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July 2, 2016

Week in Review

By Ben Natter

World Anti-Doping Agency Suspends Brazilian Lab

The World Anti-Doping Agency (WADA), the global regulator of doping in sports that oversees testing labs around the world, confirmed last week that the laboratory in Rio de Janeiro set to handle testing for the upcoming Olympics is suspended indefinitely. Even though the lab had a history of prior suspensions, the Brazilian government invested approximately $60 million into revamping the lab and training staff. The lab is also housed within a federal university in Rio.

It was unclear whether or not the issues can be resolved prior to the Olympic games. It is customary to have a testing laboratory onsite during Olympic games. In 2014 WADA, with the need for onsite testing apparent, allowed the Sochi lab to conduct testing for the Olympics, despite suspicious results that had prompted a WADA investigation.

The Brazilian lab has the option to file an appeal in Switzerland within 21 days of the suspension.


The Department of Justice Will Not Alter Music Industry Royalty Rules

In 2014, ASCAP and BMI, the music industry's two biggest licensing clearinghouses, petitioned the Department of Justice (DoJ)for changes to the regulatory agreements that have governed them since 1941. The request came after both companies went through litigation with Pandora. This week the DoJ denied the petition, and announced that performing rights organizations will shortly have to adopt a policy known as "100 percent licensing," which means that any party that controls a part of a composition can issue a license for the entire composition.

Music industry experts feel that 100% clearance would potentially further lower hard to track royalty rates and further harm an already depressed industry. Many feel that the 100% licensing model would also have a negative impact on creativity as musicians currently work together without regard to performing rights organization. The decision will likely be fought by the performing rights organizations.


Manziel Attorney Slipped Text Reveals Plea Intentions

An attorney representing Johnny Manziel in a domestic violence case in Dallas, in a text message accidentally sent to a reporter from the Associated Press, discussed details of a drug paraphernalia related shopping spree shortly before his client was involved in a hit and run crash. The attorney also indicated that his client would be seeking a potential plea deal.


Moonshine Maker Loses Case for Kentucky Mist Moonshine in Connection With Apparel

Colin Futz, owner of Kentucky Mist Moonshine in Whitesburg, KY, brought suit in Federal Court in Kentucky in response to trademark oppositions by the University of Kentucky relating to Mr. Futz's application for registration of the Kentucky Mist mark in connection with apparel. Mr. Futz's shirts are sold in the University of Kentucky colors.

The judge felt it was apparent that Mr. Futz, who is attempting to enter into politics, was "attempting to create a controversy" and dismissed the case due to issues with respect to judicial standing. The opposition proceedings are still pending with the U.S. Patent and Trademark Office.


Drug Testing Lab in Kazakhstan Suspended

Just days after suspending the drug testing lab in Rio, WADA also suspended Kazakhstan's lab. This marks this sixth suspension of a lab by WADA in three months. The agency acknowledged that the increased scrutiny was due to tampering with samples from the 2014 Sochi Olympic lab. The lab has 21 days to appeal.


U.S. Antidoping Agency Seeks to Depose Doctor who Treated Track Athletes

The U.S. Anti-Doping Agency has filed an action in federal court in Houston seeking to depose Dr. Jeffrey S. Brown, an endocrinologist known in the track and field world for diagnosing thyroid conditions in athletes. Dr. Brown is being deposed in connection with an investigation of a Nike affiliated track coach, Alberto Salazar. The filing indicated that athletes affiliated with Salazar had flown great distances to see Dr. Brown, which raised questions about the performance benefits of his treatments. Thyroid medications are not on the WADA list of banned substances and many argue that they can lead to improved performance from athletes.


To Compete Better, States Curbing Noncompete Pacts

The Massachusetts House of Representatives is scheduled to vote this week on a noncompete reform bill. Other states are also taking proactive measures to limit the scope of noncompete clauses in employment agreements.

Massachusetts, a technology hub in the 1980s, felt the impact of such agreements as technology evolved and its residents were prohibited from continuing their career as previous employers prohibited former employees from competing and/or related companies. In California, noncompete clauses are generally prohibited which has helped the startup culture as employees are free to move throughout Silicon Valley.

