Sports Litigation Alert


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Sports Litigation Alert

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Table of Contents

Case Summaries

Articles

News Briefs

Featured Expert Witness

Sports Litigation Alert is proud to offer an Expert Witness Directory at our website. SLA subscribers are entitled to be listed in that directory, please email your details to us and we will include you in the listing. Here is this issue's featured expert:

Jarett L. Warner
Expertise: premises liability defense, assumption of risk/waivers, Sporting Venue Liability
(646) 747-5104
Havkins Rosenfeld Ritzert & Varriale, LLP

Case Summaries

Court Declines To Apply Assumption of Risk Doctrine in Banned Cleat Case

A New York state trial court has refused to grant a motion for summary judgment filed by a school district and a coach in a case in which the parents of a middle school football player sued the two defendants over an injury their son suffered when an opposing player who was wearing metal cleats stepped on his hand.

The judge held specifically that a question of fact remained about whether the William Floyd Union Free School District and Coach Sean Baumiller did enough to prevent student athletes participating on the William Floyd Middle School football team from wearing the banned cleats.

At the same time, the court granted summary judgment to the plaintiff’s own school district, which was also a named defendant, finding that “there is no evidence that (Sachem Central School District) had a duty to ensure that players on the opposing football team complied with the NYSPHSAA rules, including those regarding footwear.”

The incident in question occurred on October 16, 2008, when Salvatore Giannino, or Sal, was playing in a football game, which pitted Sagamore Middle School against WFMS. Prior to the start of the game, no one physically checked the players' footwear. However, the officials addressed both teams about wearing rubber cleats. About midway through the second quarter of the game, Sal was playing defense when William Floyd ran a running play. Sal was blocked by an offensive lineman and knocked to the ground. While laying on the ground on his stomach, with his hands outstretched and palms down, another William Floyd player stepped on his left hand. Sal left the game and was taken by ambulance to Brookhaven Hospital. “A couple of days later, assistant coach Robert Murphy told him that a William Floyd player was kicked out of the game for wearing metal cleats,” wrote the court.

In his deposition, Murphy noted that the rules are set forth by Section XI of the New York State Public High School Athletic Association (NYSPHSAA) and include an equipment regulation, which specifies that only “one-piece molded rubber" cleats are permitted in middle school play.

The head coach of the opposing team stated that the footwear rules “are explained at the team's first practice and throughout the season, but that no information is sent to the parents of the players.” The court noted that at the October 16, 2008 game, “an official came over to him and told him that a William Floyd player was wearing illegal cleats.”

After the incident the plaintiffs sued, alleging that the defendants — the school districts and the opposing head coach — were liable for Sal’s injuries based on their negligence in failing to enforce the official rules for middle school football.

William Floyd and the coach moved for summary judgment, claiming Sal voluntarily assumed the risk of playing football, and that they owed no duty to Sal as a matter of law.

In its analysis, the court wrote that “a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation therein. See Morgan v. State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 NYS2d 421 (1997); Paone v. County of Suffolk, 251 AD2d 563,674 NYS2d 761 (2d Dept 1998). The assumption of risk doctrine includes the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation. See Rosenbaum v. Bayis Ne'Emon Inc., 32 A.D.3d 534, 820 N.Y.S.2d 326 (2d Dept 2006); Colucci v. Nansen Park, Inc., 226 AD2d 336, 640 NYS2d 578 (2d Dept 1996).

Although awareness of the risks involved in a particular sport is an essential element of the primary assumption of risk doctrine, it is not necessary that the injured plaintiff have foreseen the exact manner in which his or her injury occurred. Maddox v. City of New York, 66 NY2d 270, 487 N.E.2d 553, 496 NYS2d 726 (1985). All that is required is an awareness of the injury-causing potential of the mechanism from which the injury results. Id. In addition, the plaintiff’s awareness of risk is to be assessed against the background of the skill and experience of the particular plaintiff. See Id; Gahan v. Mineola Union Free School Dist., 241 AD2d 439, 660 NYS2d 144 (2d Dept 1997). Moreover, a defendant seeking summary judgment on the ground of primary assumption of risk bears no greater burden than the establishment of the defense, and need not establish its own exercise of reasonable care. Maddox v. City of New York, 66 NY2d 270 (1985).

“Here, William Floyd has established its entitlement to summary judgment, and the application of the doctrine of primary assumption of the risk. It is clear that this is a sporting event with a significant risk of injury. Although Sal had not played middle school football before entering the eighth grade, he had attended numerous team practices, and he had played in approximately four football games before he was injured. The risk of being stepped on by another player is inherent in the game of football. See Morgan v. State of New York, 90 NY2d 471 (1997).

On the other hand, the court noted that “assumption of the risk is not an absolute defense. (S) Schools are still obligated to exercise ordinary reasonable care to protect students from unassumed, concealed or unreasonably increased risks. Id; Benitez v. New York City Bd. of Educ., 73 NY2d 650, 541 N.E.2d 29, 543 NYS2d 29 (1989). Likewise, participants in interscholastic sports may not be held to have consented to injurious acts from other athletes which are reckless or intentional. Benitez v. New York City Bd. of Educ., 73 NY2d 650 (1989); Turcotte v Fell, supra).

“The plaintiffs have submitted evidence establishing that the NYSPHSAA rule existed in order to ensure that middle school football players were afforded a greater measure of safety than their high school counterparts. Thus, they have raised an issue of fact as to whether the risks inherent in the sport of football were unreasonably increased such that the doctrine of assumption of risk does not bar Sal's personal injury action. See Morgan v. State of New York, 90 NY2d 471 (1997); Benitez v. New York City Bd. of Educ., 73 NY2d 650 (1989). The question of whether Sal assumed the risk of being stepped on by a metal or plastic cleat should be determined by the trier of fact, and may not be determined as a matter of law. Anand v. Kapoor, 61 AD3d 787, 877 NYS2d 425 (2d Dept 2009); Jacobs v. Kent, 303 AD2d 1000, 757 NYS2d 408 (4th Dept 2003); Laboy v. Wallkill Cent. School Dist., 201 AD2d 780,607 NYS2d 746 (3d Dept 1994).” Accordingly, William Floyd and the coach's motion for summary judgment dismissing the complaint were denied.

The court however, granted Sachem’s motion for summary judgment, finding there “is no evidence that Sachem had a duty to ensure that players on the opposing football team complied with the NYSPHSAA rules, including those regarding footwear. In addition, there is no evidence that any action or inaction on the part of Sachem was a substantial factor in causing Sal's injury. Moreover, there is no evidence that Sachem breached its duty to exercise ordinary reasonable care to protect Sal from unassumed, concealed or unreasonably increased risks of playing football on October 16, 2008. Morgan v. State, 90 NY2d 471 (1997); Benitez v. New York City Bd. of Educ., 73 NY2d 650 (1989).

