NYSBA FALL 2020 | VOL. 31 | NO. 4 Entertainment, Arts and Sports Law Journal A publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association

In This Issue n Tackling Coronavirus: Maintaining Privacy in the National Football League Amid a Global Pandemic n Photojournalism and Drones in : Recent Legal Issues n Exit for a Better Start: How to Break a Commercial Lease n From “Location, Location . . .” to “On Location”: Considerations in Using Your Client’s Home as a Film Location ....and more

NYSBA.ORG/EASL Entertainment, Arts & Sports Law Section Thank you to our Music Business and Law Conference 2020 Sponsors, Eminutes and Zanoise! Table of Contents . Page

Remarks From the Chair...... 4 By Barry Werbin Editor’s Note/Pro Bono Update...... 5 By Elissa D. Hecker Law Student Initiative Writing Contest...... 7 The Phil Cowan–Judith Bresler Memorial Scholarship Writing Competition...... 8 NYSBA Guidelines for Obtaining MCLE Credit for Writing...... 10 Sports and Entertainment Immigration: A Smorgasbord of Curiousness! We’ll Have Some Buffalo Sabres, a Dash of Harvard, a Heaping Mound of a Proclamation and a Pinch of the Postal Service...... 11 By Michael Cataliotti

Resolution Alley: Compelling Participation in Virtual Alternative Dispute Resolution Processes...... 17 By Theo Cheng

Hollywood Docket: Interesting Cases, Part 3, and Resuming Production During COVID-19...... 20 By Neville L. Johnson and Douglas L. Johnson Tackling Coronavirus: Maintaining Privacy in the National Football League Amid a Global Pandemic...... 24 By Montené Speight

The Dee-Fense: Sports Law Spotlight: The Crossroads of College Sports, COVID-19 and Collective Bargaining: How a Hashtag That Went Viral During a Pandemic Resuscitated the Conversation on Unionization...... 28 By Denise J. Mazzeo Photojournalism and Drones in New York City: Recent Legal Issues...... 36 By Robert Roth Exit for a Better Start: How to Break a Commercial Lease...... 47 By Tin-Fu (Tiffany) Tsai From “Location, Location . . .” to “On Location”: Considerations in Using Your Client’s Home as a Film Location...... 49 By Ethan Bordman CBS and Apple: An Entertainment Law Comparative Analysis of the Approach to Trademark Abandonment by the and Singapore...... 55 By Matthias Brown The of the 1930s and the Issue of Hate Speech in Sports...... 59 By Bennett Liebman

Krell’s Korner: Homes of the Braves...... 65 By David Krell The Entertainment, Arts and Sports Law Section Welcomes New Members...... 67 Section Committees and Chairpersons...... 68 Remarks from the Chair By Barry Werbin

The leaves are turning, a chill is in the night air, and pact of COVID-19 on Sports: winter is approaching. This means only one thing: EASL’s A Legal Perspective, Part II, January Annual Meeting is around the corner! Despite the which will continue a dia- challenges of conducting all programs virtually for the logue that began with Part I indefinite future, we have put together a robust 5.5 CLE in June 2020. credit two-afternoon program that will address critical issues facing the entertainment, arts, and sports commu- Our committees contin- nities today. ue to plan and produce ex- cellent programs, both CLE At the outset of my tenure as Chair in early 2020, I and informal “brown bag” made it a priority—shared by our Executive Committee events. New Chairs and Co- members—for EASL to expand our focus on diversity is- Chairs infused re-energized sues. In keeping with that goal, we are devoting an entire life into a number of our two-CLE program at the Annual Meeting to diversity. committees in 2020. Our This will be the first of a series of programs that criti- Journal has been deemed cally examine diversity across the spectrum of industries the best of all NYSBA Section journals, thanks to our avid within EASL’s purview. contributors and editor par excellence, Elissa Hecker. The ongoing pandemic has severely impacted and This year will be the first for the newly re-named Phil threatened the ongoing survival of theaters, museums, Cowan–Judith Bresler Memorial Scholarship writing com- art galleries, movie theaters, publishers, music venues, petition for law school students. We’re looking forward to and other sectors of EASL’s communities. As businesses congratulating two deserving law school winners at our struggle to survive, we’re seeing an increase in litigation Annual Meeting. with its high attendant costs. Alternative Dispute Resolu- tion (ADR) is often a better and far more efficient alterna- Finally, if you are reading this and are not yet an tive. Our ADR and Fine Art Committees are joining forces EASL member, please join our Section! The cost is low to present a very timely two-CLE credit Annual Meeting and the rewards are high. If you are a member, then program on ADR in the entertainment and art markets please reach out and encourage your colleagues to join. over two back-to-back sessions. EASL members receive significant discounts on our valu- able CLE programs, participate in free members-only pro- Stadiums and arenas with no fans (thank you Major grams, receive the Journal, write for our blog and, most League Baseball for virtual cheers and boos!), athletes importantly, get to interact and network with a diverse risking and some contracting COVID-19, and stadium group of members who share a passion for everything vendors suffering from shutdowns, have all impacted arts, entertainment, and sports related. heavily the global sports community. Our robust Sports Committee is planning another timely program, The Im- See you at the Annual Meeting and stay safe!

NEW YORK STATE BAR ASSOCIATION

If you have written an article you would like considered for publication, or have an idea for one, please contact the Editor-in-Chief: Elissa D. Hecker Law Office of Elissa D. Hecker [email protected]

Articles should be submitted in Word format (pdfs are NOT acceptable), along with biographical information. REQUEST FOR ARTICLES

4 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 Editor’s Note/Pro Bono Update By Elissa D. Hecker

[I want to be remembered as] someone who used whatever talent she had to do her work to the very best of her ability. And to help repair tears in her society, to make things a little better through the use of what- ever ability she has. To do something, as my colleague David Souter would say, outside myself. ‘Cause I’ve gotten much more satisfaction for the things that I’ve done for which I was not paid. Ruth Bader Ginsburg

The deadline for the Spring issue is January 22, 2021. – Elissa

DO PRO BONO! DO PRO BONO! DO PRO BONO! DO PRO BONO! DO PRO BONO!

Pro Bono Update

Clinic/Webinars Elissa D. Hecker, Carol Steinberg, Tin Fu (Tiffany) Tsai, and Louise Carron

We welcome Louise Carron as the Pro Bono Steering introduction to copyright fair use and moral rights. Elissa Committee’s newest Co-Chair. Louise is the Executive is working on a series of discussions with NYFA and the Director of the Center for Art Law (www.itsartlaw.org). National Coalition for Arts’ Preparedness and Emergency She is dedicated to protecting artists, their creations, and Response (NCAPER), creating a dialogue for arts orga- their legacies. Louise has an LLM from Cardozo School of nizations facing financial crises due to COVID-19, and Law as well as a Master’s Degree in French Law to explore solutions and pivots, including restructuring, and Common Law from the Université Paris Nanterre. prioritizing, mergers, dissolution, and bankruptcy. We are also working on creating virtual Pro Bono Clinics. In other Pro Bono news, Carol Steinberg will present an EASL/ New York Foundation for the Arts (NYFA) we- We encourage EASL members to volunteer as pro binar this winter based on her previous recorded lectures bono attorneys and webinar speakers for other topics that entitled: “Three Cases Every Artist Should Know” (Morel, are relevant to the creative communities. Please contact Cariou, and 5 Pointz), which will provide for artists an any of us if you are interested in doing so.

