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Supreme Court to Decide Whether the NFL Licensing Agreement Violates Antitrust Laws

Posted by - Richard Symmes

nfl1The Supreme Court of the United States has decided to take on the case of American Needle v. National Football League which is scheduled to be heard later this year or in early 2010.  http://seattletimes.nwsource.com/html/politics/2009391296_apussupremecourtnfl.html

The case will have a significant impact on all sports leagues and will determine whether the NFL is acting as a single entity or 32 different businesses when negotiating licensing agreements or other contracts on behalf of NFL franchises.  The case arose after the NFL signed an exclusive apparel contract to Reebok International Ltd in 2001.  American Needle was one of many firms who manufactured head gear for some NFL teams prior to 2001, and they argue that the the NFL is breaching antitrust laws by dealing with only one company in outfitting teams.  The NFL seeks to end antitrust law suites against  them in the future by arguing the NFL is acting as a single entity when entering into contracts on behalf of NFL franchises.

This case will have a significant impact on all sports leagues going forward.  If the NFL wins, it will not have to fear being suied for antitrust lawsuits in the future which could significantly impact how all sports leagues conduct business.

So How Much Money is a Song Worth Anyways?

Posted by - Richard Symmes
Jammie Thomas-Rasset

Jammie Thomas-Rasset

A jury last week determined the decade old question of just how much money a song is worth if it is illegally downloaded.  The jury’s answer:  $80,000 per song.    Jammie Thomas-Rasset was accussed of illegally downloading 1,700 songs through the file sharing program Kazaa, although she was only prosecuted by the Recording Association of America (RIAA) for illegally downloading 24 songs.   Thomas-Rasset alleged that other people in her family may have been responsible for the downloads, she replaced her hard drive because it was broken and not because of illegal downloads that would have been found on it, and that she never received any sort of cease and desist orders despite the plaintiffs producing such evidence that such messages had been delivered.  http://technology.timesonline.co.uk/tol/news/tech_and_web/article6534542.ece

The RIAA said that they tried to settle the case with Thomas-Rasset for a sum of $3,000-$5000 but she refused to settle.   Thomas-Rasset was the first person to refuse to pay a fine and challenge the RIAA in court.  The RIAA, however is still willing to settle the case despite winning a $1.92 Million verdict.

The RIAA is taking the high road on this case and doesn’t want to alienate music fans.  By settling the case for a small sum, the RIAA will deter people from infringing on music, but not alienate fans at the same time by looking like some kind of ogre.  The RIAA said they are moving away from suing individuals for infringment and are trying to work out arrangement with internet service providers to take action against infringers.

Ms. Thomas-Rasset was extremely ignorant and misinformed by her lawyers that she had any chance of winning this case.  The evidence was too concrete and stacked against her from the beginning.  When a case can be settled for a couple thousand versus having to potentially pay millions in damages and lawyer fees, it doesn’t make any sense to try the case.  This is why most rational people settle their infringement cases and move on with their lives.

For a play by play analysis of how the trial went down, check out:  http://arstechnica.com/tech-policy/news/2009/06/jury-selected-in-thomas-retrial-shockingly-law-abiding.ars.
Seattle entertainment lawyer

Cardinals Manager Tony La Russa takes Twitter to Court, Will Probably Lose

Posted by - Richard Symmes
Tony La Russa

Tony La Russa

The name, image, and likeness of a celebrity or sports figure is viewed by the courts to be the intellectual property of that particular individual.  With the creation of Twitter, Facebook and other social networking sites, individual’s intellectual property in their names  have the possibility of being infringed upon in a new medium.  Tony La Russa, the St. Louis Cardinals manager, is the first well known celebrity or sports figure to sue Twitter for the actions of an individual who used a name or likeness that didn’t belong to them on a Twitter page. http://www.law.com/jsp/law/careercenter/lawArticleCareerCenter.jsp?id=1202431321477&rss=careercenter

La Russa alleges that an unknown person had been tastelessly using his name and image, tweeting from an account named “TonyLaRussa.”  La Russa’s suit claims that the impersonator is ruining his reputation among other things.  In order to win a case for trademark infringement La Russa would have to prove that the average viewer of the fake Twitter page would confuse the postings as being those of the actual La Russa.  Therefore, because of the nature of the posts (making fun of his drunk driving, and a Cardinals pitcher who had died earlier) it is unlikely that the average person would be confused that the actual La Russa made the offensive “tweets.”