Salvatore Giannino, an infant by his father and natural guardian, Joseph Giannino, and Joseph Giannino v. Sachem Central School District et al.; S.Ct.N.Y., Suffolk Co.; INDEX NO. 10-313, 10-313, 2011 NY Slip Op 32241U; 2011 N.Y. Misc. LEXIS 4088; 8/15/11.

Attorneys of Record: (for plaintiffs) SIBEN & FERBER, Hauppauge, New York. (for Sachem CSD, Defendant) DONOHUE, MCGAHAN, CATALANO, et al., Jericho, New York. (for William Floyd School, Defendants) CONGDON, FLAHERTY, O'CALLAGHAN, et al., Uniondale, New York.

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Judge Sanctions ChampionsWorld for Failure to Preserve Evidence in Hi-Profile Soccer Case

A federal judge from the Northern District of Illinois has sanctioned ChampionsWorld LLC for failing to preserve evidence that might have been considered in its long-running antitrust action against the United States Soccer Federation and Major League Soccer.

The court said it would instruct the jury that ChampionsWorld, a former promoter of international professional men's soccer matches, “failed to take appropriate steps to preserve information relevant to the litigation.”

At the same time, the court denied the plaintiff’s motion for sanctions against defendants MLS and USSF and the law firms that were representing the defendants — Proskauer Rose LLP and Latham & Watkins LLP.

ChampionsWorld LLC sued the USSF and Major League Soccer on May 2, 2006, claiming that the Federation took advantage of ChampionsWorld by charging exorbitant fees and favoring the plaintiff's competitor, MLS. Specifically, ChampionsWorld alleged that, "through such anticompetitive, fraudulent, and extortionate acts, Defendants caused ChampionsWorld severe financial harm ultimately leading to bankruptcy."

Despite the bankruptcy, ChampionsWorld's reorganization plan provided for the commencement and prosecution of its lawsuit as its only remaining material asset, to be liquidated and distributed among its creditors.

The court wrote in an opinion last year that denied the defendants’ motion for a judgment on the pleadings (summarized in Vol. 7, Iss. 16 of Sports Litigation Alert) that "the heart of the controversy is the question of whether the USSF has the authority to oversee professional, as well as amateur, soccer in the United States. The USSF claims that it has this power. ChampionsWorld argues that USSF improperly arrogated this power to itself and used it to unreasonably restrain trade, extract over $3 million in arbitrary and 'back-breaking' fees from ChampionsWorld and to cause it many millions more in damages, substantially contributing to ChampionsWorld's demise. ChampionsWorld LLC, v. United States Soccer Federation, INC., et al.; N.D.Ill.; Case No. 06 C 5724, 2010 U.S. Dist. LEXIS 73253; 7/21/10).

"ChampionsWorld alleges that USSF's actions were part of an anticompetitive scheme to create a window of exclusivity for MLS by preventing other soccer entities or leagues from applying for first-division status in the United States. ChampionsWorld claims that USSF saw ChampionsWorld as a competitor to MLS because ChampionsWorld's matches between 2003 and 2005 had triple the attendance of MLS's matches. ChampionsWorld alleges that USSF organized MLS and underwrote its operations with $5 million in seed money, which was never repaid. ChampionsWorld alleges that USSF and MLS have significant overlapping officers and board members and that the two entities have a 'historically close and anticompetitive association.'" Id.

The latest opinion surfaced after the parties filed a number of pretrial motions, seeking sanctions against one another for various alleged misdeeds.

“Given the contentious nature of the litigation, it is perhaps not surprising that the parties have become embroiled in various discovery disputes and seek sanctions against one another on several grounds,” wrote the court.

Most notable was the defendants’ allegation that the plaintiff destroyed evidence, including “(1) virtually every email on its servers dated after September 1, 2004; (2) all of its accounting files dated after April 2004; and (3) virtually all of its accountant's records relating to ChampionsWorld.”

The defendants sought the following possible sanctions: precluding the plaintiff from arguing that it is entitled to recover future lost profits or the lost value of its business, and precluding the plaintiff from relying on testimony regarding events that occurred post-September 2004.

ChampionsWorld claimed that part of the lost data was connected to Lino DiCuollo, who had been a Senior Vice President for Legal and Finance at ChampionsWorld. “DiCuollo now works for MLS, having been hired by that company shortly after the demise of ChampionsWorld,” wrote the court.

Charlie Stillitano, the plaintiff’s CEO, provided an affidavit “explaining that in the early fall of 2004, after ChampionsWorld retained Pryor Cashman, he, DiCuollo, and the company's outside general counsel had lunch with attorneys from the firm and were instructed to preserve all documents related to the lawsuit. Stillitano told outside counsel that the company had a 100 percent document retention policy in place and nothing would be destroyed.”

In its analysis of the evidence, the court admitted that “circumstances make it difficult for the Court both to understand what happened to the information and to assign responsibility.

“Nonetheless, the Court finds that the defendants have been prejudiced by ChampionsWorld's failure to preserve certain documents from 2004 and early 2005.” At the same time, “the court cannot find that ChampionsWorld acted willfully or in bad faith because there is nothing to indicate the company destroyed records to hide adverse information. Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008).

“But bad faith is not a prerequisite to the imposition of sanctions. Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992). Fault is enough, and Stillitano and ChampionsWorld's outside counsel should have done more to ensure the documents were preserved, rather than relying on what was apparently a verbal ‘100 percent document retention policy.’ See Danis v. USN Communs., Inc., No. 98 C 7482, 2000 U.S. Dist. LEXIS 16900, 2000 WL 1694325, at *32 (N.D. Ill. Oct. 20, 2000) ("The duty to preserve documents in the face of pending litigation is not a passive obligation."). So a sanction of some sort is appropriate, although not so harsh as limiting ChampionsWorld's damages to recovery of the sanctioning fees alone or precluding Plaintiff from presenting testimony about events after September 2004. Nor should Defendants be allowed to draw an adverse inference from the absence of the emails and accounting records without any evidence that they were destroyed in bad faith. See Wiginton v. CB Richard Ellis, 02 C 6832, 2003 U.S. Dist. LEXIS 19128, 2003 WL 22439865, at *7 n.6 (N.D. Ill. Oct. 24, 2003). That leaves the remedy of instructing the jury that ChampionsWorld failed to take appropriate steps to preserve information relevant to the litigation, and that as a result, most of its emails dated after September 1, 2004, its Quickbooks files dated after April 2004, and most of its outside accounting firm's records were destroyed. The Court agrees to so instruct the jury, but declines to impose any further sanctions, monetary or otherwise, on ChampionsWorld.”

