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The Evolution Of Sports Law

Tuesday, October 13th, 2015

Evolution of Sports LawI am excited to announce that my article, The Evolution of Sports Law has been published in the latest October 2015 Article of the NWLawyer Magazine.  You can check out the article HERE.  I will also post the full article below for your reading consumption.

The first thing that anybody involved in sports law will tell you is that there is no such thing as sports law. The term “sports law” can encompass numerous practice areas that concern athletes and the business of sports.  For instance, one single client athlete can have issues in business, criminal, contract, family, intellectual property, non profit or tort law to name a few.  Other athlete issues involving league rules or National Collegiate Athletic Association (NCAA) rules must also be able to be interpreted so that the athlete’s best interests are protected.  On a bigger scale, the business of sports is big business and billions of dollars are at stake when negotiating TV contracts, dealing with public relations nightmares, and collective bargaining agreements among sports leagues.

This has not always been true. Believe it or not, the business of sports was not always big business and athletes were not always highly compensated, subjected to drug testing or allowed to use their name and likeness from their college days for profit. This article will discuss some key decisions that have shaped the way athletes participate in sports and how we view them today.

Free agency, with regards to the major sports leagues such as Major League Baseball (MLB), Major League Soccer (MLS), National Basketball Association (NBA), National Football League (NFL), and the National Hockey League (NHL), was not always so free and star players in the early days of professional sports were much more likely to play their entire career with one team. This was due to something called the reserve clause which stated that at the expiration of a player’s contract, the rights to that player were to be retained by that team.  In 1972 the Supreme Court in Flood v. Kuhn, 407 U.S. 258 (1972), held that MLB could uphold the reserve clause through an anti-trust exemption, however the Court admitted that the exemption was an anomaly and baseball was considered part of interstate commerce. That admission led to an arbitrator later nullifying the reserve clause and opening the door to free agency in all sports.  This was a big win for professional athletes everywhere as they could now negotiate with all interested parties for the highest compensation any one suitor would pay.

With this new found freedom, athletes now had to change teams through free agency came the need for athlete agent representation, and thus the sports agent was born. In the early days of sports anybody could call themselves a sports agent, as the barrier to entry was nonexistent.  There was essentially no regulation of agents and athletes would often suffer the consequences by receiving poor advice. Today, the business and regulation of sports has evolved such that most states have laws that regulate athlete agents, most sports leagues have their own certification programs to regulate agents of their respective leagues, and the NCAA has rules in place that affect how athletes may interact with sports agents.  In Washington State RCW 19.225 is on the books, otherwise known as the Uniform Athlete Agent Act.  Those who violate the Washington Uniform Athlete Agent Act could face a stiff penalty of up to $10,000 and be charged with a class C felony.  These regulations were put in place to look out for the best interest of the athlete and make sure agents are not taking advantage of athletes. Young athletes, who upon an initial meeting with an agent, are usually still in college and may come from underprivileged backgrounds. Currently there are more than 460,000 college athletes and less than two percent will go pro in their sport.[1]  This creates a scarcity of potential clients for athlete agents to represent and the competition is fierce to represent the best prospects.

Due to the social and financial allure the sports industry provides, agents have been known to bend if not break the rules and regulations in order to land a top client. Agents have previously admitted or been found guilty of paying athletes or providing improper gifts to athletes in college in exchange for the opportunity to represent them when they go pro.[2] This conduct of course violates NCAA rules and many state rules which may lead a player to be kicked off his/her college team, cause the athlete financial loss due to a drop in draft position, and leaves the athletes’ university left to face potential sanctions.

Once an athlete has finished his or her amateur career, there is only a limited number of years to maximize the athlete’s earning potential in the pros. For example, the average career of a professional athlete in one of the major sports leagues is only three to five years[3]. With success comes great rewards in the form of long term contracts that can be in the form of standard player contracts or lucrative endorsement deals. This will in turn drive the athlete to do whatever it takes to reach the peak of success. Professional sports leagues know the stakes are high and therefore have recently taken measures to ensure their leagues are putting pure, non enhanced athletes in play by regulating substances athletes can consume.  The goal is to make sure that performance enhancing drugs are not being consumed as well as regulating any illegal substances which could negatively reflect on the leagues.

One of the first challenges to drug testing happened in 1990 when student athletes at Stanford University challenged their school and the NCAA’s drug testing policy and said it invaded their constitutional right to privacy which was upheld.[4]  However, later, in 1999, a California appellate court ruled that schools had a compelling interest to keep drugs out of their schools and therefore drug testing was not an invasion of student athletes privacy.[5] On the professional level, athletes are subject to their leagues and associations’ policies and procedures. These policies and procedures can regulate doping, drug abuse, and other issues such as personal conduct. The penalties for violating such rules can include fines, suspensions, or even banishment for extreme violations.

