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

By Jeffrey S. Kravitz

As featured in the Toronto Globe and Mail a Canadian company that sells 95% hockey chatchkes is suffering mightily by virtue of the hockey lockout. Does the NHL owe that person anything...no, because it is a commercial relationship and not a fiduciary one. What is a fiduciary? It is a person or institution that owes another the highest duty of good faith. Think a trustee or dare I say it, a lawyer. The law imposes superior obligations on such folks by virtue of the trust imposed in them. The NHL....likely nada. How could the vendor have protected himself?  He could have tried to put a clause in his license contract with the NHL that required them to pay him in the event of a strike or lockout (good luck). Perhaps he could have obtained business insurance that did the same thing. Or he could have diversified as stated in the article to Major League Baseball or the NBA. The lesson? As presidential advisor Bernard Baruch once remarked, "if you are going to put all of your eggs in one basket, watch the hell out of the basket."

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With both football and basketball negotiating over new contracts, the rule of reason should apply. There is simply too much money but each side is waiting for the other to blink.

I have had negotiations like that and the best remedy is to agree to a news blackout, work with a mediator each side respects and hold talks off the record and in private. There are any number of variants on this approach, but my favorite is the story told by my law school roommate's father, who was the federal mediator for the Western Region of the Federal Mediation Service. He got so frustrated during negotiation of a sheriff's strike that he locked both sides in a cell overnight. The matter settled by the time he showed up the next day.  

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This is the title of an old labor song made famous by Woodie Guthrie. This came up as a topic over turkey day in Texas because NFL contracts are not guaranteed (except for bonuses) while those in other sports are largely guaranteed. The assembled, a fairly conservative group, wanted to keep it that way, concerned that their ticket prices not go up. Concern for injured workers was sorely lacking. With all of the recent publicity on concussions, look for the NFL to work toward some sort of compensation to injured players, thus improving their self-image and providing a more just system.

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