Seattle Trademark Lawyer
Seattle Entertainment Lawyer


Archives Filed Under 'Trademark and Copyright'

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 Should I do If I Get A Copyright Infringement Demand Letter?

Wednesday, March 6th, 2013

ImageReceiving a subpoena letter related to a copyright infringement case from your Internet Service Provider (ISP) such as Comcast or Century link or receiving a demand letter offering to settle your case prior to litigation can be a shock to the system. Most people have never received these letters before and are struggling to figure out what they mean.  In short, movie studios or other copyright holders are cracking down on unauthorized file sharing and downloading through computer applications such as Bit Torrent.  The unauthorized downloading and file sharing is a violation of Federal copyright law and may be punishable by up to $150,000 fine. The copyright holders generally don’t want to seek such extreme penalties and are only looking to recoup money lost due to the illegal file sharing and to generate income for investors and non A-list actors who receive money from the films.  Not everybody involved in the entertainment business is rolling in dough.  Just last week I met with an actor who had a small role in Fight Club and was now seeking to declare bankruptcy due to his $30K salary from acting and overwhelming debt.

If you are somebody who has received a letter from your ISP informing you that you are part of a lawsuit and your name will be provided to an attorney or you have received a demand letter offering to settle the lawsuit against you, you have a few options, but none of them are great. In any event, I would encourage everybody to discuss this matter with a qualified copyright attorney to go over your options.

1.  You could retain an attorney to file a motion to quash the subpoena to try and prevent your information from being disclosed to the copyright infringement attorney.  These motions are usually unsuccessful and your name and information will be disclosed upon filing such a motion.  Hiring an attorney can be costly (at least $5,000 according to this Seattle copyright attorney), however some attorneys may be willing to negotiate a settlement on your behalf for an hourly rate.

2.  You could settle your case for copyright infringement by calling up the copyright infringement lawyer who filed the case or sending an email wishing to settle. In my experience the copyright holders are willing to settle for less than it would cost to hire a lawyer and go to litigation.  Litigation is time consuming and costly and in the end, most cases end up settling out of court.

3.  You could choose to ignore all demand letters and attempts to settle your case.  This option involves some risk on your part.  Generally, failure to settle early on will result in the amount the copyright holder is willing to accept to rise as costs to continue to seek a settlement are incurred.  Further, a copyright infringer risks being named as a defendant party in the case which is public record and could face a penalty of up to $150,000 if a default judgment is entered. You can ask your attorney to reivew the cases of  Paramount Pictures Corp. v. Davis, 234 F.R.D. 102, 77 U.S.P.Q.2d 1933 (E.D. Pa. 2005); U.S.C.A. Arista Records, L.L.C. v. Tschirhart, 241 F.R.D. 462 (W.D. Tex. 2006); U.S. ex rel. Koch v. Koch Industries, Inc., 197 F.R.D. 488 (N.D. Okla. 1999) and BMG Music Entertainment v. Tenenbaum (D. Mass.) [1:07-cv-11446].

At the end of the day, if you have received one of these letters you will need to make a decision that is best for you. Know that copyright holders need to protect their rights so that they can continue to make films that cost millions of dollars to make and the people working in the entertainment industry need to make a living and earn an income off of the royalties of the works whether you see a movie in the theater, rent from Netflix or download a song on ITunes.

Litigation related to Copyright Infirngement Cases Involving Feature Films on the Rise

Friday, March 1st, 2013

This Seattle copyright attorney was on the local news yesterday talking about illegal downloading of feature films, the increase of lawsuits in the area and potential consequences. For the full story check out the Komo 4 News website. Here is the full text:

SEATTLE — Washington state has become a hotbed for illegal downloading, but the culprits are quickly finding out that what they thought was a free movie could end up costing them thousands of dollars.

Hollywood is coming to Seattle, but not to make a movie. Rather, studios representatives are in town to track down people who’ve illegally downloaded their products.