One such example of a league policy rule came to the forefront in the Seahawks most recent Super Bowl run involving Marshawn Lynch. The NFL has stated in their policies and procedures that players must make themselves available to the media or else they could be fined.  Lynch did the minimum to comply with the rule by barely speaking to the media, but nonetheless making himself available, and thus avoiding a fine.  If a player disputes a suspension or a fine issued by a league there are usually league policies in place in which players can appeal an ad adverse decision.

In a recent case decided last summer, O’Bannon et al. v. NCAA et al., No. 09-3329, 2014 WL 3899815 (N.D. Cal. Aug. 8, 2014)., the issue of whether student athletes should be able to profit from their own name and likeness used in college was decided.  The NCAA argued that paying its student athletes would be a violation of its concept of amateurism in sports, while O’Bannon, a former basketball star who played on UCLA’s 1995 National Championship team, argued on behalf of all division I men’s football and basketball players that upon graduation players should be compensated if colleges use their images for commercial purposes.  The court ruled in favor of O’Bannon and stated that the NCAA rules and bylaws operate as an unreasonable restraint on trade, in violation of antitrust law.  This is the first step in what I believe will eventually lead to student athletes being paid a modest stipend while playing collegiate sports and, incidentally, making their schools billions of dollars.[6]

The evolution of sports law is no different than any other type of law.  It continues to evolve with the changing times and technology. New rules and court decisions will be put in place to react to the need for change when issues arise. If we have come this far over the last 50 years in sports, it’s hard to imagine what the business of sports and the laws that regulate them will look like in another 50 years.

[1] http://www.ncaa.org/about/resources/research/probability-competing-beyond-high-school

[2] See Confessional of an Agent, Sports Illustrated, Josh Luchs, October 18, 2010.

[3] See The Average Career Earning of athletes across America will Shock you, By Nick Schwartz, USA Today, October 24, 2013.  http://ftw.usatoday.com/2013/10/average-career-earnings-nfl-nba-mlb-nhl-mls

[4] See Hill v National Collegiate Athletic Association, Board of Trustees of Leland Stanford Junior University (Court of Appeal of California, USA, 25 September 1990)

[5] Miller v Cave City School (United States Court of Appeals (8th circuit), 31 March 1999).

[6] See http://www.usatoday.com/sports/college/schools/finances/

 

What do I need to know about Trademarks?

Friday, June 12th, 2015

Trademark Lawyer on the RadioOn Monday 5/25/15 I had the pleasure of being a guest of Dr. James Gore on his radio show New Urban Unlimited on 1150AM KKNW in the Seattle area. I will be on the show which airs M-F at 6am, the last Monday of every month in 2015. You can listen to the most recent show on the link above. During this show Dr. Gore and I have a candid conversation about trademarks and intellectual property.

If you have additional questions regarding trademarks, copyrights, or entertainment law and how you can protect yourself, give Symmes Law Group a call at 206-682-7975 to learn about your options.

Should My Entertainment Contracts Be In Writing?

Wednesday, January 18th, 2012

Whenever a business or individual enters into a contract for goods or services it is a good idea to make sure you get all of the terms of the agreement reduced to writing.  As a Seattle entertainment lawyer, I understand this can sometimes be a tough feat to accomplish as a lot of deals can be made on the fly or over drinks.  But I must strongly advise that after your meeting or phone conversation that you reduce the terms of your agreement to writing to avoid any possible pitfalls later.  The reason I bring this up at this time is because I am currently assisting an executive producer of a film in dealing with another movie producer who is no longer a part of the project.

I will not divulge any information on this dispute other than to say the parties do not agree as to the terms of their original agreement, there was no signed contract and there is also a dispute as to whether the movie producer actually received the actual screenplay at all.  Needless to say a written and signed a agreement would have been useful to avoid a dispute down the road if parties don’t see eye to eye which happens more often than you would think.  Several parties to a project may come in go during the creative process so make sure everybody understands what they are entitled to from the outset.  An oral contract may be enforceable, however it will be harder to prove certain details unless there are witnesses or an email trail.  If there was no contract in place, a party may have an unjust enrichment argument if they provided time and services to a project.  In which case they should be compensated for their time, but should not receive any kind of ownership interest in the project unless the can argue that they are a joint author in the creative work.

Further in relation to distributing a movie screen play, an author or executive producer should keep a log of who the work is discussed with and number and keep track of every screen play sent out and when it was returned.  This is to prove a party had access to the screen play later if necessary to prove copyright infringement.  An infringement claim requires access, an original copyright as well as similarity to your original work of authorship.  As an added layer of protection, the producer should have parties sign non disclosure agreements stating that the parties agree not to distribute the works of art to any non approved parties.

If you have additional questions please fill out the contact form to schedule an initial consultation today.

