National Football League (NFL)

Lori Kozak writes:

Registered trademark and the Washington Redskins
Copyright: silvia / 123RF Stock Photo

We have blogged previously about the litigation involving cancellation of the “Redskins” trademark as disparaging and the team’s appeal to the 4th Circuit, claiming (among other arguments) that the disparagement provision of Lanham Act Section 2(a) is unconstitutional because it violates free speech under the First Amendment.

Today, the U.S. Court of Appeals for the Federal Circuit handed down a decision in In re Tam, Appeal No. 2014-1203, finding that the disparagement provision of Lanham Act Section 2(a) violates free speech under the First Amendment.

The Asian-American rock bank The Slants had been denied registration of their mark on the grounds that the mark is derogatory of persons of Asian-American descent.  That refusal has now been overturned and the case returns to the Trademark Trial and Appeal Board, who will have to approve the trademark if no other provisions bar it from being registered.

No doubt the Redskins feel that Christmas came early this year, as this decision helps to boost their efforts to keep their “Redskins” trademark registrations.


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

Lori Kozak writes:

Football
Copyright: tiero / 123RF Stock Photo

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.

Monmouth Park Racetrack
Copyright: andykazie / 123RF Stock Photo

Today is a crucial day for New Jersey in its mission to legalize sports betting, as it will argue its position on the issue against attorneys for the four major American professional sports leagues and the NCAA this morning in the Third Circuit Court of Appeals in Philadelphia, Pennsylvania.

Attorney Theodore B. Olson, who represents New Jersey in this action, plans to argue that U.S. District Court Judge Michael Shipp erred in ruling that that New Jersey’s partial repeal of its prohibition against sports wagering violates the federal Professional and Amateur Sports Protection Act of 1992 (“PAPSA”).  New Jersey will likely also assert that the professional sports leagues have “unclean hands” due to their partnerships with fantasy sports websites.

While it is true that some sports leagues have recently embraced pay-fantasy sports websites, the leagues remain steadfast in their quest to thwart New Jersey’s legalization efforts.  They believe that PAPSA clearly prohibits the 46 states not exempted from the act’s application from legalizing sports betting in any fashion.

The Third Circuit has previously ruled in favor of the sports leagues, but the Court’s prior Opinion potentially provided the state with a loophole – it acknowledged that even under PAPSA, states have “much room . . . to make their own policy” and can establish their own parameters of sports betting prohibitions.  New Jersey will assuredly use that language in support of its argument today.

Led by Governor Chris Christie, New Jersey has been undeterred by many unfavorable court decisions in the two-plus years since the sports leagues initially sued to prevent the state from commencing sports betting.  While nearly all casinos and racetracks in New Jersey have seen revenues decrease each of the last few years, the state and its casino/racetrack owners believe that sports betting could reverse their fortunes and bring in millions of dollars yearly.

Whether the Third Circuit will continue to affirm the sports leagues’ position that PAPSA prevents New Jersey from having authority to legalize sports betting remains to be seen. What is certain is that today’s oral argument and the resulting decision is extremely crucial in determining the future of potential sports betting in New Jersey, in addition to many other states that may wish to follow its lead.

Copyright: weerapat / 123RF Stock Photo
Copyright: weerapat / 123RF Stock Photo

No, this is not the umpteenth blog on the Sony situation. This is the one that Sony kept off the front pages. Adrian Peterson, the star running back of the Vikings, spoke with Troy Vincent, an executive at the NFL. There appeared to be an offer of a two game suspension, and now Peterson has lost his arbitration and is facing an indefinite suspension.

Lost in the discussion is that this was supposed to be a private conversation. I am now at the point of telling my clients to call people and not to email. Too much confusion and too much exposure. But when you call, ask the other person not to tape the conversation if it is sensitive. In California at least, both parties have to agree to the taping for it to be legal. However, if Peterson was in Texas at the time, his recording was legal, as the state requires only one-party consent, Absent that, there are criminal penalties that can be invoked. Not an absolute guarantee, but important as we feel our way around these issues.

Monmouth Park Racetrack
Copyright: andykazie / 123RF Stock Photo

On Friday, Judge Michael Shipp granted the NCAA and four major professional sports leagues a permanent injunction to prevent New Jersey casinos and racetracks from offering sports betting.  The decision was unsurprising, but still extremely disappointing, to New Jersey state officials who have been attempting to establish legalized, regulated sports betting in the state for over three years.