DO PRO BONO! DO PRO BONO! DO PRO BONO! DO PRO BONO! DO PRO BONO!

• Louise Carron, [email protected] • Elissa D. Hecker, [email protected] • Carol Steinberg, [email protected] or www.carolsteinbergesq.com • Tin-Fu (Tiffany) Tsai, [email protected]

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 5 CLE All Access Pass Maximize Your Time and Earn CLE Credits with On-Demand Learning

Access hundreds of programs online and satisfy your MCLE Special requirement for one low price. Membership > Gain access to all CLE Online video programs and Offer! course materials for one year > New programs added each month $495 for NYSBA Members > Monthly billing option Regular Member Price: $795

For more information visit NYSBA.ORG/ALLACCESSPASS

Online only. Does not include live programs, CD or DVD products. All Access Pass requires member login and cannot be transferred. Annual subscription required. THE NEW YORK STATE BAR ASSOCIATION ENTERTAINMENT, ARTS AND SPORTS LAW SECTION Law Student Initiative Writing Contest

The Entertainment, Arts and Sports Law (EASL) Section of the New York State Bar Association offers an initiative giving law students a chance to publish articles both in the EASL Journal as well as on the EASL website. The Initiative is designed to bridge the gap between students and the en- tertainment, arts and sports law communities and shed light on students’ diverse perspectives in areas of practice of mutual interest to students and Section member practitioners. Law school students who are interested in entertainment, art and/or sports law and who are members of the EASL Section are invited to submit articles. This Initiative is unique, as it grants students the opportunity to be published and gain exposure in these highly competitive areas of practice. The EASL Journal is among the profession’s foremost law journals. Both it and the website have wide national distribution. Requirements • Eligibility: Open to all full-time and part-time J.D. candidates who are EASL Section members. A law student wishing to submit an article to be considered for publication in the EASL Jour- nal must first obtain a commitment from a practicing attorney (admitted five years or more, and preferably an EASL member) familiar with the topic to sponsor, supervise, or co-author the article. The role of sponsor, supervisor, or co-author shall be determined between the law student and practicing attorney, and must be acknowledged in the author’s notes for the ar- ticle. In the event the law student is unable to obtain such a commitment, he or she may reach out to Elissa D. Hecker, who will consider circulating the opportunity to the members of the EASL Executive Committee. • Form: Include complete contact information; name, mailing address, law school, phone num- ber and email address. There is no length requirement. Any notes must be in Bluebook endnote form. An author’s blurb must also be included. • Deadline: Submissions must be received by January 22, 2021. • Submissions: Articles must be submitted via a Word email attachment to eheckeresq@ehecker- esq.com. Topics Each student may write on the subject matter of his/her choice, so long as it is unique to the en- tertainment, art and sports law fields. Judging Submissions will be judged on the basis of quality of writing, originality and thoroughness. Winning submissions will be published in the EASL Journal. All winners will receive complimen- tary memberships to the EASL Section for the following year. In addition, the winning entrants will be featured in the EASL Journal and on our website.

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 7 Law students, take note of this publishing and scholarship opportunity: The Entertainment, Arts and Sports Law Section of the New York State Bar Association (EASL)’s Phil Cowan-Judith Bresler Memorial Scholarship, named after two esteemed former EASL Chairs, offers up to two awards of $2,500 each on an annual basis in Phil Cowan’s and Judith Bresler’s memories to law students who are commit- ted to a practice concentrating in one or more areas Phil Cowan– of entertainment, art or sports law. The Phil Cowan Cowan - Judith Bresler Memo- Judith Bresler rial Scholarship has been in effect since 2005. It is awarded each year at EASL’s Annual Meeting in Memorial January in New York City. The Competition Scholarship Each Scholarship candidate must write an origi- nal paper on any legal issue of current interest in the area of entertainment, art or sports law. Writing The paper should be 12 to 15 pages in length (including Bluebook form endnotes), double-spaced Competition and submitted in Word format. PAPERS LONGER THAN 15 PAGES TOTAL WILL NOT BE CONSIDERED. The cover page (not part of the page count) should contain the title of the paper, the student’s name, school, class year, tele- phone number and email address. The first page of the actual paper should contain only the title at the top, immediately followed by the body of text. The name of the author or any other identifying informa- tion must not appear anywhere other than on the cover page. All papers should be submitted to designated faculty members of each respective law school. Each designated faculty member shall forward all submissions to his/her/their Scholarship Commit- tee Liaison. The Liaison, in turn, shall forward all papers received by him/her/they to the Committee Co-Chairs for distribution. The Committee will read the papers submitted and will select the Scholarship recipient(s).

8 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 Eligibility The Scholarship Committee is willing to waive the The Competition is open to all students—both right of first publication so that students may simulta- candidates and L.L.M. candidates—attending eligible neously submit their papers to law journals or other law schools. “Eligible” law schools mean all accred- school publications. In addition, papers previously ited law schools within New York State, along with submitted and published in law journals or other school Rutgers University Law School and Seton Hall Law publications are also eligible for submission to the Schol- School in New Jersey, and up to 10 other accredited arship Committee. law schools throughout the country to be selected, at The Scholarship Committee reserves the right to the Committee’s discretion, on a rotating basis. submit all papers it receives to the EASL Journal for publication and the EASL website. The Scholarship Free Membership to EASL Committee also reserves the right to award only one Scholarship or no Scholarship if it determines, in All students submitting a paper for consider- any given year that, respectively, only one paper, or ation, who are NYSBA members, will immediately no paper is sufficiently meritorious. All rights of dis- and automatically be offered a free membership in semination of the papers by EASL are non-exclusive. EASL (with all the benefits of an EASL member) for a one-year period, commencing January 1st of the submission year of the paper. Payment of Monies Payment of Scholarship funds will be made by Submission Deadline EASL directly to the law school of the winner(s), to be credited against the winner’s(‘) account(s). January 8th: Law School Faculty liaison submits all papers she/he/they receives to the EASL Scholar- ship Committee, via email to Dana Alamia at dala- About the New York State Bar [email protected], no later than January 8th. Association/EASL The winner(s) will be announced, and the The New York State Bar Association is the of- Scholarship(s) awarded at EASLs January Annual ficial statewide organization of lawyers in New York Meeting. and the largest voluntary state bar association in the nation. Founded in 1876, NYSBA programs and Prerogatives of EASL Scholarship activities have continuously served the public and improved the justice system for more than 140 years. Committee The more than 1,500 members of the Entertain- The Scholarship Committee is composed of ment, Arts and Sports Law Section of the NYSBA the current Chair of EASL and, on a rotating basis, represent varied interests, including headline stories, former EASL Chairs who are still active in the Sec- matters debated in Congress, and issues ruled upon tion, Section District Representatives, and any other by the courts today. The EASL Section provides interested member of the EASL Executive Commit- substantive case law, forums for discussion, debate tee. Each winning paper will be published in the EASL and information-sharing, pro bono opportunities, Journal and will be made available to EASL members on and access to unique resources including its popular the EASL website. publication, the EASL Journal.

