O'Bannon v. NCAA: Where things stand

I have an article in the October 15th issue of Sports Illustrated that provides a legal analysis of recent developments in the Ed O'Bannon v. NCAA & Electronic Arts class action. 

Here's an excerpt:

* * *

Second, potentially damaging e-mails involving two other defendants—Collegiate Licensing Company (the NCAA's licensing partner) and Electronic Arts—have emerged. These e-mails portray CLC officials as worried about the legal impact of Electronic Arts's developing video-game characters using real college players' names and then removing those names before retail.

 * * *

Hope you can check it out on page 19 or through this SI Vault link.

Yale Law School Alumni Weekend: Panels on Sports and Entertainment law

I'm thrilled to be part of this weekend's Yale Law School Alumni Weekend, which is centered on sports and entertainment law this year.  If you're in the New Haven area, you might consider registering for it and seeing what should be excellent panels and other events.

Saturday, October 20

9:30 – 10:45 AM
Panel Discussions (two concurrent sessions)

PANEL I. Streaming and Beaming:  Entertainment Where and When You Want It

Moderator:  

Bryan Choi, Thomson Reuters Fellow, and Director of the Law and Media Program, Information Society Project, Yale Law School

Panelists: 

Emily Bazelon '00, Journalist, Slate, and Senior Research Scholar, and Capote Fellow, Yale Law School
Richard Cotton '69, Executive Vice President and General Counsel, NBC Universal
Alfred C. Perry '87, Vice President, Worldwide Content Protection & Outreach, Paramount Pictures Corporation
Kenneth P. Stern '88, Co-founder and President, Palisades Media Ventures, and former CEO, National Public Radio

PANEL II. Many Voices, Many Eyes: The Promises and Pitfalls of Social Networks

Moderator: 

Margot E. Kaminski '10, Research Scholar in Law, Executive Director of the Information Society Project, and Lecturer in Law, Yale Law School

Panelists:

Lori B. Andrews '78, Distinguished Professor of Law and Director of the Institute for Science, Law and Technology, Illinois Institute of Technology, Chicago-Kent College of Law
James Grimmelmann '05, Professor of Law, New York Law School
Beth Simone Noveck '97, Visiting Professor, NYU Robert F. Wagner Graduate School of Public Service and MIT Media Lab, and Professor of Law, New York Law School
Madhavi Sunder, Professor of Law, University of California, Davis

11:15 AM – 12:30 PM
Panel Discussions (two concurrent sessions)

PANEL III.  Yours, Mine and Ours: Ownership of Cultural Capital

Moderator:

Susan M. Scafidi '93, Professor & President, Fashion Law Institute, Fordham Law

Panelists: 

Barton Beebe '00, Professor of Law, New York University School of Law
David Boies II '66, Chairman, Boies, Schiller & Flexner LLP
Kristelia A. Garcia '03, Frank H. Marks Intellectual Property Fellow & Visiting Associate Professor, The George Washington University Law School, Washington, DC
Marc Porter '87, Chairman, Christie’s Americas and International Head, Christie’s Private Sales

PANEL IV.  In the Legal Zone: Hot Topics in Sports Law

Moderator:

Michael McCann, Director, Sports Law Institute, and Professor of Law, Vermont Law School

Panelists:

Eleanor (Nell) DeVane '93,  Vice President and Associate General Counsel, ESPN
Jimmy Golen '99 M.S.L., Sports Writer, The Associated Press
Craig A. Masback '92, Senior Sports Marketing Director, Greater China, Japan & Global Business Affairs, Nike; and former CEO, USA Track & Field (1997-2008)
Charles S. Mechem, Jr. '55, Commissioner Emeritus, Ladies Professional Golf Association; and Chairman and CEO, Taft Broadcasting Company

12:45 PM

All Alumni Luncheon
University Commons (Enter either on the corner of College and Grove Streets or from
Beinecke Plaza off Wall Street)

Opening Remarks:
John R. Firestone '85, President, Yale Law School Association Executive Committee, and Partner, Pavia & Harcourt LLP
Robert C. Post '77, Dean and Sol & Lillian Goldman Professor of Law, Yale Law School

Presentation of the Yale Law School Association Award of Merit to:
David Boies II '66, Chairman, Boies, Schiller & Flexner LLP
Presented by: Dean Robert C. Post '77

