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Sports Law Scoreboard

An Inside Look Into The Legal and Business Side of Sports

Offensive to You, Me or the Average Reasonable Person

Posted in Intellectual Property, Sports Business and the Law

I was in NYC last week for the annual dinner of the Media Law Resource Center. Wonderful event. The pre-dinner panel was on hate speech and it intersected with the sports law world, with of course the Washington Redskins as Exhibit “A”.

The room was packed with luminary lawyers and  numerous opinions on the subject. What is the proper standard? I am not offended by the Boston Celtics (a reference to the historically large Irish-descended population of the city) but I had been raised to hear that “Canucks” was not a polite term, and now we have a hockey team so-named. Is the free market to determine whether there should be a trademark in a name? Should a sports arena be a “safe place” as the term is used on college campuses. Will ever-changing standards mean that teams need to change their names? My wife’s high school went from the Braves to the Patriots. My partner Lori Kozak blogged on this subject. I extend the dialogue and welcome useful commentary from readers.

Cancellation of Redskins Trademarks – Tackling Issues of Free Speech and Due Process

Posted in Intellectual Property

Lori Kozak writes:

It’s no secret that football is big business, and the Washington Redskins, recently ranked the third most valuable team in the NFL by Forbes, are heavyweights within that enterprise.  So the ongoing legal battles over the “Redskins” trademarks have attracted a lot of interest and controversy, particularly among sports fans who also happen to be trademark lawyers.

In July, the Eastern District of Virginia ordered cancellation of six federal trademark registrations of the “Redskins” on the grounds that the marks violate Section 2(a) of the Lanham Act, which states that a mark “shall be refused registration on the principal register” if it “consists of or comprises…matter which may disparage…persons.” 15 USC § 1052(a).  This case came up on appeal from the Trademark Trial and Appeal Board, which had held in June of 2014 that the term “Redskins” is disparaging to Native Americans.

Pro-Football, Inc. (“PFI”) appealed further to the 4th Circuit on behalf of the team, and recently filed its opening brief.  Various entities, including the ACLU, have filed amicus briefs in the case. PFI makes two intriguing constitutional arguments on appeal: (1) that Section 2(a) violates the First Amendment right to free speech, and (2) that Section 2(a) violates the Fifth Amendment Due Process and Takings Clause.

(a) At a basic level, these key issues can be broken down as follows:The district court held that Section 2(a) does not implicate the First Amendment because the decision does not prevent the team from using the term “Redskins”; rather, it simply means that PFI cannot access the benefits associated with federal trademark registration.  PFI argues that Section 2(a) impermissibly denies protections to marks based on content and viewpoint, excessively burdens speech, and simply doesn’t pass the strict scrutiny or intermediate scrutiny applicable to commercial speech.

(b) The district court further held that the federal trademark registration program is government speech and therefore is exempt from First Amendment scrutiny.  PFI argues that no one associates the message of a particular trademark with the government, and any speech implicated by a particular trademark is private speech and thus is protected by the First Amendment.

(c) PFI argues that Section 2(a) is unconstitutionally vague and thus violates Fifth Amendments Due Process Clause.  The lower court had held that Section 2(a) gives fair warning of what is prohibited, and the PTO provides sufficient guidance as to what “may disparage” through its publicly available decisions, manuals, and letters approving or denying registration.  However, PFI argues that the term “disparage” is itself vague, as are the PTO guidelines and decisions.  It also argues that Section 2(a) fosters arbitrary and discriminatory enforcement, driven by the subjective personal views of PTO officials, and offers up examples of other arguably offensive marks that have been allowed for registration by the PTO.

(d) Finally, the district court held the Takings Clause and Due Process Clause claims fail because a trademark registration is not considered property under the Fifth Amendment, again making a distinction between the registration and PFI’s underlying property right in the trademark.  However, PFI argues that because owners can sell their registered marks and exclude others from infringing them, they have a protected property interest.  Moreover, because they have held the trademark registrations for so long, they have an expectation to continue that property interest, and the cancellations are takings that trigger due process, which was violated by the long delay.

Lori S. Kozak is a partner in the firm’s Los Angeles (Century City) office.

