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The Lawyer September 2012 THE SPORTS LAWYER

In This Issue September 2012 Faculty Editors U.S. Soccer Wins Anitrust Suit Gary Roberts – University Robert H. McKinney School of Law Gabe Feldman – Tulane University Law School

Appellate Court Holds Student Editors Not a Kemper C. Powell – Senior Managing Editor Michelle M. Chatelain – Senior Articles Editor Ian Gunn – Junior Managing Editor Ryan Leske – Junior Articles Editor Lawsuit Filed Against Penn State Staff Colin Burgess Benjamin Clark Nashville Predators Sued over Eric Ferrante Evan Gordon Pre-Game Stunt Ian Gunn Omar Gutierrez Also Ryan Leske Gordon McGuire Tarryn Walsh Travelers Companies, Inc. Files Lawsuit Against NFL and NFL Properties

MLB, NFL, NHL, NBA, and NCAA Sues for PASPA Violations

Vince Young Seeks Protective Order

Dallas Cowboys, Jerry Jones Sued For Negligence The Sports Lawyer is a joint publication Little League and Sports Authority Settle with New between the Sports Lawyers Association and Jersey Family for $14.5 Million the Tulane Sports Law Press.

Table of Contents – 2,National Collegiate Athletic Association – 3, – 5, National League – 7, – 7, Youth Sports – 8

1 The Sports Lawyer September 2012

Major League Soccer

U.S. Soccer Prevails in Six-Year Long Antitrust Lawsuit

On August 17, 2012, U.S. District Judge Harry D. Leinenweber granted summary judgment for the defendants in the antitrust suit filed by ChampionsWorld LLC (“CW”) against the Soccer Federation (“USSF”) and Major League Soccer LLC (“MLS”). Judge Leinenweber held that the USSF is the proper national governing body for soccer in the United States and that it could legally charge sanctioning fees for exhibition soccer games that CW promoted on U.S. soil.

CW was founded in 2000 and promoted soccer matches between international teams on U.S. soil. For every soccer match CW promoted they agreed to pay a fee for USSF to sanction the game. In January 2005, CW filed for bankruptcy and discontinued business in May 2005. CW subsequently sued the USSF and MLS for alleged violations of the antitrust laws and the Racketeer and Corrupt Organizations Act (RICO) in the U.S. District Court for After a six-year lawsuit, Judge the Northern District of . CW alleges the USSF never had Leinenweber found that USSF has authority to sanction games over authority to impose sanctioning fees, intentionally overcharged international teams if the matches are CW, and gave MLS sanctioning fee discounts so that the USSF and played on U.S. soil. MLS could control the market for themselves. In response, the USSF claimed it derives its power from FIFA and its authority includes sanctioning games and the right to charge sanctioning fees between foreign clubs and national teams on U.S. soil.

In a thirty-page opinion, Judge Leinenweber agreed that the USSF had the authority to sanction soccer games that took place on U.S. soil, stating that “[CW] thus received something of value under the contract, and USSF’s promise was adequate consideration; the contracts do not fail.” Judge Leinenweber also accepted a previous ruling by the Court of Arbitration for Sport that foreign soccer teams would not have participated in unsanctioned games. He held that CW could not establish its RICO extortion claims against the USSF and MLS because CW’s economic duress was insufficient.

2 The Sports Lawyer September 2012

“We are pleased that the court ruled in U.S. Soccer’s favor,” said the USSF’s attorney, Russel F. Sauer. “U.S. soccer also has authority over foreign national and club teams playing in the United States by virtue of their membership in FIFA.” Sauer is of Latham & Watkins LLP in Los Angeles.

– Omar Gutierrez

National Collegiate Athletic Association

Civil Case Filed Against Penn State in Sandusky Incident

On August 24, 2012, Victim Onein the trial of former Penn State assistant football coach Jerry Sandusky sued State University in Philadelphia Common Pleas Court of Pennsylvania’s First Judicial District for negligent oversight of Sandusky and intentional concealment of sexual abuse. The male victim, now eighteen years old, claims that Penn State’s top officials concealed Sandusky’s crimes, and he seeks damages from the university for negligence, fraudulent concealment, intentional infliction of emotional distress, and civil conspiracy.

