Sports Law Blog
All things legal relating
to the sports world...
Tuesday, May 31, 2005
 
Deep Throat Revealed; Will Sports Conspiracies be Solved?

With Bob Woodward confirming that former FBI agent W. Mark Felt is indeed "Deep Throat," and thus the primary source of information that brought down former President Richard Nixon in the Watergate scandal, it brings to mind mysteries in the sports world that remain unanswered. Earlier this month, Elliot Kalb of FOXSports.com identified 10 "conspiracies" that remain unanswered. For instance, was the 1985 NBA Draft rigged so that the New York Knicks received the first overall selection? (I strongly doubt it). Or was the 1972 U.S. Men's Olympic Basketball Team robbed of the gold medal by the game's official scorer and time keeper? (That one seems more plausible and quite possibly true -- check out this telling account on ESPN Classic). Obviously, none of these conspiracies are nearly as important as was Deep Throat, but they nevertheless show that despite the prevalence of investigative media, some well-publicized mysteries might never be solved.

 
Soccer Match-Fixing Scandal in Vietnam

Referee Luong Trung Viet of the Vietnam Football Federation ("VFF") has been suspended pending an investigation into his alleged involvement in match-fixing. Trung Viet is apparently the first of a larger group of VFF referees who will be suspended for match-fixing. Such corruption is not uncommon in the VFF, as it has recently been "plagued with match fixing and several players have been jailed or suspended for their involvement in the scandals."

I guess this is a good reminder to us that no matter how bad the officiating sometimes seems in the NFL/NBA/NHL/MLB, at least those referees/umpires aren't purposefully fixing games.

Monday, May 30, 2005
 
New Orleans Hornets Alleged to Have Violated Fair Labor Standards Act

This past Friday, eight former Hornets' employees filed a lawsuit in the U.S. District Court in New Orleans, alleging that the team required them to work more than 40 hours per week but did not pay overtime. The lawsuit also alleges that those employees who failed to work more than 40 hours per week were penalized and threatened with discharge.

As a matter of background, employees paid on an hourly basis are always protected by the overtime provisions of the Fair Labor Standards Act ("FLSA"), while salaried and contracted employees are often not. This distinction is based on the premise that while hourly employees are paid to work a specific number of hours, those on salaries and contracts are typically paid to complete a task or set of tasks, regardless of how long it takes. If you are interested in reading more on the FLSA, check out this useful reference guide published by the U.S. Department of Labor.

Friday, May 27, 2005
 
NBA Draft Age Limit (Floor): The Discussion Continues

Christian Ewell of the Baltimore Sun had a great piece last week on the NBA's efforts to institute an age floor. Since I was finishing my thesis, I didn't come across come it (or much else, for that matter). Christian had interviewed Gary Roberts and me for the story:

Michael McCann, an incoming professor at Mississippi College School of Law and member of the legal team that helped former Ohio State football player Maurice Clarett challenge the NFL on a similar issue, said he expected a lawsuit directed at the NBA if it institutes an age limit.

McCann said unlike Clarett, a player trying to jump to the NFL a year earlier than the league had ever allowed, the NBA has had experience with players fresh out of high school.

"[Clarett] had to argue a hypothetical," McCann said. "Here, you already have a nine-year track record. It's clear that the players know what they're doing. It's not like they're making terrible decisions."

But sentiment either way probably won't play much of a role, said Gary Roberts, former president of the Sports Lawyer Association.

If the league and the union agree to allow an age limit, Roberts said, higher courts will likely see it as a collective bargaining issue, not an antitrust issue, thus foiling any legal challenges.

However, he doesn't see the league backing down on luxury taxes for the sake of an age limit.

"There's a lot of saber-rattling, but there are greater issues," Roberts said. "Neither the league or the union will shut down the league over this."


Christian also interviewed NBPA Executive Director Billy Hunter:
"The reality is that the age limit is tied to economics," union executive Billy Hunter said. "It's not about [maturity of the players]."

In addition, the age limit is just one of the issues to be worked out in negotiations on a new collective bargaining agreement this summer.

"I won't say it's a non-starter," Hunter said. "Everything has a price. I know that the owners would like to see an age limit. It depends on what else is on the table."


 
Fight Club Japan? Japanese Youths Arrested for Violating 1889 Anti-Dueling Law

12 children between the ages of 15 and 17 were recently arrested in Japan for dueling, which has been outlawed since 1889. The children were members of rival fight groups from Yokohama and Tokyo, and they had established intricate rules for their bouts, including that the dueling partners be chosen with consent from both groups; that hair-pulling be disallowed; and that fighting to the death be permitted unless one fighter gives up first. At the time of their arrest, the group from Yokohama was ahead by three wins to two. One of the children had suffered serious injuries to his arm and head. This was not an isolated incident of dueling. In March, six junior high school students from Kunitachi were also arrested for dueling. ("Youths Arrested for Violating 116-year-old Dueling Law," Mainichi Shimbun--Japan, 5/26/05).

