The pageantry and anticipation surrounding the Olympic Games has subsided recently. The mismanagement by certain host countries (Greece and Russia among others) has had a sobering effect on future host-candidates. In other words, countries are still down to party at your place, they just don’t welcome you coming over and ruining their expensive city.

And no city makes headlines for being unwelcoming quite like Boston. Last Thursday, America’s bid city held its first community meeting on the 2024 Olympics at Suffolk Law School. The organization No Boston Olympics–a grassroots coalition that has seemingly summoned the hospitality of Louise Day Hicks–was a vocal participant at the meeting. Essentially, No Boston Olympics feels the cost of hosting the 2024 Games would financially cripple the city, and everyone within the blast radius would foot the bill via taxes. The group makes a strong point: spending lots of money often sucks. But like other groups of contrarian fiscal hawks (see: Tea Party), they don’t see the entire picture.

The truth is, the success of the Olympic Games usually depends on who’s hosting. Greece, a country whose debt is becoming as famous as its Baklava, has not rebounded from hosting the 2004 Olympic Games.  Russia, which is having difficulty financing its own imperialistic urges, is now also struggling to pay off the 2014 Sochi Olympic Games.

On the flip side, the 2008 Summer Olympics turned a profit in Beijing. The 2012 Games in London, which were not cheap, could generate up to £40 billion in economic growth for England by 2020. Are those examples too foreign for you? The good ol’ US of A turned a profit after the ’96 games in Atlanta. As we did for the ’84 games in Los Angeles and then again for the Salt Lake City Winter Olympics in 2002.  Don’t we have faith that an Olympics in Boston would follow the lead of England or prior American Olympics rather than those games in Greece and Russia?

Here are a couple of reasons why Boston could be a good spot. The CEO of the 2002 Salt Lake games–Mitt Romney–lives in the area, and Boston is where his venture capital firm is headquartered. Not only is he local, but he also could have some free time on his hands! This is not a joke. Speaking of saviors for winter sports, do you know who else calls greater Boston home? Bob Kraft, the Patriots owner who privately financed his new stadium and turned a moribund afterthought into a four-time Super Bowl winning machine. He’s also been fingered as an adviser for the 2024 bid. Another big name is Red Sox owner John Henry, who was one of the few people who made millions during the 2008 recession and has already approved of Olympic use for Fenway Park.

This really isn’t a coincidence. There are many people in Boston who manage money well and who know the business of sports. It’s also densely populated, connected by a major subway system, and has vacant college housing during the summer. You get the point. Now let’s hear some counter-points courtesy of Boston.com’s coverage of the committee meeting.

1. “Members of Boston Homeless Solidarity Committee questioned why  . . . a cure for AIDS couldn’t get the resources and attention that an Olympic bid might.” (You can host the Olympics when you cure AIDS. Deal, fat cats?)
2. “At one point during Mandredi and Blauwet’s presentation, they showed a rendering of the proposed beach volleyball stadium on Boston Common. That idea drew hissing.” (Boston Common is for ice skating and for smoking pot in between Emerson classes. Not beach volleyball.  GAWT IT? If Boston wins the bid, don’t be surprised if there’s a spinoff protest for this particular issue. #NAWTOWAHCAWMIN)

Being frugal about local resources is understandable. People want the T (subway) fixed. People want better infrastructure. And people want these things completed quickly, without being too expensive. Well you know what could potentially make that happen? The Olympics. This isn’t that novel of an idea. If the International Olympic Committee and the United States are pushing for a smooth, seamless Olympics, you’ll probably get outside funding to fix some of your local problems. Romney got $3 million from the federal government specifically to help extend Salt Lake City’s light rail for its Olympics. In fact, for the last three American Olympics the federal government has spent $1.4 billion to improve the host cities’ transportation and infrastructure, a figure that will increase considering the government knows how inflation works. This money comes in addition to the millions that these cities receive from outside investors and through corporate sponsorship.

I realize many in Boston still suffer from a Big Dig hangover. That mega-engineering project spiraled out of control and the debt won’t be paid until 2038. But one bad investment–and its badness is debatable–shouldn’t stop the city from taking some financial risks in the future. The list of potential hosts is getting smaller, which means the IOC will soon be forced to scale down the costs involved in hosting the Olympics, which means the possibility of profit could be even greater. So while this may not be an obvious opportunity for Boston, maybe we should fully evaluate the idea[r] before calling in the militia. I mean, who doesn’t love a pahty, kid?

Andrew Blancato

The post Boston Olympics Backlash Filled With Cowardice and Stupidity appeared first on Law Street.

Fantasy football players received an early Christmas present this week, as leagues throughout the country crowned new champions following week 15 of the NFL season. For most, that present was the gift that keeps on giving: cold, hard cash. Anybody who has played in a fantasy league will tell you that these winnings are the result of hours of research, informed speculation, and hard work…or at least hard television-watching. Even those of you who don’t understand fantasy sports have still probably noticed the growing popularity of fantasy leagues. So with millions of dollars being legally exchanged this week for fantasy winnings, it’s time to re-visit the age old question: why are fantasy sports legal while most sportsbooks–places where gamblers can wager on sports–remain illegal?

The answer to this question lies in a small, perhaps capricious distinction between chance and skill. In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) which essentially outlawed online sports gambling. The law excluded most fantasy sports leagues, exempting bets with:

An outcome that reflects the relative knowledge of the participants, or their skill at physical reaction or physical manipulation (but not chance), and, in the case of a fantasy or simulation sports game, has an outcome that is determined predominantly by accumulated statistical results of sporting events, including any non-participant’s individual performances in such sporting events…

Essentially, the government created a naughty-or-nice list. If you place bets based on skill, you’re nice. If you place bets based on chance, it’s coal city for you.

Exploiting this distinction has made fantasy winners happy, and fantasy businessmen even happier. FanDuel, which specializes in daily fantasy sports matches, is projecting $40 million in 2014 revenue. Boston-based DraftKings has raised over $75 million in investments since it was founded in 2012. Clearly, the industry heads of “skill” based sports wagers are at the top of the nice list, but the ambiguous language Congress has utilized may leave room on the list for others.

Most sportsbooks typically offer their clients bets on a particular team’s outcome in a particular game. Arguably, the results of these games are determined based on home-field advantage, strength of the opponent, and the collective performance of the team. Some larger sportsbooks offer player-props, which are estimations of how a particular player will do either in a particular game, or over the course of a season. For example, if a gambler banks on Detroit Lions wide receiver Calvin Johnson to catch more than 1.5 touchdowns in a specific game, he reaps a monetary reward. Sound familiar?

To New Jersey attorney Charles Humphrey, it sounded like a fantasy sports wager. That’s why in 2006, Humphrey filed an action in federal court arguing that fantasy leagues and sportsbooks were essentially the same, and that ESPN was breaking gambling laws by collecting fantasy entry fees. The District Court of New Jersey ruled against Humphrey, but chose not to tread into the murky waters of the UIGEA’s skill/chance distinction when relying on the law.

Few others have opined on whether player props are skill-based and technically legal under the UIGEA. That’s probably because it’s political. Some casinos with money and clout have set their sights higher than online player props, attempting instead to push through live-action sportsbooks in places like Monmouth, New Jersey. And seeking to compete online with the aforementioned FanDuel and DraftKings is also probably more difficult than it appears. Beyond deep pockets, those two companies belong to the Fantasy Sports Trade Association (FSTA). The FSTA is no stranger to lobbying and legal action, and although they typically argue in favor of the sports-wagering industry, don’t bet on them siding with a start-up company looking to specialize in prop bets and take a piece of their pie. After all, some of the biggest opponents of the online expansion of gambling happen to be other gamblers.

Regardless of hurdles, the valuation of a professional athlete’s performance is highly lucrative, and part of an industry that is getting bigger and bigger. It’s only a matter of time before some brave company offers player prop bets under the guise of a fantasy league. To prepare, Congress should rewrite the UIGEA’s skill/chance distinction, because the current list of who’s naughty and who’s nice doesn’t make much sense…even if you check twice.

Andrew Blancato

The post Fantasy Sports: Good Fun or Illegal Gambling? appeared first on Law Street.

On August 20, 5 million people tuned in to watch a summer baseball game, a pretty impressive figure considering MLB playoffs don’t begin until October. Now consider that those numbers aren’t for major league baseball or even college, but for little league baseball. Last Wednesday, 13-year-old Mo’ne Davis and her Philadelphia team battled and lost admirably to their Las Vegas counterpart, the latest event in a string of brushes with early fame. Sports fans and parents alike seem to endorse little league baseball, but one has to wonder: in an age when amateurism is being redefined at the collegiate level, will the public ever find little league baseball to be exploitative?