The House Bill would require companies to clearly explain noncompete agreements, limit the term to one year and pay 50% of the former employee's salary during the term. The bill would also limit the industries able to use noncompete agreements.


Whistle-Blowing Russian Athlete Gets Reprieve From Doping Ban

World track and field officials ruled that Yuliya Stepanova, a runner who first reported Russian doping at Sochi two years ago, should be allowed to compete in Rio de Janeiro. Ms. Stepanova and her husband, Vitaly Stepanov, who worked for Russia's antidoping program previously, spoke out in 2014 about a state-sponsored doping in Russia. The accusations led to the current investigation.
The International Association of Athletics Federations (IAAF), which oversees track and field globally, announced the decision to allow Ms. Stepanova to compete despite the bar of all Russian track and field athletes from the Rio Olympics.

The ban allows Russian athletes living outside of Russia to potentially compete. Ms. Stepanova is living in the United States (and is also now exempt from the ban). The final decision with respect to Ms. Stepanova's participation in the Rio Olympics lies with the IOC. It is also unclear if she will potentially run under a neutral flag or represent Russia.


July 8, 2016

Week in Review

By Eric Lanter

Russia Appeals Doping Ban

On Sunday, July 3rd, Russia filed an appeal of the doping ban from the Olympics imposed on the track and field team. The Russian Olympic Committee's spokesman confirmed that the team filed the appeal with the Court of Arbitration for Sport, which will be heard on July 19th.


Olympics Ease Advertising Blackout

A recent amendment to the Olympic Charter has changed the rules regarding advertising leading up to the Olympics. Now, the floodgates have opened and brands are angling for the public's attention. Some brands have been advertising since earlier in the year, but were required to refrain from mentioning Olympic symbols, such as "Rio," "gold," or even "summer," depending on the context.


British Soccer Teams Brace for Impact of Brexit

The English Premier League (EPL) is one of the "biggest and most successful soccer" leagues in the world, and Britain's exit from the European Union is set to affect the strength of the 20 teams that comprise the EPL. First, it may be more difficult for EPL teams to acquire talent from European countries, given the regulatory scheme. Second, while wealthy foreigners have sought EPL teams as investments, interest is expected to sag if the British economy slows or if the caliber of the EPL as a whole is compromised.


U.S. Women's Soccer Players Renew Fight for Equal Pay

After not having made progress in federal court and at the negotiating table, the U.S. women's soccer team is hoping to garner support with the public to advance its objective of achieving equal pay with the men's soccer team. Leading up to the Olympics next month, the women's team members will sport T-shirts stating, "Equal Play Equal Pay," and will wear temporary tattoos with the same phrase during their send-off matches. At the heart of the dispute is the pay structure for the men's and women's soccer teams. While the men's team members get extraordinary bonuses and salaries based on their selections to play for the national team, the women's team members get paid a flat salary with less opportunity for bonuses.


Danish Museum Acknowledges That Italian Artifacts Were Stolen

On Tuesday, July 5th, the Italian Ministry of Culture and the Ny Carlsberg Glyptotek art museum signed an agreement providing for Italian artifacts to be returned to Italy. A portion of those artifacts, which the Danish museum bought in the 1970s, were excavated near Rome. While the Danish museum had initially resisted returning the artifacts, it decided to return them after investigations revealed that the artifacts were illegally excavated and exported without licenses.


Ex-Players Seek Return of Paterno Statue

Over 200 former Penn State University football players signed a letter to the university's trustees and president, Eric Barron, on Tuesday, seeking a re-installation of the bronze statue of Joe Paterno and an apology to Mr. Paterno's wife. Mr. Paterno died in 2012, after his statue was removed in the wake of the conviction of former assistant coach Jerry Sandusky for child sexual abuse.