La Russa could have also brought some torts claims against the individual posters who made the tweets for misappropriation of his name and likeness and being portrayed in a false light.  The false light claim would have the best chance to succeed as he would have to prove (1) publication, (2) of views he doesn’t believe, (3) which are objectionable to reasonable person.  Misappropriation of name or likeness requires a person to use another’s name or image for profit which did not happen in this case.  The outcome of a suit of this type would probably be up to a jury to decide.

Celebrities and athletes should be careful in suing their own fans and those that actually follow their careers, especially if any damage is minimal as it is in this case.  Suing fans of the game, could cause a backlash and project a negative image upon a person or sport.  La Russa should have accepted that Twitter agreed to remove the page from the site and move on with his life.  This is a frivolous claim that he will probably lose.

UPDATE 7/7/09:  La Russa pulls Twitter suit –  http://www.law.com/jsp/article.jsp?id=1202432045385&rss=newswire

 

Redskins Win Right to Keep Their Nickname…..For Now

Posted by - Richard Symmes

RedskinsThe NFL’s Washington Redskins have won another legal decision against a group of Native Americans who claim that the team’s nickname “Redskins” is racially offensive.   http://sportsillustrated.cnn.com/2009/football/nfl/05/15/redskins.ap/index.html

The battle between the Native Americans and the NFL franchise for the right to use the “Redskins” has been going on for over 17 years.  The attorneys for the Redskins based their case on trademark law, claiming that if the team lost to their right to use the nickname, the organization would lose millions that have been spent on the Redskins brand.  The Redskins trademark was first registered and used in commerce in 1967. The Native Americans challenging the trademark, first challenged the mark in 1992, 25 years after it was first used in commerce and the court ruled that the Native Americans waited too long to challenge the mark.

Another group of Native Americans plan on challenging the mark and will try to get the case challenged on its merits, that the term “Redskins” is racially disparaging and scandalous.  The Native Americans plan on challenging the mark under under section 2(a) of the Lanham Act which states that “no trademark shall be refused unless it “consists or comprises of immoral, deceptive, or scandalous matter.”  To determine whether a mark is disparaging the court must look at (1) the likely meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the services identified in the registrations and (2) whether that meaning may be disparaging.   To determine whether a mark is scandalous the court will look at (1) the view of the general public and (2) in the context of contemporary attitudes.

As the court ruled in Harjo v. Pro Football Inc. (1999), I believe a court would find that disparagement could be proven, but not that the mark is scandalous.  The Scandalous test cannot be met as the general public views the Redskins mark in association with a proud NFL franchise in which the players are akin to warriors.  Some Native Americans have even been quoted as saying that they don’t mind the Redskins mark as long as the team depicts Native Americans in a favorable manner.  Disparagement could be proven under the test stated above, as it is possible that the mark is disparaging.

Even if it can be proven that the trademark is disparaging, it will be extremely difficult for anybody to challenge the mark at this point as the mark should have been challenged when it was first approved by the U.S. Patent and Trademark office in 1967.  The mark is now accepted by the general public and a multi-million dollar brand.  The courts are hesitant to take away a mark if those offended by the mark did not challenge the mark at an appropriate time when they had the chance.