Like college football, little league baseball has seen a relatively quick surge in revenue. In 2012, even before Mo’ne Davis took America by storm, Little League Inc. had assets of nearly $85 million. Also like college football, the players are not the ones collecting the revenue. A majority of the revenue generated is used to maintain the Little League headquarters in Williamsport, Pennsylvania, as well as the domestic regional offices and the international facilities in Canada, Hong Kong, and Poland.

As the NCAA can attest, if organizational revenue increases from television contracts while players remain unpaid, some may declare the league exploitative. But Little League, Inc. can rest assured knowing its players won’t be seeking the same redress as current or former college athletes. For starters, Little League, Inc. hasn’t sold its athletes’ rights to merchandisers. The NCAA did, and that was generally what the recently decided O’Bannon v. NCAA was all about.

Secondly, the best college athletes not only earn their organizations money, they do so in lieu of their own earnings. Star athletes in basketball, football, hockey, and baseball often choose between college or receiving compensation from a domestic or foreign league. In 2008, NBA point guard Brandon Jennings chose to play professional basketball in Italy rather than play college basketball in the U.S. Mo’ne Davis et al., as entertaining as they may be, do not have similar opportunities considering minors lack the traditional capacity to contract in the United States, and child labor, even in Europe, is frowned upon.

Although it shouldn’t worry about being sued by its players, Little League Inc. might have to worry about its volunteers. Behind the play of child stars stands 1.25 million non-paid volunteers who ensure little league games are run effectively. Think it’s unlikely they would sue after volunteering to work for no money? So too, most likely, did Major League Baseball. So too, most likely, did several media giants in NYC.

Can all volunteers now sue their “employer,” even if it’s a non-profit? Is anything keeping Americorps and Salvation Army volunteers from suing those establishments? Not exactly. The Southern District of New York held fairly recently in a suit brought by Fox Searchlight Studio interns that the unpaid’s legal status generally depends on the motivation of the organization using them. Fox was found to be using interns in lieu of employees, and it was mainly to benefit them financially rather than offer experience to the interns. If Little League, Inc. keeps expanding its volunteer base in order to continue generating revenue, then it too may be thrown a curve ball.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Edwin Martinez via Flickr]

Andrew Blancato

The post Little League is Big Business appeared first on Law Street.

The National Collegiate Athletic Association (NCAA) has ruled college athletics in a manner that would make dictators green with envy, and each decade under its rule seemed to indicate the increased power they’ve gained. In 1976 the association was entrusted with the authority to penalize schools directly. In 1988, the Supreme Court held that despite its quasi-governmental makeup, the NCAA was not a state actor and therefore need not provide procedural due process. Throughout the nineties and into the present day, the NCAA brokered broadcasting deals for more and more money, resulting in a body that generated more than $750 million as of 2013.  But as any powerful politician knows, you can’t stay on top forever.

On August 8, 2014, Judge Claudia Wilken of the Northern District of California held in O’Bannon vs. NCAA that the NCAA’s current structure violates federal antitrust law. Specifically, Judge Wilken found that the NCAA can’t forbid schools from providing marginal compensation to their student athletes. For now, the ruling only approves of a $5,000 yearly allowance to an eligible NCAA basketball or football player’s trust fund. But the old guard should be nervous, as this decision is just one of several recent (and well-designed) attempts to wrestle power away from the NCAA. Earlier this year, Northwestern University football players successfully petitioned the NLRB to form a players union. Around the same time, famed labor lawyer Jeffrey Kessler filed suit against the NCAA, which essentially seeks to remove all caps on a college athlete’s earning capacity. Some journalists have indicated this is the beginning of the endfor the NCAA, but if that’s so, what lies ahead?

The good news is that courts are unlikely to reverse the advances made by the students. The NCAA has already indicated its plan to appeal O’Bannon, but since the Ninth Circuit is generally labor friendly, it’s unlikely the decision will be overturned at the next stage.

A reversal at the Supreme Court isn’t likely either. Despite a recent trend of being generally unfriendly to labor (e.g., this and this), SCOTUS is unlikely to decide O’Bannon purely on employment/labor law grounds. O’Bannon is an antitrust case, and plaintiffs in antitrust cases generally argue to oust a singular bully and restore free market principles. This is a notion most friends-of-management favor, perhaps especially in the Supreme Court’s case considering they’ve restored free market principles against the NCAA in the past.

The bad news for the student-athlete revolution is that their respective schools may have conflicting interests, and they may continue to thwart any effort to provide meaningful pay to students. Not too long ago the NCAA attempted to pass a resolution whereby student-athletes would get a stipend in addition to their scholarships. The schools, not the NCAA, pushed back against the idea.  Essentially, the schools that generated less sports-related revenue believed they would be unfairly burdened if they were forced to offer stipends in equal proportion to money makers like Texas and Wisconsin, especially after considering Title IX funding requirements.

Okay, so tax-paying Americans live with a progressive income tax rather than a flat tax, why can’t NCAA schools construct something similar with regard to student-athlete trust funds? Because the aforementioned money makers in college sports are already positioning themselves to avoid it. The day before the O’Bannon decision came down, the NCAA voted to allow the richest schools in D-I sports to have more autonomy. The autonomy could enable big schools to provide their students with more financial aid and could allow students to receive money through other pursuits (something former Colorado receiver Jeremy Bloom would have enjoyed).

The possible downside to the autonomy is that it becomes less likely the richest schools would be forced to comply with a graduated trust fund plan akin to a progressive tax. The richest schools would pay their recruits what they wanted, while the less-flush schools would be forced to pay the same amount, or risk losing even more recruits to bigger schools. This dichotomy could widen the income gap between large and small schools.

So why would the NCAA do this? Because the NCAA was a puppet government all along, man. Unlike sports oligarch FIFA, the NCAA doesn’t have a lot of disposable income. Ninety-six percent of its annual revenue is returned to charter schools, which is disproportionately given to the moneymakers of football and basketball. This money, AKA leverage, forced the hands of the NCAA and smaller schools to vote for the power-five conference autonomy, because they were scared the big schools would split off and create their own league.

In sum, the students won the day on August 8, but the real war could pit wealthy schools against not-so-wealthy schools. And in the end, the tyranny felt under the NCAA may not compare to the misery that the students and administrators of less fortunate schools feel when they try to compete against the power brokers of college sports. But ya know, viva la revolution.

Andrew Blancato

The post Watch the Throne: Who Succeeds if the NCAA Loses Power? appeared first on Law Street.

Last month, the NBA came very close to having at least one playoff game boycotted by players due to the incendiary remarks made by former Clippers owner, Donald Sterling. Last week, rumors swirled that FIFA would be forced to cancel the World Cup due to the number of protests in Brazil. Both the NBA Finals and the start of the World Cup proceeded as planned however, and while their respective controversies remain newsworthy, these incidents joined the long history of near-cancellations not becoming tangibly disruptive. Will this ever change?

Since the beginning of the twentieth century, few major sporting events have been cancelled due to social unrest. The largest instigator of cancellations excluding work stoppages comes in the form of war. The 1916 Summer Olympics were cancelled due to the outbreak of World War I. In 1940 and 1944, both the Summer and Winter Olympics were cancelled due to World War II. FIFA also cancelled two World Cups due to World War II, while the International Ice Hockey Federation World Championships were also cancelled between 1939 and 1947.

Although world wars have ended, cooler heads have not necessarily prevailed. Public backlash, much like sports popularity, seems to grow dramatically in the age of twenty-four hour news coverage.  In 2008 the Dakar Road Rally was cancelled following the heavily reported murder of four French tourists in Muaritania over Christmas vacation. Al Qaeda later claimed responsibility and followed with more publicly reported threats, ultimately forcing the Amaury Sport Organization to save face and cancel the event.

Good guys have also used new technology to cancel sporting events. In 2012, the New York City Marathon was cancelled after public criticism following the decision to host the event during Hurricane Sandy recovery. Many New Yorkers took to Twitter and Facebook to spread the message by creating hash tags and Facebook groups calling for cancellation.

A year earlier, the Middle East played host to several national uprisings during the Arab Spring.  Related pressure from the movement, which was largely incited by social media,  led organizers of the Bahrain Grand Prix to cancel the event in 2011. In 2012 the race was almost cancelled again amid continued protest.

Tweeting, Facebooking, and YouTubing protests have galvanized followers into action much like aligned sports fans have used it to organize at their favorite bars to watch games. As these conventions grow more pervasive, it’s possible that protests through social media will gain more followers, and gain them earlier.  Following reports of corruption and poor working conditions, there are already at least four Facebook groups (like this one), a Twitter handle, and a host of YouTube videos calling for a boycott of the 2022 World Cup in Qatar. FIFA may dismiss these efforts as a bunch of pissed off young people trying to ruffle feathers. And they may be right. But that’s also why they should be scared.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Agencia Brazil via Wikipedia].

