Why Venue Owners Need to Consider the Importance of Flexibility in Sponsorship Agreements

March-April 2018 l Volume 2, Issue 6 Route To: ____/____/____/____

How the law affects the sports facilities industry and the The Lasting Legacy of Art Modell Felt As Columbus Crew Seeks To Set Sail for Austin By Scott Andresen, of Andresen & rience, the Ohio state legislature enacted Associates, P.C. Ohio Revised Code §9.6 a year later on THIS ISSUE June 20, 1996. Officially titled Restrictions The Lasting Legacy of Art he Move. on owner of professional sports team that Modell Felt As Columbus T While that phrase may have very uses a tax-supported facility, the law is Crew Seeks To Set Sail little import throughout the sporting world less-than-affectionately known as the “Art for Austin 1 generally, it has had a lasting impact in state Modell Law.” The law states as follows: NCAA Fallout from NC of Ohio that is still being felt 23 years later. No owner of a professional sports team Bathroom Bill Taints College The Move refers to the decision by team that uses a tax-supported facility for most Sports Landscape 1 owner Art Modell to move his Cleveland of its home games and receives financial Browns team to Baltimore during the 1995 assistance from the state or a political sub- Re-examining Steep Spectator Seating 2 NFL season. Subsequent litigation seeking division thereof shall cease playing most to prevent The Move (see City of Cleveland of its home games at the facility and begin Winning the Gold: Why v. Cleveland Browns, et al., Cuyahoga playing most of its home games elsewhere Venue Owners Need to County Court of Common Pleas Case No. unless the owner either: Consider the Importance of Flexibility in Sponsorship (A) Enters into an agreement with the CV-95-297833) was ultimately settled via Agreements 3 a compromise that kept the Browns name, political subdivision permitting the team colors, history, records and the like in to play most of its home games elsewhere; Trial Featuring Modern-Day Cleveland, while allowing Modell to take (B) Gives the political subdivision in David v. Goliath Looming 4 his talents to the city of Baltimore. which the facility is located not less than Concealed Carry Realities Not wishing to relive the Modell Expe- See The Lasting on Page 10 Test Event Managers’ Perceptions 5

NCAA Fallout from NC Bathroom Bill Summary Judgment Granted Taints College Sports Landscape in Bowling Alley Trip-and-Fall 6 On Appeal, Patch of By Tim Hipps better known as the “bathroom bill,” and Mud Deemed Open and presented “The Impact of ‘Bathroom Bills’ Obvious and Not Inherently exas was perhaps the biggest winner on Sport Events: Policy and Planning for Dangerous, Dismissing Tand North Carolina the biggest loser the Future” at SRLA’s annual meeting. Baseball Spectator’s Claim 7 in NCAA fallout from the Tar Heel State’s A bathroom bill is legislation that de- Organizer Wins Summary public facilities privacy and security act, fines access to public facilities, especially Judgment in Golf Cart Accident 7 according to a study presented in March at bathrooms, for transgender individuals. Professor: It Is Time to Access under this legislation is determined the 2018 Sport & Recreation Law Associa- Abolish ‘Baseball Rule’ tion Conference in San Antonio. by an individual’s assigned gender at birth, Protecting MLB From Liability Professor Lauren McCoy of Western the sex on a person’s birth certificate, or When Fans Are Injured 8 Kentucky University and associate professor sex determined by gender identity. School Current Issues 12 Kerri Cebula of Kutztown University stud- settings were the initial focus of these bills, ied North Carolina’s House Bill 2 (HB2), See NCAA Fallout on Page 9

Re-examining Steep Spectator Seating The article continued: “A stationary seat with a swing mechanism secures patrons in By Gil Fried last September, features clear Plexiglas barri- their seats, and instead of walking in front ers in the front row to keep fans secure, with of other fans to access a seat, individuals recent article by Matt Rossetti pub- waist-high drink rails performing the same walk safely behind the swivel chairs, keeping Alished in April 2018 of Athletic Busi- function for fans in the back row. passersby safely behind tall chair backs. This ness was entitled: Can Spectator Seating Be The article highlighted the growth in the is achieved by designing each row to be 25 Both Steep and Safe? inverted bowl design which has been devel- percent deeper than that of the typical up- The article examined The Bell Centre in oped and tested over the past seven years. per bowl, adding an additional 12 inches of Montreal mainly due to a large lower bowl “The inverted bowl design solves the steep- space for spectators to circulate comfortably. and steep upper-bowl seating. Some teams upper-deck dilemma by doing something There has never been a bowl designed where like such a venue as it might feel like all the unexpected: it doesn’t back away, it leans fans step behind the seats — a solution that in — with revolutionary balcony seating fans are “on top of you.” Such fan friendly keeps both seated viewers and passersby safe that catapults viewers closer to the action. facilities might have great sight lines, which and comfortable.” This article originally ap- The result is broadcast-quality views that is critical with attendance numbers declining peared in the April 2018 issue of Athletic are up to 50 percent closer. The inverted at some facilities. But the article focused on Business with the title “Do steep arena bowls bowl doesn’t just preserve fan safety — it compromise spectator safety?” the risk associated with steep seating areas. It prioritizes it. Larger landings and less crowd- highlighted the 19,000-seat Barclays Center ing minimizes the chances of accidents and TAKEAWAY: Tragic falls involving fans in Brooklyn, N.Y., where at least four lawsuits keeps fans away from edges — all without appear to be on the rise. Facility managers resulted from fans tripping and falling in compromising viewing positions.” should track the reason and location of falls the arena’s steep upper bowl. While falls can Typical inverted bowl design features and then implement strategies to prevent happen almost anywhere in an arena, other four tiers, with each tier seating roughly them. This might entail developing new fans have also complained of vertigo. To ad- 2,000 spectators in three rows of seating. strategies or changing codes to protect them. dress safety concerns some facilities, such as With only three rows, it greatly reduces the This concern is especially critical in balconies Detroit’s Little Caesars Arena, which opened vertigo experienced in a steep upper bowl. or upper decks.