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 9 NYSBA Guidelines for Obtaining MCLE Credit for Writing

Under New York’s Mandatory CLE Rule, MCLE • one credit is given for each hour of research or writ- credits may be earned for legal research-based writing, ing, up to a maximum of 12 credits; directed to an attorney audience. This might take the form of an article for a periodical, or work on a book. The • a maximum of 12 credit hours may be earned for applicable portion of the MCLE Rule, at Part 1500.22(h), writing in any one reporting cycle; states: • articles written for general circulation, newspapers Credit may be earned for legal research-based and magazines directed at nonlawyer audiences do writing upon application to the CLE Board, not qualify for credit; provided the activity (i) produced material • only writings published or accepted for publication published or to be published in the form of after January 1, 1998 can be used to earn credits; an article, chapter or book written, in whole or in substantial part, by the applicant, and • credit (a maximum of 12) can be earned for updates (ii) contributed substantially to the continu- and revisions of materials previously granted credit ing legal education of the applicant and other within any one reporting cycle; attorneys. Authorship of articles for general • no credit can be earned for editing such writings; circulation, newspapers or magazines directed to a non-lawyer audience does not qualify • allocation of credit for jointly authored publica- for CLE credit. Allocation of credit of jointly tions shall be divided between or among the joint authored publications should be divided authors to reflect the proportional effort devoted to between or among the joint authors to reflect the research or writing of the publication; the proportional effort devoted to the research and writing of the publication. • only attorneys admitted more than 24 months may earn credits for writing. Further explanation of this portion of the rule is pro- In order to receive credit, the applicant must send vided in the regulations and guidelines that pertain to the a copy of the writing to the New York State Continu- rule. At section 3.c.9 of those regulations and guidelines, ing Legal Education Board, 25 Beaver Street, 8th Floor, one finds the specific criteria and procedure for earning New York, NY 10004. A completed application should credits for writing. In brief, they are as follows: be sent with the materials (the application form can be • The writing must be such that it contributes sub- downloaded from the Unified Court System’s Web site, stantially to the continuing legal education of the at this address: www.courts.state.ny.us/mcle.htm (click author and other attorneys; on“Publication Credit Application” near the bottom of the page)). After review of the application and materials, • it must be published or accepted for publication; the Board will notify the applicant by first-class mail of its • it must have been written in whole or in substantial decision and the number of credits earned. part by the applicant;

NEW YORK STATE BAR ASSOCIATION

Looking for past issues? Entertainment, Arts and Sports Law Journal

NYSBA.ORG/EASL

10 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 Sports and Entertainment Immigration: A Smorgasbord of Curiousness! We’ll Have Some Buffalo Sabres, a Dash of Harvard, a Heaping Mound of a Proclamation, and a Pinch of the Postal Service By Michael Cataliotti

Well, we are back with According to the lawsuit filed in U.S. another installment of Sports District Court in Buffalo on Tuesday, U.S. and Entertainment Immigra- Citizenship and Immigration Services tion, and, as has been the misstated facts and arbitrarily failed to case since Mr. Trump rode follow its own rules in denying perma- the golden escalator in nent residency status to Ed Gannon, an 2015,1 we have had ample action that potentially subjects the team information to discuss. “to substantial financial harm and dis- In this edition, we will be ruption in developing (its) athletes.”5 looking at another hodge- To those of you who have been with me on this jour- podge of items that might ney through the land of immigration, this should sound seem strange, but each has a familiar. We have discussed several instances of USCIS distinct and unique impact officers not properly reviewing petitions that have been on both immigration policy, filed, incorrectly applying standards of review that are as well as practice. not proper, and making nonsensical determinations. One In order, we will start by looking at the recent action such example that was similar to this was a world-class by the Buffalo Sabres in which the team sued the U.S. kettlebell lifter who holds multiple world records. Citizenship and Immigration Services (USCIS), transition The AP goes on to explain that: to another lawsuit brought by Harvard and other institu- tions against USCIS and the Department of Homeland Se- The Sabres filed the application for per- curity (DHS), take a look at the recent immigration-relat- manent residency on Gannon’s behalf in ed proclamation issued by Trump and review some of the October. To be granted a green card, Gan- procedural issues that we have found, and finally, close non had to demonstrate that he was at out with a look at the impact that the shenanigans at the the top of his field, and the Sabres argued Postal Service have had and their impact on immigration. that he proved his abilities under USCIS’ criteria. The Buffalo Sabres Win! (This Is Not a Joke.) But USCIS denied Gannon’s petition, rul- Established in 1970, the Buffalo Sabres have made it ing he did not meet the merits required to the Stanley Cup Finals twice, losing both times.2 Un- under EB-1 Extraordinary Ability eligibil- fortunately for the Sabres, Buffalo, and fans: “The Sabres ity. The agency said he relied on solicited have the longest active playoff drought in the [National letters of support and that he failed to Hockey League] NHL, at nine seasons.”3 The Sabres are produce unsolicited material—including not alone in one achievement, however, in that the team, media reports—reflecting his elite status.6 “along with the Canucks, share the record for being the Of course, they did. longest continuously running active NHL franchise to have never won the Stanley Cup.”4 This is what USCIS has been leaning on for some time: the idea that letters of recommendation (i.e., “tes- However, in May of 2020, the Sabres ran into a dif- timonials”), procured for the purposes of an immigra- ferent fight, one that the team would eventually win, this tion petition are insufficient pieces of evidence and lack time, with USCIS. As per the AP: probative value. I could provide an array of requests for Federal immigration officials wrongly evidence (RFEs) that contain comparable language and denied a petition by the Buffalo Sabres rationale; they are all flawed and simply wrong. What is to secure a green card for their British- most frustrating, however, is that USCIS likes to indicate born strength and conditioning coach, the that without unsolicited material, or other documentary team argued in a lawsuit. evidence prepared beyond the scope of the pending im- migration petition, the letters are not as authoritative. . . .