Probate 101, or Why You Need To Get Your Affairs In Order

Posted in Family Law

Lamar Odom is in a world of hurt but hopefully on his way to recovery. The LA Times has published, tongue in cheek, that the worst thing about the situation is that the Kardashians will have more exposure. No, that is not the worst thing that could happen.

He has a wife (at least until there is a divorce), relatives and responsibilities. Hopefully he has a trust so that in the event the worst happens, federal and state officials do not lock up his assets in probate. A will would be nice to decree where his assets should go and in what order. Those basketballs that he has been saving? What relative or friend gets these keepsakes?

None of us want to face our own mortality, but we need to before situations are forced on us. As philosopher José Ortega Y Gassett said “No decision is a decision as well. “


Yogi and Sam

Posted in Sports Business and the Law, Sports History

As featured everywhere, including USA Today, Yogi is dead. I have always been struck by the wise malaprops that both he and Samuel Goldwyn coined. So much wisdom in each man. I have used Goldwynisms and Yogiisms before juries and each never fail to draw a chuckle from the audience. As a tribute, let me quote from Mr. G….”An oral contract is not worth the paper it’s printed on” and “I will never talk to you again unless I need something from you.” RIP.

The Other Bar: How Not To Let It Get to You

Posted in Sports Business and the Law

My heart goes out to Steve Sarkisian, USC’s football coach, even though I am a loyal UCLA Bruin. He got up in front of the most loyal supporters at a fundraiser, slurred his words and according to him mixed prescriptions and alcohol. He needs help and hopefully is on his way to receiving it.

One of my mentors was a dogged, tough litigator. He was also an alcoholic. He died at around 50. When we would go out to lunch, he would have three drinks. It is no secret that being a head coach or a trial lawyer is a tough job. In each, you prep hard and perform in front of an audience. Criticism can be immediate and devastating. You win or you lose. You do not tie. What’s to do? I have no solution, but I know that alcohol is not it.

Meditate, exercise, talk to your loved ones. Remember the quote from that great Trojan John McKay. When his team lost 52—0 to Notre Dame he met with his team and advised them, “There are one billion Chinese who could not give a damn.” Above all, if this is you, find help. There is an organization in town called The Other Bar. If you need it, there is no shame in starting afresh.

Third Circuit Determines That New Jersey’s Partial Repeal of Its Sports Betting Prohibition Is an Unconstitutional Violation of PAPSA

Posted in Sports Business and the Law

In a 2-1 decision this morning, the United States Court of Appeals for the Third Circuit affirmed the District Court’s decision that New Jersey’s law partially repealing its prohibition against sports wagering violates the Professional and Amateur Sports Protection Act of 1992 (“PAPSA”).  The Honorable Marjorie O. Rendell, who wrote Court’s majority opinion, concluded that New Jersey’s law “violates PASPA because it authorizes by law sports gambling.”

Judge Rendell stated that “PASPA is constitutional and does not violate the anti-commandeering doctrine” – a holding the Third Circuit had already reached the last time New Jersey attempted to legalize sports betting in 2012.  Then, despite noting that New Jersey had a “salutary purpose” of attempting to revitalize its casinos and racetracks, Judge Rendell acknowledged that the Court was bound to interpret PAPSA as Congress intended.

Ironically, to reach her conclusion that Congress intended to ban sports betting in New Jersey, Judge Rendell cited a one-year exemption from PAPSA granted to New Jersey when the law was enacted in 1992.  That exemption would have permitted sports betting at New Jersey’s casinos had New Jersey taken advantage of the exemption at the time (which it did not do).  Judge Rendell held today that “by explicitly excepting a scheme of sports gambling in New Jersey’s casinos from PAPSA’s prohibitions, Congress intended that such a scheme would violate PAPSA.”

Judge Rendell also stated that the fact that New Jersey’s repeal is limited to racetracks and casinos “constitutes specific permission and empowerment,” which runs afoul to PAPSA.  Only a full-scale repeal would avoid conflicting with the statute.

Adding to the irony mentioned above, the Honorable Julio M. Fuentes, who authored the Third Circuit’s prior opinion finding PAPSA constitutional, wrote a dissenting opinion.  He failed to see Judge Rendell’s logic when she concluded that a partial repeal constitutes an improper “authorization” under PAPSA, while a full repeal would not.  Judge Fuentes instead recognized that “[a] repealed statute is treated as if it never existed; a partially repealed statute is treated as if only remaining part exists”.  Thus, after New Jersey enacted its repeal, “it is as if New Jersey never prohibited sports gambling in casinos, gambling houses, and horse racetracks.”