Interestingly, one of the recently arrested children wonders what all the fuss is about: "What's wrong with hitting each other with consent?" His comment goes to our earlier discussion on 14-year old American boys boxing (with supervision) and engaging in ultimate fighting (with or without supervision), and also how some wonder whether external influences, such as video games and violent movies, might encourage children to partake in violent activity. Then again, perhaps it is more revealing that over 99 percent of children do not engage in violent activity, despite these so-called explanatory influences.

Thursday, May 26, 2005
 
Woman Sues Rockies over Loss of Leg

As predicted (12/31/03), a woman who lost part of her right leg in an escalator accident at Coors Field is suing the team, the escalator manufacturer and the baseball stadium municipal district for $700,000. Denver's chief inspector found that mechanical failure, combined with a missing safety switch, was the cause of the July 2003 accident. But Kone, the manufacturer, blamed overcrowding and a misconnected wire for the accident. Blame will be passed around between the team, stadium and the manufacturer, but I would expect a fairly quick settlement in the case. (AP, "Colo. woman sues Rockies over loss of leg," FindLaw, 05/19/05; "Woman who lost leg in escalator mishap sues Rockies," DenverChannel.com, 05/19/05).

Wednesday, May 25, 2005
 
Earnhardt's Racing Team Sues To Collect Insurance

A trial began this week in the lawsuit between Richard Childress Racing and an insurance company that provided a policy on the life of Dale Earnhardt:
    More than four years after Dale Earnhardt's fatal crash on the last lap of the Daytona 500, his racing team is still trying to collect on a life insurance policy it applied for just weeks before his death. Richard Childress Racing says it took out the $3.7 million policy on Earnhardt's behalf. If collected, the money would go to the NASCAR legend's widow, Teresa.
The insurance company argues that the policy never took effect because Earnhardt never took a physical and Childress had not paid the premium. (Dodd, "Earnhardt's team sues to collect insurance," Char Observer, 05/24/05).

 
Jockey and Horse Owners Sue over Newspaper Story

The owners of Funny Cide, along with the jockey that rode the horse to victory in the 2003 Kentucky Derby, are suing the Miami Herald for defamation. The suit stems from a story the Herald ran soon after the victory, suggesting that the jockey held an illegal object in his hand during the race. It was later determined that he was holding nothing other than a whip. The newspaper issued a correction six months later, but the jockey claims this was "too little, too late." He claims that the Herald engaged in "reckless disregard" for the truth and failed to retract the allegations in a timely manner, causing damage to his reputation. (Walker, "Newspaper sued over story on Kentucky Derby winner," Daily Bus Rev, 05/23/05).

 
Attorneys in Sports: Paul Tellarico, Race Car Driver

Interesting story on Louisiana attorney Paul Tellarico, who, with three races to go, is tied for first in the Red Bracket competition of the Grand Bayou Road Race Series (Louisiana). A graduate of the Louisiana State University Law Center, the 46-year old Tellarico is also a partner at Neblett, Beard & Aresenault in Alexandria, Louisiana. Tellarico became involved in competitive race car driving in 1996, when he was named rookie of the year for the Sports Car Club of America Red River Region. (Tompkins, "Tales from the Road: Local Attorney Feeds Competitive Drive on Track," Town Talk, 5/24/05).

Paul Tellarico's story goes to show that even after attending law school, and even after practicing law for several decades, one can still can pursue and obtain his or her sports dream.

Now, if I could just learn how to throw a knuckleball, I would be all set myself.

 
More on Native American Nicknames

Marquette University has received a great deal of publicity for its recent decision to have an online vote to adopt a new nickname. You can vote here if you are a Marquette affiliate. The possibilities include the Blue and Gold, Golden Avalanche, Hilltoppers, Voyagers and Wolves. What was wrong with the old nickname?

From 1994-2004, the team was known as the Golden Eagles. In 2004, the school changed this to the Marquette Gold, but student and alumni reaction was so negative that the university made the decision to institute the voting process. The one nickname overwhelmingly supported: Warriors -- the school's nickname from 1954 to 1994. The problem with this name is that it references Native Americans, and a strong minority of advocates have made such nicknames all but off-limits. Even the NCAA has stepped in, beginning an investigation into all schools that have arguably Native American-based nicknames (Starkey, "Nicknames get crazy in college athletics," Pitt Trib-Review, 05/18/05).

Nevermind the fact that there have been "warriors" throughout history, and that the name does not have to represent Native Americans. Are Native American nicknames really a problem? As I noted last fall (9/28/04), 90 percent of Native Americans in this country do not find this practice offensive. Should a miniscule minority be able to dictate the policy of our country? It certainly we are moving in that direction.

Related Posts:
Group Sues Over Illinois Mascot (3/25)
Iowa's Ironic Policy (5/28/04)

Tuesday, May 24, 2005
 
Leaving School Early: John Mayer v. Luol Deng

Meredith Goldstein of the Boston Globe had a revealing article a few weeks ago on the graduation rate at the Berklee College of Music in Boston. She found that only 48 percent of Berklee students earn their degrees. Why so low? Because many of the most talented students "turn pro" before graduating, often by age 18 or 19. (Goldstein, "At Berklee, Losing Students is Early Price of Success," Boston Globe, 5/4/05)

The low graduation rate at the Berklee College of Music is not unusual. Most performing arts institutions likewise have difficulty retaining students, as the best students can often leave school early and earn a very good salary. Some even do better. Among former Berklee students who did not graduate are John Mayer, Melissa Etheridge, Gavin DeGraw, and Quincy Jones.