Andrew Blancato

The post Sports History Repeats Itself as the World Cup Goes On Despite Social Unrest appeared first on Law Street.

Roger Goodell’s job may be harder than it looks. The ongoing debate over the Redskins name-change seems to have reached its apex under Goodell, and the commissioner’s decision to police illegal hits by increasing fines and penalties has left him with few fans among active players. Still, Goodell’s largest challenge may be satisfying the former players.

Last May several ex-NFL players filed suit in federal court claiming the NFL recklessly and illegally fed players painkillers as a means to keep them on the job. Several players, including ex-Bills star Marcellus Wiley have argued that the amount of painkillers consumed during his playing days left him with partial renal failure in his kidneys. Other players argue that the culture of painkiller dependence turned them into drug addicts upon leaving the league. Former lineman Ross Tucker has defended the NFL, arguing that the plaintiffs are deflecting personal responsibility and just looking for handouts from the League’s deep pockets. But most ex-players don’t feel that way, and that’s a growing problem for Roger Goodell.

While America remains fixated on the record-setting deals for young NFL stars, its often forgotten that many of its old stars are struggling, both physically and financially. The painkillers suit comes on the heels of the League’s concussion suit, another multi-million dollar lawsuit filed by former players. Retired NFL players also recently met with Congressional members to discuss the difficulties they and their caregivers have faced in retirement. Many of their issues stem from the fact that NFL contracts generally remain non-guaranteed, and players’ health benefits expire five years after defection from the League. These issues, combined with the grim reality of the neurodegenerative disease now plaguing many ex-players, have forced retirees to take their former employer to court.

Can Goodell win this game? Experts say that the suit faces numerous hurdles, like obtaining class certification and proving causation. But even if this latest suit is dismissed,  NFL retirees are not likely to go away without a fight.  The National Football League is the world’s top-grossing sports league, (which also happens to be insulated from paying income tax), and Goodell himself was paid more than $44 million as recently as 2012. At some point the NFL is going to have to share a larger part of that pie with its former players by rebooting their pensions. If not, Goodell and his League’s public image may go down faster than a Cadillac off Alligator Alley.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Tom Woodward via Flickr]

Andrew Blancato

The post Old People Continue to Harsh NFL’s Mellow appeared first on Law Street.

Donald Sterling’s dramatic month was capped off with a fittingly tumultuous final week. Let’s review: Sterling authorized his wife to sell his beloved basketball team, then disavowed that plan. He received an offer for $2 billion to buy the team, then was deemed mentally unfit to make authorizations on behalf of his family trust. He then filed a lawsuit against the NBA for $1 billion, only to have the NBA approve the $2 billion sale of the Clippers and forego the now unnecessary forced sale process. Got it?

The flurry of events would be hard enough to understand were they to make sense, but they don’t seem to do that. Why would you authorize your wife to sell the team then sue after she fields a great offer? Maybe there is another motive at work? Maybe Donald Sterling is mentally incapacitated . . . like a fox.

Make no mistake, Donald Sterling was a shrewd attorney and businessman in his day. His ability to navigate the greater Los Angeles real estate market made him millions of dollars and gave him the means to buy the Clippers in the first place. But if the average shrewd businessman felt he were being unfairly forced to sell his largest asset, he might try to halt the sale by requesting injunctive relief from a court. At the very least, he might request a temporary injunction to slow the process. Sterling hasn’t done that. In fact, in the complaint filed by his attorneys on May 30, Sterling asks only for money damages.

Perhaps Sterling believes the value of his basketball team has been artificially inflated. Upon hearing whispers regarding what his team could sell for, he instructs his attorney to draft a letter ceding all selling responsibility to his wife, Shelly. After his instinct regarding his team’s worth is seemingly validated upon Steve Ballmer offering to buy the Clippers for $2 billion, Sterling decides to let the sale proceed. He instructs his attorneys to remove from their suit any provision requesting temporary or injunctive relief.

Ostensibly approving of a sale could make him appear feckless and get his lawsuit against the NBA thrown out of court, so next he agreed to undergo a mental evaluation knowing he would be diagnosed with Alzheimer’s. This diagnosis would leave Shelly alone to approve the sale, while Donald could still carry on his lawsuit against the NBA while still projecting the image of an angry, dangerously litigious man. After the sale is completed, Donald would remove his assets from the Sterling family trust. This way, if Donald Sterling was to successfully sue the NBA, the latter could only collect reimbursement from Shelly Sterling. Donald meanwhile, would be resting comfortably with his recently improved pile of money, and a newer, possibly even more vapid young lady to spend it on.

Possible? Maybe. Probable? Maybe not. The flurry of chess-like moves may only appear strategic considering the wealth and profiles of the parties involved. The truth may be that Donald Sterling is a spiteful man who no longer possesses the abundance of fluid intelligence he once had, but maintains the wealth to fire various shots via high priced attorneys. But even that would seem to make too much sense, and really nothing in this saga is as it appears.

Andrew Blancato

The post A Donald Sterling Conspiracy Theory appeared first on Law Street.

It’s a chilly November afternoon in Indiana. Simple, God-fearing folks from Fort Wayne to Evansville have gathered with friends and family to celebrate the football game happening in South Bend, just as they do every year. The game would give the winner a good shot at college football’s national championship, and give one team’s fans bragging rights throughout the country for at least a year. But this year there would be no bragging rights for either Notre Dame or USC fans because there would be no game. Hours before kickoff, Notre Dame quarterback Josef Steinbeck (a transfer from Michigan) convinced his team to strike over the team’s early curfew and average salaries. Notre Dame University, Steinbeck’s employer, was powerless because Steinbeck was protected by a big, powerful, union.

This Thayer-esque sports tragedy is exactly the type of yarn being spun by opponents of unions in college football, like United States Senator Lamar Alexander (R-TN) and the Wall Street Journal. These stories have the potential to both entertain and galvanize the casual fan into opposing collective bargaining for college football players, but are they cautionary tales or tall tales?

Generally, unionized workers are permitted to strike only for economic concessions or due to an unfair labor practice (ULP) committed by their employer.  If a union strikes for an economic concession that’s plainly covered by their collective bargaining agreement (CBA) (e.g. strike to compel an employer to raise minimum salaries higher than the CBA permits), a union risks committing a ULP itself, which could lead to fines, sanctions, or even decertification of the union. Unions also can’t strike unless they’ve given ten days notice to their employer, and they can’t strike at all if their CBA contains a no-strike provision. Rather than striking or hashing out issues via proletariat revolution, union complaints are usually either withdrawn or settled.

Still, work stoppages do happen (although apparently not in Canada). In sports though, it’s often not at the behest of the union.  A glimpse at work stoppages in professional sports shows that most are caused when owners refuse to permit the players to work (lockout) rather than the players refusing to play for the owners (strike). In baseball, strikes outnumber lockouts but mainly because the MLB’s perplexing antitrust-exemption prevents players from using alternate means to litigate their beef with management. In other sports, lockouts have typically arisen when CBAs between ownership and players have expired, and the two sides have not agreed upon a new contract. Since it takes two to tango, an unbiased observer would see owners just as responsible for sports stoppages as players are.

Even if the improbable did happen and unionized college players went on strike, would they deserve our resentment? The National College Players Association (NCPA) would be the presumptive union representing most college sports teams, and their demands are fairly modest requests regarding player safety, scholarship guarantees, and the ability to transfer. If a school reneged on one of these issues mid-season and still expected its football player to provide it with its multi-million dollar revenue stream, is the student the bad guy? Not in any story I’ve ever read.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Shaynedwyer via Wikipedia]

Andrew Blancato

The post The Fable of the College Football Strike appeared first on Law Street.

The NFL’s drug enforcement policy is making news again, this time because the Cleveland Browns’ only reason for existing star receiver, Josh Gordon, failed another drug test for allegedly smoking marijuana. The Browns are now likely to be without Gordon for the entire 2014-2015 season because the League’s Policy and Program for Substance Abuse (a cleverly couched title for a lengthy drug rulebook) imposes a one-year banishment from the league as the minimum penalty for stage three infractions.  Much like a judicial body, the NFL and a few other leagues have devised a lengthy program to curb drug use. Unlike a judicial body, however, the NFL is not a tax-payer funded institution entrusted to balance the punishment and rehabilitation of society. So why do they try? It probably has to do with image. Drug-using players make for poor role models, which is why the issue remains uncontentious between player unions and ownership (at least compared to wages). But with public opinion changing and player drug-use actually elevating, it’s probably time to relax the rules with regard to weed.