Why You Should Always Do a Simple Google Search Before Choosing a Band Name

Saturday, November 5th, 2011


If you are an up and coming band and think you have the best band name in the world, you should first conduct a simple Google search to make sure that you are not going to be infringing on another bands trademark. If a band with a similar name shows up you may want to search the USPTO data base to make sure the bands name is not trademarked or consult with a trademark lawyer. If the name is not trademarked the band who was using the name first in their location will have the right to use the name there, however if you were to register a trademark thereafter, you would have the right to use the band name nationally and stop others in the future from using the band name.

The reason I bring this up is that I was recently retained by a band who has been performing since the 1990’s. They were smart and trademarked their band name in relation to musical performances. This means that any band who wishes to use their band name or any variations of the name which are confusingly similar will be infringing on the original bands trademark.

The point of a trademark is for a business or in this case a band to distinguish themselves from the competition. If you are a new band, would you really want your work to be confused with somebody else’s? My guess is that most artists would want to be considered an original and not ride the coattails of somebody else or have their work confused with somebody else’s. So if you want to avoid receiving cease and desist letters threatening legal action in the future I strongly suggest doing a thorough name search before settling on a band name. It would be a hassle and potentially costly to re-branding yourself under a new band name if you have already been performing and have developed a fan base who purchases music and merchandise which could no longer be sold.

If you have additional questions please call us as 206-682-7975 to set up a consultation with  one of our entertainment lawyers.

Supreme Court Rules Downloading Music Not A Crime

Thursday, October 6th, 2011

The Supreme Court declined to review a lower court case and therefore agreed with the ruling in the lower court that the downloading of music is not a crime that can be punished under copyright infringement.  To check out the details about the case you should read this article by the AP.  In order for an individual to be liable for copyright infringement they must have broadcast the music publicly.  The Supreme Court agreed that downloading music on a personal computer did not constitute a public performance and thus could not be grounds for copyright infringement.

This ruling will likely cost musicians dearly as ASCAP, the organization who licenses musicians music, will not be able to license out music that is illegally downloaded on PC’s for private use.  Consumers who illegally download music will not have to worry about facing potential charges of copyright infringement in the future.

If you have additional questions please fill out the contact form to schedule an initial consultation today.

Colorado Man Runs for President…..of Nigeria

Tuesday, August 10th, 2010

Sam Wantings

When Sam Wantings called me on the phone one afternoon telling me he needed an entertainment lawyer but wouldn’t tell me why I was very much skeptical.  Then when he came to my office telling me he planned to run for President of Nigeria in 2011, well I thought this must be a scam.  After all, scamming people accounts for 92% of Nigeria’s Gross Domestic Product (GDP):  http://www.security-faqs.com/nigerian-government-to-bail-out-email-scammers-as-profits-tumble.html

As it turned out Mr. Wantings, a Colorado resident, was very serious about running for President of Nigeria in 2011 and was looking for legal assistance with his campaign.  Mr. Wantings paid me a visit he demonstrated enough to show me that he was for real, so I decided to assist Mr. Wantings and follow him down the rabbit hole and see where this thing went.  In the last few months Mr. Wantings has been drumming up funding for his campaign in Colorado as well as around the United States before he returns to Nigeria.  His goal is to rid Nigeria of corruption and partner with U.S. companies to help rebuild his country should he get elected to a position of leadership.  To read more about his campaign you can visit his website at:  http://nigerianpresident2011.org/ and be sure to check out his article in the Denver Post:  http://www.denverpost.com/recommended/ci_15596432.  Good luck on the campaign trail Sam!

For more information regarding this article contact the Symmes Law group, PLLC.

Limewire: Last of the Major Peer-to-Peer File Sharing Programs Gets Shut Down

Thursday, May 13th, 2010

Kimba Wood, a Federal judge in New York recently ruled in favor of major record companies and agreed that LimeWire, a peer-to-peer file sharing program,  is infringing on their Copyrights.   The court ruled that “LimeWire’s corporate parents and backers, Lime Wire LLC and Lime Group LLC, had violated common-law copyright laws, had induced users to infringe copyright law, and had committed “vicarious” copyright infringements,” http://blogs.wsj.com/law/2010/05/12/copywrong-kimba-wood-squeezes-the-juice-out-of-limewire/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wsj%2Flaw%2Ffeed+%28WSJ.com%3A+Law+Blog%29&utm_content=Google+Reader

For an estimated 1.7 million households that use the peer-to-peer file sharing program, they will have to find a new way to download music illegally.  Users who partake in downloading music illegally will most likely continue to do so through torrents and programs like bit torrent.  A bit torrent is a form of peer-to-peer file sharing that downloads bits of information from several different sources, making it impossible to have one source for the information.  You can read more about torrents here:  http://netforbeginners.about.com/od/peersharing/a/torrenthandbook.htm

If you have additional questions please fill out the contact form to schedule an initial consultation today.

