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September-October 2014 l Volume 5, Issue 4 and the

Pom Poms and Picket Lines Might Professional Cheerleaders Unionize? By Scott Andresen and Kevin relations and provide an agency to oversee This Issue McCoy* and, where necessary, resolve disputes born out of the union-management relationship. Pom Poms and Picket or the uninitiated, the National Labor Over the last few decades, union member- Lines: Might Professional FRelations Act (“NLRA”) can be a tough ship has declined precipitously. According Cheerleaders Unionize? 1 nut to crack. The federal labor relations to the Bureau of Labor Statistics, in 2013 Reinsdorf Secures Legal law that we know today was created by the only 11.3% of the workforce was unionized Victory in Retaliation Case 1 Wagner Act in 1935, and later amended by (counting both private and public employ- Lawsuit Averted after the Taft-Hartley Act of 1947, which together ees). Only 6.7% of private sector employers Vikings Reach Settlement form most of the private-sector unionization had unionized workforces. Consider, by with Former Punter, Who provisions that predominate today. Re- contrast, that in 1983, the total percentage Advocated for LGBT People 2 nowned labor unions such as The Teamsters, of unionized workers in America stood in AFSME, the AFL-CIO, and The Laborers Braves Blocked by Court of excess of 20% and you begin to understand Appeals in Foul Ball Case 3 can all trace the beginning of their rise to why the NLRB’s influence has waned. prominence back to those early pieces of leg- These statistics are not news to the Moore, Bertuzzi, Canucks islation. The purpose behind the NLRA was Reach Settlement Over Injury 4 to regulate the field of union-management See Pom Poms on Page 12 Ex-CFL Player Has Hard Road to Hoe in Concussion Reinsdorf Secures Legal Victory Lawsuit 5 Timing Is Everything When in Retaliation Case Negotiating NFL Contracts 6 federal judge from the Northern Dis- that agreement, the White Sox “have enjoyed NFL Disciplinary Process in Jeopardy after Rice Incident 7 Atrict of Illinois has granted a motion a very favorable taxpayer-financed stadium to dismiss filed by Jerry M. Reinsdorf, the deal,” according to the court. “Among other FCC Eliminates Blackout principal owner of the Chicago White Sox, advantages, the ISFA paid 100 percent of Rules; Lawyer Questions Timing8 and others, who were sued by the former ex- the costs of building U.S. Cellular Field and NY Giants Memorabilia Case ecutive director and chief executive officer of continues to pay for improvements. The Stays in Federal Court 9 the Illinois Sports Facilities Authority (ISFA), White Sox also paid no rent for the first 18 who claimed they orchestrated her firing. Rice Saga: Not Just About years and currently pay only token rent.” Punishment Fitting the Crime 10 The ISFA is a unit of local government Plaintiff Perri Irmer was named the ex- created by the Illinois General Assembly, ecutive director of the ISFA in December whose purpose is to use public funds for 2004 and continued in that role until her the provision of sports stadiums in Illinois. termination on April 25, 2011. Its principal asset is U.S. Cellular Field, and As the most senior employee, Irmer the relationship between the ISFA and the reported directly to the ISFA’s board of White Sox is governed by a management agreement that runs through 2029. Under See Reinsdorf on Page 16

Lawsuit Averted after Vikings Reach and the Settlement with Former Punter, Who Holt Hackney Advocated for LGBT People Editor and Publisher Ellen Rugeley ate in August, the Minnesota Vikings sional sports leagues) makes a big deal of Contributing Writer Land one of their former players, punter how all the charitable work players do—in Steven Stamps Chris Kluwe, reached a settlement over what fact, much of this work is required of the Contributing Writer the player described as the organization’s players. The league supposedly wants its The Roberts Group intolerance toward lesbian, gay, bisexual players to be engaged. But it is beyond Design Editor and transgender (LGBT) people. hypocritical and paternalistic to punish a The settlement calls for the team to player for having enough of an engaged Editorial Board Gregg Clifton, donate an undisclosed sum to five charities mind to pick his own causes.” Jackson Lewis LLP over the next five years that benefit LGBT After the settlement, all was hunky-dory Ben Mulcahy, groups as well as sponsor a fundraiser. between the parties. Sheppard Mullin Richter & Hampton Kluwe, who was cut by the Vikings prior “This will help a lot of people that really LLP to the 2013 season, will receive no money need that help,” Kluwe said. “I think the Carla Varriale, as part of the settlement. Vikings are committed to making changes. Havkins Rosenfeld Ritzert & Varriale, LLP The controversy began last January I think they’re committed on this issue in when Kluwe penned an article for sports Jeff Gewirtz, the NFL, and I think it will make a differ- Executive Vice President of Business website Deadspin, which accused special ence over the upcoming year.” Affairs & Chief Legal Officer, Brooklyn teams coach Mike Priefer of saying, “We Kevin Warren, Vikings executive vice Nets and Barclays Center should round up all the gays, send them to president of legal affairs, elaborated, dis- Jeffrey E. Birren, an island, and then nuke it until it glows.” cussing the sensitivity training that will be Oakland Raiders That revelation led the Vikings to con- undertaken. Irwin A. Kishner, duct an independent investigation, which “What we’re doing now is breaking it up Herrick, Feinstein LLP spawned a 150-page report. The Vikings, into four different seminars,” Warren told Shaun Crosner Dickstein Shapiro LLP however, were reportedly hesitant to release the Minneapolis Star-Tribune. “We’ll have the report, which led Kluwe and his at- players, coaches and staff people so that we Edward Schauder Sichenzia Ross Friedman Ference torney, Clayton Halunen, to threaten the can make sure that the training that we do LLP filing of a lawsuit. The team, and the NFL is much more focused for that individual Robert E. Wallace, Jr. by extension, became a whipping boy for group. ... We just want to continually en- Thompson Coburn LLP some sports law experts, such as Howard hance what we’ve already been doing ... to Scott A. Andresen Wasserman, a Professor of Law at the make sure we’re doing the proper training Andresen & Associates, P.C. Florida International University College to help educate our organization.” of Law. He offered his thoughts in the Vikings owner Zygi Wilf also issued his Please direct editorial or subscription inquiries to Hackney Publications at: Sportslawblog.com. own statement. “The report concludes that the Vikings “We appreciate Chris Kluwe’s contribu- P.O. Box 684611 Austin, TX 78768 were not concerned with the content of tions to the Minnesota Vikings as a player (512) 716-7977 Kluwe’s advocacy, but with the fact of and a member of this organization during [email protected]. his advocacy and the ‘distraction’ it was his eight seasons in which he established