ADVISORY BOARD John M. Sadler Sadler & Company Prof. Paul Anderson (803) 254-6311 and the Director, National Sports Law Institute & [email protected] Sports Law program Marquette University Law School Todd Seidler, Ph.D. EDITOR IN CHIEF [email protected] Professor and Chair Health, Exercise and Sports Sciences Gil Fried, Esq. Dr. Herb Appenzeller University of New Mexico Chair and Professor From The Gym To The Jury, Inc. Email: [email protected] Sport Management Department [email protected] College of Business Russ Simons Denis C. Braham University of New Haven Chief Listening Officer Attorney at Law 300 Boston Post Road Managing Partner Winstead PC West Haven, CT 06516 Venue Solutions Group [email protected] (203) 932-7081 Email: russ.simons@ [email protected] Shane Beardsley venuesolutionsgroup.com Senior Director - Events & Operations Carla Varriale, Esq. MANAGING EDITOR Harbor Yard Sports & Entertainment - Havkins Rosenfeld Ritzert & Varriale, LLP Holt Hackney, Esq. Webster Bank Arena [email protected] Hackney Publications [email protected] P.O Box 684611 Sports Facilities and the Law is Helen Durkin, J.D. Austin, Texas 78768 published bimonthly by Hackney Executive Vice President of Public Policy [email protected] Publications, P.O. Box 684611, Austin, International Health, Racquet & TX 78768. Postmaster send changes to Please direct editorial or subscription Sportsclub Association Sports Facilities and the Law. Hackney inquiries to Hackney Publications at: [email protected] Publications, P.O. Box 684611, Austin, P.O. Box 684611, Austin, TX 78768, James H. Moss, Esq. TX 78768. [email protected] www.recreation-law.com [email protected]

Winning the Gold: Why Venue Owners Need to Consider the Importance of Flexibility in Sponsorship Agreements

By Jon Freedman and David sive crowds – and significant business bargained, at least absent additional costly Sunkin, of Sheppard Mullin opportunities for venues big and small. consideration. This friction increases even Frequently, event organizers and their more when long-term sponsors will be ponsorship rights are a critical com- partners will seek to contract with venue replaced, albeit temporarily, by their own Sponent of the revenue stream for owners for the use of their facilities. These prime competitors. uses include not only the main events almost every major venue in the United So, then, the question is this: how does a States. Long-term sponsorship deals not themselves, but also related “spillover” venue put itself in play to take advantage of only provide much of the funding for new functions. However, these special oppor- the opportunities created by special events venues to be built, but they also support the tunities can conflict with a venue’s existing refurbishments that allow existing venues sponsor relationships. Sponsorship agree- without poisoning its relationships with to retain tenants and attract short-term ments are generally multi-year contracts long-term sponsors? The keys to negoti- residents, such as concerts, sporting events which often contain highly restrictive ating sponsorship agreements that allow and tournaments. Sponsorship spending in exclusivity provisions. Such contracts of- for this balance include foresight, careful North America alone came to a staggering fer substantial benefits for both parties, as planning and explicit setting of mutual $23.1 billion in 2017, an increase from the venue owner gets economic stability expectations. Venue owners in any town or the 2016 figure of $22.3 billion. Most of and the sponsor gets exclusive access to a city that will become host to special events this sponsorship cash flows to and from valuable demographic. Without careful need to think ahead and negotiate explicit venues in major cities. One example out drafting and built-in flexibility, however, carve-outs with future opportunities in of many is Los Angeles, which is home these long-term contracts can severely limit mind. This may seem daunting, but the to a multitude of venues supported by an a venue’s ability to host special events. interests of venues and sponsors can be even wider array of long-term sponsors. One factor that makes the coexistence more closely aligned than would initially Los Angeles recently hosted the 2018 NBA of long-term sponsors and special events All-Star Game and the 2018 NCAA Men’s particularly difficult is the “clean venue” appear to be the case. In fact, carve-outs for Basketball Western Regional Semifinals. policy that many special events insist upon. special events can be mutually beneficial The city is now gearing up for additional Many of the highest-profile special events for both venues and sponsors. Often, the high profile events, such as the 2020 have some version of this policy, which additional revenue generated by hosting MLB All-Star Game, Super Bowl LVI restricts (or eliminates altogether) a venue’s special events is used to improve the host and the 2028 Summer Olympics, along existing advertising for the duration of the venue, thereby creating value for all parties with related ancillary events. The Los special event. The Olympic Games, the involved. In sum, the process of negotiat- Angeles market is currently undergoing All-Star Game, March Madness and the ing and drafting sponsorship agreements a period of intense growth, as indicated Super Bowl are just a few of the events should incorporate the flexibility needed to by the construction of new, state of the that come with heavy restrictions on ex- allow a venue to take part in major events art venues, such as the Ram’s stadium at isting advertising. Frequently, organizers without permanently undermining the Hollywood Park, the Banc of California of special events have agreed to complete Stadium for the LAFC, and (potentially) industry exclusivity for their own spon- key, long-term relationships that provide a new stadium for the Clippers. The sors, and these requirements are passed steady revenue. abundance of venues both new and old along to participating venues. Exclusive This article originally appeared in Shep- is a clear sign that even more high-profile sponsorship deals between special events pard Mullin’s Covering Your Ads® Blog. events will be coming to LA in the years and companies in the automotive, bever- TAKEAWAY: I remember hosting a trav- to come. These popular events – both age and financial services industries are eling Gymnastic event at The Ohio State those already scheduled and those yet-to- amongst the most prominent examples. University and the fast food sponsor for the be-planned – present venue owners with Unless a venue’s existing sponsorship additional hosting opportunities, making agreements provide for explicit carve-outs tour was different than the venue fast food it essential to have flexibility in existing that allow a venue to host special events, sponsor. Since it was a nationally televised long-term sponsorship agreements. a venue’s existing sponsors are unlikely to event we needed to cover all the venue When high-profile special events roll support the removal and/or covering of sponsor signs or risk losing the sold-out into town, they bring with them mas- the graphics and displays for which they event. The key is in the contractual language.

