Sunday, December 21, 2014

UFC Facing its Toughest Fight

It is a common occurrence for sports leagues to come under antitrust violations from other sports leagues (see USFL v. NFL, 842 F.2d 1335), sponsors (see American Needle Inc. v. NFL, 560 U.S. 183), and even its own athletes (see Brady v. NFL).  Whatever the case, plaintiffs charge that the sports league in question is somehow engaged in unfair or noncompetitive practices.  The basic test for antitrust violations is to first identify a specific market, and it is here that the leagues find themselves exempt.  For example, the National Basketball Association is made up of 30 teams, but it is considered a single entity in the overall market for professional basketball.  This allows the league to escape antitrust from other leagues.  With the players and athletes, the leagues set up a collective bargaining agreement with the respected players union which prevents antitrust charges from the players.  All this has worked for years with major professional sports leagues such as the National Football League and Major League Baseball.  However, a recent lawsuit filed against the Ultimate Fighting Championship (UFC) brings interesting questions about its labor practices and the rights of the fighters.

The class action lawsuit, filed by current and former fighters, allege that the UFC illegally restricts the fighter’s earnings by preventing them from competing in other mixed martial arts promotions and commanding a share of the fighter’s likeness fees for video games.  When such issues are presented to a league such as the NFL, the answers can usually be found in the collective bargaining agreement with the player’s union.  The problem here is that the UFC has no such agreement with any fighter’s union and instead contracts with the individual fighters.  Thus, the question is if the UFC is unfairly restricting these fighters from competing in other MMA promotions?

This case presents a shaky area for the UFC due to the absence of a collective bargaining agreement, something the NFL uses to escape antitrust from its players.  The suit was filed on Tuesday, December 16 of this year so it will be a long while before any answers appear.  Further, though only three fighters are named in the suit, there is no telling how many more are currently or will become a part of the action.

Leonard Large, Managing Editor

Sunday, December 14, 2014

Law Enforcement & the Media- First Amendment Protection

After the death of Michael Brown and Eric Garner, much of the public has questioned what exactly does the First Amendment protect? Are we, as a civilized and democratic society, allowed to record officers in uniform as they make an arrest? As they arrest us? Is it illegal to do so? If an officer asks us to stop recording, should we stop? Should we forfeit our phone and be required to delete the recording?

To put it simply, no. The United States is unique in that it protects free speech in order to prevent suspicious arrests and arbitrary stops. So, what happens if an officer is making an arrest and I want to record it, whether the officer knows it or not? I can. The First Amendment allows us to record officers while they are on duty. Since officers have no expectation of privacy while on duty, wiretap laws are normally inapplicable. Unless a person is interfering with legitimate law enforcement operations, recording an officer is legal. The media has embraced this protection, particularly protestors angered by the lack of indictments of the two police officers who killed unarmed civilians.

Some states like Illinois are attempting to restrict a citizen's ability to record officers while making an arrest, however this bill has yet to pass and is unlikely to be constitutional if it does pass.

Until then, it is YOUR RIGHT to record an officer.

Nadin Said, Editor-in-Chief.

Thursday, December 11, 2014

Is the NFL Going Up In Smoke?

According to a recent New York Times article, more than 500 former NFL players are suingthe National Football League for football-related brain damage. Attorney Jason Luckasevic became enraged with the NFL when his brother’s boss, forensic pathologist Bennet Omalu, confirmed the connection between football and brain damage. Talking with and examining former pro players, Omalu determined patterns of brain injury from autopsy specimens of deceased players. In addition, there are numerous examples of cognitive and behavioral changes in former players such as headaches, sleeplessness, chronic traumatic encephalopathy, early onset Alzheimer’s disease, Parkinsonism, among others. Omalu received violent backlash when he published his findings in 2005 and Luckasevic was determined to find a way to support Omalu’s findings—hence, the lawsuit. The complaint is based on the contention that players knew their bodies would be put in jeopardy when they signed up to play the game of football, but they were not aware that their emotional and intellectual well-being would be jeopardized as well. Unfortunately, the players may not receive the damages they are entitled to should the suit be barred by the sport’s collective bargaining agreement. First filed in 2011, the suit is now moving to final settlement, raising many issues and implications to consider while we wait to see how this all turns out.

Football’s class action suit is being compared to what happened to the tobacco industry. Far-fetched at first glance, I think there is real merit to this idea. The tobacco industry thrived for a while and then once everyone realized, based on sound medical data, what it meant for one’s health and well-being, the industry virtually died. Similarly, football is thriving and is easily the most watched sport in America, bringing in $9 billion just last year. Yet, Omalu’s findings have surfaced its short and long term dangers. Perhaps football, like the tobacco industry, will fall to the wayside in favor of safer, less contact heavy sports.