Among the other motions the court considered was the plaintiff’s motion to disqualify defense counsel “on the basis of a June 2006 interview with DiCuollo conducted by attorneys for MLS from the law firm of Proskauer Rose LLP.

“In March, this Court directed Proskauer to turn over its notes from the meeting over its objection. The interview of DiCuollo by Proskauer attorneys is documented in an 11-page internal memorandum dated June 29, 2006. ChampionsWorld contends the memorandum shows that Proskauer deliberately elicited privileged information from DiCuollo, and that both Proskauer and counsel for USSF, Latham & Watkins LLP, must be disqualified because this information has tainted the proceedings. Specifically, ChampionsWorld contends that DiCuollo was the source of the defendants' theory that misguided business strategies, and not the USSF sanctioning fees, drove ChampionsWorld into bankruptcy.

“The defendants contend that it was legally permissible for attorneys for MLS to interview a former employee of its adversary and that DiCuollo was warned not to reveal privileged information. Further, they argue that DiCullo's role within ChampionsWorld was largely business, not legal, circumscribing the scope of the plaintiff's privilege claim.”

The court essentially agreed finding that “ChampionsWorld has not shown that the interview tainted these proceedings or provided Defendants with an unfair advantage so as to require the extreme sanction of disqualification.”

Championsworld, LLC, v. United States Soccer Federation, et al.; N.D. Ill.; Case No. 06 C 5724, 2011 U.S. Dist. LEXIS 91883; 8/17/11.

Attorneys of record: (for plaintiff) Ronald Hanley Balson, LEAD ATTORNEY, Carrie A. Hall, Michael Best & Friedrich, Chicago, IL; Jamie M. Brickell, Maryaneh Simonian, William Laurence Charron, Pryor Cashman L.L.P., New York, NY; Jolanda B Krawczyk, Michael Best & Friedrich LLP, Chicago, IL. (for defendant United States Soccer Federation, Inc.) Casandra Leann Thomson, LEAD ATTORNEY, Adam Wright, Charles H. Samel, Michael Elisofon, PRO HAC VICE, Russell F. Sauer, Jr., Latham & Watkins LLP, Los Angeles, CA; Christopher S. Yates, PRO HAC VICE, Latham & Watkins LLP, San Francisco, CA; Livia McCammon Kiser, Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago, IL; Terrence Joseph Connolly, Latham & Watkins, LLP, New York, NY; Timothy Bunker Hardwicke, Latham & Watkins LLP (IL), Chicago, IL. (for defendant Major League Soccer, L.L.C.) Bradley I. Ruskin, Jennifer R. Scullion, Scott Arthur Eggers, Proskauer Rose LLP (New York), New York, NY; Catherine J. Spector, Sheri D. Davis, Steven Ross Gilford, Proskauer Rose LLP (70W), Chicago, IL; Colin R. Kass, PRO HAC VICE, Proskauer Rose Llp, Washington, DC; Jason D. Gerstein, PRO HAC VICE, Proskauer Rose LLP, New York, NY; Jordan B. Leader, Proskauer Rose, New York, NY.

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Seventh Circuit Affirms State Athletic Associations’ Right to Maintain Broadcast Rights

The 7th U.S. Circuit Court of Appeals has affirmed the ruling of a district court, that a state high school athletic association was within its rights to the market the broadcast rights of its post-season tournaments to the highest bidder, even if that meant excluding other media, such as newspapers.

In so ruling, the panel of judges determined that the Wisconsin Interscholastic Athletic Association's exclusive contract “was not a gag order or prior restraint on speech about government activities. The media were free to talk and write about the events to their hearts' content. What they could not do was to appropriate the entertainment product that the governing body had created without paying for it. The governing body had the right to package and distribute its performance; nothing in the First Amendment conferred on the media affirmative right to broadcast entire performances.”

The Impetus impetus for the dispute may have occurred in 2005 when WIAA contracted with American-HiFi, a video production company, to stream its tournament events online. Under the contract, American-HiFi had an exclusive right to stream nearly all WIAA tournament games. If American-HiFi elected not to stream a game, other broadcasters could do so after obtaining permission and paying a fee. Notably, the exclusive broadcast agreement between American-HiFi and WIAA concerned entire game transmissions. It did not prohibit media coverage, photography, or interviews before or after games. Private media could also broadcast up to two minutes of a game, or write or blog about it as they see fit, so long as they did not engage in "play-by-play" transmission.

Ignoring that aforementioned policy, newspapers owned by Gannett Co., Inc., decided to stream four WIAA tournament games without either obtaining consent, or paying the fee. In response, WIAA filed this declaratory judgment action in state court asserting its right to grant exclusive licenses. After Gannett removed the case to federal court, the district court entered summary judgment in favor of WIAA.

On appeal, the panel wrote that “the implications of Gannett's arguments “are staggering: if it is correct, then no state actor may ever earn revenue from something that the press might want to broadcast in its entirety. That is not correct. Gannett's theory that coverage and broadcast are identical is both analytically flawed and foreclosed. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S. Ct. 2849, 53 L. Ed. 2d 965 (1977).

“Simply put, streaming or broadcasting an event is not the same thing as reporting on or describing it. In addition, Gannett overlooks the importance of the distinction between state-as-regulator and state-as- proprietor, which in turn leads it to fail to appreciate the fact that tournament games are a performance product of WIAA, which it has the right to control. Thus, because the exclusive agreements between WIAA and American-HiFi are otherwise not contested, and we find no reason in the First Amendment to change them, we affirm the district court's judgment for WIAA.”

Wisconsin Interscholastic Athletic Association, and American-Hifi, Inc. v. Gannett Co., Inc., and Wisconsin Newspaper Association; 7th Cir.; No. 10-2627, 2011 U.S. App. LEXIS 17684; 8/24/11.

Attorneys of Record: (for plaintiffs — Appellees) John S. Skilton, Attorney, PERKINS COIE, Madison, WI. (for defendant) Robert J. Dreps, Attorney, GODFREY & KAHN, Madison, WI.; Monica Santa Maria, Attorney, GODFREY & KAHN, Madison, WI.

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Plaintiffs Get Attorneys’ Fees after ADA Victory over Redskins

Three hearing-impaired fans, who successfully sued the Washington Redskins in 2006 for violations of Title III of the Americans with Disabilities Act (ADA), have convinced a federal judge from the District of Maryland to require the Redskins to reimburse them for the attorneys fees associated with bringing the claim.

The ADA passage in question provides that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Further: “A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.03(c).

A federal judge ruled for the plaintiffs on December 2, 2008, declaring that Title III of the ADA requires that the defendants “provide deaf and hard of hearing fans equal access to the aural information broadcast over the stadium bowl public address system at FedEx Field.”