National Football League Hall of Famer Paul Hornung Sues Helmet Maker

Paul Hornung, a football player in the 1950s and 1960s, sued Riddell, the company that has made helmets for football since 1939. The complaint was filed in Cook County, Illinois, and alleges that the 80-year-old's dementia is owing in part to the repeated concussions he suffered during his time as a football player, which allegedly came as a result of Riddell's helmets. The lawsuit did not specify any damages.


Lionel Messi Sentenced in Tax Case, But Prison Is Unlikely

A Spanish court found on Wednesday, July 6th, that star soccer player Lionel Messi was guilty of tax fraud for using offshore companies to avoid paying Spanish taxes on advertising contracts. The court fined him 2.1 million euros, or $2.3 million, and sentenced him and his father to 21 months in jail. Mr. Messi is expected to appeal the sentence. It is reported that neither Mr. Messi nor his father are likely to serve any time in jail, however.


Fox News Anchor Gretchen Carlson Files Suit Against Roger Ailes

Longtime Fox News anchor, Gretchen Carlson, filed an action against Roger Ailes, the chairman of Fox News. She asserted that she refused his sexual advances and complained about persistent harassment in the newsroom, to no avail. Mr. Ailes responded with a statement, calling the action a "defamatory lawsuit" that is "not only offensive, it is wholly without merit and will be defended vigorously."


Bill Cosby's Challenge to Criminal Case Fails

In the Pennsylvania criminal case involving Bill Cosby, the judge ruled on Thursday that Mr. Cosby was not entitled to cross-examine the accuser in that case, Andrea Constand. The judge ruled that the case had sufficient evidence to move forward without having Ms. Constand testify and be subject to cross-examination. Looking forward, the judge set the matter for a September pretrial conference.


July 17, 2016

Week in Review

By Michael Smith

U.S. House Of Representatives Encourages International Olympic Committee Anti-Doping Efforts

The House Committee on Energy and Commerce sent a letter to the International Olympic Committee (IOC) on Tuesday expressing support for the IOC's anti-doping actions, including investigations into the recent accusations of cheating by Russia at the Sochi Olympics.


Gretchen Carlson's Arbitration Clause Includes Virtual Gag Order

Gretchen Carlson is suing Roger Ailes, chairman and CEO of Fox News, for sexual harassment. Carlson brought the lawsuit in New Jersey District Court, but Ailes is moving to transfer the case to the Southern District of New York, and to compel arbitration under Carlson's employment contract. Of note is the confidentiality provision in the arbitration clause: "... all filings, evidence and testimony connected with the arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence." Should the Southern District enforce this provision, a very public lawsuit may suddenly become very private.


Will Brady Take It All the Way?

Last year, New England Patriots quarterback Tom Brady was suspended for four games due to his alleged involvement in Deflategate (the Patriots were accused of underinflating footballs during the AFC championship game against the Indianapolis Colts). Brady tossed the ruling to National Football League (NFL) Commissioner Roger Goodell, who upheld the suspension. Brady ran an end around to the Southern District of New York, where Judge Berman vacated the suspension based on procedural irregularities in the investigation. The Second Circuit intercepted and reinstated the suspension. Brady threw a red flag and sought a rehearing or en banc review. On Wednesday, that challenge was denied. On Friday, Brady announced on his Facebook page that he would not throw a Hail Mary to the Supreme Court.



Paterno May Have Known About Sandusky Years Earlier

Court documents unsealed by a Pennsylvania court on Tuesday reveal that, in 2014, a man testified that Penn State football coach Joe Paterno was made aware that assistant coach Jerry Sandusky had sexually assaulted a 14-year-old boy in 1976. Paterno's family questioned that witness's veracity.


Harrison Swears That He Didn't Get Drugs from Pharmacist

James Harrison, a Pittsburgh Steelers linebacker named by pharmacist Charles Sly in an Al Jazeera America report on performance-enhancing drugs, submitted a sworn affidavit to the NFL denying Sly's allegations. Sly later recanted his statements. The NFL intends to interview Harrison as part of its investigation into those allegations, while the NFL Player's Association contends that there is no "credible evidence" to warrant such an interview.


Will Folk Songs Join Happy Birthday in the Public Domain?

