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

By Jeffrey S. Kravitz, Esquire & Sekou Campbell, Esquire

Sam Kahn, Jr. of ESPN Radio recently reported that Johnny Manziel is exploring the option of "Exceptional Student-Athlete Disability Insurance," provided by the NCAA. The insurance coverage is reported to be routinely sought by players in Manziel's position. Insurance, a frequent theme on this blog, poses interesting questions for college athletics generally, and for the "exceptional athlete" in particular.

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By Maura L. Burke, Esq.

Earlier this month, news broke that Notre Dame football star Manti Te’o was the victim of an elaborate hoax involving an online relationship with an imaginary girlfriend. Aside from starting the newest Internet trend of “Teoing”, the linebacker’s well-reported fake girlfriend ruse brought to light the prevalence of “catfishing” scams.  The term “catfishing” is taken from the 2010 documentary, titled “Catfish”, about an online romance that was predicated on a fictitious identity. 

According to attorney and blogger, Bradley Shear, catfishing is generally not against the law.  Some states have laws that only criminalize online impersonation of an actual person, but not of fictitious persons. Other states are trying to pass more aggressive legislation banning online impersonation, but they may ultimately raise First Amendment issues.   

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By Jeffrey S. Kravitz, Esq.

Johnny Manziel is putting up numbers for Texas A&M that make him, if not the odds on favorite for the Heisman, at least a face that we will see at the New York Athletic Club when the award is given. And why not? Does anyone doubt that Kareem Abdul Jabbar was the best collegian in the land as a freshman or Bill Walton?

In those days, freshman were not even eligible to play varsity ball, but Johnny Football sure looks good for a kid you never heard of coming into this season. As the sentiment in the Dallas Morning News Blog has it, why not? In private law firms, freshman are most often relegated to the back room (my firm excepted) but in public employment, they often hand you a file and say "try this case."  As a young pup, I faced a veteran trial lawyer on a civil rights case who had a big reputation. I was too green to know who he was and my bosses let me run with it. Beat him to everyone's surprise, I had a senior lawyer who did not want to try cases any more hand me a file, only to have me find out that I was facing the man known as the Desert Fox. Always loved the quote from Hall of Fame baseballer Dizzy Dean  "It ain't braggin' if you can do it."

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Schools and the NCAA have attempted to raise college athlete graduation rates, a subject of a previous post here.  California Governor Jerry Brown recently signed a law designed to further address the graduation rate woes in certain college athletic programs, at least for four schools in his state (UCLA, USC, Stanford, and UC Berkley).  The “Student-Athletes Bill of Rights” law has three features, all meant to mitigate the risk of a student athlete dropping out.

First, the law requires that student athletes get a guaranteed four-year scholarship so long as the university does not dismiss them “for cause.”  The law carves out an exception that permits schools not to renew a scholarship to an un-injured athlete if it graduates more than 60% of its student athletes.  Critically and wisely, the law requires schools to disaggregate their graduation rate data by sport.  Aggregated graduation rate data typically hides poor baseball, football, and basketball student athlete graduation rates.  The law also makes sure to name basketball and football players in its definition of student athletes.  According to one report, UCLA, USC and California have consistently had extremely large gaps between the graduation rates of their general student body and those of their football and basketball players.

                           Photographed by: Bobak Ha'Eri

Second, the law protects students from incurring prohibitive medical costs due to an injury incurred as a result of playing the sport for which they have a scholarship.  Specifically, the law requires schools to pay all medical costs for students, including insurance premiums and deductibles for low-income students.

Third, the law requires a “life skills workshop” for freshmen and juniors designed to encourage student athletes to understand debt, budgeting, and time-management.

At bottom, the law mitigates the higher risks facing student athletes due to injury and historically and currently low graduation rates.  It does so by addressing both the educational and physical needs of California students.  Stanford, apparently able to solve the graduation rate gap issue, and U.S.C. reportedly offer an equitable objection to the law, arguing that these protections should be extended to all California college student athletes and not just the four here.  However, big money schools like the California PAC-12 schools affected here have the resources available to take on the additional costs imposed by the “Student-Athletes Bill of Rights.”  Indeed, the law requires these schools to pay for any additional costs out of their media-rights revenue.  Most agree, however, that the state should pursue the principle that “neither personal injury nor poverty should dim the dreams of a student-athlete pursuing a college degree.”

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Buckeye Cardale Jones tweets that classes are pointless. And perhaps they are for him. Our summer associate for next year spent seven years working construction before going to college. Some things just mean more to us at different periods of our lives. My torts professor used to say that no one should be allowed to go to law school before age 27.  And then there is Rod Stewart, "Why Go to School to Learn the Words of Fools".....Itchy Koo Park.