 

New Legislation May Lift Ban on Using American Credit Cards for Online Gambling

Posted by - Richard Symmes
Barney Frank

Barney Frank

Currently in the United States it is illegal for Americans to use credit cards to place bets of any kind online.  This rule was enacted in 2006 under the Uniform Internet Gambling Enforcement Act  (UIGEA).  Representative Barney Frank (D-Mass.) seeks to repeal the UIGEA and make it possible once again for American banks to allow their customers to place bets online.  http://www.creditcards.com/credit-card-news/frank-bill-authorize-online-gambling-1282.php.

Although a person may get around the UIGEA regulations by using foreign companies to place bets; repealing the UIGEA is a much simpler alternative.  Frank argues that the government should not interfere with a persons liberty interest to make online bets.  The new legislation  is called the Internet Gambling Regulation Consumer Protection and Enforcement Act and establishes framework that would allow online operators to obtain licenses to accept bets from U.S. residents.  In order for the operators to obtain a license, they would have to meet strict requirements and pass background checks.

Allowing Americans to place wagers online while doing it in a matter that protects the consumer and requires background checks of online operators can only be beneficial.  The online gambling business currently generates $10-$12 Billion a year, and the U.S. is being cut out of the action.  This new law if enacted would be good for the U.S. economy and good for the American entrepreneurs while protecting consumers who are using foreign websites to meet their gambling needs.

Seattle Business Lawyer

Philadelphia Phillies Pitcher Blames Supplement Maker for Suspension and Files Suit

Posted by - Richard Symmes

6-oxoPhiladelphia Phillies pitcher J.C. Romero was suspended for the first 50 games of this season after testing positive for steroids last year.  Romero filed a lawsuit against nutritional supplement manufacturer ErgoPharm, Inc. for manufacturing the supplement 6-OXO and 6OXO Extreme without indicating on the label that the supplement included Androstenedione (“Andro”), a MLB banned substance.  http://sports.espn.go.com/mlb/news/story?id=4105353

Patrick Arnold, a chemist who runs ErgoPharm and has a history working with steroids, put out a statement claiming that there is a warning label on the 6-OXO  supplements which states “Use of this product may be banned by some athletic or government associations.”

In order to have a product liability claim for having an inadequate warning label, a plaintiff must prove that the average person looking at the warning label would find that the label failed to warn of possible dangers or cause consumers to not understand, be  confused by, or find the warning label is not properly visible.  The outcome of this case is extremely hard to predict as the case will probably be tried in front of a jury.  Juries can be extremely unpredictable and nothing is ever guaranteed no matter how good a case a party may have.  In any event, if Romero’s lawyers can prove that the warning was inadequate, he will probably be entitled to damages in the form of lost salary due to the suspension and possibly punitive damages to make an example of the company.

Athletes use supplements at their own risk, but it should be the manufacturers who are held accountable if they are aware of potentially banned substances being included in their supplements and not giving proper warnings.  In order to help athletes make better choices when choosing supplements to put in their body, major league sports should be required to provide a list of approved substances if they don’t do it already.  Thus, if a player tests positive from the use of an approved supplement they shouldn’t get in trouble and risk losing salary due to unjustified suspensions.

Seattle Sports Lawyer

Welcome to the Seattle Sports, Entertainment & Trademark Lawyer Blog

Posted by - Richard Symmes

Trademark and Copyright Attorney in Seattle WashingtonWelcome to the Symmes Law Group, PLLC’s – Sports, Entertainment & Trademark Lawyer Blog.  This is an interactive blog that details current events in sports, entertainment, and trademark law as well as discusses legal issues and projects that are currently being undertaken by Seattle trademark lawyer Richard Symmes and Symmes Law Group, PLLC.

Symmes Law Group strives to build long-term relationships with our clients throughout the Seattle metro area as well as around the world by offering unparalleled personal service.  If you are need of a legal representation in association with your trademark or entertainment matters  please contact Symmes Law Group, PLLC today at [email protected] or call 206-682-7975 to set up an initial consultation.