New Jersey should, and it appears will, exercise any and all legal options it has in fighting to establish sports betting in the state.  State Senator Raymond Lesniak, the leader of New Jersey’s campaign to legalize sports betting, told ESPN on Friday that New Jersey would appeal Friday’s decision to the Third Circuit Court of Appeals this week.

Regardless of the outcome of the appeal, hopefully other leagues will follow the lead of National Basketball Association Commissioner Adam Silver.  Eight days before Judge Shipp’s ruling, Silver, whose league ironically is a party fighting against sports betting in New Jersey, wrote a heavily-discussed op-ed in the New York Times calling for Congress to “adopt a federal framework that allows states to authorize betting on professional sports, subject to strict regulatory requirements and technological safeguards.”

Silver acknowledged that sports betting in the United States currently operates mainly through “illicit bookmaking operations and shady offshore websites.”  Why not legalize and regulate the industry so governments and legitimate businesses can be the beneficiaries instead of underground bookmakers and offshore websites?

If the NCAA and other professional sports leagues adopt Silver’s position, Congress would be more inclined to pass legislation revoking the outdated Professional and Amateur Sports Protection Act.  The benefits of an industry that will continue to thrive whether or not it is operating legally should shift from underground bookmakers and offshore businesses to governments and legitimate businesses.

bully

I recently attended the Sports Law and Ethics confab at Santa Clara University, which was brimming with current content.

Here are some of the gems regarding bullying that were covered:

(1) Don’t call it bullying. That smacks of English childhood mischief. Much more accurate to think of it as workplace harassment. Even if the conduct is not against a protected class (sex, race), it puts the situation in more accurate context. While the speakers questioned whether it is illegal, I would argue that it amounts to intentional infringement of emotional distress. (2) Jonathan Martin had multiple harassers.  While the press reported that he is of mixed race, this was a reporting mistake that was oft repeated. He is African American. Two of the attackers were themselves African American. (3) Why Martin did not “report” the offense? The attacker was the person that the team had designated as the person to whom offenses were to be reported. (4) Who does such things? Most people who harass were themselves  bullied as children. (5) How powerful are the attackers? Research shows that a show of support from others will make the combatant “stand down” in most instances.

A “boys will be boys” attitude is not acceptable.  This is real issue, and deserves a real response.

Ex-Vikings Punter Supports Same-Sex Marriage

Last week, former NFL punter Chris Kluwe and the Minnesota Vikings reached a settlement of Kluwe’s dispute with the team over what he characterized as the organization’s homophobic environment and release from the team due to his activism on behalf of marriage equality.

Kluwe’s revelation of serious homophobic behavior and an institutional attempt to freeze him out of the team and, ultimately, his release created a firestorm of media coverage and an investigation into the behavior by special-teams coordinator Mike Priefer.  Kluwe went public in his allegation on January 2nd and made specific allegations about the comments and behaviors of several Minnesota Vikings coaches and front office personnel. The settlement, which includes an initial $100,000.00 contribution to charities supporting the lesbian, gay, bisexual, and transgender communities, puts aside Kluwe’s demand for the full disclosure of an independent investigation into his release and the impact his political activities had on his job. The settlement also appears to include Kluwe’s waiver of any other liability he may seek against the Vikings in the form of a threatened wrongful termination suit.

After Kluwe’s allegations to Deadspin, the Vikings launched an independent investigation to determine the veracity of his comments and ultimately released a small portion (29 pages) of the report in July. The truncated report appeared to give some credence to Kluwe’s allegations, but also demonstrated that Kluwe’s May 2013 release from the team was motivated by performance, rather than his political beliefs and efforts. Kluwe made a public demand for the full-release of the report, citing a promise made to him by the Vikings, however, after reviewing the full-report with counsel, Kluwe and the Vikings restarted settlement negotiations.

Though the terms are reported to be confidential, Kluwe commented that his main concern was to see whether there was a “systematic problem in the Vikings organization” and having reviewed the report, he accepts that wasn’t the case. In addition to the financial and charitable aspect of the settlement, the Vikings also plan to enhance sensitivity training in the organization. Kluwe confirmed he will not receive any money from the Vikings. Separately, the Vikings had previously announced a three-game suspension of coach Mike Priefer and a week of sensitivity training, though that suspension can be shorted to two-games if the team finds it appropriate.

This settlement eliminates what would have been an intriguing legal issue for professional sports: termination (release) due to political activities. Kluwe had made comments about suing the Vikings for religious discrimination, sexual orientation discrimination, defamation, and tortious interference of contract.  Tortious interference of contract, a legal concept by which a third party intentionally induces a contracting party to break the contract, would have been particularly interesting in the context of professional sports where any number of reasons could result in a player’s release.