Remembrances:
The Honorable Louis H. Pollak '48 (1922-2012), Judge, U.S. District Court for the Eastern District of Pennsylvania (1978-2012); and dean, Yale Law School (1965-70) and University of Pennsylvania Law School (1975-78).  
Nicholas deB. Katzenbach '47 (1922-2012), Associate Professor, Yale Law School (1952-56); U.S. Attorney General (1965-66), and Senior Vice President and General Counsel, IBM (1968-86).
80th Birthday Celebration:
The Honorable Guido Calabresi '58, Judge, U.S. Court of Appeals for the Second Circuit, and Sterling Professor Emeritus of Law and Professorial Lecturer in Law and dean (1985-94), Yale Law School

New York Law School Sports Law Symposium Friday Nov 2

I'm excited to be part of this year's New York Law School sports law symposium, which will be held on Friday November 2.  Great work by Brett Hirsch and others in putting it together.  They have followed in the excellent planning of sports law symposiums at NYLS previously shown by Elliot Solop, Alycia Powell and others.

Here are the details of this year's event (and if you are interested in attending, click here):


The New York Law School Sports Law Society and the Institute for Information Law and Policy

Presents:

The Fourth Annual Sports Law Symposium

Friday, November 2, 2012

185 West Broadway

W201 (Events Center)

Fee:        $45 for attorneys (includes CLE’s)

            $45 for attorneys and professionals not seeking CLE credits (No CLE credit)

$15 for outside students

Free for current NYLS students (with a valid school ID)

This CLE program has been approved for a maximum of four hours of CLE credit for both transitional and non-transitional attorneys. New York Law School offers tuition assistance for attorneys who may have difficulty attending CLE events due to cost considerations. Please visit:  http://www.nyls.edu/academics/cle/tuition_assistance to see if you qualify.  

Tentative SCHEDULE                                                                                                                                                               

11:30 a.m. - 11:45 a.m. 
Opening Remarks

11:45 a.m. - 12:30 p.m 
Keynote Interview with Mike Zarren  

12:45 p.m. - 1:45 p.m. 
Overview of Current Legal Developments in the Sports Industry  (1 CLE Credit - Professional Practice) 

2:00 p.m. - 3:00 p.m. 
Breakout Sessions

• Intellectual Property Issues in Sports (W420)  (1 CLE Credit - Professional Practice)
• Negotiating Rights Acquisitions (W320)  (1 CLE Credit - Professional Practice) 
• Bankruptcy Issues in Sports (W220)  (1 CLE Credit - Professional Practice) 

3:10 p.m. - 4:10 p.m.
Analysis and Impact of the Concussion Litigation (1 CLE Credit - Professional Practice) 

4:20 p.m. - 5:20 p.m.
Sports Labor Negotiations (1 CLE Credit - Professional Practice) 

5:30 p.m. - 6:20 p.m. 
Breaking Into the Sports Industry 

6:30 p.m. - 8:00 p.m. 
Networking Reception 

 PANELISTS *                                                                                                                                                                              

Jodi Balsam, Associate Professor at NYLS; Former Counsel for Operations and Litigation at the NFL

Robert Boland, Professor of Sports Management & Sports Business at New York University 

Marc Edelman, Associate Professor of Law at Barry University: Dwayne O. Andreas School of Law 

Robert Erb '91, CEO at Schutt Sports; Adjunct Professor at New York Law School  

Frank Golding, YouTube Director, Head of Sports for North America at Google 

Russ Granik, Vice Chairman at Galatioto Sports Partners; Former Deputy Commissioner and COO at  the NBA 

Frank Hawkins, Partner at Scalar Media Partners; Former SVP Business Affairs at the NFL 

Darren Heitner, Founder of the Sports Agent Blog; Attorney at Wolf Law; Contributor at Forbes Magazine; 

Ronald Katz, Partner and Chair of the Sports Law Group at Manatt

Jeannine Kenney, Associate Counsel at Hausfeld LLC; Plantiff's Liason Counsel for NFL concussion litigation 

J. Carlos Kuri, Vice President and General Counsel at New York Red Bulls  

David Mayer, Principal Counsel at ESPN, Inc.

Michael McCann, Legal Analysts at SI & NBA TV; Professor & Director of Sports Law Institute at Vermont Law School;  

Lauren Dienes-Middlen, VP, Intellectual Property at World Wrestling Entertainment, Inc. 

