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

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[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.).

Toyota Cruises into Copyright Infringement

                  On October 20^th, 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)

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[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.

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 DenverSELJ@gmail.com. 

Thanks again for visiting and we hope you enjoy,

Jake M. Lustig
Denver SELJ Blog Editor
J.D. Candidate, 2016
jlustig16@law.du.edu

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. 

Since suing Williams, Azalea has stated that the contract Williams is referring to is forged and is a modified version of an old management contract Azalea once signed.

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. 

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                                       - Erica Vincent (Marketing Editor, DU SELJ) 

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.