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Week in Review

By Chris Helsel

Former UNC Student-Athletes Claim Lack of Meaningful Education; Seek Class Certification

Two former University of North Carolina (UNC) student-athletes, women's basketball player Rashanda McCants and football player Devon Ramsey, have filed a lawsuit against their alma mater. The suit, which seeks class certification, contends that UNC, like many other institutions, breached its contractual obligations with student-athletes by failing to provide "academically sound classes with legitimate educational instruction."

The claim also names the National Collegiate Athletic Association (NCAA), accusing the governing body of negligence, because: "Although the NCAA's rules prohibit academic fraud, the NCAA knew of dozens of instances of academic fraud in its member schools' athletic programs over the last century, and it nevertheless refused to implement adequate monitoring systems to detect and prevent these occurrences at its member institutions." The plaintiffs also assert that the NCAA failed to warn student-athletes about "the risk of cognitive harm from academically unsound classes" and breached its legal duties of honesty and loyalty by failing "to protect the education and educational opportunities of student-athletes (including the provision of academically sound classes)." The NCAA is expected to counter with evidence that it has recently initiated investigations into claims of academic fraud at 20 schools.

The student-athletes are represented by noted class action plaintiffs' attorney Michael Hausfeld, who also spearheaded Ed O'Bannon's antitrust suit against the NCAA. The UNC suit seeks unspecified damages, as well as the creation of an independent commission that would audit collegiate programs to ensure that student-athletes receive an adequate education and are not the victims of academic fraud. The audits would especially focus on minority athletes, who the plaintiffs contend often receive an inferior education.

Specifically, Ms. McCants and Mr. Ramsey allege that UNC acted negligently and in breach of its basic contractual duties by steering student-athletes to so-called "paper courses" - classes that never met in person and only required that a student submit a single term paper. An internal investigation conducted last year and led by former FBI director Kenneth Wainstein revealed that often someone other than the student wrote the paper, which was usually then graded by a department administrator rather than a faculty member.

The plaintiffs allege that the UNC athletic department devised a "shadow curriculum", which steered student-athletes "toward programs and courses that lacked rigor so as to free up as much time as possible for athletic commitments while ensuring continued academic eligibility under NCAA rules (through inflated grades)." They point to the Wainstein investigation report, which revealed that UNC academic counselors directed athletes to take paper courses. Mr. Wainstein labeled the paper course system a "scheme" that resulted in "artificially high grades."

This is the second similar case against the school in recent months. In November 2014, former UNC football player Michael McAdoo filed a federal claim in the Western District of North Carolina asserting that the school forced him to take paper courses in Afro American Studies, rather than studying criminal justice, as he had intended when he enrolled.

In 2012, the NCAA sanctioned UNC for academic fraud related to its football team, and now has launched yet another investigation into the university.

Ms. McCants' brother Rashad, who was also a star basketball player at UNC, has similarly claimed that he and other "premier players" never wrote papers in college and were steered by academic advisors to take paper courses. "When it was time to turn in our papers for our 'paper classes,' we would get a call from our tutors, we would all pack up in one big car, or pack up in two cars, and ride over to the tutor's house, pick up our papers and go about our business," he told ESPN in June.

In 1991, an Iowa court dismissed former Drake University basketball player Terrell Jackson's breach of contract claim against the school. Mr. Jackson had argued that Drake basketball coaches had breached his scholarship "contract" by insisting that he skip classes to make time for basketball and let others write papers for him.

The current case should also make other colleges - and their athletic programs - nervous. If the suit survives a motion to dismiss by the defendants, pretrial discovery will force UNC and other institutions (provided class cert. is granted and other schools' student-athletes added) to share potentially embarrassing academic information. This may encourage defendant institutions to push for a settlement, which would allow the case to compel serious change within collegiate sports even without the plaintiffs officially "winning" on the merits.

Interestingly, because UNC and the NCAA are now co-defendants, the latter now faces a serious conflict with regard to its investigation of the school. Critics will certainly point out that the NCAA has strong incentives not to find any fault on UNC's part - for if it does, that evidence can possibly be used against the NCAA itself at trial.

This fascinating case could produce a watershed moment for the future of American college sports. Paired with O'Bannon, the case will attempt to demonstrate the extent to which the sacred ideal of the "student-athlete" has become a farce.


Tom Petty and Jeff Lynne to Share Writing Credit on Sam Smith's "Stay With Me" - But Not Any Potential Grammys

Without knowing it, two old rockers have penned yet another hit single.