Joe Nahra, Business & Legal Affair Executive at CAA Sports

Matthew Parlow, Associate Dean for Academic Affairs and Associate Professor of Law at Marquette University 

Irwin Raij, Partner and co-chair of the Sports Industry Team at Foley & Lardner LLP

Robert Raiola, CPA; Sports & Entertainment Group Manager at Fazio, Mannuzza, Roche, Tankel, LaPilusa, LLC

Frank Saviano, Associate at Proskauer 

Alan Schwarz, Reporter at New York Times

David Soskin '08, Counsel at ESPN, Inc.; Adjunct Professor at New York Law School  

Meredith Wolff, Associate Staff Attorney at NHL Enterprises, L.P.

Mike Zarren, Assistant General Manager and Team Counsel at Boston Celtics 

Warren Zola, Chair, Professional Sports Counseling Panel, & Asst. Dean, Grad. Management Programs at Boston College

Getting it wrong on Lance

When Lance Armstrong announced that he was no longer contesting the USADA proceedings, I likened him to Pete Rose and said here that he would be just fine, that he would continue to proclaim his innocence and to remind everyone that no body had ever found him to have doped or used PEDs. I even said so on a radio interview, in response to the suggestion that marketing people had proclaimed him finished as a spokesman, fundraiser, and endorser.

It looks like I got this one very wrong. Yesterday's announcement that Armstrong had been dropped by Nike (which proclaimed itself shocked, shocked that the man who dominated a sport in which everyone doped had been doping himself) and that Armstrong had resigned from his own Livestrong Foundation suggests that he is going to suffer some major fallout. This comes in the wake of USADA releasing the report from its investigation, which laid out in great detail the evidence against Armstrong. Clearly one major sponsor wants nothing to do with him. And clearly either he or other leaders at the foundation believe he would be a drag on fundraising and other charitable efforts.

Perhaps, as Michael Wilbon argued on PTI last night, this is purgatory rather than hell, that Armstrong has to go away for a year or two, then emerge, admit to doping, and ask for forgiveness. In our culture of second chances, Wilbon insists, all be forgiven and Armstrong will be back on the scene as a public figure. Of course, that is what everyone insisted they wanted from Pete Rose and when Rose finally admitted to gambling, he was just buried further. Come back in a couple of years and we'll see.

Today in sanctionable lawsuits

A New Orleans Saints fan named David Mancina has filed a putative class action against Roger Goodell and the NFL, alleging that Goodell and the league's suspension of Saints players entitles Mancina and other Saints fans to damages from (I am not making this up) "the diminishment in the value of their tickets; their personal emotional reaction to the unwarranted penalties inflicted on their beloved team, players, coaches, and executives; and the deliberate reduction of the competitive capability of the Saints due to the selective gutting of the critical components needed to justify the loyalty of Plaintiff and the class." And according to the complaint, he actually had counsel to do this.
The first, obvious response is they lack standing. But the defects in this go so far beyond that. This has to be sanctionable, and I am not someone who is big on sanctions. If one of my students turned this in in a drafting exercise, she would fail.


1) The Complaint does not identify any claim, that is any right or legal obligation to the plaintiffs that Goodell or the league breached on the facts at issue. They  just ask for damages to fully compensate them, but assert no legal rule that entitles them to recovery, but they assert no legal right to recover. We teach in Civ Pro that "he violated my rights" or "he injured me" is not sufficient in a complaint, even pre-Twiqbal. You never expect to actually see one of those.

2) The prayer for relief asks "that Defendants be duly cited to appear and answer this complaint and after due proceedings for judgment against The Commissioner and the League for damages to fully compensate Plaintiffs, and the Class, for damages, and all other general and equitable relief required in the premises." This is utter nonsense. His prayer for relief is that they be made to respond to the complaint.

3) The complaint asserts as one basis of jurisdiction § 1331, but no indication of how this is a civil action "arising under" federal law.

I am tempted to use this in class next semester, as a sample complaint showing what you absolutely shouldn't do. But this is almost so bad as to not be a good illustration of what is bad. Almost.

Quantitative Sports Law

Starting Fall 2013, I recently learned that I will be able to fund at least one PhD student interested in research at the intersection of quantitative methods and sports law.  More details can be found here.  Please contact me if you are interested.

For an example of how math and sports law can intersect, here is a panel discussion on corruption and gambling in sports.  One of the speakers details how he used statistics to determine the scope of point shaving in college basketball.

