« September 2015 | Main | November 2015 »

October 2015 Archives

October 1, 2015

Certain Open Water Swimming Rules Need To Be Amended

By Sergey Yurlov
Sports Law Researcher, sport judge and member of the Russian National Union of Sport Lawyers, member of the International Association of Sports Law (IASL)

This blog will consider the issue of physical contact in open water swimming competitions, and what measures should be taken to prevent further disputes, such as the one that occurred at the FINA 2015 World Championship in Kazan. There, Eugene Dratsev, an elite open water swimmer from Russia, took fourth place in the 5 kilometer race. He filed a protest alleging that he had been physically assaulted by another swimmer at the finish of the race. However, a panel of judges ruled that the competition had been conducted in due course.

According to the current version of FINA Open Water Swimming Rules (Rules) the following sanctions must be applied to a swimmer who intentionally contacts another one:
• For the first violation - competition officials show a yellow flag to indicate that the swimmer is violating the Rules; and
• for the second violation - by showing a red flag, competition officials disqualify the swimmer. (http://www.fina.org/H2O/docs/rules/2015/disciplines/FINAowrules_20152017.pdf)

Do these sanctions sufficiently protect the integrity of open water swimming?

It appears that the Rules should be amended by introducing new sanctions, such as adding seconds to a swimmer's time and bans for longer time periods, and by strengthening control over the athletes, as sometimes competition officials and judges cannot detect violations of the Rules. In those cases, the officials need to rely on the participants' reports as to what occurred.

Introducing New Sanctions

Article 6.3.1 of the Rules should provide for punitive seconds on a swimmer's time bans from one to three years, depending on the violation.

Adding seconds to a swimmer's time would be a penalty imposed for the first violation, along with the yellow flag. The time period it should vary from one minute to 10 minutes. Competition judges would have discretion in the length of this penalty. It is unlikely that a violator will continue infringing the Rules after the imposition of such a penalty.

The Rules should also provide for some types of bans, as it appears that the disqualification from a particular event has not been a sufficient deterrent. A violator should be banned from open water swimming competitions for six months for the first act, for a year for the second, and for three years for the third infraction. This penalty should be imposed along with the red flag. If a swimmer thereafter commits any further violation, then FINA should consider adopting a life ban.

Strengthening Control over Swimmers

In some cases, competition judges cannot exercise control over swimmers, and therefore are unable to detect violations of the Rules. It is clear that FINA should increase the quantity of the race judges (see Articles 3.27-3.30 of the Rules) supervising swimmers' compliance with the Rules.

At present, all violations are being recorded in writing only. Instead, the race judges should be provided with photo and video cameras to keep a record of a particular race. With this technical equipment, the race judges will detect more violations and have an opportunity to determine whether the Rules are violated.

October 5, 2015

Music Licensing Update

By Barry Skidelsky

On September 22, 2015, the Department of Justice requested further comments in connection with possible ASCAP and BMI consent decree reform (http://www.justice.gov/atr/antitrust-consent-decree-review-ascap-and-bmi-2015). On that same day, the Congressional Research Service released its report entitled "Copyright Licensing in Music Distribution, Reproduction and Public Performance" (https://www.fas.org/sgp/crs/misc/RL33631.pdf).

Both provide a useful outline of key concerns in music licensing law, and suggest where that piece of law might fit into the larger puzzle known as copyright reform. Meanwhile; Congress, the courts, and various stakeholders in the music business continue to struggle to apply existing copyright law to new and emerging technologies, ever hopeful that our country's historically balkanized approach to music licensing and other copyright issues may be modernized and simplified.

An experienced attorney and consultant, Barry is founder-owner of a nationally prominent private practice focused on representing and counseling individuals and entities directly or indirectly involved with traditional, online and mobile media, entertainment, advertising, marketing, telecommunications and technology, both domestically and abroad. Barry, a Berklee trained musician and former radio broadcaster, co-chairs the NYSBA EASL Television and Radio Committee. He also practicesinter alia before the Federal Communications Commission in Washington, D.C.
Contact: bskidelsky@mindspsring.com or 212-832-4800.

October 8, 2015

Center for Art Law Case Updates

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

Simcor LLC v. Mahama, 2:15-cv-4539 (C.D. Cal. June 15, 2015) -- After discovering unknown Ghanian artist Ibrahim Mahama, plaintiffs Stefan Simchowitz and Jonathan Ellis King helped to build the young artist a studio and reputation. Mahama then contracted to create works exclusively for the plaintiffs to display and sell. According to Simchowitz and King, Mahama breached this agreement by selling 20 similar works to an unnamed collector and by disclaiming authorship of the 294 signed, commissioned works, reportedly because he was dissatisfied with the quality of the finished products. The plaintiffs have sued to recover $4.45 million from Mahama, the estimated value of the 267 unsold works in their possession.

Building Industry Association - Bay Area v. Oakland, 3:2015cv03392 (N.D. Cal. July 23, 2015) -- A developers' industry group has filed suit against the City of Oakland, alleging that the City's Percentage for Art ordinance violates the U.S. Constitution. The ordinance was passed in February and requires that 1% of the budgets for non-residential construction projects and 0.5% of the budgets for residential projects be spent on art. Among other arguments, the plaintiffs claim that this amounts to unlawful compulsion of speech in violation of the Free Speech Clause of the First Amendment.

Fontes v. Autocom Networks, Inc., C 15-02044 CRB (N.D. Cal. 2015) -- Dan Fontes' mural of Lake Merritt had been locally famous since it was painted on the side of an Oakland building in 1987. Fontes filed suit against the building's current and former owners after the current tenant, a Nissan dealership, whitewashed the mural, which had already been damaged by graffiti. Fontes is seeking $400,000, arguing that VARA requires building owners to give 90 days notice of their intent to remove an artist's work from their property.

Honolulu Art Museum v. Greene, Civil No. 15-1-1515-07 ECN (HI Cir. 1st, Aug. 28, 2015) -- The Honolulu Art Museum has filed suit against 80 year old art collector Joel A. Greene for $880,000, alleging that Greene failed to provide adequate provenance for five Southeast Asian works of art that he donated in exchange for quarterly payments of $80,000 for the duration of his life. Suspicions about the works, worth $1.275 million, first arose in 2011, after the Department of Homeland Security seized seven works from the museum that had originated from Asian art smuggler Subhash Kapoor.

Committee to Save Cooper Union v. Bd. of Trustees of the Cooper Union, No. 0155185-2014 (N.Y. Sup. 2015) -- Cooper Union has agreed to settle a 2014 lawsuit filed by a group of faculty and alumni to restore the school's 155-year-old tuition-free model. The settlement, pending review by the New York Supreme Court, would create a "Free Education Committee" tasked with developing a plan to return to the no-tuition system. The art, design and engineering college will also add alumni-elected members and two students to its board of trustees.

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 (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/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: www.itsartlaw.com or write to itsartlaw@gmail.com.

October 10, 2015

Week in Review September 28- October 9, 2015

By Zak Kurtz

New York Attorney General Launches Investigation into DraftKings and FanDuel

Last weekend, DraftKings employee Ethan Haskell finished second in a million-dollar fantasy contest on rival site FanDuel, and won $350,000. The previous day, Haskell admittedly published internal data revealing the percentage of rosters on which specific players were included. DraftKings stated that Haskell did not have access to this internal data prior to his locking in the winning lineup. However, the situation in general has caused uproar in the daily fantasy sports community. Despite winning a sizeable amount, the mere timing of the two events could not have been worse for Haskell, as DraftKings and FanDuel were forced to conduct internal investigations looking into the matter, among harsh industry criticism.

