Category Archives: NHL

A Look At The NHL’s Push To Mandate Players To Wear Visors

By:  Christian Deme, Ruling Sports Intern (Twitter:  @TheSportingBiz)

Only a few months removed from the signing of a new collective bargaining agreement, the National Hockey League is considering making some significant changes to the game to protect players from injury.

The two main changes being considered are the mandating of visors on player helmets, as well as implementing a hybrid icing in lieu of the standard icing currently used in the NHL.  On June 19, the NHL’s general managers endorsed mandatory visors for new players entering the league, as well as the implementation of hybrid icing.

Both changes considered are a result of injuries that players have suffered, in order to protect players from future injuries. New York Rangers defenseman Marc Staal, who was not wearing a visor, took a vicious puck to the face on March 5 and suffered a serious and permanent eye injury.  Currently, approximately 74 percent of NHL players wear visors on their helmets.

Hybrid icing differs from standard icing in that it is the mixture of touch and no-touch icing. Touch icing occurs in hockey when a player clears the puck across both the center red line and the opposing goal line with the puck remaining untouched. When icing is called, a linesman blows the play dead and a faceoff occurs in the defending zone of the team that cleared the puck. If the team that shoots the puck across the two red lines reaches the puck before the other team, icing is waved off. Therefore, since there is an incentive to stop icing and prevent having to take a faceoff in front of your own goalie, players race for these cleared pucks, often crashing violently into the boards and potentially suffering serious injuries. With hybrid icing, the linesman has the discretion to blow his whistle if he believes that the defending player will reach the puck first, without requiring the player to actually touch the puck. Additionally, in the event that the race for the puck is a tie, the linesman is to side with the defending player and blow the play dead to prevent the players from crashing into the boards.

The Collective Bargaining Agreement  of the NHL serves as the central labor agreement between the NHL and the NHLPA. Although the NHL CBA does not specifically address Official Player Rules such as visors and hybrid icing, the CBA, in Article 22, discusses the procedure for amendments to the Playing Rules.

The NHL and NHLPA establish a Competition Committee for the purpose of examining and making changes to the rules of the game.  The issues considered by the Committee are (1) development, change, and enforcement of the Playing Rules, (2) player equipment regulations and standards, (3) dressing room and facility standards, and (4) scheduling.

The Competition Committee consists of up to ten members, including five active players designated by the NHLPA, and five team officials designated by the NHL.

The Committee requires a two-thirds majority for submission for consideration of the NHL general managers. Upon the requisite support from the general managers, the recommendation will be forwarded to the NHL Board of Governors for final approval, which is the current stage of the implementation of mandatory visors and hybrid icing.

The debate over visors and hybrid icing has been an ongoing one for some time now, and was discussed between the League and the Players’ Association during the lockout when they were negotiating the new collective bargaining agreement.

The Players Association has long opposed the mandatory visor rule until recently, but after recent injuries such as Staal’s the Players Association is beginning to come around.

Mathieu Schneider, special assistant to the executive director of the NHLPA, supports the idea of the rule changes if they successfully protect player safety. The NHLPA has polled players regarding mandatory visors and for the first time a large majority has supported grandfathering in mandatory visors.

At the same time, NHL general managers are very much in favor of making visors mandatory for rookies. Players are investments for a team and it’s in the best interest of the teams to protect the health and safety of their players and prevent long-term injuries. The NHL has been plagued with significant concussion problems affecting some of the biggest stars in the game. Guys like Sidney Crosby, Evgeni Malkin, Jonathan Toews, and Chris Pronger have all missed time in recent years due to post-concussion symptoms. Moving forward GMs will want to take the recent momentum from the NHLPA and work to protect their players and their overall product for the long-term.

There will be a recommended testing period for hybrid icing during the 2013-14 NHL Preseason. Schneider has stated that if the hybrid icing has a positive reception by the players, it will be implemented as early as Game 1 of the regular season.

