May 11, 2015

Attorneys, Agents and Managers in the Entertainment Industry: Roles and Relationships

Wednesday, May 20, 2015 | 6:00 PM - 9:00 PM | Member: $229/Nonmember: $329

Don't miss next week's CLE, Attorneys, Agents and Managers in the Entertainment Industry: Roles and Relationships ( Join our panel of attorneys, agents and managers involved in film, television, music, theater and publishing, who will each offer perspective on their overlapping roles in the entertainment industry.

This valuable program will examine how attorneys, agents and managers work together in different media, how their roles are complementary, and occasionally in conflict.

Topics Covered Will Include:

Agents and Managers in Different Media
The Role of the Guilds: Franchised Agents
Talent Agency Licensing and Litigation: New York and California
Attorneys, Agents and Managers: Working Together, Wearing Different Hats, and Ethical Issues and Implications
Hear from Program Co-Chairs, Judith B. Bass, Law Offices of Judith B. Bass, Alicia Glekas Everett, William Morris Endeavor Entertainment, LLC, and Jaime Wolf, Pelosi Wolf Effron & Spates LLP at this lively and interactive program - REGISTER NOW. For more information, or to view the program agenda, please click here.

Sponsoring Association Committee: Entertainment Law, Judith B. Bass, Chair

CLE Credit: New York: 2.0 Professional Practice & 1.0 Ethics; New Jersey: 2.3 General MCLE & 1.0 Professional Responsibility; California: 2.0 General MCLE & 1.0 Professional Responsibility; Pennsylvania: 1.5 General MCLE & 0.5 Professional Responsibility

This live program provides transitional/non-transitional credit to all attorneys.

Can't make it? Join us online with our convenient Live Webcast.
Watch Live via Casemaker (

For any questions or to register by phone please call 212-382-6663 and use Regcode ENTEM3.
Discounts will be granted to attorneys working for government agencies, public interest groups, full-time students and full-time academics.

City Bar Center for CLE

Week In Review

By Chris Helsel

Undisclosed Manny Pacquiao Injury Spurs Slew of Lawsuits

Last weekend's record-shattering Welterweight boxing title fight between Floyd Mayweather and Manny Pacquiao, dubbed "The Fight of the Century," failed to live up to many viewers' expectations. Several of these disappointed customers are now bringing their qualms to their local courthouses.

In the ring, Mr. Mayweather emerged victorious in a 12-round unanimous decision. In the week that has followed, a total of 13 lawsuits have been filed by disgruntled viewers after the revelation that Mr. Pacquiao failed to disclose an existing shoulder injury prior to the bout.

The controversy stems from a prefight questionnaire Mr. Pacquiao filled out for the Nevada State Athletic Commission, on which the Filipino boxer checked the "no" box in response to the question, "Have you had any injury to your shoulders, elbows or hands that needed evaluation or examination?" In fact, Mr. Pacquiao had injured his rotator cuff during training and was receiving treatment, a detail not admitted until after the fight. Following the bout, Mr. Pacquiao indicated that although the injury had been healing well, he reinjured his shoulder during the fourth round, after which time his right hand was mostly ineffective. He estimated that going into the fight, he was fighting at only 60% of where he would normally be.

Mr. Pacquiao had surgery to repair his rotator cuff earlier this week, and is expected to make a full recovery in time for a possible rematch with Mr. Mayweather in about a year's time. No rematch has been officially announced, but both parties have indicated a willingness to entertain the idea.

Of the 13 suits, five seek class certification on behalf of pay-per-view subscribers who feel they were duped. All of the class actions seek more than $5 million in damages and claim that those who paid to witness a fair fight were defrauded under various states' deceptive trades acts.

Paul Mahoney, who paid $99.95 to watch the fight, brought suit in California state court this week, alleging that "Pacquiao's injury unquestionably materially, significantly and negatively affected the quality of the product."

The first suit filed, which was brought on Tuesday in Nevada state court, also seeks compensation for ticket buyers and even gamblers who laid bets on Mr. Pacquiao without knowledge of his ailing shoulder.

Another suit, filed in Illinois, names not only Mr. Pacquiao, his manager and promotion company, but also Mr. Mayweather, his production company, fight producers HBO and Showtime and pay-per-view providers AT&T, Comcast and DirecTV - all of whom, the suit alleges, were implicit in perpetrating the fraud. Said the attorney for the Illinois plaintiffs, "Our state has a law that prohibits concealing or misrepresenting material information with consumers and, within the context of boxing, Manny Pacquiao's shoulder injury is a material fact."

Now, the courts must decide whether consumers pay specifically for a fair fight or whether they simply pony up to see the fight to take place.

For their parts, Mr. Pacquiao and Mr. Mayweather (and the cable companies, and everyone else involved) had great incentive to go forward with the bout despite the injury. The fight produced an estimated $72 million in arena ticket sales, $15 million in closed-circuit ticket sales and $300 million in pay-per-view revenue, with Mr. Mayweather and Mr. Pacquiao themselves expected to rake in $180 million and $120 million, respectively, for their efforts.

In addition to the lawsuits, Mr. Pacquiao also faces possible sanctions from the Nevada Athletic Commission for his failure to disclose the injury.