As a result of the medical findings supporting this lawsuit, we can imagine terrible implications for the future of football. Professional contracts may include head injury waivers, leading to fewer athletes to opt into the field. More athletes at all levels may be wary to play at all—it is not difficult to imagine that parents will be apprehensive to let their little ones play in the first place, let alone at the collegiate or professional level. Schools may discontinue their football programs altogether, especially if they cannot sustain medical experts at their fields for practices and games. Should football fall from grace, their annual revenue will be nowhere near the $25 billion Roger Goodell predicts it will be in 2027. Yet, perhaps the athletes who would have played football will now populate into other, “less risky” sports like baseball or basketball. We could see a huge increase in those sports’ popularity and revenue as football’s declines.

There is no way to say if this grim future of football is or is not likely to become reality. But it is important to see that one attorney’s will can put a multi-billion dollar franchise in jeopardy.

- Samantha Albanese (Staff Editor, Denver SELJ)

Wednesday, November 5, 2014

Painkillers Lawsuit Not Easing the NFL's Pain

On May 20, 2014, former NFL player Richard Dent, along with several other former players, filed a class action complaint in Northern California District Court against the National Football League.[1] The complaint alleged that the NFL “intentionally, recklessly, and negligently created and maintained a culture of drug misuse, putting profit in place of players' health.”

The former players argued that the NFL had substituted pain medication for proper health care. Specifically, the plaintiffs claim that the NFL administered painkillers without prescriptions or regard to the players’ medical history, risk of potential allergic reactions, or long-term consequences. Also, the players assert that they were supplied various painkillers without giving informed consent, and that they were encouraged to take the painkillers to play through injury. The damages sought include pecuniary and compensatory damages, as well as costs and attorney fees. The class is said to include all former NFL players who played between 1969 and 2008.

There are two key issues in the case. First, the court must determine whether the NFL intentionally, recklessly or negligently created and maintained a culture of drug misuse that prioritized profit over players’ health. Initially, the players will have to show that there was, in fact, a culture of drug misuse in the NFL between 1969 and 2008. Next, a court must decide whether such a culture was caused by the action (or inaction) of the NFL, or if it was caused by a general American culture of drug misuse. Also, if the players voluntarily accepted the drugs and treatment, this raises issues as to how much fault can be attributed to the NFL.

The second major issue is whether the case can actually be brought before the court. Under the NFL’s collective bargaining agreement (“CBA”), disputes between the NFL and players (including former players) must be resolved in binding arbitration. If the court concludes that the CBA applies, then the case will be dismissed. But, if the players can argue that this type of case falls outside the CBA, they might be able to avoid dismissal.

The NFL is currently trying to get the case dismissed with two main arguments. First, the NFL says that the players union is responsible for looking out for the players. Accordingly, the union should address the issue. Second, the NFL claims that the individual clubs, and not the league, are responsible for the medical care of players.

Only in recent years has society grown conscious of the long-term health concerns surrounding NFL players. In the last few years, the NFL has been dealing with a lawsuit against it concerning a lack of concussion safety protocols that lead to many players suffering long-term mental health problems. That concussion lawsuit has only recently settled and now the NFL is facing yet another major and potentially damaging lawsuit. This painkillers lawsuit seems to have taken a back seat to the recent media coverage of players’ off the field incidents. However, if this lawsuit moves forward, it could lead to even more bad publicity for the NFL and several more years of costly litigation. If indeed the allegations in this case are true, then the NFL has a lot to answer for and it could lead to major changes in how game of football is played.

-Justin Davis, Staff Editor

[1] Amended Complaint and Demand for Jury Trial Class Action, Dent v. Nat’l Football League, No. 4:14-cv-02324-KAW, 2014 WL 2925313 (N.D.Cal.).

Wednesday, October 29, 2014

Toyota Cruises into Copyright Infringement

                  On October 20th, 2014, Eric Dahl filed a complaint against Toyota Motor Sales alleging copyright infringement.  Dahl claims that Toyota’s new commercial , featuring a young girl who wins a storage locker containing one of B.B. King’s famous “Lucille” guitars, is exactly like Dahl’s real-life experience.  While most commercials and television have some basis in real-life, Dahl’s experience is written in his book, B.B. King's Lucille and the Loves Before Her. He spends several chapters describing the moment he found B.B. King’s stolen guitar in a Las Vegas pawn shop. While the commercial depicts a young woman who finds the guitar in a storage locker, both Dahl and the young girl in the commercial return the guitar to B.B. King, who rewards them with a Lucille of their own.

This issue invites the question: how similar is too similar?  According to 17 U.S.C.A. § 106(2)[1], the owner of the copyright has the exclusive right to “prepare derivative works” based on the copyrighted material.  In this case, Toyota allegedly consulted with Gibson guitar employees to ensure an accurate depiction of the story from the book with the intention to derive their commercial from Dahl’s story (assuming Dahl’s allegations are true, of course).  