The proposals for visors being grandfathered in and hybrid icing being implemented will now go before the NHL Board of Governors for final approval. If the proposed changes to protect player safety are approved, these immediate changes show that the NHL and the NHLPA are committed to protecting the safety of their players. Helmets were grandfathered into the NHL in 1979 and have become such a normal part of professional hockey that it is difficult to imagine an NHL without them. Visors will very likely have the same player reception going forward.

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The Phoenix Coyotes Ownership Saga Almost Reaches An End

By:  Christian Deme, Ruling Sports intern (Twitter:  @TheSportingBiz)

The Phoenix Coyotes ownership saga that has dragged on for four years has finally seen a glimmer of light at the end of the tunnel.

The National Hockey League has owned the Coyotes since 2009 after former owner Jerry Moyes put the team into bankruptcy. Since 2009, various bids by potential buyers have fallen through, as recently as last week, leaving the team in the hands of the NHL.

On May 25, the NHL approved the sale of the Phoenix Coyotes to the Renaissance Sports & Entertainment Group, headed by Canadian businessmen George Gosbee and Anthony LeBlanc and American businessmen Avik Dey and Daryl Jones.

The complexity of the sale of the Coyotes lies in the necessary lease agreement with the City of Glendale, which owns Jobing.com Arena, the current home of the Coyotes.  While the Coyotes have enjoyed moderate success on the ice, the financial state of the team is in shambles.

Sports arenas can be a tremendous boost to a local economy in a number of ways. Namely, arenas hosting professional sports teams can attract fans that attend the games and generate revenue. This is the main reason the Coyotes are having trouble completing a sale. The City of Glendale fronts the hefty checks to the NHL to cover the Coyotes’ operating losses and to keep the team in Jobing.com Arena, while having to consistently battle one of the lowest attendance rates in the league.

Lease agreements in professional sports serve as a documentation of contractual rights between a sports franchise to use a facility in exchange for that franchise’s pledge to play their home games at the same facility. Professional sports lease agreements also serve as a contract to delineate the rights and responsibilities of the parties concerning the operation and upkeep of the facility, as well as their financial arrangements. In certain cases, a lease agreement will require a team to pay the facility owner a flat rate rental fee, while in others the fee will vary based on a percentage of revenue generated by the sports franchise.

When stadium financing agreements involve public funds, government authorities typically require teams to enter into a non-relocation agreement to prevent the franchise from moving to a different city. This is a way the owners of the arena protect the interests of the taxpayers to prevent injury to the welfare, recreation, prestige, prosperity, and trade and commerce of the community.[1] As Jobing.com Arena is owned by the City of Glendale, public funds are in the mix for a lease agreement with the potential new owners of the Coyotes and a non-relocation agreement could play an interesting role in determining the future of a team not able to draw fans.

Renaissance must reach an agreement with the City of Glendale to keep the Coyotes in the desert. Glendale Mayor Jerry Weiers is in a difficult predicament due to the amount of funds the city is pumping into efforts to keep the Coyotes in Glendale, while dealing with little fan interest in the Coyotes. Glendale could be on the hook for up to $15 million per year over a long-term lease for arena management fees, while also paying off the construction debts of their arena. Glendale has already felt the weight of the struggling Coyotes coupled with the downturn of the economy and has had to lay off public workers and has even considered using its city hall and police department as collateral for a loan. Mayor Weiers has gone on record stating that he has approximately $6 million budgeted for arena management fees, because he refuses to cut into the general fund of the city any more to support a failing hockey team.

It will be interesting to see what happens with Renaissance Sports and Entertainment Group’s bid on the Coyotes. The two sides are quite far apart from agreement on arena management fees, but a positive aspect about Renaissance’s bid is that they are a diverse group of investors coming from both Canada and the United States. This may help the financial viability of the franchise in the future. Regardless of what happens, NHL attendance figures don’t lie and the Coyotes have been near the bottom of the league, if not the very bottom, in attendance every operational year for the past decade.

It will take a savvy marketing miracle to turn the Phoenix Coyotes around and make them profitable, otherwise we may soon see the Coyotes’ survival skills tested in a cooler climate.