So I wonder: Why aren't the same people upset about young basketball players turning pro also upset about young musicians turning pro? Is there really a difference between John Mayer dropping out of Berklee at age 19 and Luol Deng dropping out of Duke at age 19? Actually, one might say that Luol Deng made the safer choice, since he was set to gain a certain, guaranteed million-dollar contract, while John Mayer's compensation was heavily leveraged on sales.

The reality is that John Mayer and Luol Deng were rational thinkers, who acted much like any of us would have. And similarly, the students who don't leave school early are also rational: they know they aren't good enough yet.

If anything, actually, feedback is much more predictive for the NBA Draft than for the music world. Just consider last year's draft: of the 9 high schoolers that were eligible, 8 were selected in the first round (and thus secured guaranteed, multi-million dollar contracts). Did they know something that Dick Vitale didn't know? Yeah, they had oral promises from NBA general managers that, if still on the board, they would be picked in the first round. And the guys without those promises went to college instead (e.g., LeMarcus Aldridge, after not getting an oral promise, opted out of the 2004 Draft and instead attended the University of Texas; in contrast, Kendrick Perkins only remained in the 2003 Draft after he received an oral promise from Celtics' general manager Danny Ainge).

In other words, contrary to what many think of young basketball players, they tend to make just as smart and rational decisions as we, and our music friends, would.

 
Texas Hold 'Em Poker Tournaments in Wyoming: Gambling or Just Good Times?

Wyoming Attorney General Pat Crank is currently reviewing the rise of Texas Hold 'Em poker tournaments in his state. In these tournaments, which are held at bars and restaurants, players pay a small entrance fee (usually $25) and are given a certain number of chips, which contain no monetary value. Eight players compete at one table, and continue to play until one player has won all of the chips. Although winners receive no monetary compensation, some receive free trips to larger tournaments, which are typically held in Reno and Las Vegas. (Burke, "Poker Tournaments Raise Questions," Casper Star Tribune, 5/22/05).

Professional gambling is illegal under Wyoming Law. The law defines it as "aiding or inducing another to engage in gambling, with the intent to derive a profit therefrom." Both the restaurants and the tournaments' sponsor, Clear Channel, insist that they do not "intend" to profit from the tournaments, and they maintain that the $25 entry fees are used only to defray administrative costs, pay out prizes, and make a donation to St. Jude's Childrens Hospital. Attorney General Crank wonders, however, if the hosting establishments may earn indirect revenue via food and beverage sales.

One way of testing the Attorney General's concern might be to compare the establishments' revenue before and after the tournaments were hosted. Beyond food and beverage sales, one might also wonder about the market value of the free advertising and exposure the establishments receive by hosting the tournaments. This is particularly true since some of the tournaments are broadcast on local radio stations.

Moreover, the establishments and Clear Channel are run by sophisticated business actors who presumably seek maximum profit -- their very decision to host the tournaments may evince an "intent to derive profit." Along those lines, why would these tournaments be held if profit was not the underlying desire? Are they really held solely to raise money for charities (which they do), or is it a mixed motivation -- say, profit and charity -- and how does that motivation comport with "intent to derive profit"?

Friday, May 20, 2005
 
Boston Sportscaster Bob Lobel Sues Cartoonist Darby Conley for Libel

Famed CBS4-TV Sportscaster Bob Lobel has sued syndicated cartoonist Darby Conley for his May 13 "Get Fuzzy" cartoon. In the cartoon, which appeared in over 450 newspapers, a dog, cat, and their owner are watching TV and the dog says "Is this sportscaster . . . drunk?" The owner replies, "Lobel? Who knows?" The cat and owner then get into argument and the dog says, "Guys, guys! How can you fight while there's a drunk guy on TV?"

Having grown up in Massachusetts, I can safely say that Bob Lobel is my favorite local sportscaster. He's funny, irreverent, and willing to ask difficult questions. But the best thing about him is that he is authentic and self-effacing, and not the cookie-cutter, smiling, transparently-arrogant sportscaster type. However, his style can sometimes seem, as his attorney, Harry Manion, puts it, "breezy" and it can invite speculation as to whether he might be on something.

But did the cartoonist go too far in saying that Lobel is drunk while on-air?

By definition, libel is defamation by writing. It occurs when a false and defamatory statement is published, that statement is about a particular person, and it harms that person's reputation or exposes him to contempt or ridicule. Whether the victim is a public figure or not affects the requisite standard of fault: while public figures (like Lobel) have to show the accused had "actual malice" (i.e., knowledge or recklessness) in making the defamatory statement, non-public figures only have to show that the accused was negligent, or failed to act with due care. There are several viable defenses to libel, including truth and consent.

Generally, libel is difficult to prove, and as you can tell by their more burdensome standard for proving guilt, public figures have an especially difficult time winning libel suits. For instance, in 1983, Jerry Falwell sued Hustler Magazine after it carried a parody of an Italian spirit Campari advertisement in which Falwell discussed partaking in incest, but the U.S. Supreme Court ruled that no matter how upsetting a satire may be, it is protected by the First Amendment.