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 11 USCIS claims this even when there is clear and convinc- From The Buffalo News:“Sabres drop lawsuit as ing documentary evidence in the record. strength coach’s bid to acquire green card is approved.”8 So, what could be the cause of this foolishness? Well, Well, well, well . . . the Sabres have won!! The Sabres the AP has some thoughts: win! “Just under two months after filing a lawsuit in U.S. District Court, the Buffalo Sabres have dropped a case al- The denial of Gannon’s petition comes leging U.S. Citizenship and Immigration Services improp- amid efforts by the Trump administra- erly denied a green card for Dr. Edward Anthony Gan- tion to limit legal immigration. A report non, the team’s head strength and conditioning coach.”9 last year by the Migration Policy Insti- tute concluded that USCIS had become This tells us that while going through the administra- “increasingly active in immigration tive appeals office (AAO), as we have discussed previous- enforcement” and that the agency was ly, is generally futile, diving straight into filing a lawsuit intentionally slowing down adjudication against USCIS can result in the successes we so desire. of immigration benefits applications. I would also argue that considering that USCIS is not exactly an agency too concerned with its public image, by Last month, President or- settling the matter, agreeing to approve the good-doctor’s dered a 60-day hold on green cards in the petition to seek a green card, that USCIS is implicitly name of protecting American jobs amid acknowledging impropriety and wrongdoing. Why else the coronavirus outbreak. would it not fight? The Sabres’ lawsuit includes a letter Now, many of you may be thinking, “but settling a written by co-owner and team president lawsuit does not create an admission of guilt or wrongdo- Kim Pegula, who said Gannon was hired ing,” to which I would say, “Right, but let’s be real: This following a worldwide search. is USCIS, a federal immigration agency that has been “We spend tens of millions of dollars increasingly antagonistic, if not hostile, towards immi- each year on world-class athletes,” Pe- grants since 2016; why would it not fight? Why would it gula wrote. cower? Why would it not pursue the position that it did no wrong, that the denial was justified, as the petition “We require our head of strength and was unsubstantiated?” conditioning to expertly monitor and train these athletes to achieve success on So, what have we learned from this? Sue. Be sure you the ice,” she added. “It is a critical role have a solid case and deep pockets, and take USCIS to that we entrust to someone who also court, because that seems to be where we have success. has world-class credentials and who However, it is not just the Buffalo Sabres who won. can properly take care of our valuable Oh, no, it is not! assets.”7

The Sabres most certainly do, and this makes perfect Harvard and the Institute of sense: why would an employer go through the hassle of Technology Take DHS and U.S. Immigration and dealing with USCIS and the U.S. immigration process Customs Enforcement to Court if it did not need to? What would be the benefit of in- creased exposure to the federal government and the lack Shortly after the Sabres dropped its lawsuit against of certainty that accompanies each and every immigration USCIS—in exchange for USCIS approving the petition in petition? There is none. question—it became known that “Harvard and the Mas- sachusetts Institute of Technology filed a lawsuit in Dis- “In demanding to have Gannon’s petition approved, trict Court in Boston Wednesday morning against the U.S. the Sabres also asked the court to declare that USCIS Department of Homeland Security and U.S. Immigration abused its discretion.” It most certainly did. and Customs Enforcement [ICE].”10 Yet that is not all: “The Sabres also allege USCIS was Be still my heart. The lawsuit was in response to DHS inaccurate in ruling that the letters of reference the team and ICE’s sudden policy change from allowing inter- provided came from Gannon’s former and current em- national students to engage in only online courses—a ployers, when instead a majority came from organizations policy that was implemented due to COVID-19 response where he never worked.” Go figure, USCIS shows that measures—to suddenly “barring international students it does not actually read the paperwork that is submit- attending colleges and universities offering only online ted, or, potentially worse, reads and disregards what is courses,” thereby forcing those students to choose be- submitted. tween changing universities or leaving the U.S.11 It is So, then what was the outcome of all of this? Do we noteworthy that the guidelines “were released just hours know? Why are we talking about this case?! after Harvard announced it would house no more than

12 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 40 percent of undergraduates and would hold all College suing DHS, USCIS, ICE, and/or Customs and Border classes online in the fall. The lawsuit repeatedly states Patrol (CBP). Luckily, we know that this administration that the announcement created ‘chaos’ at Harvard, MIT, will no longer be in power come January 20, 2021; this is and universities nationwide.”12 What are some of those obviously a big relief and an even bigger win in terms of universities, you ask? Well, Northeastern University, immigration policy and practice. Nonetheless, we should which “has the third-highest number of international still expect to see a significant amount of difficulty at the students in the United States,” joined the lawsuit against ground level from USCIS and elsewhere, as we have in DHS and ICE, and “Cornell University, Dartmouth Col- the past, at least until we are settled into the new Biden/ lege, Duke University, the University of Pennsylvania, Harris administration. As such, litigation may still be and Princeton University also announced they will sign necessary, and I believe we are going to see a continuation amicus briefs in support of the lawsuit.”13 of litigation regarding immigration policy, only those law- suits will likely be brought by those seeking to maintain What is most interesting about this case is that it does the Trump administration’s policies. not just attack DHS and one of its agencies’ positions, it goes after the implementation practices as violations of the Administrative Procedure Act (APA). From The We Interrupt This Program To Annoy You and Harvard Crimson: “Their case argues that the guidelines Make Things Generally More Irritating17 violated the Administrative Procedure Act by failing to consider ‘important aspects of the problem’ in advance Here Are Some Proclamations! of its release, failing to provide a reasonable basis for the On June 22, 2020, Trump signed Proclamation 10052 policy, and failing to adequately notify the public.”14 into effect, its title being the “Proclamation Suspending The Harvard Crimson reported: “DHS and ICE Re- Entry of Aliens Who Present a Risk to the U.S. Labor Mar- scind Policy Barring International Students Taking Online ket Following the Coronavirus Outbreak.”18 The Proc- Courses.”15 Within one week of filing suit, DHS and ICE lamation effectively bars H-1B, H-2B, J, and L visas from backtracked and gave up. being issued at U.S. embassies and consulates worldwide. Specifically, the Proclamation suspends the “entry into The Department of Homeland Security the United States of any alien seeking entry” under the and U.S. Immigration and Customs En- following visas: forcement have agreed to rescind a policy that would bar international students (a) an H-1B or H-2B visa, and any alien taking online-only courses from residing accompanying or following to join such in the United States, District Court Judge alien; Allison D. Burroughs announced at a (b) a J visa, to the extent the alien is hearing on Tuesday. participating in an intern, trainee, teacher, ICE will revert to the guidance it issued camp counselor, au pair, or summer work in March that allows students taking travel program, and any alien accompa- online courses to reside in the United nying or following to join such alien; and States on F-1 visas, and it will rescind any (c) an L visa, and any alien accompany- implementation of the policy. ing or following to join such alien.19 Burroughs said the parties had agreed to These restrictions, however, “apply only to any alien a resolution less than five minutes into who: a hearing for the case Harvard and MIT filed last week asking the courts to bar (i) is outside the United States on the DHS and ICE from enforcing the policy. effective date of this proclamation; The universities drew support from hun- dreds of peer institutions, dozens of cities (ii) does not have a nonimmigrant visa and states, and student organizations.16 that is valid on the effective date of this proclamation; and Settled. Withdrawn. Over. Once again, the DHS and one of its agencies reversed course when brought before (iii) does not have an official travel the court. document other than a visa (such as a transportation letter, an appropriate The moral of these stories is that we must sue. It is boarding foil, or an advance parole docu- unfortunate that we have not sued more over the course ment) that is valid on the effective date of this administration, considering that these antics have of this proclamation or issued on any been ongoing for some time, but the reality is that most date thereafter that permits him or her to petitioners and beneficiaries (employers and employees) travel to the United States and seek entry are unable to afford the time and costs associated with or admission.”20