[1] “Successful Partnering Between Inside and Outside Counsel” by Lonn A. Trost, Irwin A. Kishner, and Daniel A. Etna

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The NHLPA’s Next Steps In Ending The NHL Lockout

The calendar turned to January 5 today and NHL fans have yet to see one NHL game this season.  Thanks to NHL owners locking out players, gone already is half of the season, along with the NHL All-Star Game and the Winter Classic.  Throughout the negotiations, carrots have been dangled in front of fans’ eyes, giving them hope that a season may begin in the near future.  The NHL and NHLPA have reportedly been close to reaching a new collective bargaining agreement several times.  However, each time a deal appears to be close, a new issue sprouts and the sides spread further apart.  Given that NHL commissioner Gary Bettman has self-imposed a January 11 date for a deal to be finalized in order for the season to be saved, how can the NHLPA work to end the lockout?

January 11 is less than a week away.  Given this, the NHLPA’s strategy at this point is apparent:  disclaiming the union’s interest and beginning the process of filing an antitrust lawsuit.  The NHLPA is in the midst of a 48-hour vote to disclaim the NHLPA’s interest as the players’ union.  This is the second time that such a vote has been taken in this lockout.  The last time the vote was taken, it passed, but the NHLPA’s executive board (namely, Donald Fehr) opted not to disclaim the union’s interest.  That decision was likely the result of Fehr’s assessment that negotiations with the NHL were progressing at the time and moving towards an end of the lockout.

However, since that time, negotiations have arguably stalled and federal mediators have begun meeting with the sides individually.  With less than a week left to salvage an NHL season, it’s likely now that players will not only vote to disclaim the NHLPA’s interest as their union, but that the executive board will in fact move forward with doing so.

If the NHLPA moves this way, it will become a trade association rather than a union for the time being.  Thus, the union will  no longer represent players in collective bargaining with the NHL for a new agreement in an attempt to end the lockout.  Rather, under the disclaimer of interest process, individual players will have the right to file antitrust lawsuits against the NHL in a bid to end the lockout.

Filing an antitrust lawsuit will not quickly end the NHL lockout.  Given the length of time an antitrust lawsuit can take to end a lockout, it is notable that it appears that this is a weapon the NHLPA has waited to pull out until the last minute.  In that regard, the NHLPA should be commended for arguably working to fairly negotiate with the NHL as a union for as long as it could.  On the flip side, though, had the NHLPA filed an antitrust earlier in the lockout, the lockout may have ended earlier.

If the NHLPA disclaims its interest as a union, the antitrust lawsuit filed by players will likely be a class action lawsuit.  The class would be defined as all NHL players, but would have named players–likely your top stars and several rookies–named in the lawsuit.  A judge’s decision in favor of the players or a settlement between the parties on the antitrust lawsuit would end the NHL lockout.  Thereafter, the players would have to vote to re-form the NHLPA as a union.  The NHLPA would then begin negotiating with the NHL the terms of a new collective bargaining agreement.  However, many of the terms of the new collective bargaining agreement would likely be reached during negotiations during the settlement process of the antitrust lawsuit.  As such, one would assume that this process would be relatively quick.

Arguably, at this stage of negotiations, there are more pro’s than con’s to the NHLPA disclaiming its interest as a union and players moving forward with an antitrust lawsuit.  For starters, the NHLPA has likely negotiated for as long as it could with no effect towards ending the lockout.  Facing the loss of an entire season, NHL players need to consider alternative options to save their time on the ice and paychecks.  At this point, filing an antitrust lawsuit would likely be the most efficient way to do this.

This biggest con to moving this route, perhaps, is that antitrust lawsuits are uncertain.  In going this way, the NHL could refuse to negotiate a settlement to the lawsuit.  Thus, a judge would decide the merits of the antitrust lawsuit.  The players would likely file their lawsuit in a forum friendly to employees.  However, they run the risk that a judge would rule that the NHL has not violated any antitrust laws during the course of the lockout.  If this were to happen, the players would arguably put in a corner.  At that point, they would have to reclaim the union’s interest and begin negotiating again with the NHL like they have been since September.  This would arguably uppercut the players in terms of the leverage they would have in negotiations.

One thing is certain:  Over the coming days, NHL fans will see much NHL news.  Unfortunately, none of it will take place on the ice of an NHL arena.