Finally, the megafight has also garnered another unrelated lawsuit. This one, filed in Missouri, seeks damages from Charter Communications stemming from a cable outage that prevented St. Louis-area pay-per-view subscribers from viewing the fight for which they paid.

National Football League's Wells Report Finds That Patriots QB Brady Was "Probably" Aware of Ball-Deflating Scheme

As discussed in a previous edition of "Week in Review," the New England Patriots (Patriots, club) of the National Football League (NFL, league) came under fire following its 2015 American Football Conference (AFC) championship victory over the Indianapolis Colts in January for allegedly tampering with the game balls used while its offense was on the field. Specifically, the team was accused of deflating the balls below the level allowed under league rules in order to allow star quarterback Tom Brady to achieve a firmer grip.

Now, an exhaustive NFL-ordered report by Paul Weiss partner Ted Wells has found that a preponderance of the evidence suggests that the club did in fact deliberately and improperly manipulate the game balls - and that Mr. Brady was probably in on the scheme.

The issue first came to the NFL's attention one day prior to the game, when Colts general manager Ryan Grigson sent an email to league officials asserting that the Patriots' practice of tampering with game balls was well known. Apparently, the Colts became aware of the issue during the team's 2014 regular season matchup, when a Colts defender who intercepted two of Mr. Brady's passes reported that the balls felt "spongy or soft when squeezed." Mr. Grigson's email contended that "it is well known around the league that after the Patriots' game balls are checked by the officials and brought out for game usage the ballboys for the [P]atriots will let out some air with a ball needle because their quarterback likes a smaller football so he can grip it better." The email also requested that the Patriots' balls be checked for proper inflation throughout the course of the game.

Prior to the game, the referees checked and verified the air pressure of the game balls provided by both teams. According to the report, after the officials' inspection but prior to kickoff, Patriots locker room attendant Jim McNally broke protocol by heading out to the field, alone, with the bag of approved balls. On his way, security video footage shows him ducking into a small bathroom with the bag and remaining inside the locked room for 90 seconds.

At halftime, the balls were re-tested. Ten of the 11 balls provided by the Patriots were found to be under-inflated.

The story broke the next day. In the days that followed, Mr. Brady, Patriots head coach Bill Belichick and team owner Robert Kraft all vehemently denied any wrongdoing, with Mr. Kraft in particular stating that he expected an apology from the league office for the unfounded allegations.

The NFL then commissioned Ted Wells, a prominent litigator based in New York, to conduct an investigation. The 243-page Wells Report was finally released this week. In the report, Mr. Wells identifies Mr. McNally and Patriots equipment assistant John Jastremski as the main culprits in the scheme.

The report points to Mr. Jastremski's cell phone records, which include text message conversations with Mr. Brady and Mr. McNally, as evidence of the ball-tampering scheme. In message to Mr. Jastremski, Mr. McNally refers to himself as "the deflator." In another exchange, Mr. McNally, who was apparently frustrated with Mr. Brady's insistence that the balls be perfect, vowed to Mr. Jastremski that "the only thing deflating Sun(day)... is his passing rating."

During a game in October, Mr. Jastremski texted Mr. McNally to tell him that "Tom (Brady) is acting crazy about balls." The following morning, Mr. McNally wrote to Mr. Jastremski, "Tom sucks...I'm going (to) make that next ball a (expletive) balloon." To this, Mr. Jastremski replied, "Talked to (Mr. Brady) last night. He actually brought you up and said you must have a lot of stress trying to get that done."

When speaking with investigators, Mr. Brady claimed not to know who Mr. McNally was - a narrative that the above texts make very difficult to believe.

Additionally, despite no telephone or text communication between the two during the previous six months, Mr. Brady and Mr. Jastremski traded numerous messages and spoke on the phone six times over a three-day period immediately after suspicions of ball tampering became public on January 19th. In one exchange, Mr. Brady asks Mr. Jastremski, "You good Jonny boy?" to which Mr. Jastremski responds, "Still nervous; so far so good, though." That same day, Mr. Jastremski and Mr. McNally spoke on the phone for nearly an hour.

Mr. Jastremski's cell phone, which is the property of the Patriots, was made available to investigators by the club. Mr. Brady, however, refused to provide his personal phone records, which was noted with disfavor by the report. The NFL investigators, without subpoena power, could not legally compel Mr. Brady to hand over his phone.

Ultimately, the Wells Report concludes that it is "more probable than not" that Mr. Jastremski and Mr. McNally "were involved in a deliberate effort to circumvent the rules by releasing air from Patriots game balls after the examination of the footballs by NFL game officials at the AFC Championship Game" and that "it is unlikely that an equipment assistant and a locker room attendant would deflate game balls without Brady's knowledge and approval."

The question now is how NFL commissioner Roger Goodell will choose to discipline Mr. Brady and/or the Patriots organization. The NFL proudly goes to great lengths to ensure that the integrity of its on-field product is not compromised, and that no team or player can circumvent the rules to gain an unfair advantage - no matter how slight that edge may be. In keeping with those efforts, the league often issues heavy-handed punishments even for seemingly minor infractions which could affect the public's trust in the integrity of the sport. For instance, in 2007 the Patriots and head coach Bill Belichick were fined a total of $750,000 and stripped of a first round draft pick for illicitly filming the New York Jets' sideline defensive signals.