Kluwe’s threat of a lawsuit on those grounds created very little leverage, if any. Even if the report did not reveal performance issues or an allegation of Kluwe’s own embarrassing behavior, settlement was likely a foregone conclusion in this case.

The reality is that the likelihood of success of any lawsuit Kluwe would have filed would have been low. NFL teams and the NFL Players Association have a collective bargaining agreement and procedure for bringing grievances, including those over the release of a player. Kluwe never filed a grievance with his union over his release and it is unlikely that the union could stop a team from releasing a player due to political activities, speech, or religious beliefs (or lack thereof).

In the final analysis, Kluwe’s allegations and settlement reached by the Vikings will prove to have an overall positive effect. Charities benefit from the contributions made by the Vikings and the punishment of a coach which will hopefully deter players and coaches from engaging in such behavior in the future (though Michael Sam making the Rams roster will probably go further than any mandatory sensitivity training).

 

By: John W. Polonis

Villanova University Law Student

Editor-In-Chief of the Jeffrey S. Moorad Sports Law Journal

 

Four thousand plus plaintiffs in the NFL Concussion Injury Litigation face an uphill battle to survive preemption and pursue their state law claims. See Amended Master Complaint at ¶¶54-57, In re National Football Players’ Concussion Injury Litigation. United States District Court Judge Anita Brody, of the Eastern District of Pennsylvania, recently heard oral argument on the NFL’s Motion to Dismiss. Plaintiffs accuse the NFL of fraud, wrongful death, negligent misrepresentation, negligent conduct, failure to warn, loss of consortium, as well as negligent hiring and retention. They seek money damages, declaratory relief, and an NFL-funded medical monitoring program.  See id. at ¶53.

Before any discussion of the merits, Judge Brody must resolve one threshold issue: preemption. Armed with the Collective Bargaining Agreement (“CBA”) between it and the NFL players’ union (“NFLPA”), the NFL will likely prevail in its Motion to Dismiss. If successful, the NFL could litigate this much bally-hooed case before an arbitration panel. See Givens v. Tennessee Football, Inc., 684 F. Supp. 2d 985, 991 (M.D. Tenn. 2010).

This litigation, so asserts the NFL, centers on workplace injuries governed by federal labor law, not personal injuries, governed by state law. For the NFL to prevail with its preemption affirmative defense, it must show that Plaintiffs’ claims will require the court to interpret the meaning of a specific provision of the CBA. Thus, the NFL must argue that Plaintiffs’ state law claims – whether based on negligence or fraud – are “substantially dependent upon” or “inextricably intertwined” with the terms of the CBA, or that they arise under the CBA.

Although defendants do not generally prevail on motions to dismiss by relying on affirmative defenses, the NFL may succeed here because of the uniform application of federal labor law. Generally, federal courts defer to the parties’ agreed-upon grievance procedures rather than taking on a workplace injury case. To prevail the NFL must convince Judge Brody that Section 301 of the Labor Management Relations Act (LMRA) precludes plaintiffs’ tort claims because player injuries, including traumatic head injuries, amount to nothing more than workplace injuries governed by the CBA and thus federal law.

The CBA explicitly obligates the NFL to promulgate and enforce health and safety rules, and therefore, Plaintiffs’ claims that the NFL had a “duty to provide players with rules and information” likely arises under Articles 39 and 50 of the CBA.

Plaintiffs’ best chance to avoid preemption is through their fraud claim. They argue that the NFL committed common law fraud by intentionally lying about independent empirical facts; “namely, the known neurological risks associated with football-related head trauma” that the NFL had a “duty to disclose.” Additionally, Plaintiffs make the case that the NFL intended to cause Plaintiffs to rely on the NFL’s inaccurate information. And, Plaintiffs allege, as they must, that they did in fact reasonably rely on the NFL’s alleged misinformation during and after their careers. Plaintiffs, therefore, seek to avoid the bar of federal law and the CBA by claiming that the fraud caused their serious physical injuries.

The NFL counters that Plaintiffs’ fraud claims rest on the NFL’s duty to advise players of a heightened risk of neurodegenerative diseases. This duty, according to the NFL, cannot be measured without first assessing and interpreting “the preexisting obligations regarding player health and safety in the CBAs.”

Thus, because the court would have to interpret CBA provisions when assessing the NFL’s duties, the NFL argues that the federally-enacted LMRA should preempt Plaintiffs’ state law claims. Specifically, the CBA addresses issues related to the assessment, diagnosis, and treatment of player injuries. Numerous CBA clauses instruct team physicians to follow certain procedures and protocols when assessing whether a player can resume on-field activity.