Professional Sports and the Law is creating,” wrote Wasserman. “While it many team records as our punter, and we published bimonthly by Hackney perhaps gets the team out from liability wish him and his family the best in the Publications, P.O. Box 684611, Austin, for retaliation, the notion that players are future,” he said. “In regards to this matter, TX 78768. Postmaster send changes to Professional Sports and the Law. Hackney doing something wrong—something that our focus remains on maintaining a culture Publications, P.O. Box 684611, Austin, TX justifies cutting them—by being politically of tolerance, inclusion and respect, and 78768. engaged is a pretty reprehensible stance for creating the best workplace environment Copyright © 2014 Hackney Publications the team to take. The NFL (and all profes- for our players, coaches and staff.” l

Braves Blocked by Court of Appeals in Foul Ball Case

Georgia court of appeals has declined cited case law from the state’s Supreme Court: Cas. Co., 253 Ga. App. 199, 201 (1) (558 Ato put the brakes on a lawsuit brought “While it has often been said that our SE2d 432) (2001) by the family of a 6-year-old girl, who was declaratory judgment statute ... should be “Here, the event giving rise to the Braves’ struck by a foul ball, while attending an liberally construed, it manifestly was never potential liability has already occurred, and Atlanta Braves game, and subsequently intended to be applicable to every occasion a declaratory judgment is not the proper sued the team. or question arising from any justiciable con- means by which to test their defense that The Braves had sought to overturn a trial troversy, since the statute does not take the their observation of the baseball rule, or court’s decision not to grant the baseball place of existing remedies.” Mayor of Athens some variant of it, satisfied their duty of team’s motion for a declaratory judgment. v. Gerdine, 202 Ga. 197 (1) (42 SE2d 567) care to plaintiffs.” The declaratory judgment would have (1947). Thus “a declaratory judgment is not One other issue that could surface as the recognized the baseball rule in Georgia and the proper action to decide all justiciable litigation continues is whether the exculpa- would have likely absolved the team of any controversies.” Porter v. Houghton, 273 Ga. tory language applies to youths. liability in the case. The rule provides that 407, 408 (542 SE2d 491) (2001); see also The Atlanta Journal Constitution recently a team has satisfied its duty of care, but Fortson v. Kiser, 188 Ga. App. 660 (1) (373 noted: shielding some seats from foul balls and SE2d 842) (1988) (although OCGA § 9-4-2 “In 1984, the state Court of Appeals de- making those seats available to the public. (c) authorizes declaratory relief even when a clined to dismiss a lawsuit filed on behalf of The incident leading to the litigation oc- party has other legal remedies, “that statute an 8-year-old boy whose teeth were knocked curred on August 30, 2010, when plaintiff obviously does not require the availability out when he was struck by a foul ball at M. F., a six-year-old girl, was sitting with of such relief”).” Atlanta-Fulton County Stadium. The case her father behind the visitors’ dugout at a The appeals court continued, noting settled before going to trial.” Braves at Turner Field. The plaintiff was that “a party seeking such a judgment ‘must Meanwhile, the Atlanta attorney repre- struck by a foul ball, causing a skull frac- establish that it is necessary to relieve him- senting the plaintiff was pleased with the ture and brain injuries. M. F.’s parent and self of the risk of taking some future action decision in his case. guardian sued the Braves and three other that, without direction, would jeopardize “We, of course, agree with and appreci- defendants for negligence on July 16, 2012. his interests.’ Porter, 273 Ga. at 408. Thus ate the Court of Appeals’ decision to allow After the trial court denied the Braves’ “a declaratory judgment action will not lie the case to continue,” said Mike Moran. motion to dismiss for failure to state a where the rights between the parties have “We believe there is no compelling public claim or for summary judgment, the Braves already accrued, because there is no uncer- policy reason for courts to grant the Braves moved for a declaratory judgment as to the tainty as to the rights of the parties or risk as and their owner Liberty Media de facto applicable standard of care. The trial court to taking future action.” Thomas v. Atlanta immunity from claims when children are denied this motion, but granted the Braves’ application for interlocutory review, leading Spurs’ Long-Time GC to Manage Charitable Foundation to the instant opinion. The appeals court noted that there is J. Tullos Wells, the long-time de facto gen- In an interview with Sports Litigation safety netting behind home plate, which eral counsel for the San Antonio Spurs, has Alert two years ago, Wells was asked what protects 2,791 of the stadium’s 49,856 seats. left the team to become was the most rewarding aspect of his job? But the netting does not extend to the seats the managing direc- “It’s twofold. First, I’m flattered to have directly behind the dugouts on either side of tor of the Kronkosky the relationship I do and they have been the field. “Although a Braves representative Charitable Foundation, gracious to me for a long time. Second, this testified that M. F. and her family would the single largest source is just a terrific organization. If you look have been free to move to unsold protected of philanthropic fund- at what the Spurs have done over the last seats behind home plate by notifying an ing in San Antonio. decade, being identified as one of the best usher, the same representative testified that Wells’ role with the franchises in professional sports, I really am a surcharge would apply to seats purchased Spurs was unique in enormously fond of the people I work with. J. Tullos Wells in this way,” wrote the court. that he also served as Very close relationships. Pop has been there Turning to the Declaratory Judgment Act, a partner in the San Antonio office of off and on since 1992. Peter is on the team OCGA § 9-4-1 et seq., the appeals court Bracewell & Giuliani. since 1996. We have grown up together.”