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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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NCAA and Major Professional Sports Leagues Seek to Prevent Sports Betting in New Jersey

On Tuesday, the NCAA, NBA, NFL, NHL and MLB filed a lawsuit in the United States District Court for the District of New Jersey seeking declaratory and injunctive relief challenging the State of New Jersey’s “plan to sponsor, operate, advertise, promote, license and authorize gambling on amateur and professional sports.”  The lawsuit names New Jersey Governor Christopher Christie, the state’s Director of Gaming Endorsement and the Executive Director of the New Jersey Racing Commission as defendants.

On January 17, 2012, Governor Christie signed into law N.J.S.A. 5:12A-1, which according to the lawsuit, “purport[ed] to permit wagering at casinos and racetracks on the results of certain collegiate and professional sports or athletic events.”  According to the lawsuit, the act signed into law by Governor Christie violates federal law.  In particular, the plaintiffs assert that allowing gambling on amateur and professional sports in New Jersey violates the Professional and Amateur Sports Protection Act, and contravenes the Supremacy Clause of the United States Constitution.  The Professional and Amateur Sports Protection Act generally outlaws sports betting, save for certain exceptions, which the plaintiffs argue do not apply to New Jersey’s law.  Notably, those exceptions are:  that New Jersey conducted sports gambling activity prior to the law’s enaction in 1992, New Jersey authorized sports betting in a one-year period following the law’s 1992 enaction or the gambling relates to pari-mutuel animal racing and jai alai games.

The plaintiffs’ lawsuit comes just three weeks before the public comment period for comments on proposed regulations concerning the licensure and operation of sports gambling in New Jersey expires.  The timing is notable, because according to the lawsuit, once the regulations are in place, New Jersey casinos and racetracks will be able to allow their patrons to gamble on sporting events.

Ultimately, the plaintiffs are seeking a declaration that New Jersey’s sports gambling law and its regulations violate Professional and Amateur Sports Protection Act in that the New Jersey law allows sports gambling in contradiction to the federal law.  Additionally, the plaintiffs seek an injunction preventing the implementation of New Jersey’s sports gambling law and regulations.  The plaintiffs are also seeking costs, attorney’s fees and other relief as the court finds appropriate.

The defendants will now have to file an answer in federal court responding to the allegations in the complaint.  Given the nature of this matter, one can expect that it will not be settled out of court.  Rather, those planning on placing bets in New Jersey during the football season will more than likely have to hold onto their money, as the legal process will likely drag out to determine whether New Jersey’s sports betting initiative violates federal law.

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The Devils’ Wise Decision To Re-sign Martin Brodeur

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

After signing with an agent to prepare for free agency and the possibility of signing with a team other than the New Jersey Devils, Martin Brodeur decided to stay with the only team for whom he has ever dressed over the course of his 19-year career.   The forty-year-old netminder signed a deal that will pay him $9 million over the next two years.

Brodeur is recognized as one of the best goaltenders of all time and will probably be a first-ballot Hall of Famer. He has won three Stanley Cups, two Olympic gold medals, and is a four-time Vezina trophy winner.  His league records include wins, shutouts, and games played.  Always known for his ability to play the puck, Brodeur is also tied for the most career goals by a goalie.

After a loss to the Kings in this year’s Stanley Cup Finals, Brodeur contemplated retirement but instead opted to test free agency. In a thin year for free agents, an aged Broduer was still the biggest goalie name to hit the market.   It is reported that the Devils’ initial offer was for only one year, but Brodeur was looking for a two-year deal to give him more security with a possible lockout looming.  After experiencing free agency for less than a day, and turning down offers from a few other teams, Brodeur decided to sign with New Jersey once they offered him a second year on the deal.

The contract’s $4.5 million cap hit places him 12th in the league for goalies, tied with Rick DiPietro and Jonas Hiller.   The only goalie to receive a larger yearly average this offseason is Carey Price.  The 24-year-old restricted free agent received a 6-year, $39 million extension for a $6.5 million per year cap hit.

