April 21, 2015

EASL Fashion Law Committee Program - Identity Crisis! Legal and PR Aspects of Managing Brand Image in Celebrity Endorsements and Licensing Agreements [Gone Wrong]

Date: Wednesday, April 29, 2015
Time: 5:30 PM - 8:30 PM Eastern Daylight Time

Fashion Institute of Technology's Jay and Patty Baker School of Business and Technology.
Katie Murphy Amphitheatre
7th Ave at W. 21st Street
New York, NY 10001

5:30 p.m. - 6:00 p.m. - Welcoming Reception
6:00 p.m. - 8:05 p.m. - Panel/Q&A
8:05 p.m. - 8:30 p.m. - Networking

This program qualifies for 2.5 MCLE credits in Professional Practice, this program is not transitional so does not qualify for newly admitted attorneys

As you wait in the checkout line at your local supermarket, you are so bored that you grab a gossip mag from the display above the mints. (OK, so it's really because you secretly love the sleaze... but we won't tell.) Flipping through the pages, you are consumed by the latest celebrity news: love, heartbreak and... uh oh... scandal. The top news story recounts a young celebutant's night of partying that ended in her arrest. In the wake of this incident, said starlet has been dropped by the trendy clothing line for which she served as brand ambassador. "How can they do that!?" you think to yourself. "Isn't there a contract they have to honor?" "And what about free speech?"

Recently, such situations have become quite common, resulting in an increased importance placed on contract terms designed to protect a fashion brand's reputation. This need for image control does not stop at celebrity endorsements. A brand's reputation can be at risk if the brand is associated with manufacturers or factories alleged to be in violation of health, safety and labor laws.

NYSBA's Fashion Law Committee, in partnership with the Fashion Institute of Technology's Jay and Patty Baker School of Business and Technology, invites you to attend its annual CLE event for a lively discussion of these issues. Industry attorneys and PR professionals will discuss the ins-and-outs of image protection from a legal and public relations perspective. Hear as they relay best practices in negotiating celebrity endorsement deals, discuss the importance and effectiveness of morality clauses and advise on avoiding reputational damage in the event of a "rogue" brand representative. Panelists will also discuss these issues as they apply to labor and safety standards.

Moderator:
Kathryne E. Badura, Esq., International Trademark Association (INTA)

Speakers:
Marc Beckman, Founder & CEO of Designers Management Agency
Daniel Bellizio, Bellizio & Igel PLLC
Kristin G. Garris, Esq., Associate, Kilpatrick Townsend & Stockton LLP
Guillermo Jimenez, Esq., Professor-International Trade and Fashion Law at the Fashion Institute of Technology of the State University of New York.
Robin Sackin, Chairperson of the Jay and Patty Baker School of Business and Technology's Fashion Merchandise Management Program at the Fashion Institute of Technology of the State University of New York.

Marc Beckman, Founder & CEO of Designers Management Agency

Register Today!
EASL Members: $25.00
NYSBA Members: $50.00
Non-NYSBA Members: $85.00

To register over the phone please call our State Bar Service Center at 1-800-582-2452

For Questions: Beth Gould at bgould@nysba.org

Senior Counsel Position Available in Colorado at Starz Entertainment

Tracking Code S778

JOB DESCRIPTION

Primary Responsibility: Draft and negotiate complex video content acquisitions and distribution licensing agreements for premium pay television service. Perform in-depth analyses and provide legal counsel to clients and executive team.

Essential Duties and Responsibilities:
• Draft and negotiate content acquisition agreements with studios and production companies.
• Draft and negotiate affiliation agreements with cable, satellite and telco television distributors.
• Provide legal counsel to the Programming Acquisitions and Affiliate Sales business units. Manage intellectual property matters and piracy initiatives.
• Provide legal counsel to the Marketing Communications and Affiliate Marketing teams including collateral development through approval; perform research and provide well-reasoned legal opinions concerning copyright and trademark usage and related initiatives.
• Support the department Vice President and Sr. Vice President in a myriad of assignments - primarily pertaining to intellectual property licensing, litigation strategy, and related matters.
• Working knowledge of Internet-distributed television content, including related technologies.
• Some regulatory involvement/oversight.
• Will supervise Paralegal Staff.

Required Experience

Education, Knowledge, and Experience:
• Juris Doctorate Degree.
• Minimum three years in a major, reputable law firm - focused on IP/transactional practice areas.
• Experience counseling television networks, studios and/or media companies with an emphasis on affiliation agreements.
• Superior drafting skills a must.
• Mastery of trademark and copyright laws and licensing.
• Litigation/dispute resolution background useful.
• Experience reviewing and approving marketing material, sweepstakes rules and the like.
• Experience directing, training and developing support staff.
• Highly motivated, extremely detail-oriented, organized, and able to work independently.
• Successful candidate will demonstrate strong organizational, follow-through, interpersonal, written and verbal communication skills.

If you are interested, email Christine.alling@starz.com

Joint Employers and Overtime Pay

By Kristine Sova
www.sovalaw.com

If a non-exempt employee works part time for two separate, but related, employers in the same workweek, such that the employee works 20 hours per week in one company and 25 hours per week in the other company, is the employee legally entitled to overtime pay because he or she is working more than 40 hours per week? It's very possible he or she is.

Here's why: It's the U.S. Department of Labor's position that in order for two employers to disregard all work performed by an employee for another employer and avoid any overtime pay obligations in the scenario above, the employers must be "acting entirely independently of each other and [be] completely disassociated with respect to the employment of a particular employee . . . ." (29 C.F.R. § 791.2(a))

While certainly not an all-inclusive list, some examples of what it means when employment by one employer is not completely disassociated from employment by another employer include situations where:

There is an arrangement between the employers to share the employee's services (for example, to interchange employees); one employer is acting, either directly or indirectly, in the interest of the other employer in relation to the employee; and/or
the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. (29 C.F.R. § 791.2(b)) In fact, the U.S. Department of Labor is of the view that in each of the above examples, a joint employment relationship exists. In those cases, overtime pay would be owed to the employee in the hypothetical above for five hours of work.

These joint employment relationships are most common among businesses with multiple locations, such as retail stores/boutiques, bars/restaurants, and fitness studios. If you happen to operate a business that fits this profile, you should take a closer look at your business's pay practices.

***

It is important to note that "joint employer status" is a complicated topic and the factors outlined above are not appropriate for all legal issues. For example, the issue of subcontractors as joint employers in an outsourced employment relationship typically involve another set of factors under the wage-and-hour laws.

Nor are the factors outlined above appropriate under all laws. The National Labor Relations Act, for example, is the federal law that encourages collective bargaining, and it has its own test for determining joint employer status. The laws also differ from state to state.

April 20, 2015

Arizona Lawmaker Looks to Make Fantasy a Reality

By Jonathan Goeringer

When fantasy football season is in full swing, for those of us that live to incessantly and insatiably make waiver moves, trades and lineup changes, the excitement could not be greater. For one state in particular, Arizona, participation in fantasy sports is without one all-important element that even the competitive nature of sports alone cannot replace; playing for financial reward. It sounds shallow to think of playing fantasy football solely for financial gain, and it may just be equally as superficial as it sounds, but even professional sports are played with the ultimate and underlying desire to receive a return on investment; all the way from the management down to the players themselves. For years, fantasy participants in Arizona have been without this added element because of "vague language" in Arizona's current gambling law. Recently, an Arizona Senator tried to add more clarity to this vague law; unfortunately, his proposed bill failed.

Currently, Arizona is one of seven states, Iowa, Louisiana, North Dakota, Montana, Tennessee, and Washington included, that does not allow playing fantasy sports for money. In fact, under Arizona law, anyone found to be doing so could be convicted of a Class Five felony, punishable by up to six months in prison and a $150,000 fine. The relevant sections of the current law read as follows: "'Amusement gambling' means gambling involving a device, game or contest which is played for entertainment if all of the following apply: (a) The player or players actively participate in the game or contest or with the device, (b) The outcome is not in the control to any material degree of any person other than the player or players, (c) The prizes are not offered as a lure to separate the player or players from their money." (Ariz. Rev. Stat. Ann. § 13-3301.)

In analyzing the statute, it is clear that playing fantasy sports for money meets prong (a) of the state law test for whether an activity constitutes amusement gambling. By allowing a computer to draft his/her team or set his/her lineup, even the most negligent and careless of owners actively participates in the game to alter the outcome, and certainly, those who are diligent in their management are active participants as per the statute, as well. As for prong (b), its language seems to encompass the inherent aspect of fantasy sports. While it may not be the traditional card dealer with house imposed standards materially controlling the outcome of an event, the athletes of these sports themselves materially control the outcome of a fantasy season with their individual production, far more than the management of those athletes by fantasy owners. However, (a) and (b) are not collectively dispositive, and require prong (c) as well, the application of which is not as clear, and warrants a deeper analysis.