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 13 These provisions remain in effect through December individuals who already hold J-1 visas as researchers and 31, 2020 and have (or had . . . we will see more in a mo- scholars, but wish to have their spouses or children join ment), very limited exceptions, the most notable being them in the U.S. Here, however, the Proclamation only whether the visa applicant’s presence in the U.S. is in specifies that “any alien accompanying or following to America’s “national interest.”21 join such alien” holding an H-1B, H-2B, J, or L visa, will be barred from entering the U.S, just as the principal visa What we have been concerned about since this holder is, unless there is some exception for the principal Proclamation was published was how, exactly, consular visa holder.25 While the Proclamation discusses exceptions officers will interpret these provisions and, specifically, for principal visa applicants, it does not expressly indicate determine whether an individual is an “alien whose entry any exceptions for derivatives. would be in the national interest” of the United States.22 The fear has been that while the Proclamation expressly As above, the simple argument is that, because these prohibits the issuance of J visas to various individu- individuals are subject to the same rules as the principal als—such as those serving as interns, trainees, teachers, J-1 visa applicant or holder, they would either need to camp counselors, au pairs, or participating in a summer qualify for an exception or not fall under the purview of work-travel program, and any of their spouses or chil- the Proclamation. Again, we simply cannot work off of dren23—the Proclamation is silent as to whether other J drawing conclusions in this administration, but need to visa applicants—like researchers and scholars—may be have definitive, unequivocal clarity about who is or is not issued visas. affected by these Proclamations. As a result, the Department of State has issued sev- Without that clarity, we end up with messy situations, eral public notices regarding the exceptions under the like this: A client of mine holds a J-1 visa as a researcher Proclamation that qualify as “travel in the national inter- with a prominent medical institution and university (we est,” including: shall call this client Ms. J-1). Ms. J-1 had her visa issued in January 2020, two months prior to the suspension of rou- H-1B applicants: tine, non-immigrant visa activities at the U.S. embassies For travel as a public health or healthcare and consulates worldwide, and some six months prior to professional, or researcher to alleviate the issuance of the Proclamation. Ms. J-1 is married. the effects of the COVID-19 pandemic, or She wanted her spouse to be able to come to the U.S. to conduct ongoing medical research in with her, and as such, he applied for a derivative J-2 visa an area with a substantial public health (we shall call Ms. J-1’s spouse Mr. J-2). Mr. J-2 had his benefit (e.g. cancer or communicable interview scheduled for early July, and it was rescheduled disease research). This includes those on two occasions to the end of the month. traveling to alleviate effects of the CO- VID-19 pandemic that may be a second- When the time came, Mr. J-2 went to the U.S. Em- ary effect of the pandemic (e.g., travel by bassy, presented himself and the requisite paperwork, a public health or healthcare professional, and was told that his application for a J-2 visa was being or researcher in an area of public health refused. The reason was that Ms. J-1’s visa needed to be or healthcare that is not directly related to re-examined and re-evaluated to determine whether it COVID-19, but which has been adversely qualified for one of the exemptions. impacted by the COVID-19 pandemic).24 This was strange, considering that the Proclamation What is curious about this, however, is that under the specifically states in Section 3, (ii), that “this proclamation “J-1 applicants” section, there is no mention of research- shall apply only to any alien who: [. . . ] does not have a ers or scholars: The simple argument is that, because nonimmigrant visa that is valid on the effective date of individuals in these classifications were not expressly pro- this proclamation.”26 Yet, as above, derivative applicants hibited from obtaining visas, they would then be able to were not expressly indicated as being exempted from the obtain such a J-1 visa. However, as we have seen time and Proclamation by virtue of their respective spouses hold- again, this administration’s position has been to frustrate, ing a valid visa as of the date of the Proclamation. As a or in some instances, outright choke, the immigration pro- result of this ambiguity, a consular officer is free to deter- cess. As such, when significant discretion and latitude is mine that, well, Mr. J-2 is outside of the U.S.,27 does not given to individuals who have nominal oversight—such have a non-immigrant visa that is valid,28 and does not as consular officers—then there is a reason to give pause have any other official travel document or the like that and try to be mindful of worst-case scenarios. would allow him to enter the U.S.29 Therefore, he must be refused the visa. The problems began. Another situation that could have feasibly arisen— and could still happen—under the Proclamation is that Ms. J-1 applied for an exemption on her own, some- a consular officer may reject a spouse or child’s applica- how, and submitted her documents to the U.S. Embassy tion for a derivative J visa. This has been a concern for