On the other hand, in 1984, Carol Burnett won her libel lawsuit against the National Enquirer for inventing a story that she had a heated (and drunken) argument with former U.S. Secretary of State Henry Kissinger in a popular Washington D.C. restaurant. More recently, and as discussed by Professor Christine A. Corcos of the Media Law Prof Blog, Massachusetts Superior Court Judge Ernest B. Murphy won his libel suit this year against the Boston Herald and its reporter David Wedge for misquoting him and then using those misquotes as front-page headlines.

We'll keep you updated on Lobel v. Conley.

See 7/30/05 Update

 
On-line Gambling and Horse Racing

The 130th Running of the Preakness Stakes will occur tomorrow at the Pimlico Race Course in Baltimore, Maryland, and if you are betting, then you already know that Afleet Alex is the 5-2 favorite, while Kentucky Derby winner Giacomo is only the fourth choice at 6-1. And you probably know that this is the first time a Derby winner did not get favorite odds since 2001 (when Monarchos was the slight second choice) .

According to a piece by Norm Frauenheim of the Arizona Republic, about 800 websites are taking bets on the Preakness. Since on-line betting is illegal in many states, those websites are often located abroad, primarily in the Caribbean, Costa Rica, the United Kingdom, and Canada.

So why is on-line gambling illegal in many states, when in those same states, one can go to a racetrack and legally make the same bet? According to an interesting study by Andrea M. Lessani of the UCLA Online Institute for Cyberspace Law and Policy, policy-makers have identified four primary rationales for distinguishing on-line gambling as somehow worse than in-person (or phone) gambling:
(1) the potential for fraud over the Internet;

(2) children's access to gambling sites;

(3) an increase in gambling addictions; and

(4) the need to preserve state revenues generated from legally enforced (and state-run) gambling operations.
But, from my vantage point, a fifth reason appears most salient: racetracks don't like competition from websites, and owners of those racetracks actively lobby legislators to prevent would-be gamblers at racetracks from instead sitting home and making those same bets on-line. And those owners, along with owners of other gambling establishments, have continuously lobbied Congress to pass federal legislation that would outlaw on-line gambling. However, aside from the difficulty of enforcing such legislation, it might also defeat national economic interests: instead of bets being placed with websites owned and operated in the United States, those same dollars instead migrate to foreign websites, presumably owned by foreign parties. And if on-line gambling is indeed a vice, doesn't it make it doubly worse that foreigners are profiting off of Americans?

On the other hand, perhaps on-line gambling is a real social worry, and one that warrants the stigma attached to it being deemed illegal. According to Nielsen/Net Ratings, almost 20 million Americans partake in on-line gambling each month, and do so despite 1) concerns about the legitimacy of foreign websites and, for some, 2) recognition that on-line gambling may be illegal. And not surprisingly, on-line gamblers, like all gamblers, tend to lose more than they gain: According to Christiansen Capital Advisers LLC, American gamblers lost $4.1 billion on-line in 2004, and that number is expected to climb to nearly $6 billion in 2005. But then again, American lost $72.8 billion at legal gambling in 2003, so why should we be more concerned about on-line gamblers when "legal" gamblers are losing much more?

Maybe the real lesson is: Don't gamble, because you're probably going to lose. But that's not much fun.

Relates Posts About On-line Gambling:
Greg, Is Your NCAA Tournament Pool Illegal?
Greg, Feds Going After On-line Gambling


Thursday, May 19, 2005
 
Top 25 Selling NFL Jerseys

Darren Rovell of ESPN details the NFL's Top 25 selling jerseys. The top five player jerseys are those for Randy Moss, Michael Vick, Tom Brady, Donovan McNabb, and Ben Roesthlisberger. Interestingly, although rookie wide-receiver Braylon Edwards of the Cleveland Browns has not yet caught an NFL pass, he is ranked #13, while Super Bowl MVP wide-receiver Deion Branch of the New England Patriots didn't even make the list. In terms of teams represented, while the New England Patriots have won three of the last four Super Bowls, they have only one representative on the list (Tom Brady), while the 5-11 Bears, 6-10 Giants, and 5-11 Buccaneers each have two a piece.

 
Video Game Console Wars & Exclusive Licensing Deals

Peter Lewis of Fortune Magazine has an excellent piece on the upcoming console war between Xbox 360, Playstation 3, and the Nintendo Revolution. He compares the three systems in understandable, non-technical language, and projects their relative chances for success. We have discussed the potential deleterious effects of exclusive licensing deals on video game innovation, although based on early images of John Madden Football, it doesn't look like we have much to worry about.

 
David Ortiz and John Rocker: Double Standard?

Rick Duncan at Only Baseball Matters raises a very intriguing question: Why is it that when John Rocker makes a series of inappropriate remarks, the MSN savages him, yet when David Ortiz talks about "raping" another team's "bitches," the media laughs it off? Rick quotes from page 89 of Tony Massarotti's and John Harper's A Tale of Two Cities: The 2004 Yankees-Red Sox Rivalry, where the authors talk about Ortiz's "undying sense of humor":
Once, when Grady Little was manager, Ortiz stuck his head into the manager's office during the manager's daily pregame briefing with reporters and offered his playful assessment of what was to take place on the field that night.