How Facebook and Twitter are Affecting Major Sports and Individual’s First Amendment Rights

Posted by - Richard Symmes

                                         

facebook

twitter1

 Social networking sites such as Facebook and Twitter have made a profound impact on the world of sports, especially in the past few months. Some leagues and sports teams have taken the stance that postings should be censored or eliminated, which could violate an individual’s First Amendment freedom of speech rights. 

 

Twitter is a social networking site in which users post real time updates in 140 characters or less for their followers to read.  Coincidentally many athletes and individuals involved in the sports world have decided to become involved in the Twitter revolution and publish their thoughts online for everybody to see.  The phenomenon has affected the NBA the most.  When Milwaukee Bucks forward Charlie Villanueva decided to Tweet at halftime during a game last month, he was heavily criticized by his head coach Scott Skiles who has since banned Twitter from the locker room. http://nba.fanhouse.com/2009/03/17/skiles-no-tweeting-in-the-locker-room/  The coach’s argument was that tweeting during half time gives the appearance that his team is not focused.  Other popular NBA personalities such as Shaquille O’Neal and Dallas Mavericks owner Mark Cuban have climbed aboard the Twitter bandwagon and post about such things as new endorsement deals to bad officiating. Cuban was fined 25K when he criticized the officiating in a game last month.  http://nba.fanhouse.com/2009/03/28/mark-cuban-rips-refs-on-twitter/

 

Facebook is a hugely popular social networking site in which users can reconnect with old friends, share pictures, and also start and join fan groups such as the group “John Wall Please come to NC State!!!!”  There are several groups on Facebook that attempt to encourage a recruit to attend a particular school.  However the NCAA has taken objection to fan groups on Facebook that could influence a student athlete to choose one school over another and believes that the groups violate NCAA rules.  The NCAA has attempted to take action against individuals who start groups such as the one mentioned above.  Such action could include refusing to sell tickets to individuals who start such groups and dissociation from an athletic program.  http://seattletimes.nwsource.com/html/collegesports/2009021968_facebook11.html

This begs the question, should the NBA, the NCAA and other sports governing bodies be able to limit an individual’s First Amendment freedom of speech rights. 

The NBA is a private entity who employs and regulates individuals who must abide by the NBA’s collective bargaining agreement and team rules.  As a private entity with their own set of rules and regulations, the organization may limit what employees and those associated with the league may say.  The team’s are who is paying an NBA players salary and if the players don’t like the rules, then they can play somewhere else.  If the NBA felt that Twitter was a problem, they could add a rule banning it from locker rooms and limit the content to non NBA activities if they felt that the tweeting was getting out of hand.  At the moment the NBA has not indicated that they will seek to limit the use of Twitter among those associated with the NBA.  In Cuban’s case, criticizing an official in any medium whether online or not when you are an NBA owner is grounds for a fine. 

The NCAA is also a private entity, however many universities are public and cannot limit the speech of individuals as long as the speech does not fall into a regulated category such as being obscene or inciting violence.  A University may always refuse to sell tickets to whomever they please or choose not to let an individual participate in University sponsored events.  However any other action taken that could limit speech would not be allowed.  Therefore if an individual seeks to start a Facebook group and has no intention of attending a game or interacting with a University they have little to worry about in terms of getting in any serious trouble as they are not governed by the NCAA.  However the NCAA could decide to punish schools who allow such groups to be formed.  I have trouble seeing how these types of groups will be regulated in the future unless the NCAA forces Facebook to restrict such groups by threatening to pull all NCAA related content from Facebook, such as March Madness Brackets or other fan groups.

With Twitter and Facebook still in their infancy it will be interesting to see how they evolve and continue to influence the world of sports and entertainment.