14 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 for review, but nothing showed up online. Mr. J-2 sought Wait a Minute, Please Mr. Postman! Please Mr. answers but received none from the Embassy. Postman, Look and See, Is There a Letter, a Letter 31 After much back-and-forth with both the third-party for Me?! This Is Fun! visa interview processor and scheduling company, as well As many are aware, there have been a slew of shenani- as the Embassy itself through two different e-mails, a final gans going on at the U.S. Postal Service (USPS) that have e-mail was sent reciting the Department of State’s guid- impacted timely delivery of mail, such as removal of mail ance that: “National interest exceptions are available for sorting machines,32 slowdowns of deliveries,33 and the re- those who will accompany or follow to join a principal moval and replacement of public mailboxes.34 While these applicant who is a spouse or parent and who has been issues have been largely framed in the context of the No- granted a national interest exception to P.P. 10052. Note, a vember 2020 election, there has been a direct impact on the national interest exception is not required if the principal timing associated with filing petitions and having them applicant is not subject to P.P. 10052 (e.g., if the principal delivered at the various lockboxes and service centers. was in the United States on the effective date, June 24, or This is important to be mindful of when filing a peti- has a valid visa that the principal will use to seek entry to tion, application, or response to a request for evidence the United States). In the case of a principal visa appli- (RFE). This is also important to know, because USCIS cant who is not subject to P.P. 10052, the derivative will and the National Visa Center (NVC) use the USPS for the not be subject to the proclamation either.30 majority of their communications, such as receipt notices, The result was that within three business days, Mr. requests for evidence (RFE), approval notices, notices of J-2’s application had been marked as “issued,” and intent to deny a pending petition (NOIDs), employment by Thursday, August 20, 2020, his passport had been authorization documents (EADs), advanced parole docu- returned with the visa stamp placed inside. Notably, ments (i.e., travel authorization), and green cards. however, the visa did not have any indication of national Already, the issues have been piling up, for example, interest exemption or other unique Department of State from a 40-year resident of the U.S. whose green card has marking. been delayed and lost, resulted in him being “unable Ultimately, it took approximately three weeks to to renew his driver’s license, renew the tags on his car, resolve this matter, which in immigration, is quite quick, obtain insurance, and [. . . ] withdraw more than $200 at a but as anyone who has had to wait knows, can be an time from his bank.”35 eternity (especially when one is trying to get back to work across an ocean). Concluding Thoughts Another example is a far easier situation: A spouse of Immigration continues to be increasingly convoluted, an O-1 holder (Mr. O-1), applied for an O-3 at a different messy, and complicated. Unfortunately, there is no clear Embassy than the one Mr. J-2 used (we call the spouse end in sight, though we at least know that the Trump Ms. O-3). Ms. O-3 attended her interview and had her administration’s policies and practices will be gone by visa issued within five business days, no questions asked, January 20, 2021. However, we are seeing their last-ditch without difficulty and confusion. What is more interest- efforts to try and reshape various aspects of immigration ing, however, is that Ms. O-3’s visa stamp included a through rushed rules and regulations. However, fortu- designation on it that stated she was subject to a national nately or not, my immigration comrades and I are vigilant interest exemption from the Proclamation, which was worriers. Therefore, while we must remain nimble and odd. Mr. O-1’s visa was issued well before the Proclama- continue communicating with each other about policies tion, just as Ms. J-1’s, and under the express language and practices, as well as actions that are being taken by of the Proclamation, Mr. O-1’s visa—and therefore, Ms. immigration and consular officers, we must also seriously O-3’s—is not subject to the Proclamation, just as Ms. J-1’s consider litigation as a means of redress. It is important visa—and therefore, Mr. J-2’s—was not. that we present litigation as a potential option to our clients, because it would seem that we are more likely to The differences here are important to note, because achieve success by rebutting the Trump administration’s (1) they are part of an inconsistent landscape that again, antagonistic and nonsensical actions with cogent argu- frustrates and chokes the immigration process; and (2) ments before the courts. That is, unless the matter makes these are only two anecdotes of what has transpired in its way up to and before the Supreme Court, in which Europe. Many will have different experiences, case, good luck. With the current balance of judicial ide- many will have the same, but because there is no guiding ologies, we are bound to see quite a bit of legal action in policy, practice, or procedure for us as practitioners and the coming years. But I know, I worry too much; I should representatives, the more knowledge we have of what just stop worrying about it; everything will be fine . . . . could happen allows us to best position and be prepared for what does happen. Nonetheless, we have options! And it is time to use them, each and every one of them, whenever necessary.

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 15 Endnotes 27. Id. at § 3(i). 1. https://www.theguardian.com/us-news/2019/jun/13/donald- 28. Id. at § 3(ii). trump-presidential-campaign-speech-eyewitness-memories. 29. Id. at § 3(iii). 2. https://www.theguardian.com/us-news/2019/jun/13. 30. https://travel.state.gov/content/travel/en/News/visas-news/ 3. https://www.theguardian.com/us-news/2019/jun/13itness- exceptions-to-p-p-10014-10052-suspending-entry-of-immigrants- memories. non-immigrants-presenting-risk-to-us-labor-market-during- economic-recovery.html. (Emphasis added). 4. Id. (citing https://globalnews.ca/news/5384936/canucks-sabres- stanley-cup-blues/). 31. The Marvelettes, Please Mr. Postman (1961), available at https:// www.youtube.com/watch?v=425GpjTSlS4, (lyrics available at 5. https://apnews.com/eabcb171221c089880d735841a63e298. https://genius.com/The-marvelettes-please-mr-postman-lyrics). 6. Id. 32. https://www.kgw.com/article/news/local/usps-mail-letter- 7. Id. sorting-machines-disconnected-dismantled-united-states-postal- 8. https://buffalonews.com/sports/sabres-drop-lawsuit-as-strength- service/283-0d8b7855-9d5b-43b3-a271-31f4c4f3c986; https:// coachs-bid-to-acquire-green-card-is-approved/article_e1b6d530- www.freep.com/story/news/local/michigan/2020/08/19/mail- c140-11ea-ad94-a3df3e11beaf.html. sorting-machines-grand-rapids-voter-supression/5611007002/. 9. Id. 33. https://www.washingtonpost.com/politics/senate-will-hold- 10. https://www.thecrimson.com/article/2020/7/8/harvard-mit- postal-service-hearing-with-dejoy-on-friday-as-mail-delay-fears- sue-immigration-authorities/. grow/2020/08/18/5f978e76-e14f-11ea-8dd2-d07812bf00f7_story. 11. Id. html. 12. Id. 34. https://www.washingtonpost.com/politics/senate-will-hold- postal-service-hearing-with-dejoy-on-friday-as-mail-delay-fears- 13. Id. grow/2020/08/18/5f978e76-e14f-11ea-8dd2-d07812bf00f7_story. 14. Id. html, “[ . . . ] relocated and replaced public mailboxes in a number 15. https://www.thecrimson.com/article/2020/7/15/ice-lawsuit- of states, including Oregon, Pennsylvania, California, , policy-rescinded/. Montana and Arizona.” 16. Id. 35. https://www.cbs46.com/news/better-call-harry-helps-man-in- 17. Monty Python’s Flying Circus, https://bestlifeonline.com/30- his-4-decade-fight-against-immigration-services/article_329d8e36- monty-python-one-liners-that-are-relevant-today/. e265-11ea-8eb4-838ff4b6b1a0.html. 18. https://www.whitehouse.gov/presidential-actions/proclamation- Michael Cataliotti is the Principal of Cataliotti Law suspending-entry-aliens-present-risk-u-s-labor-market-following- coronavirus-outbreak/. P.C., a law firm concentrating on business immigration 19. Id. at § 2(a)-(c). and international corporate transactions. His clientele 20. Id. at § 3(i)-(iii). includes individuals and entities from such industries 21. Id. at § 3(b)(iv). as sports, music, fashion, film, television, art, theatre, 22. Id. new media, and technology. Cataliotti is a faculty mem- 23. Id. at § 2(b). ber at Lawline CLE; a frequent speaker on the topics 24. https://travel.state.gov/content/travel/en/News/visas-news/ of business immigration, corporate transactions, and exceptions-to-p-p-10014-10052-suspending-entry-of-immigrants- entrepreneurship; a member of the American Immigra- non-immigrants-presenting-risk-to-us-labor-market-during- tion Lawyers Association (AILA) where he is an active economic-recovery.html. participant on several committees; was most recently 25. Proclamation 10052, available at https://www.whitehouse.gov/ presidential-actions/proclamation-suspending-entry-aliens- recognized as one of Super Lawyers’ “Rising Stars” in present-risk-u-s-labor-market-following-coronavirus-outbreak/. 2019, and sits on the Legal Committee of Dance/NYC. 26. Id. at § 3(ii). Are you feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help. We understand the competition, constant stress, and high expectations you face as a lawyer, judge or law student. Sometimes the most difficult trials happen outside the court. Unmanaged stress can lead to problems such as substance abuse and depression.