In the intervening years, the plaintiffs have sought reimbursement for their attorneys' fees and costs.

The controversy over the fees centered on the fact that the defendants captioned most of the aural content that the plaintiffs sought access to shortly after the complaint was filed. The underlying claim, they argued, “was moot because they had already voluntarily provided accommodations to the plaintiffs, although the defendants maintained that they had no obligation under the ADA to do so. This court found that the case was not moot and granted summary judgment to the plaintiffs.

“This court's holding rested in part on the fact that the defendants were not providing the plaintiffs with access to the lyrics to music played over the stadium's public address system. The defendants appealed this court's summary judgment ruling. The Fourth Circuit agreed with this Court and accordingly affirmed the declaratory judgment requiring the defendants to provide auxiliary access to the aural content broadcast over FedEx Field's public address system.”

The plaintiffs first moved for attorney's fees on December 15, 2008, prior to the defendants' appeal to the Fourth Circuit. After the Fourth Circuit entered its judgment affirming this court's decision, the plaintiffs again moved for attorney's fees as authorized by the ADA, 42 U.S.C. § 12205 and in accordance with Local Rule 109.2. Doc. No. 73. In response, the defendants “acknowledged that the hourly rates requested were reasonable, and that the number of hours for which compensation was sought was appropriate.”

However, the defendants also argued that “it was unreasonable for the plaintiffs to pursue this litigation for so long and at such a cost after the defendants had already agreed to and in fact did provide auxiliary services for all of the aural content that was expressly requested in the plaintiffs' complaint.”

They also “referenced communications made during settlement talks to show that the plaintiffs declined to settle on two occasions because of a failure to agree on attorneys' fees, resulting in protracted litigation.”

The court noted that “a prevailing plaintiff in an ADA action is generally entitled to recover fees paid to an attorney unless special circumstances render such an award unjust.”Mammano v. Pittston Co., 792 F.2d 1242, 1244 (4th Cir.1986); see also 42 U.S.C. § 12205.

The defendants argued that the plaintiffs should only receive “at most 25 percent” of the requested fees. The plaintiffs countered that their “victory was significant and their case was an important one that will provide guidance to other courts developing the law of the ADA. The plaintiffs argue that the public purpose served by their case makes an award of attorneys' fees reasonable.”

The court tipped its hand early in its analysis, noting that the defendants “merely restate the same mootness arguments that this court rejected in its summary judgment opinion. This court again rejects the defendants' argument due to the fact that: (1) the defendants failed to provide most of the services sought by the plaintiffs until after suit was brought, and were free to stop at any time absent a declaratory judgment; and (2) the defendants maintained throughout the suit that they were not required by Title III of the ADA to provide deaf and hard of hearing fans any auxiliary services to ensure equal access to the aural information at FedEx Field other than the assistive listening devices that did not help the plaintiffs.”

Furthermore, it wrote that its 2008 opinion “in this matter was the first to declare that the ADA requires a sports venue to make aural information within the stadium bowl accessible to deaf and hard of hearing fans. The court agrees that this was an important rather than a de minimis victory for the plaintiffs. Accordingly, the plaintiffs' motion for attorneys' fees is granted.

Shane Feldman, et al. v. Pro Football, INC., et al.; D. Md.; Civil Action No. 8:06-cv-2266-AW, 2011 U.S. Dist. LEXIS 97252; 8/30/11.

Attorneys of Record: (for plaintiffs) Joseph B Espo, LEAD ATTORNEY, Brown Goldstein and Levy LLP, Baltimore, MD; Marc P Charmatz, Rosaline Hayes Crawford, LEAD ATTORNEYS, National Association of the Deaf, Silver Spring, MD. (for Pro Football, Inc., defendant) Brigida Benitez, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC; Danielle Yvette Conley, PRO HAC VICE, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC; Roger William Yoerges, Steptoe and Johnson LLP, Washington, DC. (for WFI Stadium, Inc., defendant) Danielle Yvette Conley, PRO HAC VICE, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC; Roger William Yoerges, Steptoe and Johnson LLP, Washington, DC.

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Court Dismisses Former Coach’s Claim against AD, School

A federal judge has dismissed a former University of New Mexico football assistant coach’s claim against UNM, former head coach Mike Locksley and Vice President of Athletics Paul Krebs, finding that he had not adequately supported his position that he was subjected to a hostile work environment while on Locksley’s staff.

The court did hold, however, that plaintiff J.B. Gerald could amend and re-file his complaint.

The impetus for the claim was a September 2009 physical altercation between Gerald and Locksley, which occurred in a football meeting room. Locksley was suspended by the school for 10 days, causing him to miss a game. Gerald, meanwhile, refused the school’s punishment and left the UNM.

Less than a year later, Gerald filed a complaint alleging that his civil rights had been violated. He alleged personal injury, race discrimination and deprivation of First Amendment rights, naming Locksley, Krebs and UNM as defendants.

The defendants moved to dismiss, which the court granted on May 6. Gerald v. Locksley et al.; D. N.M.; No. CIV 10-0721 JB/LFG (2011 U.S. Dist. LEXIS 53469). However, the court left the door open for an amended complaint.

“The court grants Gerald leave to amend his complaint to attempt to plead a hostile work environment claim, because Gerald's allegations in his Equal Employment Opportunity Commission (EEOC) charge may adequately state a hostile work environment claim,” the court wrote. “If, subject to rule 11, Gerald amends his complaint to advance the facts alleged in his EEOC charge in support of his hostile work environment claim, then he may be able to survive a motion to dismiss. Because Gerald's other claims fail as a matter of law, the court dismisses the claims in his complaint with prejudice.” Id.

Over the summer, Gerald submitted an affidavit providing more details of the treatment he alleged contributed to a hostile work environment. The defendants countered that the affidavit was filed improperly. The court agreed, opting not to consider it, while rendering its decision.

The court held that while the allegations in the affidavit did not make a strong case, “the difficulties Gerald faces at future stages in the litigation are not a basis to grant a motion to dismiss, and do not render amendment futile.”

Gerald had also alleged that Krebs and Locksley retaliated against him, a claim the court dismissed without prejudice. Its rationale for leaving the door open on that claim centered on the fact the plaintiff had failed to check a box marked “retaliation”, when he submitted his complaint to the EEOC.

On September 25, Krebs announced that Locksley has been relieved of his duties and would no longer serve as head coach. The announcement marked the end of three tumultuous years with Locksley guiding the program. Locksley, for example, had also been accused of improprieties in May of 2009, when a secretary in the UNM football department filed a complaint with the EEOC accused Locksley of sexual harassment and age discrimination. Lopez claimed she was fired by Locksley because she was not a “young gal,” who could entice recruits. Locksley countered with a suit against Lopez for defamation. The litigation went away when UNM agreed to give the secretary a newly created job, a pay increase, season tickets to all Lobo athletic events, and thousands of dollars in back pay.

