Sports Law Scoreboard : Sports Lawyer & Attorney : Fox Rothschild Law Firm : Intellectual Property, Copyright Infringement & Privacy for Athletes

I attended a patent law conference in San Diego this past weekend and encountered two individuals to whom I am connected by, interestingly, the game of tennis.

First, I had the opportunity to play tennis with Hon. Randall Rader, Chief Judge of the U.S. Court of Appeals for the Federal Circuit.  In my previous life, I was a collegiate tennis player (Go Bruins), and was looking forward to playing after a long hiatus.  Judge Rader did not disappoint with his skills on the court.  In particular, I was most impressed by Judge Rader’s intensity, competitiveness, and passion for the sport.  I’m not even sure I saw him stop to drink water on changeovers.

After listening to Judge Rader speak at the conference later on, it was clear that he has the same passion in all aspects of life and including his position as chief judge, which requires many administrative responsibilities in addition to his own docket.  Certainly, the Federal Circuit appears to be running quite efficiently, which is likely attributable in large part to Judge Rader.  In short, I must say I was thoroughly impressed.

I was equally impressed by a friend who I had the chance to catch up with while in San Diego, and who I had not seen for literally a decade.  He spent five years dutifully serving our country in the Marines, then went to college and graduated in just three years.  Now he has his own successful fitness company, HMS Fitness.  After five years on active duty, I’m sure the transition back to civilian life wasn’t easy. Yet, I’m not sure he has even realized the significance of his accomplishments because he continues to look onward and upward.  Quite admirable.

Indeed, what you can get from a sport is not only experiences on the court, but those off the court—such as these from my past weekend—as well.

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My friend and mentor, Cordell Parvin, recently blogged on the Giants beating the Packers. Seems one of the New Yorkers held a team meeting and challenged his teammates:: "Are you all in?"  Cordell, who has boundless enthusiasm, used it as a metaphor for our professional activities.  Are we focused or going through the motions? The truly talented lawyers that I see are those who are all in...which does not mean being a law slave but does mean bringing focus, creativity and yes, hard work, to the tasks at hand.

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Last month, the New York Times Magazine ran a kick-tush article advocating paying college athletes in football and basketball for their services. The arguments have been made before in other forums, but the economic data in the article was most impressive. The article drew a rejoinder from Tom McMillian. Mr.. McMillian was an excellent college basketball player himself (the Maryland Bill Walton to us west-coasters) and he then served as a U.S. Congressman. His rejoinder was that this could not work because it would be violative of Title IX as women athletes would not be covered.

While I wax and wane on whether we should abandon all pretense of amateur big-sport athletics, seems to me that the proposal would pass muster as long as the payments are defined by revenue generated by the sport and not by limitation to boys and men. In other words, if women's college tennis can generate the revenue, why not pay them?  Thoughts readers? 

Photo credit: http://nephos.wordpress.com/

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As reported by SFGate.com, Tony Blankley has passed away.  Blankley was best known as Newt's press secretary when Newt was the majority leader. My path crossed with his when we were both at the State Attorney General's office in California. He and I would discuss politics and we agreed on virtually nothing except the civility with which to conduct the discussion. Blankley had that wonderful British accent, which belied the fact that he was one of a gaggle of Jewish boys that had graduated from Fairfax High School.

What does this have to do with sports? In virtually every team event these days, the winners and losers shake hands or give hugs at the end of the contest. Before the '70s, you never saw that. The philosophy was that you were to hate the other team with a purple passion. Today's players (albeit well-paid) have realized it is better to focus on the game than hating your opponent. Politics is both a game and a serious calling, but on the day of the New Hampshire primary, and in honor of Tony, perhaps we should all realize the beauty of the clash of ideas and not individuals...

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According to Bloomberg News, Chris Petersen of Boise State just inked a $2 million per year contract with Boise State to continue coaching their football team.  No one had ever heard of Boise State as a football powerhouse five years ago and now they have been invited into the Big East. Why is he my hero? Because he built it and stayed.  We are familiar with the ring-around-the Rosie movings of elite football and basketball coaches, but Petersen defies the common succeed and move up model, choosing to stay instead and achieve his further goals there.  Link to law?  A law firm is a platform. Too often one sees successful partners leave successful firms, instead of building on the platform they have helped create. Too often one sees this followed by multiple moves.  Advice for the new year.....if you have achieved at (your business) consider staying and building rather than jumping around, provided that your platform allows for further growth with people you enjoy.

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Adding to the firestorm that has broken out over the Bernie Fine sexual abuse scandal is the recorded telephone conversation between Bobby Davis, one of Fine’s accusers, and Fine’s wife, Laurie. Mrs. Fine suggests that the taping has been edited, but whether the taping was legally recorded is perhaps a more interesting issue. Both Utah, where the call originated, and New York, where Mrs. Fine was, are states with “one party consent” laws in the realm of recording phone conversations. Essentially, this means that only one party to the conversation needs to have knowledge of and give consent to the recording for it to be legal. 