Music publisher The Richmond Organization owns the copyrights to "We Shall Overcome" and "This Land Is Your Land". Mark Rifkin, "the lawyer who successfully challenged the copyright to 'Happy Birthday'", filed two lawsuits challenging those copyrights. Rifkin alleges that "We Shall Overcome" cannot be copyrighted, because it is an adaptation of an African-American spiritual, and that Woody Guthrie and his publisher lost the rights to "This Land Is Your Land" by failing to file for renewal and publishing lyrics without appropriate notice (Guthrie apparently first published the song in a "handmade songbook").


Sharapova Won't Go to Rio

Tennis player Maria Sharapova agreed to defer the decision of the Court of Arbitration for Sport in connection with her appeal of a two-year doping ban until September. Both Sharapova and the International Tennis Federation, the latter of which had initially asked for an expedited ruling, said they wanted more time to prepare their cases. Had the Court of Arbitration for Sport ruled in Sharapova's favor next week, as originally anticipated, she would have been eligible for the Olympics in Rio and the United States Open this August. This extension of time rules out both possibilities.


Like Embezzling Candy from a Baby

The New York Times reports that youth sports clubs regularly fall victim to skimming. Most of these clubs have no oversight, and their organizers -- often unpaid volunteers whose community service would seem to put them beyond reproach -- sometimes use them as an ATM, sometimes to the tune of hundreds of thousands of dollars. According to the Center for Fraud Prevention, an organization whose charter is to eliminate such embezzlement, there have been hundreds of arrests and convictions in the last five years.


What's in a Name? A Doig by any Other Name Would Sell for Less

Peter Doig is a well-known Canadian artist whose paintings have sold for millions of dollars. Robert Fletcher is a retired corrections officer who says he owns one of Doig's early works. Doig says that, although he was doing LSD at the time the painting was allegedly made, he knows it's not one of his. Fletcher says he bought the painting for $100 from a man named Pete (no r) Doige (with an e), who was an inmate at the prison farm in Thunder Bay where Fletcher worked. Fletcher says Doig is Doige. Doig says Doig is not Doige. Doig says he's never been to Thunder Bay (or to prison); Doige's sister says Doige served time in Thunder Bay, and is certain that Doige painted the work in question. Doige is dead. District Court Judge Gary Feinerman says the facts are messy enough that they need to be decided at trial. "Much confusing; so identity; wow; do try," said Doge.


World Anti-Doping Agency Says That It Lacked Authority to Investigate Russian Cheating Earlier

The Senate Commerce Committee says that it independently confirmed that the World Anti-Doping Agency (WADA) knew about government-sanctioned doping among Russian athletes in 2010. WADA began its investigation into claims of such cheating in December 2014. WADA's president, Sir Craig Reedie, told the committee that until January 2015, WADA was authorized only to assist in others' investigations, not institute its own.


Sixth Circuit Upholds Mugshot Privacy

On Thursday, the Sixth Circuit Court of Appeals, sitting en banc, ruled that federal authorities can withhold mugshots from the public on a case-by-case basis. The majority cited the ease of access to and persistence of images on the Internet and overturning its 1996 decision holding that federal mugshots could not be exempted from the freedom of information act.


Kardashians Trade Lawsuits with Cosmetics Distributor

Kim, Khloe and Kourtney Kardashian sued their former licensee for trademark infringement, alleging that the company, Haven Beauty, is continuing to use their names, trademark, and image after termination of a license agreement. The Kardashians allege that they terminated the license for failure to make royalty payments, and that in any event, the license does not permit Haven Beauty to use their names or images without approval. Haven Beauty, which is the successor in interest to original licensee Boldface cosmetics, has for its part filed a breach of contract case against the sisters, alleging that as soon as the license was transferred to Haven Beauty, they stopped promoting the cosmetics line.