Trial Featuring Modern-Day David v. Goliath Looming

legal battle between a sports industry with the plaintiff and PNC regarding the ships against KSE; (3) breach of fiduciary Aexecutive and the monolithic Kroenke purchase of the Camera Business; (b) not to duty against PNC; and (4) unjust enrichment Sports & Entertainment, LLC (KSE) and entertain any competing offers to purchase against Outdoor, KSE, and PNC.” other corporate defendants appears headed the Camera Business; and (c) not to disclose Salomon told Sports Litigation Alert to trial next winter, where a court will decide to any third-party efforts by the plaintiff that the litigation involves “an executive the breach of contract and other claims. and PNC to purchase the Camera Business. who had a legally binding contract, but has The dispute between plaintiff Nic Salo- Salomon alleged that Outdoor breached limited resources, and is up against powerful mon and the defendants arises from Salo- these promises (collectively, the Exclusivity corporate interests. Diplomacy is the goal, mon’s failed attempt to purchase SkyCam, Provision) when it negotiated a merger with but that’s not entirely in my control. From LLC and CableCam, LLC, two wholly- co-defendant KSE, which resulted in KSE the beginning, we have been open to the owned subsidiaries of co-defendant Outdoor acquiring Outdoor and all its subsidiaries, idea of a settlement. But the other side has Channel Holdings, Inc. (Outdoor), which including the Camera Business. The plaintiff not been interested in a resolution.” are engaged in the aerial camera business further alleged that KSE “interfered with KSE is one of the world’s leading own- (collectively, the Camera Business). Salomon’s efforts to purchase the Camera ership, entertainment and management The plaintiff sued on February 27, 2015, Business and usurped the opportunity for groups. Among its major properties are alleging that Outdoor had agreed to sell the itself. The plaintiff further alleged that PNC the Pepsi Center, the Paramount Theatre, Camera Business to him and his investor breached its fiduciary duties to him by agree- Dick’s Sporting Goods Park, the Colorado partner, co-defendant Pacific Northern ing to amend the Term Sheet to give KSE the Avalanche (NHL), Denver Nuggets (NBA), Capital LLC (PNC). As part of their ne- right to veto the sale of the Camera Business Colorado Mammoth (NLL) and Colorado gotiations for the purchase and sale of the to the plaintiff and PNC. Based on this alleged Rapids (MLS). Camera Business, the plaintiff, PNC, and conduct, Salomon sued the defendants, assert- Asked about what the optimum solution Outdoor executed a “Term Sheet,” dated ing claims for (1) breach of contract against would be, Salomon said he would like to February 27, 2013, allegedly containing Outdoor; (2) tortious interference with an see “a meeting with Mr. Kroenke. I’m sure promises by Outdoor (a) to deal exclusively existing contract and prospective relation- we could resolve this.”

Facility Insurance Quotes

Sports Facility Owners users of sports facilities

Specializing in General Teams/Leagues Liability & Accident Camps/Clinics Insurance Tournament Hosts We also provide Property, Instructors Equipment, Crime, Work Special Events (Sports) Comp and Auto. Special Events (Non-Sport) John M. Sadler Complete Simple Online Get Instant Online J.D., CIC Form & Get General Liability Quote/Pay/Print Quote within 2 Business Days!

www.sadlersports.com 800-622-7370 [email protected]