Why You Should Protect Your Trademarks Online and on Social Networking Sites

Saturday, December 5th, 2009

A recent article by Brian Winterfeldt of the National Law Journal caught my eye.  http://www.law.com/jsp/article.jsp?id=1202435924630&rss=newswire.  The article discusses how trademark owners must adapt to protecting their brands online and more particularly on social networking sites such as Facebook and Twitter.

Business owners should always be aware how their brands are portrayed online, particularly with social networking sites.  Businesses need to monitor these sites as many of their consumers are most likely users who are using social networking sites and the internet.  The web may provide grounds for “the sale of counterfeit goods and services, trademark infringement, using the brand or company name in a derogatory or defamatory manner, using the brand name in conjunction with false or misleading information and impersonating company personnel.” http://www.law.com/jsp/article.jsp?id=1202435924630&rss=newswire  With the variety of rampant infringement that exists, a company needs to be aware of their online presence so that they may prevent this type of infringement and take legal action if necessary.

It should be noted that although a trademark may be used illegally, a trademark may be used legally through the First Amendment and fair use.  Fair use allows for the use of another’s trademark for news, opinion, or educational purposes among other things.  Just because somebody uses a businesses trademark does not necessarily mean they are doing so illegally.  So to all business owners, if you are not monitoring your online trademark presence why not start now?   Happy Monitoring!

If you have additional questions please fill out the contact form to schedule an initial consultation today.

WWE Lays the Smackdown When Protecting It’s Trademark

Friday, October 16th, 2009
WWE

WWE

World Wrestling Entertainment Inc. “WWE” has sent a cease and desist letter to the Philadelphia Wine School for using the trademarked word “Smackdown” in advertising an event at the school.  The wine school has advertised that it will be holding a Sommelier Smackdown for a food and wine pairing competition it has held since 2007.   The WW is claiming that the school has infringed upon their trademark and the school should be forbidden from using the word Smackdown.  http://www.law.com/jsp/article.jsp?id=1202434525206&rss=newswire

In order for trademark infringement to occur the WWE will have to prove that the average person would confuse the Sommelier Smackdown with the WWE’s Smackdown and that the WWE has suffered a financial loss because of the use of the trademark.  I find it very hard to believe that a food and wine pairing competition can be confused with a bunch of large shirtless wrestlers in spandex hitting each other over the head with folding chairs.  Furthermore the only financial gain from the event will most likely be from attendees of the event which will be minimal.  Therefore the wine school would have a good case if they decided to challenge the trademark infringement claim.  However, because litigation is an expensive endeavor for both parties, the wine school will most likely back down and let the WWE lay the Smackdown on enforcing their trademark even though the school has a very good chance of winning of the case went to court.

It is sad that large companies are this adamant about protecting trademarks, even if the trademark is being used for a fun and educational purpose for very little profit.  This claim is ridiculous and paper should not have been wasted to bring the claim or cease and desist letter.  Let the people have their fun, a potential claim will rack up lawyer fees which will be much more expensive than any judgement the WWE could win in this case.  The WWE and other large corporations need to find something better to do with their money than make frivolous claims that waste the courts time.

If you have additional questions please fill out the contact form to schedule an initial consultation today.

Eminem Sues Apple(iTunes) for improperly using his music

Monday, September 28th, 2009
Eminem

Eminem

Rapper Eminem is in the legal news once again with his record label Eight Mile Style alleging that Apple Inc. did not have a license to reproduce and sell 93 Eminem songs in which Apple has allegedly made $2.58 million from the iTunes downloads.  http://www.law.com/jsp/article.jsp?id=1202434110176&rss=newswire

Eight Mile is arguing that Eminem’s contract with Aftermath (his old record label) did not authorize Apple to make his music available for download on iTunes.  Apple has argued that they have paid Eight Mile Style 9 cents per download via iTunes and have done nothing wrong.  If Eight Mile comes out victorious, Apple may be ordered to pay significant damages for illegally allowing  the music to be available for download.  A ruling in Eight Miles favor could also cause distributors such as iTunes to be much more careful in the future, i.e. put in safeguards to make sure that distribution companies actually have the right to reproduce music and make it available for download.  On the flip side, a ruling for Eight Mile could cause potentially unnecessary extra procedures in making music available for download since most musicians would like to profit from the services that iTunes offers.  iTunes has every intention of compensating the musicians who may not otherwise be able to make significant profits from music sales any other way. Downloading albums and songs has now become the most common way for fans to obtain music with actual hand held album sales declining every year.

UPDATE 10/2/09 – Eminem and Apple settle lawsuit with Apple paying out an undisclosed amount of money:  http://www.sohh.com/2009/10/eminems_publisher_settles.html

If you have additional questions please fill out the contact form to schedule an initial consultation today.

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