"We're going to kick their ass, drink their beer and rape their bitches."

The room exploded with laughter.

Certainly, personality has a great deal to do with the different reactions. While Ortiz is very charismatic and approachable, Rocker often comes across as surly and cocky. Along those lines, could you imagine the reaction of media/fans/MLB if Rocker talked about "raping their bitches"? He would probably be suspended by Bud Selig. Yet when Ortiz does it, it is said to evidence his "undying sense of humor."

Another factor may be track-record: Ortiz has not made a series of inappropriate remarks, while Rocker has. In fact, to my knowledge, this is the only published off-color remark that Ortiz has made.

Lastly, I guess one might be more willing to give Ortiz a break since English is his not his native language (although, living in Cambridge Massachusetts and listening to interviews of Red Sox players, I can attest that Ortiz is completely fluent and quite eloquent in English -- he knew what he was saying).

Be sure to check out Rick's post, as he has some very engaging commentary.

Related Posts About David Ortiz:
Mike, Lost in Translation? MLB Steroid Testing Policy and Spanish-Speaking Players
Mike, The Unclear Methodology of Suspensions in MLB: David Ortiz and his Bat Tossing Contest


Wednesday, May 18, 2005
 
Kwame Brown: Wasted Talent or Stardom to Come?

Stephen J. Brooks of the Black Sports Network has an excellent piece on Kwame Brown, the free agent-to-be who most media members and fans have lambasted since he was suspended by the Wizards in the playoffs. Brooks takes a more balanced approach, noting a parallel between Brown and Jermaine O'Neal, who was similarly lambasted after his few NBA seasons didn't materalize in stardom. It will be interesting to see how much Brown earns as a free agent, and how well he performs at his next stop. Unrealistic expectations, injuries, and being a "Michael Jordan guy" after Jordan left seem to have impaired Brown's development, but with a fresh start somewhere else next season, he might just end up having the last laugh.

 
Knowing When to Fold Them: The NBA Draft and Declaring Too Late

Nice piece by Aran Smith of NBADraft.net on amateur basketball players who found that "staying in school" can sometimes prove to be a big mistake. Among the players he profiles are Darius Rice and Felipe Lopez, who had they declared for the NBA Draft out of high school, would have likely been first round picks. Lopez might have even been a high lottery pick. But they went to college instead, Rice to the University of Miami, and Lopez to St. John's University. While Lopez suffered injuries that would derail his play, Rice struggled with confidence, particularly with unrealistic expectations that he would immediately dominate college basketball. After four years of college hoops, Rice went undrafted in 2003 Draft, while Lopez was a late first round pick in 1998.

Related Posts About Age Floors:
Mike: Hawaii Passes 18-Year Old Age Floor for Ultimate Fighting
Mike: Ontario Hockey League Lowers Age Floor to 15
Greg: Tales of Woe, Gore and Age Limits
Mike: Jermaine O'Neal: Racism Motivating Efforts to Ban Teenagers


 
Toney v. L'Oreal: The Marginalization of Baltimore Orioles v. MLBPA, 805 F.2d 663 (7th Cir. 1986)

In the 1986 case of Baltimore Orioles v. Major League Baseball Players Association, the United States Court of Appeals for the Seventh Circuit held that state law right of publicity claims were generally preempted by the federal Copyright Act. Specifically, the court addressed the question of whether MLB clubs owned exclusive rights to the televised images of players during games. The players argued, in sum and substance, that a state law right of publicity afforded them a commercial interest in their televised images. As a matter of background, the right of publicity generally allows an individual the right to control the use of his or her name, image, likeness and voice for commercial purposes. The teams, however, maintained that the federal Copyright Act preempted any such interest. Reasoning that the players' performances lacked sufficient creativity for a separate interest under state law, the court rejected the players’ claim. This decision dramatically reduced opportunities for parties in the Seventh Circuit to argue state law right of publicity claims.

Baltimore Orioles had remained the law in the Seventh Circuit until May 6, 2005, when the court ruled in Toney v. L'Oreal USA, Inc. that Baltimore Orioles only preempts a very narrow category of cases—and does not generally preempt right of publicity claims at all. In Toney, the plaintiff alleged that the defendant had violated her right of publicity under Illinois law by the unauthorized use of her image in connection with the sale of a hair relaxer. In short, the plaintiff signed an agreement with the defendant to appear in certain product advertisements, but the defendant then used her image in other advertisements, reasoning that once the plaintiff had agreed to have her picture taken, she lost her rights to control the commercial use of the photograph. The plaintiff sued under an Illinois law of publicity, but a trial court held for the defendant, reasoning that her claim was preempted by the federal Copyright Act, per Baltimore Orioles. Persuaded by the plaintiff’s attorneys that this outcome was wholly inconsistent with her actual consent, the Seventh Circuit reversed the trial court and changed copyright law in the process.

