Archive | July 2014

Lindsey Lohan Heads to Court

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Lindsey Lohan can’t seem to escape the law, but this time she is heading back to the courtroom where she is the one pursuing the lawsuit. Lohan is suing the makers of Grand Theft Auto for using her “likeness” in the video game’s fifth installment. In her suit, she alleges that the creators based one of their characters, Lacey Jones, on Lohan, without gaining her permission. According to a Forbes article, Lohan stated that the creators incorporated her voice and image, by using Lohan’s fashion line, including similar hats, hairstyles, sunglasses, and jean shorts. The game’s minor character is described as a famous actress who complains about fame and reveals that she is anorexic (Lohan has admitted to having in an eating disorder in a past interview with Vanity Fair). It also features a hotel named the Gentry Manor, a hotel based on a real Los Angeles hotel where Lohan lived for a time.

Like Lohan, many celebrities, and even athletes, use right of publicity laws to prevent others from profiting on unauthorized uses of their names or likeness. In Re NCAA student-Athlete, a college football player sued EA for right of publicity and false endorsement under the Lanham Act for using his image, including his same height, weight, skin tone, hair color, home state, and play style (In Re NCAA Student-Athlete Name & Likeness Litigation 724 F.3d 1268 (9th Cir. 2013) In this case, the Ninth Circuit used a transformative test to see whether the avatar was sufficiently different to obtain 1st Amendment protection. This test, also used in the Third Circuit, looks to whether the new work added significant creative elements so as to be transformed into something more than the original work. The court held that the video game creators replicated the player’s likeness and in doing so, the company sought to “capitalize on the respective fan bases for the various teams and players” knowing that “consumers enjoy and, as a result, purchase more EA-produced videogames as a result of the heightened realism associated with actual players” (In Re NCAA at 1272).

Right of publicity laws were created to allow a person to control the use of his or her image, and generally, video games get a high level of protection because they are works of entertainment. In order for Lohan to prevail, she needs to prove that the Grand Theft Auto creators profited by clearly using her image in a non-parody way, without adding any form of expression. It seems to me that she will have trouble convincing the court that she has been blatantly exploited by the game’s creators.

-Skylar Young

Sources:

https://www.youtube.com/watch?v=za1l4ibHrsU

http://www.forbes.com/sites/erikkain/2014/07/03/lindsay-lohan-vs-rockstar-games-does-she-have-a-case-against-grand-theft-auto-v/

Was Ray Rice’s Punishment Fair?

I’ll preface this all by stating Ray Rice’s actions were unacceptable and I am in no way defending them or Rice.  The purpose of this post is to examine whether or not Rice’s punishments from the Atlantic County Prosecutor’s Office in New Jersey and the National Football League, respectively, were appropriate.  The former originally charged Rice with third-degree aggravated assault of his then fiancée now wife Janay Palmer.  Had Rice been convicted of the felony charge, he could have faced three to five years in prison and a fine of up to $15,000.  Instead, Rice pleaded not guilty and subsequently applied for a pretrial intervention program to avoid formal prosecution.  Rice was accepted into the program and will avoid jail time upon successful completion of the programs requirements and could possibly have the charge expunged in the near future.  If Rice does not meet the requirements, the charges will come back in full force and this alternative will not be available.  This is important to keep in mind, as Rice has been given the opportunity to avoid jail time but the possibility is not extinguished.

This may seem lenient, but there were mitigating factors the court likely considered in deciding whether or not to accept him into the pretrial intervention program.  Rice had no criminal record, does a considerable amount of charity work, and began counseling with Palmer immediately following the incident.  Palmer remaining with Rice after the incident and subsequently marrying him also likely helped to illustrate this was abnormal behavior for Rice and not one in a pattern of violent episodes.  Given these circumstances, I believe even if Rice was not a famous athlete he would have been given the same opportunity to avoid a conviction and jail time.  The justice system is typically lenient on first time offenders, and especially those with a chance of rehabilitation without incarceration.  Had this not been Rice’s first brush with the law and Palmer indicated the incident was not an aberration, the results likely would have been much different.