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Articles

The NBA Lockout and International Tax Issues for U.S. Athletes

By Michael D. Foster

With the first two weeks of the NBA season cancelled and the length of the labor dispute between the owners and players uncertain, professional athletes from the United States are increasingly expressing interest in playing on teams abroad, even for short periods while the lockout continues. Playing abroad may require creative tax planning in order to avoid incurring significant additional taxes.

Overview

NBA players who choose to play outside the U.S. during the lockout will likely do so in one of two ways. One will be for players to compete with a foreign team either temporarily or on a long-term contract. Second, a group of U.S. athletes could collectively tour in one or more foreign countries playing either local competition or against one another.

Contract with Foreign Team. A U.S. athlete who signs a multi-year contract to play for a foreign team may face complex tax issues. For instance, the U.S. athlete may become an income tax resident in the home country of his or her team. In addition, a multi-year contract creates the likelihood that the U.S. athlete's "tax home"1 will shift to the foreign country, which would cause living expenses in that country to become personal and non-deductible for U.S. income tax purposes. If the U.S. athlete remains outside of the United States for a sufficiently long period of time, such as 330 days in any 12-month period,2 he or she will qualify for the foreign earned income exclusion, which will reduce the athlete's U.S. income tax liability.

The NBA lockout appears to be creating a new category of U.S. athlete playing for a foreign team, namely the short-term foreign contract. These contracts are being offered to NBA players for the length of the lockout. These short-term contracts are unlikely to cause an athlete's tax home to shift from the United States to the foreign country. As a result, the U.S. athlete will be able to deduct any foreign living expenses that are not reimbursed by the foreign team.

Barnstorming Tours. The "barnstorming" athlete has been around since at least 1908 when professional baseball players first began traveling to Japan for promotion and exhibition games. International barnstorming as a major economic activity probably first took hold with Babe Ruth's 1934 barnstorming tour of Japan, which was an enormous financial and cultural success.3 Generally speaking, barnstorming tours should operate in a manner similar to concert tours, in which a centralized withholding agreement with the foreign government is negotiated in advance, with the promoter responsible for paying the foreign tax obligation of each of the players.

If U.S. athletes organize an international barnstorming tour themselves, presumably the portion of profits in excess of each player's per game fee would be taxable, or non-taxable, in accordance with the laws of each country where games are played, as modified by any applicable income tax treaty.

Preliminary Review of Status

With the proliferation of foreign-born players coming to the United States to play professional sports, questions can arise as to the tax residency for those players. So, first it is necessary to identify the country where each player is actually an income tax resident for tax purposes. Obviously, U.S. athletes and green card holders will be treated as U.S. tax residents, and are taxable in the United States on their worldwide income. Many players who are not citizens or green card holders may also be considered U.S. tax residents even for income earned outside the United States.4 However, in an extended lockout, some players may lose their status as U.S. income tax residents. As a result, it's important to review the tax status of non-citizen non-green card holders if they join a team outside the United States, even temporarily.

Foreign Tax Credits

In addition to tax in the foreign country where the athlete is performing, the U.S. athlete has the added burden of being subject to U.S. income tax on that same income. If the tax paid by the U.S. athlete in the foreign country is equal to or less than the U.S. tax on that same income, the U.S. athlete will enjoy a foreign tax credit in the United States for the tax paid overseas.5 If the foreign tax is lower than the U.S. tax, then the U.S. athlete will owe the IRS the difference. However, many foreign countries impose rates of income tax that are higher than those in the U.S. In those instances, the U.S. athlete won't be able to fully utilize the foreign tax credit arising from the higher foreign tax paid by the athlete. For those athletes, there are potential planning alternatives that can reduce the overall foreign tax to an amount no greater than the U.S. tax on that income. If the foreign tax credit cannot be fully utilized, the U.S. athlete will end up paying tax at a higher rate overall than would have been imposed had he been subject only to U.S. tax.

In addition to federal tax on the foreign earnings, most state income tax regimes also impose state income tax on the earnings of its residents, regardless of where it is earned. Foreign tax credits, even those pertaining to regional or local foreign taxes, will not qualify as a credit against the state tax liability of a U.S. athlete.

Planning Suggestions

Use of Personal Service Corporation. The NBA and other U.S. professional sports leagues do not permit players to provide their playing services to their teams through personal service corporations. Even if they did, it is unlikely that the IRS would permit such an arrangement without a challenge. However, the nature of the relationship between a U.S. athlete and a foreign professional sports team, particularly on a short-term contract, or a U.S. player on a barnstorming tour, may result in a situation in which a U.S. athlete playing in a foreign country for a limited duration could utilize a personal service corporation to provide his or her services. Such a corporation would be an S Corporation for U.S. income tax purposes in order to utilize the foreign tax credit. The objective of such a structure is to be able to ensure the deductibility of the various expenses a U.S. athlete incurs on a short-term foreign contract or a barnstorming tour for U.S. tax purposes.

Prenegotiated Agreement. Many foreign countries allow foreign athletes and entertainers to enter into negotiated agreements establishing a net income tax liability for limited stays with agreed upon deductions incorporated into the agreement. Particularly when excess foreign tax credits are a risk, the U.S. athlete should consider whether a prenegotiated tax agreement can be made with the appropriate jurisdiction. These types of arrangements are the norm with barnstorming tours. Yet, while these arrangements are often available on the federal level, they may not be for regional or municipal tax purposes.

Bifurcation of Income. Certain types of foreign income may be subject to foreign tax at a lower rate than personal service income. For example, some countries impose no tax on royalty payments, while others impose a flat tax of between five and fifteen percent. When structuring a contract for a U.S. athlete, tax planners should consider whether a portion of the fee to be paid should be allocable to the use of the U.S. athlete's name and likeness for marketing and other promotional purposes.

Other Foreign Source Income. A professional athlete may already have endorsement income or royalty income from foreign countries that can be utilized in the foreign tax credit limitation computations. As a result, planners should review all existing contracts to determine whether any such contracts are generating foreign source income, if the full use of the foreign tax credit is an issue.

Tax Indemnity or Gross-Up. For U.S. athletes with sufficient negotiating leverage, a tax indemnity or gross-up that causes the athlete to be paid additional sums that equalize the U.S. and foreign taxes is a relatively simple solution, although difficult to obtain.

Conclusion

Overall, the opportunity for a U.S. athlete to perform outside the country can be financially and personally rewarding. The complexity of the U.S. tax rules for residents working abroad, coupled with the laws and procedures of the foreign country or countries where an athlete will be working, requires special care when negotiating a new contract. Only with proper planning can all of the tax risks, hurdles and opportunities in this situation be addressed..