Both internal investigations found no wrongdoing on Haskell's part at the time. However, the companies decided to change their current policies this week and permanently forbid employees from participating on any other fantasy sites for pay. Both companies had always had a policy banning employees from playing on their employers' sites.

Additionally, FanDuel announced that it has hired former federal judge and U.S. Attorney General Michael Mukasey to review the facts and evaluate internal standards and policies. DraftKings confirmed that it hired the law firm of Greenberg Traurig to handle the internal audit of company policies.

To top it all off, New York Attorney General Eric Schneiderman announced on Tuesday that he launched an inquiry into DraftKings and FanDuel and possible advantages that their employees might have gained by using their companies' data to win prizes offered by other competitors.

According to FanDuel spokesperson Justine Sacco, the company's first internal audit showed that DraftKings employees had won 0.3% of the overall money the company has ever awarded. By admission, FanDuel has handed out over $2 billion in prizes overall. That means that employees from DraftKings have won over $6 million.



Fantasy Players Now Filing Suit Against DraftKings and FanDuel

Pandora's box officially opened last week after the Haskell incident came to light. On top of all the negative media attention and the hiring of law firms and federal investigators to conduct internal audits, the two leading sites in daily fantasy sports will now have to defend a lawsuit from one of their customers.

On Thursday, Adam Johnson, a daily fantasy sports player from Kentucky, filed a federal lawsuit in New York accusing both companies of fraud. The lawsuit asks for damages for him and others "similarly situated," claiming that the companies failed to disclose that their employees had access to insider data that they could use to win millions of dollars at the expense of regular customers.


Fédération Internationale de Football Association President Sepp Blatter Faces 90 Days Provision Suspension

In late September, Switzerland authorities announced that they were opening a criminal investigation on Fédération Internationale de Football Association (FIFA) President, Sepp Blatter, for criminal misappropriation and mismanagement of FIFA money. The Swiss attorney general interrogated Blatter in Zurich, and heard him continuously claim that he had done nothing illegal or improper. The investigation accuses Blatter of signing an unfavorable contract and making a disloyal payment to UEFA president, Michael Platini.

Although the criminal investigation was looming over his head, Blatter still announced that he would not step down and that he will remain president until February. However, the Swiss investigation gave FIFA another chance to analyze his conduct, through an investigation by the FIFA ethics committee. This investigation seemed to present the fastest (and only) way to get Blatter out of the presidency for the short term.

As predicted, on Wednesday, October 7th, FIFA's ethics committee ruled to provisionally suspend Blatter for 90 days. Klauss Stohlker, Blatter's attorney, continued to claim that Blatter had done nothing wrong, and that the committee should have at least attempted to hear from Blatter prior to making a ruling. The ruling also suspended Union of European Football Associations president Michael Platini.

http://www.bbc.com/sport/0/football/34468663 and http://edition.cnn.com/2015/10/07/sport/blatter-suspended-fifa/

Tough Contracts Forbid Many Stars From Participating in Rugby World Cup

In strict contrast with the futbo,l or soccer, World Cup, the rugby World Cup admittedly does not include many of the world's best players. This year's tournament began on September 18th and concludes on October 31th. It is lacking some of the top stars in the sport because of strict contract language that is commonplace in the sport.

Unlike soccer and many other professional sports, several European rugby teams include contract language that specifically states that players cannot also play for their national teams. This contract language hurts the players, the national teams, the fans, and the sport as a whole, by denying many top players the ability to represent their countries in international play.

This is particularly harmful for the smaller nations that do not have as many star quality players. In those instances, elite players from smaller nations will play in Europe and ultimately be forced to sign contracts barring them from playing for their national teams.

Elvis Seveali'i, a former Samoan wing player, described contract negotiations with the clubs as brutally straightforward. He said that he was offered two contracts by the team, but the only difference between them was that one included roughly 30% more money, but also a clause stating that he agreed to end his international career. Seveali'i said that the newspaper the following day had an article noting that he had retired from international rugby at the ripe age of 23.

The sports global governing body, known as World Rugby, has Regulation 9 in place for this exact situation. Regulation 9 essentially states that a national team has the right to call up whatever players it wants for important matches. Any alleged breaches of Regulation 9 are investigated thoroughly by World Rugby, according to an organizations spokesman. However, the spokesman also stated that they have received no reported breaches leading up to this World Cup.

The global rugby players union has been aware of the problem for years. The union's leader, Rob Nichol, claims that the problem, like many others, centers around money and that it only impacts the 15% of professional rugby players from the Pacific islands. Nichol also blames the tiered structure of global rugby that allows top tier federations in England, Australia and New Zealand, to profit from the Rugby World Cup more that those at other tiers. According to Nichol, the rapid rise of professional rugby since 1997 has only perpetuated the matter.


$20 Million Can't Even Get A College Named After You

Paul Smith's College, located in the Adirondack Pack in northern New York State, was created in 1937 from Phelps Smith's bequest. The only requirement was that the college be forever known as Paul Smith's College of Arts and Sciences, in honor of Phelps father, a 19th century hotelier.

The small college in New York State was struggling with donations until recently, when Joan Weill, the wife of Wall Street billionaire Sanford Weill, proposed a $20 million dollar gift to the college. Weill's only condition was for the college to become known as Joan Weill-Paul Smith's College.

The decision to change the name and accept the Weill's gift or honor the founder's words became a hot topic of debate in the small town and caused some chaos. That all ended this Wednesday, when a state judge rejected the name change. The ruling stated that Mrs. Weill's money did not give the college the license to violate a provision in the founder's will naming the college after his father in perpetuity.

The decision is one of the few cases of its kind to end with a judicial ruling. Experts are now saying that this decision will set the precedent for how long colleges must obey to restrictions set at their founding. Showing that perpetual naming agreements will not be lifted easily.


Brief Victory for National Collegiate Athletic Association as Panel Strikes Down Pay for College Athletes

On Wednesday, September 30th, a three-judge panel of the United States Court of Appeals for the Ninth Circuit made a ruling in the precedent setting O'Bannon case, declaring that the National Collegiate Athletic Association (NCAA) may restrict colleges from compensating athletes beyond the cost of attendance. This ruling appears to be a win on its face for the NCAA; however, there are parts of the decision that both sides will dislike.

In short, the Court acknowledged the central argument claimed by O'Bannon, stating that certain NCAA amateurism rules violate federal antitrust law. However, the Court also declared that the NCAA member schools' newly proclaimed requirements to pay Division I football and men's basketball players up to $5,000 a year for name, image and likeness rights (NIL) is void. This requirement was enacted after a 2014 injunction issued by United States District Court Judge Claudia Wilken, which allowed the NCAA to provide money above the cost of attendance to some student athletes in exchange for using their NIL rights.