This week, the National Football League announced Rice would be suspended two games and forfeit a paycheck for a third game he will be able to play in.  There has been considerable outcry that the punishment is too lenient, with many claiming it sends the message that commissioner Roger Goodell and by extension the League does not take domestic violence seriously.  I disagree, and think Goodell made the right choice in light of all the circumstances.  As the court in New Jersey considered mitigating circumstances, it is likely Goodell considered the same if not more.  Palmer went with Rice to meet with Goodell, something she clearly did not have to do, and while no one knows exactly what was said in the meeting it seemed to sway Goodell to err on the side of leniency.  Goodell also likely considered Rice’s work with anti-bullying programs in Baltimore and that he has never had to reprimand Rice for anything in the past.  Alternatively, Goodell may have just thought a two game suspension and a third without pay was punishment enough.  I understand two games doesn’t sound like a lot, but in the NFL it is just over 12% of the season.  The suspension is equivalent to a twenty game suspension in Major League Baseball or a ten game suspension in the National Basketball Association and the National Hockey League.  Further, Rice is losing over $700,000 in salary (nearly 18% of his total salary for the season) as a result of the punishment.  For a first time offender, I truly do not think this can be called a joke of a punishment or one that is far too lenient.  I do not believe this sends the message that the league does not take domestic violence seriously.

Many critics of the punishment are pointing to Goodell’s harsher punishment of players like Josh Gordon and Justin Blackmon as evidence that the league takes a stronger stance against illegal drugs than it does against domestic violence.  The comparison is simply not apt or fair.  The league has a stated drug policy and there are set penalties for violating it.  Of course, Goodell reserves the right to adjust these penalties when necessary and has been tough on repeat offenders like Gordon and Blackmon.  There are no set penalties for domestic violence and I do not believe there should be.  Each situation is unique and I think Goodell is better served addressing these situations as they arise.  Drugs are much more black and white than domestic violence: player tests positive or he does not, is arrested for possession or consumption or he is not.  Domestic violence can encompass a myriad of incidents varying greatly in severity and attempting to standardize punishments for charges that are not for standard incidents would be tedious and counterproductive.

Further, to compare Rice’s situation to those of Gordon and Blackmon is comical.  Gordon was suspended indefinitely in College for marijuana use, tested positive for marijuana in 2013 and was suspended by the NFL for two games only to test positive again less than a year later.  This triggered a full season suspension and then Gordon was arrested for driving while impaired shortly after the second positive test.  Only recently has Gordon checked into rehab to address his drug problem.  He has been a repeat offender and did not correct his behavior after receiving a lenient initial punishment.  Blackmon was arrested for driving under the influence twice in college, twice tested positive for illegal drugs in the NFL and while on indefinite suspension for these infractions was arrested for possession of marijuana.  Like Gordon, Blackmon never seems to learn and has not even checked himself into rehab.  Rice immediately went to counseling and apologized for his actions following the incident and every step he has taken since has been the right one.

This is not to say Rice is a saint.  What he did was deplorable.  However, this is the first time he has made a mistake like this or of any kind (at least publicly) and he deserves the chance to rehabilitate himself without having the proverbial book thrown at him.  To compare him, after his first offense of anything, to guys who have been punished for repeated offenses of different league policies and laws is inappropriate.  I believe Ray Rice has been punished fairly by both the judicial system and the NFL.  Hopefully, Rice does not follow the missteps of Josh Gordon or Justin Blackmon and takes advantage of his opportunity get back on the right path.

-Keith Pedrani

 

 

Sources:

http://www.rotoworld.com/player/nfl/4645/ray-rice

http://www.inquisitr.com/1372592/ravens-rb-ray-rice-suspended-for-2-games-after-elevator-assault-on-wife/

http://espn.go.com/nfl/story/_/id/11257934/justin-blackmon-jacksonville-jaguars-arrested-marijuana-possession

http://www.foxsports.com/ohio/story/cleveland-browns-josh-gordon-nfl-appeal-one-year-suspension-on-august-1-072414

http://www.usatoday.com/story/sports/nfl/ravens/2014/07/24/ray-rice-suspension-baltimore-janay-palmer/12783281/

 

On the heels of another World Cup, controversy looms for 2018 and 2022.