Last year, British singer Sam Smith released his debut album entitled In the Lonely Hour, which included the hit single, "Stay With Me." The song, which has been nominated for song of the year at next month's Grammy Awards, caught the attention of Rock and Roll Hall of Famer Tom Petty's representatives, who noted that it sounded quite familiar. The publishers of Mr. Petty's 1989 hit "I Won't Back Down" then reached out to the "Stay With Me" publishers, alleging that the songs were sufficiently similar to garner a writing credit for Mr. Petty and Jeff Lynne, the former ELO frontman who co-wrote the 1989 ditty.

Mr. Smith and his writing partners, James Napier and William Phillips, agreed that the songs sounded similar, but maintained that they had never heard the Petty song prior to writing "Stay With Me." Nevertheless, the writing team quickly agreed to share writing credit on the song with Mr. Petty and Mr. Lynne.

The Recording Academy announced this week that despite gaining writing credit, Mr. Petty and Mr. Lynne would not be added to the Grammy nominations list for their contributions to the song. "Since Lynne and Petty did not do any new writing for this work, we are considering their original work to have been interpolated by Napier, Phillips and Smith for 'Stay With Me,'" The Recording Academy's vice president of awards said in a statement.

Yesterday, Mr. Petty released a statement insisting that he harbored no hard feelings towards Mr. Smith, and never had any intention to sue the young singer. "All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by," he said. "I wish Sam all the best for his ongoing career."

Last year, Mr. Smith's "Stay With Me" sold 3.5 million tracks and hit #2 on Billboard's Hot 100 chart. In 1989, Mr. Petty's "I Won't Back Down" only reached #12 on Billboard. Mr. Petty shouldn't feel too bad, though - his latest album, Hypnotic Eye, peaked at #1 last year and is nominated for best rock album at the Grammys.


Court Awards Sly Stone $5 Million in Unpaid Royalties

This week, a Los Angeles Superior Court jury found that Sylvester Stewart - better known as Sly Stone - had not been fully paid for songwriting royalties. The singer/songwriter, who fronted the legendary funk/soul group Sly and the Family Stone, has struggled financially in recent years, allegedly living in a van in South Los Angeles in 2011.

The complaint alleged that millions of dollars earned by Mr. Stewart were improperly rolled into accounts held by his former manager, Jerry Goldstein. It further alleged that Mr. Goldstein (who wrote "My Boyfriend's Back" for the Angels) and attorney Glenn Stone "without the permission of Sly Stone, have received, borrowed, and continue to receive millions of dollars in royalties or derived from royalties."

The jury determined that Goldstein, Glenn Stone and Even St. Productions owed Mr. Stewart $5 million in royalties in damages.

The defendants argued that Even St. had advanced Mr. Stewart "millions of dollars" to make a record, "and he never made it." They have indicated that they plan to appeal.

The singer's attorney, Nicholas Hornberger, acknowledged that his client would most likely not collect on the award until appeals are exhausted, but declared that the ruling represented a watershed victory for musicians. He called the decision "good news for music, good news for composers and others who earn their livelihood in this business ... it sends a loud and clear message. This is a really great ruling for people who create things."


Nike Sued Over Air Jordan "Jumpman" Logo

Photographer Jacobus Rentmeester has sued Nike for copyright infringement regarding the company's alleged improper use of his photograph in creating the famous Air Jordan "Jumpman" logo.

The federal suit, filed in Oregon federal court, contends that Mr. Rentmeester snapped the photo of Mr. Jordan in 1984 for an issue of Life Magazine. He claims that he created the iconic pose, which was inspired by a ballet technique known as 'grand jete.' He points out that the pose is "not reflective of Mr. Jordan's natural jump or dunking style," and that Mr. Jordan acknowledged that the pose derived from a ballet move in a 1997 interview.

Mr. Rentmeester also alleges that he, not Life Magazine, has retained ownership of photo, although he admits that it was only registered with the U.S. Patent and Trademark Office for the first time just last month.

Mr. Rentmeester claims that back in 1984, following the photograph's appearance in Life, Nike paid him $150 for temporary use of his slides. The company then used the slides to recreate the photograph with Mr. Jordan in his Chicago Bulls uniform with the Chicago skyline in the background. The following year, after threatening to sue the company, Mr. Rentmeester granted Nike the use of the logo based on his photograph for two years in North America, for which he was paid $15,000. Nike has used the logo continuously ever since, and trademarked various versions of the logo in 1989, 1992 and 1998.

Now, 28 years following the expiration of the two-year contract between Nike and Mr. Rentmeester, the photographer seeks to collect past profits associated with Jordan brand, as well as to halt current sales and plans for the brand's future. The Jordan brand generated $3.2 billion in retail sales in 2014 alone.

