No matter how hard the NFL tries to get away from the concussion lawsuits, they won’t go away. Most recently former Chicago Bears quarterback Bobby Douglass and former Northwestern player John Cornell is suing the NFL and helmet manufacture Riddell. On November 4, 2013, the two former players filed suit alleging concussion-related injuries resulting from their time on the field.

Douglass, 66, was quarterback for the Chicago Bears from 1969 to 1975. He later went on to play for the San Diego Chargers, New Orleans Saints and Green Bay Packers. Cornell, 66, is a Northwestern graduate that participated in two NFL training camps with the New Orleans Saints.

The former players claim they suffered multiple concussions and sub concussive brain injuries that put them at risk for brain damage and chronic traumatic encephalopathy (CTE). CTE is a degenerative brain disease commonly found in athletes who have a history of repeated brain trauma.

The lawsuit accuses the NFL of negligence and fraudulent misrepresentation. The former players argue that the league knew about the harmful effects of concussions yet failed to warn players. More so, they claim that the NFL falsely told retired players that there was no evidence correlating on-field injuries to long-term brain damage. The former players say that the helmet manufacturer, Riddell, negligently failed to warn players that their helmets wouldn’t protect them from the type of on-field injuries they sustained.

Douglass’ attorney said “Mr. Douglass gave his blood, sweat and tears to the game and he now needs the league to step up and care for him.”

As much as the NFL tries to move passed the concussion lawsuits, it’s not ending. In August 2013, the NFL reached a $765 million settlement with over 4,500 former players to settle a class action for concussion-related injuries. Senior U.S. District Judge Anita Brody still needs to hold hearings to determine whether the agreement will be approved. Either way, the impact of that settlement is unclear on Douglass and Cornell’s lawsuit. It is likely that this lawsuit will be consolidated with the class action suit. 

This blog was posted today on the Sports & Entertainment Law Blog. Click here to read the original entry. 

 

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On Monday, July, 8 2013 a Pennsylvania federal judge ordered a mass of NFL concussion cases to mediation.  The cases were brought by more than 4,000 former National Football League (NFL) players accusing the league of negligence and concealing the dangers of concussions.  The players say the league has known for years, or even decades about the long-term dangers of concussions.  The league responded that it released warnings based on the medical research available at the time.

The NFL filed motions to dismiss the cases in which it denied wrongdoing and stated that player safety is governed by the collective bargaining agreement.  The league contends the parties negotiated those terms and the issue is to be resolved in a confidential arbitration.  The players argue that the concealment was fraud and was not contemplated by the collective bargaining agreement.

U.S. District Judge Anita Brody originally planned to rule on the motion to dismiss on July 22, 2013.  However, she now says she will not rule on the motion until at least early September.  The judge says this will give the mediator time to bring the sides closer together.  Layn Phillips, a retired federal judge, has been appointed as the mediator.  Phillips cannot make a binding decision, and any side can choose to stop whenever it wants; however, the judge hopes the continued negotiations will result in a settlement.  

First, Phillips will meet with both sides’ counsel to hear the arguments on each side.  Then he will go back and forth with each side individually to try and strike a deal that works for both parties.  When Phillips reports back to the judge on September 3, 2013, he can recommend going back to court or ask for more time to negotiate.

Neither side commented on the decision.  The judge ordered the sides to refrain from publically discussing the mediation.  

Some commentators think the order to mediate is a signal that the case has a chance to settle.  Settling could prevent the NFL from turning over records that may harm its public image.  Additionally, it would save a lot of time and expensive litigation because the suit could drag on for years.

Yet, there are still those that have their doubts.  Gabriel Feldman, the director of the Sports Law Program at Tulane University said, “[i]t will be a great feat for the mediator to settle the case. He might bring them closer, but to what? This is complex litigation.”  He would be “surprised at this earl a stage for the N.F.L. to give a large settlement.”