NYSBA’s LAP offers free, confidential help. All LAP services are confidential and protected under section 499 of the Judiciary Law.

NEW YORK STATE BAR ASSOCIATION Call 1.800.255.0569 LAWYER ASSISTANCE PROGRAM NYSBA.ORG/LAP

16 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 Resolution Alley Compelling Participation in Virtual Alternative Dispute Resolution Processes By Theo Cheng

Resolution Alley is a column about the use of alternative dispute resolution in the entertainment, arts, sports, and other related industries

The economic downturn in the arts, entertainment, dards and in a manner that and sports fields and the disruption to normal commerce promotes diligence, timeli- that has been brought about by the pandemic continue ness, safety, presence of the unabated. Although courts are beginning to re-open and appropriate participants, present renewed opportunities for the public to resolve party participation, proce- disputes and achieve justice through formal legal pro- dural fairness, party com- ceedings, their varying states of readiness and operation petency and mutual respect have only further fueled the uncertainty created by the among all participants.” disruption. Thankfully, the Alternative Dispute Resolu- tion (ADR) community has embraced the use of virtual Thus, the most straight- ADR processes to afford participants a viable alternative. forward situation is if all the In doing so, they have begun a significant transformation participants wish to proceed in the landscape of dispute resolution. Yet there remains with a virtual mediation ses- the lingering question of the extent to which participants sion, as opposed to holding can be compelled to participate in a virtual ADR process, it in person. In that case, the even if doing so may be the only feasible alternative to mediator will simply discuss the appropriate protocols achieving a resolution, at least in the short term. with the participants and proceed to schedule the session using an agreed-upon video teleconferencing platform. The answer is relatively simple and straightforward However, if one or more of the participants does/do not in the case of mediation. Mediation is a confidential, non- wish to proceed virtually, the mediator should honor adjudicative process; there is no judge or other decision that request, because doing so upholds participant self- maker who will determine the merits of the dispute. Rath- determination. Indeed, because a mediator is not, in fact, er, the mediator’s role is to try and improve communica- a decision maker, she/he/they conversely cannot order tions between the participants, explore possible alterna- participants to mediate virtually, thereby contravening tives, and address the underlying interests and needs of their wishes. the participants in hopes of moving them toward a nego- tiated settlement or other resolution of their own making. Notwithstanding the foregoing, there is nothing in Critical to this process is that last phrase—“of their own the Model Standards that prevents a mediator from en- making”— which embodies the core, fundamental media- couraging and trying to convince the participants that it might be in their best interests to try mediating remotely, tion principle of the participants’ self-determination. assuming that all the participants are capable, competent, As set forth in Standard I. of the Model Standards of and comfortable doing so. After all, if the participants Conduct for Mediators (most recently updated in 2005 have come to the conclusion that they are interested in by the American Arbitration Association, the American undertaking a mediation process, that decision may very Bar Association’s Section of Dispute Resolution, and the well be significant in terms of achieving a resolution. Fur- Association for Conflict Resolution), “[s]elf-determination ther, adjourning a session to a day when everyone is able is the act of coming to a voluntary, uncoerced decision in to gather together in a physical space will not only delay which each party makes free and informed choices as to the ultimate resolution of the dispute, but will also serve process and outcome.” With regard to the format of the to increase the costs associated with maintaining the dis- mediation process itself, the Model Standards also pro- pute as a live controversy and investing further emotional vide that participants “may exercise self-determination capital into the conflict. at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the However, some words of caution. No one is advocat- process, and outcomes.” Under Standard VI., the media- ing that virtual mediation sessions are exactly the same tor also honors the participants’ self-determination by as, or a perfect replacement for, in-person mediation ses- “conduct[ing] a mediation in accordance with these Stan- sions. There are clearly differences between the two, and,

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 17 although virtual mediations are oftentimes a completely The answer, however, is not at all the same when it fine substitute for meeting in person, there are obvious comes to the arbitration process. Arbitration is a confiden- limitations in proceeding in that fashion. Moreover, there tial, adjudicative process, in which a neutral, disinterested are legitimate concerns being raised about the use of third-party acts in the capacity of a decision maker to video teleconferencing platforms, including ensuring the determine the merits of the dispute in a final and bind- competency of counsel, parties, and the mediator to fully ing manner, according to rules and procedures that are utilize the platform; preserving the confidentiality and agreed upon by the participants. To that end, for example, security of the proceeding; and handling the inevitable under Canon I.F. of the Code of Ethics for Commercial Ar- technical glitches and bugs that accompany any software- bitrators, “[a]n arbitrator should conduct the arbitration driven platform. Although many of these concerns can process so as to advance the fair and efficient resolution of usually be overcome through training, education, and the matters submitted for decision. An arbitrator should continued practice and use of the platform, they are not make all reasonable efforts to prevent delaying tactics, ha- always small hurdles for some participants, especially if rassment of parties or other participants, or other abuse or there are language or technology barriers. There are also disruption of the arbitration process.” At the same time, concerns relating to fatigue on a video teleconferencing Canon I.A. provides that an arbitrator “must observe high platform and the accompanying psychological and neuro- standards of conduct so that the integrity and fairness of logical effects on communication that can have profound the process will be preserved.” impacts on the exchange of information, the reading of body language, and, ultimately, the ability of the partici- Thus, as is the case with a mediation session, the most pants (and, in particular, the mediator) to develop empa- straightforward situation is if all the participants either thy, rapport, credibility, and trust, all of which are gener- wish to proceed with a virtual evidentiary hearing or, ally critical to a successful mediation session. conversely, wish to proceed only with an in-person hear- ing, in which case the arbitrator should adopt the partici- To that end, Standard I also advises that a mediator pants’ indicated desire and move forward accordingly. should never “undermine party self-determination by any However, if one or more of the participants do not wish party for reasons such as higher settlement rates, egos, to proceed virtually—and delay of an arbitration proceed- increased fees, or outside pressures from court person- ing, more often than not, helps one participant at the ex- nel, program administrators, provider organizations, the pense of the others— because the arbitrator is a decision media or others.” Thus, attempting to cajole the partici- maker charged with resolving the parties’ disputes, there pants into adopting a virtual mediation process must be are several things to consider before choosing to postpone done with a pure heart and with the underlying motive of the hearing or ordering it to proceed virtually. being of service and assistance to the participants. At its core, arbitration is borne from the participants’ The answer is only moderately tempered with respect agreement to arbitrate. Thus, if the applicable arbitra- to court-annexed mediation sessions. Consistent with tion provision forbids virtual evidentiary hearings, then prevailing standards for health and safety, most courts the answer is obvious, namely, the agreement must have not ordered parties to participate in in-person me- be honored. Yet it would be the arbitration agree- diation sessions. For the most part, with court facilities ment—at least in the ones encountered today— that and other public spaces still closed, there are very few explicitly addresses evidentiary hearings at this level of accessible locations where in-person mediation sessions detail. (It would also be the rare mediation agreement can take place; and even when they do, wearing masks that explicitly addresses the issue of holding mediation and practicing recommended social distancing renders sessions virtually, at least today.) Rather, many arbitration an in-person session, while feasible, not ideal for many agreements will either incorporate the use of a particular reasons. Nonetheless, mandatory or automatic court- ADR provider’s arbitration rules, default to the Federal annexed mediation programs have essentially continued Arbitration Act or an applicable state arbitration statute, being scheduled despite the pandemic. Courts are in a or generally leave the conduct of the arbitration proceed- unique position to order parties to participate in a media- ing to the sound discretion of the arbitrator. In any of tion, overriding the participants’ consent to enter into the the foregoing circumstances, the arbitrator is generally process, but not their consent to the outcome. That dis- afforded broad discretion to conduct the proceeding in a tinction—between consent to enter into the process and manner that advances the expeditious and cost-effective consent to the outcome—remains faithful to at least the resolution of the dispute, while comporting with its un- core concept of self-determination, in that the negotiated derlying premise of fairness and due process. Exercising resolution is one of the participants’ own making, even if that discretion requires care on the part of the arbitrator they may not have wanted to be in a mediation setting in to ensure that an appropriate showing has been made the first instance. Thus, as a corollary to their programs, objecting to a virtual evidentiary hearing and seeking a courts have regularly ordered parties to participate in postponement to a day when an in-person hearing can be virtual, but not in-person, mediation sessions. held. Factors to consider include any concerns over the use of video teleconferencing platforms, including issues