In the lawsuit Victim One alleges that he met Sandusky in 2004 at a camp sponsored by Sandusky’s charity foundation, The Second The lawsuit against Penn State alleges that Mile. He claims that Sandusky sexually assaulted him more than the former Penn State President, former athletic director, former administrator, 100 times from 2005 to 2008. The suit claims that Penn State failed and former head coach are guilty of to act appropriately and report to police and to The Second Mile negligent oversight and intentional foundation a 2001 rape incident involving Sandusky that another concealment of sexual abuse. assistant coach witnessed. Specifically, the suit lists former Penn State President Graham Spanier, former athletic director Tim Curley, former administrator Gary Shultz, and former head coach Joe Paterno as officials that concealed Sandusky’s crimes. Victim One alleges that, as a result of the officials’ concealment, Penn State enabled Sandusky to assault many youths “by its negligent and/or reckless oversight of Sandusky and/or its intentional concealment of multiple episodes of abuse of children by Sandusky.” The suit follows the June 2012 criminal trial of Sandusky, in which a jury found him guilty of forty-five of forty-eight counts of criminal sexual assault. Victim One claims to have suffered physical and emotional injuries that will require future medical and psychological care and seeks damages in excess of $50,000 with interest, costs, and both compensatory and punitive damages.

3 The Sports Lawyer September 2012 “The University takes these cases very seriously but cannot otherwise comment on pending litigation. President [Rodney] Erickson and the Board of Trustees have publicly emphasized their goal is to find solutions that rest on the principle of justice for the victims,” said Penn State spokesman David La Torre. Victim One and his attorney, Slade McLaughlin of McLaughlin &Lauricella, P.C. in Philadelphia, have not commented publicly on the suit.

– Colin Burgess

Court Upholds Cheerleading Title IX Decision

On August 7, 2012, the U.S. Appellate Judge ReenaRaggi affirmed a district court decision in a suit filed by Quinnipiac University (“QU”) women’s volleyball coach Robin Sparks and five women’s volleyball players against the university. Judge Raggi held that QU failed to provide substantially proportionate athletic participation opportunities for female students as required by Title IX. Judge Raggi determined that competitive cheerleading does not qualify as a varsity sport under Title IX, due to a lack of organization and sufficiently-defined rules. SeeBiediger v. Quinnipiac University, ___ F. 3d ___ 2012 WL 3176285 (2d Cir. 2012).

In March 2009, QU announced that it was eliminating three varsity sports from its athletic department—women’s volleyball, men’s golf, and men’s track and field—while creating the new varsity sport of women’s competitive cheerleading. Under Title IX, an activity is considered a sport if, inter alia, it has coaches, practices, competitions during a defined season, and a governing body. An additional consideration is whether competition is a primary goal of the activity, rather than merely support for the school’s athletic teams. The plaintiffs alleged that the athletes on the competitive cheerleading team should not be Judge Raggi held that competitive cheerleading does not qualify as a counted for Title IX purposes because it cannot varsity sport under Title Ix, as it does nott have coaches, practices, be defined as a sport under Title IX. In competitions during a defined season, and a governing body. response, QU argued that competitive cheerleading should be considered a sport because the QU cheer program was structured in the same manner as the school’s other varsity sports in terms of its budget, practice times, benefits, and services. Further, QU asserted that the National Competitive Stunt and Tumbling Association properly governed the team in terms of season length and competitions and that the school provided its cheerleading squad with a full coaching staff and proper facilities. However, the U.S. District Court for the District of ruled in favor of the plaintiffs, holding that QU’s attempt to satisfy Title IX through the addition of competitive cheerleading failed fundamentally because “[QU’s] competitive cheerleading team did not compete in circumstances indicative of varsity sports,” and “the activity did not yet afford women genuine participation opportunities in a varsity sport.” QU subsequently appealed the decision to the U.S. Court of Appeals for the Second Circuit, challenging the manner in which the district court weighed the factors to determine whether competitive cheerleading satisfies Title IX requirements.