According to media reports, the NFL is expected to respond to the Wells Report sometime next week. It is expected that the punishment handed down will be stern and swift - and then followed by the inevitable appeal and likely appointment of a neutral arbitrator to finally decide the matter. Possible punishments include fines, loss of draft picks, or suspension. While most pundits are predicting that Mr. Brady will be suspended for four games or so (out of a 16-game season), a league source indicated this week that he could be suspended for up to a full year. "Everything is being considered," said the source.

In addition to his apparent complicity in the ball deflation scheme, Mr. Brady may also face the wrath of the commissioner for his refusal to fully cooperate with the investigation, as noted above. While Mr. Brady's agent explained to the media that the quarterback's decision to withhold his personal phone records was for fear of setting a dangerous precedent, league rules require complete cooperation with investigations. Specifically, the NFL's Policy on Integrity of the Game & Enforcement of Competitive Rules states, "Failure to cooperate in an investigation shall be considered conduct detrimental to the League and will subject the offending club and responsible individual(s) to appropriate discipline."

Mark Ronson/Bruno Mars Hit "Uptown Funk" Adds Five Writing Credits

Following the March jury verdict awarding the family of Marvin Gaye over $7 million from the "Blurred Lines" writing team for using elements of Mr. Gaye's "Got to Give it Up" without permission, industry commentators expressed concern that the decision might kick off a rash of legal battles over contemporary songs borrowing their sounds from the hits of yesteryear.

Now, in an apparent attempt to avoid similar litigation, another recent chart-topping tune has tacked on additional writing credits to acknowledge the inspiration provided by a golden oldie. On Friday, the record label RCA officially added five writing credits to the recent Mark Ronson smash hit "Uptown Funk," which features Bruno Mars on vocals. The added writers penned the Gap Band's 1979 track "I Don't Believe You Want to Get Up and Dance (Oops, Up Side Your Head)," which features a similar sound to "Uptown Funk." The five new writers join the six already credited, bringing the total to a whopping 11 for the four-minute song.

The decision to award the additional writing credits resembles the January agreement among Sam Smith, Tom Petty and Jeff Lynne to grant the latter two artists writing credits for Mr. Smith's 2014 hit "Stay With Me," which featured a similar chord progression to Mr. Petty's 1989 track "I Won't Back Down."

RCA and representatives for Mr. Ronson declined to comment, but the manager of one of the originally-credited writers described the reason for adding five writers to "Uptown Funk" thusly: "Everyone is being a little more cautious," he said. "Nobody wants to be involved in a lawsuit."

HBO Not Liable for Defamation in Mitre Sports Suit

On Friday, a Manhattan federal jury cleared HBO of defamation claims stemming from a segment on "Real Sports", which accused UK-based soccer ball maker Mitre Sports of exploiting child labor in India.

The segment, entitled "Children of Industry," aired in October 2008 and featured video footage of young Indian children stitching Mitre soccer balls in squalid conditions. According to Mitre, more than a dozen companies produce soccer balls in the region featured in the section - yet only Mitre was named in the HBO exposé. The company also claims that numerous scenes in the segment were staged, with some children even being paid for their "performances."

After the verdict in favor of HBO was announced, jurors noted that they focused heavily on Mitre's boasts regarding its involvement with Sports Goods Foundation of India (SGFI, foundation), a collective whose mission is defined as "the prevention and rehabilitation of child labor in the sporting goods industry." The foundation's project director, Ravi Purewal, stated in a video deposition that SGFI monitors 3,300 families with young laborers to protect against child abuse. The foundation, however, only employs five monitors.

According to one juror, "That's not nearly enough monitors if you really care for the kids. It made us think that the companies in SGFI are more concerned about protecting their profits and that Mitre's more concerned about protecting its reputation (than actually preventing child abuse)."

HBO, which could have faced punitive damages if it had been found liable, celebrated the ruling. "We are delighted with the jury's decision, which confirms what we have said since the beginning of this legal proceeding in the fall of 2008: This case was without merit and the 'Real Sports' reporting was unimpeachable," the company said in a statement.

Center for Art Law Case Updates

The following case selection first appeared in this week's Center for Art Law newsletter:

Cornell University v. Pei Cobb Freed & Partners Architects LLP (N.Y. Sup. Ct. May 2015) -- Cornell University is suing the architecture firm Pei Cobb Freed & Partners LLP and its contractors for the faulty construction of the addition to the university's Herbert F. Johnson Museum of Art. Cornell's art museum was originally designed by I.M. Pei in 1968, and an addition was started in 2009 to accommodate its growing art collection. Cornell alleges that the architectural design and construction of the new addition were inconsistent with industry standards for temperature and humidity specifications to maintain the integrity of its artwork, and that water leaks in the building's roof were left unfixed by the contractors, among other problems. Cornell, represented by Nelson Roth, is suing for architectural malpractice, breach of contract and negligent construction and supervision, and alleges it has suffered at least $1.1 million in damages.

Peter Beard v. Hoerle-Guggenheim Gallery (N.Y. Sup. Ct. May 2015) -- Judge Charles Ramos will decide the case brought by photographer Peter Beard over three photographs that went missing in 2013 and recently reappeared for sale at the Hoerle-Guggenheim gallery in Chelsea. The three photographs, depicting scenes of African elephants with Beard's signature collage effects, were taken without his permission while at a friend's Park Avenue apartment. Reports indicate that the works were sold by Beard's former assistant, Natalie White. Whether she had permission to sell those works depends on a recent settlement reached between White and her former employer in a separate lawsuit.