We will have to wait until September 3 to see what happens.  The case is In re National Football League Players' Concussion Injury Litigation, U.S. District Court for the Eastern District of Pennsylvania, No. 12-2323.

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The Baltimore Ravens and the National Football League are asking the Fourth Circuit Court of Appeals to reverse the December 2012 decision of a Maryland federal judge in a long-running copyright dispute with Franklin Bouchat.  The decision at issue entered an injunction that prevents the Ravens and the NFL from selling or showing clips in which the old “Flying B” logo is visible.  The injunction does allow the two entities to use the logo, but, if they do, they must first pay Bouchat royalties.  The judge set the royalties at a one-time fee of $721.65 for all future sales of highlight reels and $100 for each clip shown at future Ravens home games.

The Flying B logo, used by the Ravens from the1996 season through 1998, was allegedly a ripped off of a design that Bouchat created in 1995.  This dispute has generated nine separate lawsuits against multiple parties including the Ravens, the NFL, and NFL licensed merchants.  The current case was back before the district court on remand from the Fourth Circuit.  Originally, the district court held in favor of the Ravens and NFL, stating the use of the logo was protected by the “fair use” doctrine.  The Fourth Circuit disagreed and reversed and remanded the case to determine if an injunction could be granted.

In their recent brief submitted to the Fourth Circuit, the Ravens and NFL argue that the lower court judge went too far.  They assert that the “reasonable compensation” awarded to Bouchat was an unprecedented move by the court because Bouchat sought only an injunction, not royalties.  The Ravens and the League argue that the injunction, triggered by the nonpayment of royalties that weren’t requested, is something that has never been done in copyright law before.

Since the designer did not request royalties, the parties are also challenging the court’s calculation of compensation.  The two stated that “it is well-settled that before a court can calculate a hypothetical royalty rate…” the copyright holder (Bouchat) must first demonstrate the design’s fair market value.  Bouchat did not do this because it was not required to receive the requested injunction.  The Ravens allege that the judge came to the compensation figure by relying on “hypothetical negotiations between the parties.”

This blog was originally posted on Sports and Entertainment Law Insider on June 6. Click here to see the original post. 
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On March 11, 2013, the National Football League and the General Electric Co. announced that they are teaming up to create a Head Health Initiative that will provide $60 million dollars to assist leading neurologists in researching traumatic brain injuries and developing technology able to monitor these ailments.  $40 million will go towards developing imaging technologies, and the remaining $20 million will be available to others who seek to prevent, identify, and develop treatments for brain injuries.  Athletic apparel company Under Armour will also be providing $5 million dollars in support for the cause.

Jeff Immelt, GE Chairman and CEO, indicated that scientific support for the research would be top-notch.  “We’re trying to do this with the best minds anywhere in the world,” he noted in a news conference.  He declared that the funds would utilize GE’s expertise in sophisticated diagnostic imaging technology to increase general scientific knowledge on brain functions, noting “With this initiative, we will advance our research and apply our learning to sports-related concussions, brain injuries suffered by members of the military and neurodegenerative diseases such as Alzheimer’s and Parkinson’s.  Advancing brain science will help families everywhere.”

NFL commissioner Roger Goodell also expressed satisfaction with the initiative, stating: “The NFL has made tremendous progress in making the game safe and more exciting.  But we have more work to do.  Our collaboration with GE and Under Armour . . . puts us on an accelerated path to progress . . that will benefit athletes, the military, and all members of society.”

As orignally published at www.sportslawinsider.com March 13, 2013.
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Nevada Gambles on Online Poker

Posted on March 6, 2013 02:12 by Joseph M. Hanna

On February 21, 2013, the Nevada State Legislature passed Assembly Bill 114, a measure which allows state Governor Brian Sandoval to enter into contracts with other states permitting individuals to gamble in online poker games across state lines.