Germany has emerged victorious for the 4th time in the nation’s history, and first since 1990. They have accomplished what many work their entire lives for, and a select few actually achieve. Now that the drama on the field has concluded, the off the field drama that was hushed during the month long tournament have resurfaced. Accusations that bribery was at the heart of the 2010 decision to award Qatar, a nation with no history of soccer, no national league, and summer temperatures that hover above 110 degrees, began when the Sunday Times reported that Mohamed bin Hamman had distributed $5 million from a slush fund to various soccer officials around the world. Bin Hamman has since been banned from soccer for life, giving more credibility to the accusations, but a full investigation is being conducted by Michael Garcia, and ex-prosecutor from the United States charged with uncovering any corruption in the Qatar 2022 decision as well as the Russia 2018 bid. However, the investigation might never have taken place if not for the pressure of some extremely familiar names. In the coming weeks and months we will see just how much pressure they can apply, and just how far FIFA is willing to be pushed.

 

With a report near submission, FIFA announces confidentiality, for now.

FIFA has announced that they will not be releasing the details of the report Michael Garcia is set to provide them at the end of this month, only the decision that it renders based on the extensive corruption investigation. As a private international organization, they have no duty to make such records public and are exercising that right. However, it would seem that the same pressure they received to investigate these claims and have this report made in the first place, could put pressure upon the world soccer power to release the findings of the investigation.

 

The World Cup is one of the highest rated international television programs in the world. The unfortunate reality of this fact is that a lack of viewership is not a realistic threat that FIFA need worry about, however, lack of sponsorship is. We are seeing the current model of worldwide capitalism actually force an essentially unregulated enterprise into practicing self-accountability. FIFA has hired Michael Garcia to investigate these charges of corruption and bribery only after major sponsors such as Coca-Cola, Adidas, Sony, Hyundai, and Visa expressed their discontent with the accusations. Each company has publicly demanded that FIFA expose the corruption and remedy whatever fraudulent acts it uncovers.

Between these companies and FIFA, an estimated $1.5 billion dollars in revenue is received over EACH of the 4-year World Cup cycles.

 

Now that these corporations have successfully forced an investigation, what is to stop them from forcing FIFA to make the details of the report public? While there is no regulatory agency that has control over the soccer conglomerate, these companies have shown that there is power in numbers (especially when the number prefaced by a dollar sign) and that they have the ability to invoke serious change. It would be interesting to see if such power is used on other organizations, whether within the sporting world or elsewhere.

 

This is not the first time we have seen the corporate condemnation of a member of professional athletics. In 2010, on the heels of his very public divorce and admitted sexual deviance, Tiger Woods lost over $22 million dollars in endorsements from companies such as Gatorade and AT&T. While this is just an example of the many times that companies have shown that morality is linked to association with their brand, here we have a different breed of influence.

 

Although the benefits are easy to see, the negatives could be equally daunting. This is a lot of power to be giving unelected officials who sit on a board of trustees making decisions based 100% on finances rather than the benefit of the people (not to say governments do not do the same thing). If we see FIFA being compelled to make these reports public by these major corporations, then we might see the same such pressure across professional sports. Then again, completely dimwitted individuals do not run these organizations, which means they will be doing their absolute best to ensure such an investigation is never necessary. It will be interesting to see how the rest of this plays out and just how far their sponsors push FIFA before they are forced to make a decision to either break ties or concede to further demands.

 

In the meantime, all that can be done is to wait and see if the FIFA committee decides to overturn the decisions of Russia and Qatar in favor of less scandalous locations. For what it is worth, the United States was runner up to Qatar for 2022, and we already have the infrastructure to sustain such an event (as we proved in 1994), which Qatar is so obviously lacking.

 

-Keith Bloyd

 

http://www.ibtimes.com/fifa-bribery-scandal-qatar-2022-issues-casting-shadow-over-brazil-2014-1596296

http://www.ibtimes.com/fifa-world-cup-bribery-scandal-franz-beckenbauer-banned-90-days-1600848

http://www.thesundaytimes.co.uk/sto/news/uk_news/fifa/article1417325.ece

http://www.cnbc.com/id/101758568#.

http://www.theguardian.com/football/2014/jul/21/ethics-investigation-private-fifa-michael-garcia

 

 

Zimmerman Falls Short in Defamation Claim

Race Debate Continues

The 2013 Zimmerman trial (State of Florida v. George Zimmerman) was without a doubt one of the most racially charged trials of this decade. Zimmerman’s acquittal led to thousands of protests across the United States, many of which broke out into dangerous riots. Many black leaders even demanded that authorities pursue a civil rights case against Zimmerman, including the NAACP, one of the largest black advocacy organizations in the nation.