In a thirty-nine-page opinion, Judge Raggi agreed with the district court’s reasoning that although the structure of the program mirrored that of a varsity athletic team at QU and a governing body existed, the 4 The Sports Lawyer September 2012 governing body failed to apply a uniform set of rules and also failed to structure a progressive playoff system, opting instead for an open-invitational competition format that does “not conform to expectations for a varsity sport.” “We acknowledge record evidence showing that competitive cheerleading can be physically challenging, requiring competitors to possess ‘strength, agility, and grace,’” wrote Judge Raggi. However, while noting that competitive cheerleading, “with better organization and defined rules, might someday warrant recognition as a varsity sport,” Judge Raggi affirmed the district court’s order enjoining QU from continuing to discriminate against female athletes.

“[T]he university naturally is disappointed that the court did not rule as it had hoped,” said QU spokesperson Lynn Bushnel. QU was represented by Edward A. Brill of Proskauer Rose LLP in . The plaintiffs were represented by Kristen Galles of Equity Legal in Alexandria, . QU has not yet indicated whether it plans to appeal the decision to the U.S. Supreme Court. – Tarryn Walsh

National Football League

NFL and Insurance Companies Battling Over Defending League in Concussion Lawsuits

On August 21, 2012, insurance company Travelers Companies, Inc. (“Travelers”) and several of its subsidiaries sued the National Football League (NFL) and NFL Properties in the Supreme Court of the State of New York in New York County to obtain declaratory judgments as to the rights and obligations of Travelers with respect to the concussion lawsuits brought against the NFL. Travelers alleges that it provided liability coverage for NFL Properties, the NFL’s merchandising branch, but not the NFL and should not be required to indemnify the league.

In a consolidated “Master Complaint” filed on June 7, 2012, former NFL players accused the NFL of negligence and failure to inform players of the link between repeated traumatic head impacts and long- term brain injuries as well as other long-term health problems. The complaint names NFL Properties as a co-defendant on two causes of action. Many of the NFL and NFL Properties’ primary insurers have refused to support the defendants in and against the lawsuits. As a result, the NFL and NFL Properties filed a complaint on August 15, 2012, alleging that the insurance companies violated “duty-to-defend” and indemnity provisions in their policies. The NFL and NFL Properties seek declaratory relief requiring the insurance companies to defend them. In response, Travelers and its subsidiaries filed a complaint disputing the NFL and NFL Properties’ contention that they must defend and indemnify the two entities in common counsel. The complaint alleges that Travelers issued general liability and umbrella liability policies to NFL Properties rather than the NFL, and that its policies with NFL Properties do not cover the NFL. Thus, Travelers asserts that the insurance company only has a right and duty to defend NFL Properties with respect to any suit that falls within the coverage of those two policies. Travelers seeks a declaratory judgment stating that the insurance company has no obligation to accept or participate in any joint defense between the NFL and NFL Properties and is entitled to participate in the selection of separate counsel to defend NFL Properties. Travelers also seeks a judgment stating that it is not required to indemnify the NFL and NFL Properties with respect to any award of damages resulting from joint defense.

5 The Sports Lawyer September 2012 “Last week, the NFL filed a comprehensive lawsuit in against thirty-two insurers to ensure an orderly and comprehensive determination of its insurance rights and its carriers' obligations,” NFL spokesman Greg Aiello said. “This new filing by Travelers does not alter our objectives.” Travelers and its subsidiaries are represented by Thomas A. Martin of Putney, Twombly, Hall &Hirson, L.L.P. in New York and Kevin J. O’Connor of Hermes, Netburn, O’Connor & Spearing, P.C. in Boston. The NFL and NFL Properties are represented by Donald W. Brown and Candice N. Plotkin of Travelers alleges that it should not be required Covington & Burling, L.L.P. in San Francisco and Mitchell F. to indemnify the league because it provides Dolin and Michael E. Lechliter of Covington & Burling, L.L.P. liability coverage for NFL Properties, not the in , DC. NFL. – Gordon McGuire

Vince Young Seeks Protective Order to Stop Company from Collecting on Loan

On August 20, 2012, NFL quarterback Vince Young filed a motion in New York State Supreme Court challenging Pro Player Funding LLC’s (“Pro Player”) lawsuit against him to collect a lockout loan Young allegedly borrowed. Young denied that he borrowed any money from Pro Player and challenged the authenticity of the signature on the documents Pro Player filed with the court that purported to document the loan.