This most recent decision by the Ninth Circuit threw out a very vital part of the District Court's pro O'Bannon ruling. Conversely, the Ninth Circuit affirmed the core reasoning of the District Court's decision, stating that the NCAA was violating Section 1 of the Sherman Antitrust Act for many years. More specifically, the opinion stated that the NCAA's amateurism rules unlawfully prevent member schools and conferences from competing to compensate Division 1 men's basketball and football players. Additionally, the Ninth Circuit rejected the NCAA's reliance on the 1984 Supreme Court decision in NCAA v. Board of Regents, which claimed that challenges to the NCAA amateurism rules were void as a matter of law, and emphasizing that NCAA rules wee subject to the same antitrust scrutiny as rules adopted in other industries.

In conclusion, the ruling is deemed a win for the NCAA because it limits the scope of member schools' abilities to pay student athletes more than the cost of attendance by giving them up to $5,000 for their NIL rights. Throwing out the District Court's proposal, the core argument made by O'Bannon was upheld and the Court declared that the NCAA violated the Sherman Act.

Although the decision may be viewed as a brief victory for the NCAA, this case is still far from over, as an appeal seems likely by either side, or both.


Global Criminal Court Finally Takes Case on Cultural Crimes

Prosecutors have brought a radical Islamist to the International Criminal Court (ICC) for allegedly destroying ancient religious monuments in 2012, when his extremist group overran Timbuktu in Mali. Last week, Ahmad al-Faqi al-Mahdi was handed over to the ICC for an initial appearance before an international judge.

Prosecutors claim that al-Mahdi is the head of a self-appointed "morality squad," working with a new Islamist Court, and that he is a "zealous member" of Ansar Dine, an Islamic extremist group linked to Al Qaeda. Al-Mahdi is alleged to have played an active role in committing war crimes in Timbuktu by directing attacks against 10 religious buildings. These buildings are said to hold much of Timbuktu's cultural Islamic heritage. In contrast, al-Mahdi stated that he was a 40-year-old teachers' college graduate and civil servant.

The destruction of the buildings and cultural artifacts in Mali relating to this case date back to 2012, when Timbuktu and other northern desert towns were overran by Islamic radicals. One such group, the Ansar Dine, or Defenders of the Faith, of which prosecutors claim al-Mahdi is a member, destroyed many of the town's idols and cultural symbols. More recently, attacks on cultural and religious sites in Iraq and Syria have pushed this issue to attention in the media. However, the ICC does not have jurisdiction in those countries. This might be one reason as to why the ICC finally decided involve itself in al-Madhi's case in Mali, after Mali's government reached out to the ICC asking for help, as it was incapable of conducting widespread criminal investigations.


Toledo Museum of Art Returns Smuggled Indian Works

The Toledo Museum of Art has decided that it would return a nearly 1,000-year-old bronze sculpture of the Hindu god Ganesha, along with three other pieces of rare Indian artwork, to the Government of India. The four ancient objects were purchased by the museum in 2006 from Subhash Kapoor, a former New York art dealer, who is currently awaiting trial in the southern Indian city of Chennai on charges of forgery, conspiracy, theft and smuggling. The United States is also pursuing criminal charges against Kapoor, and has described him as the most ambitious antiquities smugglers in American history.

The Toledo Museum of Art and the Indian Consulate General Ambassador researched this matter, and recently came to the conclusion that the provenance of the pieces were either falsified or could not be verified. A recommendation was then made for the return of the pieces to the Toledo Museum of Art's Art Committee. The Art Committee voted to return the Ganesha piece. The issue with the provenance and the facts surrounding Kapoor were also taken into account, and the Art Committee ultimately decided to return all four pieces to the Indian government for display.


October 21, 2015

Week In Review

By Zak Kurtz

Google's Digital Library Wins Huge Court of Appeals Ruling

In a legal battle that has stretched out for over a decade, Google has won (so far). On Friday, the Second Circuit ruled in favor of Google's efforts to create a digital library consisting of millions of books from the public domain. The court ruled that the library did not infringe on the copyrights of the authors and that Google's use was a fair one.

Judge Pierre Leval wrote the opinion concluding that: "The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals." This most recent decision affirmed the lower court's decision two years ago, where the notion was rejected that Google's book project was for commercial use, violated the authors copyrights, and drove down sales by making portions of their works available for free online.

The project began in 2004, when Google originally approached major research libraries offering to scan and digitize books from their collections to protect against fires and for insurance purposes. Since then, Google has scanned more than 20 million books, while dealing with constant legal threats from copyright holders worldwide.

Despite the repeated ruling in favor of Google, a representative from the Authors Guild stated that group plans to take the case to the Supreme Court.


DraftKings and Daily Fantasy Sports Outlawed in Nevada As Unlicensed Gambling

In the midst of all the drama from DraftKings and FanDuel last week, including an investigation by the New York Attorney General, Nevada has come forward with a big announcement. In a decision last Thursday, Nevada Gaming Control (NGC) Board chairman, A.G. Burnett, declared that all companies that provide services related to daily fantasy sports must obtain licenses to operate in the state.

According to Burnett, all unlicensed daily fantasy activities must cease and desist immediately, with a hard deadline of Thursday (tomorrow). Those who operate without a license could face felony charges and up to 10 years in prison. The statutory definition used by the NGC interprets daily fantasy sports as gambling. It also puts fantasy sports in the category of "sports pools," where someone is in the business of accepting wagers on sporting events. On the opposite side of the equation, operators of daily fantasy sites have constantly claimed that the sites offer games of a skill, and not a form of gambling. Burnett claimed that states like Nevada have statutes and definitions that override the skill versus chance, gambling argument.

The operators of daily fantasy sports sites claim that they fall within a specific carve-out in the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA). The language of the UIGEA prohibits betting on sports events over the Internet. However, one section therein expressly allows certain types of fantasy sports games, to which FanDuel, DraftKings and others believe they belong. Despite the language in the UIGEA, individual states can still create their own laws on the subject matter, just as Nevada has done.

The state most known for gambling is now the first to create a licensing system for what is newly statutorily defined as "gambling" on daily fantasy sports. The casino gaming industry is clearly on the side of the NGC here, and has long called for greater legal clarity on the daily fantasy sports industry. FanDuel has come forward and announced that it will not be doing business in Nevada because of the NGC's ruling.


Federal Bureau of Investigation Now Investigating DraftKings and FanDuel

The daily fantasy sports industry is under fire. As previously mentioned, the multi-billion dollar industry is now being scrutinized heavily from all angles. The latest to join the party is the Federal Bureau of Investigation (FBI).

The FBI contacted several prominent competitors in the fantasy arena. The players interviewed said that the FBI's questions primarily focused on DraftKings, and were conducted by agents from the bureau's Boston office, as DraftKings is a Boston-based company.

As a quick refresher, this all started when a midlevel employee of DraftKings admitted that he inadvertently released important player usage statistics during week three of the NFL season. The same employee went on to win $350,000 in a FanDuel tournament that same week. The FBI, New York Attorney General, individual states, and players have all started investigating and highlighting the flaws of the young but booming industry.


New Jersey Appeals Court Rethinks Sports Gambling

New Jersey has taken the initial steps moving in the opposite direction as Nevada on the issue of "sports" gambling. Last Wednesday, a federal appeals court decided to vacate the decision by the U.S. Court of Appeals for the Third Circuit in Philadelphia, which upheld a lower court ruling that declared state legislation on sports gambling illegal. The initial decision was a 2-to-1 decision, stating that the New Jersey created legislation allowing New Jersey casinos to bet on sports violated the federal Professional and Amateur Sports Protection Act (PASPA).