According to a Pew study, 62 percent of white Americans thought the trial focused too much on race, while 72 percent of black Americans thought race played a major role in the outcome and needed to be discussed. Now, about one year later after the Florida jury found Zimmerman not guilty on all counts, the race debate continues. This time, Zimmerman brought a suit for defamation against NBC, but the Florida judge ruled that he had no case because he failed to prove that the television network acted maliciously, a factor required to win a defamation suit involving a public figure.

Zimmerman argued that the network’s broadcasters made him appear racist with their edited version of his 911 Call that he made on the night of Trayvon Martin’s shooting. In 2012, NBC broadcasted excerpts of the call, which read: “This guy looks like he’s up to no good…He looks black.”

The full transcript of the call reflects that Zimmerman never volunteered that Martin was black, but was instead answering a question from the police dispatcher about the teen’s race. The unedited transcript read: “The guy, is he black, white, or Hispanic?” in which Zimmerman responded: “He looks black.”

Zimmerman stated that the edited version made his call seem racially motivated, and since the airing of the transcript, he claimed that he has been publicly ridiculed and harassed. NBC acknowledged the error and issued an apology to Zimmerman.

In order for Zimmerman to have prevailed on his defamation claim he needed to show actual malice because he is considered a “public figure,” (such as a celebrity or politician) a standard set in the New York Times Co. v. Sullivan, (1964). The judge presiding over the case stated that Zimmerman became a public figure after he shot Martin, and at the time of the aired transcript he was engaged in an extremely important case of public concern.

Under case law, public figures are held to a higher standard because they have assumed public roles and therefore have a greater opportunity to publicly defend themselves to defamation and libel claims. If Zimmerman was able to show that he was a private individual, he would have only had to prove negligence, a lower standard. Private individuals generally lack the resources to defended defamation claims and are therefore afforded greater protection by not having to prove actual malice.

Because Zimmerman was not able to prove that NBC acted in actual malice, his case was thrown out. Mere manipulation of the transcript was not enough to show that the network acted in way to intentionally hurt Zimmerman.

 

– Skylar Young

Sources:

http://bigstory.ap.org/article/part-zimmerman-defamation-lawsuit-dismissed

http://www.people-press.org/2013/07/22/big-racial-divide-over-zimmerman-verdict/

http://www.nbcnews.com/id/3891881/ns/about/t/nbcnewscom-corrections-clarifications/

As Appeal Looms, Lawmakers and Professional Sports Leagues Weigh in on Collegiate Unionization

Student athletes get a ruling in their favor.

On March 26, 2014, the regional director of the Chicago chapter of the National Labor Relations Board, Peter Sung Ohr, ruled that scholarship football players at Northwestern University were employees, and therefore had the right to unionize. Citing the long hours spent practicing, the non-educational nature of football related activities, and labeling the scholarships received by students as “compensation”, Ohr’s decision has the ability to be the first step in a complete overhaul of the collegiate sport landscape. On Thursday, July 3rd, parties on both sides of the argument submitted briefs to the NLRB in an effort to coerce the five-person panel into deciding in their favor. Northwestern and congressional republicans voiced their concerns, while the College Athletes Players Association and all 5 major US sports leagues (MLB, NHL, NFL, NBA, and MLS) submitted their argument for upholding the ruling. With many experts feeling that the decision will be upheld, the question becomes not whether change will occur, but just how far it will go and the effects, both positive and negative, it will have on the collegiate athletics landscape.

Inconsistent unionization has the ability to divide.

Although this particular decision has an extremely limited scope, the possible ramifications, if the NLRB national headquarters in Washington, D.C. upholds it, could be staggering. The March judgment states that specifically, only scholarship students at private universities are eligible for unionization, making no mention of public universities or the rest of the collegiate landscape, which could cause for vast inconsistencies in application. Labor and employment laws are legislated within the states individually, and therefore, depending on a particular jurisdiction’s laws and political trends, unionization could be anywhere from a difficult struggle, to a forgone conclusion. Florida, as an example, has extremely low private unionization rates, and relatively high public unionization rates, 3.1% and 27.8% respectively. That fact combined with the unbelievable amount of revenue collegiate football brings in to the major state universities, $74 million dollar average from 2010-2012, makes the probability of unionization of Florida public university athletes extremely high.