The language of prong (c), though vague, has been supplemented by an Arizona case. In Chenard v. Marcel Motors (387 A.2d 596, 601 (Me. 1978)), the court held that an automobile offered to the defendant as a prize in a contest requiring an entrance fee did not constitute a "lure." The court further explained that because the fees did not constitute a portion of the prize, rather the automobile was the prize, entirely separate from the fees, the prize was not a lure. (Id.) That being the case, it was clear to the court that the participants in this contest were not primarily risking their fees in the hope of making a return on their money as in a wagering transaction, but were paying the fees for the privilege of participating in the tournament. (Id.) To further clarify the language of prong (c), a judicial opinion was issued to answer questions regarding the legality of certain gambling activities under the state's criminal gambling law. In the opinion, Judges Sossaman, Stephens, and West interpreted legislative intent to mean that, to be a non-gambling activity, "the potential winning of the prize must not be the primary motivation for the player to play the game [in question]." (Ariz. Op. Att'y Gen. 161 (1987).) They further provided that "the more skill involved in a game, the more likely it is that the player gives his consideration primarily for the privilege of playing and demonstrating his skill rather than for winning the prize." (Id.)

In light of the guidance provided therein, it seems that whether fantasy sports constitutes gambling, under current state law, is still entirely subject to opinion and interpretation. Taking what the court expressed in Chenard, it seems that fantasy sports could be considered as such. As entrance into some fantasy leagues requires fees that, themselves, constitute not only a portion of, but the whole prize, and because participants are risking those fees primarily in hopes of making a return on that investment, the money sought when playing fantasy sports can be seen as a lure. However, taking direction from the judicial opinion in Chenard, the monetary aspect of fantasy sports actually may not be a lure. For many, the potential for winning money is not the primary reason for choosing to play in fantasy leagues. The major deciding factor may be whether fantasy sports require enough skill that, according to those judges, they rise to the level of a game people would play to demonstrate that skill, rather than to win a prize. When compared to other games with a clear gambling orientation such as roulette or craps, it is obvious that fantasy sports require a greater and more focused skill in order to achieve success. However, does that mean it requires enough skill to pass muster as a non-gambling activity under Arizona law? Though current precedent says it does not, and the recently failed bill, SB 1468 (proposed to amend Ariz. Rev. Stat. Ann. § 13-3301) attempted to put this question to rest.

The bill attempted to explicitly preclude fantasy sports from that which had been deemed "amusement gambling" by statute. According to Senator Adam Driggs, R-Phoenix, the man spearheading this effort, "right now there are tens of thousands, hundreds of thousands of Arizonans playing fantasy sports. And I think it's kind of inconsistent to kind of discriminate against them." In further support, Stacie Stern, General Manager of Head2Head Fantasy Sports in Scottsdale, Arizona, cites the economic benefits of allowing the full access to an industry that is worth more than $1 billion, stating, "[i]t would really open up business for other companies to be able to come to Arizona and feel like they're in an environment that would be conducive to fantasy sports." Finally, trying to comply with interpretation of the current law, Stern posits that, "most people, when they're playing, they're playing for fun, they're playing for bragging rights and are very engaged in various games." Stern continued, stating, "the prizing is third or fourth on the list, but it's still important. People like to say that they're a winner, they like to brag about it."

Due to the ambiguity of the statute, it has been argued by people like Stern and Briggs that precluding fantasy sports from non-gambling activity would comply with proper interpretation and intention of the statute. Further, based on how few states still enforce a policy against allowing fantasy sports for money, and the lack of actual substantive policy behind its enforcement, in light of such ambiguity, it seems curious that Arizona did not pass this bill and conform to a more national sentiment. The reason is simple, really; though there was no opposition at the outset of the bill's proposition, the Arizona Indian Gaming Association eventually objected to the potential impact the approval of the bill might have on the tribal gaming compacts. Still, Briggs pledges to continue to push this issue in later sessions, despite this objection from the Native American community and its business associations.

Week In Review

By Chris Helsel

Former New England Patriots Tight End Aaron Hernandez Found Guilty of First Degree Murder, Sentenced to Life Without Parole

Aaron Hernandez, formerly of the New England Patriots, has been found guilty of all charges, including first degree murder, stemming from the June 2013 killing of Odin Lloyd. He has been sentenced to life in prison without parole.

Mr. Hernandez, who signed a five-year, $40 million extension with the Patriots in 2012, played his last game for the team in January 2013, a loss to the Baltimore Ravens in the AFC Championship. On June 17th of that year, Mr. Hernandez and two other men drove Mr. Lloyd, a semi-professional football player who was dating the sister of Mr. Hernandez's fiancée, to an industrial park near Mr. Hernandez's home in North Attleboro, Massachusetts.

There, Mr. Lloyd was shot multiple times, fatally. The keys to a car rented by Mr. Hernandez were found in his pocket. Though the murder weapon was never found, surveillance video of Mr. Hernandez's home showed him carrying a Glock semi-automatic pistol just minutes after the murder - the same type of gun used to shoot Mr. Lloyd. Fingerprint evidence also revealed that Mr. Hernandez had driven the car from his Dorchester home to the industrial park that night, and video surveillance showed Mr. Hernandez and the two other men returning to his house shortly after the murder. The following day, Mr. Hernandez had his fiancée dispose of a box, which was believed to contain the murder weapon, in a dumpster.

At trial, the defense admitted that Mr. Hernandez was at the scene of the murder, but insisted that he had not pulled the trigger.

The prosecution struggled to establish a motive, only offering witness testimony indicating that Mr. Hernandez appeared angry with Lloyd at a club two nights prior to the murder. Allegedly, Mr. Lloyd had "disrespected" Mr. Hernandez in some way - and paid for it with his life.

This week, after a long deliberation, the jury found Mr. Hernandez guilty on all counts, including weapon charges and murder in the first degree. Absent a successful appeal, he will spend the rest of his life in prison.

Mr. Hernandez also faces double homicide charges for killing two other men in a 2012 drive-by shooting in Boston following an argument at a club over a spilled drink. Additionally, he faces civil suits for the aforementioned killings as well as another civil suit stemming from yet another shooting, this one a non-fatal interaction occurring in Florida in February 2013. In the Florida suit, Mr. Hernandez is accused of shooting a friend between the eyes and leaving him for dead following a trip to a Miami strip club. In that case, the victim survived.

http://www.boston.com/news/local/massachusetts/2015/04/15/verdict-reached-aaron-hernandez-murder-trial/vAKB6tdDIakFmKn1IuShhP/story.html
http://www.cnn.com/2014/06/21/justice/aaron-hernandez-motive/
http://www.chicagotribune.com/news/nationworld/chi-hernandez-murder-20150416-story.html

European Union Formally Charges Google With Antitrust Violations for the First Time

On Wednesday, European Union (EU) antitrust regulator Margrethe Vestager formally accused American tech giant Google with violating EU antitrust law by skewing search results. Despite years of prodding by American regulators, this is the first time the company has faced actual antitrust charges.

According to Ms. Vestager, Google, which boasts a 92% market share in EU Internet searches, abuses its dominance of the market by diverting traffic away from competitors and to its own comparison shopping website.

Google, which has its European headquarters in Dublin, denied any wrongdoing. In a blog post this week, the company said: "While Google may be the most-used search engine, people can now find and access information in numerous different ways -- and allegations of harm, for consumers and competitors, have proved to be wide of the mark."

The company was also investigated by the U.S. Federal Trade Commission, but that inquiry closed in 2013 without reaching a formal finding of wrongdoing.

The EU's decision to charge Google with antitrust violations has raised concerns that European authorities are becoming increasingly protectionist and anti-American. In February, President Obama warned EU regulators against making "commercially driven" decisions to penalize American tech companies. Additionally, on Wednesday, the U.S. State Department's Bureau of Economic and Business Affairs deputy assistant secretary Daniel Sepulveda said, "It's important that the process of identifying competitive markets and remedies be based on impartial findings and not be politicized."

Ms. Vestager insisted on Wednesday that the case was solely about antitrust considerations and ensuring that all companies doing business in Europe obey EU competition laws. It should also be noted that many of the companies that have complained about Google's business practices in Europe, such as Microsoft and TripAdvisor, are themselves American.