In theory, the law was passed to protect consumers and reduce the amount of illegal online gambling.  In pertinent part, the bill states: “A comprehensive regulatory structure, coupled with strict licensing standards, will ensure the protection of consumers, including minors and vulnerable persons, prevent fraud, guard against underage and problem gambling, avoid unauthorized use by persons located in jurisdictions that do not authorize interactive gaming and aid in law enforcement efforts.”  Later, it reads, “The state of Nevada leads the nation in gaming regulation and enforcement, such that the state … is uniquely positioned to develop an effective and comprehensive regulatory structure related to interactive gaming.”

The law effectively acts as an end-around certain laws prohibiting the practice – previously, the Nevada Gaming Commission was not allowed to issues licenses for operating online poker facilities without some form of permission by the federal government (i.e. through explicit legislation allowing the practice or by seeking approval from the U.S. Department of Justice).  Now, the commission can not only issue these licenses, but is given the authority to regulate and vary license renewal rates.  A.G. Burnett, chairman of the Nevada Gaming Board, believes that the move could be very profitable for the state – he estimates that a global market for licensing online poker games could amount to tens of billions of dollars.

As originally published at www.sportslawinsider.com

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On February 20, 2013, department stores  J.C. Penney Inc. and Macy’s Inc. faced off in a new arena – a New YorkState courtroom.  The two retailers are going to trial over Martha Stewart.  Macy’s suit accuses J.C. Penney of attempting to convince Martha Stewart to break her company’s exclusive merchandise contract with the department store chain – a contract Macy’s says gives them the exclusive rights to sell certain Martha Stewart products until 2018.  Part of Macy’s lawsuit reads: “J.C. Penney want[s] to rob Macy’s of market share and destroy the competitive advantage that it enjoys as a result of its existing exclusive agreement with (Martha Stewart Living).”

J.C. Penney argues that Macy’s rights to the Martha Stewart merchandise are not nearly as broad as Macy’s claims.  According to J.C. Penney: “Macy’s should stop competing in the courtroom and start competing in the marketplace.”

The move to market the Martha Stewart line is one of several initiatives by J.C. Penney to revive its struggling business.  As part of its new plan, J.C. Penney acquired a 16.6% stake in Martha Stewart’s company in December of 2011, subsequently announcing its plan to open up Martha Stewart ‘mini shops’ in most of its stores.  In response, Macy’s immediately sued J.C. Penney and was granted a preliminary injunction prevent the sale of the Martha Stewart goods at J.C. Penney while the trial played out.

A central issue of the case is whether or not the court agrees that the mini-shops fall under the exclusivity clause of the Macy’s/Stewart agreement.

Macy’s, J.C. Penney go to court over Martha Stewart

As originally posted on February 22 at sportslawinsider.com

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Last June, Drake and Chris Brown found themselves on opposite sides of a New York City nightclub scuffle.  Now, according to reports by TMZ, they are suing each other over the fight in the hopes of receiving a judicial determination of who was responsible for the brawl.  The fight began after an argument broke out over the pop singer Rihanna.  Eventually, punches and bottles were thrown, leaving the club in shambles and Brown with a gash on his chin.  After a model named Romain Julien was also injured in the fight, he sued Brown, Drake, and the club for damages stemming from his cuts, “cosmetic defects,” and emotional distress.  Most likely, Brown and Drake are seeking this determination in order to avoid paying damages should Julien win his lawsuit.

Other notable lawsuits stemming from that particular fight include Entertainment Enterprises Ltd.’s $4 million lost licensing deal claim, along with a $20 million eye injury claim brought by NBA star Tony Parker.  Surprisingly, the incident resulted in no criminal charges against either party due to a lack of conclusory evidence.

As originally published at Sports Law Insider

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Harvard University and the National Football League Players Association (“NFLPA”) are negotiating a deal with the NFL seeking a $100 million grant for the purpose of studying, diagnosing, and treating injuries and ailments suffered by players as a result of their football careers.

Dr. Lee Nadler, the Harvard Medical School Dean for clinical and translational research, attested to the groundbreaking nature of the proposed project, noting “[n]o one has ever studied the players [themselves] before.  There have been postmortem studies looking at the brains of previous players but not the players today.”