Moore, Bertuzzi, Canucks Reach Settlement Over Injury

decade after Todd Bertuzzi’s hit on commenced by Steve Moore against Todd NHL officials may be breathing “a sigh ASteve Moore in an NHL hockey Bertuzzi and the Vancouver Canucks has of relief,” according to Heshka. game caused a concussion and effectively been reached,” the Canucks organization “The out-of-court settlement denies fans ended Moore’s career, a settlement has confirmed. “The settlement is a result an opportunity to hear first-hand accounts been reached between the two men and of mediation sessions with former On- in court of the culture of violence that the Vancouver Canucks, which was also tario Chief Justice Warren Winkler. No pervades hockey,” he said. “The settlement named in Moore’s lawsuit. further details will be disclosed and the further means fans won’t hear the extent to The hit occurred when Bertuzzi struck Canucks respectfully decline requests for which — if at all — the Vancouver Canuck’s Moore from behind in retaliation for a hit comment.” coaching staff and ownership directed made by Moore on Canucks captain Markus Jon Heshka, Associate Dean of Law at Bertuzzi to assault Moore as retribution Naslund in a previous game. Moore suffered Thompson Rivers University, told Concus- for Moore’s concussing Canuck star captain a concussion and three broken vertebrae. sion Litigation Reporter that “with a trial Marcus Naslund with an open-ice hit earlier Shortly thereafter, Moore sued the defen- scheduled to start on September 8th, the in the season. dants for $38 million. His attorney, Geoff out-of-court settlement between Moore “What the settlement does mean, if one Adair, would later increase the demand to and Bertuzzi is not entirely unexpected. has indeed been reached and there appears $68 million Despite Bertuzzi pleading guilty to as- to be some uncertainty on that front, is The Canucks confirmed the settlement sault causing bodily harm and receiving that Moore is finally compensated for the with a statement. a conditional discharge in the criminal injuries sustained on March 8, 2004 and “Canucks Sports & Entertainment case, Moore winning the asked-for $68 the NHL can breathe a sigh of relief that confirms that a mutually agreeable and million in damages was far from scoring this embarrassment will finally come to confidential settlement of the action an empty-netter.” an end.” l

Ex-CFL Player Has Hard Road to Hoe in Concussion Lawsuit

By Jon Heshka, Associate Dean of to which violence is promoted. rocognitive decline, as other diagnoses of Law at Thompson Rivers University The lawsuit devotes seven pages to “The neurodegenerative diseases are also possible (British Columbia, Canada) History of Concussion and CTE” citing [emphasis added]. Our findings are con- studies dating back to 1928 to the present. sistent with a literature review by Nowak anadian football has finally seen its Bruce claims that the CFL denied a et al. (2009), in which dementia in retired Cfirst concussion lawsuit. Filed in the scientifically proven link between repeti- boxers could be explained by pathologies Supreme Court of British Columbia in July tive traumatic head impacts and later in aside from dementia pugilistica (Nowak 2014, former professional football player life cognitive brain injury including CTE, et al., 2009—see also McKee et al., Arland Bruce has sued the commissioner that the CFL misled, downplayed, and 2013). In contrast, other previous stud- of the Canadian Football League (CFL), obfuscated the true and serious risks of ies either focused on describing CTE in all nine teams in the CFL, an internation- these hits, that the CFL failed to warn him professional athletes (Omalu et al., 2005, ally renowned doctor who specializes in of the long term medical risks associated 2006, 2010b,c; McKee et al., 2009, 2010) sports concussions, a medical centre which with repetitive head impacts and that he or found that a majority of professional employs the doctor, and the president of relied upon these statements in playing athletes had CTE (Omalu et al., 2011). the players association. professional football. These findings raise questions regarding the Bruce claims he was knocked uncon- Bruce similarly alleges that Dr. Charles relationship between multiple concussions scious during a game on September 29, Tator, whom the CFL partnered with as in professional football alumni and CTE, 2012 and was permitted to return to play part of its Canadian Sports Concussion the prevalence of CTE in this population on November 18, 2012 despite not being Project at the Krembil Neuroscience and the risk factors. Previous post-mortem 100% recovered and still suffering from Centre, is negligent and for an article research with larger samples of profes- the effects of a concussion. He alleges that entitled, “Absence of chronic traumatic sional athletes with multiple concussions he sustained multiple sub-concussive and encephalopathy in retired football players has suggested a very high incidence rate; concussive hits in that same game. Bruce with multiple concussions and neurological however, such studies have been limited further claims that he was permitted to by biased samples restricted to clinically symptomatology” published in Frontier in return to play in 2013 for the Montreal symptomatic cases and a lack of medical Human Neuroscience. Bruce claims that Alouettes even though he was still display- post-mortem controls ...” the findings in the article were against ing the ongoing effects from the concus- At the CFL Players Association AGM in the weight of the medical evidence, that sions sustained the year before. 2011, players learned, according to Win- there was no provable connection between At its essence, the lawsuit alleges neg- nipeg Blue Bombers defensive tackle Doug concussion and sub-concussive injuries and ligence and negligent misrepresentation. Brown who was present and wrote about CTE in CFL players, and that the research Tearing a page from the NFL class action it in the Winnipeg Free Press the following: overlooked the work of prominent concus- lawsuit, Bruce claims that, “Part of the “According to information from a sion experts, Dr. Omalu and Dr. McKee. CFL’s marketing strategy is to promote UNC study we were shown, “Repeatedly By wanting to hold the author of an and glorify the brutality and ferocity of concussed NFL players had five times academic article published in a peer- CFL football, in part, by lauding the the rate of mild cognitive impairment reviewed medical journal, Bruce appears most brutal plays and ferocious players (pre-Alzheimers) than the average popula- not to understand either the nature of and collisions; yet the CFL is claiming to tion.” The same study also showed that, research in general or the scientific method take on a leadership role in the promo- “...retired NFL football players suffer specifically. The article does not make the tion of concussion awareness, prevention, from Alzheimer’s disease at a 37 per cent sweeping statements suggested by Bruce research and treatment.” The claim also higher rate than average.” Going into this and did not overlook the work of Omalu dramatically includes the lyrics from a conference we were all somewhat familiar and McKee but instead offers a more nu- promotional song of the league which with the long term consequences of play- includes the lines, “This is a league of anced view: ing football, but not to the depth that fast and crush where there is no safety in “[O]ur findings advocate caution in was introduced at our meetings. Next a sideline ... This is a league of black and the clinical diagnosis of CTE in patients blue” which purports to show the extent with histories of contact sports and neu- See Ex-CFL on Page 6