The Devils were smart to sign Brodeur. Any backup plan to sign a goaltender through free agency would not have been attractive to the Devils’ fan base.  Some of the most notable names were Chris Mason, Jonas Gustavsson, and Scott Clemmensen.  Clemmensen spent time as Brodeur’s backup earlier in his career but has never locked down a starting job.  Mason and Gustavsson both signed deals as backups for next season.  None of those names would have been able to fill Brodeur’s skates.

Roberto Luongo is on the trading block and is a name that the Devils could have sought, but there was no guarantee that the team could have put together a deal for the former NHL All-star.

The deal is even more important for the Devils now that they have lost out in the negotiations of their former captain Zach Parise.  The prize of free agency decided on Wednesday to sign with his hometown team, the Minnesota Wild.

The deal was a win-win for both sides. The Devils will now see the most prominent player in the franchise’s history retire in a Devils uniform and Brodeur gets to return to New Jersey, which he stated is where he wanted to play next season all along.  It will still take some time for Devils fans to recover from the loss of Zach Parise, but they can take some comfort in knowing that it will still be Marty’s Party in New Jersey for the next two years.

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NHLPA and NHL Labor Negotiation Update

By:  Brandon Mead, Ruling Sports Intern (Email:  bmead1028@gmail.com)

That fateful day in 2004 when Gary Bettman stepped to the podium and announced that he had “no choice but to announce the formal cancellation of play” seems all too recent to hockey fans. The National Hockey League’s Collective Bargaining Agreement had expired on September 16th, 2004 and despite efforts by both the League and the Player’s Association, the entire season was cancelled and the Stanley Cup was not raised for the first time since 1919. 

Many fear Bettman may make that same speech this fall when the current NHL Collective Bargaining Agreement expires on September 15th. To avoid such a calamity, the two sides must first sit down at the negotiating table. As of yet, this has not happened.

Bettman claims that “he expects to begin negotiating with the NHLPA in the next few weeks.” This would put the start date to negotiations in the middle of June, giving the two sides a mere three months to come to a resolution. It has been done before and can be done again. Take for example the recent labor disputes of both the NBA and the NFL. Reports coming out months before the respective CBA’s were set to expire indicated that it would take a miracle to bridge the gap between the two sides.  In the end, the NFL put on a full and successful season and the NBA had to cut less than 20 games off its normal schedule.

As hockey fans, we must hope similar last minute negotiations will salvage the NHL season. The biggest issues to emerge are rather straightforward.

1.     Contract Terms – Teams are creative in how they structure their contracts under the current CBA. A player’s average salary over the life of his current contract is what counts against the team’s salary cap while employing the player. This means that teams can get creative, as they did with Ilya Kovalchuk’s contract in New Jersey, and sign a player for many years past when he will be playing hockey and pay him the league minimum for those last few years. This loophole in the current rules allows teams to pay high profile players “average salaries.” Closing this loophole will allow the hard salary cap to be much more effective.

2.     Olympic Participation – For those of us that watched the Olympic hockey in Vancouver, it was a magical two weeks that we all hope to see again in Socchi, Russia. However, the Olympics occur in the middle of the NHL season and put a three week halt to games. In addition, players get hurt and are unable to play for the teams that allow them to go play for their countries. The players appear eager to face off again in Russia, but may have to sacrifice at the bargaining table to get there.

3.     Officiating – This year the NHL named former player Brendan Shanahan as its head disciplinarian. He is singlehandedly in charge of handing out suspensions to players for illegal hits. Arguments can easily be made for or against most of his decisions. However, the players have issue with consistency. Not only the consistency of Shanahan’s punishments, but the consistency of the on-ice officiating. It became quite clear during the first round of the playoffs, when all the media was talking about was the goons that stopped fighting long enough to play a hockey game, that officiating standards had seriously deteriorated. Players are concerned for their safety and the league is concerned about maintaining the integrity of the game. Finding a happy middle ground between the two will be crucial for a new CBA.