In the end, this dispute is most likely headed to arbitration where damage awards are nominal as compared to the potential jury award available to each plaintiff on their tort claims. Even if the NFL’s Motion to Dismiss fails, one attorney stated that “it will still be years before any kind of trial or resolution occurs due to the magnitude of discovery.” Some fear that granting preemption could “turn federal labor law on its head and allow [NFL] management to shirk their duties and hide behind the Almighty CBA.”

Plaintiffs warn that contract law could swallow tort law if Plaintiffs’ state common law fraud claims are preempted by federal law simply because of their status as an employee. While this fear may persist, it does not strike the health and safety provisions from the CBA or precedent preempting state law claims against the NFL for former player injuries.

Our friends at the Villanova Law School’s Jeffrey S. Moorad Sports Law Journal have organized what will surely be a fascinating symposium on the "concussion conundrum." They have four panels of former professional athletes, doctors, lawyers, and journalists all exploring the numerous issues implicated by concussions in professional sports and the litigation involving the NFL. Click here for more details on and to register for  the symposium, which offers 2 CLE credits. Stay tuned for our series on the topic as well. The scheduled panels and panelists are:
 
 
Panel 1: Framing the Issue

The Symposium will begin with a conversation between Andrew Brandt and former athletes, including some that have taken strong and public positions about concussions in sports. Brandt and the players will discuss concussion awareness, prevention and treatment from their playing days as well as their view of the present environment.

  • Brian Westbrook, former  Philadelphia Eagles player
  • Keith Primeau, former Philadelphia Flyers player
  • Jim Nelson, former Green Bay Packers, Minnesota Vikings, Indianapolis Colts, and Baltimore Ravens player 
  • Taylor Twellman, former Major League Soccer player, current ESPN analyst and concussions commentator

Panel 2: Building the Case— A Legal and Medical Background of Concussions

This panel will explore liability issues of amateur and professional sports and bring a medical perspective to diagnosis and treatment of concussions.  It will also feature a perspective of a Villanova Law Student who has written about and experienced the effects of concussions in her and her family’s life.

  • Marc Edelman, Associate Professor of Law, Barry University
  • Dr. Michael Marino, MD, Attending Physician at Drucker Brain Injury Center
  • Cailyn Reilly, current student at Villanova University School of Law

Panel 3: Concussion Injury Litigation v. NFL: Looking at Both Sides

This panel will explore the key arguments of the case against the NFL featuring one of the lawyers representing the players, Sol Weiss, a class action defense lawyer and the founder of the definitive Internet site on concussion litigation.  It will be a balanced and in-depth look at the major issues of this key case in sports right now.

  • J. Gordon Cooney, Jr. Partner at Morgan Lewis, expert on the defense of class actions suits
  • Sol Weiss, Shareholder at Anapol Schwartz
  • Paul D. Anderson, Practicing attorney

Panel 4: What‘s Next?: Parents, Media, Administrators, and Scholars Look Ahead

This panel will feature media personalities such as Roger Cossack and Ashley Fox of ESPN who, along with Brandt, will look at the state of the sport of football in light of concussions, whether parents should let their kids play, and where the NFL will be in 20 years.

  • Roger Cossack, Legal Analyst, ESPN / CNN
  • Ashley Fox, NFL Columnist, ESPN
  • Peter Keating, Senior Writer, ESPN Magazine
  • Taylor Twellman, ESPN Soccer Analyst

By Jeffrey S. Kravitz, Esquire

Let’s start with the obvious…the Harbaugh Bros. (Jim and John of the 49ers and Ravens respectively) are going to say that it makes no difference to them that their brother is their opponent. Over and over again….Right.

Now let’s get up close and personal. When I got into law school, my parents were pleased. When my brother got into med school you would have thought that the Red Sea had parted again.

Turnabout is fair play. I am the older. Having the Kravitz name in Long Beach California was a rarity. Thus, when my brother would start class throughout childhood, the teacher would say, "Are you Jeff’s brother?" He was both pleased…and not. Capper was when he went to England for his junior year abroad. His visiting professor had him over to dinner in London as she was on sabbatical, as was her husband, a professor at UCLA. Five minutes into dinner, he looked at my brother and questioned, "Are you related to Jeff Kravitz?" My brother called from London at two in the morning my time and without introducing himself proclaimed," You son of a ….. I am thousands of miles away and cannot get from under your shadow!" Let the sibling wars begin.