Southern District Dismisses Trademark Claims against Kanye West

"Loisaidas" is the name of a music duo from the lower East side of Manhattan who plays Dominican bachata music. It is also the name of a series of web videos produced by Kanye West and Damon Dash. The music duo sued West and Dash for trademark infringement, claiming that West and Dash's use of the word created confusion between the bachata duo and the hip-hop duo. Southern District Judge Catherine Forrest dismissed the case on Thursday, finding that "Loisaidas" is "an established demonym for residents of a particular Manhattan neighborhood," and thus West and Dash's use of it is protected by the First Amendment.


Dr. Phil Sues Tabloids for Defamation

TV psychologist Phil McGraw (Dr. Phil) and his wife Robin have sued the National Enquirer's parent company, American Media Inc., for defamation. The McGraws allege that American Media continuously attacked them in the tabloids as a way of capturing readership. The complaint seeks $250 million in damages and focuses on allegations made in American Media's magazines that Dr. Phil abused his wife.


Ninth Circuit Hands Facebook CFAA Win, Cans CAN-SPAM Claims

Back in 2012, a startup called Power Ventures tried to attract members to its new social network by promising $100 to the first 100 people who could bring 100 new friends to its website. People who click the link gave Power access to their Facebook accounts and specifically allowed Power to send emails and Facebook messages to their friends, inviting them to sign up. Facebook sent a cease-and-desist letter, but Power did neither. The appellate court ruled that Power's actions, specifically continuing to send the messages after Facebook told it to stop, was a violation of the Computer Fraud and Abuse Act. However, the court found no violation of the CAN-SPAM Act.


TMZ Tells Delaware Court That the Statute of Limitations Bars Defamation Claims Arising Out Of An Erroneous Report That Wu-Tang Clan Rapper Cut off His Own Penis and Jumped Out Of a Window

So, that happened.


Copyright Claim against Cruz Campaign Will Go Forward in Seattle

District Court Judge Ricardo S. Martinez denied a motion to dismiss a lawsuit filed against former presidential candidate Ted Cruz's campaign and Madison McQueen, its ad agency, for unauthorized use of two songs in campaign commercials. The plaintiff alleges that its licensing agreement with Madison McQueen expressly prohibited such use.


No New Competency Trial for Sumner Redstone

On Monday, a Los Angeles probate court judge tentatively denied the request of Sumner Redstone's former girlfriend, Manuela Herzer, for a new trial to determine Redstone's competency. The judge previously ruled that a competency hearing was not necessary, given clear evidence that Redstone wanted nothing to do with Herzer.


July 22, 2016

Week in Review

By Ben Natter, Rebecca Schwartz, and Matt Wolff

Court Upholds Ban on Russian Athletes

On Thursday, an appeals court upheld the ban on the Russian track and field team. Only the two Russian track and field athletes who currently live in the United States are allowed to participate in the Rio Olympics.


National Football League Concussion Doctor Retires

For many years, the National Football League (NFL) relied on the knowledge of Dr. Elliot J. Pellman, who has marginal training as a neurologist. As scientific evidence continued to show the connection between head trauma and certain brain diseases, Dr. Pellman refused to recognize the truth.

Independent researchers accused Dr. Pellman, former team doctor for the New York Jets, of promoting "junk science" and consistently putting NFL players at risk by diminishing the results of concussions. The NFL is trying to repair its image, and Commissioner Roger Goodell stated in a memo to the league: "We thank Dr. Pellman for his dedicated service to the game and for his many contributions to the NFL and our clubs and appreciate his willingness to aid in this transition over the next few months."

Retired players accused Dr. Pellman, his colleagues, and the NFL of minimizing the effects of head trauma and doing virtually nothing to protect the players. In addition, former players brought a class-action against Dr. Pellman and his colleagues, who "spent hundreds of millions of dollars" to settle.

In 1994, Dr. Pellman spearheaded the Mild Traumatic Brain Injury Committee, which was supposed to focus on and analyze every NFL player head injury from 1996 to 2011. However, the New York Times's research revealed that at least 100 concussions were excluded from Dr. Pellman's analysis.


Rio de Janerio Laboratory reinstated by the World Anti-Doping Agency After Brief Suspension

The Rio de Janerio lab that was suspended by the World Anti-Doping Agency (WADA) last month is clear to test blood and urine samples for the Rio Olympics. WADA's director general, Olivier Niggli stated that: "Athletes can be confident that anti-doping sample analysis has been robust throughout the laboratory's suspension and that it will also be during the Games."


