Assuming a player has suffered a concussion-type injury, how can it be determined that the injury occurred during the NFL? Rather than pee-wee, high school, or college football?

The issue of causation will certainly be at the heart of the players’ case. Proving that the NFL’s wrongful conduct actually and proximately caused the players’ injuries will be difficult, but perhaps not impossible.

First, the causation chain will be driven by medical-causation experts — guided by experienced trial attorneys. If they can convince the jury that the NFL’s wrongful conduct at least contributed to the players’ injuries, then there is a likelihood of success.

Second, the plaintiffs’ lawyers will seek to apply the “multiple-causation theory.” Remember your 1L Torts class and Summers v. Tice or Landers v. E Tex. Water Disposal? This legal theory has been repeatedly and successfully applied in asbestos and other toxic torts cases.

Basically, the short-circuited, conflated, argument will be: Yes, former players were exposed to head trauma prior to entering the NFL, and perhaps other prior industries were negligent in failing to warn. But, nonetheless, the NFL is the defendant currently being sued, and it has been the “purveyor” of all things football since the inception of the game. As the industry leader, it is appropriate for the NFL to be held jointly and severally liable for substantially contributing to the players’ injuries.

No doubt, it is a legal stretch, which will be vigorously opposed by the NFL, but it’s a viable theory that may open the door to the construction of new case law.

2.     Given the NCAA and NFL’s close ties and the fact that many players’ head injuries may have been caused during their college years, should the NCAA be hailed as a co-defendant?

I think some would argue that the NCAA should also be named as a defendant in the NFL Concussion Litigation. (Applying the legal theory above may overcome this purported defect.) But, I think adding the NCAA would simply muddy the waters.

Here, the plaintiffs’ theory hinges on the NFL’s conduct as the “guardian of football.” In this role, the NFL allegedly had the capacity to force incremental change through its historical conduct. Instead of driving change, the NFL allegedly turned a blind eye and “sensationalized” big hits. The plaintiffs would rather place the sole blame on the NFL, which has a $9.5 billion purse, as opposed to confusing the issues by adding the NCAA.

Notwithstanding, the NCAA has its own issues regarding its lackadaisical attitude of head injuries in sports, which I’ll save for another day. It should be noted that the NCAA is currently fighting its own class action concussion battle in the Northern District of Illinois.

3.     If the judge rules in the players’ favor how will that impact the future of the NFL?

Since 2010, the NFL has arguably taken appropriate steps to try to make the game safer. The operative word there is “try.” Unfortunately, the game of football is inherently violent, and I don’t think this game can ever be completely safe. Rule changes can only go so far, and the NFL may have already reached its limit. Of course, you can always increase the season to 18 games because that will obviously make the game safer!

Whether the lawsuit is successful or not, I think the former players have already won. They have opened our eyes to the serious risks of head injuries and we, as a society, have benefited. Millions of dollars are now being poured into research and awareness campaigns relating to head injuries in sports. Although there is a lot more that needs to be done, I think the former players have laid the groundwork.

Even if the players win a significant monetary judgment against the NFL, I think the NFL will continue to thrive. The NFL’s biggest impediment will be the role parents’ play in the decision of whether this game has become too dangerous for the kids to play. If this occurs in a dramatic fashion, I think that would lead to the demise of the NFL, as opposed to litigation being the downfall.

7.     The judge is expected rule on July 22nd, what are your expectations?

I think the players will be successful, and Judge Brody will deny the NFL’s Motion to Dismiss, at least in part. Of course, the NFL will immediately appeal to the 3rd Circuit. But, Judge Brody will likely allow discovery to proceed.

The NFL has, I’m sure, already made a decision on whether it should continue to fight this battle in court, or if it is time to discuss a global settlement in earnest.

If the NFL decides it wants to fight this thing out, I’d expect the litigation to go on for several more years. On the other hand, if a global settlement is reached, I think the cost of a medical monitoring regime would be north of $2 billion dollars. Only time will tell in this high-stakes game of NFL complex litigation.

