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Week in Review

By Martha Nimmer

Anonymous Donor Revealed

Despite an appeal by the Hopi Nation, 24 Native American artifacts went up for auction last week in Paris. An anonymous bidder, later revealed to be the Los Angeles-based Annenberg Foundation (Foundation), paid $530,000 for the items, which the Foundation said it plans to return to the Hopi Nation in Arizona and the San Carlos Apache. Gregory Annenberg Weingarten, the Foundation's vice president and director, said that the organization had decided to intervene and acquire the artifacts following a French judge's refusal to block the sale. "These are not trophies to have on one's mantel; they are truly sacred works for the Native Americans," Weingarten added.

The artifacts consist of a collection of masks dating to the late 19th and early 20th centuries, which the Hopi Nation says were stolen from a northern Arizona reservation in the early 20th century. The Hopi had unsuccessfully argued before a French court that the items represent ancestral spirits and should not be sold. The U.S. Embassy in Paris also became involved in the controversy, requesting a delay so that tribal representatives from the Hopi and San Carlos Apache nations could travel to France to identify the artifacts and investigate whether the tribes had a claim under the 1970 UNESCO Convention on the Export and Transfer of Ownership of Cultural Property, to which both France and the U.S. are signatories. These efforts failed, however, but happily for the Hopi and San Carlos Apache, the Annenberg Foundation was able to intervene.

This is the second time this year that Native American cultural artifacts have gone on the auction block in Paris. According to NPR, "around 70 Hopi items were sold for some $1.2 million in April."

http://www.npr.org/blogs/thetwo-way/2013/12/11/250186793/mystery-bidder-at-french-auction-plans-to-return-sacred-hopi-items

Former Star Quarterback Sues NFL

Claiming that the National Football League (NFL) deliberately concealed information about the dangerous effects of concussions and repeated hits to the head, former quarterback Craig Morton has sued the NFL in federal court in northern California. Morton's claims are similar to those alleged by more than 4,000 former professional football players, whose cases are set to be resolved following the NFL's decision in August to pay $765 million to retirees with debilitating injuries, while admitting no fault.

Morton's suit, according to The New York Times, "was born out of frustration with the proposed settlement and is a sign that some players may opt out of the settlement and continue pursuing their cases." Attorneys for the former quarterback, who played for the Giants, Cowboys and Broncos, commented that their client's concerns differ from the "P.R. concerns" of the NFL, and that a separate lawsuit would help address his issues, namely health, more adequately. Whether this legal strategy will work, however, remains unclear, but such maneuvering hints that other retired players may choose to opt out of the concussion-related settlement with the NFL.

http://www.nytimes.com/2013/12/12/sports/football/former-quarterback-sues-over-hits-to-head.html

Taxed in Tennessee

Nothing is certain but death and taxes, including the so-called jock tax.

A little discussed financial issue has now become "a lightning rod for professional athletes, lawmakers and accountants." Many states charge a tax when out of state teams visit for games. Tennessee, called out specifically in a lengthy article in The New York Times, is the only state to apply a flat rate tax to visiting athletes, meaning that a star player making $15 million a year will pay the same amount as a player earning $500,000. Unhappy with the flat rate tax, athletes argue "Tennessee disproportionately targets them as athletes, making basketball and hockey games in the state more punitive than competitive."

This system of taxation, according to The New York Times, means that some players traveling to Tennessee for games end up losing money or just breaking even: specifically, around 20% of professional basketball players "have either lost money or broken even in Memphis," according to the National Basketball Players Association. Additionally, more than a third of National Hockey League (NHL or the League) players have lost money when playing in Tennessee, according to Don Zavelo, the general counsel for the N.H.L. Players' Association. The difference for NHL players, however, is that the League pays the "jock tax" for players as part of its collective bargaining agreement.

Dave Kiefer, an attorney for the basketball players' union, calls out Tennessee's jock-tax structure for being unfair. "When you think about the fairness aspect, the athletes are being charged in a way everyone from the coaches to the general managers aren't. The fear is that if every state were to levy this tax, then they literally could lose money playing. The league would not be viable." The Tennessee jock-tax has caught the attention of some local lawmakers in the state. Jack Johnson, chairman of the Tennessee Senate's commerce committee, announced that he would restart efforts next year to repeal the law, adding, "it's a ridiculously high tax and not equitably applied."

Revenue from the Tennessee jock tax amounts to $3.6 million a year, but notably, this money does not go to the state's coffers. Instead, the funds go directly to the stadiums. An executive from the Memphis Grizzlies defended this practice, adding that the money generated by the jock tax helped the FedEx Forum draw performers like Paul McCartney and the Eagles. "Those are concerts we wouldn't have gotten without using the proceeds," said Jason Wexler, the Grizzlies' chief operating officer.

Other states have also faced criticism surrounding their systems of visiting athlete taxation. Two cases pending before Ohio courts ask "whether a city or state can tax an athlete who does not travel there, and what formula it should use to determine how many days a player has worked."

http://www.nytimes.com/2013/12/13/sports/athletes-question-fairness-of-tennessees-jock-tax.html

Going Home

Following a complicated legal battle in the United States between auction house Sotheby's and the U.S. government, the Cambodian government announced on Monday that Sotheby's will return a 10th century Khmer statue allegedly looted 41 years ago during the Cambodian civil war. The statue of the of the warrior, said to be worth up to $3 million, will return to the southeast Asian kingdom within 90 days, per an agreement signed last week by Sotheby's, its Belgian client, and U.S. officials.

