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Week in Review

By Martha Nimmer

From MVP to SWP (Suspended Without Pay)

Major League Baseball (MLB) announced that Milwaukee Brewers outfielder Ryan Braun had been suspended without pay for the rest of the season. Braun will miss 65 games during his suspension. He has earned $9.61 million this season, but the suspension will cost him $3.85 million in salary. Previously in 2012, baseball commissioner Bud Selig unsuccessfully attempted to suspend Braun for a urine sample that tested positive for elevated levels of testosterone. An arbiter ruled, however, that the sample had been mishandled, ultimately leading to Braun's successful appeal of the suspension.

Braun, the former 2011 National League MVP, is the first player suspended following MLB's Biogenesis investigation, although the commissioner's officer did not indicate that the suspension was related to the investigation. Earlier this year, the names of more than 80 MLB players, including Alex Rodriguez, Bartolo Colon, Nelson Cruz and Melky Cabrera, appeared in documents from the now closed Miami clinic founded by Tony Bosch. Braun's suspension now raises a number of legal and financial concerns for the players implicated in the Biogensis scandal. Sports lllustrated's Michael McCann summarizes some of the issues that Braun and his fellow players may face.

Firstly, McCann writes, the Brewer outfielder can breath a (small) sigh of relief: Braun will likely avoid criminal charges arising from his purchase of performance enhancing drugs (PED). Braun has been careful not to mention specifics about his use of PEDs--instead, Braun merely points out that he "made some mistakes" and is far from perfect. The baseball player may have a tougher time, however, avoiding a defamation action. As part of Braun's effort to challenge a positive drug test result in 2012, Braun, according to McCann, "attacked the character of the test collector, Dino Laurenzi Jr. in February 2012." Braun could argue, however, that he was only stating his opinion of Laurenzi, and not airing false facts about the test collector.

The most challenging issue confronting Braun at this point is the Brewers' ability to void his contract. According to Sports Illustrated, the team is "set to pay Braun $133 million over the next eight years as part of a 2011 contract extension." If the Milwaukee team decided to void the player's contract, the team "would likely cite two paragraphs in the Uniform Player Contract. Paragraph 7(b)(1) allows for contract termination if a player "fails, refuses or neglects to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the club's training rules.' Paragraph 7(b)(3) allows the club to do the same if a player 'fails, refuses or neglect to render his services hereunder or in any manner materially breach this contract.'"

Whatever Braun's fate is, legally and professionally speaking, it is likely that his problems are far from over.



Stupid and Stupider

Believe it not, there is a legal battle unfolding over who will get to make the sequel to Dumb and Dumber. Brad Krevoy and Steve Stabler, who produced the 1994 movie, have filed counterclaims against the company seeking to exclude them from a sequel that will again star Jim Carrey and Jeff Daniels.

The controversy began earlier this month, when Red Granite Pictures filed suit in Los Angeles Superior Court against Krevoy and Stabler, seeking to keep out the pair from "any involvement as producers" in the upcoming movie. According to Red Granite, run by Riza Aziz and Joey McFarland, the company has "no contract with Krevoy and Stabler for what the company is calling Dumb and Dumber To." The original Dumb and Dumber was distributed by New Line and Warner Bros.

Now, the defendants are fighting back. Stabler and Krevoy's counterclaim, filed this week, disputes the plaintiffs' contention that no agreement exists between Red Granite and Krevoy and Stabler. In the counterclaim, the defendants point to the contract they signed for the first film, which "entitled them to $600,000 in producer fees, a hard floor of 15 percent of net profits and a 25 percent royalty on video revenues." Further notable is the fact that the first agreement gave Stabler and Krevoy a "right of first negotiation for sequels and remakes on terms at least as favorable as their terms for producing the Original." This term, according to the defendants, is a standard clause in the entertainment industry that paves the way for producers to get paid "even if the studio decides to hire another producer for the sequel, so long as the producer is willing and able to produce the sequel."

The defendants also call into question whether McFarland and Aziz will honor any of their commitments to the "key talent" working on Dumb and Dumber To. The defendants also make it known that they doubt the Red Granite pair can even pull off a sequel: "Red Granite will not succeed with money alone because McFarland's and Shahriz Bin Abdul Aziz's experience producing motion pictures during their short tenure in the industry consists of cavorting at nightclubs with Paris Hilton and making dinner reservations at posh nightclubs in New York and Los Angeles." That, however, may be all the skills the Red Granite producers need to make a film called Dumb and Dumber To.



American "I"-Strain

Ten former contestants on American Idol have sued the popular reality competition show. Named as defendants in the suit are Fox Broadcasting, executive producer Nigel Lythgoe and many of Idol's corporate sponsors, including Ford Motors, Coca-Cola and AT&T. The suit, authored by the contestants' attorney James H. Freeman, numbers in the hundred of pages--429, to be exact. The complaint begins with a quote from former U.S. Supreme Court Justice Thurgood Marshall, and then provides an overview of Enlightenment and the founding of the United States, just in case the presiding judge needs a refresher course on American history.

Joking aside, what distinguishes this action from other discrimination suits filed in the entertainment industry is "the alleged way that producers have obtained, disseminated and exploited the criminal background of the show's black contestants," writes The Hollywood Reporter. In other words, the suit claims that the defendants used the plaintiffs' criminal records as a way to reinforce pernicious stereotypes: "Rather than allow them to compete for the valuable prizes on the basis of their individual merit as artists, the program's top senior executives, British showrunners Nigel Lythgoe and Ken Warwick ran interference on them, sabotaging their promising careers as recording artists and gutting them of the opportunity they rightfully earned to become the next American Idol. Why? Because the Plaintiffs' identities could be used to scandal-monger Nielsen ratings while reinforcing the age-old stereotype of the 'black criminal'."

The goal of this behavior was to "systematically disqualify and publicly humiliate . . . virtually every top-ranking Black American Idol contestant who had a record of arrest (no matter how petty the alleged crime and no matter whether there was a conviction or an acquittal)." In contrast, states the complaint, the criminal records of Caucasian contestants were rarely made public, and if they were, the Caucasian contestants were "championed as models of redemption." This differing treatment, according to the complaint, helped Caucasian contestants prevail over the disqualified Black contestants on the program. The suit also alleges that White show participants were permitted to sing any songs of their choosing, while Black contestants were pushed to choose songs from the jazz or hip-hop genres.

Ambitious and sweeping though this lawsuit may be, it may not be long for this world: one of the first challenges that the plaintiffs will have to confront is whether a New York federal court has jurisdiction over the case. Before appearing on American Idol, the contestants signed various agreements, which likely included an arbitration clause that would typically require contestants to go to arbitration to settle disputes. The plaintiffs aver, however, that the agreements made with American Idol should be rescinded as "highly oppressive, unconscionable Willy Wonka contracts."


Read the complaint here: http://www.scribd.com/doc/156189462/Andrews-vs-Fremantle

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