One has to wonder how generous the NFL will continue to be – after all, the league just donated $30 million to the National Institutes of Health last year to study brain injuries in NFL alumni.  Still, proponents of the Harvard study made sure to stress that this would not be simply another concussion study; instead, it would consider a whole host of health ailments potentially facing former NFL players  including chronic pain, depression, heart problems, and diabetes.  The scope of the proposed research is beyond anything that has been conducted to this point – preliminary estimates called for a nation-wide group of 200 NFL alumni drawn from a 1,000 person study group, with all participants being subject a wide array of medical tests.

Dr. Herman Taylor, one of the non-Harvard medical professionals retained for the study, stated, “Typically, when we do a test or medical study, we’re taking a snapshot.  What we want to do is see the full-length movie of what happens to a player over time.”

On the issue of funding, NFLPA Executive George Atallah noted, “Given the scope of health issues that NFL players are subject to, we are committed to making sure that enough money is allocated to get answers.”  However, because the research will be funded by a portion of league revenues, the actual amount the NFL is willing to put towards the study will likely not be determined until after the Super Bowl.

As originally published at Sportslawinsider.com on January 31, 2013
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Last year Roy Fox got to thinking – what if NFL Head Coaches and brothers Jim Harbaugh (San Francisco 49ers) and John Harbaugh (Baltimore Ravens) ended up facing each other in the Super Bowl?  With that thought in mind, Fox went out and spent over $1,000 to file trademark applications for the terms “Harbowl” and “Harbaugh Bowl.”  The NFL was not pleased by Fox’s play.  Shortly before the 2012-2013 season began, the League contacted Fox with concerns that his trademarks could become confused with the NFL’s “Super Bowl” trademark.  The NFL then “encouraged” Fox to abandon his quest to have the marks approved.


Though Fox attempted to bargain with the League in return for this abandonment – requesting either his costs in pursuing the applications or other NFL goodies such as season tickets and autographed photos – he was stonewalled.  Eventually, after the NFL stated that it would to seek to recover its future legal costs incurred in opposing Fox’s filing, Fox withdrew the applications on October 24, 2012.

R. Polk Wagner, an intellectual property professor from the University of Pennsylvania Law School, isn’t so sure that Fox was required to abandon his quest, stating “[m]y view is that the league was being overly aggressive in their interpretation that his marks were confusingly similar to ‘Super Bowl.”  Still, Wagner opined that such a result was relatively common, noting that when individuals are faced with the prospect of a legal battle with a large, well-funded organization such as the NFL, “nine out of 10 times, the person backs away.”

As originally published at SportsLawInsider on January 25, 2013  Republished with permission
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On October 31, 2012, lawyers representing thousands of former NFL players filed an opposition brief to the NFL’s current motion to dismiss pending in U.S. District Court in Pennsylvania, insisting that based on the gravity of the harm incurred, their lawsuit against the League must be allowed to move forward.  The brief rejected the NFL’s contention that the action was essentially a labor dispute that needed to be resolved under the league’s collective bargaining agreement.

The Plaintiffs accused the NFL of “orchestrat[ing] a disinformation campaign,” insisting that the League “knew that players were exposed to risks of severe neurological injuries yet did nothing to prevent them.”  However, the League has, time and again, publicly denied that it knew of any long-term dangers posed by concussions.  Further, the NFL insists that it did not intentionally lie to players about the potential side effects.  Instead, it stated that it delegated the decisions about players’ conditions and return-to-play decisions to individual team doctors and trainers.

At this point, U.S. District Judge Anita Brody must decide how to proceed with the extremely cumbersome litigation.  If a settlement is not reached and the case is not dismissed, it is possible that the individual cases could be returned to the multiple districts where they originated forcing the parties to proceed with separate trials.

Ex-players reply to NFL’s motion to dismiss cases

As orrignally posted on Sports Law Insider on November 14, 2012
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