The League should remove marijuana from its drug policy list of controlled substances because the public doesn’t care if athletes smoke weed. A majority of Americans now support efforts to legalize marijuana, and 18 states have decriminalized non-medical marijuana possession. Will Sports Illustrated for Kids soon be posting pictures of Johnny Manziel on its cover smoking a joint? Probably not, but it’s already pretty clear that not all pictures of athletes exude professionalism.

Athletes who use marijuana also don’t hurt their game. Several athletes have admitted to smoking marijuana, even those who rely on lung capacity. If weed cost them a competitive edge and consequently money, why would they continue to smoke?

League drug policies aren’t curbing drug use either. In 2000, marijuana use among NBA players was reported to be small. Now, reports have used the word ubiquitous to describe the prevalence of smoking pot. The drug’s popularity is likely what prompted Arizona Cardinals cornerback Antonio Cromartie to exclaim that penalizing the drug serves no punitive function. Besides, leagues that haven’t penalized marijuana use, such as the NHL, have remained competitive and are not yet overrun with Jeffrey Lebowskis on ice.

Clearly, it’s high time (couldn’t resist!) to change the rules.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Erik Drost via Flickr]

Andrew Blancato

The post Enough with the Draconian Rules on Pot, Man appeared first on Law Street.

As those of us who don’t live under a rock know, an audio recording was leaked to the media last weekend of Clippers owner Donald Sterling making racist remarks. Last Tuesday, NBA Commissioner Adam Silver addressed the comments and levied historic punishment against Sterling, which included a $2.5-million fine, a lifetime ban from the NBA, and a forced sale of the basketball team that Sterling has owned since 1981. The punishment has earned Commissioner Silver the praise of basically everyone, but the envy of none. That’s because forcing Donald Sterling to sell his basketball team will be fraught with legal difficulties.

The greatest legal obstacle to overcome before finding the Clippers a new owner may be the antitrust hurdle. Several attorneys have opined that there’s little precedent beyond financial instability that permits a commissioner to force an owner to surrender ownership rights. The NBA Constitution, made public last week, is also arguably overbroad with regard to the behavior that can earn an owner the boot. Section 13(a) states that ownership stakes may be terminated if an owner “willfully violate(s) any of the provisions of the Constitution and by-laws, resolutions, or agreements of the Association.” That could include almost anything.

Leagues have been taken to court over similar antitrust issues. In 1994, former New England Patriots owner Billy Sullivan sued the NFL for antitrust violations after the league refused to let Sullivan sell a portion of the Patriots through a public stock offering.  The NFL settled the case with Sullivan for $11.5 million.

A potential antitrust case is also possible considering the domain Silver would exercise over potential buyers. Silver, like other sports commissioners, is likely to veto any buyer who plans to relocate the team to Las Vegas, due to the omnipresence of gambling in Nevada.

Sterling, on the other hand, would likely fight if the team was to be sold for anything less than $1 billion. The Milwaukee Bucks, ranked as the least valuable NBA franchise, sold this year for $550 million, $45 million more than their Forbes valuation. Considering the Clippers are in a bigger market and will soon be signing a lucrative media deal, Sterling could demand at least a $1 billion price tag.

There’s also the antitrust complication posed if NBA Hall of Famer Magic Johnson were to buy the team. Having one of the all-time affable NBA legends purchase a franchise in a city that adores him seems like the perfect fit, but consider the issue this way: Can someone force a businessman to sell his most lucrative asset to the guy he spoke disparagingly of in a private message, especially if that guy has unparalleled clout and is most likely to leverage power in writing contracts with area media networks? Sterling’s lawyers would say no, and they could be right.

Beyond antitrust issues, forcing Sterling to sell his team could be complicated by marital issues. The team is currently owned by a family trust, which could be liquidated or divided if Sterling initiated divorce proceedings against his wife, Rochelle Stein. Generally, property acquired during marriage in California is considered community property and subject to equitable distribution. Were Sterling to seek court intervention for a divorce proceeding, a California family court would halt any sale of the Clippers — absent mutual assent of the parties — in order to equitably distribute the community property of the marriage.  A court could potentially even award the Clippers to Stein (unlikely, but stranger things have happened in LA).

There’s also the possibility that probate court could complicate a Clippers sale. That’s right, in what would be filed in the “be careful what you wish for” hall of fame, Donald Sterling could die and totally screw things up for the Clippers. Like in family court, a probate court judge would presumably halt any sale of the team subject to the terms of the family trust and/or Sterling’s will. If Sterling died before a sale date was set (not a ridiculous scenario), the NBA would have the displeasure of convincing a judge that the owner-approved complaint against Donald Sterling stripping him of his ownership rights also applies to the heirs and wife of Sterling despite them not having violated NBA policy.

There you have it. If he can’t go to the games, then Donald Sterling will see you in hell.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Andrew Blancato

The post Punishing Donald Sterling Is About to Get a Lot Harder appeared first on Law Street.

It’s no secret that many Americans feel there are too many lawsuits in this country. If you’ve ever been selected for jury duty, then you know that one of the most common questions asked before sitting on a civil case is whether or not people sue too often. The answer back to the attorney is often “yes,” not just because the panelist is seeking to avoid jury service, but because that’s the view espoused by many when reflecting on the American zeitgeist.

This sentiment is caused, or at least reinforced, by the media’s reporting of lawsuits. The headlines that make the largest waves are often based on huge, seven-digit verdicts. Laura Beth Nielsen and Aaron Beim alluded to this correlation in a recent paper claiming the courts are not as favorable to plaintiffs as the media often portrays, yet the media’s reports are what the public absorbs. Neilsen and Beim’s chief example is a Boston Globe report of an MBTA worker who was awarded a $5.5 million discrimination verdict. The verdict was later reduced by 80 percent on remittitur, an important detail the Globe did not feature as prominently as the original verdict. It seems that cases alleging discrimination in the workplace carry a stigma with the public and media.

Just as the figures of a verdict can be lost on the average American, so too can the merits of the underlying discrimination case. In 2009, former Los Angeles Clippers executive Elgin Baylor sued team owner Donald Sterling alleging racial discrimination. A jury of 12 unanimously rejected Baylor’s suit, and many called the hall of famer’s action frivolous.

Cases alleging tales of sexual discrimination are no different. This year alone, cheerleaders from three different NFL teams have sued their employers, often alleging sexual harassment among a variety of different wage claims. Knee-jerk reactions to such suits are often negative, as evidenced in the comments section of ESPN articles covering the matter.

A closer look at both situations may evoke a more tolerant response. Since his lawsuit, Elgin Baylor’s former employer has allegedly been caught on tape making racist comments against African Americans, and some former Clippers aren’t surprised by his discriminatory tendencies. Details have also emerged in the cheerleading case of the Buffalo Jills, whose employer allegedly instructed them on how to control their menstrual cycles and how to wash their “intimate areas.”

In sum, it’s never a bad idea to reserve judgment on a lawsuit that appears in the news or on TV, even one alleging discrimination. In fact, suits alleging workplace discrimination often already have safeguards in place against frivolous litigation, like the EEOC’s Right-To-Sue-Letter. But even absent an EEOC investigation, plaintiffs should be afforded a blank slate. Few things in this country are as ubiquitously opposed as prejudice and discrimination. Those who decide to sacrifice time, money, and privacy to personally combat these evils in a public court should be heard with an open mind.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [BuffaloProCheer via Wikipedia]

Andrew Blancato

The post Rethinking Discrimination Suits in Light of Buffalo Jills, Donald Sterling appeared first on Law Street.

It was difficult to discern reality from fantasy in Tallahassee last winter. Jameis Winston, the college football phenom who was leading Florida State to an undefeated season, was dealt a hard dose of real word problems when he was investigated for sexual assault in November.  If charged, he would likely face suspension, and FSU’s dream of becoming national champions would remain fantasy. In December however, Winston was cleared and no charges transpired. The following week, Winston won the Heisman Trophy, and a few weeks later he led his team to a dramatic victory to claim the national championship. It appeared that reality was indeed sweet, and the rape investigation was simply a bad dream. Or was it?

On April 3, the Federal Department of Education (DOE) announced that they would be investigating FSU for whether they improperly handled the Jameis Winston sexual assault case. Under the landmark legislation known as Title IX, universities are required to “promptly investigate” reports of sexual assault. FSU may not have investigated quickly enough, according to the DOE.

FSU’s alleged failings were highlighted on April 16, when the New York Times published an article detailing the missteps of both the University and the Tallahassee Police Department, and charging that the University didn’t investigate when they initially found out about the alleged incident in January 2013.

FSU fired back at the New York Times, claiming in part that “no university official outside the Victim Advocate Program received a report from any complainant naming Winston prior to when the allegations were made public in November 2013.” At first glance, the statement would seem to exonerate the University. On closer inspection, a rather high burden is placed on the victim in order for FSU to comply with Title IX. Must a university official receive a report from the complainant in order to investigate? Must an accuser be named in order to investigate?