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A Look At The NFL Concussion Litigation: Q&A With Paul Anderson – Part 1

By:  Jared Berman, Ruling Sports Intern (Twitter:  RealSportsNLaw)

There have been a lot of changes to the NFL over the past few years regarding players’ safety. No longer can a team overload a formation to block a field goal or extra point, the kickoff was moved up five yards to the thirty-five yard line, and most recently the crown-of-helmet rule was enacted, which prohibits ball carriers from using the crown of their helmets outside the tackle box. These rule changes are part of a growing trend to make an inherently dangerous game safer. Unfortunately, the NFL’s efforts are long overdue.

On July 22nd, U.S. District Judge Anita Brody will rule on whether former players can sue the National Football League for concussion-related injuries. The NFL does not deny the allegations, but argues the complaints must be handled in arbitration in accordance with the collective bargaining agreement.

Recently, Paul Anderson, founder of nflconcussionlitigation.com took the time to discuss some of the pressing questions regarding the NFL concussion litigation.

1.     How did you get involved in sports law and more specifically, this lawsuit?

Shortly after the first concussion-related class action was filed I came across a legal blog that discussed the filing of the lawsuit. I decided I’d write a law review note on the litigation since the lawsuit was the perfect combination of sports law, complex litigation and torts.

As my research progressed more lawsuits were filed, and I figured this had the potential to become a very hot topic.   So, in January 2012, I launched my website with the hopes of trying to break into the sports law arena, while also providing a legitimate source to stay up-to-date on the litigation.

Ever since then, concussion litigation has become my passion, and it is quickly becoming an emerging area of the law. As you know, concussion litigation is not limited to the professional level. It has far-reaching implications, and society as a whole is being impacted by the litigation. The NCAA is currently facing a similar class action, Arrington v. NCAA, and there are several lawsuits pending at the high school level.

2.     Most believe that football head trauma was the catalyst for Junior Seau’s suicide. What type of an influence do you think that loss had on this lawsuit?

Although prior to May 2012 the NFL Concussion Litigation was picking up steam in both the media and the Court of Public Opinion, it wasn’t until Seau’s death that a spotlight was placed on the litigation. Seau’s death struck a cord with a lot of former and current players. Seau was never “officially diagnosed” with a concussion, yet he had CTE, which may have contributed to his suicide.

Seau’s death, as well as other suicides by former players, created a sense of fear and desperation for some former players. Accordingly, there was a strong influx of former players that joined the concussion lawsuit with hopes of being able to combat the fear of neurological disorders with the putative remedy of medical monitoring.

3.     The NFL has been around since the 1920’s, why are concussion-type injuries being brought today?

I think it has been driven by a few overriding forces. First, and undoubtedly, within the past two decades the science has evolved rapidly. What was once seen as a “benign injury,” is now considered an injury that can cause permanent damage if not treated properly.

In addition, the reality of CTE, and the damage from repetitive head trauma, is becoming clearer. Despite some “doubt casters,” multiple groups, including Boston University and the National Institutes of Health, have identified CTE as a neurological disease caused by repetitive head trauma. And, of course, football is an inherently violent game where an essential ingredient involves repetitive head trauma.

Second, the plight of former players and the staggering statistics related to the increased risk of neurological disorders set off the alarm bells. Plus, the high-profile suicides and bizarre deaths of dozens of former players in the past 20 years, led Congress to question the NFL’s sincerity regarding head injuries in sports.

Through political pressure – and now litigation – the NFL had no other option but to accept and embrace the reality that head injuries can no longer be ignored.

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What The Third Circuit’s Holding In Hart v. EA Sports Means To The O’Bannon And Keller Cases

By:  John Leppler, Ruling Sports Intern (Twitter:  @Lepp326)

On May 21, 2013 the United States Appeals Court for the Third Circuit, in a 2-1 decision, reversed the Supreme Court of New Jersey’s holding in favor of Ryan Hart, a former Rutgers University football quarterback, who filed a lawsuit against Electronic Arts for violating his right of publicity.