According to Daniel Wallach, a Florida sports and gambling lawyer, the decision to vacate the ruling is the judicial equivalent of winning the lottery. Legally, it means that judges in the Third Circuit will re-hear oral arguments and review supplemental briefs by both sides. A minimum of 12 of the 23 judges must then rule that the legislation passes legal muster. The news of this decision breathes new life back into the very real conversation of legalizing sports betting in New Jersey.


Defamation Lawsuit Against Bill Cosby Marches On In Massachusetts

Last Friday, a Massachusetts federal judge refused to dismiss a lawsuit filed by three women against Bill Cosby. The lawsuit alleges that Cosby sexually assaulted them and later made defaming comments by claiming that such sexual assaults did not occur.

Tamara Green, Therese Serignese and Linda Traitz allege that Mr. Cosby assaulted them in the 1970's and has continually lied about it in the public and to his representatives. The three women are barred from bring assault accusations because of the statute of limitations. Therefore, Joseph Cammarata, the lawyer for the three women, filed a defamation complaint based on Cosby's continuous denial of the accusations. The judge's decision to hear the case is a big step for the accusers, and opens up Cosby to be deposed under oath.

This is only one of the many cases against Cosby. Last Friday in the same courthouse, Cosby answered questions under oath in a separate California civil case by plaintiff Judy Huth. Huth claims that Cosby forced her to perform sexual acts for him when she was only 15 years old.


Court Asked to Reconsider Ban On Paying College Athletes

The recent decision by the Ninth Circuit Court of Appeals to ban the payment of college athletes is being questioned. Last Wednesday, attorneys representing the group of former college athletes asked the Court to review its initial ruling.

The attorneys petitioned the court, asking for an en banc hearing that would allow the judges in the Ninth Circuit to collectively review the decision, instead of only the three judges who initially made the ruling.

The specific portion from the ruling that the attorneys want appealed states that the enhanced scholarships already approved by the N.C.A.A. this year must be stopped, as they are also antitrust violations. The attorneys essentially want these so-called scholarships to be allowed, as a sufficient remedy to antitrust harm. The most recent decision by the appellate court threw out the deferred payments suggested by the district court that would have allowed colleges to pay athletes up to $5,000 per year.

The Ninth Circuit will take approximately six weeks to review the petition and decide whether to hear the case. If it takes the case, an 11-judge panel will make the final decision.


Spanish Billionaire Fights Government Over Picasso

Jaime Botin, a billionaire banker and public figure in Spain, has been in a heated argument with the Spanish government since July over a multi-million dollar Picasso painting. Botin has owned the painting for 40 years and claims the painting is his rightful property, while the Spanish government claims that the painting has national significance and belongs to it.

Customs agents seized the 1906 Picasso painting known as "Head of a Young Women" from a yacht in the Mediterranean in July. The portrait is worth $28.3 million.

The legal stage for this case will take place in Spain and France, but will be significant in many more countries. The dispute highlights the familiar clash between private property and property the state claims has national heritage or cultural significance, the latter of which makes the art lose its entire market value.

The added French and Spanish twist in this case comes from the claim that Picasso has an "artistic connection" to Spain, according to the Spanish government. The French customs agents seized the painting from Botin's yacht while he was in the process of flying it to a Swiss Freeport storage center, giving them jurisdiction.

According to Guiseppe Calabi, a lawyer representing a collector in a similar case involving a Dalí work in Italy, the state is denying an export to a private citizen by declaring the item to be of cultural interest to the state. At the same time, the state is destroying the entire market value of the item.

These cases have become more popular lately, as countries like Ireland and Germany are amending their laws to keep works that might sell abroad in the booming art market within the countries' borders. This issue is one to follow and will help paint the legal picture on what constitutes a national heritage in the realm of expensive and precious arts.


Presidential Candidates Choice of Music Again Comes Into Play

Presidential campaigns are coming under the microscope for all the wrong reasons.

In January, the band Dropkick Murphy's asked Governor Scott Walker of Wisconsin to stop using its punk music in his campaign. Then, in September, R.E.M. complained that Donald Trump used the song "It's the End of the World as We Know It" without permission. Most recently, Steven Tyler of Aerosmith demanded that Trump stop using the band's song "Dream On" at his campaign events.

In a press release, the lawyer representing Tyler stated, "If Trump for President does not comply with our demands our client will be forced to pursue any and all legal or equitable remedies which our client may have against you."

Tyler and Trump reportedly resolved the matter by Trump agreeing not to play the song at his events. However, it was reported that Trump walked out to the song at an event in New Hampshire last Monday.


Internal Lawsuit Shakes Up the United States Olympic Shooting Team Before Rio

In a dispute over management and transparency of the national governing body, U.S.A. Shooting has filed a civil lawsuit against some of the team's athletes and officials. The Olympics are less than 10 months away, and many athletes are claiming that the lawsuit is distracting them from training properly.

The athletes believe this lawsuit relates to a grievance that six current and former athletes and officials filed with the United States Olympic Committee against U.S.A. Shooting back in August. The complaint accuses Robert Mitchell, the executive director of U.S.A. Shooting, and two other top leaders, of running a "closed shop" in violation of Olympic bylaws. Mitchell called the grievance a baseless retaliation against him by those who attempted, and failed, to take control of U.S.A. Shooting's board of directors in a disputed election in March.

Whichever way one views the dispute, the internal battle is clearly causing problems for the athletes and could impact the medal count for the United States shooters. The United States pistol, rifle and shotgun shooters have won an Olympic record 107 medals. The second placed team the United States has not even won half of that amount. The internal battle needs to end, as the civil lawsuit may impact the team U.S.A. and the country.


Hot Yoga Does Not Get Copyright Protection

Hot yoga instructors across the nation can now sweat in peace. Last week, the Ninth Circuit ruled that Bikram Choudhury can not get copyright protection for a sequence of 26 yoga poses and two breathing exercises performed in a hot room.

Choudhury, the self-proclaimed Yogi to the Stars, made these famous "hot yoga" techniques popular and had previously threatened legal action if other instructors used his sequence without permission. The Ninth Circuit thought differently. Judge Kim McLane Wardlaw's decision stated that: "Consumers would have little reason to buy Choudhury's book if Choudhury held a monopoly on the practice of the very activity he sought to popularize."

The Court's ruling frees the mind of yoga instructors all over, as they now can teach the sequence without fear of reprisal. This seemingly silly lawsuit highlights the tension between traditional yoga practices and billion-dollar modern yoga industry.


October 23, 2015

Kanye West and Kim Kardashian West Settle With YouTube Co-founder

By Kelechi Ajoku

A lawsuit brought by Kanye West and Kim Kardashian against YouTube co-founder Chad Hurley was recently settled for $440,000. This settlement may challenge members of the media to think twice before violating the privacy rights of celebrities, especially if contractual agreements are involved.