A cursory look at the DOE’s guidelines on sexual assault suggest no. In fact, the following line seems to suggest that schools err on the side of caution:

“…if a school knows or reasonably should know about possible sexual harassment or sexual violence, it must promptly investigate to determine what occurred…”

It is possible that Winston’s accuser failed to tell anyone employed by the University about her assault. After all,Tallahassee police primarily handled the report because the incident happened off campus. I called both the Tallahassee Police Department and the Florida State University Police Department (FSUPD)  to follow up on this matter. I asked if there is a policy requiring that arresting officers, whether employed by the school or by the city of Tallahassee, notify the University upon arresting an enrolled student. FSUPD responded that it is practice for all officers to report student-arrests to the University, at which point the University handles any academic penalties according to the student conduct code.

Is it possible that Tallahassee Police report to the University only student-arrests and not allegations of sexual assault on students? The logic behind such a policy may be difficult for DOE investigators to understand, as would the general excuse that although the Tallahassee Police Department knew of a fairly detailed sexual assault accusation on an FSU student since December 2012, the University did not know until the following November.

In the ensuing months, one if not both institutions will be to blame. Either the Tallahassee Police failed to tell FSU, or FSU failed to investigate when they were told by police. If it’s the latter, expect harsh penalties from both the Department of Education and the NCAA. If FSU football thinks they’ll avoid that reality, they better wake up.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Zennie Abraham via Flickr]

Andrew Blancato

The post Did FSU Drop the Ball on Jameis Winston Rape Case? DOE Investigates appeared first on Law Street.

It seemed surreal when news broke that star NFL player Aaron Hernandez would be arrested for the mafia-style execution of local amateur football player Odin Lloyd. In the weeks following that report however, details from the case emerged that painted a very realistic image; the former New England Patriot may have actually committed murder. Ensuing news stories seemed to complete the picture of Hernandez as executioner. A motive for killing Lloyd surfaced. Rolling Stone made public his history of violence and drug abuse. But despite all the plausible connections made in the case, the prosecution was facing several hurdles in convicting the fallen football star. The murder weapon linked to the shooting has not been found and finding credible, cooperative witnesses in the trial has proved difficult for the prosecution. The Commonwealth of Massachusetts could be forced to convince a jury — using only circumstantial evidence —  that a local celebrity is guilty of murder.

This was true until recently, as the prosecution may have received a boost to its case. Last Friday, Hernandez’ alleged accomplices from the night of the murder, Carlos Ortiz and Ernest Wallace, were indicted by a grand jury for the murder of Odin Lloyd. Ortiz and Wallace were originally charged only as accomplices, but the failure of either party to cooperate in the Commonwealth’s case against Hernandez has forced the hand of the prosecution, and likely frustrated its’ attorneys.

The indictment of Ortiz and Wallace is helpful to the prosecution because if a murder was part of a joint venture, the judge presiding over the case may instruct the jury that they may render a guilty verdict without knowing who actually pulled the trigger. Joint venture liability doesn’t make the job easy, but it does allow for conviction if the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged.

Now its the defendants’ attorneys who are frustrated, and for good reason. If a jury didn’t believe Carlos Ortiz’s dubious story of ‘just going along for the ride‘ prior to the indictment, it meant he could be charged as an accessory. Now, he could do life. Prosecutors can also potentially use these new indictments as negative reinforcement to get Ortiz or Wallace to cooperate against Hernandez in a 2012 murder for which the former tight end has been investigated. Either way it appears the prosecution has gained an advantage, leaving Hernandez with even fewer teammates by his side.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Andrew Blancato

The post Hernandez Associates Charged With Murder: Big Break for Prosecution? appeared first on Law Street.

For those of us who follow labor law, sports law, or both, March 26, 2014 was a pretty exciting day. Peter Ohr, Regional Director of the National Labor Relations Board (NLRB) for Chicago, held that Northwestern football players are employees under federal law and would be permitted to hold an election in a bid for union representation. Ohr’s 24-page decision has evoked mixed feelings from labor experts, but most consider the decision to be damaging to opponents of unions in college sports.

While the players might have won the first battle, the war for unions in college football has only just begun. As I mentioned in my original post on this controversial topic, the football team is unlikely to actually have a collective bargaining agreement in place for a couple years. And well before that happens, Northwestern University and some other characters will try to ensure a union delegation never steps foot on Ryan Field in Evanston, Illinois. Here are three tactics that they may use to block unionization:

1. The NLRB Appeal Process: Shortly after Ohr released his decision, Northwestern indicated that they would file an appeal. Appealing a regional NLRB ruling first requires filing a request to review with the National Office of the NLRB in Washington. A request to review is essentially an appellate brief requesting the NLRB to revise the decision of the regional office, usually via remand or reversal (an example can be found here). In Northwestern’s case, the request to review must be filed with the NLRB by April 9, 2014. If the request is granted, the NLRB’s judiciary panel (Board) will conduct a hearing to decide whether Ohr’s ruling was made in error, or whether it will be upheld.

2. Contesting the Election Process: Even if the Board affirms Ohr’s decision, the football team isn’t completely in the clear. The team is to vote on union representation on April 25, 2014, at which point all scholarship athletes participating in team activities will be permitted to vote. If a majority is not reached, the players have to wait one year to be eligible to cast ballots again. If a majority is reached but the team has not formed a collective bargaining unit by the time their eldest voters graduate, Northwestern may file an objection to the election in the form of an unfair labor practice (ULP). The ULP would allege that the deciding votes in the election aren’t eligible for union representation, and therefore a new vote would be required.

3. Congressional Action: Last Wednesday, former Northwestern quarterback Kain Colter and company met with Congressional leaders to discuss their campaign to unionize. Many believe the Wildcats’ trip was intended to drum up support in case Congress votes to enact federal law blocking University students from forming unions. That type of Congressional action is just hypothetical at this point, but also quite plausible. Some politicians have already expressed their displeasure with Ohr’s decision, and most forecasters believe the number of union opponents in Washington will only grow after the midterm elections. Considering the stakes and opponents involved, I’m sure Kain Colter would like as many teammates as possible for the upcoming fight.

Andrew Blancato

The post How Will Northwestern Stop its Football Team From Unionizing Now? appeared first on Law Street.

Springtime in America is marked by a wonderful tradition shared by all, regardless of one’s age, gender, or socioeconomic status. I’m not talking about love or cherry blossoms — I’m talking about the NCAA college basketball tournament. If you are a sports fan or happen to work in an office, you have probably paid at least five dollars to enter a pool and pick the winners of the sixty-eight team, single-elimination competition. If you’ve ever been to Las Vegas in March, you’ve witnessed first-hand the popularity of gambling on college basketball.  March Madness is the third most popular time to travel to Sin City, behind New Years and Super Bowl weekend. But apart from office pools and Vegas trips, it may be difficult to legally bet on the college basketball tournament.

Since 1931, Nevada has sold itself to the rest of the nation as the premier destination for sports gambling, largely with the help of federal law enforcement. In 1961, Attorney General Robert F. Kennedy spearheaded an effort to crack down on organized crime in America and got Congress to pass the Federal Wire Act, which penalized most interstate sports gambling.  In 1992, a broadly supported law entitled the Professional and Amateur Sports Protection Act (PASPA) banned intrastate sports betting in jurisdictions apart from Oregon, Montana, Delaware, and of course, Nevada. And in 2011, the Department of Justice released a public memorandum reiterating that online sports betting is within the scope of the Federal Wire Act and will be prosecuted. U.S. law has clearly disfavored sports betting outside of Nevada, but that may soon change.

Enter New Jersey. The Garden State has seen better days, and its officials believe the road back to those better days is paved with the revenue generated through legalized sports gambling.  This effort was kickstarted in 2009 when New Jersey State Senator Raymond Lesniak filed a lawsuit in New Jersey federal court claiming that the PASPA unconstitutionally discriminates against states by allowing some to engage in legal gambling while blocking all others. The suit was dismissed in district court, and the Court of Appeals for the Third Circuit also ruled against New Jersey.  But New Jersey appealed its decision to the Supreme Court, and there are two reasons why the state has renewed hope for a favorable decision in Washington.

1. The Supreme Court’s recent jurisprudence: New Jersey’s appeal argues that the PASPA violates the equal sovereignty of New Jersey, a principle that basically says the federal government cannot discriminate among states. This principle was traditionally only evoked with regard to land and water rights, but it was recently cited by Chief Justice Roberts in Shelby County vs. Holder, the decision that struck down part of the Voting Rights Act. If the Supreme Court hears New Jersey’s case, it’s a safe bet that the briefs will cite that decision.