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By Jeffrey S. Kravitz and Sekou Campbell

According to the Wall Street Journal and the Associated Press, the NFL has reached a tentative agreement to end its lockout of the referees. 

Ed Hochuli, whom Jeff Kravitz has worked with (as a lawyer not a ref), reads “Rules. Lots of Rules.” This year, during the lockout, Hochuli even held a boot camp during the NFLRA’s negotiations with the NFL. So, the professional officials will likely be ready when they return tonight to don the zebra stripes in the Ravens v. Browns game. The NFL no doubt values its referees, but this labor dispute begs a larger question: How does a sports league, worth billions of dollars, valuate referees in the marketplace?

Referee valuation poses a set of issues distinct even from player strikes or lockouts because referees gain value when they lose prominence. When a referee or umpire calls a “perfect” game, they rarely do or should get mentioned.  Their “invisibility,” however, challenges their sports league employers to come up with a workable economic model for their market. Perhaps sports leagues now have the information they need to appropriately evaluate the market strength of invisibility.

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Education is a unique commodity. Beyond the ability to earn more in the marketplace, education has an intrinsic value. It gives individuals the tools to more fully engage the entire observed world psychologically, personally, professionally, politically, and philosophically. Few other endeavors so dramatically expand rather than diminish returns of investment over time. Thus, questions of compensation in the school setting pose particular challenges to those who must adjudicate them.

I recall my own personal foray into the question when it involved graduate student unionization at Columbia University. As part of the student caucus of the Faculty Senate, I participated in difficult discussions with students, faculty and the administration about the challenges of collective bargaining in the academic environment. Students and administration officials in private universities continue to argue their positions on the matter.

The attention and money involved in student athletics only amplify these difficulties. Ed O'Bannon and Missy Franklin demonstrate the spectrum of student athlete compensation issues.  Former UCLA Bruin Ed O’Bannon is lead plaintiff in a 2009 class action suit seeking a percentage of the NCAA"s licensing revenue. He recently attempted to expand the class to include current men's basketball and football players, the two sports that garner the majority of licensing revenue for the NCAA. Under NCAA Operating Bylaws 12.1.2.1.4.1.2 and 12.1.2.1.4.3.3  "Operation Gold Grant" (Aug. 2011), Missy Franklin would be allowed to keep over $200,000 in compensation for her London Olympics' performance. Though, to her credit, she would forego exponentially more money if she retained her NCAA eligibility.

These difficult issues will require further exploration by NCAA officials, courts and other administrative bodies. However, "just saying no" to compensation may no longer be an option for the NCAA.

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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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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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As featured on California Lawyer, January 2011 edition, former athletes are starting to seek workers' comp as a result of brain injuries or trauma. The lead plaintiff featured in the article is Fred McNeill of my alma mater, UCLA. McNeill was a great collegian, makes a great appearance and is in that sense the perfect plaintiff. The law firm representing him is a leader in workers' compensation and has led fight in asbestos and other alleged toxins.

Here is a thought....as part of the NFL negotiations (to be subject of other columns), both management and the union should tackle this issue. Neither side looks good right now. I know the league has adopted new rules regarding concussions, but no one should ignore the crippled warriors of years gone by. By the same token, I would suggest that there is always the need to watch for fakes and imaginers. My suggestion is an independent board funded by the owners and the players to derive a compensation system and more importantly, a monitoring system. Encourage readers' ideas on this one.

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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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As detailed in the Wichita Eagle at Kansas.com, Boise State's kicker, who missed three game winning field goals, has been getting death threats (as well as some support) in the blogosphere.

I went undergraduate and then to law school with a football player who created a situation that arguably allowed USC to go to the Rose Bowl for the umpteenth time. Poor guy ended up switching law schools because he got tired of the abuse. Lest we forget, these are young men playing for the joy of it and for scholarships. If these miscreants could be traced, they would be on the line for assault and infliction of emotional distress. Hoary old line is that there is no right to shout "fire" in a crowded theater. Corollary should be that there is no right to threaten the life of a young man out there trying to win a boy's game.

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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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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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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

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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As of this writing, the press, the blogs and the water coolers are alive with commentary on USC football coach Pete Carroll trading in a SoCal latte for a Seattle one, leaving behind a university that seems to be on the verge of NCAA sanctions.  

Different location and different scenario with football coach Jim Leavitt, who was fired by the University of South Florida for allegedly grabbing a player by the throat and then lying about it.  Leavitt took the program from the start and turned it into something of a giant killer.  

Each man was and is highly successful professionally and yet each will leave behind a university with some mopping up to do.  Should coaches bear any legal responsibility for the mess they lay behind?  Can contractual provisions be crafted to cover such situations?  Would such provisions leave universities in a competitive disadvantage in attracting talented coaches?  Should the NCAA require such provisions?  We have our own thoughts but pass this one out to our readers for preliminary comment.  To be continued…

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