Ms. Vestager, who took office late last year, also announced Wednesday that she had opened a formal antitrust investigation into Google's Android smartphone business. The investigation will delve into claims that Google abused its dominant position in the smartphone market (71% European market share, 81% worldwide) by pre-installing its own apps and services into Android devices to the unfair detriment of its rivals. This practice is similar to what Microsoft was accused of (improperly bundling its Internet Explorer browser with its Windows operating system) in the early 2000's.

Google has 10 weeks to formally respond to the current charges regarding the alleged abuse of its dominant position in the Internet search market. The investigation into whether the company's Android practices violate EU antitrust law is expected to take years.

http://www.nytimes.com/2015/04/16/business/international/european-union-google-antitrust-case.html?_r=0

Presumptive #1 National Football League Draft Pick Jameis Winston Sued Over Alleged 2012 Rape

Jameis Winston, who won the Heisman Trophy and a national championship during his two years playing quarterback at Florida State University (FSU), has been sued by a woman who claims he raped her at his apartment in 2012.

Although his accuser, Erica Kinsman (she identified herself in a recent documentary film, "The Hunting Ground"), immediately reported the incident, Tallahassee police never questioned Mr. Winston and ultimately declined to bring charges. Following an FSU investigation, Mr. Winston was accused of violating the school's code of conduct, but was cleared by retired Florida Supreme court justice Major Harding in December.

In addition to suing Mr. Winston personally, Ms. Kinsman also filed suit against the school in January. In that suit, she accused FSU of violating her right to a welcoming educational environment under Title IX of the U.S. Education Amendments of 1972.

The current suit against Mr. Winston, filed in Florida state court in Orlando, alleges sexual battery, assault, false imprisonment and intentional infliction of emotional distress. Ms. Kinsman seeks monetary damages and has requested a jury trial.

Mr. Winston, who is widely expected to be selected first overall in the NFL Draft later this month, was suspended for one game in 2014 after standing on a table and shouting an obscene sexual phrase repeatedly in the student union. Mr. Winston also played on the school's baseball team, from which he was briefly suspended in 2014 for stealing $32.72 worth of crab legs from a local grocery store. In addition, Mr. Winston was stopped by police in 2012 on suspicion of involvement in a BB gun battle on campus and was accused of stealing soda from a Burger King restaurant in 2013. In the latter two incidents, no charges were filed.

http://www.nytimes.com/2015/04/17/sports/football/jameis-winston-being-sued-by-accuser-in-alleged-rape-in-2012.html
http://www.foxsports.com/college-football/story/jameis-winston-incidents-timeline-091714

WikiLeaks Posts Searchable Archive of Sony Pictures Documents

Last November, North Korean hackers, upset with the impending release of the depiction over Supreme Leader Kim Jong-Un in "The Interview," posted stolen emails and other documents online. This resulted in a highly embarrassing public relations nightmare for the studio, which has been scrambling ever since to have the stolen material suppressed.

This week, the story has been given new life. Web portal WikiLeaks, which is devoted to disclosing confidential information from governments, corporations, and other large and powerful entities, has posted a searchable archive of 30,287 documents and 173,132 emails originally stolen by the North Korean hackers.

WikiLeak's decision to post the material was condemned by Sony, which released a statement Thursday stating that it "strongly condemn(ed) the indexing of stolen employee and other private and privileged information."

Julian Assange, WikiLeak's editor in chief, said he believes the archive belongs in the public domain because the documents and emails "show the inner workings of an influential multinational corporation." He stated that the hacking incident is "newsworthy and at the center of a geopolitical conflict" and that the stolen material "belongs in the public domain. WikiLeaks will ensure it stays there."

Following the initial North Korean hacking incident, attorneys for Sony have pressured websites and news outlets to remove the stolen material. WikiLeaks intends to ensure that the public maintains access to the entire trove, which Mr. Assange claims contains far more than what has already been released by the media. He asserts that reporters had barely "scratch(ed) the surface," and that the archive now posted describes Sony connections to the Democratic Party and the RAND Corporation.

Sony also faces a civil lawsuit claiming that it negligently allowed its employees' private information to be stolen.

http://www.nytimes.com/2015/04/17/business/media/sony-pictures-is-angered-by-wikileaks-posting-of-its-stolen-documents.html

Federal Government Urges Television Broadcasters to Sell Airwaves As Mobile Communication Outpaces Television Broadcasts

As more and more Americans are shunning traditional television broadcasts in favor of their mobile devices, the federal government now seeks to repurpose some of the nation's strongest airwaves to accommodate mobile transmissions.

The most desirable (and therefore valuable) of these airwaves, which are also known as spectrum, are able to travel long distances and through buildings and trees. Most of them are currently owned by local television broadcasters, and the Federal Communications Commission (FCC) intends to purchase as many of them as possible for millions (perhaps billions) of dollars - and then resell the airwaves to wireless carriers at a profit.

At a broadcasters conference in Las Vegas this week, the FCC delivered its sales pitch. An auction is expected to take place in early 2016, during which the FCC will buy spectrum and simultaneously resell it to wireless carriers. Calling the upcoming auction a "once-in-a-lifetime opportunity" for broadcasters, FCC chairman Tom Wheeler urged the rights holders to sell. He also claimed that in addition to being extremely lucrative, broadcasters who sold their spectrums would also maintain the ability to stay on the air.

Some industry experts aren't so sure. With limited airwaves available for television broadcast after the auction, it is possible that many TV stations will be forced off the air, or need to combine with other stations to survive. This could limit the amount of content each station could offer, as well as limit the stations' capacities to broadcast in high definition.

Former Oregon Senator Gordon H. Smith, who serves as president of the National Association of Broadcasters (NAB), warns broadcasters that cashing in now could have dire consequences in the future. "I've told broadcasters: Your spectrum is your seed corn. If you sell that, you have no harvest next year. You can't plant."

Additionally, the NAB has filed a lawsuit claiming that the FCC is not doing everything within its power to ensure that stations remaining on the air post-sale will reach the same coverage area as they did before.

Currently, the vast majority of spectrum dedicated to wireless communication is owned by two carriers, Verizon and AT&T. The government hopes that the upcoming auction will make more airwaves available for other carriers, such as T-Mobile and Sprint, thereby increasing competition among wireless carriers.

Interestingly, the spectrum sought to be purchased from local TV stations by the government is not actually owned by the stations - it is owned by the government. However, the spectrum has been licensed to the stations since the Eisenhower administration, and the government hopes that its financial offers will convince the broadcasters to release their license rights.

http://www.nytimes.com/2015/04/17/technology/local-broadcasters-could-reap-billions-in-airwaves-auction.html

National Basketball Association To Institute Testing for Human Growth Hormone

The National Basketball Association (NBA, league) and its players' union, the National Basketball Players Association (NBPA) announced this week that blood testing for Human Growth Hormone (HGH) will commence next season.

The NBA drug-testing program had previously been described by the World Anti-Doping Agency (WADA) as "insufficient." In 2012, WADA director general David Howman said, "They've got gaps in their program, between what they do and what we suggest would be better...They do not feel they have such an issue as the other major leagues and therefore haven't addressed it in quite the same way." WADA, whose strict testing protocols are used by the Olympics and hundreds of other international and national sporting federations, does test for HGH.

While HGH has long been banned in the NBA, until now there was no mechanism in place for the league to test for it. During negotiations for the 2011 Collective Bargaining Agreement, the league and NBPA agreed to a process for determining how HGH blood testing would be implemented.

Under the recently-agreed upon system, all players will be subjected to three random, unannounced tests annually, beginning during training camp next fall. Players will be suspended 20 games for a first violation and 45 games for a second (the season is 82 games long). A third positive test will result in dismissal from the league.

The NFL and Major League Baseball have both recently enacted HGH testing procedures as well. The NFL specifically faced strong opposition from its players' union on the issue, but testing was finally implemented in 2014.

http://www.nba.com/2015/news/04/16/nba-and-nbpa-to-introduce-hgh-blood-testing/
http://chicago.suntimes.com/basketball/7/71/525513/nba-players-tested-hgh-starting-next-season
http://espn.go.com/nba/story/_/id/8521302/wada-director-general-says-nba-gaps-anti-doping-program

Adrian Peterson Reinstated by NFL Following Suspension For Child Abuse

Minnesota Vikings (Vikings, team) running back Adrian Peterson, who pleaded no contest to charges misdemeanor reckless injury charges after abusing his four-year-old son last year, has been reinstated by the NFL. Mr. Peterson had been placed on the commissioner's exempt list (barred from playing but still paid) last September 17th, then suspended indefinitely without pay on November 18th following his plea of no contest. On February 26th of this year, Judge David Doty of the District of Minnesota ordered the league to vacate the suspension.