The legal dispute began in early 2011 when Cambodia "sent a letter through UNESCO claiming ownership of the work." In the letter, Cambodian officials stated that "the sandstone statue, known as the Duryodhana, was looted in the 1970s from a temple in Koh Ker, 80 kilometres (50 miles) northeast of the famed Angkor Wat complex." Sotheby's stopped the sale of the statute, planned for March of that year. In April of last year, the United States filed a civil complaint against Sotheby's, blocking the sale of the prized artifact.

This decision to return the Khmer statue follows the return in June of two other Khmer 10th century statues, known as the "Kneeling Attendants." These pieces were displayed for 20 years at the Metropolitan Museum of Art, and were also taken from Cambodia during its civil war, when looting of ancient and cultural artifacts was widespread throughout the country.

http://news.yahoo.com/cambodia-us-auction-house-return-ancient-khmer-statue-201709417.html

No Love Lost

Claiming trademark infringement involving the title of one of his most popular songs, the musical estate of reggae star Bob Marley has sued a Louisiana restaurant chain. In a complaint filed in federal court in Massachusetts, Fifty-Six Hope Road Music Ltd., which owns the "One Love" trademark in the United States, accused Raising Cane's USA LLC of infringing the "One Love" trademark when the company used the term "One Love" on its menus and online to promote the sale of Raising Cane chicken fingers. Raising Cane's is also alleged to have used the mark "One Love" on clothing. Marley's estate argues that the restaurant chain "is deliberately using 'Cane's One Love' to capitalize on the fame of Marley and his song," adding that the Cane's One Love mark is confusingly similar to the one associated with the deceased singer, and thus likely to confuse the public.

The plaintiff has asked the court to bar the chain's use of "Cane's One Love," cancel the "Cane's One Love" trademarks, and award money damages, attorney fees and litigation costs.

Bob Marley and the Wailers released their song "One Love" in 1977. The widely popular song has been licensed for use by the Jamaican Tourist Board; "One Love" is the "official theme song" of Jamaican tourism and figures prominently in commercials promoting travel to the Caribbean island.

http://about.bloomberglaw.com/legal-news/ge-turbine-interdigital-panthers-intellectual-property/

Auctions Anonymous

The New York Court of Appeals has ruled that sellers at auctions may remain anonymous. A lower court decision in October 2012 would have required the state's burgeoning auction industry to change its longstanding practice of keeping sellers' names private.

The lower court's ruling decided a case involving the sale of a 19th century silver and enamel box from Russia. The box, sold by a Chester, New York auctioneer, "depicts aristocrats feasting on a roasted swan." When the winning bidder refused to go through with the sale, the auctioneer successfully sued for payment. In 2012, however, the appellate court overturned that decision when the buyer "challenged the transaction because the post-sale documentation had not identified the seller." The four judge panel in the Appellate Division held that for an auction sale to become binding, state law required that buyers be permitted to learn the names of sellers in post-auction paperwork. In reversing the lower court, however, the New York Court of Appeals ruled unanimously "that the auctioneer had provided enough information for the sale agreement to stand, even without the seller's name. It was enough for the auctioneer to be named as the seller's agent, the court found."

Some art law experts predicted that the Appellate Division's decision would have vast repercussions for how the auction business is conducted in the state. According to The New York Times, "most sellers in the New York auction market prefer to remain anonymous, and auction catalogs typically reveal little more than that a work is from a 'private collection.'" In a society where personal privacy seems to be disappearing, the anonymity afforded by the auction business remains highly desired.

The NFL's Brain Trust

Earlier this week, the National Institutes of Health (NIH) announced its plans for allocating part of a $30 million grant from the National Football League (NFL). The NFL, which has faced staunch criticism for the way it has previously handled player concussions, has "committed tens of millions of dollars to researchers studying concussions and the cognitive disorders linked to them."

The NIH said that it would give $12 million from its grant to two groups working to identify chronic traumatic encephalopathy, or C.T.E., in living patients. Currently, the only way to detect CTE is through an autopsy. The NIH will also award $12 million to researchers at Boston University School of Medicine--which has emerged as a leader in diagnosing C.T.E. in deceased players -- and doctors at New York's Mount Sinai Hospital, who have been working with researchers at the University of Washington to examine the brain tissue of thousands of individuals. Additionally, a total of $2 million will be allocated by the NIH to six institutions focused on concussions in young athletes.

The study of concussions and repeated hits to the heads of young athletes has received increased attention in recent years. The NFL has undertaken many efforts aimed at reassuring parents that football is safe for children. To that end, writes The New York Times, the NIH is funding several new studies aimed at identifying concussions and the effects of head hits on young players.

http://www.nytimes.com/2013/12/17/sports/football/agency-selects-brain-trauma-projects-for-nfl-grant.html

CTE Detected in Former MLB Player

Former Cincinnati Reds player Ryan Freel has become the first professional baseball player diagnosed with the degenerative brain disease chronic traumatic encephalopathy (CTE). Freel, who committed suicide in December 2012, was suffering from Stage II CTE at the time of his death, according to a report from the Boston University Center for the Study of Traumatic Encephalopathy and Sports Legacy Institute. CTE has been detected in the brains of former NFL and NHL players, but Freel would be the first MLB player diagnosed with the disorder, reported Fox Sports.

http://www.huffingtonpost.com/2013/12/16/ryan-freel-cte-mlb-player-suicide_n_4454706.html

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This page contains a single entry from the blog posted on December 19, 2013 4:10 PM.

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