2. Times have changed: In addition to New Jersey, elected officials from Iowa, Missouri, and Rhode Island have either discussed or drafted joint resolutions requesting that Congress to repeal PASPA. Additionally, Nevada’s largest gambling ambassadors are more worried about gambling competition from the internet than from the East Coast and Midwest. The time may be most ripe for sports books to return, especially since our New Jersey gambling dearth will soon enlarge. How else would red-blooded Americans fill that vacuous space? With family time? Don’t bet on it.

Andrew Blancato

The post March Madness Outbreak May Not Be Quarantined to Vegas Much Longer appeared first on Law Street.

Eleven days of  evidence have finished in Oscar Pistorius’ murder trial and still it’s difficult to ascertain the track star’s guilt. Some speculate that the national icon will walk, while the public is reluctant to call him innocent. Will his fame influence the finding in his case? Attorneys and bloggers alike speculate that athletes skirt the criminal justice system because of their fame. But is that true? Let’s take a look at some examples.

Donté Stallworth tends to be exhibit A for those who believe athletes get off lightly in the criminal justice system.  In March 2009, Stallworth struck and killed a pedestrian in Miami Beach, Fla. after admitting he drank alcohol earlier in the night. Stallworth served only 30 days in jail as part of a plea bargain, a sentence inciting ire from many who say athletes live in a privileged world. But Stallworth’s sentence may have been the result of circumstances lacking the typical repugnance of a DUI manslaughter case, rather than the result of his fame. Sources claimed Stallworth’s victim, Mario Reyes, was running across the busy road when Stallworth made contact with him. Stallworth also stopped and immediately dialed 911. He reached financial settlement with Reyes’ family rather than drag out proceedings in civil court. Criminal attorneys would probably wager these facts were more integral to Stallworth’s plea deal than his fame.

Mark Ingram Sr. was a star NFL receiver in the 1990s, but has since been charged with money laundering and bank fraud. In January 2009, Ingram Sr. failed to report to authorities to begin his federal prison term, instead deciding to watch his son, former Alabama running back Mark Ingram Jr., play in the 2009 Sugar Bowl. The decision to watch his son play cost Ingram Sr. two more years in prison, although U.S. District Court Judge Thomas Platt seemed to issue the elongated sentence begrudgingly.

Plenty more athletes have earned both long and short sentences for committing crimes. The difference maker in many of these cases may be the factor that often coincides with their success: money. Higher socioeconomic standing has long been found to impact the criminal justice system, but the relationship may be more closely followed now than ever before following the Texas “affluenza” case and the growth of private prisons.

Pistorius’ case could be the latest example of how wealth aids criminal defendants. The “blade runner” has amassed a legal bill that few could pay, but fortunately for Pistorius, he and his family can afford it.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured Image Courtesy of [Wikipedia]

Andrew Blancato

The post Countdown to Blade Runner Verdict: Will Money or Fame Make an Impact? appeared first on Law Street.

Few things in the world are as marketable as sports. There’s just something about the mix of competitive energy and artistic renderings (especially when appearing on casual clothing) that’s fun. Even when tragedies befall us, opportunities to overcome often appear in the simple form of a sports-related symbol or catchphrase, capable of uniting folks behind a singular cause. But since most Americans have great minds (fact), and great minds think alike, some of our best symbols, catchphrases, or ideas in general have already been taken. The problem that arises in these scenarios is a contest of intellectual property (IP), often settled in federal court.

Are there specific examples of said IP struggles in sports? Oh well I’m glad you asked. Here at Law Street we’ve decided to list the top five examples for your entertainment and intellectual stimulation.

5. “B Strong” 

The most recent example of a prominent sports-related IP battle can be found in El Paso, Texas, home of the Braden Aboud Foundation, which was created in 2007 to honor the memory of its namesake. Aboud was a 14-year-old boy who passed away from injuries sustained during a ski accident. Also in ’07, the Foundation received trademark protection for their slogan, “B Strong,” which they’ve printed on merchandise to help fundraising efforts. Fast forward to 2013. That same slogan was adopted by the Boston Red Sox, who printed ‘B Strong’ on their merchandise to raise money for charity following the Boston Marathon bombings last April. The Red Sox have offered joint licensing with the Texas charity, but the parties have yet to agree upon licensing compensation. The conflict could soon be headed to court.

4. San Diego Chicken vs. Barney

In the early ’90s, two giant bipeds stole everyone’s heart: Barney and the San Diego Chicken (three if you count the Phillie Phanatic). In 1994, the San Diego Chicken began a campaign to push out Barney, as he repeatedly assaulted a Barney impersonator at San Diego Padres home games. The routine was in jest, of course, but Lyons Partnership LLP — the company that owned the real Barney’s copyright — was not laughing. Lyons sued the San Diego Chicken in federal court alleging copyright infringement. The fight for Barney however, didn’t last long. U.S. District Judge John McBryde dismissed the lawsuit, holding that the Barney lookalike in San Diego was intended to be used as a parody, and not as a source of confusion with the actual Barney.

3. Major League Baseball vs. Cape Cod Baseball League

Anybody who has played little league baseball knows that recreational team names are often borrowed from MLB teams. In 2008, Major League Baseball decided it would start to enforce the naming rights of its teams by threatening legal action against the Cape Cod Baseball League, whose teams share the names of MLB baseball squads. The Cape League however, is not your average amateur baseball league. It was founded in 1885, and many of the teams — such as the Harwich Mariners — have names that predate those of their MLB associates. Consequently, this struggle ultimately ended in a tie, as some Cape League teams agreed to change their names, while others were permitted to keep theirs.

2. 12th Man (Texas A&M) vs. 12th Man (Seattle)

Fans can often sway a game for the home team. Some teams recognize this home-field advantage and reinforce the raucous behavior of their crowds in less destructive ways than holding a ten-cent beer night. In football, this reinforcement comes in the form of merchandise labeled “twelfth man,” which refers to the home-crowd advantage which is often equivalent to having an extra man on the field. This clever slogan however, is trademarked by the Texas A&M Aggies. The NFL franchise Seattle Seahawks found this fact out the hard way, when they were sued by A&M for using the slogan on merchandise without permission. Despite retiring the jersey number 12 to honor Seattle fans, the Seahawks eventually acknowledged A&M’s trademark, and the two teams agreed to a licensing relationship.

1. WWF vs. WWF

You ready for this one, brother? The World Wrestling Federation and the World Wide Fund for Nature coexisted in harmony for years with both enterprises agreeing to use the descriptive acronym “WWF.”  Presumably, there was no need for a lengthy legal battle because there was no chance the two organizations would be confused with each other. Then came the internet and the alleged breach of the two organizations’ 1994 agreement by the World Wrestling Federation when it began using the domain WWF.com.  The environmentalists ultimately won when a U.K. Court of Appeals ruled that the wrestling giant had breached the ’94 agreement. Nature – 1, Nature Boy – 0.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Rob Larsen via Flickr]

Andrew Blancato

The post The Top 5 IP Battles in Sports appeared first on Law Street.

NFL Commissioner Roger Goodell may go down in football history as the least liked commissioner with the best intentions. His effort to deter future head injuries among players by fining violent hits has caused his approval rating with players to sink. His effort to aid the health of former players may not be sufficient, according to a federal judge. And his plan to penalize on-field use of the n-word has been called hypocritical by several journalists (here, here and here, to name a few). So why do haters gotta hate on Goodell? The first two issues have fairly intuitive answers; people don’t like paying fines, and settling decades of severe brain trauma probably requires lots of money. The last issue is a bit complicated, but it ‘s probably because taking baby steps to battle prejudice is considered by many to be aggravatingly stupid.

Goodell’s intentions seem honest enough. Last November the Fritz Pollard Alliance (FPA) — an organization that focuses on  supporting diversity in the League — approached Goodell expressing discontent at the volume of players who use the n-word in the NFL. The FPA again broached the issue with the League last month, and Goodell heeded their advice by proposing it to the NFL’s competition committee. The League is expected now to pass a rule penalizing the slur starting next season.

The move has been hailed by some members of the press, but it has also been criticized as hypocritical in light of the NFL’s much more glaring issue of bigotry: the name of the eighty-two year old NFL franchise in the District of Columbia, the Washington Redskins. The Redskins have been considered a derogatory name for decades, but the debate has gathered steam recently due to their trademark battle for the name. The ‘Skins owner, Dan Snyder, has refused to change the name, and Roger Goodell has given his steadfast support to Snyder on the issue.

Why, you ask? If Goodell’s public statements are to be believed, he genuinely believes that the term “Redskins” is more flattering than disparaging. Goodell and Snyder also seem to genuinely believe, despite the lawsuits, that the majority of American Indian tribes support their name. The other less insane argument is that renaming the near-$2 billion franchise could cost both the NFL and the team big time after all of the branding and intellectual property ramifications are considered.