Nungesser v. Columbia U., et al., 15-cv-03216 (SDNY, Apr.23, 2015) -- Judge Gregory Woods is assigned the case brought by the Columbia University student against the University, its president, and art professor for discrimination. The student alleges that his professional and educational prospects have been ruined by the publicity brought by the university's art student Emma Sulkowicz's "Mattress Performance." Sulkowicz, who says Nungesser raped her on campus, started the campaign in which she carries a mattress with her on campus in protest of the university's handling of her accusation of Nungesser. The complaint accuses the university for letting Sulkowicz earn course credits for the "display of harassment and defamation" and alleges that Nungesser's rights are being violated and his well-being and future prospects are suffering as a result of the campaign.

Britto Central, Inc. v. Craig & Karl, and Apple (United States District Court of Southern District of Florida, April 6, 2015) -- The Artist Romero Britto's company filed a complaint against Apple and designers Craig Redman and Karl Maier in early April in District Court of Southern Florida for allegedly misusing his imagery as part of a marketing campaign showcasing artworks made using Apple products. The plaintiff sued the defendants for unfair competition, copyright infringement, trade dress infringement, and false designation of origin or sponsorship/endorsement, and demands an injunctive relief and damages.

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 (, the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog ( calendar of 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: or write to

May 2, 2015

Week In Review

By Chris Helsel

In Addition to Human Toll, Nepal Earthquake Destroys Countless Cultural Artifacts

The devastating earthquake that struck Nepal claimed the lives of over 6,200 people, with approximately 14,000 injured and thousands more not yet counted. In addition to the enormous toll the earthquake took on human life, the disaster has also destroyed countless historical cultural artifacts.

Numerous ancient temples collapsed or were critically damaged as a result of the quake. Amidst the rubble, onlookers noticed elaborately carved beams from the 17th century being used as ladders by volunteers attempting to locate and rescue those who were trapped inside destroyed buildings. The top official of the United Nations Educational, Scientific and Cultural Organization (UNESCO), Irina Bokova, said this week that she was unaware of any natural disaster that had damaged so much cultural heritage.

Compounding the problem is the rampant looting taking place amidst the chaos. On Monday, a citizen notified Nepal's department of archaeology that he or she had just thwarted an attempt to steal a bronze bell from the roof of a temple in Kathmandu. Although a notice was printed in the next day's newspaper warning that anyone taking artifacts would be punished, in this time of crisis, the country's law enforcement agencies can hardly spare the time and effort necessary to prevent looting.

The Kathmandu Valley was named a World Heritage Site by UNESCO in 1979. Its principal city, the Nepalese capital Kathmandu, was built at the intersection of two trade routes linking China and India and is renowned for its unique blend of cultural heritage sites. It contains a plethora of irreplaceable temples and monasteries, including some dating back to the 7th century.

Obviously, the foremost issue in Nepal at present is the search for survivors and the effort to recover and identify bodies from the rubble. Only after months of cleanup will the full extent of the damage done to the nation's extensive cultural heritage sites be revealed. Bhesh Narayan Dahal, who chairs the Nepalese Archaeology Department, perhaps summed it up best: "I am too much worried," he said. "How can I tell you? I am too much worried. How will we save our heritage?"

National Football League Relinquishes Tax-Exempt Nonprofit Status

The National Football League (NFL, league), which earned revenues of $327 million in 2013, has been qualified as a 501(c)(6) nonprofit since 1942. In a letter to team owners and members of Congress this week, however, NFL commissioner Roger Goodell revealed that such designation will change.

Until now, the NFL has been considered a tax-exempt nonprofit under the federal tax code because it works to promote its industry, like trade groups and business leagues, rather than earn actual profits. However, the NFL's tax-exempt status has long been questioned by the public and criticized by lawmakers, who point to the league's enormous annual revenue. The NFL has historically disputed this contention, pointing out that it is in fact the clubs, not the league itself, that generate the huge profits - and are taxed accordingly.

In his letter announcing the league's decision to relinquish its nonprofit status, Mr. Goodell called the tax exemption a "distraction" that has "been mischaracterized repeatedly", and whose end "will make no material difference to our business." The commissioner reiterated the NFL's long-standing position that "the business of the NFL has never been tax exempt. Every dollar of income generated through television rights fees, licensing agreements, sponsorships, ticket sales, and other means is earned by the 32 clubs and is taxable there."

While many lawmakers have celebrated the league's decision (Sen. Maria Cantwell of Washington called it a "victory for tax payers"), others, such as Sen. Richard Blumenthal of Connecticut, describe it as a mere PR stunt. These critics point out that if it is true that the vast majority of league revenue is produced by the (for-profit) teams and taxed accordingly, as the NFL claims, then virtually nothing will change. The only real difference is that now the NFL will no longer be required to publicly disclose details regarding its inner financial working, such as executive pay.

Among other major professional sports leagues and governing bodies, only the National Hockey League (NHL) and PGA TOUR will remain as nonprofit entities. With its decision to forgo its tax-exempt status, the NFL now joins Major League Baseball, the National Basketball Association and NASCAR among leagues that file as for-profit companies.