Michael D. Foster is a partner in the Los Angeles office of Venable LLPwhere he specializes in domestic and international taxation.

1. Internal Revenue Code Sections 911(d)(3) and 162(a)(2)

2. Internal Revenue Code Section 911(d)(1)

3. See www.baberuthcentral.com for more

4. IRC Section 7701(b) contains the income tax residency rules for non-U.S. citizens

5. IRC Section 901

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Arrington v. NCAA: Overview and Potential Implications

By Marlon R. McPhatter and Ryan M. Rodenberg

In an October 2011 cover story in The Atlantic, venerable writer Taylor Branch penned “The Shame of College Sports,” a provocatively-titled piece highlighting “[a] litany of scandals [that] have made the corruption of college sports constant front page news.” In one part of his article, Branch details “a spate of lawsuits working their way through the courts [that] could destroy the NCAA.”

Another such case just got added to the docket.

Filed September 12, 2011 in U.S. District Court for the Northern District of Illinois, Arrington v. NCAA is a class action complaint against the NCAA and NCAA Football (collectively), on behalf of himself and all others similarly situated, alleging that the “NCAA has engaged in a long-established pattern of negligence and inaction with respect to concussions and concussion-related maladies sustained by its student-athletes.” Arrington is a 25 year-old student at Eastern Illinois University (“EIU”) where he formerly competed on the EIU football team. During his time on the team, Arrington allegedly suffered numerous and repeated concussions during games. After his first three concussions, the EIU team doctor told Arrington he could return to play the very next day. After the third concussion, Arrington apparently experienced memory loss and seizures. According to the complaint, Arrington was not taught how to make safe tackles and was sent to a neurologist for further testing. Once cleared to play again, Arrington sustained two more concussions and made the decision to leave football and focus on finishing his degree at EIU. Arrington allegedly finds it difficult to complete his studies at EIU due to his constant memory loss, depression, and almost-daily migraines.

Pointedly, the complaint posits that “the NCAA ...failed to address and/or correct the coaching of tackling methodologies that cause head injuries; failed to implement system-wide ‘return to play’ guidelines for student-athletes who sustained concussions; failed to implement system-wide guidelines for the screening and detection of head injuries; failed to implement legislation addressing the treatment and eligibility of student-athletes who sustained multiple concussions in the course of play; and failed to implement a support system for student-athletes who, after sustaining concussions, are left unable to either play football (or their sport) and lead a normal life.” The class action seeks medical monitoring and financial recovery for student-athletes who have sustained long-term injuries and damages related to sustained concussions.

The plaintiff contests that, even though the NCAA ‘publicly’ condemned coaching techniques to use all portions of helmets to block, tackle, butt, spear, ram and/or injure opposing players, coaches continued to promote helmet-based tackles. The plaintiff also makes note that there were only minimal sanctions or penalties placed on teams, coaches, and players from the NCAA for this dangerous and prohibitive contact during games. Interestingly, the plaintiff’s complaint points out that, in August 2010, the NCAA passed legislation requiring its member schools to have a concussion management plan (“CMP”) in place, whereas in the past the decision of whether to address concussion management with staff or athletes was the prerogative of individual schools. The plaintiffs also contend that the NCAA has ignored and actively concealed repeated warnings and patterns of injury of which the NCAA has actual knowledge. A jury trial is demanded even though the precise number of parties injured and entitled to equitable relief is currently unknown to the plaintiff, but may possibly be ascertained from the NCAA’s books and records.

Have the NCAA and other collegiate organizations taken care of participating athletes’ health as vigorously as they have secured television and licensing deals? Is the NCAA negligent in failing to require the teaching of proper techniques that could have reduced or eliminated concussions for their athletes? Or did the NCAA operate through highly trained medical professionals working under the best guidelines available at the time on serious head injuries and continue to update their knowledge of such injuries responsibly? All are potentially relevant questions if the case were to go to trial, with the understanding that any such trial is years away given the pace of discovery, pre-trial motions, and possible settlement negotiations. In the event that Arrington and his class members were to win, colleges, working in concert with the NCAA, would almost certainly exercise more caution to ensure athletes against concussion-type injuries. In fact, the implications of a win for the plaintiff would likely transmit to every tier of competitive football as well as other sports that sometimes involve head trauma such as baseball, rugby, and lacrosse.

Marlon R. McPhatter is a doctoral student at Florida State University. He earned his undergraduate degree from Georgetown University and his MBA from the University of North Carolina-Pembroke. Ryan M. Rodenberg is an assistant professor at Florida State University where he teaches sports law analytics. © Marlon R. McPhatter and Ryan M. Rodenberg 2011.

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Battle of the Beers

By Jon Heshka

In a country where ice hockey and cold beer go hand in glove, two of Canada’s biggest breweries have been battling it out over sponsorship rights as the official beer of the National Hockey League. On 3 June 2011, Newbould J. of the Ontario Superior Court of Justice held that the NHL and Labatt Brewing Company Limited reached a binding sponsorship agreement on 12 November 2010 which would have run from July 1, 2011 — June 30, 2014. As such, the NHL was consequently not free to enter into a similar but superior agreement with Molson Coors Canada Inc. on 8 February 2011. The NHL and Molson appealed and the court held in their favor on 12 July 2011.

In a ruling which has left Labatts all wet (and sudsy), the Court of Appeal for Ontario found that Newbould J. erred by making his finding in a manner not anchored to the pleadings, evidence, positions or submissions of any of the parties to the case. It was accordingly “procedurally unfair, or contrary to natural justice” for this conclusion to be reached [5]. Citing Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), the court held that a theory of liability which emerges for the first time in the reasons for judgment is never tested in the crucible of the adversarial process and thus raises concerns about the reliability of that theory [6].

It is noteworthy that Labatt did not plead that the parties had reached a binding sponsorship agreement on 12 November 2010 [12]. Labatt did not assert during the application hearing that a binding sponsorship agreement existed between the parties and expressly disavowed that it had reached a binding sponsorship agreement with the NHL [13]. The appeals court accepted the NHL’s submission that if it had known that the existence of a binding sponsorship agreement between the NHL and Labatt was at issue, it would have conducted its defence to Labatt’s application in a very different fashion [15].

While hockey is a small fish in the big frozen pond of professional sport relative to their much larger counterparts in football, baseball and basketball, there is still significant money to be made (and lost). Kyle Norrington, marketing director of Budweiser and regional brands for Labatt in Canada, commented in an affidavit filed with the Ontario Superior Court of Justice on the relationship of hockey and beer: “The NHL and the access it provides to Labatt ... is the single greatest opportunity to grow Labatt’s share in Canada. The nexus of sports / heritage / emotional / tradition in hockey has no other Canadian comparable.” In contrast to the $37.2 million over three years agreement that Labatt was pursuing, the Molson deal is worth a reported $375 million over seven years.

