O’Bannon Attorneys Attempt to Cash In with the Ninth Circuit

On February 16, 2017, attorneys for the student-athletes in the infamous O’Bannon case argued in front of the Ninth Circuit that they are entitled to over $42 million in attorney’s fees. The attorney’s obtained an injunction from the district court that the NCAA could not cap student-athlete aid packages at below the full cost of attendance, and that student-athletes could receive up to $5,000 per year in cash payments for use of their name, image, and likeness. However, the appellate court reversed the district court’s ruling that allowed players to receive up to $5,000 after their college career for use of their likeness. The Supreme Court denied a request by both sides for a review of the appellate court’s ruling. Although the 9th Circuit knocked out another portion of the ...
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Are EA’s Visual Representations in Madden Generic Enough to Avoid Liability in Publicity Claim?

In 2010 Michael Davis and other former NFL players filed suit in California, alleging that video game maker Electronic Arts (EA) violated their rights of publicity when it used famous teams from the past in Madden games from 2001 until 2009. In their complaint, the retired players argued that while EA obtained permission from current players to use their names and likeness, the company failed to do so with the retired players. While the former players did not allege that their names actually appeared in the game, they argued that EA’s use of “real-life physical attributes, positions, relative skill and other identifying factors” could be linked back to them. The plaintiffs’ complaint alleged a cause of action pursuant to California Code Section 3344, and also included causes of action under ...
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NCAA Players’ Likeness Suit Attempts to Gain New Life

On February 17, 2017, two former Catholic University basketball players from the 2001 Division III national championship team pleaded for the Ninth Circuit to revive their class action against a website, T3Media, which sold official NCAA photographs from their championship season. The suit commenced in 2012, but was dismissed in 2015 as a District Court judge found that the website did not exceed its copyright and, therefore, was preempted by the Copyright Act. In response to the court’s dismissal, members of professional player unions in the U.S. (ex. NFL, NBA, MLB, MLS) all filed amicus briefs in support of the player’s position. The player unions were concerned that the district court’s ruling would limit the ability of professional athletes to control commercial exploitation of their likeness. In support of their ...
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Splitting Blades: Houston Texans Combat Latest Challenge to NRG Stadium Turf Safety

Coming on the heels of hosting Super Bowl LI, the National Football League and the Houston Texans are fending off another lawsuit resulting from a football-related injury. Former Philadelphia Eagles linebacker DeMeco Ryans filed suit last October, alleging that the turf at NRG Stadium, the home field of the Houston Texans, caused his career-ending injury. During a game against the Texans on November 2, 2014, Ryans jumped to intercept a pass, but, upon landing, tore his Achilles tendon, ending his season. Ryans seeks damages in excess of $10 million. The suit alleges that the turf at NRG Stadium, a property operated by stadium-giant SMG (stadium management group), causes a dangerous playing condition on the field. The construction of the field at NRG Stadium is not like many others. While many ...
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Will President Trump Change the Course of Sports Betting in the United States?

Earlier this month, the United States Supreme Court chose not to strike down New Jersey’s challenge to the federal ban on sport betting, but rather called upon President Donald Trump and his administration to opine on the controversial issue. This decision comes after New Jersey’s multi-year long fight to convince the federal government to end its ban on sport betting, in order to benefit New Jersey’s struggling casinos and racetracks. As background, the Professional and Amateur Sports Protection Act (PASPA) has prohibited most states from authorizing sports betting, except for a few grandfathered states (including Nevada). After being blocked by the PASPA for nearly 25 years, New Jersey attempted to repeal its sports betting restriction at all of its casinos and racetracks — an attempt to bypass the PASPA’s prohibitions. ...
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NFL Painkiller Lawsuit Dismissed

California Federal District Court Judge William Alsup dismissed in part a class-action lawsuit filed by former NFL players who alleged teams forced players to ingest painkillers in order to keep them on the field regardless of the health risks posed and the potential long-term consequences. The complaint, filed against all 32 teams of the NFL, stated the teams’ main goal was to mask pain and conceal injuries. In July 2016, Judge Alsup refused to dismiss the lawsuit, despite the NFL’s protestations that the claims were barred by statutes of limitation. Judge Alsup, however, rejected the players’ Racketeer Influenced and Corrupt Organizations Act (RICO) claims finding they were untimely and unsupported by facts. In his February 3, 2017 ruling, Judge Alsup stated that to prevail in a RICO claim, the players ...
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NLRB Opens its Doors to Protect College Football Players as Employees

On January 31, 2017, the general counsel of the National Labor Relations Board (NLRB or Board) released a memo which stated it believed football players at private colleges qualify as employees. The Board declined to answer this question in 2015 when they dismissed a unionization effort by players at Northwestern University, citing concerns of instability if such a decision was rendered that only pertained to private universities. However, a recent decision by the NLRB that found in favor of graduate teaching assistants challenging their status as employees led general counsel to the conclusion that there was no reason football players at private universities should not be considered employees as well. NLRB general counsel Richard Griffin authored the memorandum, which stated “scholarship football players should be protected by Section 7 [of ...
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Paul McCartney Seeks to Terminate Sony’s Copyright Interests in Legendary Beatles’ Tracks

Paul McCartney has commenced a full-out mission to re-acquire complete ownership of the copyright interests in the Beatles’ songs Sony acquired rights to 50 years ago. On January 11, 2016, McCartney sought confirmation from a New York federal judge on that he will not face breach of contract liability in the process. McCartney filed termination notices in 2008 pursuant to a provision in the Copyright Act, which affords song-makers whose songs were made prior to 1978 the right to terminate copyright licenses and assignments after 56 years from the date of the original copyright. The notice thus seeks to place the songs McCartney and John Lennon collaborated on in the 60s and 70s back under his complete control as of 2018. Sony hasn’t exactly comforted McCartney with assurance that his ...
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NHL’s Subpoena Requests Regarding CTE: Valid Production Request or Invasion of Privacy?

Beginning in September, 2015 the National Hockey League issued subpoenas to two doctors at Boston University’s Chronic Traumatic Encephalopathy Center (Boston CTE) in order to compel production of the center’s research related to the league’s concussion litigation. In October 2017, the NHL issued another subpoena, seeking information regarding Lazarus Zeidel — who was added as a named plaintiff in the concussion lawsuit against the league after being diagnosed with CTE in a post-mortem analysis of his brain. While the league argued that the request was made on a need for additional information regarding Zeidel, Boston CTE maintains that the request “goes far beyond that. . . and is asking for information and documental related to all aspects of the center’s work on the disease.” Further, the university alleged that “[i]n ...
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NHL’s Proffered Expert in Concussion Litigation Attacks Dr. Bennet Omalu’s CTE Findings; Omalu Says No Room for Debate

The controversial discourse around high-contact sports and their potential link to permanent brain damage in professional athletes is coming to a head again. This time, it comes after the director of the Center for Neuropathology at Western Michigan University Homer Stryker M.D. School of Medicine, Rudolph J. Castellani, told a federal court that neuropathologist Dr. Bennet Omalu’s medical conclusions regarding the potential link were inaccurate. Dr. Omalu, notoriously known for his research and findings on chronic traumatic encephalopathy, a degenerative brain condition often found in deceased football players, has been an instrumental advocate for the former NHL players who have filed a multidistrict suit against the NHL in Minnesota federal court by offering his medical research findings as evidence of the link between high contact sports and the disease. The ...
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