Concealed Carry Realities Test Event Managers’ Perceptions

By Tim Hipps “What’s the thinking behind some of None of the respondents’ schools allowed these?” Miller rhetorically asked. “Or is concealed guns to be carried into their ass shootings at soft-target enter- there a lack of thinking, and really under- stadiums/arenas during an intercollegiate Mtainment venues in Las Vegas and standing the setting?” sport contest. Orlando served notice that intercollegiate In April 2017, the Kansas Board of Seventy-five percent believed it is pos- athletic event managers must be aware of Regents approved plans to prohibit the sible that a fan would shoot off a gun during the potential of similar incidents occurring concealed carry of guns in college stadiums a college football game. at sports events. and arenas during athletic events with 5,000 “None of them allowed concealed Football games are especially vulnerable or more people. weapons into the stadium, but seventy-five targets, according to “Concealed Carry In March 2017, Arkansas passed a law percent said they wouldn’t put it past any Weapons at Intercollegiate Sport Events: allowing concealed guns to be brought into of their patrons to get a concealed weapon Perceptions of Division I Event Sport sporting venues, including college football into the stadium and actually shoot it off,” Managers,” presented at the 2018 Sport games. The bill was amended, making col- Miller said. “Three quarters of them said and Recreation Law Association’s annual lege sporting events exempt. Act 562, which it wouldn’t surprise me if that happened.” conference by the Troy University duo of took effect Sept. 1, allows people to take Seventy-five percent revealed that specta- Dr. John Miller and Jeffery Curto, along- guns onto public college campuses and into tors had been detected carrying a concealed side Dr. Todd Seidler of the University of bars, churches, and most public buildings, gun into a home football game. New Mexico. including the state capitol. Seventy-one percent allowed concealed The study assessed Division I event and Associate and assistant athletic directors guns to be carried in the tailgating area prior operations athletic directors’ perceptions of for events and operations at 65 Power Five to and after an intercollegiate football game the potential of concealed guns being car- conference Division I universities were at their university. ried into athletic contests or being present contacted via email as a pre-notification “While they didn’t allow concealed at nearby tailgate activities before, during, regarding their participation in the study. weapons into the stadium, seventy-one and after games. Eighteen (28 percent) responded to the percent allow concealed weapons into the In 2016, three Washington state senators questionnaire. tailgating area,” Miller reiterated. “And proposed a bill that would have allowed fans The results revealed that 65 percent al- when is the tailgating period? Sometimes to bring guns into stadiums, such as Cen- lowed concealed guns onto their campus. it starts on Friday afternoon and goes until turyLink Field and Safeco Field. Despite Seventy-one percent disagreed that signs Sunday.” opposition by the NFL and Major League existed on the college campus forbidding Miller, Seidler, and Curto somewhat Baseball, the bill would prevent stadiums carrying concealed weapons such as guns. lightened the sometimes-dark subject of from banning fans who carry a licensed Fifty-three percent disagreed that signs ex- concealed guns support by inserting a slide concealed weapon into their facilities. isted inside and outside of sport stadiums, into their SRLA presentation: In 2017, the Tennessee Senate Judiciary arenas, or fields that forbid spectators from “While previous studies have indi- committee passed a bill that allows off-duty carrying concealed guns. cated that university students, faculty, and police officers and sheriff deputies to carry Eighty-six percent agreed that intercol- presidents are not generally supportive of guns at sporting events at such venues as legiate football games provide an emotional any type of concealed weapons on college Bridgestone Arena, Nissan Stadium, and and potentially volatile environment. campuses, some other people are: ‘Hell, I’d Neyland Stadium. Law enforcement per- Forty-seven percent agreed that con- pay extra tuition to send my kid to a school sonnel are to notify venues that they plan cealed weapons have become a primary where you not only can binge drink, you to carry a firearm at an event. safety concern; can binge drink with a concealed weapon. Georgia House Bill 280, effective July 47 percent disagreed. That’s the kind of thing that prepares them 1, 2017, permits anyone with a concealed Forty percent used multiple methods of for adulthood in Arkansas. Especially if carry license to carry firearms on campus, checking spectators entering the stadium, my kid were a girl, because I’m ready for but prohibits them in buildings used for such as pat-down, visual inspections, metal grandchildren and a drunk frat boy with athletic events. Although GA HB 280 does detectors (wands), bomb-sniffing dogs, etc. a pistol makes a persuasive case for father- not allow weapons in sports stadiums, it Thirty-three percent used only pat-downs. hood.’ That slide also featured a bumper does not ban carrying concealed guns into Twenty-seven percent used only visual sticker that read “GUNS DON’T KILL tailgating areas before home football games. inspections of large bags or purses. See Concealed Carry on Page 11

Summary Judgment Granted in Bowling Alley Trip-and-Fall

llen Rogers claimed that on November — who walked the alley floor 20 to 40 the court found that Herrill did not cause, E4, 2014 that Herrill Lanes, which times per day — was in the area just 10 create or have notice of the condition operated a bowling alley of the same name, minutes prior to the plaintiff’s fall and that caused the plaintiff’s injuries. The negligently allowed a bowling ball bag — saw no bag on the concourse. testimony from Herrill’s general manager belonging to and set down by fellow patron HRRV moved for summary judgment was particularly instrumental in helping and defendant Everett Freed — to remain on Herrill’s behalf, on the grounds that it did Herrill establish that it did not have notice, on the concourse. not breach any duty owed to the plaintiff; meeting its burden on summary judgment. Rogers tripped on the bag en route to the record confirmed that Herrill did not Interestingly — and despite the plaintiff’s the restroom, and as a result, she claimed cause or contribute to the plaintiff’s fall or acknowledgment that she tripped over to have fractured her clavicle, pelvis and have actual or constructive notice of the a bowling ball bag — the court further multiple ribs. condition that did. In fact, there was no found certain ambiguities in the plaintiff’s At her deposition, Rogers acknowl- record of similar prior incidents, no reason testimony, and concluded that the plaintiff, edged that Freed placed the bag on the to supplement Herrill’s already-sufficient in sum, did not actually know what caused concourse and that she had no idea how maintenance procedures and no indication her to fall. As a result, the court dismissed long the bag had sat on the floor. Notably, that Herrill staff knew of the bag until after all of the plaintiff’s claims. she agreed that an incident report nar- the plaintiff fell. rative, prepared just after the fall, was In a fact intensive decision, Justice Rogers v. Herrill Bowling Corp; accurate; the document stated that the Karen Murphy, sitting in Supreme Court, Supreme Court, Nassau County; In- plaintiff tripped over the bag and ball. Nassau County, granted Herrill summary dex No. 604589/2015; October 23, Rogers also admitted that she was look- judgment on all claims. Because written 2017. HRRV’s (www.hrrvlaw.com) ing up while she was walking and had discovery and depositions revealed no Steven H. Rosenfeld and Andrew J. no trouble seeing where she was going. remaining material issues of fact, the case Curtin represented Herrill Bowling Meanwhile, Herrill’s general manager was ripe for judgment on the merits, and Corp.

NCYS: The Go-To Trusted Resource For The Amateur Youth Sports Industry! The National Council of Youth Sports (NCYS) leads the youth sports industry in promoting the value of participation through advocacy and education. The NCYS membership serves 60-million registered boys and girls in organized youth sports. "The NCYS is well-known for advocacy in promoting safe environments and healthy lifestyles for stronger neighborhoods and communities." NATIONAL COUNCIL OF YOUTH SPORTS Join Our Team! www.ncys.org/joinonline.html 772-781-1452 • [email protected] • www.ncys.org

On Appeal, Patch of Mud Deemed Open and Obvious and Not Inherently Dangerous, Dismissing Baseball Spectator’s Claim