In October 2013, Chad Hurley allegedly breached a confidentiality agreement by leaking footage of Kanye West's proposal to Kim Kardashian at AT&T Park. West rented the entire San Francisco Giants' stadium for the private event with friends and family, making the proposal unavailable to the public. The few guests who were present, Hurley being one of them, were required to sign confidentiality agreements. In the lawsuit, the couple alleged that the confidentiality agreement granted them exclusive property rights to the images, which were intended to be aired on the "Keeping Up with the Kardashians" E! series. (http://www.dailymail.co.uk/tvshowbiz/article-3051091/Kim-Kardashian-Kanye-West-video-leak-lawsuit-proceed.html). According to West and Kardashian, Hurley manipulated his way into AT&T Park with the intention to broadcast the footage despite signing the agreement. (http://www.eonline.com/news/690562/kim-kardashian-kanye-west-win-440-000-settlement-after-filing-lawsuit-over-leaked-proposal-video). Hurley responded that the confidentiality agreement was not binding on MixBit, his privately owned website to which he posted the footage, and therefore essentially not in violation of the agreement. (http://www.nydailynews.com/entertainment/gossip/kimye-lawsuit-youtube-co-founder-proceed-article-1.2195630).

The lower court held that the couple showed a plausible claim for breach of contract, fraud, and unjust enrichment. Although the Second Circuit upheld the ruling, West and Kardashian later agreed to settle the lawsuit.

While representatives of the media may have the right to photograph and videotape celebrities, when legally binding confidentiality agreements are involved, the courts decisions show that they should adhere to such agreements or risk lawsuits. Members of the media often photograph and videotape public figures, without the celebrities' knowledge, and post the images on websites, magazines and in other forms of media outlets. As public figures, there is a lessor expectation of privacy than non-public figures, and, therefore, usually little to no consequences for those capturing and disseminating the images and videos. However, when efforts are taken to secure privacy by enforcing confidentiality agreements and/or other measures, it is likely that such contracts will be legally binding.

Regardless of whether Kardashian allows the world into her private life by broadcasting it via the "Keeping Up with the Kardashians" series, her proposal was intended to be private and confidential until it was aired on her terms. Therefore, members of the media should take precautions in the future to avoid any legal problems associated with legally binding confidentiality agreements, and we may now see more celebrities using such agreements as a protective tool.

"...Quizno's Spoof Ad Is So Real, the Burning Man Festival Is Threatening to Sue"

By John E. Moore
Law Offices of John E. Moore

Quizno's, a sandwich chain, has released a video making fun of the Burning Man festival's growing corporate influence. (Abby Phillip, This Quizno's Spoof ad is so real, the Burning Man festival is threatening to sue, WASHINGTON POST, September 13th, 2015, at www.washingtonpost.com)

If you did not know already, Burning Man is a music and arts festival that takes place annually in the deserts of Nevada. The "burners" (that is, the party-goers) construct a series of themed camps around the "playa." In the center of the playa is a massive wooden sculpture--the man--which is burnt on the closing evening of every year's rave. Beginning with only 40 participants on a beach near San Francisco in 1986, it attracted over 65,000 in 2014. (See generally at http://burningman.org/)

The Burning Man has established an ethos tied up in 10 principles, the most important here is the "decommodification" principle. Burning Man intends to create social environments "unmediated by commercial sponsorships, transactions, or advertising." The organization stands ready to protect its culture from exploitation and to "resist the substitution of consumption for participatory experience." (See "Decommodification," at http://burningman.org/culture/philosophical-center/10-principles/) According to the Washington Post, however, Burning Man has been subject to growing criticism for allowing corporate executives to put up increasingly elaborate, corporate-sponsored camps that seem to undermine the "decommodification" principle.

Enter Quizno's with a video advertisement that mocks Burning Man and its excesses. (See "Burn Trials--Out of the Maze and onto the Playa," at https://www.youtube.com/watch?v=CBVBHRD5lNU)(the Ad). In the video, which also parodies "The Maze Runner" movie, a group of teens have escaped the maze (which is beyond the scope of this comment) and arrived on the "playa," an outpost that is supposedly preserving the outside world by "a very thin, non-GMO, cruelty-free organic hemp thread[!]" Yet the teens discover the camp's dangerous secret: it is only a veneer of counter-culturalism over "Phase 2" of a plan to get "millennials to fork over tons of cash for an over-crowded festival in the middle of the desert." The camp has become commodified. "You kids won't last a day out on the playa without subtle exposure to corporate influence," warns the camp leader who then looks to his left as a Quizno's $1 off pop up click box appears on screen. (See Ad.)
Burning Man, incensed at Quizno's ad, contacted its attorneys about its legal options. What could those be? Perhaps claims of defamation or trademark infringement. However, Burning Man would then have to contend with Quizno's defense that its ad is a parody.

For a defamation claim, Burning Man might state that Quizno's ad made public, false statements "of and concerning" Burning Man that have resulted in harm by lowering its reputation in at least some part of the community. A company or organization can be a plaintiff for libel and defamation.

Yet a defamation claim presents problems for Burning Man. First, the festival's organizers could have a hard time showing falsity. Quizno's is not the first to note the conflict between Burning Man's "decommodification" principle and the appearance of branding at the festival. Burning Man might also have trouble on the "of and concerning" prong. Authors have license to creatively interpret scenes of reality when there are no serious doubts that the portrayal is meant as the truth. Last, how would Burning Man show harm? Attendance in 2014 was 65,922, which was already down from 69,613 in 2013. Besides, as a public figure/organization (a 105 foot tall public figure), Burning Man would have to show that Quizno's statements were made with actual malice. That is, that Quizno's acted with knowledge that the statement was false, or with reckless disregard as to whether the statement was false or not. Either sets a high bar. And public figures have trouble overcoming the parody defense. (See Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (Hustler Magazine's parodic description of the Rev. Jerry Falwell's "first time" occurring during a rendezvous with his mother in an outhouse was found not actionable.))

A more interesting path for Burning Man would be to make claims under the Lanham Act. Burning Man is a trademark registered with the U.S. Patent and Trademark Office, and the video clearly uses the words "Burning Man", giving the organization possible claims of infringement, blurring, and tarnishment. Each of those, though, could falter against the fair use defense of parody.

Parody, in trademark, is a complete defense; but it has to be a successful parody, and the viewer cannot be confused as to the ultimate source of the goods or services. A successful parody must convey two simultaneous, yet contradictory messages: that it is and is not the original. This differential should communicate some element of satire, humor, or ridicule.(See generally Louis Vuitton Malletier SA v. Haute Diggity Dog LLC, 507 F.3d 252 (4th Cir. 2007) (in which "Chewy Vuiton," a chewable dog toy modeled after Louis Vuitton designer handbags used "for casual canine destruction," was an unmistakable satire with no likelihood of confusion as to the ultimate source); also Jordache Enters., Inc. v. Hogg Wyld, Ltd., 635 F. Supp. 48 (D.N.M. 1985) (finding the use of "Lardashe" jeans for larger women to be a successful and permissible parody of "Jordache" designer jeans))

Quizno's ad is evidently parody. It continues the events immediately following Quizno's "Maze Runner" ad--itself a parody of a recent fantasy adventure film. In the new scenario, the earnest teens, having escaped the Maze, arrive at the "playa." Against a background of suspenseful music and sound effects, they are confronted with broadly drawn and ridiculous characters and situations. In one scene, a bearded, overweight "shaman" wearing a stuffed animal costume anoints the main character "Moon Pony." In another, the camp leader mysteriously asks "Don't you want to understand . . . how to look cool on Instagram?" The ad mocks the earnest excesses of the Burning Man festival. Yet even if the ad were found to be a successful parody, would the viewer be confused as to the actual source of the goods?