Had at least one of the parties been in California, for example, the recording’s legality would be more tenuous because California laws require all parties to a phone conversation to be aware of and consent to the conversation’s recording. States like California, however, are the minority in this area. Indeed, the fact that the privacy of one’s phone call depends on where exactly the parties to the call are geographically located may be quite troubling to some. Adding to the saying, “Be careful of your thoughts, for your thoughts become your words,” we should surely be careful with our words. . .because they might be recorded!

photo credit: transom.org

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Tim Tebow was a huge college quarterback, projected for failure in the NFL. Instead, he is winning. He is hallelujah, not hip hop, square, not cool, thankful, not thankless. Lesson here: be yourself. One of the biggest (actually quite short) trial lawyers in LA during my pup days was a short guy, with a Radar O'Reilly look (from Mash), who had a courtly Southern  presentation, rather than cut and slash. Motto once again: be yourself, but be your best self.

photo credit: Caveit Calcei

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When baseball players seek free agency, there is a procedure called a baseball arbitration.  In it, each side names a number not known to the arbitrator. The arbitrator examines the proofs from management and the player's representative, and then announces his "number."  The party closer to the number gets what it has advanced.  Why not try it in basketball?  It would be high stakes, but would end the impasse.  I do not know whether I am more depressed by the state of basketball negotiations or the Super Committee.

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Went to see the UCLA Bruins play Middle Tennessee State the other night. I am a UCLA graduate and have a friend who worked for years at Middle Tennessee. I was shocked to see the Bruins lose by 20 points to a mid major and without being unkind to those who are still adolescents or post-adolescents, they have a long way to go before being a Ben Howland team. Poor defense, no crashing the boards and above all, no spirited play. Which gets me to the law side of the column. I have long been a believer that you need to prepare for and respect every opponent. I have seen too many cases where one side underestimates the other. I do not know if that was the issue here, but with a fine coach like Howland, do not expect it to happen again. When an associate comes in and tells me that the other side's papers are not Harvard White Book, I always remind them that juries do not read or use the Harvard White Book. Always prepare to face the best.

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Post written by Jeffrey Kravitz and Jaysen Chung

At the end of last month, Kelly Phillips Erb posted an article on Forbes.com about a great night of MLB play as the regular season drew to an end (including the Rays big comeback against those Yankees). Perhaps more importantly to you gamblers out there, Erb put her readers on notice of the requirement to report your winnings from betting on sports games for tax purposes, “even if it comes from your neighbor or office pool” (leave it up to the IRS to take the fun out of betting on sports games).  Erb even identified the forms necessary to fill out to report the winnings as well as those to claim your losses. This is great advice for the casual gambler who doesn’t want to get caught up in any trouble for some innocent fun.  Like the phrase goes, “Better safe than sorry.” You never know what can of worms might be opened up by some innocent, casual sports gambling.  Though not necessarily tax-related, think back to Rick Neuheisel’s neighborhood basketball gambling pool that not only violated NCAA rules but also led to a whole slew of related headaches. As my father used to say, "You can do things the hard way or the easy way." I was an adult before I realized that the easy way was always his way!   

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Just last month, Adrian Arrington, a former strong safety on Eastern Illinois University’s (EIU) football team who suffered memory loss, seizures, and other symptoms caused by the several concussions he suffered while a student-athlete, filed a class action lawsuit against the NCAA for, among other counts, negligence and fraudulent concealment.  Arrington alleges the NCAA failed to set in place proper regulations for its member schools regarding concussions and that for the past forty years, the NCAA has “concealed any correlation between on-field concussions, its return-to-play policies and the chronic mental illnesses and maladies suffered by former student-athletes.”   

The health of college student-athletes should be a priority to both the NCAA and schools, but on whose shoulders should the responsibility fall?  The NCAA, the school, or both?  In my opinion, because the school has the most direct access to these athletes and therefore the best opportunity to monitor them, the majority—if not all—of the responsibility should fall on the school. 

However, given that EIU is a state university, it could assert and probably succeed on a sovereign immunity defense. Even if such a defense fails, the school can still probably ward off blame by saying it adhered to the NCAA guidelines (or, allegedly, the lack of them). With that said, if the NCAA instituted stricter guidelines for concussions, would schools actually follow them?  We’ve already seen how schools fail to abide by even the simplest of NCAA rules (i.e., Kentucky, Miami, USC). So, at the end of the day, will the (possible) success of this suit have any actual effect on this issue? 

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As featured in CNN’s report about the international Olympic Court threw out the lifetime ban on athletes found guilty of violating drug policies. I am just back from an international conference held in London where I met with some fantastic attorneys from European countries. The reaction there was that a lifetime ban was just too close to a death sentence for civilized people. Broadly, Americans tend to be more absolutist in their thinking. I asked a Belgian attorney why so many international negotiations tend to take place in Brussels and his reply was telling: "Our whole country is a compromise (Flemish and French)." The argument is a little like the argument for a death penalty....no ambiguity in the results!

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"Teach Your Children Well"was a well-known song of my youth. A recent column of the New York Times questions whether we parents are meeting that obligation. The gist of the column is that young people do not even understand when there is a moral quandary, deferring that such issues are matters of personal preference or taste. Back to Sports and Law. The reason we have rules in each is to govern our behavior, in society and on the playing fields. Maybe we all fudge a little, but I am always pleased and amazed when clients come in expecting justice from our society. And we are offended when people cheat in sports. I would suggest that this shows some good things in society, that people do understand that there is such a thing as a higher decider, be it judge, jury or umpire. The hardest things for clients to understand is that others may lie in the process and that, as I am fond of saying, if we have 100% of the law and 100% of the facts, you usually win about 75% of the time. We strive for justice, but the system is inexact.

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