Timing Is Everything When Negotiating NFL Contracts

hen renegotiating a contract in the in the offseason, giving teams an upper “I started thinking about renegotiation WNFL, timing is of the essence — the hand because there would be few if any — how it happens, why timing of renegotia- player can benefit financially the earlier in openings elsewhere and the player would tion is very important,” he said. “You really the offseason the contract is signed, while have little option but to take whatever the want to think about how you’re going to the team can benefit by waiting. team offered. structure your contract. And timing can mean a difference of For veteran players, though, a roster “In the NFL we can measure dollars. hundreds of thousands of dollars, according bonus often is part of the payment package If you slightly mis-structure your contract to new research from the University of the and must be paid early in the offseason, on the timing, then that could potentially Chicago Booth School of Business. forcing teams to decide whether to keep or “This paper is about a seemingly very cut a player at a time that is more opportune cost you hundreds of thousands of dollars.” small part of the NFL contracting — when for the player. The rest of the salary is paid Matvos says NFL contracts are interest- do you get paid in the offseason?” says at the end of the offseason. ing because teams and players have to “buy” Gregor Matvos, an associate professor of In his paper, “Renegotiation Design: trade-offs — through signing bonuses, finance at Chicago Booth. He says that Evidence from National Football League roster bonuses and salary. whether football players get paid early in the Bonuses,” which was published in May in “What does a nonguaranteed contract offseason or later in the offseason shouldn’t the Journal of Law and Economics, Matvos mean for a player? It means that if I, the matter, because regular-season games don’t looked at 4,220 contracts signed in the NFL team, want to keep you, I have to pay you start until September. from 1994 to 2003, focusing on the 1,428 this money (roster bonus), but if I don’t “It turns out it matters hugely — the contracts in that span that were two years want to keep you I can just terminate the timing of these payments, how they’re stag- or longer, as well as corresponding player contract,” he says. “So in some ways as a gered,” Matvos says. “In a lot of markets performance data. team, I have an option on your play. But of we don’t quite understand how important Matvos focused on the NFL because course there is a price for this contract ex timing is.” of conversations he had with Andrew No NFL contracts are guaranteed — Wasynczuk, a former chief operating officer ante. ... Just because a player doesn’t have though players are bound to the teams with the New England Patriots who now a roster bonus doesn’t mean they’re worse with which they have their contract, the teaches at Harvard Business School, and a off. Hopefully they got compensated appro- teams can cut ties with the players at any realization that “sports are a really nice lab priately for it, with a bigger signing bonus time. Thus, with no safeguards, teams could to think about contracting because things or a bigger salary. It’s stunning that such a delay renegotiation with a player until late are very constrained.” little difference could matter so much.” l

Ex-CFL Player Has Hard Road to Hoe in Concussion Lawsuit

Continued From Page 5 we were shown that Time Magazine had floor. These are not CFL statistics, but you Though not mentioned in the claim, produced a story about football called The would have to be pretty naive to think that Bruce began playing in the CFL in 2001 Most Dangerous Game, and the author, these facts do not apply to our game as well and played a total of 12 seasons in the league Sean Gregory, concluded that, “Men be- [emphasis added].” before retiring. Given his choice of profes- tween the ages of 30 and 49 have a one The figures cited were from studies sion, its occupational hazards and inherent in a thousand chance of being diagnosed published in 2005 and 2006. While it is risks, and the recent history of concussion with dementia, Alzheimers, or another disconcerting that it took the CFL more litigation with the NFL which began with memory related disease. An NFL retiree than five years to tell its players about these the first lawsuit in April 2011, Bruce has has a one in fifty-three chance of receiving known dangers in March or April 2011, a hard row to hoe in proving the CFL and the same diagnosis.” This was around the it is noteworthy that Bruce was injured Dr. Tator were negligent and that he was moment in Las Vegas where a collective in September 2012, a full year-and-a-half unaware of the risks of brain injuries in ‘thunk’ was heard as all of our jaws hit the later after these statistics were revealed. professional football. l

NFL Disciplinary Process in Jeopardy after Rice Incident By Michael James, Jr.

he NBA, NHL, and Major League Baseball all have seem to Notwithstanding the second video controversy, the league still Thave their fair share of internal problems in recent years that has adequate standing to impose the two game suspensions through garnered public attention and criticism of how the situations were its personal conduct policy. The league has discretion to punish handled. The other leagues’ dilemmas, however, pale in comparison players for conduct detrimental to the NFL under the personal to the NFL’s handling of Ray Rice’s suspension stemming from conduct policy. Regardless of who saw the elevator video and when, him assaulting his wife in a New Jersey Casino. Rice was indicted by a grand jury for aggravated assault and was Initially, Ray Rice received a two game suspension from the sentenced by a judge for his conduct. league after he plead not guilty to one count of third-degree aggra- Rice’s indefinite suspension is vulnerable to legal challenge vated assault and instead sought entry into a pre-trial intervention though. The crux of the controversy stems from the double jeopardy provisions contained in Article 46 of the collective bargaining program for first-time offenders. The diversionary program allowed agreement. Under the Article 46 “one penalty” clause, the NFL him to clear his record of charges. The league received public cannot punish a player twice for the same conduct or act. The criticism expressing that the suspension was essentially a slap on clause bars the league and teams from double-penalizing a player the wrist for such a serious offense. The NFL would respond with for the same conduct or act. While the elevator video shows a a harsher, indefinite suspension. However, this punishment also different sequence of Rice hurting Palmer, it is arguably the same garnered public controversy because the indefinite suspension was act and occurrence. imposed on Rice only after TMZ published a second video that NFL has implied that Rice was untruthful about what happened graphically captured Rice knocking his then-fiancée unconscious in the elevator in an attempt to shield their double-penalization in a New Jersey casino. liability. The NFL could better justify its indefinite suspension if Rice was in fact untruthful in speaking with Roger Goodell because the NFL would have impose a punishment based on misinforma- tion. Rice has disputed the accusation by claiming that the TMZ footage was altered and depicts an alternative occurrence than of the actual event. If true, Rice will have a high likelihood of filing a successful grievance because the original penalty was based on correct information. The NFL has also justified the indefinite suspension on the NFL not having seen the elevator video prior to Monday. In claiming so, the NFL implies that the second video constitutes a separate occurrence, which justifies the additional and more stringent punishment. However, four independent sources claim informing the NFL and the Ravens organization of the incident and sending the video to the NFL. An independent review of the disciplinary process will favor Rice, if the sources are accurate. Even if none of Rice’s potential legal claims prove successful, Rice may still be in a good position to extract a settlement from the A NFL that returns him to the NFL, but not necessarily the Ravens. P E Regardless of the NFL’s problematic investigation, NFL teams have wide discretion to release players under contract. Rice committed a graphic domestic violence act and was sentenced for his conduct. As long as Rice is paid in accordance with his contract, he likely has no viable legal argument against the Ravens. James holds a Juris Doctor degree from The Dickinson School A DIVISION OF of Law at Penn State University and is awaiting admission to the New York Bar. He is the former President of PSU’s Sports and Entertainment Law Society. l