To make a confusion claim under the Lanham Act, Burning Man would have to demonstrate (1) the strength or distinctiveness of its mark; (2) the similarity of the two marks; (3) the similarity of the goods and services the marks identify; (4) the similarity of the two businesses' facilities; (5) the similarity of advertising used by the two parties; (6) the defendant's intent; and (7) actual confusion. Even assuming that "Burning Man" is a strong mark--not a foregone conclusion: ask your average 50-year old if she or he has ever heard of Burning Man--there is no similarity of the marks, the goods and services identified, the two businesses' facilities, or the advertising. As for Quizno's intent, an intent to use the mark is actually required for parody. However, an intent to parody a mark is not an intent to confuse the public. (See Jordache, 828 F.2d at 1486.) Further, a successful parody can co-opt most or all of the confusion factors to the defendant's benefit. The "Chewy Vuiton" court noted that, by concluding that the "Chewy Vuiton" dog toy was a successful parody, it implied that the defendant had mimicked part of the Louis Vuitton marks, but because the differences were sufficiently obvious, no consumer would mistake the source of a "Chewy Vuiton" as coming from Louis Vuitton. Here, it seems clear that an ad sponsored by Quizno's, where pop-ups continue to appear advertising $1 off sandwiches while poking fun at the supposedly silly seriousness of Burning Man, is not likely to lead to consumer confusion.

Burning Man would have similar difficulty showing dilution or tarnishment. Under the Trademark Dilution Revision Act of 2006 (TDRA), Burning Man would have to show it has a (1) famous, distinctive mark, (2) which is being used by the defendant and is diluting the famous mark, (3) that there is similarity between the two marks giving rise to association, and (4) that the association is likely to impair the distinctiveness of the famous mark ("blurring") or harm the mark's reputation ("tarnishment"). The TDRA provides that fair use--interpreted to included parody--is a complete defense as long as the use is not a designation of source for the person's own goods or services.

Here, a successful parody co-opts the dilution and tarnishment factors. Again, assume the Burning Man mark is famous and distinctive. A successful parody requires the viewer to make an association between the famous mark and the parody. However, as long as the viewer can distinguish that they are separate, there would be no blurring. In Hormel Foods, the court found that the Muppets parody character, Spa'am, a wild boar, increased public association of the Spam food product with its source and so no dilution existed. (Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 506 (2d Cir. 1996)) Similarly, since a parody involves ridicule and mocking, which has at its core an intent to harm, how can there be tarnishment? In Hormel, the court found that Spam was already the butt of jokes, and thus no tarnishment existed. Similarly, Quizno's is mocking a recognized problem at Burning Man -- it already has been commodified in violation of its "decommodification" principle. As long as Quizno's use of the Burning Man mark is not a designation of source for Quizno's own goods, no blurring or tarnishment exists.

As an aside, note the tension caused if Burning Man were to use trademark law to protect its "decommodification" principle.

Many cautious attorneys advise their clients to shy away from use of a third party's name, likeness, or mark to avoid litigation, even though there is a fair use defense. To be sued in the first place is to lose. Yet a review of the ads on the Quizno's site shows that its legal and advertising departments are unfazed by the possibility. Quizno's executives seem confident that their parodies are fair use and, perhaps, that the cost of any suit would be offset by the publicity accruing to Quizno's. More power to them.

Now let's go get a sandwich and sit around a campfire somewhere.

October 25, 2015

The Baseball Rule and Fan Safety At The Ballpark

By Michael Galati

According to analysis conducted by Bloomberg News, over 1,700 spectators per season are injured by baseballs that come whizzing off the bats of Major League Baseball (MLB) players. (http://www.bloomberg.com/news/articles/2014-09-09/baseball-caught-looking-as-fouls-injure-1750-fans-a-year). Unfortunately, foul balls routinely result in severe injury to fans. For example, in 2014, Stephanie Taubin was struck in the face while attending a game at Fenway Park. She suffered facial fractures and neurological damage. (https://www.bostonglobe.com/metro/2015/08/27/brookline-woman-suing-john-henry-after-foul-ball-injury-fenway-park/fBmQGQZKh6ntVD55JrljvL/story.html). This year, Tonya Carpenter was hit in the face by the shard of a shattered bat, causing what police initially described as "life-threatening injuries." (http://www.dailymail.co.uk/news/article-3122448/Baseball-fan-seriously-hurt-hit-face-shards-shattered-bat-Fenway-Park-leaves-hospital-week-treatment.html). Further, a foul ball also struck Stephanie Wapenski in the face, requiring at least 30 stitches. When asked for her recollections of the incident, Wapenski stated that she recalled seeing the ball, but had no time to react. (http://abcnews.go.com/US/quiet-woman-struck-baseball-fenway/story?id=32408853).

Many of the fans struck by bats and balls in the course of a game end up paying large medical bills for their injuries, but very few sue the teams and stadiums for damages. The "Baseball Rule," as it has become known, is responsible for making fans forgo litigation in these situations; as when Monte Hoskey decided not to sue the Kansas City Royals after his four-year old daughter suffered a skull fracture from a foul ball. The Baseball Rule releases stadium owners from liability for injuries caused by balls or bats flying into the stands, so long as screened seating is available for a reasonable number of spectators. It relieves stadium owners of almost all liability for foul ball and broken bat-related injuries. Moreover, the Baseball Rule has been an accepted defense by most courts. (https://www.bostonglobe.com/metro/2015/06/07/woman-injured-fenway-friday-remains-serious-condition/vtiDNIz51ruBsxTpd0BJwM/story.html).

Given the severity of the injuries sustained by fans, the inevitable question arises: Should the Baseball Rule continue to be allowed to protect ballpark owners from liability, or should MLB step in and mandate that ballparks implement further safety precautions? Players are taking notice of the injuries, and have requested additional protective netting when negotiating the last two collective bargaining agreements. (http://hardballtalk.nbcsports.com/2015/06/07/report-players-requested-more-protective-netting-but-were-denied-by-owners/). After a fan was struck with a foul ball and carted off the field at a Detroit Tigers' game, ESPN.com quoted Detroit Tigers' pitcher Justin Verlander as saying: "It seems like something happens once a game, where a ball just misses a fan and, inevitably, it's always small kids or women, you know. It's just something that needs to be looked at, and hopefully it doesn't get to the point where something really serious happens before there's an adjustment made." (http://espn.go.com/mlb/story/_/id/13486481/fan-hit-foul-ball-detroit-tigers-home-game-texas-rangers).

Attorneys familiar with the Baseball Rule and the role it plays in lawsuits over the years think its time for a change. Martin Healy, chief legal counsel for the Massachusetts Bar Association said: "the Baseball Rule is ripe for change . . . it has to be tossed out. " (http://sportslawinsider.com/baseball-and-broken-bats-woman-injured-at-fenway-park-may-have-limited-recovery-rights/). Steven Adelman, a venue safety attorney, described the Baseball Rule as "harsh and old fashioned." Id. These comments from Healy and Adelman could signify a changing of the tide for the Baseball Rule. Id.

