Retired NFL Player’s Suit Against Madden Games Maker Continues

On December 11, 2017, U.S. District Judge Richard Seeborg refused Electronic Arts Inc.’s (EA) request to be dismissed from a retired NFL player’s putative class action. The suit alleged that EA improperly used the retired players’ likenesses in Madden video games. The putative class action was filed in 2010 and claimed EA violated their publicity rights by including their likenesses in Madden games without obtaining permission from 2001 to 2009. Although the retired players’ names do not appear in the game, the players claim their real-life physical attributes, as well as their skills, former positions, and other identifiers, could be linked back to them. The players also claimed their names appeared in the source code for the games. Judge Seeborg’s decision determined EA’s August motion that moved to have the ...
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MLB Fans Swing ‘n Miss on Safety Netting Suit in Ninth Circuit

The Ninth Circuit Court of Appeals concluded that Gail Payne and Stephanie Smith lack standing to seek an order requiring more safety netting and other protective measures at all Major League Baseball ballparks, pointing to the League’s evidence indicating that the risk of injury is very slim. The Ninth Circuit refused to reinstate the lawsuit, affirming U.S. District Judge Yvonne Gonzalez Rogers’ ruling in November 2016 that tossed out the suit. Judge Rogers had agreed that injuries to baseball spectators, especially children, are more severe now than they were in the past, but said an individual fan’s statistical risk was too low to sustain a lawsuit based on the “certainly impending injury” standard. The two fans wanted safety nets extended from behind home plate to both foul poles and proposed ...
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Tampa Bay Rays Strike Concession Company with Contract Suit

On December 8, 2017, the Tampa Bay Rays baseball club filed a lawsuit in the Middle District of Florida against Centerplate Inc., formerly known as Volume Services Inc., for breach of contract involving their 20-year exclusive concession agreement at Tropicana Field. Volume Services entered the contract with the baseball club a year before the Tampa Bay Rays’ first game in 1998, but were unable to reach an agreement to extend the contract after the 2017 season. The baseball club alleged damages over the course of the contract for breaches of contract, breach of good faith and fair dealing, negligence, and failure to return control of Tampa Bay Rays’ property in an agreed-upon condition. Many of the Tampa Bay Rays’ claims relate back to the club’s ability to compete with other ...
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Ruling on Field Stands for Changes to Claims Process in NFL Concussion Settlement

A Pennsylvania federal judge upheld the approval of a claims administrator’s changes in the way a multidistrict NFL concussion settlement was implemented. The 16 retired players who filed the motion for reconsideration argued that the court should review its Nov. 2 decision that they cannot interfere with the claims process. The former players again argued the requirements for qualifying for a monetary reward were altered from the original settlement agreement. The court denied the motion Tuesday, Dec. 5, 2017 without a memorandum. The retired players had first asked the court in August to ensure claims were being properly administered per the settlement agreement, and argued the claims administrator had altered the implementation of the original settlement. For example, the players said, the claims administrator reinterpreted “corroborated by documentary evidence” to ...
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Should Hernandez CTE Case Remain Separate from Class-Action Concussion Litigation?

Lawyers for the estate of late NFL star Aaron Hernandez are trying to prevent a $20 million lawsuit, filed on behalf of Hernandez’ five-year-old daughter against the National Football League, from being merged with a wider class-action suit addressing former players’ concussions. The defendants, including the NFL and helmet manufacturer Riddell, asked U.S. District Judge George A. O’Toole in November to temporarily stay proceedings in the case until the U.S. Judicial Panel on Multidistrict Litigation (JPML) rules whether the action should be added to the class action. The JPML had already issued a conditional transfer order last month. The defendants contend that there is nothing unique about the case to warrant a separate trial. The child’s lawyers want her case tried remanded back to state court, arguing that their sole ...
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Russia Banned from 2018 Olympics; “Clean” Athletes May Compete under Neutral Uniform

Russia’s Olympic team has been banned from the 2018 Winter Games in Pyeongchang, South Korea. The country’s government officials are forbidden to attend, its flag will not be displayed at the opening ceremony, its anthem will not sound, and the official record books will show Russia won zero medals. The Russian Olympic Committee was also fined $15 million and ordered to reimburse the IOC’s costs of the investigation. Vitaly Mutko, the Deputy Prime Minister of Russia and former Minister of Sport, has also been barred from attending any future Olympic Games. The punishment handed down by the International Olympic Committee (IOC) on Tuesday, Dec. 5, 2017, after completing its investigation into Russia’s extensive state-backed doping program are severe and without precedent in Olympics history. Some Russian officials had threatened to ...
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NCAA Rules Ole Miss Lacked Control Over Football Program

On December 1, 2017, an NCAA panel decided that the University of Mississippi (Ole Miss) promoted an “unconstrained culture of booster involvement in football recruiting,” and handed out more penalties to the school over recruiting misconduct, including impermissible benefits given to athletic prospects and academic fraud. The decision comes from a case against Ole Miss for 21 allegations of NCAA rule violations over a five year period, including providing prospective athletes with cash, housing, apparel, and other improper benefits. The NCAA panel found that the violations were the result of a culture at Ole Miss that viewed violations as acceptable. Members of the football staff were often in contact with the boosters, who provided impermissible benefits and inducements. Prospective student athletes received about $37,000 worth of improper benefits through cash ...
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NCAA, Pac-12 Want Ninth Circuit on their Side in Student-Athlete Wage Suit

The NCAA and the Pac-12 filed a brief asking the Ninth Circuit to uphold the dismissal of a wage action brought by a former USC football player, arguing that not paying student-athletes is precisely what makes them amateurs. “FBS [Football Bowl Subdivision] football players are not Fair Labor Standards Act (FLSA) Employees because amateurism — a system in which compensation is explicitly prohibited — ‘defines the economic reality’ of their activity.” The brief further argued the state law claims failed because California defines the players as student-athletes and not employees. In contrast, the USC player, Lamar Dawson, argued there are factors present that constitute employment, such as the power to hire and fire, supervising and controlling the players’ work schedules and conditions of employment, maintaining detailed employment records and determining ...
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Riddell Helmet Safety Suit Moved to Illinois

On November 22, 2017, California federal judge Beth Labson Freeman transferred the putative class action against Riddell and its parent company BRG Sports Inc. to Illinois. Former college football players had brought the suit against Riddell and BRG Sports, alleging that the companies lied about the protection its helmets offered against concussions. The case also alleged that Riddell and BRG Sports used a shaky study to advertise unsafe helmets and failed to upgrade the designs to prevent concussions. Judge Freeman decided the proper venue for the case was Illinois because BRG Sports had relocated to Illinois to be closer to Riddell. In addition, the court granted dismissal of claims against All American Sports Corp., a New York based company that refurbishes sports equipment, so the suit could be moved to Illinois. ...
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Former Agent Counters NFL, NFLPA with Antitrust Suit After Decertification

On November 21, 2017, former NFL agent and lawyer James Dickey accused the NFL, the NFL Management Council, and the NFL Players Association of stifling competition by implementing a rule in 2002 to keep new agents out of the industry. The rule, which Dickey refers to as an unreasonable artificial barrier and which is enforced by the NFLPA, requires agents to negotiate at least one NFL team deal for every three year period in order to stay certified to represent NFL players. “The so-called three-year rule appeal process was merely set up as a ruse and sham to routinely deny any reasonable appeal to the decertification process, which became an automatic decertification event contrary to the guidelines as set forth under the [collective bargaining agreement],” Dickey said in his complaint. ...
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