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

On July 21, 2010, USC announced appointment of former professional quarterback Pat Haden as their new athletic director.  Hayden is a lawyer by profession, having gone to Loyola Law, my alma mater.

My favorite story involves a friend (not a sports fan) meeting Haden on a line (before there was online) to buy books.  Hayden, who is not a large guy, asked my buddy what he did in his spare time and my friend replied that he played handball. Pat's response was that he played a little football.  My friend responded that "I always considered those guys to be jock brains" completely unaware that Haden was a phi beta kappa and former Rhodes Scholar. Enchanted with someone who did not love him for his place on the field, the two became fast friends.

By the way, perfect choice for a school under heavy fire. Pick a guy who knows the law and has been trained to follow it.

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As featured in VeloNews.com on July 9^th, 2010, two contestants traded punches at the finish line, one asked for an apology, the unwritten law in sports is that this sort of thing, while not condoned, is allowed (well, maybe in hockey).

I am not aware of anyone filing charges or a civil suit except for the Rudy Thomjanovich case with the Lakers a generation ago. Rudy T was a perpetual all-star and never was the same after an eye injury. Case settled for what was then big bucks. Would be interested to know if any readers are aware of other civil suits involving sports contestants in combat with each other.  

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Post contributed by Jaysen Chung, Summer Associate

Who won in the marketing contest between Nike and Adidas in this World Cup? Sometimes spending millions of dollars to be an official sponsor of an event like the World Cup just doesn’t pay off.  This seemed to be the case for Adidas, an official sponsor of the World Cup, as it appeared to be beat out by unofficial brand Nike in “connecting with soccer fans and consumers,” the Sydney Morning Herald reports.  The unfortunate situation for Adidas may be best highlighted by two main advertisements released by Nike and Adidas.  Many fans have stated that Nike’s “Write the Future” ad is simply more appealing than Adidas’ “The Quest” ad, and thus it is not a surprise Nike won with soccer fans and consumers.  Nike is engaging in “ambush marketing,” which occurs when companies that are not official (i.e., paid) sponsors of an event nevertheless engage in marketing campaigns that create the impression that they are associated with the event.  This is not necessarily a new phenomenon, and occurred during the Winter Olympics this year, as discussed in Fox Rothschild’s fashion law blog. 

Is it a smart decision to save on paying to be an official sponsor of an event and instead invest that money on effective “ambush marketing”?  In the United States, there is not currently a law specifically addressing ambush marketing, so parties complaining of “ambush marketing” must rely on broader intellectual property claims.  Is the United States in need of such a law, similar to how South Africa amended its Merchandise Marks Act in 2002 in an attempt to “protect events” from ambush marketing?  Or would this be going against various principles we value, including intellectual property law’s principles of encouraging innovation and creativity?

While Nike may have won the marketing contest against Adidas, perhaps Adidas came out on top in the end: the ultimate champion of the World Cup, Spain, wore Adidas.

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Post contributed by Jaysen Chung, Summer Associate

The latest news for Barry Bonds’ perjury charges (for swearing under oath in 2003 that he did not take performance enhancing drugs, in light of 2001 BALCO tests showing otherwise) is looking good for him. Last Friday, the 9th Circuit affirmed the district court’s decision to exclude hearsay evidence that would have otherwise been terrible for Bonds’ case. This evidence includes statements made by Bonds’ trainer, Greg Anderson, who allegedly confirmed that the urine sample was that of Barry Bonds when he gave the sample to a BALCO employee for testing in 2001. 
On appeal, the government prosecutors made two arguments: 1) that, under Federal Rule of Evidence 807, Anderson’s statements fall under an exception because it provides “circumstantial guarantees of trustworthiness; and 2) that pursuant to Federal Rule of Evidence 801(d)(2)(D), Anderson’s statements are not hearsay because he was an agent or servant of Bonds who made those statements during and within the scope of his employment or agency. The 9th Circuit rejected the first argument, holding that Anderson’s statements were not trustworthy, largely in part because the BALCO employee admitted that he had “once mislabeled a sample when Anderson told him to do so.” The 9th Circuit also rejected the second argument, holding that Anderson was not Bonds’ employee and that Bonds had a “Dude, whatever” attitude to Anderson’s actions.
So, is this a home run victory for Bonds? Not necessarily so. As Lester Munson wrote on ESPN.com, the prosecutors do have the option of trying to bring an appeal to the Supreme Court (although this is a longshot). It will be interesting to see what their next step will be. In the meantime, Bonds can’t be too upset with how this case is progressing (or not) so far.

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Post Contributed by Jaysen Chung, Summer Associate

With the World Cup in full swing, vendors selling knock-off national team soccer jerseys are sure to be out in full force in the host nation of South Africa (and of course, other soccer-devoted nations). In the past months, South African authorities have been trying to crack down on these sales. The Dawn Media Group reports that according to the Counterfeit Goods Act in South Africa, conviction for possession of fake goods can result in a three-year jail term or a 5,000 rand (approximately 650 US dollars) fine per item found in possession. Reportedly, the official brands of these soccer jerseys (Adidas, Nike, etc.) will lose thousands of dollars in sales.