On Thursday, the NFL announced that Mr. Peterson would be reinstated and not face further suspension. He is therefore now eligible to participate in the Vikings' offseason activities. In announcing Mr. Peterson's reinstatement, NFL commissioner Roger Goodell stated that Mr. Peterson is expected to fulfill his remaining obligations to authorities in Minnesota and Texas (where the incident occurred), as well as his agreed-upon commitments to the NFL, including participating in counseling.

Mr. Peterson, whose 2015 salary of $12.75 million makes him the highest-paid running back in the NFL, is currently at odds with the Vikings. In September, he told ESPN that he did not feel the team had shown sufficient support for him during the process and described the decision to put him on the exempt list as an "ambush." Though his agent has stated that Mr. Peterson would prefer to leave the Vikings, his contract runs for another three years and the team said in a statement that it "look(s) forward to Adrian rejoining the Vikings."

It is unknown whether Mr. Peterson will attend the team's voluntary offseason workouts, which begin Monday. Mandatory minicamp commences in June, which Mr. Peterson must attend or else be subject to a steep fine.

http://espn.go.com/nfl/story/_/id/12703337/nfl-says-minnesota-vikings-running-back-adrian-peterson-reinstated-effective-friday

April 16, 2015

The National Football League and the "Blackout Rule"

By Thomas Carter

Football is a predominant force within our country's athletic culture, with the National Football League (NFL) at the forefront. Watching football on television has remained a constant over the years, and competitive online gambling and fantasy football have ushered in an entirely new perception of the game and its components. However, unbeknownst to many NFL consumers, the Federal Communications Commission (FCC) is in control of regulating the broadcast of live games. Lately, the FCC has done away with a regulation over television known as the "blackout rule." (http://www.huffingtonpost.com/ken-reed/sports-blackout-rule-on-i_b_5830880.html).

The blackout rule is a method used by the FCC to withhold the broadcasting of games under particular circumstances. According to the FCC's website, "[a] 'sports blackout' occurs when a sports event that was scheduled to be televised is not aired in a particular media market. A blackout may prevent transmission of sports programming on local broadcast networks and/or non-broadcast platforms such as cable and satellite television." (http://www.fcc.gov/guides/sports-blackouts). Additionally, sports blackouts occur when a franchise does not sell a "certain percentage" of its tickets for its games. Id. "Notably, the NFL is the only league whose local blackout rule centers around stadium attendance." (http://www.forbes.com/sites/aliciajessop/2014/09/30/the-fccs-elimination-of-the-sports-blackout-rule-is-not-a-touchdown-for-nfl-fans/). Generally, teams determine the threshold ticket sales required to avoid blackout. Id. Franchises generally determine this required percentage at "between 85 and 100 percent." Id. Ralph Nader, a staunch opponent of this practice, believes that the NFL has held the fans "hostage" for years through the rule. (http://www.huffingtonpost.com/ken-reed/sports-blackout-rule-on-i_b_5830880.html).

The FCC is working to ensure that consumers are constantly given a steady stream of games, regardless of regional ticket sales. The main argument made before the FCC encapsulated the beliefs of "thousands of everyday sports fans," as well as sports economists, Congressmen, business associations, and academics. (http://www.huffingtonpost.com/ken-reed/sports-blackout-rule-on-i_b_5830880.html). These advocates suggested that blackouts do not accomplish the primary objective of improving ticket sales, and, as a result, "hurt fans." (http://www.huffingtonpost.com/ken-reed/sports-blackout-rule-on-i_b_5830880.html).

While the blackout rule has many advocates, there may be potential problems with entirely eliminating it For instance, franchise owners may support the reinforcement of the rule, as it may cause greater demand for tickets. Further, fear of broadcast blackout may draw more fans to their teams' games on game days. Additionally, these ticket purchasers may become eager customers for merchandise and refreshment shops located throughout the NFL stadiums. This could potentially generate even greater revenue to the teams, which could be used in drawing popular athletes to such financially high-generating franchises. Further, the NFL has expressed concern that completely eradicating the blackout rule "would lead to the NFL fleeing free TV generally." (http://profootballtalk.nbcsports.com/2014/09/30/after-fcc-vote-nfl-reiterates-its-commitement-to-free-tv/).

At the present time, it appears that the blackout rule is mostly gone. While the ultimate results in revenue and ratings are yet to be determined, millions of fans will ultimately benefit in knowing that their home teams' games will be broadcast each Sunday, regardless of ticket sales. However, NFL franchises have a potential countervailing interest in continuing enforcement of the blackout rule, as they want to maximize ticket and merchandise sales. Whether the abolition of the blackout rule will lead to increased happiness for both parties is yet to be determined.

April 11, 2015

Week In Review

By Chris Helsel

Unusual Labor Dispute Arises as Chicago Cubs Trade Twelve Days For an Extra Year of Control of Budding Superstar

Each spring, every Major League Baseball (MLB) club gathers its top 60 or so players (including its most highly regarded Minor League prospects) and heads south to either Arizona or Florida for preseason practices and exhibition games. For established veteran players, this annual ritual, known as Spring Training, serves primarily as a chance to work out the cobwebs and prepare for another long 162-game campaign. For young prospects, however, Spring Training represents the chance of a lifetime: an opportunity to prove their mettle by competing against the game's best and demonstrating to their club executives that they are ready to make the leap to the Major Leagues.

For one top prospect, however, even a monumentally impressive Spring Training performance proved not to be enough - and the players' union is now crying foul.

Kris Bryant, 23, plays third base in the Chicago Cubs organization (Cubs) and is widely regarded as one of the sport's top young prospects. This spring, in only 14 games, he hit 9 home runs - more than any other player, on any team - and posted an other-worldly .425 batting average (for perspective's sake, no player has hit over .400 in an MLB season since 1941). However, despite out-performing every other player on the planet, the Cubs elected not to include him on its roster to begin the season. Instead, he was relegated back to the Minor Leagues.

Though no one in the organization will admit it, it is widely believed that this decision was based not on Mr. Bryant's playing ability, but rather the Cubs' intention to keep him under its control for as long as possible - at the lowest possible cost. Under MLB rules established by the collective bargaining agreement (CBA) reached between the MLB and the players' union (MLB Players Association, MLBPA), a club can retain a player on a league-minimum salary for the first three seasons of his career (with some exceptions beyond the scope of this article). For the next three seasons (years 4 through 6 of his career), if no separate contract agreement is reached, the player's salary is determined by an independent arbitrator who compares the player's ability - and therefore value - with that of other similarly situated players at his position. Importantly, during these arbitration-eligible years, though the player's salary is determined by merit, his parent club retains his exclusive rights. Only after completing 6 full seasons at the MLB level is a player granted free agency, whereby he can shop his services to the highest bidder.

Naturally, MLB clubs often seek to delay this process for as long as possible. Under the terms of the CBA, a player earns a year of "service time" if he spends 172 in-season days with the Major League club. A typical MLB season consists of 162 games and 21 off days, for a total of 183 "service days." Therefore, if a club relegates a player to the Minor Leagues for at least 12 days of any season (provided he is not on the 40-man MLB-eligible roster, which Mr. Bryant is currently not), the player does not accrue a year of service time, and his free agency is delayed for a full year.

This issue arises from time to time, but rarely with a player of Mr. Bryant's caliber. From a management perspective, it makes perfect business sense to briefly delay a player's arrival in the Major Leagues in order to stave off free agency - and retain control over him - for another full year. This does not make the delay any easier to swallow for Cubs fans, however, who have not experienced a World Series championship in more than a century. Perhaps more importantly, this seemingly flagrant exploitation of a CBA loophole has raised eyebrows with the MLBPA.

"Today is a bad day for baseball," the MLB Players Association declared on March 30th, the day the Cubs announced that Mr. Bryant would not be joining the club for the start of the season. "This decision, and other similar decisions made by clubs, will be addressed in litigation, bargaining or both." Though Cubs president Theo Epstein has insisted that the decision was in the interest of developing Mr. Bryant's baseball-playing talents ("People are trying to make this about business. There are valid baseball reasons"), the player's agent, Scott Boras, vehemently disagrees, telling USA Today that the Cubs are "damaging the ethics and brand of Major League Baseball."