It is the combination of the trial judge’s analysis of the renewal option in the 2002 Labatt/NHL agreement and his conclusion that a binding agreement was reached at the 12 November 2010 meeting that created the procedural unfairness problem [18]. Quoting Cronk J.A. in Grass (Litigation Guardian of) v. Women’s College Hospital (2005), 75 O.R. (3d) 85 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 310, the appeals court held that, “at the end of the day, the issues between the parties are defined by and confined to those pleaded” [53]. Since this did not happen, the NHL and Molson were denied procedural fairness and the judgment of Newbould J. was set aside.

Revenge is a beverage best served cold. Earlier this year, Coors Light lost the bragging and sponsorship rights as the official beer of the National Football League to Anheuser-Busch for $1.2 billion over six years. The $375 million Molson Coors/NHL deal reportedly includes approximately $100 million for the rights, $100 million in guaranteed advertising buys and $100 million in activation costs for staging special promotions to capitalize on its rights.

On 6 October 2011, Labatt disclosed that it had received confirmation that the Ontario Superior Court of Justice had dismissed its suit against the NHL and Molson Coors thus ending this round of the battle of the beers. The court plans to release the reasons behind its decision at a later date and Labatt said it would review its legal options at that time.

Jon Heshka is an Associate Professor and Co-Director of the Centre for International Sports Law (CISL) at Thompson Rivers University, British Columbia.  

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Sports Broadcasting Rights in the European Union - A Game Changer?

By Richard Penfold

Sports rights holders, professional sports teams, TV broadcasters and their legal advisors will be considering the possible impact to the value of their rights after the judgment of the EU's highest court, the European Court of Justice (ECJ) on 4 October 2011, on claims brought by the Football Association Premier League (FAPL).

FAPL runs the Premier League (PL), the leading professional soccer league competition in England, which is the most widely watched sporting competition in the world and also the world's most lucrative soccer league.

FAPL's shareholders are the 20 soccer clubs in the PL. Much of the PL's success is as a result of FAPL's sale of exclusive TV broadcast rights around the world on a country by country basis. It is this practice in the EU which has incurred the intervention of the EU authorities before and which was the subject of the latest decision by the ECJ.

The ECJ judgment concerned a number of cases brought by the FAPL against suppliers in the UK of Greek TV satellite decoder cards and boxes which enable reception of live PL soccer matches in the UK broadcast by the exclusive Greek broadcaster and also a number of pubs which screened those matches using these non UK decoder cards and boxes — at a cost lower than the cost of the service from the exclusive UK broadcaster, BSkyB.

In a decision which considered anti-trust, exclusive license arrangements and intellectual property rights, the ECJ decided that:

  • the grant of exclusive satellite broadcasting licenses for one or more EU member states, which included provisions requiring the licensee not to sell decoder cards which enable viewing of PL matches outside its licensed territory, breached EU anti truest rules;
  • UK legislation which made it unlawful to import and sell such decoder cards from other EU member states was in breach of EU law;
  • transmission of broadcast of PL matches to customers in pubs included communication to the public of copyright works, including the opening video sequence, music and graphics. Communication of such copyright works without permission of the rights owner amounted to copyright infringement.

So what does this mean practically for the PL teams and their broadcasters?

Although the decision was much lauded as a victory for small pubs seeking to take advantage of costs differences in the EU, in reality, because showing PL matches in a pub will include the unauthorised communication of FAPL's copyright works, the victory may in fact be a Pyrrhic one. As far as private individuals are concerned however, who are able to rely on private use defenses to copyright infringement, there is no legal obstacle to obtaining decoder cards from other EU member states to watch PL matches. Whether this will mean in the long term that FAPL will be able to set a higher licence fees, or indeed be forced to accept lower fees, when it renegotiates its licenses with broadcasters in EU member states, to reflect the fact the broadcasters will have the right to issue decoder cards outside their state, remains to be seen.

Mr. Penfold is a partner at Brown Rudnick. In the entertainment industry, he assists celebrities, authors, actors, musicians and sports players with image and brand rights protection, licensing and enforcement. He also handles IP matters related to film and music production as well as broadcast media. He can be reached at rpenfold@brownrudnick.com

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Dispute Between Cuban and Perot Takes Another Weird Turn

A legal dispute between Dallas Mavericks owner Mark Cuban and Ross Perot Jr. took a bizarre turn last month when Center Operating Co. LLC (COC), an entity controlled in part by Cuban, sued Perot and his Hillwood Development Co. LLC, claiming breach of contract and fraud.

Specifically, the complaint alleges that Hillwood improperly permitted a parking garage near the American Airlines Center, which COC manages, to compete with event parking at the arena. The plaintiff also alleged that Hillwood competed with COC for sponsorship and advertising revenue. COC claimed that a non-compete agreement between the parties was supposed to prevent Hillwood from such activity.

Cuban and Perot, who is the son of billionaire and two-time presidential candidate H. Ross Perot Sr., are also battling on another front. Last year, Perot’s Hillwood Investment Properties III Ltd., which reportedly owns a 5 percent stake of the Mavericks, sued Cuban’s management company, Radical Mavericks Management, claiming it breached its fiduciary duties by mishandling the team's finances.

Shortly after the Mavs won their first NBA championship, the defendants moved for summary judgment. The document, which contained a large photo of Cuban and the Mavs celebrating their upset victory over the Miami Heat, included the following passage: “Under Hillwood's ownership, the team was deemed the 'worst franchise' in all of professional sports. Under Cuban's stewardship the Mavericks have become one of the league's most successful teams and are now NBA champions. Accordingly, there can be no genuine question that Hillwood's claims of mismanagement lack merit and Hillwood's claims should be disposed of on summary judgment.”

Cuban’s company is represented by Tom Melsheimer, a principal in the Dallas office of Fish & Richardson. Perot and his companies in the parking lot dispute are represented by George Bramblett Jr., a partner with Haynes and Boone. Meanwhile, where Perot is the plaintiff, he is represented by Mark Davenport, a partner in Dallas' Figari & Davenport.

Melsheimer told Deadspin that the decision to leverage the Mavericks success in the NBA Finals was an obvious one. “You don't have that many cases when you're watching television and a game ends, and you think, 'Wow, this is really great for my lawsuit.' It's a humorous twist, but it has legal force. It makes a serious point that allegations of mismanagement are ridiculous. A substantial part of our defense is that the Mavericks are successful, and what more obvious success for an NBA team than an NBA championship?”

Melsheimer was also asked whether Cuban had put winning ahead of operating a profitable business.