In bringing his right of publicity lawsuit, Hart was required to prove three elements:

1.     There must be an unauthorized use of a protected attribute of the claimant’s name, image, or likeness;

2.     The unauthorized use must be for the defendant’s own commercial purposes or financial gain; and

3.     The unauthorized use of the claimant’s name, image, or likeness must have been done without the claimant’s consent.

Case law has defined what makes up a person’s “likeness” as being the intangible attributes that are recognizable to the specific person.  For example, in Johnny Carson v. Here’s Johnny Portable Toilets, Inc., the United States Court of Appeals for the Sixth Circuit found for the plaintiff, Johnny Carson, in a right of publicity lawsuit by reasoning that the toilet company’s use of “Here’s Johnny” in its name invoked images of Johnny Carson.  In finding this, the court found that the toilet company consciously or unconsciously helped promote and sell toilets by exploiting Johnny Carson’s celebrity status. This unauthorized use of Carson’s identifiable catch phrase in the company’s title, even if unintentional, violated Carson’s right of publicity.

With respect to Hart’s case, the Third Circuit’s reversal is meaningful on two accounts.  First, The United States Supreme Court has not dealt with a right of publicity case since 1977, when it heard Zacchini v. Scripps-Howard Broadcasting Co.  In Zacchini, the Supreme Court in a five-to-four decision held that the First and Fourteenth Amendments do not immunize the news media from civil liability when they broadcast a performer’s entire act without his consent.  Additionally, in Zacchini, the Court held that the Constitution does not prevent a state from requiring broadcasters to compensate performers.  Hart may require the Supreme Court to revisit its holdings related to the First Amendment in Zacchini, as in the 35 years since Zacchini, the technology by which media and the news are disseminated has greatly advanced. 

Second, should the Supreme Court hear the Hart case, it will address any First Amendment issues using a totality of circumstances approach, which was not utilized in its hearing of the Zacchini case.  This is due to the fact that the Hart case involves a factual scenario involving student-athletes’ likenesses.  In hearing similar cases, lower circuits have utilized a totality of the circumstances analysis.  For instance, in CBC v. MLBAM, the United States Court of Appeals for the Eighth Circuit Court found that although the right of publicity for MLB players was violated by a MLB fantasy baseball service, the First Amendment right to use players’ names and statistical information took precedent over the players’ right to publicity.  It is likely that the Supreme Court would similarly weigh the circumstances in Hart’s case in deciding the case. 

Given the First Amendment issues present in Hart’s case, it is likely to have an impact on other cases brought by former student-athletes should it reach the Supreme Court.  The cases in which a Supreme Court ruling on Hart’s case would most greatly impact are Keller v. NCAA, College Licensing Company (CLC,) and Electronic Arts (EA) and O’Bannon v. NCAA, CLC, and EA.  Those cases were both brought by former NCAA student-athletes who alleged, amongst other things, that the use of video game characters mirroring their likeness violated their right to publicity. 

The Supreme Court hearing Hart’s case prior to the conclusion of the Keller and O’Bannon cases would provide precedent to the circuits in which those cases are being heard on how to apply the First Amendment to new technology, like video games.  This guidance would likely be welcomed by those courts, because as noted above, the Supreme Court has not heard a right of publicity case since  Zacchini 1977—which is long before video games were a mainstay of American media culture.  Given the five-four ruling in Zacchini, it is plausible that the Supreme Court would adopt a new standard for determining whether an individual’s right to publicity has been violated.  Such a new standard could greatly impact how two cases that hold serious ramifications for college sports—O’Bannon and Keller—are determined.