Whatever the Cubs' rationale for declining to include Mr. Bryant on its Opening Day roster, the MLBPA's strong public response came as a surprise to many observers. As Mr. Bryant has not yet served a single day of MLB service time, he is not officially a member of the MLB Players Association; and because MLB in-season rosters are limited to 25 players, if Mr. Bryant were to join the Cubs MLB roster, another player would be have to be removed. This puts the MLBPA in the uncomfortable position of campaigning for a prospective future employee (albeit a highly valuable one) to take the job of one of its rank-and-file. This apparent conflict of interest has not gone unnoticed by MLB brass, who released a statement regarding the union's position on Mr. Bryant this week:

"We do not believe that it is appropriate for the players' association to make the determination that Kris Bryant should be on the Cubs' 25-man roster while another player, who, unlike Bryant, is a member of its bargaining unit, should be cut or sent to the minor leagues."

Mr. Bryant, for his part, has seemingly not let the club's decision affect his on-field performance. Despite admitting that he was "disappointed" not to be with the MLB club, he delivered a run-scoring single and stole a base in his Minor League season debut this week. The Cubs have not fared so well, beginning the season with a record of one win and two losses.

The Cubs, it should be noted, have not violated any MLB rules. Teams are not required to promote or demote any player based on others' evaluations of his performance; that decision is left solely up to the club. Regardless of how the team fares in the first two weeks of the season, the Cubs have seemingly decided that an extra year of team control is worth waiting 12 days for its top prospect to arrive.

The MLB season began last Sunday night, with the Cubs falling to the St. Louis Cardinals by a score of 3-0. Mr. Bryant's 12-day waiting period concludes this coming Friday - and if he makes his Major League debut at third base for the Cubs in Chicago on Saturday afternoon, now you'll know why.

http://www.nytimes.com/2015/04/07/business/kris-bryant-the-baseball-players-union-and-a-lesson-for-labor.html
http://www.washingtonpost.com/news/sports/wp/2015/04/02/how-the-cubs-kris-bryant-became-mlbs-most-intriguing-spring-story/
http://www.foxsports.com/mlb/just-a-bit-outside/story/chicago-cubs-kris-bryant-service-time-when-to-call-up-prospects-031115
http://www.si.com/mlb/2015/03/30/chicago-cubs-kris-bryant-minors-mlbpa

University of Virginia Fraternity Plans to Sue Rolling Stone Over Retracted Article Alleging Gang Rape

Phi Kappa Psi, the University of Virginia (UVA) fraternity at the center of a controversial Rolling Stone article from November alleging that a female student was gang-raped by its members in its house, plans to sue the magazine for defamation.

The article, entitled "A Rape on Campus," was retracted after the release of a scathing report by the Columbia University Graduate School of Journalism. The Columbia report, which was commissioned by Rolling Stone, described the failure of the magazine's journalistic process and found that it did not engage in "basic, even routine journalistic practice." Specifically, the report concluded that the magazine failed to corroborate the alleged victim's story with any of her friends who were quoted in the article using pseudonyms, did not adequately seek to identify the alleged leader of the assault, and did not give the fraternity sufficient information to respond before publication.

As of this writing, Phi Kappa Psi has retained an attorney but has not yet taken any formal legal action. Experts believe that despite the damning Columbia report and the article's retraction, the fraternity will have a difficult time succeeding on its claim. In addition to allowing public examination of its social activities (which could be highly embarrassing), the fraternity will also need to demonstrate that the claims made in the article were "of and concerning it" as an entity, rather than just the unnamed individuals accused of actually committing the sexual assault. Further, if the fraternity is deemed to be a public entity rather than a private one, it will need to meet the heightened standard of actual malice - rather than just substandard journalism - to succeed on a defamation claim.

http://www.nytimes.com/2015/04/07/business/media/university-of-virginia-fraternity-to-go-after-rolling-stone-for-rape-article.html

Swiss Art Dealer Charged With Fraud Over Alleged Undisclosed Multimillion Dollar Markup

Last year, Russian billionaire Dmitry Rybolovlev purchased an Amedeo Modigliani nude painting, "Nu Couché au Coussin Bleu," from American hedge fund manager Steve Cohen for $118 million... or so he thought.

Much to Mr. Rybolovlev's chagrin, he later learned that according to Mr. Cohen, the sale price was actually $93.5 million. Nine days after learning of the extreme price discrepancy, Mr. Rybololev filed a criminal complaint in Monaco against his supposed friend and art broker, Yves Bouvier of Switzerland, for fraud and money laundering.

Mr. Bouvier, whose relationship with Mr. Rybolovlev dates back to 2003 or 2004, heads a company that stores art, wine and other collectibles in giant climate-controlled warehouses, known as freeports, in Switzerland, Luxembourg and Singapore. Building upon his extensive connection to the art world, Mr. Bouvier also became an art broker/dealer and has sold a total of 40 works to Mr. Rybolovlev (and Cyprus-based trusts owned by his family) over the last decade.

According to the complaint, Mr. Rybolovlev and Mr. Bouvier developed a close friendship, with Mr. Bouvier attending numerous parties thrown by the Russian billionaire across the globe. Mr. Rybolovlev alleges that he entrusted the Swiss broker with handling the verification process and pricing of each work he purchased. He now alleges that Mr. Bouvier took advantage of this trusting relationship by falsifying documents to fraudulently disguise the painting's sale price and take a large cut for himself, on top of the agreed-upon sales commission of 2%.

In Monaco, aggrieved parties can file criminal complaints, which are then forwarded to the police for investigation. If the police establish that the claim is valid, judicial action is commenced. In a scene straight from a crime caper film, Mr. Rybolovlev invited Mr. Bouvier to "chat" regarding payment for the purchase of another painting. Upon arrival, he was arrested by 8 police officers and held on €10 million bail.

In addition to the issue with the Modigliani painting, Mr. Rybolovlev also allegedly discovered an even larger price discrepancy in his purchase of a Leonardo da Vinci painting the year before. In 2013, one of his family's trusts bought the Italian master's "Salvator Mundi" through Mr. Bouvier for $127.5 million. Only later did he discover that the seller received only $75 to $80 million, with Mr. Bouvier presumably pocketing the $45-50 million difference.

Mr. Bouvier asserts that he is not a personal friend of Mr. Rybolovlev and was never an agent or broker, but rather an independent art seller. The distinction is an important one, because the duty owed to a buyer by his representative in a sale is considerably greater than that owed by an independent seller. "I've never been a broker," Mr. Bouvier said, "my company was the seller [...] and the alleged commissions are not commissions but administrative costs."

http://www.nytimes.com/2015/04/05/business/a-multimillion-dollar-markup-on-a-modigliani.html
http://www.forbes.com/sites/afontevecchia/2015/03/12/steve-cohens-modigliani-in-the-middle-of-an-art-market-war-billionaire-rybolovlev-vs-yves-bouvier/

Court Grants Injunction Preventing "Rampage" Jackson From Participating in Ultimate Fighting Championship Event

This week, a New Jersey state court judge granted a preliminary injunction preventing former Ultimate Fighting Championship (UFC) Light Heavyweight champion Quinton "Rampage" Jackson from making his planned return to UFC later this month, due to an existing contractual obligation to a rival promotion.

Mr. Jackson, 36, who participated in UFC from 2006 through 2013, was scheduled to return to the company for its April 25th pay-per-view event, "UFC 186". However, Mr. Jackson signed a contract with another mixed martial arts (MMA) circuit, Viacom-owned Bellator MMA, in 2013, and that company filed suit in chancery court claiming a breach of that contract. Although Mr. Jackson's return to UFC was announced in December, Bellator did not bring the breach of contract claim until early March.

In court, Mr. Jackson contended that it was in fact Bellator, not he, who was in breach. According to Mr. Jackson, Bellator had failed to properly promote him during his time with the promotion, leaving him free to re-sign with UFC. He also argued that being prohibited from fighting at "UFC 186" would bring his "successful career as an MMA fighter ... to a crushing conclusion" and would "effectively put (him) out of business."

Judge Karen L. Suter of the Superior Court of Burlington County (NJ) disagreed, and granted the injunction this past Tuesday. In her ruling, Judge Suter pointed to the strict language of Mr. Jackson's Bellator contract. She determined that despite Mr. Jackson's concerns, he "was aware of the extent and duration of the exclusivity provisions of the (Bellator) agreement." She continued, "Allowing (Mr. Jackson) to participate in the UFC match will deprive (Bellator) of having a well-known and successful fighter in its league, a benefit for which it was entitled ... and confer this benefit upon its primary competitor." Judge Suter also noted favorably that Bellator had pledged to arrange future fights for Mr. Jackson consistent with their existing agreement.

