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Week in Review

By Martha Nimmer

From Panamanian Dictator to Lawsuit Plaintiff

Manuel Noriega, former Panamanian dictator and federal inmate, has sued the publisher of "Call of Duty: Black Ops II", over its unauthorized of his name and likeness. The lawsuit, filed last week in Los Angeles County Superior Court, accuses publisher Activision Blizzard Inc. of portraying Noriega as "a kidnapper, murderer and enemy of the state" in the latest "Call of Duty" game.

The Santa Monica-based company released the "Black Ops II" title back in November 2012. In just two weeks, the game had managed to bring in more than $1 billion in sales. While Activision Blizzard oversees a number of video game titles, "Call of Duty" is arguably the most well known. According to a fan website, Noriega helps the CIA capture the game's antagonist before turning on the U.S.

Noriega became dictator of Panama in 1983. American military action in the Central American nation in 1989 ended his dictatorship, leading to his imprisonment on drug-trafficking charges. For a time, he had been an ally of the U.S. government. Noriega returned to Panama in 2011 after two decades in American and French custody.


Tackling the Vikings

Following the Minnesota Vikings' release last week of a summary of the investigation into homophobic remarks made by special teams coordinator Mike Priefer, former Vikings punter Chris Kluwe announced that he planned to file suit against the team in Minnesota state court. Now, Kluwe appears to be backing off from that initial threat, opting instead to continue talks with the Vikings. Clayton Halunen, counsel for the former Vikings player, said in an email to ESPN that he had spoken with the Vikings' attorney, and that both lawyers "agreed to recommend continued discussions to their clients." Kluwe intended to file suit against the team to compel it to release the full report from a six-month independent investigation into his claims against Priefer.

Law firm Littler Mendelson was tasked by the Vikings with reviewing the investigation report and creating a summary of the investigation findings. The 29-page summary did support Kluwe's claim that Priefer had made a homophobic remark, but the summary did not confirm Kluwe's accusations that "Priefer had made multiple homophobic statements, or that the Vikings had released the punter because of his activism." Unsurprisingly, Kluwe and his attorney were critical of the report, saying it was rife with inaccuracies and "designed to make [Kluwe] look bad." Kluwe's attorney also called the summary a "'scrubbed version' of the report designed to position the team for possible litigation."

Before the report was released last week, Kluwe's legal counsel "offered the Vikings a set of non-negotiable settlement terms . . . asking the team to suspend Priefer for four to eight games, donate $1 million to LGBT-friendly charities and release the full report." The Vikings, however, did not agree to the terms, instead deciding to release the investigation summary and donate $100,000 to charity; the team also suspended Priefer for two to three games. Despite the initial failure to come to a settlement, it appears that an agreement may, according to ESPN, be back on the table.

Read the summary here: http://espn.go.com/pdf/2014/0718/DSP-MEMO-Re-Kluwe-Investigation.pdf


Back to Business as Usual?

Retail powerhouse Amazon has started to accept DVD pre-orders of Warner Brothers DVDs, a sign that the companies appear to be moving closer to resolving a pricing dispute. As part of its hardball strategy with Warner Brothers, Amazon had stopped accepting pre-orders for Warner Brothers movies, including The Lego Movie, 300>: Rise of an Empire and Winter's Tale. Now, however, Amazon customers may begin placing pre-orders for Warner Brothers titles.

Amazon has been mired in disputes with various companies as it seeks to use its position as the world's largest online retailer to extract better deals from its suppliers and vendors. Amazon is currently involved in a dispute with Hachette Book Group over e-book pricing.


The Mask

The Eighth Circuit has ruled that the Mask of Ka-Nefer-Nefer, a 3,200-year-old Egyptian mummy, will stay in the St. Louis Art Museum, because the federal government failed to prove that the antiquity was stolen from Egypt when it went missing in 1973. The mask later turned up in 1998, when the St. Louis Art Museum acquired the item from Phoenix Ancient Art of New York and Geneva, an antiquities seller. Once the Egyptian government learned of the mask's reemergence, Egyptian officials asked for its return. Despite these numerous requests, the museum has refused to return the mask.

The federal government eventually became involved in the dispute between the Egyptian government and the Missouri museum, filing a forfeiture action against the mask. In the forfeiture claim, the United States stated that "because the mask was stolen, it could not have been lawfully exported from Egypt or lawfully imported into the United States." A federal judge was unconvinced, however, and ruled for the museum, reasoning that just because the mask went missing in 1973 did not mean the item was illegally imported into the United States.

On appeal, "the government argued that the lower court erred by dismissing its complaint without giving it leave to first amend its pleading." The Eighth Circuit did not agree. Judge James Loken, writing for the three-judge panel, said that the government had sufficient time to amend its pleading before dismissal, but chose not to: "[t]he government knew many months prior to the order of dismissal of the possible need to amend its pleading and elected to 'stand or fall' on its untested legal theory. The government then spent another three months after the order of dismissal was entered urging the court to reconsider its interpretation of the statute before finally deciding it would attempt to plead around the interpretive problem, rather than appeal this legal issue."

So, at least for now, it appears that the mask will remain in the "Show Me" state.


Release Removed

The NCAA has removed the controversial name-and-likeness release from the forms that Division I athletes regularly sign before a playing season. The name-and-likeness provision of the "Student-Athlete Statement" gave the NCAA or an associated third party the power to use a player's name or likeness to promote NCAA championships or other events, all without having to compensate the athlete. The decision to eliminate this release comes as the NCAA awaits a decision in the O'Bannon v. NCAA case, which concerns the use of college athletes' names and likenesses. The NCAA had previously stated publically that players were not required to sign the releases, but some plaintiffs in the O'Bannon case submitted evidence showing that college presidents and members of the Atlantic Coast Conference believed that athletes would be ineligible to play if they did not sign the releases.

The elimination of the name-and-likeness release led to the delayed publication of the 2014-15 version of the Student-Athlete Statement. Kris Richardson, NCAA director of academic and membership affairs, wrote that the delay was "necessary to enable appropriate review, including legal review, of the change to this year's form." Despite this change to NCAA rules, "some conferences and schools, including the Big Ten Conference schools, have been requiring athletes to sign more specific name-and-likeness release forms." The form employed by the Big Ten Conference states that by signing the release, an athlete gives the college and conference "'the right to publish, duplicate, print, broadcast or otherwise use in any manner or media, my name, photograph, likeness or other image of myself for any purpose' the school or conference determines is in its interest." According to the form, permissible uses can include "promotional and marketing materials and uses by the Big Ten Network, CBS, ABC and ESPN. ... I agree that neither I nor my heirs shall be entitled to any compensation for the use of my name, photograph, likeness or other image of myself." Therefore, despite the changes to NCAA rules, colleges and conferences seem determined to continue using the name-and-likeness releases in their own Student-Athlete Statements.


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This page contains a single entry from the blog posted on July 26, 2014 5:10 PM.

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