My Day Flying In A Cirrus

I had a great time at the 2012 AOPA Aviation Summit.  I enjoyed being the Master of Ceremonies for the convention and the AOPA Foundation Dinner.  The event gave me the chance to meet many interesting people and be exposed to the world of flying.  Pilots are an eclectic group of people, but they all have a passion and are eager to share their enthusiasm for aviation.

I was supposed to fly into Palm Springs with a friend who owns his own airplane.  I was going to be in California for another conference, and I was excited to take this short flight, as I had not had very much experience with general aviation (I went up with a friend once in my 20s).  My friend owns a Cirrus SR22, and in preparation for the conference I did a lot of research on planes.  I was excited to get to fly in a Cirrus, but at the last minute my friend's plans changed.  I had to rent a car in Orange County and drive to the desert.

Alas, the conference was a lot of fun, but I was sorry I did not get to go up in a plane.  I shared this with a few people, and the folks at the Cirrus Aircraft trade show booth offered to take me up....  But I was busy throughout the event, and did not want to impose.  I am not a pilot, nor am I in the market for a plane.  I have worked plenty of shows, and did not want to waste anyone's time.

I enjoyed talking with many people on the trade show floor, and I learned a lot about what it means to be part of the general aviation community.  I like it when I discover close knit industries where everyone cares about their greater community.  But time and time again, the folks at the Cirrus booth were wonderfully engaging.  They were like the Nordstrom's of the aviation world when it came to friendly and interested people who lived to deliver a positive customer experience (even to those who were not customers!).  Clearly their employees like their jobs, and while they do a lot of shows, they did not seem to tire to talk to anyone about their products.

Before the AOPA show ended they had offered to fly me to my next destination with one of their employees.  He was heading to Denver, and I was going to Albuquerque for another association event. Thus it was not too far out of the way for his flight plan (I really was not wanting to impose). The thought of canceling my commercial flight and going in a small plane with a stranger was unsettling at first, but the more they offered, the more I realized I wanted the experience of flying.  And a three hour flight from Palm Springs to New Mexico was surely going to be an adventure.

My new pilot friend is Ryan.  He is 23-years-old (he was not even born the last time I was in a private plane), but has been flying his whole life.  His father is one of the founders of Cirrus Aircraft.  He clearly understands all aspects of aviation, and I could not have asked for a better pilot.  He explained everything from the pre-flight list to sharing stories about his Dad's early vision for designing a plane that was built for the passenger's comfort.

The plane, a Cirrus SR22-GTS, was great.  The cockpit was roomy enough that a big oaf like me was not cramped.  The glass display screen instrument panels were easy to understand (even for a non-pilot). The safety features made a novice like me feel good the whole time.  It was like a flying BMW.

How you see the world in a Cirrus at 11,000 feet is much different than being in the flying bus of a commercial airline at 30,000 feet.  It was fascinating to see the little towns and houses in the middle of nowhere that go unnoticed when you fly commercial.  The skies were clear and the whole time I was taken with the beauty of the land below.

I also enjoyed watching how Ryan flew the plane.  The care he put into each thing he did from before take off through landing.  How he talked to the air traffic controllers and listening to the conversations of other planes on the frequency was very educational.

I am not saying after one flight that I want to be a pilot (I am going to explore more about the process), but I do have an amazing new appreciation for general aviation.  I also see the convenience of having a plane if you travel a lot for work.  We scheduled our own departure time, there was no dealing with TSA, no long layovers, or sitting next to someone obnoxious (well, Ryan may disagree with that last one!).  I met him at the airport and we were taking off soon after arrival.

But I am clearly a new fan of Cirrus Aircraft.  They did not need to let me bum a ride with Ryan, but their dedication to wanting people to experience flight (especially flight on a Cirrus) was true and real.  It was a very comfortable trip, and I had only one disappointment.... that it was over too fast.  The three hours flew by (no pun intended).  Once I had reached my destination I wished that I could have that type of travel experience on a regular basis.

Thanks to Ryan and the rest of the folks at Cirrus, this is a day I will not forget.

Have A Great Day

thom singer

UPDATE - Two Weeks Later.  I have continued to think about my flight.  I understand clearly why the community of pilots is unique, and they really do love aviation.  I have enrolled in an online "ground school" course (See www.asa2fly.com for more info) to better learn the basics of flight and understand all that is involved in getting a private pilots certificate.