Roger Ailes's Tenure Ends

Fox fired Roger Ailes after investigations into allegations of sexual harassment were made from at least six women. Mr. Ailes will receive $40 million dollars as part of a settlement agreement with the network. Rupert Murdoch will be the interim president until Fox can find a successor. A statement was released that: "We hope that all businesses now understand that women will no longer tolerate sexual harassment, and reputable companies will no longer shield those who abuse women."



Pokémon Go Expands as Alarm Grows Around the World

The widely played app Pokémon Go has expanded to 26 more countries just this week, as security and religious authorities around the world expressed fear about the app. In Sauda Arabia, Pokémon Go is deemed "un-islamic." Egyptian officials believe that the game should be banned because of the risk of sharing images of security sites. Other countries have also expressed concern that the app could lead to potential security issues.

"Pokémon Go is the latest tool used by spy agencies in the Intel war, a cunning despicable app that tries to infiltrate our communities in the most innocent way under the pretext of entertainment," said Hamdi Bakheet, a member of Egypt's defense and national security committee in Parliament, according to a report on Al Jazeera."


"Sphere for Plaza Fountain" Returns to the World Trade Center

The powerful sculpture "Sphere for Plaza Fountain" by Fritz Koenig is returning to the World Trade Center. The sculpture will be reinstalled but not "...on the exact spot it occupied on Sept. 11, 2011." The monumental sculpture will be transported by the Port Authority to Liberty Park, which overlooks the memorial. Koenig, now 92, exhibited exuberance about the transportation of the piece.


Italian Tennis players Indicted for Match Fixing

Three Italian tennis players are being investigated for fixing tennis matches. The Italian Federation also suspended Marco Cecchinato, the 143rd ranked player in the world, for 18 months and fined him $44,000.


W.N.B.A. Players Fined

Players on the New York Liberty, Phoenix Mercury, and Indiana Fever were fined by the W.N.B.A. for wearing T-shirts during shoot around on Thursday night that raised awareness for killings by and to police. Many spoke out against the fines, expressing that: "It's unfortunate that the W.N.B.A. has fined us and not supported its players."


Christopher Correa, Former Cardinals Executive, is Sentenced to Four Years for Hacking the Astros's Database

In January, Christopher Correa, former scouting director of the St. Louis, plead guilty to five counts of unauthorized access to a protected computer from 2013 to 2014. On July 18, 2016, a federal judge sentenced Correa to 46 months and ordered him to pay $279,038. Authorities first learned about the data breach in June 2014, and found that Correa was able to view 118 pages of confidential information, including notes of trade discussion, player evaluations and a 2014 team draft board that had not yet been completed. Federal prosecutors said the hacking cost the Astros's about $1.7 million.


Suit by Haruki Nakamura, Former NFL Player, Puts Concussion Spotlight on Insurers

Haruki Nakamura, who played for five seasons with the Baltimore Ravens and the Carolina Panthers, is suing Lloyd's of London to force it to honor a $1 million policy. In August 2013, the former defensive back retired after sustaining a severe head injury during a preseason game with the Panthers. Despite being eligible for the NFL Player's Retirement Plan's "total and permanent disability benefits," Lloyd's denied Nakamura's separate insurance claim for failing to show that the concussion he sustained in 2013 had "solely and independently" led to his permanent disability.


Synchronized Swimmers Find Danger Lurking Below Surface: Concussions

Recently there has been an increase in awareness of head injuries in synchronized swimming. Concussions in synchronized swimming have become more prevalent because swimmers have tried to amass points by swimming in a closer formation and are performing additional moves in each routine, including throwing teammates in the air. Many swimmers are unaware that they even have a concussion, since many of the symptoms are similar to swimming upside down, or holding one's breath for long periods of time.


About July 2016

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in July 2016. They are listed from oldest to newest.

June 2016 is the previous archive.

August 2016 is the next archive.

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