Congratulations to Ms. Toney, and also her attorneys, Thomas J. Westgard of Chicago and Simon J. Frankel and Blake Lawit of Howard Rice Nemerovski Canady Falk & Rabkin in San Francisco. Seldom can attorneys succeed in reversing long-standing precedent, but as Toney demonstrates, sometimes hard work and creativity can do the trick.

Related Posts About Right of Publicity:
Greg, Alabama Sues Artist Who Created Football Paintings
Greg, Harvard Law Review Article on Twist and the Right of Publicity


 
Amusement Park Manager Found Guilty for Death of Visitor

A manager of a Tennessee amusement park was found guilty of reckless homicide and could be sentenced to up to four years in prison for negligently maintaining a ride that resulted in the death of a patron. The jury spared the man the harsher second-degree murder conviction, which carries a penalty of up to 25 years in jail. The manager was portrayed as recklessly playing "Russian roulette" with his customers' lives, short-circuiting safety systems because he cared more about selling tickets than protecting his patrons. Prosecutors said the park had failed to act even after a previous patron complained in July 2003 that his seat harness opened and he was nearly thrown from the ride. (Mansfield, "Amusement park manager found guilty in death of woman on ride, AP, 05/18/05).

In the wake of this incident, Daniel Engber at Slate answers a good question: Who regulates our nation's amusement parks? (05/17/05) The answer: a mish-mash of federal, state and local laws, and in some cases, the amusement parks themselves. A sample:
    The federal government only issues regulations for rides that aren't fixed in a permanent location, like those in small, traveling carnivals, while states can regulate rides that are fixed in place, like those at the Rockin' Raceway. Owners and manufacturers also subscribe to a set of voluntary industry-safety standards set out by the nonprofit ASTM International (formerly the American Society for Testing and Materials).

    Most states have special laws to ensure the safety of amusement park goers. Many license amusement park ride owner-operators and require them to have at least six-figure liability insurance. Some states also perform equipment inspections (sometimes for a fee), require daily equipment tests, and set forth rules about staffing.
A few isolated incidents should not cause a national amusement park panic, but I for one would like to know that when I pay $40 to go to an amusement park, at least some of that money goes to ensure that I will walk out at the end of the day.

Tuesday, May 17, 2005
 
Swimmer Wins Lawsuit Against Vitamin Maker for Positive Drug Test

A jury in California has awarded nearly $600,000 to a competitive swimmer who claims that a contaminated multivitamin led to a positive drug test and a suspension from the sport. Kicker Vencill tested positive for the prohibited substance 19-norandrosterone in an out-of-competition drug test in January 2003. He immediately suspected the vitamins might be to blame and a private lab confirmed the suspicion. But the US Anti-Doping Agency, which cannot always distinguish how a drug entered the body, has a zero-tolerance policy: athletes are responsible for everything that enters their bodies. Thus, it handed down a 2-year suspension which caused Vencill to miss the 2003 Pan-American Games and a shot at the 2004 Olympics.

Vencill's suit Ultimate Nutrition, the maker of the multivitamin, is believed to be the first of its kind, but will not be the last.
    Officials say that otherwise benign supplements can be contaminated in several ways. Supplement manufacturers, who operate largely unregulated, might unknowingly buy tainted ingredients from overseas. Or they might make a range of products, including powders or drinks that feature steroid precursors. If the vats aren't thoroughly cleaned, residue from the previous muscle powder can taint the next batch of vitamins down the line.
(Wharton, "Verdict for swimmer could be a test case," LA Times, 05/13/05). Now, the supplement manufacturers may have the incentives needed to ensure that only the proper ingredients make it into its products. This is good, because it should protect the consumer from ingesting drugs he does not know he is taking. But, this has introduced a new lawsuit to the world, and you can expect every athlete with a positive test to now find some supplement manufacturer (or several) to sue. The expense could prove too burdensome for the companies, some of which make valuable drugs for medical (and not athletic) purposes.

 
California Assembly: Angels Engaged in False Advertising

The California legislature has decided that the "Los Angeles Angels of Anaheim" amounts to false advertising and has decided to do something about it. Yesterday, the state assembly passed the "Truth in Sports Advertising Act" (AB 1041), a bill aimed directly at the team's new monniker. I discussed the bill in this earlier post (2/25). The bill would require any professional sports team that plays a "plurality" of sporting events in a year in a place different from its official name would have to disclose that fact on all tickets, advertisements and promotional materials. The proposed law now moves to the Senate, where it is expected to pass. (Lawrence, "Angels would have to disclose Anaheim connection in ads, tickets," AP, 05/16/05; Shaikin, "Assembly passes 'Disclaimer' bill," LA Times, 05/17/05).

The necessity of this legislation is up for debate. California has its fair share of laws that require disclosure but that, in fact, do little. In addition, don't the Angels already satisfy the proposed law? After all, their official name is the Los Angeles Angels of Anaheim. This is pretty strong indication of where they play their games -- but I suppose the bill's purpose is to keep them from dropping the "of Anaheim."

As happens with most knee-jerk legislation, though, the bill could have a big impact on sports in California. Will suburbs even be able to compete to build new stadiums in the future? Will the NFL want to grant Los Angeles a team if it has to put on all of its promotional materials that the team plays in Carson? Without the competition from the surrounding areas, the cities may be able to strongarm the teams into long-term leases on unfavorable teams, which will only create animosity between the city and the team. The only certainty with the law is that it will have an impact far beyond the Angels and Orange County.