By Carla Varriale and Shawn Schat- contentions, HRRV argued that the condi- law and that, in any event, Sirianni raised zle, of Havkins Rosenfeld Ritzert & tion was a naturally occurring topographic a triable issue of fact. Varriale condition that was not actionable as a mat- However, on appeal, the Appellate ter of law. On these points, the deposition Division, Second Department reversed, laintiff Marian Sirianni was alleg- testimony of Sirianni’s ex-husband was dismissing Sirianni’s negligence action in Pedly injured on June 12, 2011 while submitted, who testified that he consciously its entirety. The appellate court determined watching her grandson play youth baseball avoided mud throughout the spectator area that the evidence established that “the mud at Picken Field in Massapequa, New York. of the field. Certified weather condition of the field, caused by rain, was She had been standing in a spectator area reports were also submitted, among an open and obvious condition readily behind one of the dugouts and began other evidence, establishing that it had observable by those employing the reason- walking toward the field to say good-bye to rained on the day of the accident, and on able use of their senses, and not inherently her grandson. While doing so, she slipped each of the three days leading up to it. The dangerous.” As it relates to the plaintiff’s in a patch of mud in the spectator area, Town of Oyster Bay cross-moved with opposition, the Appellate Division, Second sustaining injuries. similar arguments. Department similarly agreed with HRRV, Sirianni thereafter commenced suit Sirianni’s counsel opposed the motion, holding that the opinions of the expert in against the Town of Oyster Bay, which largely on the basis of the opinion of an question were “conclusory and speculative owned the public park in which the base- expert, who opined that various structural and with no independent factual basis.” ball field was located, and Plainedge Youth deficiencies in the park somehow caused Baseball League (PYBL), the organizer of the patch of mud in question. HRRV ar- Sirianni v. Town of Oyster Bay Ap- the baseball game. She alleged, among other gued that the expert’s opinions should be pellate Division, Second Depart- things, that both defendants were negligent given no weight, as they were speculative, ment Index No. 6666/2012 A.D. Docket No. 2016-03782 December in their maintenance of the grounds sur- conclusory and without any independent 13, 2017 rounding the field, such that they should factual basis. be held liable for negligence. HRRV’s motion on behalf of PYBL was Varriale and Schatzle represented HRRV, on behalf of PYBL, moved for initially denied by Judge Angela Iannacci of Plainedge Youth Baseball League. Varriale can be reached at 646- summary judgment on the basis that the Supreme Court, Nassau County. In a brief 747-5115 or carla.varriale@hrrvlaw. patch of mud in question was open and decision, the judge held that both PYBL and com. Schatzle can be reached at obvious and not inherently dangerous as a the Town of Oyster Bay had failed to meet 646-747-5124 or shawn.schatzle@ matter of law. Similarly, in addition to other their entitlement to judgment as a matter of hrrvlaw.com. Organizer Wins Summary Judgment in Golf Cart Accident

he Oyster Festival is an annual organizations that were serving as food Specifically as to the Oyster Bay Fund, Tevent held in Oyster Bay, New vendors. Brusca had just delivered food they asserted that inadequate protocols York, featuring an oyster eating contest, obtained from a nearby restaurant to the were in place to avoid the occurrence of a handcrafts tent, live music, various tent of one of the vendors, and was in accidents like the one in question. food vendors and other attractions. It is the process of returning the cart to its HRRV, on behalf of the Oyster Bay organized by the Oyster Bay Charitable parking location. He was not employed Fund, moved for summary judgment, Fund. On October 19, 2013, plaintiff by or otherwise affiliated with the Oyster arguing that it was not affiliated with Margaret Scaley-Schaefer attended the Bay Fund. Brusca and therefore could not be held festival with multiple family members. Scaley-Schafer and her husband — liable for the accident as a matter of law. She was involved in an accident and asserting a derivative claim — filed suit More specifically, and in addition to other eventually filed suit. against the Oyster Bay Fund, Brusca and arguments, HRRV asserted that any al- While standing near a food vendor, the two nonprofit organizations that he leged action or inaction on the part of the Scaley-Schaefer’s foot was run over by was affiliated with. They asserted that Oyster Bay Fund was not the proximate a golf cart driven by Robert Brusca, all of the named defendants were negli- cause of the accident, as any fault for the who was affiliated with two nonprofit gent for allowing her accident to occur. See Organizer Wins on Page 8

Professor: It Is Time to Abolish ‘Baseball Rule’ Protecting MLB From Liability When Fans Are Injured

ith the Major League Baseball sea- This estimate does not include injuries profile fan injuries in recent seasons. Despite Wson well under way, new research sustained among the more than 40 million criticism from academic and media com- from Indiana University’s Kelley School of fans who attend minor league games. mentators, courts have almost uniformly Business suggests that the risk of fans being Further analysis by Grow and Zach- continued to apply the Baseball Rule to hit by a foul ball or errant bat at games has ary Flagel, a student at the Terry College spectator-injury lawsuits. Grow believes increased in recent years. of Business at the University of Georgia, that the Baseball Rule should no longer The research, accepted for publication found that fans’ risk of being hit by a flying be applied in these cases. by William & Mary Law Review, also ar- object at MLB games has increased with the “Although MLB has taken steps to in- gues that it is time to abolish the so-called construction of nearly two dozen stadiums crease the levels of fan protection in recent “Baseball Rule,” a legal doctrine established since 1992. years, the time has come for courts to dis- in 1913 to immunize baseball teams from “Fans today frequently sit more than 20 pense with the Baseball Rule, and instead liability. percent closer to home plate than was the hold professional teams strictly liable for “The professional baseball industry case throughout most of the 20th century,” their fans’ injuries, forcing teams to fully is radically different today than it was a Grow said. “When you combine that with internalize the cost of the accidents their century ago,” wrote Nathaniel Grow, an an increase in the speed with which baseballs games produce,” he said. associate professor of business law and ethics are being hit into the stands, fans have less at Kelley. “Nevertheless, courts continue to time to avoid errant balls or bats heading “Many foul-ball-related injuries could rely on 100-year-old legal doctrine when in their direction.” easily be avoided through the installation determining whether to hold teams liable Today, the typical foul ball enters the of additional safety netting at little cost to for spectator injuries resulting from errant stands at speeds between 100 and 110 miles the team,” the authors conclude. “Consid- balls or bats.” per hour, according to the school. At that ering that MLB is a $10 billion per year About 1,750 fans are hurt each year by rate, a fan seated 60 feet from home plate organization, such a cost is a drop in the foul balls at MLB games. That’s about two has four-tenths of a second to react, if they bucket for major-league teams, one that injuries for every three games, and that’s are paying close attention to the action. would almost immediately be recouped more common than a batter being hit by The “Baseball Rule” has come under once the expanded screen prevented even a pitch, according to a Bloomberg report. increased scrutiny after a series of high- just a single serious injury.”