FCC Eliminates Blackout Rules; Lawyer Questions Timing

he Federal Communications Com- The NFL is the most profitable sports league to protect their distribution rights in the Tmission has announced that it was in the country, with $6 billion in television private marketplace.” repealing its sports blackout rules, which revenue per year, and only two games were has prohibited cable and satellite operators blacked out last season. Lawyer Calls Rule Obsolete from airing any sports event that had been The FCC also found that the NFL, “whose Irwin A. Kishner, an authority on sports law blacked out on a local broadcast station. current contracts with the broadcast networks and the chairman of the Executive Com- The action removes Commission protec- extend through 2022 — is unlikely to move mittee at Herrick, didn’t mince words in tion of the NFL’s current private blackout its games from free, over-the-air broadcast discussing the FCC’s decision with Sports policy, which requires local broadcast sta- television to satellite and cable pay TV as a Litigation Alert. tions to black out a game if a team does result of elimination of the sports blackout “The FCC blackout rule was arcane relic not sell a certain percentage of tickets to the rules. The Order therefore concludes that the from bygone days and frankly should have game at least 72 hours prior to the game. sports blackout rules are no longer needed been dispensed with several years ago,” The Commission concluded that the to ensure that sports programming is widely Kishner said. “While the rule played an sports blackout rules “are no longer justified available to television viewers. important role in the 1970s and perhaps in light of the significant changes in the sports “Today’s action may not eliminate all the 1980s by protecting team ticket sales, industry since these rules were first adopted sports blackouts,” the FCC continued, “be- as the prominence of nationalized televi- nearly forty years ago. At that time, ticket sales cause the NFL may choose to continue its sion revenues grew in the 90’s through the were the primary source of revenue for the private blackout policy. However, the NFL present, the rule’s purpose became obsolete. NFL and most NFL games failed to sell out. will no longer be entitled to the protection “The FCC should focus on matters of Today, television revenues have replaced ticket of the Commission’s sports blackout rules. public interest and not concern itself with sales as the NFL’s main source of revenue, and Instead, the NFL must rely on the same matters of revenue distribution among blackouts of NFL games are increasingly rare. avenues available to other entities that wish team owners.” l

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NY Giants Memorabilia Case Stays in Federal Court

federal magistrate judge has sided with President, CEO, and co-owner of the Gi- aged his reputation and business. Athe New York Giants and several in- ants), William J. Heller, Esq. (Giants General The plaintiff’s complaint asserted the dividual defendants, including quarterback Counsel), and others — that was initiated in following 16 causes of action, all under Eli Manning, denying a memorabilia collec- 2006 by the United States Attorney’s Office state law: (1) New Jersey’s Civil Racketeer- tor’s motion to remand a lawsuit, in which for the Northern District of Illinois. ing Statute, N.J.S.A. 2C:41-1, et seq.; (2) he alleged fraud and other improprieties, Inselberg was eventually indicted in Tortious Interference with Prospective Eco- back to state court. Illinois for mail fraud, specifically finding nomic Advantage; (3) Tortious Interference Plaintiff Eric Inselberg claims the de- that he had “misrepresented unused jerseys with Contractual Relations; (4) Malicious fendants lied to him when they sold him as game-worn or game used in order to Prosecution; (5) Abuse of Process; (6) Trade “game-worn merchandise.” He also alleged obtain higher prices for the merchandise.” Libel; (7) Intentional Infliction of Emo- that the Giants inappropriately used patented Inselberg says the indictment was the result of tional Distress; (8) Unjust Enrichment; (9) intellectual property invented by Inselberg Giants employees giving false testimony. The Quantum Meruit; (10) Unfair Competition relating to technology for wireless audience indictment against Inselberg was dismissed — Idea Misappropriation; (11) Breach of interaction at football games. The latter claim on May 2, 2013, at the request of the U.S. Contract; (12) Civil Conspiracy; (13) Aiding is what torpedoed the plaintiff’s motion to Attorney’s Office. & Abetting; (14) Negligent Supervision; (15) remand since patent claims “are exclusively On January 29, 2014, the plaintiff filed a Negligent Retention; and (16) Respondeat federal, and can only be brought in federal 16-count Complaint in New Jersey Superior Superior. court,” wrote the magistrate judge. Court, arguing that the false testimony led While the aforementioned sports memo- Inselberg, a self-described inventor and to his indictment and ruined him personally rabilia investigation was ongoing, Inselberg sports memorabilia dealer, was the subject and financially. Inselberg also alleged that was also trying to convince the Giants to of a government investigation — along with the defendants were involved in game-used use his wireless technology. Ultimately, he the Giants, Manning, John K. Mara (the memorabilia fraud, which ultimately dam- See NY Giants on Page 11