Sunday, May 15, 2005
 
Who is on Your Pick-Up Court?

I apologize for the absence from blogging -- the posts should be coming more frequently now. As a start, check out this non-law story from Slate: fitting NBA players into the stereotypes of guys who play pick-up basketball. The one I think is missing -- the guy who wears goggles. Too bad Horace Grant is not still playing.

Saturday, May 07, 2005
 
Hawaii Passes 18-Year Old Age Floor for Ultimate Fighting

Motivated by an increasing popularity of ultimate fighting, which involves a mixture of boxing and martial arts and which is presently unregulated in Hawaii, the Hawaiian Legislature has passed Senate Bill 768. This bill requires that contestants must be medically fit adults who have not been disqualified in another jurisdiction and that an experienced referee and licensed physician are present at the ring. It also levies a fine up to $10,000 for infractions. Governor Linda Lingle has until July 12 to sign it. (Gonser, "Bill Sets Rules for Hybrid Fight Style," Honolulu Advertiser, 5/7/05).

This bill was also motivated by a related incident last month. Apparently, a coach for a 14-year old boxer arranged for him to fight against 32-year old marital arts expert in an ultimate fighting bout. Hence, the bill contains a provision that the ultimate fighter be an adult. But the bill does not outlaw 14-year olds from boxing.

And that begs a question: Why should we be concerned about 18 year-olds playing in the NBA, or 20-year olds playing in the NFL, when it is okay that 14-year olds are boxing, even as amateurs? Plus, one can become a professional boxer and now a professional ultimate fighter at age 18 in Hawaii -- just like in most walks of life, once a boxer becomes an adult, he can test the market and see what he's worth.

It's strange that there doesn't appear to be the same outrage for 18-year olds repeatedly punching each other in the head as there is 18-year olds taking 18-foot jumpers or catching passes out of the backfield.

Friday, May 06, 2005
 
Florida Legislature Rejects Sales Tax Plan to Finance New Marlins Stadium

Citing lack of fairness in allocating sales tax subsidies to millionaires, Florida Senate President Tom Lee announced yesterday that his state's legislature has rejected the Florida Marlins' bid for a $60 million sales-tax subsidy for a new ballpark. This is the third recent failure by the Marlins to secure $60 million in sales tax subsidies. It is no doubt a major disappointment to the Marlins, and also to Miami Mayor Manny Diaz, who, upon learning of this news, complained, "If our state representatives can't see the big picture, then we'll have to do things on our own." (Clark & Caputo, "Strikeout for Marlins Stadium," Miami Herald, 5/6/05).

Given how sales taxes regressively re-distribute wealth, the decision of the Florida Legislature appears sensible. Indeed, with a sales tax, the rate remains the same for all persons, regardless of income or wealth. As a result, poorer and middle-class persons expend more of their available funds than do wealthier persons. In fact, according to a study conducted by the Citizens for Tax Justice in 1996, lower-income households pay over six times as great a share of their incomes in sales and excise taxes as do wealthier families, and middle-income households pay four times as great a share.

Moreover, even if a sales tax is to be implemented, wouldn't a better use of its revenue go to more pressing needs? I can't imagine that financing the Marlins' stadium strikes most Florida voters as more deserving of their tax dollars than curbing poverty, or expanding health care coverage, or some other certain need. It's nice to see that the Florida Legislature agreed, despite the overwhelming lobbying efforts of the pro-stadium faction.

All of that said, I am not philosophically opposed to the concept of publicly-funded stadiums. Rather, I am leery of using sales taxes to finance them. And even then I could (in theory) sign on to a sales tax plan, if--and only if--its proponents could prove that the stadium would generate more economic benefit to lower and middle income class persons than its financing would burden them. However, I'm skeptical that one could persuasively make such a counter-intuitive argument.

Related Posts:
Greg: New Turn in St. Louis Stadium Lawsuit
Greg: Eminent Domain and the Brooklyn Nets

 
Ontario Hockey League Lowers Age Floor to 15

The Ontario Hockey League, which is one of the three major junior leagues that comprise the Canadian Hockey League, has decided to lower the age floor for its entry draft from 16 to 15. Specifically, the rule allows "exceptional" 15-year olds to participate, with "exceptional" being a euphemism for "draftable." The impetus behind this decision appears more economical than philosophical: it is speculated that highly-regarded 14-year old John Tavares of Toronto was headed for the rival United States Hockey League (which does not have an age floor) unless the OHL changed its rule. Tavares will now be the number one pick in the 2005 OHL Draft. (Cressman, "OHL Opens Door to Top 15-year olds," London Free Press, 5/5/2005; Bender, "Exceptional Player Ruling Dismays Young Londoner," London Free Press 5/6/2005).

It is interesting how the presence of a rival league induced the OHL to lower its age floor in order to meet the labor market, whereas the unrivaled NBA and NFL seek higher age floors, even though phenomenal talent and production exists beneath those floors.