Organizer Wins Summary Judgment in Golf Cart Accident

Continued From Page 7 happening of the accident was attribut- that the Oyster Bay Fund was under any that the Oyster Bay Fund “should have able to Brusca’s failure to exercise obligation to do so. arranged for specific cordoned-off lanes due care. It was noted that Brusca’s HRRV’s summary judgment motion in which the golf carts could travel.” He actions, or inaction, constituted an in- on behalf of the Oyster Bay Fund was therefore granted summary judgment to dependent, intervening act, severing the granted by Judge James P. McCormack the Oyster Bay Fund. nexus between any claimed negligence of Supreme Court, Nassau County. The attributed to the Oyster Bay Fund. judge noted that the Oyster Bay Fund Scaley-Schaefer v. Brusca; In opposition, counsel for Scaley- met its burden as a matter of law on the Supreme Court, Nassau County Schaefer and her husband as well as issue of proximate cause, holding that Index No. 10064/2015 January 16, 2018 counsel for some of the co-defendants, Brusca’s “actions in the manner in which argued that the Oyster Bay Fund should he drove the cart [were] an intervening, Attorneys of Record: (for defen- have set up lanes of travel for golf carts [superseding] cause.” In opposition, Judge dant) Carla Varriale and Shawn throughout the Oyster Festival, so as to McCormack noted that the other parties Schatzle, of HRRV. ensure that they were not used in pedes- did not address the issue of proximate trian areas. HRRV argued that there was cause and, in any event, offered “no no factual, expert or legal basis to indicate evidence or legal argument” to establish

NCAA Fallout from NC Bathroom Bill Taints College Sports Landscape

Continued From Page 1 according to the study. Sports organizations were quick to sup- knowing how much North Carolina lost, An anti-discrimination provision that port unfavorable public response to North they said: ‘Wait a minute, it’s not about a required potential host cities of NCAA Carolina’s bathroom bill. The NCAA specific quality, it’s about how much money Championship events to provide an envi- moved seven championship events from is it going to effectively cost the state? It’s ronment that is safe, healthy, and free of North Carolina in 2016. The Atlantic just not worth it,’” McCoy said. discrimination was adopted at the NCAA Coast Conference, despite being head- When the Texas bill was in consideration, Board of Governor’s meeting in April of quartered in Greensboro, North Carolina, the NCAA threatened to remove the men’s 2016. [delete] pulled the 2016 ACC football basketball championship 2018 Final Four HB2 reversed Charlotte’s anti-LGBT championship game from Charlotte. from San Antonio, and the NFL noted ordinance and any other local ordinances Ditto for the 2017 NBA All-Star Game, that Texas would not receive any more that expanded LGBT protections in a which the league moved from Charlotte Super Bowls if the bill became law, the one-day specially convened session and set to New Orleans. study revealed. a statewide definition of protected classes Six states — California, Connecticut, “The threats have been there [to pass against discrimination. Therefore, use of Minnesota, New York, Vermont and another bathroom bill],” Cebula said. restrooms/changing facilities in government Washington–imposed travel bans forbid- “In Texas, when the NFL told Jerry Jones buildings were based on an individual’s sex ding their schools to compete in North ‘We’re not putting a Super Bowl in your designation on their birth certificate, which Carolina or any other state that passes a stadium if y’all pass this legislation,’ so in North Carolina, could only be changed bathroom bill. much for that. after sex reassignment surgery. “California right now bans travel to “The teams are not doing direct lobby- “The NCAA has a very broad policy Alabama, Kansas, Kentucky, Mississippi, ing. They’re saying it publically, or they’re allowing for transgender individuals to North Carolina, South Dakota, Tennessee saying it to the owners, and then the own- participate, and when you put them in this and Texas,” Cebula said. “They do have ers are going to the state and saying, ‘Hey, situation, now you have individuals on a exceptions for contractual obligations that we’re going to lose all this money for not women’s team who are going to have to were signed before Jan. 1, 2017, so Fresno having the NBA All-Star Game, or for not find a men’s locker room at the event and State played at Alabama [last] year and San having the Super Bowl. You need to think it’s going to create logistical nightmares,” Jose State played at Texas.” about that before you pass this legislation.” McCoy said. Going forward, however, the bans could “The Texas business association that North Carolina remains the only state become more troublesome. looked into the bill before they passed it, to pass the legislation but it has been con- “What really is affected, especially for knowing how much North Carolina lost, sidered by others. The study revealed that California schools, is of course a push for it’s a GOP-run association, and they said: 16 states considered restricting bathroom the football championship and then the ‘Wait a minute, it’s not about the specific access to the gender assigned at birth, or teams in the championship need to have a quality, it’s about how much money [it is] biological sex. Six states considered legisla- stronger strength of schedule,” Cebula said. going to effectively cost the state? It’s just tion pre-empting municipal or county-level “But in California a school cannot play in not worth it because it’s something that you anti-discrimination ordinances, and 14 seven states which have very strong football really can’t enforce,’” McCoy said. “You’d considered legislation limiting transgender teams, it’s going to hurt their chances of basically be doing actual genital checks to student rights at school. getting to the college football playoff and make sure.” “With North Carolina being challenged the national championship game and they The Dallas Stars, scheduled to host the consistently on a legal basis, because of that, could potentially lose a lot of money without 2018 NHL Draft, also went on record there’s a lot of fear to do the same thing,” being able to participate in those events.” to protest the legislation with a public McCoy explained. The Texas Association of Business op- statement. “The economic impact is really also what posed the Lone Star State’s version of a Meanwhile, North Carolina faces a is hitting them,” Cebula added. “They see bathroom bill, citing a $400-million loss dilemma like no other. that North Carolina had a $400-million of business in North Carolina, according “The money that is running our Repub- impact, and that’s not including PayPal to the study. lican party in North Carolina is insane,” deciding not to place their headquarters “The Texas Association of Business that said Barbara Osborne, J.D., a professor in North Carolina.” looked into the bill before they passed it, See NCAA Fallout on Page 11