Property-Swap Tax Loophole Used by Buyers of High-End Art Faces Scrutiny

As the market for art as investment assets continues to grow, investors continue to find new ways to maximize profits and avoid taxes to the greatest extent possible. The most recent trend in creative tax-avoidance involves an obscure tax provision introduced in the 1920s that meant to ease the burden of farmers who wanted to swap property. Under Section 1031 of the tax code, sellers of real estate, art and other valuable collectibles can delay paying the required 28% capital gains tax by promptly reinvesting the profits into the purchase of a similar parcel or item. These so-called "like-item exchanges" allow investors to withhold tax payment for years, while inflation diminishes the effective cost of the delayed tax. There is no limit on how many times an investor can use this method to defer tax payment.

However, despite the obvious appeal of this system, investors intending to employ it must be wary. To qualify, a purchase must be strictly for investment purposes - that is, not for personal enjoyment. These purchased artworks therefore cannot be displayed, and as a result many art investors opt to store their pieces in warehouses away from their homes. Additionally, in order to qualify for the tax break, the proceeds of a sale must be reinvested in the purchase of a "like-kind" item. The sale of a painting, therefore, must be used to finance the purchase of another painting, not a sculpture or other form of art.

Critics of this system contend that the tax deferments act as nothing more than interest-free loans from the government, rewarding the wealthy and costing the country billions in tax revenue.

"What we are seeing is yet another sophisticated federal tax avoidance scheme," said Senator Ron Wyden of Oregon. "Some people are exploiting this tax provision as an estate planning tool to help them transfer wealth."

The Obama administration has taken notice of the issue, and has included in its 2016 budget a proposal to eliminate the tax break for exchanges of art and other collectibles. The proposal also calls for limitations on the tax break for swapping real estate parcels. According to the administration, these changes could bring in an additional $19.5 billion in taxes over the next 10 years. However, that number could be drastically reduced if the new tax implications stifle the art-for-investment market, as investors abandon art in favor of other investment commodities.

Financial Advisor Charged With Stealing Millions From NHL Players and Police Officers and Is the Subject of an Obstruction of Justice Probe

In 2013, following a three-year criminal investigation, former financial advisor Phil Kenner was indicted on fraud charges for allegedly stealing more than $30 million from nearly 20 former and current NHL players, as well as a handful of Long Island police officers.

Mr. Kenner is accused of soliciting funds from his clients, only to withdraw the funds from their investment accounts for his personal use. He allegedly told his clients that the money was being invested in a Mexican golf resorts, a prepaid credit card company and a "Global Settlement Fund." The settlement fund was apparently used in part to cover the cost of a lawsuit he surreptitiously filed in 2009 on behalf of 19 of his NHL clients against his former business partner, Ken Jowdy, who was developing the golf resorts.

The entire saga is highly bizarre and includes allegations from various factions of violent threats, signature forgeries, lawsuits used as diversionary tactics and illicit payments to porn stars and escorts. Mr. Jenner has been jailed in connection with the fraud charges since late 2013 after purportedly making threats against alleged victims and potential witnesses.

Jury selection in the fraud case against Mr. Kenner began this week.

Adding to Mr. Kenner's woes is this week's revelation that he is now the subject of a federal probe into obstruction of justice charges. On Wednesday, federal prosecutors revealed the existence of secretly recorded jailhouse telephone conversations they say implicate Mr. Kenner for obstruction of justice. The recordings were not broadcast in court and are subject to a protective order, but Judge Joseph Bianco of the Eastern District of New York suggested that they might be admissible in the upcoming trial.

Additionally, Mr. Kenner was informed on Tuesday night that he would be relocated from the Queens Detention Facility to the Metropolitan Detention Center in Brooklyn due to security concerns arising from the obstruction of justice probe. Mr. Kenner's attorney, Richard Haley, objected to the move because the new location would not allow Mr. Kenner to access his laptop to review thousands of pages of documents that may be introduced at trial.

"This is the most complicated criminal case I've seen in 30 years of practice," Haley said in court.

Courtney Love Sued by Memoir Co-Writer for Non-Payment

Anthony Bozza, who helped the musician Courtney Love write her memoir, has sued Ms. Love in New York federal court alleging that the singer and widow of Nirvana frontman Kurt Cobain failed to complete payment for his work. Mr. Bozza acknowledges that he received $100,000 for his contributions to the memoir, but contends that he was promised a minimum of $200,000 in addition to potential royalties from book sales.

The memoir was originally slated to be released in late 2012, but has yet to reach the shelves. Ms. Love was apparently unhappy with the manuscript delivered by Mr. Bozza in January 2014 and has been trying to "fix" the book ever since. According to Mr. Bozza, Ms. Love has already received $400,000 of a $1.2 million advance for the book from her publisher. On top of the $100,000 already received, Mr. Bozza seeks an additional $200,000 in damages to cover the $100,000 in unpaid guaranteed payment plus potential future royalties.

Dispute Over Ownership of Art Trove Amassed During Nazi Era Back in Court

Last month, a Munich court determined that the art collection of the late Cornelius Gurlitt, whose father was a Nazi-era art dealer, should go to the Kunstmuseum Bern in Switzerland as per the terms of Mr. Gurlitt's will. This week, a cousin of Mr. Gurlitt's, Uta Werner, challenged that ruling, alleging that the will is invalid due to Mr. Gurlitt's mental incapacity at the time when the will was executed.