Whatever Goodell’s reasoning is for supporting the Redskins, his stance is nothing new for those in similar positions. In fact, it seems like an American tradition, perhaps as sacred as football, for those of esteemed authority to get tangled in a web of hypocrisy when they’re trying to placate on the issue of tolerance. Our greatest legal minds held in a 7-to-1 vote that “separate but equal” was an equitable way to deal with racial tension and state’s rights. It took Congress 51 years to afford women the same right as minorities in the voting booth. And still some elected officials and judges find civil unions to be adequate for gays who wish to be married. Watershed moments of civil rights often come after years of slow flooding, rather than through large tidal waves. Were Goodell willing to defy this trend and force Dan Snyder’s hand, he might be able to earn the thundering applause he might like in passing the n-word penalty. But instead, the commissioner of football may have to settle for a golf clap.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Staff Sgt. Bradley Lail, USAF via Wikipedia]

Andrew Blancato

The post Why the NFL’s N-Word Ban Gets a Golf Clap Instead of a Standing Ovation appeared first on Law Street.

Stop me if you’ve heard this one before. Low-wage workers are pissed that their multimillion dollar employer pays them next to nothing while spending exorbitantly elsewhere and mooching from the same taxpayers they’re screwing. No I’m not talking about the cashiers at McDonald’s or Wal-Mart or the millions of other employees working at or below minimum wage, I’m talking about the cheering squad for the Cincinnati Bengals. Cheerleaders?! Getting paid?! I know, I know. Next thing you know, gays will want to marry and immigrant soldiers will request a path to citizenship. But these ladies actually seem to have a fair gripe, and their story may be instructive on which direction low-wage American workers are headed.

On February 11, 2014, Cincinnati Ben-Gal cheerleader Alexa Brenneman filed a class-action suit against the Bengals organization on behalf of her cheering squad, alleging that her employer violated federal and state wage laws by paying them less than the minimum wage. In her complaint (which can be read here), Ms. Brenneman argues that she made roughly $855 (or $2.85 an hour) for her work as a Ben-Gal cheerleader in 2013. That work included activities such as required practice, charity appearances, makeup clinics, and photo shoots. Ms. Brenneman also claims Ben-Gal cheerleaders received nothing for the time they spent modeling for and promoting the cheerleader calendar, and they were routinely condescended by Bengals management. The statement below, seemingly authored by Big Brother, is from the organization’s Ben-Gal Rules:

Insubordination: Webster defines this word as “not submitting to authority; disobedient.” Syn. Rebellious, mutinous, defiant. Insubordination to even the slightest degree IS ABSOLUTELY NOT TOLERATED!!! You will be benched or dismissed!!!

Authority: ABSOLUTELY NO ARGUING OR QUESTIONING THE PERSON IN AUTHORITY!!!

Ms. Brenneman’s argument isn’t one of a kind. Less than a month earlier, a Raiderettes cheerleader sued the Oakland Raiders for similar wage violations. On a more temporary basis, unpaid interns and volunteers have begun organizing their class-action wage suits against movie studios, publishing moguls, and Major League Baseball.  So why all the hostility?

Beyond the inability to make ends meet, the unpaid and low paid could be upset with the massive pay inequality occurring throughout the country. Labor is becoming cheaper and more dispensable, yet ceo pay is continuing to grow, and is often due to the good fortune and political maneuvering that is not available to the average American.

The Cincinnati Bengals may exemplify this point. The Bengals are owned by Mike Brown, the prodigal son of Bengals founder and NFL mogul, Paul Brown. Mike Brown has owned the team since 1991 when he inherited responsibility upon his father’s passing. Since then, he has widely been criticized, often for poor hiring decisions and for refusing to cede management control of player personnel despite amassing one of the worst records in football during his tenure as owner.

Mike Brown is also despised for conning Hamilton County, Ohio into bankrolling a new stadium for his team. In 1995, Brown threatened to move his team to Baltimore if the county didn’t pay for a new stadium. His tactics worked. Brown, a Republican political donor, secured public financing for his new stadium, which would be paid for in part by increased sales and property taxes in Hamilton County. Paul Brown Stadium is still considered one of the costliest publicly financed stadiums in the country, while Mike Brown and his team continue to make millions.

Although the outrage among low-level Bengals workers may be palpable, things are unlikely to become more fair. Instead of increasing wages, employers often double down on the theory that interns and low-wage workers are expendable by eliminating their position entirely. Condé Nast has ended their internship program after they were sued for wage violations last June. In the world of cheerleading, six NFL teams have nixed their squads, and you can bet this number is likely to grow. Just as employers seek to avoid health care expenses, they seek to avoid costly litigation. So although the Ben-Gals squad may be victorious in their class-action lawsuits, professional cheerleaders as a whole may be the latest group of workers left with nothing to cheer about.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Chris Breeze via Wikipedia]

Andrew Blancato

The post NFL Cheerleaders Are Latest Americans Fed Up With Low Wages appeared first on Law Street.

NFL prospect Michael Sam revealed to the public this week that he is gay. Sam’s decision is undoubtedly brave; if drafted (and he probably will be), he will be the first openly gay male professional athlete in a sport that manufactures traditional male stereotypes. But Sam is no stranger to bravery or to breaking stereotypes. Michael Sam was the first member of his family to attend college, and one of the few children of JoAnn Sam not to clash with law enforcement. Since Sam is used to breaking molds, he may not have needed legal protections to come out. But if we want to enable his choice in more workplaces, two laws could prompt similar behavior.

1. The Employment Non-Discrimination Act (ENDA): ENDA is a federal bill that would prohibit employment discrimination on the basis of sexual orientation or gender identity by employers with at least 15 employees. If enacted, ENDA would prohibit employers, employment agencies, and labor unions from using an individual’s sexual orientation or gender identity for decisions such as hiring, firing, promotion, or compensation (read the Human Rights Campaign’s breakdown of the law here). Despite the growing support for ENDA, Govtrack.us gives the bill only a 14 percent chance of becoming law.  Without it, many LGBT employees could face the painful dilemma of lying to co-workers about their identities or risk losing their employment (although it’s worth noting that 21 states plus the District of Columbia have adopted similar laws). ENDA does have friends in Washington however, and is rumored to become law for federal contractors through executive order.

2. Workplace Bullying Legislation: This type of legislation is another means to combat discrimination at work and thus possibly encourage LGBT employees to be comfortable at their own jobs. Unlike ENDA, workplace bullying laws may provide private claims for employees against other employees who bully or create toxic working environments through bullying. Some state legislatures have proposed insulating employers who act responsibly to thwart workplace bullying. Despite the growing trend of anti-bullying laws being passed on behalf of public schools, workplace bullying legislation has not been enacted in any U.S. State or at the Federal level. The lack of seriousness regarding workplace bullying laws may soon be a thing of the past, however. Sixteen states have proposed workplace bullying laws since 2009, and the high profile case involving the alleged harassment in the Miami Dolphins locker room may push this issue to the forefront.

Michael Sam’s revelation fortunately lacked the backlash that many expected. Sam’s former teammates on the Missouri Tigers supported him when he privately came out, and several prominent athletes showed support for Sam when he  revealed the news publicly. But tolerance can be fleeting, and Sam’s journey is just beginning.  With laws in place to protect LGBT individuals from workplace discrimination or harassment, his journey is more likely to have a happy ending, and more likely to prompt others to follow in his cleat prints.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Wikipedia/Marcus Qwertyus]

Andrew Blancato

The post 2 Laws That Could Encourage More Michael Sams to Come Out appeared first on Law Street.

By now you’ve probably heard about the bigots, dog killers, and unfinished hotels in the Russian Olympic city of Sochi. The Games have just begun and yet problems with hosting the Olympics have been reported for several months. Most folks here in the good ol’ U S of A are probably asking themselves, “Why would the International Olympic Committee (IOC) select such a functional, idyllic location for the 2014 Winter Games?” Well, the answer is more complicated than you think! Just kidding, it’s mostly about money.

In 2007, the IOC descended upon Guatemala to determine which city would be awarded the 2014 Winter Olympics. The winner (if you want to call it that, since most people believe it’s  a drain on the economy) would have to indicate that their city could handle the financial impact, security measures, and transportation demands that come with hosting the Olympics. (Read the IOC Commission Report here.) But to even woo the IOC to your city, a country must spend millions.