Going forward, it is likely that New Jersey will Petition the Third Circuit for a rehearing en banc, which would result in full review by the entire Third Circuit if granted.  If the Third Circuit declines to hold a rehearing en banc or affirms its panel’s decision, New Jersey would likely Petition for Writ of Certiorari to the United States Supreme Court to have the Supreme Court review the constitutionality of its partial repeal.  The fact that the same Judge who authored an opinion finding PAPSA to be constitutional dissented today indicates that an appeal would have at least some likelihood of success.

HIPAA HITECH & HIT Blog: Athletes Do Not Leave Their HIPAA Rights at the Locker Room Door

Posted in Privacy Issues, Sports Business and the Law

On the firm’s HIPAA, HITECH & HIT Blog, Fox partner Elizabeth Litten published a post yesterday noting two recent high-profile instances of HIPAA breaches involving professional athletes, and reviewing a 2002 clarification by the U.S. Department of Health and Human Services that a professional athlete has the same HIPAA rights as any other individual.

Fox partner Bill Maruca also recently discussed one of the instances in detail – a tweet by ESPN reporter Adam Schefter containing a screenshot of hospital records from hand injuries suffered by New York Giants defensive end Jason Pierre-Paul on July 4.

Five Tips for Young Lawyers Interested in Practicing Sports And Entertainment Law

Posted in Sports Business and the Law

I hear from young lawyers at least twice a month, interested in practicing in sports and entertainment law. I generally talk with them, unless they call wanting me to come up with a topic for their law review article. Heck, coming up with the topic is part of their growth experience, not mine.

Here is a synopsis:

  1. Do not worry about becoming a sports and entertainment lawyer. Worry about becoming a good lawyer. Entertainment and sports lawyers come from all backgrounds, from former public defenders to estate lawyers.
  2. Join relevant organizations. I am outside G.C. to the National Sports Marketing Network. It is most worthwhile. Look also at the ABA’s Forum on the Entertainment & Sports Industries.
  3. Ask yourself: why? If it is for the glamour and excitement, think again. While it is fun and exciting, you are not Jerry McGuire.
  4. Read, read , read. Go to ESPN.com and SI.com every day. What are the legal problems highlighted? How would you handle them?
  5. Find a way for us to work together. Great way to learn.


Five Things That a Good Lawyer Could Do for the Women’s Soccer Team

Posted in Sports Business and the Law

One of our fine associates just returned from the 2015 FIFA Women’s World Cup Final in Vancouver.  Heady, exciting event. If I were advising the women on the team, I would suggest that they take a look at the following:

  1. Disability insurance: Youth does not last forever and even the greatest athlete is one knee away from being unemployed;
  2. Estate planning: Ah, to be young, single and immortal. But smart people plan ahead.
  3. Make the right marketing deals: Good agents make deals; smart lawyers guide, write or edit effective deals.
  4. Pre-nups: Not just for men anymore. Each person is different, but something to consider (and includes same sex marriages these days).
  5. Endorsements: Protect yourself against deals that benefit others and not you. Look for companies that will grow with you.

Bonus pick: Pay attention to your education. It is unscientifically proven that athletes who know what they are doing off the field, tend to do better financially.


“An Oral Contract Isn’t Worth the Paper It’s Printed On”: NBA Style

Posted in Sports Business and the Law

This famous (and incorrectly reported) quote is attributed to Samuel Goldwyn of MGM fame. The response is “It depends.” DeAndre Jordan of the L.A. Clippers told everyone that he was going to sign with the Dallas Mavericks. He goes to Texas yet meets again with a group of teammates from the Clippers. All of a sudden, he is wavering.

In California oral contracts are legal with certain statutory restrictions. For example, palimony suits are so ‘70s and the courts tired of them, nixing them in the California codes. Oral promises to marry are so 19th Century, but used to be legal and subject to suit.

In any event, the NBA requires a written contract and it is his prerogative for Jordan to come back home to his adopted land and lead the Clippers to the Promised Land.

By the way, Mavs owner Mark Cuban might be subject to another Goldwynism from Mr. Jordan, “I will never talk to you again, unless I need something from you. “