Lasting Legacy of Art Modell Felt As Columbus Crew Seeks To Set Sail

Continued From Page 1 six months’ advance notice of the owner’s the city of Columbus filed suit on March the expense of the citizens of every other intention to cease playing most of its home 5, 2018 (subsequently amended) seeking state). Defendants further state that the games at the facility and, during the six to enforce the provisions of the Art Modell law is void for vagueness, violates the Ohio months after such notice, gives the politi- Law against Precourt Sports Ventures, Team Constitution and Ohio law to the extent cal subdivision or any individual or group Columbus Soccer and Major League Soccer. Plaintiffs seek the authorization of the un- of individuals who reside in the area the The lawsuit filed in the Court of Common constitutional taking of intangible property, opportunity to purchase the team. Pleas for Franklin County, Ohio seeks a and would violate the Contracts Clause of Essentially, if a team owner receives declaratory judgment that the defendants the United States Constitution and its Ohio assistance from local taxpayers, that team are bound by the provisions of the law, counterpart by attempting to interfere with owner has to provide at least six months’ injunctive relief preventing the defendants the ownership structure of MLS (a Delaware notice prior to moving his or her team to from moving the team from Columbus to limited liability company). another locale so as to provide local parties Austin absent compliance with the law, and Though the office of Ohio Attorney the opportunity to purchase the team and continuing oversight of the court to ensure General Mike DeWine released a statement keep it in its current location. that the defendants negotiate in good faith in response to the defendants’ motion to This, then, brings us to the ongoing with the city of Columbus and/or any third- dismiss stating that “[the plaintiffs] will explorations for new horizons currently party locals desiring to purchase the Crew. strongly oppose this motion to dismiss taking place in Columbus. Last October, The defendants responded with a and respond further in court,” this lawsuit the owner of the Columbus Crew Major motion to dismiss on April 19, stating presents a number of issues that could see League Soccer team, Anthony Precourt, that the court “should decline Plaintiffs’ it settled well before a final judicial deter- announced a desire to move the Crew from invitation to weaponize” the Ohio law. mination on the merits. Foremost among Columbus to Austin, Texas. Despite playing As a preliminary matter, the defendants these issues is that the lawsuit is a case of in the first soccer-specific stadium built for argued that the law applies only to a team first impression in that the law has not any MLS team, Precourt is unhappy with “owner” that meets both of two, separate, previously been subject to judicial scrutiny the lack of support to build a replacement criteria. First, the owner’s team must play and tested as to its validity. As such, there for his 19 year old facility. Precourt’s desire in a “tax-supported facility.” Second, the is a considerable level of uncertainty- and to relocate has, as one would suspect, been owner must “receive[] financial assistance” risk- on both sides. Further, there would met with a level of unpopularity by fans from the state or a political subdivision. The seem to be a business solution that would and elected officials alike. These feelings defendants allege that Major League Soccer work for the benefit of all involved parties. are further exasperated on a local and state is the only defendant that could possibly For purposes here, it will be assumed that level as the city and state have provided be subject to the law as it is the “owner” of Austin would prove to be a viable location considerable benefits to the Crew in the the Crew—but that MLS is not subject to for a MLS team, and that there would be a nature of approximately $5 million in the law as there was no allegation by the party willing and able to pay the approxi- state taxpayer-funded improvements to plaintiffs that MLS currently receives the mately $125-150 million that the Crew is team parking facilities, a state property tax financial support necessary to trigger a strict currently valued at. Precourt is currently exemption for the land on which the team’s reading of the exact language of the statute. in a situation where, should he lose the stadium sits, a land lease from the state at Defendants’ motion to dismiss goes current litigation, he would be forced to a below-market rate, more than $300,000 on state that the law “is also blatantly field a team in a city (at least for another in city taxpayer-funded reimbursements of unconstitutional” in that it violates the season) that he tried to abandon- meaning team costs in moving portions of a storm dormant Commerce Clause of the United that fan support would be dwindling, if an sewer and constructing a water line, and a States Constitution (as it both discrimi- outright hostile environment wasn’t pres- Tax Increment Financing and Economic nates against out-of-state residents and ent. To that end, it would be worthwhile Development Agreement with the city of impermissibly interferes with Defendants’ for Precourt to secure a purchaser for the Columbus to increase access to the team’s abilities to conduct their business operations Crew, and then relocate to Austin as an stadium currently costing the $1.3 million in interstate commerce) and the Privi- expansion team. This way, Columbus would in tax revenue. leges and Immunities Clause of the United keep its team under ownership that wants As a result of Precourt’s ongoing efforts States Constitution (as it limits potential to be in the city, Austin would get a MLS to relocate to Austin, the state of Ohio and prospective purchasers to Ohio citizens at See The Lasting on Page 11