Last month’s filing is Young’s first official response to a lawsuit filed in Manhattan state court by Pro Player on July 2, 2012. Pro Player claims Young defaulted on a $1.9 million loan taken during the middle of last year’s NFL lockout after missing a payment in May 2012. Lockout loans, taken by some players in anticipation of missing NFL game checks because of last year’s NFL labor standoff, were high-risk loans featuring high interest rates and harsh terms. According to documents filed by Pro Player, Young’s entire amount due plus interest became due after missing only one payment. Young seeks a protective Vince Young denies that he borrowed money from Pro Player, a company order which would prevent Pro Player from collecting the outstanding claiming that Young defaulted on a money. $1 9 million loan “We believe Ron Peoples was involved in this loan, contacted Pro Player, was the go-between between Pro Player to get this loan, and Vince never even know this loan was taking place” said Young’s attorney, Trey Dolezal, claiming that Young’s former financial advisor took out the loan. Dolezal is of Kasling, Hemphill, Dolezal& Atwell, LLP in Austin, . A hearing is set before Justice Paul Wooten on September 13. Pro Player is represented by Sean Bellew of Ballard Spahr in Wilmington, . – Benjamin Clark

6 The Sports Lawyer September 2012 Sues Cowboys After Sustaining Burn Injuries

On August 10, 2012, Jennelle Carrillo sued the Dallas Cowboys and their owner, Jerry Jones, in Tarrant County civil court in Texas for negligent acts and omissions. Carrillo alleges that the Cowboys’ failure to exercise reasonable care resulted in her mental anguish, physical pain, and disfigurement from injuries she received after sitting on an overheated bench at Cowboys Stadium.

In August 2010, Carrillo attended the Cowboys’ Blue & Silver scrimmage game at Cowboys Stadium where temperatures exceeded 100 degrees. Prior to entering the stadium, Carrillo sat down on a Jerry Jones and the Cowboys are being black marble bench outside of the stadium. As a result of sitting on sued for negligence after a fan received the bench, she received third degree burns to her buttocks requiring burns from an overheated bench outside her to undergo skin grafts. Carrillo alleges that the defendants knew Cowboys Stadium or should have known that someone would sit on the bench in extremely hot weather and failed to post warning signs or rope off the bench. She seeks compensatory damages in an amount to be determined at trial, in addition to court fees and interest.

“She sat down on this black bench, outside an entrance and unfortunately she suffered third-degree burns as a result of it and had subsequent skin grafts,” said Carrillo’s lawyer, Michael A. Wash. Wash is of the Law Offices of Michael A. Wash in Austin, Texas. – Ian Gunn

National Hockey League

Nashville Predators Sued After "Human Hockey Puck" Stunt Goes Awry

On August 6, 2012, Adam Davis, a Nashville-area radio personality known as “Intern Adam,” sued the Nashville Predators in Davidson County District Court and Bridgestone Arena management for negligence after a rehearsal for an intermission stunt went awry.

On December 31, 2011, Davis was practicing to become a “human hockey puck” before the Predators’ game against the Calgary Flames. The stunted was intended to send Davis sliding the length of the ice The Predators are being sued after surface into a group of inflatable bowling pins. However, as he was Adam Davis lost control of his sled riding the sled across the ice, he suddenly lost control and crashed into during a stunt before a Predators’ game. the boards, thereby injuring himself. As a result of the incident, Davis was forced to undergo medical treatment and had several screws placed in his ankle. Davis alleges that Predators’ employees failed to properly warn him about the risks associated with the stunt and did not provide him with proper protection. He further claims that he did not sign a waiver before the engaging in the stunt. Davis seeks compensatory damages in excess of $25,000.

Davis is represented by Bill Leader of Leader, Bulso& Nolan, PLC in Nashville. – Eric Ferrante 7 The Sports Lawyer September 2012

Sports Betting

MLB, NFL, NHL, NBA, and NCAA Join Forces in Suit against

On August 7, 2012, Major League (MLB), the National Association (NBA), the (NHL), the National Football league (NFL), and the National Collegiate Athletic Association (NCAA) sued the state of New Jersey in the U.S. District Court for the District of New Jersey in Trenton for violation of the Professional and Amateur Sports Protection Act of 1992 (“PASPA”). The plaintiffs allege that laws signed into effect by New Jersey Governor allowing sports betting in the state contravene federal law and are detrimental to the sports industry.