On Fox Rothschild’s Fashion Law Blog, Staci Riordan has discussed the debate over whether knock-offs can hurt or help fashion designers. Although these official brands will unfortunately lose thousands of dollars from these knock-offs, perhaps they can grab some benefit as well. With more people wearing these "fake" jerseys (that look like the real thing) sold all over South Africa, this could be yet another advertising tool for the official brands to sell their own jerseys. For instance, if people in the US want to buy a Bafana Bafana (the nickname of the South African national team) jersey, they will likely have to go to the store to purchase one made by the official brands.

While it may be inevitable that knock-offs will continue to be sold throughout the remainder of the World Cup, perhaps the official brands can turn lemons into lemonade…even though that lemonade will still be pretty bitter.

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In "NFLPA Files Complaint Against NFL Over Television Deals", SI.com deals with the issue of the NFL players vs owners in the event of a lockout or strike.  Seems the owners have more protection than the players and players are crying foul.  A longtime agreement requires the owners to try to maximize revenue to the players and the players feel that the covenant of good faith and fair dealing has been broken.  Every contract has an implied covenant of good faith and fair dealing in California, which is basically the Golden Rule.  Much commentary from the players on this one and none from the owners.  Will be interesting to see their reply and we will be following.

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Post contributed by Jaysen Chung, Summer Associate

Manny Pacquiao has finally agreed to undergo a drug testing schedule, SI.com reports, after he and Floyd Mayweather reached an impasse earlier this year in their negotiations for a much-anticipated fight.  Negotiations in January resulted in a stalemate, largely because of a defamation lawsuit Pacquiao filed against Mayweather after Mayweather made statements implying Pacquiao engaged in steroid and performance-enhancing drug use. As of a few weeks ago, the lawsuit was still pending, and this will be an interesting factor in any further negotiations for a Pacquiao-Mayweather bout.

I’m glad Pacquiao has finally agreed to this drug testing schedule, but these defamation lawsuits regarding implications of performance-enhancing drug use seem all too familiar. Remember when Roger Clemens sued ex-trainer Brian McNamee for claiming to have injected Clemens with performance-enhancing drugs? Or, what about when Barry Bonds threatened to file a defamation lawsuit against Curt Schilling for commenting on Bonds’ alleged steroid use and Bonds’ former mistress’ potentially damaging testimony about his use? In a way, it seemed as though filing (or threatening to file) these defamation suits were being used as attempts to deny such allegations. However, we all know how those two cases turned out.

If Pacquiao does actually undergo a drug testing schedule, hopefully his results will be more positive (excuse the pun). Perhaps, instead of filing defamation lawsuits in response to steroid use allegations, athletes should take a hint from the late Coach John Wooden, who said, "Be more concerned with your character than your reputation, because your character is what you really are, while your reputation is merely what others think you are."

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Post contributed by Jaysen Chung, Summer Associate

Today, as reported by ESPN, the University of Southern California is scheduled to respond to the NCAA committee’s investigation findings of NCAA violations by the USC football and basketball programs (namely, Reggie Bush and O.J. Mayo).  In light of this news, it is interesting to note the slew of other athletic programs that have recently been alleged to have committed their own NCAA violations. Included are University of Oklahoma basketball, UConn basketball, University of Michigan football, and University of Kentucky football. Violations range from players receiving money to help get a high school transcript cleared so that he could play for the team to impermissible phone calls and texts from coaching staff to recruits.

It seems as though we are always hearing about some college athletic program violating NCAA rules. Is it because the rules are too lenient? Perhaps, the NCAA is in need of stricter rules that will serve as a better deterrent to coaches and athletic department staff and will push programs to monitor their staff more closely. Alternatively, could the courts step in? In Shelton v. NCAA, 539 F.2d 1197 (9th Cir. 1976), the Ninth Circuit held that it is not judicial business to tell a voluntary athletic association such as the NCAA how best to formulate or enforce its rules. The courts’ function is only to determine whether the NCAA has selected a method of protecting amateurism which is reasonably related to that goal. So, for now, it looks like it’s all up to the NCAA. Who knows? Maybe the NCAA enjoys dealing with this headache.

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Post contributed by Jaysen Chung, Summer Associate

As reported by ABC News, Odessa, Texas, a sports-obsessed city and the inspiration for the movie Friday Night Lights, is now the setting for a falsification of identity case involving a 22-year-old man posing as a 16-year-old sophomore basketball star. Guerdwich Montimere, a naturalized citizen from Haiti who graduated from high school in Florida and had briefly played basketball at a community college, enrolled at Permian High School last year and has since led the basketball team to much success. The school’s basketball coach, thinking that Montimere was homeless, had even allowed Montimere to stay at his home for some time. However, the coach and school officials claim they had no idea that Montimere, who stands at 6’5", was actually the age of a typical college senior.

Of course, mere height does not necessarily coincide with age, but can we really believe no one had any clue Montimere was actually older than he claimed to be? While it may be true that the coach and school officials did not actively engage in this falsification of Montimere’s identity, they may have turned a blind eye to any doubts regarding his age once they witnessed his athletic prowess. If that was the case, could they be liable as accomplices in this fraud or for mere negligence? Perhaps, they should just receive a slap on the wrist with a suspension or probation. Ultimately, however, I don’t buy their apparent ignorance of Montimere’s age. I have seen Montimere’s picture, and he certainly did not drink from the fountain of youth. He must be the oldest-looking 16-year-old I’ve ever seen.

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