New York Jets Fans’ Suit Thrown Out of Federal Court

Posted by - Richard Symmes
Carl Mayer

Carl Mayer

Many NFL football fans have been disappointed in their team’s performance at one point or another.  That doesn’t mean that said fans should be able to go out and sue their team or other teams for the conduct of a teams personnel or coaching staff for actions not causing actual damages to fans.  One New York Jets Fan thought differently.  Carl Mayer, a Jets season ticket holder and solo attorney from Princeton N.J. thought it would be a good idea to sue New England Patriots head coach Bill Belichick and the NFL over the infamous taping of Jets signals by the Patriots back on September 9, 2007.http://www.law.com/jsp/article.jsp?id=1202429353302&rss=newswire

As a young lawyer I thought to myself what kind of lawyer would even consider taking a case that seems impossible to win.  For a plaintiff to win a case, they must suffer some sort of damages.  I don’t see how Mayer could have incurred any kind of damages simply from being a fan of a NFL team that was cheated against.  Luckily for Mayer, he is a solo attorney himself and can incur the financial responsibility of bringing a case in federal court himself.  He also cannot get anybody else in trouble for bringing a frivolous claim in which the courts may impose sanctions against an attorney if they deem proper. 

Mayer claimed the videotaping “violated the contractual expectations and rights of New York Jets ticket-holders who fully anticipated and contracted for a ticket to an honest match played in compliance with all laws, regulations and NFL rules.”  Mayer also claimed tortuous interference with contractual relations and violations of the state Consumer Fraud Act, Deceptive Business Practices Act and Racketeer Influenced and Corrupt Organizations Act.  Mayer sought statutory, punitive and compensatory damages, restitution, equitable relief and attorneys’ fees on behalf of fellow season ticket-holders.

It is not the best time to be a lawyer these days with the economy in shambles, but Mr. Mayer must have had way too much time on his hands.  The costs of bringing such a case and lost income due to time spent on this case far exceeds any damages (the costs of season tickets) that he could expect to receive.  The Federal Court ruled that the seller of tickets to an entertainment event “does not contract to provide the spectacle, only to license the plaintiff to enter and view whatever event transpires.”

If this suit were allowed to continue fans would be suing their teams for every bone head personnel or coaching mistake that occurred on a field or court in any sport.  The legal Court dockets are backed up with cases that actually matter; I really hope that Mr. Mayer does not appeal this case.  If a fan is not interested in a team or league don’t go to the games or watch on T.V. That is a much easier and economical solution to filing a federal lawsuit. 

NFL Discipline Policy Challenged

Posted by - Richard Symmes

nfl1Sports attorney David Cornwell is attempting to change the way the NFL hands down discipline to NFL players who breach the NFL Collective Bargaining Agreement (CBA).  http://sports.espn.go.com/nfl/news/story?id=3962086

The NFL, unlike the NBA or MLB has a system in place in which discipline handed down by the commissioner may not be challenged.  Cornwell is arguing that NFL commissioner Roger Goodell’s rulings should be able to be appealed to an outside arbitrator who will make a binding ruling.  Any new discipline policies must be included in the new CBA as the NFL has opted out of the current CBA agreement which expires at the end of the 2010 season.   http://www.nfl.com/news/story?id=09000d5d80868b78&template=without-video&confirm=true

NFL players would definitely benefit from having a new system in place in which they could appeal commissioner rulings.  The hard part will be trying to get the NFL to agree to the changes so that they can be included in the new NFL CBA.  For the new policy to be included in the new CBA the NFL Players Association will have to make some concessions and it should be noted that if an agreement is not reached by the end of the 2009 season, then the 2010 season will have no salary cap.  This means that owners would be free to overspend on players and NFL athletes would be the beneficiaries.  It would be most beneficial to the players association to hold out until the end of the 2010 season to reach an agreement on a new NFL CBA.  However the NFLPA could use the new disciplinary policy as a bargaining chip to getting a deal done before the end of 2009.  For instance they could say in exchange for us agreeing to a new CBA early, you have to include a new disciplinary policy.

I would look to see this policy being implemented in the new CBA in 2011 since the players association has a big incentive not to come to terms until after the 2010 season is finished due to the lack of a salary cap.

 

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