Rice Saga: Not Just About Punishment Fitting the Crime

By Howard M. Bloom, of Jackson ing agreement between the league and the Unresolved grievances are referred to arbitra- Lewis P.C. National Football League Players Associa- tion in front of a neutral arbitrator. tion (NFLPA) and, despite the seriousness Unlike almost all other grievance pro- he disturbing domestic violence of the incident, the question arises whether cesses contained in CBAs, however, the NFL Tincident involving former Baltimore the “rules” bar Commissioner Goodell from CBA grievance procedure does not apply to Ravens running back Ray Rice and his wife having increased the initial sanction against fines or suspensions (including Ray Rice’s) may raise issues for professional football’s Rice for reasons of “double jeopardy.” That levied against players. Instead, a “hearing of- labor relations as well as Rice’s future career argument, among other theories, almost ficer,” appointed by the Commissioner after as a player. certainly will be raised by the NFL Players “consultation” with the Executive Director Rice was seen in a hotel video dragging Association (NFLPA) at the hearing that will of the NFLPA, hears the case and renders his wife out of an elevator. National Foot- take place in connection with the appeal the a written decision which is “full, final and ball League Commissioner Roger Goodell NFLPA filed challenging Rice’s indefinite complete disposition of the dispute” and investigated and suspended Rice for two suspension binding. games. Public outrage continued to mount, The NFLPA represents NFL players Enter the potential concept of “double especially after a newly released hotel video under a collective bargaining agreement jeopardy.” In criminal cases, it prevents an showing Rice punching Janay inside the (CBA) with the League. Like most CBAs, individual from being tried twice for the elevator was released. Commissioner Goodell the NFL CBA contains a provision under same crime after a conviction or acquittal changed Rice’s punishment and increased the which employees (players) and/or the union has occurred. The same concept also can be length of the punishment to an indefinite may file a “grievance” involving a dispute applied in the workplace. Double jeopardy suspension. about how a specific provision of the CBA Rice is covered by a collective bargain- has been interpreted or applied by the NFL. See Rice Saga on Page 11

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Rice Saga: Not Just About Punishment double jeopardy is raised by the NFLPA at the hearing, the hearing officer may be Continued From Page 10 sympathetic to a counter-argument by the as a workplace concept has more than one it is not a given that it will be recognized NFL that it was unaware of what actually meaning or application. First, once an em- by the hearing officer under the procedure occurred in the elevator until after the two- ployee has been disciplined for wrongdoing, contained in the NFL CBA. And, even game suspension had been imposed, and he or she may not be subject to discipline a if it is, the double jeopardy rules are not therefore, it was appropriate to reconsider second time for the same infraction. Second, without exception. For example, assuming the earlier suspension decision. l and most relevant to the Rice situation, the notion also disallows increasing the penalty for a violation after the discipline has been Memorabilia Case Stays in Federal Court imposed. In fact, double jeopardy can ap- Continued From Page 9 ply where a penalty is enlarged, even if the greater penalty is based on facts about which claimed the defendants wrongly “misappro- ‘patented concepts’ claims are really patent the employer was unaware when the original priated” and “used” his “wireless patented claims, no matter what they are called,” discipline was imposed. marketing concepts and ‘integrated’ them wrote the court. “Patent claims are quint- In its press release announcing the filing into the Giants’ wireless platforms.” essentially federal, creating model federal of the appeal on Rice’s behalf, the NFLPA Given the patent claims, the defendants jurisdiction. But not only are patent claims said “[u]nder governing labor law, an em- successfully had the claim removed to federal, they are exclusively federal, and ployee cannot be punished twice for the federal court. can only be brought in federal court. In same action when all of the relevant facts On appeal, the plaintiff argued that patent matters, Congress has so completely were available to the employer at the time the patent claims should be covered under preempted the field that any attempt to of the first punishment.”) New Jersey state law. But the court was disguise them as state law claims cannot Although the concept of double jeopardy unpersuaded. defeat federal jurisdiction. Thus, the motion is well-established in grievance arbitration, “The plaintiff’s purported state law to remand should be denied.” l

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Pom Poms and Picket Lines: Might Professional Cheerleaders Unionize?

Continued From Page 1

NLRB; the agency has been combatting NFL cheerleaders would ever organize? own cheerleaders (usually at low wages… declining union rolls for many years. How- Well, first-things-first…is a cheerlead- but more on that later) and would clearly ever, about three or four years ago the agency ers union even legally possible? The short be a statutory employer under the NLRA. underwent a philosophical re-evaluation of answer is, yes. The NLRA allows “employ- Teams who subcontract with cheerleading its role in the unionization process and its ees” (both full and part-time) to engage companies to provide cheerleaders may or role in workforce management, in general, in protected concerted activity for their may not be considered “employers” under with the hopes of reinvigorating unioniza- mutual aid and protection. So, as long as the NLRA, depending on the amount of tion in the United States. The reinvigora- the cheerleaders were actually employees control and direction they exercise over tion efforts have led to some interesting of some organization (and not indepen- the cheerleading squad (as was seen in the developments. dent contractors) and there were two or Buffalo Jills-Mighty Taco matter discussed more cheerleaders on the squad (because below). But the more interesting question is, We’ve Got the Players…. one employee cannot form a union), then what about the NFL? Might the cheerlead- Why Not the Cheerleaders? cheerleaders would be no different than ers be considered employees of the NFL? One way the NLRB is trying to reinvigorate any other “employees” who were working For those at all familiar with the NLRA, the union rolls is by crafting rules and ad- in, say, a manufacturing plant. it will come as no surprise that the basic ministrative decisions that make it easier for The next question to answer then is definition of “employer” is extraordinarily employees to unionize. A by-product of that who is considered the employer? Taking broad – literally, anyone “acting as an agent effort has been that categories of employees NFL cheerleaders as an example, are the of an employer…”, with limited excep- who have traditionally not been unionized cheerleaders employees of the NFL team for tions, will qualify as an employer under are initiating organizing attempts. Let’s get which they cheer or even the NFL? In most, the NLRA. But in order to be considered crazy for a moment; what are the chances if not all instances, NFL teams employ their See Pom Poms on Page 13

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Pom Poms and Picket Lines: Might Professional Cheerleaders Unionize?