Related posts:
Mike: Gary Roberts on Impact of Clarett v. NFL and NBA Draft Issues
Greg: More on Age Limits in Professional Sports
Greg: Tales of Woe, Gore and Age Limits
Mike: Damaging Goods: The NFL Age Floor and Frank Gore
Greg: Clarett and Williams Drafted--Legal Case Revisited
Mike: Jermaine O'Neal: Racism Motivating Efforts to Ban Teenagers

Thursday, May 05, 2005
 
Speculation: Did Bud Selig Suspend Barry Bonds for the 2005 Season?

A poster on Sons of Sam Horn (whose membership includes Red Sox ace Curt Schilling, team owner John Henry, and numerous media types) raises an interesting, if perhaps quixotic idea:
Did Selig Suspend Bonds for the 2005 season?

This goes back to the old conspiracy theory with Michael Jordan's gambling escapades that many believe led to David Stern suspending MJ for one entire season to deflect what may have been a nightmare scandal for the NBA. There are many similarities between Jordan and Bonds being involved in activities that give their respective sports a black eye as well as comments made by Bonds which make me very suspicious that Bud pulled a power play (if he has it in him).

1 - Barry's interview this spring with his son saying he was finished. This was the first sign that saw to raise a red flag in my mind that something seemed awfully suspicious. Bonds appeared defeated....totally deflated. He told the media that they had won....that they had forced him out of the game. What was the true meaning of these statements? Barry complained about being tired despite just coming off an entire off-season (with the addition of recovery aids as well) and seemed to be writing the entire season off for what.......arthroscopic surgery? Bizarre and the first red flag for me.

2 - Barry working out with the team recently. Jogging and involved in baseball activities while appearing to be recovering from the minor procedure. Then he goes in for a cleaning out or a draining of the knee which would normally result in a one to two week layoff at most. Once this latest procedure is performed the word is that he will be out for another 8-10 weeks with other reports saying as much as 3 months which would bring us to the beginning of August.....how convenient and completely out of the blue.

3 - Am I convinced or confident that this conspiracy theory is true? Not yet. Will the next "surgery" or "report" in another two months that say Barry is coming along slower than expected or going in for yet another procedure give this theory some legs? In my mind, absolutely.

 
Texas Legislature -- Solving Society's Problems One Bill at a Time

The Texas Legislature has decided to tackle one of the most pressing issues in society today. It is an issue that deals with the very fabric of our youth and could be the most important part of the education system. Cheerleading. The Texas House of Representatives passed a bill on Tuesday restricting "overtly sexually suggestive" cheerleading and demanding "more ladylike performances." The bill, which still needs to pass the state senate and be signed by the governor, would authorize the state education commissioner request that school districts review high school performances. Said Rep. Al Edwards, who is hot on the case:
    "Girls can get out and do all of these overly sexually performances and we applaud them, and that's not right."
It is good that we have representatives protecting the most vital interests in society. We need more like him and less like this joker:
    "Have we done anything about stem cell research to help people who are dying and are sick advance their health? No," said Democratic Rep. Senfronia Thompson. "Have we done anything about the mentally ill, school finance or ethics?"
Perhaps someone can instruct Rep. Thompson on the importance of priorities.

And perhaps someone can instruct me on exactly what constitutes an "overtly sexually suggestive" cheerleading performance and what does not. After all, those male cheerleaders' hands may brush the females' backsides when they catch them after a stunt. Scandalous.

Wednesday, May 04, 2005
 
Big East and ACC Settle Lawsuit

The Connecticut Law Blog discusses the Big East and Atlantic Coast Conference settling a series of lawsuits between the two leagues resulting from a series of defections from the Big East to the ACC. Disclosure of this settlement only occurred after the Hartford Courant filed a Freedom of Information request to obtain the relevant documents from the Office of Connecticut Attorney General Richard Blumenthal.

 
Lost in Translation? MLB Steroid Testing Policy and Spanish-Speaking Players

Boston Red Sox DH/first baseman David Ortiz, a native of the Dominican Republic, wonders if language barriers help explain why four of the five players who tested positive for steroids are Latino. Ortiz appears annoyed with the Players' Association for failing to conduct information sessions in both English and Spanish. He also wonders why Major League Baseball failed to provide Latino players with drafts of the new steroids testing policy in Spanish. MLB Executive VP Rob Manfred acknowledges that while all of the documents applying to the Collective Bargaining Agreement are made available in both English and Spanish, final drafts of the new steroid testing policy were not immediately made available to players. (Guregian, "MLB Sees Ortiz' Point," Boston Herald, 5/4/2005).

Tuesday, May 03, 2005
 
Some Good Reads

I will be busier than usual over the next week and a half and so posting will be sparse. I apologize in advance, but commend to you the following good reads.

- The Washington Post discusses how overseas recruiting has become more difficult in the wake of 9/11.
- The fine gentlemen at The Sports Economist have interesting posts on ticket scalping and barriers to entry and franchising.
- Skip Bayless at ESPN has a good article on Manu Ginobli, including some great thoughts on the "stigma" of white basketball players in the US.
- And finally, Terrell Owens is a baby. I hope he gets fined as much as possible. You think the Eagles are still happy they signed him? Read about how his bad attitude has rubbed off in the clubhouse.