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The Impact Of A $3.1 Million Verdict Against Riddell On Future Football Concussion Litigation

Jurors in a small southern town in Colorado found that Riddell Helmets contributorily negligent in the head injuries a former Trinidad High School (CO) football sustained in 2008.  As a result of its verdict, the jury awarded damages in the amount of $11.5 million, of which Riddell is responsible for paying $3.1 million.

The lawsuit arose after Rhett Ridolfi participated in a “Machine Gun Drill” during an early morning practice.  During the course of the drill, Ridolfi allegedly made helmet-to-helmet contact with another teammate.  This contact resulted in Ridolfi sustaining a serious head injury, which according to Ridolfi’s attorney, has left Ridolfi with impulse and behavioral problems and has left in a walking brace and with limited functions on his body’s left side.

Ridolfi’s mother filed the lawsuit on his behalf in March 2010.  The lawsuit alleged negligence not only against Riddell, but also against six of Ridolfi’s football coaches.  Three of the coaches were found by the jury to be negligent.  However, reports indicate that damages were not ordered to be paid by them.  Ridolfi’s attorney told the media that he will be filing a motion to have Riddell pay all of the $11.5 million in damages awarded by the jury.  Riddell plans to appeal the verdict.

While the court transcript has not been reviewed, it appears that Ridolfi’s attorney argued that the defendants were liable for two types of products liability negligence:  product defect and failure to warn.

With respect to the product defect claim, Ridolfi’s attorneys argued that the padding in the front of Ridolfi’s helmet which was manufactured by Riddell wasn’t safe enough.  They also argued that another type of padding could have been used which would have protected Ridolfi.  This argument was rejected by the jury.

However, the jury found that Riddell was negligent in the type of warning it provided on its helmet, which was worn by Ridolfi.  Under tort law, a product may be defective as a result of the manufacturer’s failure to give adequate warnings as to the risks involved in using the product.  For liability to attach, the danger must not be apparent to users.

Reports indicate that Riddell has included a warning label on its helmets since 2002.  However, in this instance, it appears that the Colorado jury found that the warning label present on Ridolfi’s helmet in 2008 was inadequate.  This was likely due to the fact that the warning label did not warn against the possibility that the helmet would not protect against concussions and serious bodily injury sustained from instances including helmet-to-helmet contact.

A statement released by Riddell indicated that it believed that if testimony from a “warnings” expert would have been admitted by the judge, that it would have been fully exonerated in this case.  It is likely that Riddell’s appeal will argue that point, as well as the damages awarded and that its warning was sufficient.

This case, which arose out of a small town in Colorado, likely has larger implications than the damages which Riddell is facing paying.  First, it demonstrates juries’ willingness to hold helmet manufacturers liable for failing to adequately warn of the injuries football players can sustain even while wearing a helmet.  This factor is relevant as Riddell is currently facing at least two other cases on this issue, one of which is brought by 4,000 former NFL players.  Whether juries in other jurisdictions–where the other cases against Riddell are located–will find similarly will only be determined by time.  Furthermore, it is to be seen whether other courts allow Riddell’s “warnings” expert to take the stand and how that testimony may impact the outcome of the trial.

Riddell, however, can likely breathe a small sigh of relief that the Colorado jury did not find the design of its product to be defective.  Thus, Riddell may feel fairly certain that the product design defense it has created may be successful in other jurisdictions and in front of other jurors.

Nonetheless, the road for Riddell is not clear.  In coming months, it faces cases against plaintiffs who are more well-known (for example, the family of the late Junior Seau), have deeper pockets and greater media attention on their sides.  It is to be seen whether given these factors, juries return similar verdicts to that reached by the Colorado jury.

Alicia Jessop is a Colorado-based attorney and the founder of the sports law website RulingSports.com.  Nothing in this article is legal advice and no attorney-client relationship is intended to be created by this article.  Follow Alicia @RulingSports and at AliciaJessop.com.