The IOC narrowed its 2014 finalists to Salzburg, Austria; Pyeongchang, South Korea; and Sochi, Russia. During the bidding stage, Salzburg and Pyeongchang were both found to be more accommodating than Sochi, but Sochi’s bidding budget of $27.5 million easily eclipsed those of Salzburg and Pyeonghang ($7.8 million and $21 million, respectively). Russia’s bid team hit its crescendo when a full-size skating rink was flown into Guatemala — in the world’s largest airplane — to wow the IOC judges. In addition to the bid budget, the Russian Federation guaranteed any “eventual shortfall would be covered by the Federal government.” Considering the Olympics are usually over budget, and Russia’s GDP is much greater than that of South Korea or Austria, this was no small promise. This guarantee, coupled with Russia’s bidding blitz, cemented Sochi as the host of the 2014 Winter Olympic Games.

But considering the Olympics have gotten off to a rough start in Sochi, will the IOC change its valuation system?  After all, tales of Sochi’s spending have traveled the globe; the Games have cost Russia roughly $51 billion. Other countries have also voiced their criticism over the current system of bidding.  Austrian officials say their country has effectively been phased out of future bids due to the country’s  concentrated yet relatively low level of wealth.  But the IOC is unlikely to change. IOC President Thomas Bach has stood by the Sochi Games and the IOC’s choice.  He’s also standing by Rio De Janeiro as the selection for the 2016 summer games, despite the myriad of issues facing those Olympics. The games will go on, and the money will continue to flow.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Atos via Flickr]

Andrew Blancato

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It’s been a busy winter in East Rutherford, NJ. Rex Ryan signed an extension with the New York Jets. Metlife Stadium just hosted the Superbowl. And the New York Giants are being sued for defrauding sports collectors. That’s right, folks, impropriety among famous New Jersians doesn’t just happen in Fort Lee. According to the civil complaint filed in Bergen County, NJ, the Giants’ owners, equipment staff, and even Eli Manning were all part of a memorabilia scam that disguised Giants’ gear as “game worn” to generate higher profits when sold.  But to understand why plaintiff Eric Inselberg is so pissed at the Giants, we have to backtrack a couple years.

In 2007, Mastro Auctions held a sports auction in Cleveland where a Michael Jordan practice jersey from UNC was sold for $11,000. Several days later, Memorabilia Evaluation and Research Services concluded that the jersey was not worn by Jordan, but rather most likely by the less-heralded Tarheel, Ranzino Smith. One of the names that surfaced in the ensuing investigation was Eric Inselberg, a New Jersey collector who was claimed to have purchased the jersey as a Smith original, not as a Jordan.

Although no Federal charges were filed in connection with the Jordan jersey fiasco, the FBI kept a close eye on Inselberg and the exchange of high-priced sports memorabilia.  A few years later, they were led to the New York metropolitan area, where numerous New York Giants items were being sold as game-worn. Subpoenas were issued, a grand jury was summoned, and criminal charges against Inselberg were sought (read the Indictment here).

Inselberg maintained his innocence, arguing in part that the evidence which led to the criminal charges was unreliable because one of the witnesses who testified before the grand jury was lying. Seems like a hail mary thrown by his attorneys, right? Well on April 18, 2013, the Federal government dismissed its own indictment  “in light of some new facts that were pointed out by defense counsel.”

According to Inselberg, the fact pointed out to US Attorney Michael Love was proof that Giants staffers lied in their grand jury testimony on behalf of the Giants’ organization. Consequently, his criminal indictment was simply the result of an organization finding a simple scapegoat to take the blame for systemwide fraud.

One important question remains: Why the hell would a multimillion dollar professional football organization put its sterling reputation on the line to peddle fake memorabilia? As a Patriots fan, I’ve longed to see Eli Manning thrown behind bars. But is he really commanding equipment managers to defraud sports collectors? Seems a bit far fetched. This may be a case that stops with the Giants’ equipment manangers, Joe and Ed Skiba, who are also featured names in Inselberg’s Complaint. It may also be telling to see whether the Justice Department files any more charges in the matter. After all, lying to a Federal grand jury is perjury, and unlike past cases, this may be a situation the government can actually convert. Stay tuned.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Guian Bolisay via Flickr]

Andrew Blancato

The post New York Giant Con Artists? appeared first on Law Street.

“School’s done for me — I’m here to concentrate on football.”

Matt Leinart declared these words in August 2005 on the eve of his final season as quarterback for the University of Southern California’s football team.  The quote was part of an Associated Press article on Matt Leinart’s class schedule for the upcoming fall — a schedule which consisted solely of ballroom dancing. The one-page piece, picked up by ESPN, might have unfairly portrayed student-athletes as having cupcake course loads. But it also confirmed what everyone outside of the NCAA front office already knew: NCAA football players are treated as football players first, and students second.

More than two thousand miles away in Chicago, Ill., Northwestern University football players have taken formal steps to recognize this fact by having a petition filled on their behalf with the National Labor Relations Board (NLRB). In other words, college football players are trying to unionize.  If successful, the first ever college players union would be called the College Athletes Players Association (CAPA), and would focus on scholarships, transfer rules, and increasing player safety rather than require that players receive specific compensation (find out more here).

Before CAPA becomes an official union of college athletes, NCAA athletes may have to convince the NLRB they qualify as “employees” under Federal law.  At first glance, precedent would appear to favor the NCAA on this issue.  In 2004, the NLRB’s judiciary panel (Board) found that Brown University graduate teaching assistants were not employees, and therefore not capable of forming a protected union.  Important to the Board’s decision however were the findings that:

1. The role of the graduate assistant was integral to the education of the graduate student; and,
2. The relationship between the graduate assistant and Brown was primarily educational.

The NCAA is likely to recycle the same argument against college athletes, but it’s not likely to go as well. Is the role of the football player integral to the education of the football player? Doubtful. When the NLRB decided this issue in the Brown case they relied largely on the fact that graduate assistants “must first be enrolled at Brown to receive a TA, RA, or proctorship.” Meanwhile, most college football players are recruited as minors and offered athletic scholarships prior to high school graduation. Those athletes most similar to the example of an RA or TA in the case of college football would be walk-ons, and well, not all athletes are Rudy Ruettigers.

Is the relationship between the football player and their college primarily educational? Please.  A 2008 NCAA survey among college football players indicated they spent an average of 45 hours per week on their sport. Doesn’t seem to leave a ton of room for studying, does it?  Oh and let us not forget about the bags of money that are thrown around. Although maybe colleges make hundreds of millions from Gabriel the economics TA? Who knows!

Whatever the outcome may be regarding college football players’ right to unionize and their status as employees, we may not know the answer for years.  But clearly, the NCAA is going to have difficulty dancing around the issue.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [David X. O’Neil via Flickr]

Andrew Blancato

The post Football Local 60208? Why College Athletes May Win Their Fight to Unionize appeared first on Law Street.

Arbitrator Fredric Horowitz and his panel issued an arbitration decision on January 11 resulting in Alex Rodriguez’s suspension for the entire 2014 Major League Baseball season.  A-Rod vowed to appeal the decision in Federal Court, but what some may not know is that the beleaguered slugger already has a pending case against MLB regarding his steroid feud.

Rodriguez vs. MLB, Allan Huber “Bud” Selig was filed on November 26, 2013 in the United States District Court for the Southern District of New York following its removal from State Court by MLB. The Complaint alleges that Commissioner Bud Selig and other MLB officials have engaged in a systematic campaign of tortious interference in A-Rod’s existing business contracts and prospective business relationships. Specifically, A-Rod is alleging that MLB:

• Obtained evidence against A-Rod by filing a sham lawsuit to commandeer subpoena power.
• Leaked false stories to the press concerning A-Rod’s performance-enhancing drug (PED) use.
• Bribed witnesses with more than $200,000 to cooperate with their case.
• Impersonated security officers and threatened former ballplayers to receive testimony.

The case may not be a slam dunk for A-Rod, but it surely has a better chance of succeeding than his appeal of Horowitz’s arbitration decision. After all, A-Rod’s attorneys at Reed Smith LLP haven’t been the only detractors of MLB’s media blitz against A-Rod. But if the evidence against A-Rod was procured illegally and the conduct of MLB was malicious, why did the arbitration panel roundly rule in their favor? It’s possible that the panel was not concerned with the issue. On pages 27 and 28 of the arbitration decision, Horowitz noted that the panel would not rule on the alleged breaches of confidentiality and they did not have any power to enjoin third parties from breaching provisions of MLB’s Joint Drug Agreement (the arbitration decision, along with A-Rod’s appeal, can be found here). Considering Tony Bosch, MLB’s main witness, testified in the arbitration hearings, Horowitz may not have needed to consider the implications concerning other bribed witnesses.

Regardless of the outcome, the pending litigation should be interesting. The arbitration process had its fair share of fireworks, and if it goes to trial, his tortious interference case could be the grand finale.

Click here to read A-Rod’s Complaint.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Keith Allison via Flickr]

Andrew Blancato

The post What About A-Rod’s Other Lawsuit? appeared first on Law Street.