“Fundamentally in sports the most valuable franchises are the ones that win,” said Melsheimer. "You build brand loyalty, you build your fan base, and you build a tradition. Winning is the key to doing that. It's a long-term thing, if Mr. Perot doesn't see that, he's clearly not a basketball guy."

In a more recent development, Cuban’s attorneys sought to consolidate the two cases. Melsheimer said the cases “are related in a general way even if they are not the same case."

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News Briefs

Golf Professional Sued for Not Providing Personal Instruction

Hank Haney, the former coach of Tiger Woods, has been sued by a Pennsylvania woman and her son who claim that the teaching professional did not fulfill his promise of personal instruction at his golf academy. Plaintiffs Maureen Fitzgerald and her son, Matthew Teesdale, alleged consumer fraud in a lawsuit filed last month in federal court in Philadelphia. The plaintiffs allege that Haney provided only seven minutes of instruction to Teesdale, who had paid $30,000 in fees when he enrolled at the Hank Haney International Junior Golf Academy in Hilton Head Island, S.C. The plaintiffs are seeking damages in excess of $150,000 and a jury trial.

Founder of Sports Agent Blog Joins New Law Firm

Darren Heitner, founder of the Sports Agent Blog and Dynasty Athlete Representation, has left the law firm of Koch Parafinczuk & Wolf, PA in Fort Lauderdale, Florida, and has joined entertainment attorney Richard Wolfe at Wolfe Law Miami, PA in Miami, Florida. Heitner, who also teaches a sports law class at Indiana University, will focus his practice on sports, entertainment, intellectual property, civil litigation, and transactional work.  Wolfe (www.wolfelawmiami.com) has 30 years experience in representing some of the biggest names in film, television, music, and sports.

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Lawyer Claims NCAA Is Ignoring Evidence

A Columbus, Ohio lawyer, who represents several suspended Ohio State University football players, has claimed that the NCAA is ignoring documentation that he claims exonerates or reduces the culpability of his clients. Attorney Larry James told the Columbus Dispatch that the NCAA had “made up” its mind and “nobody was going to change it." James went on to make records available to the media, which he believes the NCAA did not consider when suspending receiver DeVier Posey for five games. Posey allegedly accepted too much pay from a summer job, meaning he had received improper benefits. James claimed that he had produced a correlation between Posey's phone records with his work record, which showed that Posey was on the job site, and not collecting money without even appearing for work as alleged by the NCAA. Even if James’s argument was persuasive, both sides admit that Posey as well as the other players failed to secure clearance from Ohio State's NCAA compliance department to work the jobs, a requirement of the NCAA.

Ropes & Gray Highlights Its Involvement in Negotiating New Venue for Basketball Tourney

Ropes & Gray recently announced that it represented the National Association of Basketball Coaches (NABC) in reaching a 5-year deal with the management team of the Brooklyn Nets, to move the group’s annual pre-season basketball tournament, the Coaches vs. Cancer Classic, from Madison Square Garden to the newly built Barclays Center in Brooklyn. In addition, Ropes & Gray advised the NABC on its three-year partnership with Turner Sports to broadcast the Classic on truTV beginning in 2012. Turner’s agreement with the NABC comes on the heels of its $14 billion partnership with CBS Sports to air the NCAA men’s post-season basketball tournament. The Ropes & Gray team that worked on these matters included Boston-based corporate and sports law partner Dennis Coleman, Boston-based corporate and sports law associates Dan Adams and Matt Byron, and New York-based IP and sports law associate Ryan Colgan.

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The New York Law School Groups Prep for Third Annual Sports Law Symposium

The New York Law School Institute for Information Law and Policy and the New York Law School Sports Law Society have announced the agenda for the Third Annual Sports Law Symposium, which will be held November 4, 2011 at the New York Law School, from 12:30 pm to 8 pm. CLE credits will be offered.

The panels include:

Panel 1: Overview of Current Legal Developments in the Sports Industry

  • Breakout Session 1: Financial and Tax Considerations in Representing Professional Athletes
  • Breakout Session 2: Intellectual Property Issues in Sports
  • Breakout Session 3: Athlete Agent Regulation and Enforcement

Panel 2: Legal Infrastructure of Developing and Growing Professional Sports Leagues

Panel 3: Amateurism Issues in Collegiate Sports

Panel 4: Breaking Into the Sports Industry

The panelists include: Jason Belzer - President, Global Athlete Management Enterprises, Inc.; Andrew Bondarowicz - President, Aregatta Group, Inc.; Allison Cantor - assistant counsel, ESPN; Mark Conrad ’81 - associate professor of business law, Fordham University, adjunct professor of sports law, New York Law School; George Daniel - Commissioner, National Lacrosse League; Marc Edelman - assistant professor of law at Barry University’s Dwayne O. Andreas School of Law; Dimitrios Efstathiou - senior counsel, Major League Soccer; Andrew Fine - director of marketing and broadcasting, RLR Associates; David Fish - NFLPA certified agent, adjunct professor of law, New York Law School; David Gross - Commissioner, Major League Lacrosse; Darren Heitner - founder of Sports Agent Blog, president of Dynasty Sports LLC; David Mayer - counsel, ESPN; Kevin Matz - managing member, Kevin Matz & Associates PLLC; Michael McCann - Sports Illustrated legal analyst, NBATV legal analyst, professor of law, Vermont Law School; Tim McIIwain ’95 - partner, McKenna McIlwain, LLP; Robert Raiola - CPA, sports & entertainment group manager at Fazio, Mannuzza, Roche, Tankel, LaPIlusa, LLC; Katherine Salisbury - President, Friedman & Salisbury Sports Management LLC; David Soskin ’08 - assistant counsel, ESPN; Mike Zarren - assistant general manager and associate team counsel, Boston Celtics; and Warren Zola - chair, Professional Sports Counseling Panel, Boston College.

For more information on the event, please contact Elliot Solop at essolop@gmail.com.

Concussion Policy and the Law Debuts as a Legal Resource

Hackney Publications has announced today the creation of a new blog, Concussion Policy and Law, which can be found at http://concussionpolicyandthelaw.wordpress.com.“Legal issues involving concussions and the policies being implemented to protect athletes, whether they are 7 years old or 47 years old, is a growing segment of sports law,” said Holt Hackney, the publisher and editor of Concussion Policy and the Law. “As the leader in the sports law publishing field, we feel a responsibility to track developments in this area of law. Our primary goal is to protect athletes. Our secondary goal is to help those entities that create a forum for athletics, whether a school district, a college, an association or a professional team, shield themselves from liability.” For more information about the blog or to contribute a post, contact Assistant Editor Ellen Rugeley at erugeley@hackneypublications.com.

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Sports Litigation Alert is a bi-monthly publication of Hackney Publications. Copyright 2011. All Rights Reserved.

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