The art trove in question was amassed by Mr. Gurlitt's father, Hildebrand, under the Nazi regime, and includes works by Matisse, Gauguin, Renoir and Otto Dix. As of this writing, three of the more than 1,000 total pieces in the collection have been verified to have been looted from their Jewish owners by the Nazis.

The Munich court said in a statement this week that it would weigh the appeal and decide whether to rule on its challenge or forward the appeal to a higher court. The court also said that the inheritance dispute would not affect the restitution agreements reached by the German government with the heirs of the works confirmed to have been stolen by the Nazis.

April 27, 2015

Week In Review

By Chris Helsel

After Nearly Two Years, Federal Judge Approves National Football League Concussion Suit Settlement

On Wednesday, Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania approved the settlement of a lawsuit brought by more than 5,000 retired National Football League (NFL, league) players against the league. The suit alleged that the NFL was aware of the permanent health risks associated with concussions but hid those dangers from its players.

The settlement provides payments of up to $5 million to former players who display symptoms of a handful of neurological disorders. It also provides for medical monitoring of players to determine if they qualify for payment and $10 million for concussion education.

The two sides originally reached a settlement in August 2013, but the court rejected both that agreement and another more recent offer. In rejecting the first two settlement agreements, Judge Brody first insisted that the league remove the cap on payments, then called for the removal of a limit on how much could be spent on medical monitoring.

During settlement negotiations, the NFL sought to include not only the 5,000+ plaintiffs, but also all other retired players in order to avoid future litigation of the same issue. Numerous former players - most notably Junior Seau, who later committed suicide and was found to have suffered from a degenerative brain disease - opted out of the settlement in order to continue the legal battle on their own.

In her ruling, Judge Brody called the settlement "fair, reasonable and adequate." An appeal is expected, which brings the interests of some retired players into contrast with those of their co-plaintiffs. As no payouts will be made until all appeals are exhausted, many currently-suffering retired players would prefer to end the case and take their money now, rather than continue to push for a better deal.

Appeals must be filed within 30 days from the date of the decision. Any appeal would likely not be heard for at least six months. If no appeal is launched, retired players could start filing claims within 90 to 120 days.

Opponents of the settlement believe that it should be broader and include more medical conditions, as well as a provision allowing for future scientific discoveries. Further complicating matters is the fact that Chronic Traumatic Encephalopathy (CTE), a progressive degenerative brain disease linked with the deaths of many former players, can only be diagnosed posthumously.

However, proponents of the settlement insist that the deal represents the best available scenario for the retired players. Not only will those retirees who are currently suffering finally have access to much-needed funds, but also there is no guarantee that the players would have prevailed at trial. Notably, Judge Brody declined to rule on the NFL's argument that the case should be dismissed because the collective bargaining agreement reached between the players and the league governed the dispute and precluded litigation. Courts tend to show great deference to labor agreements reached through collective bargaining, and other judges have sided with the NFL on this point in the past. In the current case, plaintiffs' attorneys in favor of the settlement noted that Judge Brody may well have done the same, had she ruled on the issue prior to the two sides reaching a settlement.

Additionally, if the case went to trial, affected players would need to conclusively demonstrate that the concussions they received that led to their current suffering occurred while they played in the NFL (that is, not during their high school or college careers, or from any activity other than playing professional football). The current settlement, on the other hand, does not require documentation of how the affected player suffered his concussion(s). In fact, the current deal does not even require the players to prove that they actually suffered a concussion at all.

Kevin Turner, a retired running back with amyotrophic lateral sclerosis (a progressive neurodegenerative condition also known as Lou Gehrig's disease), hopes that the settlement will be implemented as soon as possible so that he and other former players can begin to receive payments promptly. "What matters now is time, and many retired players do not have much left," he said. "I hope this settlement is implemented without delay so that we can finally start helping those in need."

Facing Government Opposition, Comcast and Time Warner Cancel Merger

Comcast Corp., the nation's largest cable company, announced Friday that its planned acquisition of Time Warner Cable would not go forward. This news came after federal regulators made it clear that the government would contest the deal. The proposed merger would have consolidated the country's two largest cable companies.

As soon as the $45.2 billion acquisition was announced in February of last year, consumers and advocacy groups launched campaigns urging regulators to block the merger. Opponents of the deal argued that consolidating the two largest cable companies would give one company far too much control over the pay-television and Internet service markets.

The decision to nix the deal is considered by many to be a victory for consumers and the maintenance of a competitive marketplace. "Comcast and Time Warner Cable's decision to end Comcast's proposed acquisition of Time Warner Cable is in the best interests of consumers," Federal Communications Commission (FCC) Chairman Tom Wheeler said in a statement. "The proposed transaction would have created a company with the most broadband and the video subscribers in the nation alongside the ownership of significant programming interests." He also noted that allowing the two companies to merge "would have posed an unacceptable risk to competition and innovation."

The U.S. Attorney General also supported the companies' decision to nix the merger. "The companies' decision to abandon this deal is the best outcome for American consumers," said Attorney General Eric Holder. "This is a victory not only for the Department of Justice, but also for providers of content and streaming services who work to bring innovative products to consumers across America and around the world."