UFC announced on Friday that in the wake of the ruling another fighter, Steve Bosse, will replace Mr. Jackson at "UFC 186". In its statement, the company noted that although Mr. Jackson intends to seek an emergency appeal that would allow him to fight, with the event drawing nearer it was necessary to find a replacement fighter.

In another statement earlier this week, UFC also stressed that it was not at fault for the breach of contract, as Mr. Jackson had represented himself as a free agent when he entered into negotiations for his return to the company.

"The UFC organization was surprised about the ruling because Mr. Jackson represented to UFC on multiple occasions that he was free to negotiate and contract with UFC. The UFC organization is also surprised that Bellator sat on its alleged rights for months before taking action."

UFC also added that it could pursue "action" to protect its rights, though it did not specify against whom.

Unfortunately for UFC, this recent turn of events leaves the company's upcoming pay-per-view event in apparent disarray. In addition to losing Mr. Jackson, UFC has also had to scratch two other heavily anticipated bouts originally scheduled for "UFC 186", including the original main event. One cancellation was due to an injury and the other the result of a fighter failing a post-match drug test from an earlier event.

http://www.foxsports.com/ufc/story/preliminary-injunction-granted-quinton-rampage-jackson-pulled-from-ufc-186-040715
http://mmajunkie.com/2015/04/judge-explains-why-she-backed-bellator-in-ruling-against-rampage-jackson
http://www.ufc.com/news/Bosse-to-Debut-against-Maldonado-at-UFC-186

After 25 Years, Indian Supreme Court Allows School Performance of "Jesus Christ Superstar"

Twenty-five years after initially appealing a local government ban on a high school performance of "Jesus Christ Superstar," an Indian educator has succeeded in convincing the country's Supreme Court to allow the rock opera to go forward.

In 1990, students at Corpus Christi High School in Kottayam, a district in the southern Indian state of Kerala, staged the first of two planned performances of the Andrew Lloyd Webber/Tim Rice musical. The second performance was called off, however, under a "temporary" ban issued by district authorities. The administration's rationale was that the rock opera could offend religious minorities and incite a breach of the peace.

Indian educator Mary Roy, who founded the school, immediately filed an appeal. The Supreme Court allowed the play to be performed once more the following year despite the ban, but the case has lingered in the courts ever since.

The original decision to ban the religious musical reflects a tendency in India to suppress potentially offensive material. Just last month, in fact, a court blocked the broadcast of "India's Daughter," a BBC documentary about a gang rape.

This week, the "Jesus Christ Superstar" case finally came to a close when the Supreme Court ruled that the show could go on. Attorney Shridhar Chitale, who advocated in favor of lifting the ban on the play, noted: "The play has been shown in other parts of India, in other parts of the world, including the Vatican. Why should it be banned in one district? You could sit in Kottayam district and access the play online."

http://www.nytimes.com/2015/04/09/world/asia/after-a-quarter-century-of-legal-wrangling-in-india-a-rock-opera-can-go-on.html

Heirs of French Art Dealer To Benefit From Sale of Nazi-Stolen Monet

Under the terms of a restitution agreement with the consignor of a Claude Monet painting seized by Nazis during World War II, the painting's rightful owner's heirs will receive an undisclosed amount of compensation from its sale by Christie's this May. The oil on canvas painting, "Haystacks at Giverny," was owned by René Gimpel, a Jewish French art dealer, until he was detained by Vichy forces and deported to a German concentration camp during the war. By 1967, it had entered a private collection in Switzerland, and is now expected to fetch between $12 million and $18 million at auction.

Mr. Gimpel's grandson, also named René, 67, says the painting is listed in grandfather's records as of 1931. The elder Mr. Gimpel lost his entire collection when he was sent to Neuengamme concentration camp, where he died.

The family has also reached restitution agreements on two other artworks owned by Mr. Gimpel, including a Thomas Gansborough portrait which sold for $31,400 at auction last year.

http://artsbeat.blogs.nytimes.com/2015/04/09/heirs-to-french-art-dealer-may-benefit-from-sale-of-monet-lost-during-world-war-ii/?_r=0

April 4, 2015

Distributor Hits Drake With Libel Lawsuit After Denouncing Upcoming Concert Film

By Adam Freedman

On March 19th, the distributor of the concert movie Drake's Homecoming: The Lost Footage, reportedly served Drake with a libel lawsuit after the multi-platinum artist took to social media to publicly denounce the film only a few days before its release. (Kennedy, John. "Distributor Sues Drake for Disavowing Concert Film." Global News Distributor Sues Drake for Disavowing Concert Film. March 19, 2015. http://globalnews.ca/news/1891438/distributor-sues-drake-for-disavowing-concert-film/.) The film's distributor, Specticast, is seeking damages and a declaration from the court confirming that the film's release was authorized.

The film depicts a 2009 sold-out concert performance in Toronto. Shortly after the show, Drake was signed to Lil Wayne's Young Money label and became a global superstar. However, the issue arose on March 16th, 2015, when Drake publicly disavowed any connection with the film by tweeting: "The Drake Homecoming film is not something OVO or Drake have any part in. I feel it is my responsibility to inform and protect my fans." (Id.) Drake continued to post further tweets using the hashtag #ProtectTheFans. (Id.) Specticast alleges that Drake's statements are false, and the rapper has harmed the value of the movie by encouraging his 21 million Twitter followers to boycott its release.

According to documents obtained by the Los Angeles Times, Drake signed a contract with Serious Entertainment, the promoters of the concert detailed in movie, in which he agreed to the concert's filming alongside a $15,000 cash fee and a 15% royalty on the film's profits. (Kennedy, Gerrick. "Drake, Producers Battling over 'Homecoming' Film Days before Release." Los Angeles Times. March 16, 2015. http://www.latimes.com/entertainment/music/posts/la-et-ms-drake-producers-disputing-homecoming-concert-film-20150316-story.html.) The contract also stipulated that, should Drake's 2009 concert sell out, he would be required to play another show for $5,000. (Id.) This second show has yet to take place. (Id.)

Under this set of facts, if Specticast can produce an enforceable contract, the distributor will have a strong case for libel. New York courts have explained that, "Under New York law, the elements of a defamation claim are a false statement, published without privilege or authorization to a third party, constituting fault . . . and it must neither cause special harm or constitute defamation per se." (Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 164, 169 (2d Cir. 2003).)

A statement is defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him." (Restatement (Second) of Torts § 566.) Furthermore, a statement can only be defamatory if it includes a statement of fact, rather than opinion. (Id.) Drake's statements here allege facts -- that he never authorized the movie -- and Specticast's actions should deter third parties from associating with the company professionally.

Secondly, publication generally requires the written communication of a libel to a person other than the one defamed. <(em>Stella v. James J. Farley Assn., 122 N.Y.S.2d 322, 204 Misc. 998 (N.Y. Sup. Ct., 1953).) New York courts have already held that social media posts satisfy the publication requirement. (Angelotti, Ellyn. "How Courtney Love and U.S.'s First Twitter Libel Trial Could Impact Journalists." Poynter. January 14, 2014.) Here, Drake's tweets communicated the relevant facts to his fans, in a matter that they understood, making them analogous to other forms of written publication.

Third, Specticast's general theory is that Drake acted recklessly in publishing these tweets; Drake had a disregard for their truthfulness. Through public statements by representatives of Specticast, the company has already speculated that Drake knows that he is wrong, and he's simply trying to strong-arm them to prevent them from showing the film. (Kennedy, John. "Distributor Sues Drake for Disavowing Concert Film." Global News Distributor Sues Drake for Disavowing Concert Film. March 19, 2015. http://globalnews.ca/news/1891438/distributor-sues-drake-for-disavowing-concert-film/.)

The biggest issue will be for the plaintiffs to actually establish a concrete amount of damages that were caused by Drake's tweets. There is no set formula for valuing one's social media followers, and it will be a difficult task to determine whether Drake's statements proximately caused anyone to avoid seeing the movie as well. However, if the statement is found to be libel per se, then they will not have to prove damages, and may be awarded general damages.

A publication is libelous per se if it tends to subject one to hatred, distrust, ridicule, contempt or disgrace, or tends to injure one in his trade or profession, or if it imputes to another conduct, characteristics, or a condition incompatible with proper exercise of his lawful business, trade, profession or office. (Iiuffine v. South Shore Press, 2012 NY Slip Op 30169 (N.Y. Sup. Ct., 2012).)