4.     Revenue Splitting – League revenue hovers around $3.1 Billion a year and the players currently take home 57% of that pie. That percentage was similar in both the NBA and the NFL until the recent negotiation in which the owners brought those numbers down significantly. The owners will attempt to use those negotiations as templates for success in the NHL. However, players understand the lucrative ten year contract the NHL just signed with NBC and will want to make sure they are compensated for a great increase in revenues.

These are obviously just a few issues that will emerge during negotiations this summer, but these will have some of the greatest impact on whether or not we can spend our winter watching the “Coolest Game on Earth.” Stay tuned for more updates.

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Pittsburgh Penguins Hit With a Lawsuit Over Text Messages

By:  Richard Braun, Ruling Sports Intern (Twitter: @RicBraun)

 

The Pittsburgh Penguins are being sued in a class action suit for a claim that can only be described as frivolous.

At issue in this lawsuit is the Penguins’ text message alert system. The system sends subscribers texts messages about team news, scores, and the like. Fred Weiss, a Pens fan from California, signed up to receive these text messages. The terms and conditions of this service state the following:

“Your carrier’s standard messaging and data rates apply to all SMS correspondence. Other charges may apply. By subscribing, you consent to receiving, from time to time, further text messages from us which may include offers from us, our affiliates and partners. Available on participating carriers. Maximum of 3 messages a week. To end this service, text “STOP” to 32623. For help text “HELP” to 32623 or email.

In the complaint, Mr. Weiss alleges that the text messages he receives are in “excess” of this maximum of three texts a week. How much in excess? The complaint alleges that Mr. Weiss received five texts in the first week, and four in the second. This apparently is a violation of the Telephone Consumer Protection Act, which states in part that “it shall be unlawful…to make any call…using any automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a paging service, cellular telephone service…or any service for which the called party is charged for the call.” The Act does not specifically mention text messages, so it is possible that they are not included, however for the sake of argument we are going to assume they are.

Here, the texts received may cost subscribers money, assuming that they do not have an unlimited text message plan. Depending on the carrier, individual texts typically cost around $.20. So instead of deciding to cancel the service, Mr. Weiss is suing because of the $.60 he is out of as a result of the unwanted text messages. He further claims that these texts are an invasion of privacy and a nuisance. However, deleting unwanted texts takes hardly any time at all, or they can be ignored.

What’s even more comical is the amount in damages Mr. Weiss is seeking. In addition to allowing for an injunction on the harmful conduct, the aforementioned Telephone Consumer Protection Act allows recovery of any actual monetary loss, or to receive $500 for each violation, whichever is greater. Not only that, but if the Penguins willfully and knowingly violated this law, as Mr. Weiss alleges, then the plaintiff is entitled to treble damages. So for each $.20 text message per week in excess of the three allotted in the terms and conditions, Mr. Weiss is seeking $1500. Add that up for each subscriber to the service in the class action suit, and you are looking at a ridiculous penalty for something so minor.

The terms and conditions also give Mr. Weiss and any other dissatisfied customers a very simple remedy if they dislike these extra text messages: text the word “STOP.” Sending out that text, which would take 30 seconds, seems like a much more simple and rationale approach to fixing this problem.

Suits as frivolous as this rarely actually make it to trial, and are usually dismissed. There are certain rules in the Federal Rules of Civil Procedure that aim to reduce the amount of frivolous suits, notably Rule 11. Rule 11(b) states that when a lawyer signs a pleading, such as this complaint, they acknowledge the pleading is necessary and isn’t done to harass another party. Further, the claims in the pleading must be warranted by existing law. A court is allowed to impose any sanction that it feels will deter the conduct in question, which is usually a fine. Rule 11 typically does not come up and is more often talked about in the classroom than anywhere else, but the Penguins could threaten Mr. Weiss’ attorneys with a Rule 11 motion in an attempt to get them to drop the suit. Mr. Weiss’ claims are technically supported by existing law, but the pleading is far from necessary. The main goal behind the Telephone Consumer Protection Act was to protect people from harassing phone calls from credit agencies and telemarketers, not to allow angry customers to recover for receiving a couple extra texts a week. Lawsuits like this only serve to harass defendants and drive up the cost of litigation.