Following the announcement, Consumer Reports CEO Marta Tellando released a statement celebrating the news: "Comcast never was able to make a convincing case for why the merger would benefit anyone other than Comcast."

Bloomberg News first reported last week that after a series of meetings between Comcast and federal regulators, the Justice Department and FCC were leaning toward contesting the proposed merger.

Despite Comcast's failure to complete the merger, Time Warner Cable is still considered a potential takeover target by other companies, such as renowned cable executive John Malone's Charter Communications. Industry experts believe that given the complexity of the current cable/Internet market and rapidly advancing technology, it is likely that many smaller cable companies - such as Cox, Cablevision, Charter, and Bright House - may consolidate in the near future.

Despite Dismissal of Criminal Charges, NFL Suspends Greg Hardy for 10 Games Following Domestic Abuse Allegations

NFLcommissioner Roger Goodell announced Wednesday that Dallas Cowboys defensive end Greg Hardy has been suspended for 10 games following an internal investigation into allegations of domestic abuse.

As documented in numerous recent "Week in Review" posts, in July 2014 Mr. Hardy was found guilty by a North Carolina judge of assaulting a former girlfriend, Nicole Holder, for allegedly striking her, choking her and throwing her onto a pile of loaded guns while threatening to hill her. He appealed the verdict and demanded a jury trial. The case was then dismissed when the victim refused to cooperate with authorities after receiving a financial settlement from Mr. Hardy.

Mr. Hardy, then a member of the Carolina Panthers, was placed on the Commissioner's Exempt list last season while the case was pending. He signed a free agent contract with the Dallas Cowboys this offseason.

Following the dismissal of all charges, the NFL launched an extensive investigation into the circumstances of the alleged assault. The investigation was led by the league's senior vice president and special counsel for investigations, Lisa Friel. Ms. Friel previously served as head of the sex crimes prosecution unit in the Manhattan District Attorney's office.

Under NFL rules, a player can be disciplined for violation of the league's personal conduct policy even without a finding of guilt in a criminal court.

As part of its investigation, the NFL reviewed court records, documents, exhibits, photographs, police reports and medical records, as well as opinions of medical experts. After announcing the 10-game suspension, the league said that it attempted to contact the victim, but she refused to cooperate with the investigation. The league also said that Mr. Hardy was uncooperative, failing to provide complete and accurate information and refusing to acknowledge that a financial settlement had been reached with the victim.

Following the investigation, Mr. Goodell wrote a letter informing Mr. Hardy of his suspension. Despite charges being dropped, the commissioner asserted that his decision to suspend Mr. Hardy was based "on findings that are supported by credible corroborating evidence independent of Ms. Holder's statements and testimony, such as testimony of other witnesses, medical and police reports, expert analyses, and photographs." In his letter to Mr. Hardy, Mr. Goodell wrote, "The use of physical force under the circumstances present here, against a woman substantially smaller than you and in the presence of powerful, military-style assault weapons, constitutes a significant act of violence in violation of the Personal Conduct Policy."

The league's disciplinary action also mandates that Mr. Hardy undergo a clinical evaluation by a professional of his choosing. If the professional recommends counseling, Mr. Hardy will be expected to comply and notify the NFL of his progress by providing regular evaluations.

Additionally, Mr. Goodell warned Mr. Hardy that any future run-ins with law enforcement could have dire consequences for his future as a professional football player. "You must have no further adverse involvement with law enforcement and must not commit any additional violations of league policies," Mr. Goodell wrote. "In that respect, you should understand that another violation of this nature may result in your banishment from the NFL."

Immediately following the suspension announcement, Mr. Hardy indicated that he planned to file an appeal. Additionally, the players' union (NFL Players Association, NFLPA) is reportedly considering filing a lawsuit on Mr. Hardy's behalf.

In between the time when Mr. Hardy allegedly assaulted Ms. Holder and this week's announcement of the 10-game suspension, the NFL adopted a new, stricter conduct policy in the wake of the Ray Rice domestic abuse fiasco. The union would therefore contend that Mr. Hardy was improperly punished under the new policy, when his infraction occurred while the old one was still in effect. This retroactive enforcement argument has been successfully argued by NFLPA attorneys in previous cases involving Mr. Rice and Minnesota Vikings running back Adrian Peterson.

The NFL seems to have anticipated this line of argument, however, and in announcing the suspension took care to demonstrate that the length of Mr. Hardy's suspension would be appropriate under either the current or former personal conduct policy.

Additionally, although Mr. Goodell is normally disinclined to relinquish his power to hear all disciplinary appeals, in the interest of defending against bias claims in a potential lawsuit, the commissioner may choose to appoint a neutral arbitrator to hear Mr. Hardy's internal appeal of his suspension.

The Cowboys, who signed Mr. Hardy to a one-year contract in March worth up to $13.1 million, released a statement indicating that the suspension was "something that [the club] anticipated prior to Greg's signing." The statement continued, "We respect the commissioner's ruling. Our organization understands the very serious nature of this matter. We will use our resources -- work closely with Greg and with the league -- to ensure a positive outcome.'' In a radio interview on Friday, Cowboys executive vice president Stephen Jones (whose father, Jerry, owns the club) said, "We totally support and will continue to support everything the league stands for. We've spent a lot of time, we've spent a lot of resources trying to get this right." However, he did not apologize for rewarding the troubled defensive end with a large free agent contract, making it clear where the club's priorities lay: "What we want to do is get the very best players we can get to improve this football team. Obviously defense is a focus...we think we've made all the moves that we needed to in free agency to really solidify our football team."