The statute of limitations on federal copyright claims is three years. However, the U.S. Supreme Court held in May 2014 that the statute of limitations on copyright claims is tolled for as long as the infringement continues. Therefore, because Nike continues to manufacture and advertise new Air Jordan brand merchandise using the Jumpman logo every year, Mr. Rentmeester's claim is not time-barred.


Yankees Consider Denying Alex Rodriguez's Contractual Bonuses Due to Admitted Steroid Use

In the history of Major League Baseball (MLB), only four players have hit more home runs than Alex Rodriguez. Mr. Rodriguez, who was suspended for the entire 2014 season due to his involvement with the Biogenesis steroid scandal, is currently under contract with the New York Yankees (Yankees, club). That contract contains a clause calling for a $6 million "milestone" bonus every time Mr. Rodriguez climbs the all-time home run list. Next in his sights is legendary center fielder Willie Mays and his 660 career home runs - Mr. Rodriguez currently sits at 654. Another 60 home runs will tie him with Babe Ruth.

The Yankees, however, are reportedly prepared to dispute the milestone payments. The club believes that Mr. Rodriguez's current employment contract, under which he is owed $61 million over the next three seasons, is a separate agreement from the marketing deal containing the milestone clauses. The milestone clauses are invalid, they argue, because that deal was signed under false pretenses. At the time it was signed in 2007, Rodriguez had never admitted to using steroids (he now has twice, in 2009 and again last year). The club contends that the bonus clause was intended as a marketing agreement tied to a "legitimate" home run chase, and that Mr. Rodriguez's steroid admissions have negated any marketing value tied to his home run-hitting exploits, thereby invalidating the milestone bonus clause.

The players' union, the Major League Baseball Players Association (MLBPA, union), has vowed to support Mr. Rodriguez if the Yankees attempt to deny him the bonus payments if and when he reaches the next milestone. In the case of any other player, this would be obvious. In Mr. Rodriguez's case, however, the union's declaration of support is noteworthy; just last year, he sued the MLBPA, alleging that it did not do enough to support him during his battle with then-MLB Commissioner Bud Selig regarding the Biogenesis scandal.

Nevertheless, the union has pledged to support its embattled member, regardless of their history. "He is still a member and that's how he will be considered," a source close to the MLBPA told the New York Post this week. "In this case and in any other." The union believes that Mr. Rodriguez has already been punished for his past discretions (through his suspension), and that to deny him the bonus payment(s) would constitute overkill.

"The union would challenge any breach of contract with the union," said the source. "A player can't be punished again for something he's already been punished for."


Law Firm Establishes Project to Fight "Revenge Porn"

A large national law firm, K&L Gates, has established a new initiative dedicated to representing victims of nonconsensual pornography (i.e. "revenge porn"). The new clinic, called the Cyber Civil Rights Legal Project (CCRLP), was founded by K&L Gates partner David A. Bateman and litigation associate Elisa D'Amico. According to the firm's website, the CCRLP "highlights and utilizes the firm's elite cyber security and cyber forensics practices, allowing volunteers to deliver quality pro bono services to victims across the globe."

The project is believed to be the first of its kind at a major U.S. law firm. To date, approximately 50 attorneys at the firm have volunteered their time, and the CCRLP is working with about 100 revenge porn victims.

One relatively new strategy to combat the posting of revenge porn is the use of federal copyright law. Under this approach, a victim's lawyer first demands that a website take down the offending images or videos of victims that were taken by the victims themselves (i.e. "selfies"), or else face lawsuits under copyright law. Typically, the sites (at least those based in the U.S.) comply, in order to avoid further legal entanglement.

However, if the website does not comply, and the victim wishes to go forward with the suit, he or she must first register the photos or videos to be protected with the U.S. Copyright Office. This can be an uncomfortable scenario for many victims, for obvious reasons.

Other approaches to combatting revenge porn have also proven successful in some cases. In Texas last year, for instance, a jury ordered a woman's ex-boyfriend to pay her $500,000 for posting an explicit video of her online without her permission, on emotional distress grounds.

Finally, state criminal laws are beginning to address the issue as well. In the past year alone, 12 states have enacted laws criminalizing nonconsensual pornography. Additionally, the Federal Trade Commission reached a settlement this week with a porn site operator, requiring him to cease sharing and posting nude videos and photographs of people without their permission.


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This page contains a single entry from the blog posted on January 31, 2015 11:24 AM.

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