The likely result of this lawsuit is a dismissal. It is possible that the three text maximum only applies to the “further text messages” from sponsors. If that is the case, there Mr. Weiss does not state any claim for which he can recover. What is also possible is that because the harm done was so negligible, there was no breach of contract and no violation of the Telephone Consumer Protection Act. For the time being, the Penguins are stuck dealing with a lawsuit that has little basis in reality.

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Can the FCC Prevent Leagues from Blacking Out Games?

On January 12, 2012, the FCC announced that it was seeking comment on a petition filed arguing that the FCC should eliminate its Sports Blackout Rules.

In the petition, the petitioners, which include the Sports Fan Coalition, Inc., Public Knowledge, Media Access Project, National Consumers League, and League of Fans, provide several reasons as to why the Sports Blackout Rules should be overturned.  The petitioners argue that blacking out games in a tough economy faced with high unemployment amounts to “anti-fan, anti-consumer behavior by professional sports leagues.”  The petitioners also pointed to the public subsidies leagues receive “in the form of taxpayer-funded stadiums; federal antitrust exemptions. . . [and] tax-exempt status for professional sports leagues” as a reason why sports fans should not be prevented from watching a game due to a blackout.  Finally, the petitioners assert that the Sports Blackout Laws are outdated, as they were not created in a time when modern technology existed, but rather, in the birth of the cable area.

Upon learning that the FCC will consider eliminating the Sports Blackout Rules, many fans likely breathed a collective sigh of relief.  There is no doubt, that when leagues blackout games in geographic areas for one reason or another, it is annoying.  However, the FCC’s elimination of its Sports Blackout Rules is not a be-all-end-all solution to leagues blacking out games.

When news broke yesterday about the petition to the FCC seeking elimination of the Sports Blackout Rules, the general media described the situation in a way which made it appear that it is the FCC’s Sports Blackout Rules which require games which are not sold out to be blacked out.  However, the FCC’s Sports Blackout Rules nowhere specify that a game must be blacked out on cable television if it is not sold out.

Rather,the Sports Blackout Rules prevent cable and satellite stations (not local broadcast stations) from carrying a live television broadcast in a particular geographic region, at the request of the holder of the broadcast rights, if the event is not available live on a television broadcast station in the specified geographic region.

Typically, the holder of broadcast rights is the league, because the leagues generally hold the copyright to a respective game.  As such, each league determines the rules for which of its games will be blacked out on local television broadcast stations.  The leagues have adopted significantly different models of blackout policies.

The NHL and MLB share a similar policy, which in effect gives local broadcasters broadcasting priority, unless a national broadcaster has exclusive rights to the game.  As for the NBA, if a game is aired on NBATV, it will be blacked out from local broadcasting stations within a 35-mile radius of the home team’s market.  The NFL’s blackout rule is the only major league rule which centers around the stadium attendance of a given game.  In general terms, the NFL’s policy specifies that local broadcasters within 75 miles of a given team may only broadcast a game if it is an away game or if the game was sold out 72 hours prior to kickoff.

The benefit of elimination of the FCC’s Sports Blackout Rules, is that doing so will allow cable and satellite television providers to broadcast games when their local television broadcast counterparts are barred from doing so because of various league blackout policies.  The NFL has argued against overturning the FCC’s Sports Blackout Rules by asserting that this would essentially provide cable providers with an unfair competitive advantage over local television broadcasters.

While elimination of the FCC’s Sports Blackout Rules will likely give sports fans more access to watch previously blacked out games, it is not a perfect solution to the problem of leagues blacking out games for various reasons.  As noted above, technically, all that the elimination of the FCC’s Sports Blackout Rules would do, is allow cable and satellite broadcast providers the opportunity to broadcast games which are blacked out from local stations.  However, it is likely that if the FCC’s Sports Blackout Rules are eliminated, that leagues will work to institute their own set of the rules, through contracting with cable and satellite broadcast providers.  This in turn would remove the competitive advantage spoken of by the NFL, while also recreating the problem of sports blackouts.

Thus, it will likely be many years before the world sees a Sunday afternoon when there isn’t a single NFL game blacked out from a market due to low game attendance.

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