Non-Profit Second Stage Buys Helen Hayes Theater, Settling Litigation

Second Stage, a non-profit Off Broadway theater company, has purchased one of New York's last independently owned Broadway houses, the Helen Hayes Theater, for just under $25 million. The completed sale puts to rest litigation between the nonprofit and the theater's owners, Martin Markinson and Jeffrey Tick, over whether the long-planned sale would proceed. Second Stage intends to use the classic theater to feature plays by contemporary American playwrights - specifically works by women and minorities - and hopes to begin producing shows during the 2017-18 season.

The Helen Hayes Theater, with its 597 seats, is the smallest of Broadway's theaters and has been designated as a New York City landmark. It is located on West 44th Street and opened in 1912. During its lifetime it has been renamed several times, and the new owners hope to raise money by selling its naming rights for yet another rechristening. The theater will become the sixth of the city's 40 Broadway theaters to be owned by a nonprofit.

Second Stage is expected to spend a total of $58 million on the project - of which 70% has already been raised - which will cover not only the purchase of the theater, but also renovations and upgrades as well as an undisclosed amount to settle a dispute with the owners over a delay in the completion of the sale. Renovations will begin next year. Until then, Second Stage intends to rent the theater out to other companies in order to raise additional funds.

Thus far, Second Stage had operated entirely off Broadway. Now, with the increased visibility and Tony Award eligibility that Broadway offers, the theater hopes to attract more prominent playwrights and actors.

The sale has been in the works since 2007, but was delayed (as recounted in an earlier "Week in Review" post) when "Rock of Ages" at the Helen Hayes became a smash hit and Second Stage sought an extension to complete its financing of the purchase. This brought litigation as the theater's owners sought compensation for the delay, and the judge asked the two sides to settle and complete the sale. That finally occurred last week.

Atlanta Hawks Enter NBA Playoffs Without Player who Claims Broken Fibula and Ligament Damage Caused by NYPD

In the early morning of April 8th, Chris Copeland of the National Basketball Association (NBA)'s Indiana Pacers and two others were stabbed during an altercation outside a Manhattan night club. In the commotion that followed, two Atlanta Hawks players, Thabo Sefolosha and Pero Antic, were arrested and charged with obstructing governmental administration and disorderly conduct. The police report indicates that the two men reacted aggressively to requests to clear the area. Mr. Antic, who is from Macedonia, was also charged with harassment. Mr. Sefolosha, who is from Switzerland, was also charged with resisting arrest. During the altercation with police, Mr. Sefolosha suffered a broken fibula and ligament damage in his right leg. While Mr. Antic was able to return to the Hawks, Mr. Sefolosha's injuries rendered him inactive for the remainder of the season.

In the coming weeks, the Manhattan District Attorney is expected to determine whether to pursue charges against the two players. While more evidence is expected to emerge in the form of witness statements and perhaps cell phone or storefront video, the only existing video of the altercation shows at least one officer swinging a baton. Mr. Sefolosha has denied all wrongdoing and said in a statement last week that "the injury was caused by the police."

Obviously, this case has garnered tremendous interest from police brutality activists as well as NBA fans. The NYPD's Internal Affairs Bureau (I.A.B.) has launched an investigation of the event. If the I.A.B. uncovers evidence of wrongdoing on the part of the police officers, it must then determine whether to seek discipline internally or to refer the case to the Civilian Complaint Review Board. Further, if the officers' actions are deemed to be criminal in nature, the case can be referred to the prosecutor's office as well.

Additionally, Mr. Sefolosha could decide to file a civil action against the police department.

In addition to the I.A.B. investigation, the players' union (National Basketball Players Association, NBPA) has announced that it is launching its own investigation into the incident, seeking out potential witnesses and additional video evidence in order to assist the players involved. NBA commissioner Adam Silver, on the other hand, indicated on Friday that while the NBA is in contact with the police and the players' attorneys, it will not be conducting its own independent investigation.

AC/DC Drummer Pleads Guilty To Threatening to Kill and Drug Possession

Phil Rudd, the drummer for the legendary rock band AC/DC, has pleaded guilty in a New Zealand court to charges of threatening to kill and drug possession. Mr. Rudd, who is Australian, was allegedly furious after his recent solo album flopped, firing several of his employees and threatening to kill his personal assistant. In November, police executing a search warrant found methamphetamine and cannabis at his home in New Zealand and placed him under arrest.

Although the 60-year old rocker initially denied all allegations after his arrest, he surprised observers by entering a guilty plea this week. He faces up to seven years on the charge of threatening to kill, and is currently released on bail until the sentencing hearing on June 26th.

Mr. Rudd was also originally charged with "attempting to procure murder" on the belief that he told an associate he wanted his personal assistant "taken out." However, this charge was soon dropped after prosecutors determined that they lacked sufficient evidence.

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.

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

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

Senior Counsel Position Available in Colorado at Starz Entertainment

Tracking Code S778


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

Joint Employers and Overtime Pay

By Kristine Sova

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.

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.

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.

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.

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.

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.

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.