Continued From Page 12 an employer of NFL cheerleaders (who are easier path to unionization for cheerleaders with little or no compensation. For their ostensibly paid by their respective teams) the is likely concentrating on the “employer” efforts, cheerleaders are often paid less than NFL would have to be viewed as a “joint that strokes their meager paychecks, and in minimum wage (which is unlawful, if they employer.” In order to be a joint employer, most instances that is their team.1 are employees) or even if they earn mini- an entity must exert a significant and direct So even if cheerleaders can unionize, mum wage, the pay is still low. Thus, the degree of control over employees and the why would they? Or should they? Ironi- conditions are ripe for discontent among the employees’ essential terms and conditions cally, cheerleaders today represent a fair ranks of the cheerleaders; and discontent is of employment – which include such things example of why the NLRA was passed in traditionally the fuel for the fire of union- as hiring, firing, discipline, and supervision the first place. Professional cheerleaders ization. How discontented can an NFL of work. In short, in order for the NFL to are, by and large, paid poorly for a fairly cheerleader possibly be, you ask? Quite a be a joint employer, it would have to have involved job that requires not only practice, bit, apparently….at least according to some some significant say over the day-to-day but public relations appearances, uses of NFL cheerleaders who have recently filed roles of a team’s cheerleaders. Whether that their likenesses for marketing purposes, individual lawsuits against their employer would be the true for any particular team’s autograph sessions, and photo shoots—all teams for wage theft, stemming from the cheerleaders would have to be determined alleged failure of the teams to pay them at on a case by case basis; and it is probably 1 It is worth noting that NFL players are unionized, collectively, and not on a team-by-team least minimum wage. But has this apparent not something that could be demonstrated basis. However, the NFL has significant control discontent actually lead to any attempts at by cheerleaders on a “league wide” basis. over the players’ day-to-day jobs, including unionization by cheerleaders? The answer In other words, it is unlikely that the NFL such things as pay, discipline, suspension, uniforms, off the field conduct, etc. This type may surprise you. would be deemed a joint employer of every of governance does not exist at the NFL level NFL teams’ cheerleaders. However, the for teams’ cheerleaders. See Pom Poms on Page 14

Pom Poms and Picket Lines: Might Professional Cheerleaders Unionize?

Continued From Page 13

Cheerleaders Strike Back (i) not paid minimum wage for practices, The settlement resolved all disputed claims As of the writing of this article, the Oakland appearances, modeling, etc., (ii) not paid regarding payment for hours worked, Raiders (twice), Cincinatti Bengals, Tampa in a timely manner, (iii) not paid overtime, including practices and appearances, Bay Buccaneers, New York Jets and Buf- (iv) subjected to unlawful terms and condi- unreimbursed expenses, interest on past falo Bills have all been sued by current and tions of employment (e.g., auctioned off at wages, and penalties under the California former cheerleaders.2 In the second Raiders golf outings and forced to sit in winners’ Labor Code. case filed on June 4, 2014, the National laps in golf carts, and “jiggle tests”), (v) Déjà Vu All Over Again: NFL Football League is also a named defendant. not reimbursed for expenses, and (vi) not Cheerleaders Association The cases are a mix of claims under federal provided breaks. Unjust enrichment claims For the Buffalo Jills cheerleading squad, law (e.g., the Fair Labor Standards Act) and were also asserted against the teams. their current foray into labor unrest is déjà state law, and generally claim that they were The Oakland Raiders reached a settlement in the Lacy T. v. The Oakland Raiders vu all over again. It is a little-known fact 2 See Brenneman v. Cincinnati Bengals, Inc., No. case on September 4, 2014, with the court that the Buffalo Jills successfully formed a 1:14-CV-136 (S.D. Ohio 2014); Jaclyn S. v. union in 1995. Formed in 1967, the Jills Buffalo Jills, Inc., No. 804088-2014 (N.Y. Jul. granting preliminary approval on October 1, 2014); Krystal C. v. New York Jets, LLC., 2, 2014. The settlement will pay an aver- were leased to local fast food chain Mighty No. L00428214 (Super. Ct. N.J. May. 6, 2014); age of $6,000 to each Raiderette for each Taco by the Buffalo Bills organization in Manouchar Pierre-Val v. Buccaneers Limited the mid-1980’s. Mighty Taco selected and Partnership, No. 8:14-CV-1182-T-33EAJ season worked between 2010 and 2012, (M.D. FLA. May. 19, 2014); Caitlyn Y. v. The and $2,500 for the 2013-2014 season.3 managed the Jills, while using the squad to National Football League, No. GG14727746 promote its business and provide cheerlead- (Super. Ct. Cal. July. 4, 2014); and Lacy T. 3 The amount for the 2013 season is reduced ing at 8 Buffalo Bills home games a season. v. The Oakland Raiders, No. RG14710815 as the Raiders began paying minimum wage 8-9-11(Super. Pro Ct. Sports Cal. Jan.and 22,the 2014).Law _7.5 x 4.25 8/9/11 2:40in PM 2013 Page before 1 the lawsuit was filed. See Pom Poms on Page 15

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Pom Poms and Picket Lines: Might Professional Cheerleaders Unionize?