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No Leg To Stand On: New Orleans Saints Fan Sues Roger Goodell and the NFL

The New Orleans Saints bounty scandal is the story that just will not end.  Just when you think it’s over, it takes on a new, unexpected twist.

The latest twist was turned on Monday, when New Orleans Saints season ticket holder and fan, David Mancina filed a class action lawsuit against Roger Goodell and the NFL resulting from its handling of the bounty scandal.

Mancina alleges that he, season ticket holders and those purchasing single-game tickets to New Orleans Saints’ 2012 games “. . . purchased their tickets with the representation, and
expectation, from the Commissioner and the League that the Saints would be capable of
competitively fielding a contending team comprised of the finest athletes, and the best coaches.”  He asserts that the team has been unable to accomplish this because of what he calls “. . . dictatorial, unreasonable, vindictive, and unfounded, interference from
the Commissioner and the League, devoid of due process.”  Not surprisingly, in making his claim, Mancina references the various suspensions levied by Goodell on March 21, 2012 related to his investigation of the Saints’ alleged bounty program.  Mancina claims that these suspensions were levied after season ticket holders purchased their tickets and without giving notice of the investigation to fans.  He asserts that the suspension of four Saints players, several Saints coaches and the Saints’ general manager devastated “. . . the quality of the Saints; the value of the tickets purchased. . . subsequent to their purchase; and the confidence and emotional attachment of Plaintiff, and the class, to the Saints. . .”

Ultimately, Mancina alleges that by suspending players, coaches and the Saints’ general manager, Goodell and the NFL penalized purchasers of Saints tickets.  He claims that they could have issued hefty fines against the alleged bounty program participants which “. . . would have impacted the alleged violators. . . without impacting the quality of
play.”  Notably, Mancina claims that ticket holders have been punished “more than anyone”–an argument that the likes of Jonathan Vilma would likely dispute.

From the lawsuit, Mancina and the class are seeking “. . . damages resulting from: the diminishment [sic] in the value of their tickets; their personal emotional reaction to the unwarranted penalties inflicted on their beloved team, players, coaches, and executives; and the deliberate reduction of the competitive capability of the Saints due to the selective gutting of the critical components needed to justify the loyalty of Plaintiff and the class.”  Mancina alleges that the amount of these damages exceeds $5 million.  He also argues that the class is made up of 85,000 individuals.  He does not specify where either of these numbers comes from.

In reviewing Mancina’s lawsuit, one thing is certain:  The NFL and Goodell do not have much to worry about, other than hiring an attorney and paying the legal fees to have this case dismissed.  It is likely that NFL and Goodell will file a 12 (b) (6) motion.  In federal court, a 12 (b) (6) motion is a motion to dismiss a case when it “fails to state a claim upon which relief can be granted.”  Nowhere in Mancina’s lawsuit does he alleged that Goodell and NFL violated any federal law or statute.  Given this, his lawsuit arguably does not state a legal claim upon which a court can grant relief.  As such, the lawsuit should be dismissed at this stage of the proceedings.

The attorney Mancina found to file this lawsuit also has reason to be concerned.  It would not be surprising for Goodell and the NFL’s attorneys to ask that the judge impose sanctions against this lawyer for filing this lawsuit.  In federal court, when a lawyer files a lawsuit, he or she must make certain certifications.  Amongst other things, the lawyer must certify to the court that the lawsuit is not presented for any improper purpose (harassment, delay, etc.) and that the legal contentions therein are warranted by existing law.  As noted above, the issue with this lawsuit, is that it does not contain any legal contentions.  Thus, lawyers for Goodell and NFL could file what is called a Rule 11 motion for sanctions.  Filing this motion would require Mancina’s lawyers to amend their complaint within 21 days to actually allege violations of the law, or be sanctioned.  Given that this would arguably prolong the length of this matter, when the NFL and Goodell could just have the case thrown out under Rule 12 (b) (6), it is unlikely that their lawyers will go this route.