In 1992, Congress passed PASPA to confine sports betting to only four states: Delaware, , , and . In January, Christie signed a law that would allow sports betting in twelve New Jersey , four racetracks, and on the site of a closed racetrack. Published in July, the regulations, which will soon take effect, allow casinos and racetracks to operate sports betting pools that are approved by the state Division of Gaming Enforcement and the New Jersey Racing Commission. It also allows the state to issue licenses for sports betting parlors. However, the New Jersey Constitution prohibits on collegiate sports that take place in New Jersey and where one or more New Jersey team is competing. Additionally, half the revenues generated will go toward gambling-treatment programs.

“I don’t believe that the federal government has the right to decide that only certain states can have sports gambling,” said Christie. “[Sports gambling] undermines the public’s faith and confidence in the character of amateur and professional team sports,” stated the plaintiff’s in their complaint. The plaintiffs are represented by William J. O’Shaughnessy of McCarter & English, LLP in Newark and Jeffrey A. Mishkin and Anthony J. Dreyer of Skadden, Arps, Slate, Meagher &Flom LLP in New York.

– Evan Gordon Youth Sports

Family Receives $14.5 Million Settlement in Suit Over Aluminum Bats

On August 23, 2012, the New Jersey State Superior Court in Passaic County announced a $14.5 million settlement in a suit filed by Steven Domalewski, through his parents Nancy and Joseph Domalewski against Little League, Inc., The Sports Authority, and Hillerich and Bradsby for negligence, breach of implied or express warranties, and violations of the New Jersey Consumer Fraud Act.

On June 6, 2006, Steven Domalewski was pitching in a youth baseball game when a batter using an aluminum alloy bat hit a baseball into his chest. The ball hit just above his heart at the precise millisecond between heartbeats, sending Steven into cardiac arrest. Steven fell to the ground Little League, Inc. and Sports and stopped breathing. Despite the efforts of paramedics and other Authority reached a $14.5 million settlement with a New Jersey 8 family after a four-year lawsuit over aluminum bats in the league. The Sports Lawyer September 2012 observers, Steven’s brain was deprived of oxygen for fifteen to twenty minutes. As a result of the accident, he suffered severe brain damage and is now handicapped. In May 2008, the Domalewskis filed the instant action, naming Little League as a defendant for negligently certifying that the metal bat was safe. Initially, a trial was set for September 10, 2012, however the parties were able to reach a settlement prior to that date. Pursuant to the settlement, the Domalewskis are precluded from discussing the details of the agreement. However, the settlement should cover Steven’s lifetime medical expenses. Importantly, the suit has increased awareness of the dangers of the use of metal bats in youth baseball.

“The Domalewskis are still saddened by the tragic events of June 2006, but this settlement provides them with some relief and comfort that Steven will get the care he needs for the rest of his life,” said the family's attorney, Ernest P. Fronzuto. “He still can't perform any functions of daily life on his own.” Fronzuto is of Wellinghorst&Fronzuto in Ridgewood, New Jersey. “With this settlement, Steven Domalewski will receive the lifetime care he will require as a result of this tragic accident, a type of accident that is extremely rare in youth baseball,” said Stephen D. Keener, president and chief executive officer of Little League. – Ryan Leske

9 The Sports Lawyer September 2012

The Sports Lawyers Association

Officers President:Anthony J. Agnone Secretary:Peter Roisman Treasurer:Ash Narayan Director of Publications:Gabe Feldman Immediate Past President:Robert Wallace, Jr.

Staff Executive Director:Richard A. Guggolz Deputy Executive Director:William M. Drohan, CAE Program Manager: Melissa Pomerene Administrative Assistant: Colleen MacCutcheon

Board of Directors For a full list and biographies of all board members, please visit: http://www.sportslaw.org You can follow the Sports Lawyers Association on: Facebook LinkedIn 10