Perhaps these cries for change have not fallen upon deaf ears. While the Baseball Rule is widely accepted and has provided protection for most stadium owners, a few fans have attained small victories against the odds. In Rountree v. Boise Baseball, LLC, the plaintiff, who was seated in a screened in area, got up to talk to another fan in a non-screened area and lost his eye after being hit in the face by a foul ball. (154 Idaho 167, 170-73, 296 P.3d 373, 376-79 (2013)). The Idaho Supreme Court stated that while it had the authority to adopt the Baseball Rule, the court felt it more prudent for the adoption of such a rule to be left to the legislature. Id. A jury will decide the stadium owner's liability for Rountree's injuries in an upcoming trial.

Similarly, the Georgia Court of Appeals declined to adopt the Baseball Rule where a six-year old girl suffered a skull fracture and brain injuries as a result of being hit with a foul ball. (Atlanta Nat. League Baseball Club, Inc. v. F.F., 328 Ga. App. 217, 217-18, 761 S.E.2d 613, 614 (2014)).

With both fans and players speaking out about the issue, MLB commissioner Rob Manfred has said that he and the owners have examined the relevant information and are discussing the possibility of additional protective netting. (http://m.mlb.com/news/article/145776688/rob-manfred-discusses-ballpark-safety-netting). Unfortunately, this promise of action may have come too late. A class action lawsuit has been filed against the MLB and Commissioner Manfred for their failure to implement measures to better protect fans. The class action suit, which seeks only injunctive relief, alleges that anyone who is not in screened seating is in the "Zone of Danger." Those individuals within the Zone of Danger have sufficient standing to join the lawsuit. The lead plaintiff in the case wishes to force MLB to install netting from foul pole to foul pole in all major and minor league parks. (http://hardballtalk.nbcsports.com/2015/07/13/a-class-action-law-suit-was-filed-against-mlb-today-seeking-the-installation-of-more-netting/).

While the class-action suit's Zone of Danger concept may be far reaching, the suggested remedy could be the one sought by all parties; as by adding netting from foul pole to foul pole, owners will face even less liability. As a result, the court system will be able to prevent horrible injuries to and frivolous negligence claims by fans of America's pastime.

October 28, 2015

90 Miles Too Many

By Nicolas Berg

Some of the best players in Major League Baseball (MLB) call Cuba their home, including the reigning American League's Most Valuable Player, Jose Abreu. However, for these Cuban stars to be able to play in the MLB, they have to do much more than simply travel the 90 miles to the United States. Due to decades of political tension between the two nations, it is nearly impossible for a Cuban player to become a Major League player. The current system is nearly impassable and, often times, extremely dangerous. However, with relations between the two nations improving, many hope that this process will become easier.

Typically, for a Cuban player to become eligible for MLB, he must endure a lengthy, complicated and dangerous process. Initially, the player must defect from Cuba and establish residency in a different nation. Next, he must apply to the Treasury Office of Foreign Asset Control (OFAC) for a license to move to the United States. This process usually takes at least a year. If he is lucky enough to obtain a license, he may move to the United States and apply for free agency with MLB. Once he is cleared as a free agent, every MLB franchise is free to bid for his services. At this point, luck begins to swing in the player's favor. During this bidding process, competition among clubs usually drives the prices for these young players through the roof. This was evidenced by the record high fee paid for Yoan Moncada just this past offseason. Although Moncada had to endure a long arduous process before being able to collect on that fee, he is still very lucky that he did not experience a life-threatening journey, as do many other Cuban players. (http://www.latinpost.com/articles/40918/20150305/mlb-immigration-news-cuban-players-seeking-major-league-baseball-career-no-longer-need-license-to-play-from-us-government.htm).

The most famous, and probably most dangerous of these stories, is that of Yasiel Puig. To hurdle the necessary barriers to play in MLB, Puig first took a treacherous boat ride to Mexico to establish residency. While in Mexico, he was taken hostage by a Mexican drug cartel, where he was routinely threatened with attempts on his life and physical well-being. He had to promise the cartel 20% of his future MLB contract to ensure his safe passage into the United States. Once in the U.S., he reached a deal with the Los Angeles Dodgers, becoming one of the game's best young talents. (http://www.huffingtonpost.com/tom-hayden/us-trafficking-in-cuban-p_b_5207377.html).

With the recent opening up of trade relations between the U.S. and Cuba, there is hope that this inefficient and dangerous process may soon be a thing of the past. With increased trade relations, there is the possibility that players will no longer need to defect. This could subject Cuban players to a foreign players draft, like those from the Dominican Republic and Puerto Rico, or, alternatively, the U.S. could adopt the same system that is used to acquire Japanese players. In that system, clubs pay the entity who owns the rights to the player, which would likely be the Cuban government, a fee to buy the right to negotiate a contract with the player. (http://www.nydailynews.com/sports/baseball/cuban-field-dreams-decision-opens-new-baseball-world-article-1.2049350). Either way, horror stories like Yasiel Puig's will likely be a distant memory.

When human lives are jeopardized as a result of the current legal regime while in pursuit of something as trivial as playing a sport, the system has failed. Hopefully, as these legal barriers between the United States and Cuba start to fall, MLB can use that momentum to reform its admission policies for admitting Cuban players.

Three Common Mistakes with Employee Handbooks

By Kristine Sova

Though there are many laws requiring employers to notify employees of certain workplace rights, there are actually no federal, New York State or New York City laws specifically requiring an employer to have an employee handbook. However, there are a number of reasons as to why creating and maintaining an employee handbook is a good idea and a best practice.

One good reason for a handbook is that a well-prepared one will answer many routine questions for employees. This saves management and HR time if employees know to look to the employee handbook for answers first.

Another good reason, particularly for young businesses without much HR experience, is that a well-prepared handbook will contain procedures that will provide a (hopefully legally-compliant) roadmap for how to address certain personnel issues (for example, a sexual harassment complaint, a request for reasonable accommodation, and so forth). Furthermore, a legally compliant and up-to-date employee handbook may provide legal protection if an employer's policies, practices or personnel decisions are ever challenged in court.

This all sounds great, right? Unfortunately, the flip side is that a poorly-worded, inconsistently implemented, and non-compliant handbook can actually create and invite employment litigation and may do more damage than good for an employer facing a lawsuit. With that in mind, be aware of three common mistakes businesses make when drafting their own employee handbooks:

-Using a "one-size-fits-all" template. Not all businesses are alike. Simply copying the contents of another company's employee handbook (or purchasing a low-cost, generic version online) is unlikely to satisfy your company's HR needs. Employee handbooks should be carefully and uniquely drafted to reflect the policies and procedures used by a particular business. In addition, "one-size-fits-all" handbooks generally do not factor in the size or locale of your business, making them much more likely to contain unlawful policies and procedures.

-Not following the policies in the handbook. A well-crafted employee handbook is well worded, an accurate reflection of the company's (lawful) policies and procedures, and consistently implemented by HR and management. If a company does not follow the policies and procedures it has laid out, the company can lose its ability to enforce them at a later date.

-Not engaging an employment attorney to review the handbook. An attorney well-versed in employment law is an invaluable resource for assessing the lawfulness of the policies and procedures stated in the handbook. Each year, the employment laws change, or new employment laws come into existence, and it's important to know that your document is legally compliant and up to date.