While dismissal of this case is incredibly certain, one more thing is certain:  for Goodell and the NFL, the alleged Saints bounty scandal has likely become a bigger thorn in their sides than they ever could have imagined.

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Lawsuit Against The NHLPA By The Late Derek Boogaard’s Family Signals Legal Concern For The NHL

By:  John Fabiano, RulingSports.com Intern (Twitter:  @Fabs5180)

Tragedy struck the NHL last year when 28-year-old power forward Derek Boogaard was found dead due to an accidental overdose of alcohol and painkillers.  The “Boogyman” was one of the most feared enforcers in the league and injuries sustained from fights reportedly contributed to his depression and analgesic drug addiction.

Boogaard played for the Minnesota Wild and the New York Rangers, and as a member of both teams he was checked into the NHL’s drug rehabilitation center in Southern California.  His drug addiction was well documented, but doctors from both teams allegedly continued to write him prescriptions for painkillers, antidepressants, and sleep medications.

When he died, Boogaard had $4.8 million remaining on his NHL contract.  His parents, working with the NHLPA, had the intention of filing a grievance against the Rangers to receive the unpaid portion of the contract after the team informed them that the contract was void upon Derek’s death.  The basis of the grievance was that the Rangers contributed to his death by allegedly overprescribing him medication when they were well aware of his struggles with addiction.

Roman Stoykewych was the NHLPA union representative who educated the Boogaards’ about their rights in regards to compensation from Derek’s contract.  He sought medical records from Minnesota and New York team doctors but had trouble obtaining the documents.  According to the Boogaard’s lawsuit, it was not until after the deadline to file the grievance passed that Stoykewych informed the Boogaards that the filing would have been futile because it was obvious that the Rangers were not going to honor the remainder of Derek’s contract. 

The Boogaards have now filed a lawsuit against the NHLPA alleging that the union failed them in their attempt to file the grievance.  Not only is the lawsuit seeking the $4.8 million that remained on Derek’s contract, but also $5 million in punitive damages.   The union has 30 days to officially respond to the suit, but has already stated,  “[W]e are confident that there is no meritorious claim that can be made against the NHLPA in regard to Derek’s tragic death.”

Whether the Boogaards will be able to recover any of this money is yet to be seen, but if it goes forward, if depositions reveal that team doctors were prescribing painkillers to a known drug addict, tremendous speculation about the league’s concern for its players’ safety would be raised. 

Shortly after Boogaard’s death, two other NHL enforcers, Rick Rypien and Wade Belak both died from apparent suicides.  Similar to Boogaard, both suffered from severe depression, possibly caused by the repeated blows to the head NHL enforcers receive each time they fight.  After his death, Boogaard’s brain was donated to the Sports Legacy Institute, which studies the brains of dead athletes who competed in high contact sports.   It was found that he suffered from the degenerative brain condition Chronic Traumatic Encephalopathy, which has been found in many NFL players that suffered numerous concussions throughout their careers. 

The NFL is currently facing lawsuits from thousands of former players claiming that the league acted negligently and concealed information linking concussions to long-term mental health affects.  Similarly to the NFL, the NHL could find itself facing a bevy of lawsuits in the future.  Fighting, concussions, and medications have always been a part of the game of hockey, and former players may soon realize that they have a cause of action against a league that put their mental health at risk. 

Almost all of the NHL’s current media attention is focused on the lockout, so there has not been much attention given to the Boogaards’ lawsuit against the NHLPA.  Once that dust settles, it will be interesting to see if the outcome of this lawsuit encourages former players, especially enforcers, to bring similar suits against the league.

Concussion and player safety concerns have changed the culture of the NFL.  Big hits that went unpenalized not too long ago are now warranting fines and suspensions.    The dangerous physical aspect of the NHL could cause the league to head in a similar direction, and it’s not completely out of the question that the league could ban fighting in its attempt to protect player safety and avoid damaging lawsuits.

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