Continued From Page 14

After years of receiving little to no pay for season and beyond. games being played inside. l their services, the Buffalo Jills filed a petition with the National Labor Relations Board Conclusion Scott Andresen is the founding to form a union. Despite claims of Mighty Only time will tell if NFL cheerleaders partner of Andresen & Associates, Taco that the cheerleaders were merely in- will ultimately form one or more unions P.C. in Chicago, Illinois. Kevin B. dependent contractors, the NLRB Regional at the local or national level(s), but years McCoy is a Partner with FordHar- Director ruled that the Jills were employees of poor wages and difficult working condi- rison LLP in Washington, D.C. For of Mighty Taco as the company controlled tions seem to have created a climate that more information, please contact Mr. the Jills’ rehearsal schedules, costumes, is ripe for cheerleading squads across the Andresen at scott@andresenlawfirm. routines, time and places of performances National Football League (and across the com or Mr. McCoy at kmccoy@ford- harrison.com. This article is published and other factors (e.g., weight restrictions). other professional leagues) to form unions for general information purposes, and In February 1995, the Jills voted 29-2 to in an attempt to improve their current does not constitute legal advice. join the National Football League Cheerlead- terms and conditions of employment. With ers Association- the first, and to date only, the combined record of 9-22-1 shared by professional cheerleaders union. Unfortu- the Oakland Raiders, Cincinatti Bengals, nately, the Jills’ success was short-lived as Tampa Bay Buccaneers, New York Jets Mighty Taco dropped its ‘sponsorship’ of and Buffalo Bills4, cheerleader picket lines the Jills after unionization. Despite finding outside of the teams’ respective stadiums short-term sponsors for the 1995 season, might be far more interesting than the the Jills were forced to disband their union in order to secure sponsorship for the 1996 4 As of October 20, 2014

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Reinsdorf Secures Legal Victory in Retaliation Case

Continued From Page 1 directors, including the chairman, James asserted against Reinsdorf and Thompson, lacking. R Thompson. The board is selected by the for conspiracy to violate Irmer’s civil rights “As discussed above, Irmer has failed to Mayor of Chicago and the Governor of under 42 U.S.C. § 1983; and (3) Count III, sufficiently allege that she was deprived of her Illinois. Although Irmer alleged that the asserted against Reinsdorf, for a state law First Amendment right to free speech. This is Governor alone selects the chairman, the claim of tortious interference with prospec- sufficient by itself to dismiss her conspiracy Illinois statute provides that the chairman tive economic advantage. claim. See Smith v. Gomez, 550 F.3d 613, “shall be appointed by the Governor subject Addressing Count I, the court wrote that 617 (7th Cir. 2008). to the approval of the Mayor of the City of an employee must show: “(1) his speech was “Moreover, Irmer’s Complaint is devoid Chicago . . . .” 70 ILCS § 3205/4. Thompson constitutionally protected; (2) the protected of any facts that would establish an agreement was the Governor of Illinois when ISFA was speech was a ‘but-for’ cause of the employer’s between Thompson and Reinsdorf to deprive created and served as the chairman of the action; and (3) he suffered a deprivation Irmer of her constitutional rights. The exis- board from 2006 through 2011. because of the employer’s action.” Wackett tence of such an agreement is essential to a “After becoming executive director, Irmer v. City of Beaver Dam, Wis., 642 F.3d 578, conspiracy claim. See Redwood v. Dobson, recognized that the ISFA was in a difficult 581 (7th Cir. 2011). However, a public 476 F.3d 462, 466 (7th Cir.2007).” financial condition, due in substantial part employee’s speech is not protected if it is Further, Irmer’s conspiracy claim because it was putting the interests of the made pursuant to her official duties. Garcetti against Reinsdorf “is barred by the Noerr- White Sox ahead of the interests of Illinois v. Ceballos, 547 U.S. 410, 426, 126 S. Ct. Pennington doctrine, which provides private taxpayers,” wrote the court, citing the com- 1951, 164 L. Ed. 2d 689 (2006). citizens with immunity from civil liability plaint. “As a result, Irmer sought to reform The defendants honed in on the latter the relationship between the White Sox and condition, noting that Irmer’s First Amend- for petitioning the government for official the ISFA established in the management ment claim “should be dismissed because she action in their favor, even if the results might agreement, which she viewed as abusive was acting within the scope of her duties as harm others. See Tarpley v. Keistler, 188 F.3d to taxpayers. To that end, Irmer developed Executive Director of the ISFA when she 788, 794 (7th Cir. 1999). Here, Irmer alleges and implemented a facilities management instituted reforms and protested against only that Reinsdorf petitioned government plan, resulting in millions of dollars of sav- ISFA actions.” Irmer countered that she officials to remove her, in order to achieve ings for ISFA. Irmer also sought to develop was whistleblowing and acting outside of economic benefits for the White Sox and new sources of revenue from non-baseball her official duties because she spoke out be- himself. This alleged conduct is protected events, such as music concerts. She advocated yond the ISFA. She pointed to her meetings by the Noerr-Pennington doctrine.” that the White Sox pay rent to the ISFA with politicians and public officials, as well According to the court, Count III, or and also sought to develop the publically as her attempts to meet with the governor the state law claims, was also lacking factual owned lands around Cellular Field to gener- and mayor. support, since the plaintiff “has not alleged ate additional revenue. The White Sox and The court sided with the defendants, sufficient facts to establish that Reinsdorf in- Reinsdorf opposed these proposals because noting “a mere speculative possibility” that tentionally interfered with her employment of the economic detriment to them. Reins- she spoke as a citizen is insufficient. so as to cause her termination. Although she dorf also opposed the music concerts on the “Moreover, Irmer has failed to make any alleges that Reinsdorf lobbied to remove her basis that they could detract from revenue plausible allegations that Thompson knew in 2008, she states that her contract was generated by concerts held at the United about her allegedly protected speech,” wrote renewed at that time through 2010. Irmer Center,” which he had an ownership interest the court. “To state a First Amendment has not alleged that Reinsdorf had any com- in. “Reinsdorf increasingly viewed Irmer as retaliation claim, Irmer must connect her munications with any ISFA Board members an opponent based on her reforms,” added protected speech with her termination. See or otherwise caused her termination in 2011. the court, citing the complaint. Caldwell v. City of Elwood, Ind., 959 F.2d Because Irmer has failed to state a claim, After being terminated, Irmer sued, 670, 672 (7th Cir. 1992) (dismissing claim Count III is dismissed.” l alleging the following claims: (1) Count where plaintiff failed to plead any defendant I, asserted against Thompson, for infringe- actually knew of the allegedly protected Perri L. Irmer v. Jerry M. Reinsdorf ment of Irmer’s First Amendment right to speech). Irmer has not done so.” et al.; N.D. Ill.; Case No. 13-cv-2834, free speech and retaliation; (2) Count II, The court found Count II similarly 2014 U.S. Dist. LEXIS 83762; 6/19/14