October 29, 2015

Upcoming Center for Art Law Events

1. Art Law Mixer (NYC) -- Nov. 5, 2015 -- Doyle Auction House

Guest speaker to address the NY Arts and Cultural Affairs law governing sales of multiples.
Guest Speaker:
Judith Wallace is a member of the Art Law Group at Carter Ledyard & Milburn LLP. She represents collectors, foundations, artists and scholars in matters of art ownership, authenticity, authorship, consignment and sales, foundation governance and other art-related matters. She writes frequently on art law issues. As the author of the recently published "Safety in Numbers: Dealer Caveats and Purchaser Protections for Prints, Editioned Sculpture and other Art in Multiples"(August 5, 2015), Ms. Wallace will discuss New York Arts and Cultural Affairs Law governing art merchants who sell non-unique works of art -- engravings, posters, photographs, sculptures, and provide certificates of authenticity to these objects.

Registration details: https://www.eventbrite.com/e/fine-art-law-mixer-doyle-tickets-19101899295

2. Art, Law and Crises of Connoisseurship (London) - Dec. 1, 2015 -- The Society of Antiquaries of London, Burlington House, Piccadilly (London, UK)
Registration Details: http://www.eventbrite.co.uk/e/art-law-and-crises-of-connoisseurship-tickets-19150584915

The Unionization of College Sports?

By Michael DeBenedetto

In recent years, the debate surrounding student-athlete compensation has become a fixture in college sports. The most recent development in this discussion has been the attempted unionization of the Northwestern University football team. In August, the National Labor Relations Board (NLRB) refused to recognize the proposed unionization by choosing not to exercise its jurisdiction there. (http://espn.go.com/college-football/story/_/id/13455477/nlrb-says-northwestern-players-cannot-unionize). In reaching its decision, the NLRB noted that much of the nation's schools, especially in the Big 10, are state operated. For this reason, exercising its jurisdiction over a private institution, to decide its labor status, would be unfair to the rest of the conference. (http://www.si.com/college-football/2015/08/17/northwestern-football-players-union-nlrb-ruling-analysis). This ruling overturned the NLRB Regional Director's decision finding that Northwestern University players met the criteria of a union and could be considered employees based on (1) the expanded development of television contracts and (2) the day-to-day influence of coaches over each player's activities. (http://espn.go.com/college-football/story/_/id/13455477/nlrb-says-northwestern-players-cannot-unionize).

This ruling shed light on the labels of "student" and "employee." There is a strong argument that the athletes are students before anything else. They are not working for a business like a professional athlete, but rather studying at an institution of higher learning. To quote Clemson's head football coach Dabo Swinney: "To say these guys get nothing totally devalues an education. It just blows my mind people don't even want to quantify an education." (http://bleacherreport.com/articles/2020286-making-the-case-against-a-college-football-players-union). The compensation they receive for participation in an athletic program offered by the school is a free education; this includes tuition, books, and meals. (http://espn.go.com/college-football/story/_/id/13455477/nlrb-says-northwestern-players-cannot-unionize). The school, on its own merits and principles, along with its respective conference, negotiates with various outlets to gain its students and school exposure on the national stage. Compensation is then awarded to the school, which, in turn, uses it to fund its institution and the various programs it sponsors, including football scholarships.

If a student-athlete is found to be an "employee," the school, through collective bargaining, would have to obey minimum wage laws and deal with larger issues such as work week hours, overtime, and worker's compensation should injuries occur. These facets, among others, would likely undermine the players' role as student-athletes and challenge the amateur label under which they function.
(http://www.si.com/college-football/2015/08/17/northwestern-football-players-union-nlrb-ruling-analysis). Furthermore, other sports may be impacted and programs that do not generate the same level of profit may be forced to be cut because of the larger allocation provided to the more popular programs. (http://www.chicagotribune.com/sports/college/ct-paying-college-athletes-20150822-story.html).

With this ruling regarding Northwestern University, a private institution, the focus now shifts to public universities and their programs. As recognized in the decision, public universities answer to their states' rules on unionization rather than to the NLRB, which concerns itself with private employers. Thus, there is potential for further litigation concerning the state arena. However such litigation would create unrest. This is because some states bar unionization of college athletes through their "right to work standards" and will not recognize college-athletes as employees, while other states may be more friendly to unionizing. This could create problems within a conference should some schools prohibit unionization, while others do not. (http://www.si.com/college-football/2015/08/17/northwestern-football-players-union-nlrb-ruling-analysis).

Overall, the most recent major battle in the college-athlete struggle to unionize has gone in favor of the universities. The NLRB's refusal to grant jurisdiction over Northwestern University's claim will have repercussions in the struggle to define the status of college-athletes. While the issue is far from resolved, the current climate seemingly favors the universities. This, arguably, could be for the betterment of college sports.

October 31, 2015

Stop and Busk: The Rights of Subway Performers

By Justin Zim

Many consider New York City to be the mecca of art, music, fashion and culture. The city streets are home to some of the most talented musicians and artists, some of whom one might not even recognize while hustling to their next destination. This is because many of them are "buskers," musicians and artists who perform on the street, in the subway, or in parks. Recently, however, these performers have been hassled, ejected, and even arrested by police officers, primarily from the subway, for allegedly violating the law.

According to the Metropolitan Transit Authority's (MTA) Transit Rule 1050.6(c), "artistic performances, including the acceptance of donations" are explicitly permitted in the subways of New York so long as the performances do not "impede transit activities." (http://web.mta.info/nyct/rules/rules.htm). For many New York buskers, this rule has allowed them to freely entertain the hordes of city-goers day in and day out.

Most buskers know about this rule. As recently as October 18, 2014, singer/songwriter Andrew Kalleen was hassled by a New York Police Department officer. In a video posted to YouTube, one can clearly see and hear the musician citing MTA Transit Rule 1050.6(c) to the officer. Yet, the officer insisted that Kalleen could not play his instrument in the subway and, after other officers arrived, Kalleen was forcefully taken into custody. (Cady Drell, Why Was This Subway Musician Arrested for Playing Guitar?, (November 20, 2014), http://www.rollingstone.com/music/features/subway-musicians-arrested-20141120).

According to Rolling Stone, Kalleen was taken to the police precinct and held for several hours. Allegedly, Kalleen was ejected from the subway for performing and collecting donations "without permit of permission." He was then charged and arrested for loitering. This was justified under section 240.25 of the New York Penal Law (NYPL). Section 240.35 contradicts Transit Rule 1050.6(c) by making street performances in the subway the crime of loitering. Specifically, NYPL § 240.35 makes it a crime to: "[remain] in any transportation facility, unless specifically authorized to do so, for the purpose of soliciting or engaging in any business..., or for the purpose of entertaining persons by singing, dancing or playing any musical instrument."

Those involved in this back and forth between the two laws disagree sharply on what is and what is not legal in terms of subway performances. This disagreement has led, and continues to lead, to a number of wrongful arrest lawsuits. (Drell, http://www.rollingstone.com/music/features/subway-musicians-arrested-20141120). While most of us who ride the New York City subways understand that panhandling is a very real and frustrating occurrence, we also take note of the many talented musicians who take a seat next to the wall and sing their hearts out for quite possibly no reason other than to entertain.

About October 2015

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in October 2015. They are listed from oldest to newest.

September 2015 is the previous archive.

November 2015 is the next archive.

Many more can be found on the main index page or by looking through the archives.