If that domino falls in Florida, states like Alabama, Louisiana, and Texas, would need to follow suit in order to compete. Students would then be far less inclined to attend schools without the protections that unionization would provide, forcing many students to compete over the limited number of protected spots across the nation. You could then see a methodic overhaul of the entire collegiate landscape due, primarily, to the financial ability of some schools to pay their players without consequence, and the need for other institutions to make sacrifices in order to measure up. As certain schools inevitably begin to pull away, they will bring with them the championships and the public eye that comes with having many star athletes in one place. Less fortunate universities will be forced to cut certain programs just to be able to tread water, so to speak, within this new model.

 For female athletes, the potential for equality or elimination.

Optimists believe that this decision could finally create the equality that has been sought for so long by female student athletes. The combination of Title IX and a new ability to receive such benefits as health insurance and collective bargaining rights could put both male and female athletes on the same level and compel, or even force, athletic programs to compensate both sexes the same way. While this would be a victory for gender equality in sports, it also has the potential to force schools with lower budgets to eliminate many athletic programs in order to retain the most lucrative. While some would argue a balanced spending cut is better than an unbalanced one, it begs the question of whether protecting the athletes who bring in more money should come at the price of completely eliminating certain events from NCAA competition. 

While there seems to be no disagreement that the current NCAA model needs to be revamped, the “How?” of it all is where the question lies. If the NLRB decides to uphold Mr. Ohr’s decision, then some sort of guidelines or implementation schedule needs to accompany it. Without the necessary foresight, the unionization of student athletes has the potential to cause irrevocable damage to amateur sports in the United States. It would be terrible to lose so many programs across the nation just so that the few can get as much payment and protection as they feel is deserved.

 

Keith Bloyd 

Information Gathered From:

http://www.huffingtonpost.com/2014/07/04/college-football-players-union_n_5557872.html

http://www.pbs.org/newshour/rundown/college-presidents-oppose-unions-student-athletes/

http://espn.go.com/chicago/college-football/story/_/id/10837584/northwestern-wildcats-players-vote-whether-form-first-union-college-athletes

http://www.nytimes.com/2014/04/04/sports/impact-of-northwestern-ruling-on-womens-sports-is-uncertain.html?_r=0

http://time.com/46806/northwestern-football-union-college-sports/

http://www.athleticbusiness.com/more-news/no-1-in-polls-fsu-ranks-22nd-in-football-revenue.html

 

 

 

 

 

 

Sports Betting in New Jersey: Dead or Alive?

The United States Supreme Court refusing to grant certiorari to New Jersey’s appeal of two lower court rulings maintaining the sports betting ban in the state is not stopping some proponents.  Last week, just a few days after the decision, State Senator Raymond Lesniak proposed a bill aimed at allowing privately run sports betting at horse-racing tracks and casinos.  The measure would repeal New Jersey state laws and allow companies to offer sports betting without state regulation.  This would not violate federal laws because they only prevent states from licensing or regulating sports betting (with the exceptions of Nevada, Delaware, Montana, and Oregon).  States can allow betting to occur unregulated if they choose to do so.  The bill passed through the state Senate and the Assembly with ease (38-1 and 63-6-2 respectively) and could prove to be an important step towards legalized sports betting in New Jersey.

However, critics of this tactic are unconvinced the federal government will not interfere with what some perceive to be an attempt to circumvent federal law.  Further, and more concerning in the immediate future, is Governor Chris Christie may not sign the bill into law.  After the Supreme Court’s decision, Governor Christie commented, “It’s always a long shot to get certiorari from the United States Supreme Court . . . that’s the way it goes.  They said no, so we have to move on.”  This could be interpreted as Christie moving on to a new way to legalize sports gambling, but the more likely scenario is that Christie wants to focus his energy elsewhere and distance himself from a public defeat.  If the governor still has White House aspirations, and it’s clear he does, then moving on from this issue would likely be in his best interest.