Many movie fans think that’s a good idea, because filmmakers deserve to be paid for their work.

“Well, that’s what artists do. Artists need to be paid for what they do for a living and you’re not there to just give it away,” one moviegoer said.

That includes artists who worked on an animated feature called “Zambezia.” The movie doesn’t officially come out until March, but that hasn’t stopped people from illegally downloading pirated versions.

“A lot of it is coming from something called bit torrent, where people download individual pieces from different users and create what’s known as the swarm,” said Seattle attorney Richard Symmes, who’s leading the charge against the downloaders.

Washington’s tech savvy population is now a copyright litigation hotbed, and a studio is coming to town to track down those who have illegally downloaded its movies.

Symmes said the move isn’t about greed, but about the studios being fairly compensated so they can pay their employees.

A private company has managed to get the IP addresses of the local offenders, and local Internet providers are now being subpoenaed to get the names of those subscribers.

Symmes said anyone who has illegally downloaded movies could be in for a court battle.

“It would probably be more expensive to go ahead and fight this rather than take a nominal settlement and just make this go away,” he said.

Symmes expects the IP list to grow as other film studios join in.

ESPN Documentary “Broke” Should be Must See TV For All Future Professional Athletes

Tuesday, October 2nd, 2012

Some debtors need to file bankruptcy due to no fault of their own. These individuals usually have suffered some kind of enormous medical expense or maybe their home is severely under water.  For others, such as the athletes profiled in ESPN’s new 30for30 documentary “Broke” need to file for bankruptcy because they had a really good time living outside of their means, with nothing saved up for a rainy day. The documentary profiles athletes who were at the top of their game and then lost/spent all their money, only to be living a very pedestrian lifestyle in this day and age.  What viewers and readers need to realize is that most athletes professional careers only last on average 3-4 years, and most don’t make superstar money.  Athletes have a short time frame to make serious money before having to get a real job outside of sports.  Many athletes fall into the trap of spending all of their hard earned paychecks because they are young and are often times from under privileged backgrounds and have no concept of saving money, because they never had any money to begin with.  Often times athletes help out their friends and families with bad investments and then they go on to blow a substantial amount of money on cars and bars to name just a few of the bad choices.

So what can we learn from these athletes as well as various lottery winners and entertainers?  Be smart with your money.  If you got it, invest in things that will show you a profit, unlike vehicles, alcohol, and zany start up business.  Go with what works and get professional investment advise before making any substantial decisions, and always live within your means.  You don’t want to have to file for bankruptcy because you charged up your cards trying to keep up with what everybody else around you was doing.  If you have made bad investments or end up going late on your credit card payments which end up hurting your credit or you end up getting sued by a debt collector, you can either hire help or seek out legal help online to represent yourself.  Either way the worst thing somebody can do is nothing, so consumers and athletes need to take action and get help if they are in need.

Symmes Law Group, PLLC Launches new website

Saturday, September 4th, 2010

The Symmes Law Group, PLLC website officially launched last week and can be found at www.symmeslaw.com.

I have decided to return home to Seattle to start this new venture. The Symmes Law Group, PLLC is a Seattle based full service law firm specializing in Consumer Bankruptcy as well as business, trademark and sports & entertainment law.  Symmes Law Group offers compassionate and dedicated legal counsel in the areas of chapter 7 and chapter 13 bankruptcy as well as in business matters in order to ensure you have a partner in navigating your way through the complex state and federal legal system.

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.

Symmes Law Header Right Side

Contact


Richard J. Symmes, Esq
E-Mail :: (206) 682-7975

Seattle, Washington location:
1001 Fourth Avenue, Suite 3200
Seattle, Washington   98154

Get Directions to Symmes Law Offices
Get Directions to our
Seattle Office Here

See us on:
Facebook  Twitter

Contact us online:





Call Today!

(206) 682-7975

 Symmes Law Group Logo