In the case of Rinaldi v. Holt, Rinehart & Winston, Inc., a New York judge sued the Village Voice and its advertising agency for libel, after a Village Voice writer included Judge Rinaldi in its article entitled "The 10 Worst Judges in New York." (Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369 (N.Y., 1977).) The court explained that the plaintiff had a strong case for libel per se, however, judges are considered public figures under New York law, therefore he must prove the additional element that the defamatory statement was published with actual malice. (Id.) Judge Rinaldi could not prove actual malice because the court determined that the article at issue was either opinion or a reasonable conclusion drawn from facts. (Id.)

Just as the statements in Rinaldi alleged that Judge Rinaldi could not serve reputably in his position, Drake's statements imply that Specticast is an unscrupulous business entity, presumably injuring Specticast in its business. Most likely, Specticast will not be found to be a public figure, nor will this be considered a matter of public concern, thereby not implicating the "actual malice" requirement. The issue of whether Drake authorized the film has no effect on the public.

The movie already premiered, so Specticast will likely pursue a negligence per se theory, due to the apparent difficulty in calculating damages. However, the case between Specticast and Drake will most likely settle, even though Drake presumably has greater financial means to survive a long drawn-out legal battle. However, the key elements of libel cases have yet to fully evolve to meet the realities of Twitter and social media, raising a host of additional questions, including:

- How will the courts determine status (who is a public figure) in the context of Twitter? What role does the number of followers play in determining this?

- What is "a matter of public concern" in the context of Twitter?

- What do the remedies for defamation look like in the age of Twitter? How can free speech be encouraged while deterring defamatory speech on Twitter?

Given that Specticast claims it can produce the original, enforceable contract, this only brings up more questions about Drake's motivation behind attacking the film. Does Drake really believe the film was unauthorized? Interestingly, Drake announced his OVO Music Festival on March 20th, and critics have speculated that this entire incident was simply intended to draw more attention around the festival.

Week In Review

By Chris Helsel

National Football League Successfully Sues For Right to View Photos of Relevant Evidence Before Determining Greg Hardy Punishment

It appears the National Football League (NFL, league) does not intend to make the same mistake twice. After receiving heavy criticism for its failure to fully investigate the circumstances of former Baltimore Ravens running back Ray Rice's domestic assault arrest prior to levying (and then drastically altering) punishment under the league's personal conduct policy, the NFL has now adopted a new approach: legal action to ensure full disclosure before making any disciplinary decisions.

In July of last year, star defensive end Greg Hardy, then of the Carolina Panthers, was found guilty by a Mecklenburg County (N.C.) judge of assaulting and threatening to kill his former girlfriend, Nicole Holder. The victim's account of the details of the case are quite disturbing. According to Ms. Holder, on May 13, 2014 at Mr. Hardy's apartment, Mr. Hardy picked her up and threw her into his bathtub. He then allegedly dragged her from the tub into his bedroom and choked her both hands while threatening to kill her. She claimed that Mr. Hardy then picked her up over his head and threw her onto the bed, which was covered with assault rifles and shotguns that he bragged were loaded. Ms. Holder was eventually allowed to escape and went immediately to the police.

Mr. Hardy immediately appealed his conviction. After playing in one game, he was deactivated by the Panthers for the remainder of the season and placed on the Commissioner's Exempt List. During this time, despite being ineligible to practice or play, he collected his annual salary of $13.1 million.

The July verdict was set aside under North Carolina law when Mr. Hardy requested a jury trial. However, all charges against the player were subsequently dropped when Ms. Holder refused to cooperate in the investigation after receiving a financial settlement from Mr. Hardy.

According to Mr. Hardy, he should now be eligible to play immediately, due to his "exoneration" in the case involving his assault of Ms. Holder. Under NFL rules, however, conduct policy violations do not require a criminal conviction. For instance, Pittsburgh Steelers quarterback Ben Roethlisberger was suspended for six games (the maximum allowed under the policy) in 2010 over an alleged sexual assault, despite the prosecutor's decision not to bring charges.

Clearly, the NFL does not wish to allow Mr. Hardy to escape discipline for his actions. Following the dismissal of charges, the league filed suit against the state of North Carolina seeking access to seven photographs of the victim's injuries, guns in Mr. Hardy's apartment and other evidence from the July 2014 bench trial in which he was found guilty. According to the complaint, the seven photographs were introduced at trial but the league could not access them because they were not included in the police investigative file.

On Wednesday of this week, a Mecklenburg County judge signed a protective order that will allow the NFL, the NFLPA (players union), Mr. Hardy and his attorney to view the photographs in question without the district attorney's office relinquishing custody of them. This access will allow the league to further build its case in support of suspending Mr. Hardy under the conduct policy. Mr. Hardy faces a maximum suspension of six games (of a 16-game season).

Last month, Mr. Hardy signed a one-year contract with the Dallas Cowboys. The contract includes a base salary of $11.3 million ($13.1 million including incentives) and a stipulation that the club will withhold $578,125 for each game he misses due to suspension.

http://espn.go.com/nfl/story/_/id/12599181/in-greg-hardy-investigation-nfl-gets-access-photos-nicole-holder

Singer Judith Hill Sues Producer in New York; Producer Responds By Suing Prince in Los Angeles

Music icon Prince has been sued by a producer for the singer Judith Hill after he sent a free download link to Ms. Hill's debut album to his mailing list. Ms. Hill, however, does not support her producer's lawsuit and has sided with Prince in the dispute.

The underlying issue arose when Ms. Hill, who is a former backup singer for Michael Jackson and has appeared on the television show "The Voice," began collaborating musically with Prince, despite allegedly still being under contract with producer Jolene Cherry. Ms. Cherry alleges that in doing so, Ms. Hill violated her exclusive contract.

According to the Ms. Cherry, Ms. Hill sought permission to record with Prince, which was denied. She then allegedly brought music on which she and Ms. Cherry had been working to Prince, who collaborated with the up-and-coming singer and released the music for free online.

Ms. Cherry has now brought suit against Prince in Los Angeles County Superior Court (Ms. Hill is not named as a defendant). In the complaint, Ms. Cherry alleges that "the people who paid hundreds of thousands of dollars to develop her career and album and worked to position Hill for her first release (as well as those who co-wrote many of the songs) are sitting dumbfounded on the sidelines while Prince gives away their investment for free."

The suit accuses Prince of tortuously interfering with the contract between Ms. Hill and Ms. Cherry and seeks unspecified compensation and punitive damages. The suit contends that Prince's free release of the album online made it economically unfeasible for Ms. Cherry to ever release the album.

While Ms. Hill is not named in Ms. Cherry's Los Angeles suit, she herself has also brought an action seeking to confirm that she had the right to collaborate with the "Purple Rain" singer. On March 25th (prior to Ms. Cherry's action), Ms. Hill brought suit against Ms. Cherry in New York Supreme Court.

Ms. Hill's attorney, Peter Haviland, said in a statement: "This (Los Angeles) lawsuit is crazy. Prince has done absolutely nothing wrong. Judith Hill was and is absolutely free to perform her music as she has done. She sued in New York on March 25 to confirm that she was free and to stop Cherry from continuing to bother her. Now in response Cherry counter-sues, in Los Angeles - improperly - even though a case is already pending against Cherry in New York."

Ms. Hill's suit alleges that Sony Music cut ties with Ms. Cherry's company, The Cherry Party, several months ago and that Ms. Cherry soon thereafter severed her contract with Ms. Hill. At that point, says the complaint, Ms. Hill became "an independent artist, not bound by contract to anyone."

Curiously, the New York suit also alleges that (presumably because she was upset over Ms. Hill's collaboration with Prince, and/or Sony's decision to end their relationship) Ms. Cherry purposefully conspired against Ms. Hill by planting a story to the gossip-news site TMZ that she had recorded a love song dedicated to North Korean Supreme Leader Kim Jong-Un.

In a statement, Mr. Haviland declared that Ms. Cherry's Los Angeles suit was "nothing but a publicity stunt." He continued, "It is a shame that Prince has been dragged into this insanity. But Judith Hill will not be deterred from performing her music by the likes of some Jolene Cherry."

http://www.rollingstone.com/music/news/prince-sued-over-judith-hills-debut-album-download-20150328
http://www.theguardian.com/music/2015/mar/30/prince-embroiled-in-lawsuit-over-collaboration-with-voice-contestant

"Three's Company"-Inspired Off Broadway Play Wins Suit

On Tuesday, Judge Loretta A. Preska of the Southern District ruled that "3C," an Off Broadway reimagined version of the sitcom "Three's Company," did not infringe the show's copyright. The play, which ran for two months at Rattlestick Playwrights Theater in 2012, featured a similar plot to the hit TV show but included some darker elements, including profane language and sexual situations.