However, there are billions of people with billions of stories; the chance that someone may have had a very similar personal experience to another person is at least possible, if not probable.  If one person writes a book about some occurrence in his or her life and another person writes and performs a similar play, who gets to tell the story?  Telling someone to stifle their own life experiences because someone beat them to a copyright seems a little too Big Brother, however, we as a society also have an interest in preventing corporations like Toyota from “selling” someone else’s moments for profit.

Dahl seeks damages and profits attributed to the advertisement.  He also intends to seek an injunction, preventing the commercial from airing any longer.  Arguably, there will be almost no way to determine what profits came directly from this commercial as opposed to any number of other commercials aired by Toyota or by individual car dealerships. Nonetheless, Dahl seems to have a strong case for recovering damages and obtaining a permanent injunction based on the striking similarities between the commercial and his story.[2] Only time, and Nevada’s district court, will tell what will become of the claim, but it certainly seems that the odds are in Dahl’s favor.

-Amanda Marston (Staff Editor, Denver SELJ)

[1] 17 U.S.C.A § 106(2).
[2] Assuming that Dahl has made no licensing agreements with Toyota, which he claims he has not.

Tuesday, October 14, 2014

Welcome to the Denver Sports & Entertainment Law Journal Blog

Thank you for visiting the Denver Sports & Entertainment Law Journal Blog!

The University of Denver Sports & Entertainment Law Journal was formed in 2005 as a national legal periodical. The Journal is focused on publishing scholarly articles in both the sports and entertainment industries as they pertain to their respective areas of law. The Journal’s aim is to track recent changes in these fields of law and serve as a resource to practitioners and students alike.

This year, the Journal has expanded to also include an online blog for student writing. The Denver SELJ Blog is designed to be a more informal outlet for students to work on their writing while tracking changes in sports and entertainment law. Through this blog, the law student members of the Journal's staff are given the opportunity to express their opinions and cover developing stories as they happen.  

We invite all law students or others that are interested to comment on these posts and hopefully create meaningful dialogue surrounding issues in sports and entertainment law. 

We would love to hear from you with any questions, comments, or concerns. This is a new project here at the University of Denver and we would love to see it catch on. Please direct these communications to

Thanks again for visiting and we hope you enjoy,

Jake M. Lustig
Denver SELJ Blog Editor
J.D. Candidate, 2016

Thursday, September 18, 2014

Iggy Azalea's in the Fast Lane and She's on Her Way to the Courtroom

Vivid Entertainment, a Porn Company, is claiming that it has been shopped a 2009 sex-tape starring Iggy Azalea (“Amethyst Kelly”). Following the release of Vivid Entertainment’s statement, Houston-based rapper Maurice Williams, who also happened to manage Azalea at one point, came forward claiming he co-starred in the tape and that Azalea signed a contract that gave him “exclusive rights to manufacture, sell, distribute, and advertise ‘any’ recording embodying visual images” of the Australian rapper. Azalea’s camp initially denied both statements but then later backtracked stating that if the video was legitimate, then all parties involved would be sued. However, to date, no suit has been filed regarding the possible release of the tape.

Unfortunately for Azalea, the sex-tape scandal isn’t her only legal problem. Earlier this week, Azalea filed suit against Maurice Williams, yes… him again, alleging that he infringed upon her copyright and unlawfully misused Azalea’s name, likeness, voice, and trademark. Azalea’s suit comes in response to attempts by Williams to release music recorded earlier in her career. The suit alleges that around 2007 and 2008 Williams downloaded content from Azalea’s computer without her permission, which included unreleased master recordings. In response to the suit, Williams is asserting the same defense as he did regarding the alleged sex-tape. 

At the heart of this media battle is a contract clause interpretation case that could either come out very well or very poorly for Azalea. Public policy considerations could direct a judge to find that it was not the party’s intent to enter into a clause that would give another individual rights to distribute such materials, and would modify the term to express the party’s true intent – ultimately prohibiting release of the tape.  However, if a judge doesn't feel compelled by public policy considerations, and the contract does indeed say ‘any’ recording with visual images, then Azalea may be without any legal recourse. It will be interesting to see if Azalea and her legal team smooth out these tensions before trial or, instead, decide to go forward with litigating her claims. 

                                       - Erica Vincent (Marketing Editor, DU SELJ) 

Sunday, September 14, 2014

The NFL Under Extreme Heat: Ray Rice Suspension and the New Domestic Violence Policy

Initially suspending Ray Rice for two days was possibly the worst mistake Roger Goodell made.

After the video from TMZ surfaced that horrifically showed Ray Rice beating his fiancé (now wife) in an elevator, the NFL has been under attack. It is unclear what caused the one-sided fight to ensue, however, the NFL barely punished Rice, giving him a lesser suspension than a footballer player who tests positive for Marijuana (now legalized in the great state of Colorado and Washington) would otherwise receive.

The NFL is attempting to have a new "domestic violence policy" in play. Whether the policy is meant to keep the players in check or prevent further controversy to the NFL, we shall see.