NCAA Fallout from NC Bathroom Bill Taints College Sports Landscape

Continued From Page 9 and coordinator for the graduate program election, all of those precincts are still in be aware that a venue is constantly walk- in the sport administration specialization at there gerrymandered state. ... They’re just ing a tight rope of public opinion and in the University of North Carolina at Chapel stupid.” our quick-to-judge culture, a venue might Hill. “The only thing we can hope to do not have time to defend its actions before TAKEAWAY: is to elect them out of office, but because The polarization of political irreparable harm is done. of the gerrymandering that was nearly opinions might forever affect all sport ven- impossible. So we now have two Supreme ues. Whether the ability to carry guns or if a Concealed Carry Court decisions that have said that you venue hosts a political or religious event, the Realities Test Event can’t racially gerrymander and you can’t political fallout can last for years regardless Managers’ Perceptions politically gerrymander, but for our next of the position taken. Stakeholders need to Continued From Page 5 Lasting Legacy of Art Modell Felt PEOPLE” atop a sketch of a handgun and Continued From Page 10 “DADS WITH PRETTY DAUGHTERS team on a timeline that would allow for While a negotiated settlement of the DO” encircling the bottom. the creation of a proper facility, Precourt current lawsuit would seem to be in the Having an understanding of the per- would not be biding time in Columbus best interests of all involved parties, this ceptions of major university sport event until a move to Austin was possible, MLS will be a fascinating case to watch should it managers regarding having concealed carry would add another team, the state of Ohio voyage through increasingly-higher courts weapons in intercollegiate stadiums, arenas, would have the ongoing threat of a valid on its way to a final determination. or fields will help similarly positioned statutory provision, and the litigation would individuals at other intercollegiate and interscholastic programs, as well as state be resolved in a manner controlled by the Scott Andresen can be reached at legislators, the study concluded. parties rather than a court. [email protected]

Carla Varriale Expertise: Sporting Venue Liability

Havkins Rosenfeld Ritzert & Varriale, LLP is a law firm that makes a difference. Our clients expect responsiveness, creativity, continuity and communication. We strive to exceed those expectations. (646) 747-5115 www.hrrvlaw.com

Personal Attention. Powerful Representation. Creative Solutions.

CURRENT ISSUES

Police Arrest Six Accused of Planning html?utm_source=feedburner&utm_medium=feed&utm_campaig Berlin Half Marathon Stabbing Rampage n=Feed%3A+TarnishedTwenty+%28Tarnished+Twenty%29&DC German authorities, tipped off by a foreign intelligence agency, MP=NWL-cons_sportslaw arrested six conspirators and foiled an alleged plot intended to TAKEAWAY inflict horror, according to a report in the Washington Post. The While there are numerous great people in the facility management arrested men had planned to wade through dense crowds of run- field, there are a number of charlatans and we have to do a better ners and spectators at the Berlin Half Marathon, using knives to job of warning people when someone has proven to be a fraud. slash at anyone in reach, authorities said. More than 36,000 people That is why it is critical to prove the validity of claims raised by participated in the event, setting an attendance record, according unproven promoters. to BBC. The race was guarded by more than 630 police officers and went off undisturbed. Man Shot and Killed While Exercising at https://www.washingtonpost.com/news/worldviews/ Michigan Health Club wp/2018/04/08/police-arrest-6-accused-of-planning- A man who was exercising at The Rock Fitness Center in May was stabbing-rampage-during-berlin-marathon/?utm_ shot and killed, according to a Flint Police Department official. campaign=08acef4f52-EMAIL_CAMPAIGN_2018_01_18&utm_ The victim was killed by two men who entered the club claiming medium=email&utm_source=Main%20Mailing%20 to be repairmen. List&utm_term=.4ab141297249 http://www.clubindustry.com/news/man-shot-and- TAKEAWAYS: Sporting events are still a prime target and vigilance killed-while-exercising-michigan-health-club?NL=FBP- needs to be exercised from various threats. Besides metal-based 03&Issue=FBP-03_20180503_FBP-03_926&sfvc4enews=4 concerns, such as guns or knives, new concerns are arising about 2&cl=article_1&utm_rid=CNHNM000000234383&utm_ the potential harm of non-metallic items. As often as we develop campaign=25658&utm_medium=email policies and procedures to address possible concerns, others are TAKEAWAYS: finding new techniques to cause potential harm. While this is not a common occurrence, the number of people killed at clubs has increased over the years. In fact, behind A Fake Wrestling, Concert Promoter Was vehicular related deaths, workplace violence was the number two Sentenced to 57 Months in Prison causes of deaths for sport industry employees. Steps should be taken Gabriel Reed has been promising investors for years that he can to secure entryways and develop protocols for front office employees bring in a given act to town- whether a major concert or a World when faced with a potential workplace violence situation. Some Wrestling Entertainment events. Those fake promises have now venues have a code word or phrase used when a suspicious person landed him in jail for 57 months. The Texas-based Reed had been enters a facility, such as “Mr. Black for the General Manager.” operating as Gabe Reed Productions and will serve time on federal wire fraud charges after he used the funds he raised for personal Workplace Training Study Results Released expenses, like rent and travel. Axonify recently released a study on the state of workplace training. Reed had become so infamous in promoting circles, that one Some of the shocking results include: almost a third of surveyed defrauded investor started a Stop Gabe Reed twitter account. Reed employees do not receive any formal workplace training, employees had faced a number of lawsuits dating back to 2011 and bilked have acknowledged that on-the-job training is effective, effective one investor out of $350,000 when he promised the mother he training helps employees feel more engaged, and that the training would book her daughter as an opening act for a major concert. delivery method is critical for it to be effective. The results help This and other judgements were never repaid. show that while training is critical, it is often not done, ineffective, According to the affidavit in support of the criminal complaint, or delivered in a manner that is not as beneficial. Reed bilked investors for various fake concerts by touting his al- TAKEAWAY: A key issue I have examined for years is how to pro- leged longstanding relationships with famous musicians, parading vide more effective training and education. Having safety training props from alleged tours, and even creating fake financial records for one day before a season is a good start, but, to make training as from other purported music events. effective as possible, such training should be reinforced with more https://blogs.findlaw.com/tarnished_twenty/2018/04/fake- information. For example, regular briefings, additional training, wrestling-concert-promoter-sentenced-to-57-months-in-prison. and anything else that could help reinforce basic safety practices.