On the play's opening night, its writer received a cease and desist letter from DLT Entertainment, which holds the copyright to "Three's Company." The writer, David Adjmi, says that he continued to run the show but was unable to license it for other publications or publish the script due to the threat of litigation. Negotiations were unsuccessful and Mr. Adjmi ultimately sued DLT in federal court seeking to resolve the issue.

In her decision, Judge Preska concluded that while "3C" did borrow heavily from "Three's Company," the play represented a "drastic departure" from the TV show. She determined that the play was "a highly transformative parody of the television series", which posed "little risk to the market for the original."

Following the ruling, DLT president Donald Taffner Jr. said in a statement that the company was "surprised and disappointed" by the ruling and would be "reviewing our options." He also complained that the decision was made prior to discovery and without the court having a chance to actually view the play, either live or on tape.

http://www.nytimes.com/2015/04/02/theater/play-reimagining-threes-company-wins-case.html

Dutch Royal Family To Return Nazi-Stolen Painting to Rightful Owners

In November 2013, Queen Maxima of the Netherlands commissioned a review of thousands of paintings acquired by the Dutch royal family since 1933 in order to verify their provenance and identify any works that were improperly seized by Nazi forces prior to and during World War II. This week, it was announced that two paintings raised suspicions, one of which was verified to have been obtained improperly and will be returned to its rightful owners.

The painting to be returned is a realistic depiction of the Hague forest by the Dutch Golden Age painter Joris van der Haagen from the 17th century. Records uncovered by investigators revealed that the painting had been stored in the Lippman, Rosenthal & Company bank in Amsterdam, where Nazi officials forced Dutch Jews to deposit their valuables prior to their deportation to concentration camps during World War II. The painting was subsequently purchased by Queen Juliana from an art dealer in 1960 "without knowledge of the provenance." Since then, it has hung in the royal family's private residence, Noordeinde Palace. Following the review, Queen Maxima announced that it will be returned to its rightful owners, who have chosen to remain anonymous.

Another painting, "Landscape with Saint Hubertus" by the 16th-century artist Paul Bril, also raised suspicions but will not be returned. The painting was purchased in 1948 by Queen Juliana from Hans Fischböck, an Austrian banker who was an SS officer and the Third Reich's finance minister in Holland during the war. Mr. Fischböck, who fled to Argentina after the war, was in charge of seizing property from Dutch Jews during his time in the country.

Investigators believe that the painting belonged to Henri Joseph Gosschalk, a Jewish Dutch painter and concentration camp survivor. However, although Mr. Gosschalk previously recovered other paintings he was forced to deposit at the Lippman bank, he never declared the loss of the Bril painting and investigators were unable to date his ownership of the work. Regarding the Bril painting, the review concluded that "archives are inconclusive about who was the owner of the painting around the end of 1939 and beginning of 1940."

http://artsbeat.blogs.nytimes.com/2015/04/01/dutch-royal-family-acts-quickly-after-looted-painting-is-found/?_r=0

University of Kentucky Claims Exclusive Right to '40-0," Despite Vendor's Trademark

Entering this weekend's National Collegiate Athletic Association (NCAA) Final Four action, the University of Kentucky (university, UK) men's basketball team has played 38 games - and lost none of them. They have already won more games in a row to start a season than any team in college basketball history, and can cap the first Division 1 undefeated season since 1976 with just two more wins.

This fact has not gone unnoticed by those seeking to profit from the mark "40-0" - that is, 40 wins and zero losses. In October 2013, Louisville attorney David Son filed for his company, 40-0 LLC, to be incorporated in Kentucky. That was the same time, he claims, that he sold his first t-shirt with the "40-0" mark on it via his website, 40and0.com. The company was dissolved in August 2014, but Mr. Son applied for and was approved to have the company reinstated on March 9th of this year. He also filed for the "40-0" trademark in February.

Now, as the Wildcats stand on the precipice of becoming the first 40-0 team in NCAA basketball history, the university is seeking to prevent Mr. Son or anyone else from using the "40-0" mark in connection with the school. Last week, it sent a cease-and-desist letter to Mr. Son, who is selling blue-and-white (the school's colors) t-shirts and other apparel with the mark on his website.

The website, which describes its products as "Fan-Made Free Speech Wear," also sells 40-0 clothing in other colors. Notably, however, the first seven (of nine) products currently advertised on the site feature the blue-and-white color scheme.

The site explicitly states that it is "not affiliated with any university or professional organization."

Jim Aronowitz, general counsel of the university's licensing agent, Fermata Partners, told ESPN: "We are well aware of third parties attempting to capitalize on the historic season of the University of Kentucky men's basketball team. As the University's licensing agent, we are working to vigorously protect UK's trademark rights in the marketplace from those that use the institution's indicia without permission."

Mr. Son's attorney, Brian McGraw, on the other hand, believes his client has done nothing wrong. "My client took all the steps he needed to take to establish ownership of 40-0," he said. "There's no evidence that the University of Kentucky owns any rights to 40-0." Mr. McGraw also said that his client would have no problem if "40-0" appeared on official UK merchandise, but "Where we would draw the line is if the school started using '40-0' as a stand-alone brand instead of just the matter-of-fact record of the team."

Interestingly, aside from the cease-and-desist letter the university has made no effort to specifically trademark "40-0." They instead contend that Mr. Son's sale of "40-0" products in Kentucky colors improperly trades upon the university's brand without permission.

As it stands, any legal action is not yet ripe - 38-0 is, after all, not 40-0. If the Wildcats can manage to triumph over Wisconsin on Saturday and either Duke or Michigan State Monday night, however, this dispute may well reach the courts. Stay tuned.

http://espn.go.com/mens-college-basketball/tournament/2015/story/_/id/12599747/kentucky-wildcats-lawyer-odds-40-0-trademark

April 2, 2015

The Center for Art Law Case Updates

Hashiguchi v. Bischof & Bischof PLLC, 2015 WL 1156767, (Sup. Ct. N.Y. Cty. Mar. 16, 2015) -- Masahiro Hashiguchi, the executor of the estate of the late art collector Robert Ellsworth, has filed suit in state court in New York against the attorney (and the attorney's law firm) who drafted the deceased's will, alleging that the defendants did so negligently, resulting in the estate being taxed for $25 million. If the will were drafted with the requisite care, Hashiguchi alleges, the tax could have been deducted.

Keck v. FX Networks, 2015 WL 1204829 (S.D.N.Y. March 17, 2015) -- Indiana painter Leah Michelle Keck has filed suit against FX and 20th Century Fox in the Southern District of New York alleging three of her paintings were copied and used in FX's animated show "Archer." The paintings appear in the background on an office wall as part of the show's set design. Keck is seeking up to $150,000 in damages for the alleged copyright infringement.

Meyer v. Bd. of Regents of the Univ. of Okla., 2015 U.S. App. (2d Cir., Mar. 12, 2015) -- On March 12, 2015 in Manhattan, the United States Court of Appeals for the Second Circuit ordered a lower court judge to rule on whether a lawsuit she dismissed, involving an alleged Holocaust era looted work currently located in Oklahoma, should be transferred to Oklahoma for further process.

McKenzie v. Fishko, 2015 WL 685927 (S.D.N.Y. Feb. 13, 2015) -- The Southern District of New York recently struck down all of Connecticut financial executive Richard McKenzie's claims against Manhattan's Forum Gallery and its proprietor, Richard Fishko. McKenzie alleged that Fishko defrauded him into buying $570,000 worth of fake art for his foundation which seeks to inspire fledgling artists partly by displaying works by famous artists. The court ruled against his claims for fraud, breach of contract and breach of fiduciary duty, saying that McKenzie did not nearly meet the "clear and convincing" standard required to show fraud.

The Center for Art Law strives to create a coherent community for all those interested in law and the arts. Positioned as a centralized resource for art and cultural heritage law, it serves as a portal to connect artists and students, academics and legal practitioners, collectors and dealers, government officials and others in the field. In addition to the weekly newsletter (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/events/). The Center for Art Law welcomes inquiries and announcements from firms, universities and student organizations about recent publications, pending cases, upcoming events, current research and job and externship opportunities. To contact the Center for Art Law, visit our website at: www.itsartlaw.com or write to itsartlaw@gmail.com.