Still, it is not entirely out of the question that Christie could get behind this attempt to bring legalized sports betting to New Jersey.  If he did sign the bill into law there would be a myriad of questions, but perhaps none more important than how it would help the state financially.  The driving force behind the legalization effort from the onset has been to generate revenue for the state of New Jersey.  If the state allows private companies to offer sports betting without having to be licensed and regulated, the money would have to flow to the state in ways other than licensing fees and built in charges for government regulation of the industry.  One way could be in increased tax revenue from the companies and patrons, but without state regulation it may be prove challenging to keep accurate account of the money moving between patron and businesses.  Without regulation, it is also unclear how patrons would be protected from predatory lending practices, unfair odds, and unethical debt collection or payout practices.  There are many factors indicating the state would be inviting more problems than revenue if they allow private businesses to provide sports betting without any regulation.  The increased amount of money in law enforcement man hours would be enormous to deal with these types of problems.  Without a need for a license or any state regulation, there would not be much motivation for business owners or patrons to obey the letter of the law with respect to declaring wins and losses.

In other words, circumventing the federal law this way would probably not produce anything close to the expected financial windfall that would have accompanied government regulated legalized sports betting in the state.  For the sake of a fading Atlantic City and the state, I hope legislators can figure out a way to make money from sports gambling.  This bill could very well be the start of that, though it seems unlikely.  The movement towards legalized sports betting in New Jersey may still be alive for the moment, but it certainly seems to be on life support.

-Keith Pedrani

Information from the following sources were used in this article:

http://www.nj.com/politics/index.ssf/2014/06/nj_legislature_passes_bill_to_pave_way_for_private_sports_betting_operations.html

http://www.nj.com/politics/index.ssf/2014/06/us_supreme_court_allows_sports_betting_ban_in_nj_remain.html

 

 

 

FIFA World Cup Trademark Infringement

The 2014 World Cup is in full swing, and futbol fans across the globe are sporting their favorite teams, but among these jerseys, caps and shoes are thousands of counterfeit products. Back in 2013, Customs even found over 500,000 counterfeit garments from a shipment from China and a majority of them displayed the 2014 Federation Internationale de Football Association (“FIFA”) World Cup Brazil Logo. FIFA has stressed to fans that their organization generates a majority of its income from sponsors and merchandise, reflecting the importance of preventing the sale of counterfeit goods.

Now host country Brazil is trying its best cracking down on merchants who are selling unofficial shirts and other merchandise that showcase the FIFA logo or something affiliated with FIFA in the vicinity of the games. This problem is raising some major trademark and copyright issues.

These merchants are engaging in “ambush marketing,” a strategy where advertisers falsely associate themselves with a particular event without paying any sponsorship fees. An example of this strategy is to use the official sponsor’s brand (name, logo or slogan) in relation to its own goods. In this case, these merchants are essentially passing-off as official sponsors, reaping the benefits of FIFA’s well-known status. This is clearly an infringement, so many companies have found other ways of creating this association without infringing, like using images of Brazil or soccer games without mentioning the World Cup or FIFA.

Under a special Brazilian World Cup Law, there is a 2-kilometer circular area around each venue hosting the games. Inside that area, only official World Cup sponsors’ products can be sold, distributed, or advertised. According to the General Law of the World Cup, anyone caught selling unofficial products could be held in prison for 3 months to a year, and may be fined.

These counterfeited goods are hard to spot, but FIFA has stated on their website a few ways to spot fake World Cup merchandise. First, the cost. A genuine FIFA jersey can cost between $90 – 150 dollars, while the “same” product from another merchant can cost as little as $25. Also according to FIFA, all official products have the World Cup hologram, official sewn-in labels, and there are restrictions on the amount of branding and sponsor logos on one product.

So, if you are like millions of people sporting your favorite futbol team, be careful of a transaction that may make you a victim of organized crime.

-Skylar Young

Sources:

http://ipmpromo.wcoomdpublications.org/Contents/Item/Display/460

http://www.fifa.com/worldcup/organisation/marketing/brand-protection/counterfeit-products/index.html

http://www.inta.org/Press/Pages/FIFAWorldCup2014_En.aspx

http://www.fifa.com/mm/document/affederation/marketing/01/37/85/97/2014_fifapublicguidelines_eng_17052013.pdf