18 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 such as ensuring the competency of counsel, efficient han- fairly certain: virtual ADR processes are here to stay. The dling of exhibits, and preventing the improper coaching more flexible and nimbler we all can be in embracing of witnesses; preserving the confidentiality and security these processes, the better off the participants will be in of the hearing; overcoming inevitable technical glitches being able to fully realize the resolution of their disputes. and bugs; and accounting for platform fatigue. Consistent with the admonition to prudently exercise that discretion, Theo Cheng is an independent, full-time arbitra- one ground for vacating an arbitration award under the tor and mediator, focusing on commercial, intellectual Federal Arbitration Act is “where the arbitrators were property, technology, entertainment, and employment guilty of misconduct in refusing to postpone the hearing, disputes. He has been appointed to the rosters of the upon sufficient cause shown.” (CPLR 7511 also generally American Arbitration Association, the CPR Institute, provides for vacatur on the basis of arbitrator miscon- Resolute Systems, the American Intellectual Property duct.) Thus, it would behoove an arbitrator to robustly Law Association’s List of Arbitrators and Mediators, solicit the participants’ views on the issue and create an and the Silicon Valley Arbitration & Mediation Center’s appropriate record before ruling on the objection, lest List of the World’s Leading Technology Neutrals. He the final award be rendered susceptible to the grant of a is the Immediate Past Chair of the New York State Bar vacatur petition. Association Dispute Resolution Section and has been Again, no one really knows how long this health cri- inducted into the National Academy of Distinguished sis will continue and how society will adapt and evolve as Neutrals. Cheng also has over 20 years of experience as the economy reopens. Moreover, given the current state an intellectual property and commercial litigator. More of affairs—where our courts are only gradually returning information is available at www.theocheng.com, and he to “business as usual”—the serious backlogs and delays can be reached at [email protected]. to access to justice are inevitable. However, one thing is

Contribute to the NYSBA Journal and reach the entire membership of the state bar association The editors would like to see well-written and researched articles from practicing attorneys and legal scholars. They should focus on timely topics or provide historical context for New York State law and demonstrate a strong voice and a command of the subject. Please keep all submissions under 4,000 words. All articles are also posted individually on the website for easy linking and sharing. Please review our submission guidelines at www.nysba.org/JournalSubmission.

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 19 Hollywood Docket Interesting Cases, Part 3, and Resuming Production During COVID-19 By Neville L. Johnson and Douglas L. Johnson

Instagram Terms of Use Enola Holmes: Not a Free Pass Characters and On June 24, 2020, Judge Copyright Kimba M. Wood of the The estate of Sir Arthur United States District Court, Conan Doyle, who was the Southern District of New creator of Sherlock Holmes, York granted a photogra- sued Netflix for copyright pher’s motion for recon- infringement over an up- sideration of her copyright coming film, Enola Holmes.10 infringement claim against The film is based on a for using one of series of mystery novels her photographs posted to by Nancy Springer, which Instagram without her per- feature Sherlock Holmes’ mission.1 The order comes 14-year-old sister invented as a victory for users of social media platforms because it by Springer, Enola Holmes, as the main character.11 The places a limit on how a user’s posts can be used after be- author of the novels, her publisher, and the production ing created on the social media platform. company are also named as co-defendants.12 The novels feature elements from the Sherlock Holmes stories, many The plaintiff in this case is a freelance photojournalist of which are no longer protected by copyright due to a who maintains a public Instagram account to share her number of court rulings in the early 2010s and because work, including the copyrighted photograph at issue.2 the period of protection had lapsed.13 Doyle’s estate’s The defendants in this case are , a digital media complaint alleges, however, that the film draws key ele- and advertising company, and Mashable, a media and ments from those stories that are still protected, namely entertainment website, which is owned by Ziff Davis.3 Holmes’ character, which had eventually evolved into a In March of 2016, an employee of Mashable requested kinder, warmer person who became respectful of wom- permission from the plaintiff to use the photograph in en.14 The case is currently pending in the U.S. District an article about female photographers.4 The plaintiff did Court of New Mexico. not grant permission. However, Mashable proceeded to publish the photograph in the article on its website by Copyrighting characters is complicated, as human be- using Instagram’s application programming interface ings themselves are not considered copyrightable subject (API), which enables users to view and share content matter.15 However, a character can be protected by copy- posted by other users whose accounts are set to “public.”5 right as part of a graphic or literary work.16 In order for The plaintiff then demanded for the photograph to be this to occur, the character must be delineated, meaning taken down, but the defendants refused to do so and this that the character must be substantially developed such lawsuit ensued.6 that the character is distinct from the plot.17 A character may be protected as a compilation of otherwise unpro- Initially, the court granted the defendants’ motion to tectable character traits.18 Moreover, copyright protection dismiss on grounds that Instagram’s terms of service, to is afforded to a component of a character if that compo- which the plaintiff consented, had granted them a valid nent is what makes that character identifiable.19 The main sublicense to embed and use the photograph.7 However, issue when it comes to a copyrighted character is that if upon the plaintiff’s submission of her motion to recon- the work in which it is initially embedded falls into the sider, Judge Wood ruled in favor of the plaintiff, reason- public domain, so does the character, which makes it fair ing that it was unclear whether Instagram’s terms of game for other authors to use the character without need- service actually gave the defendants the right to embed ing permission from the initial creator.20 the photograph in the article.8 Judge Wood also empha- sized that it was not obvious whether Instagram intended to grant parties such as Mashable a sublicense to embed photographs.9

20 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 Theft of Idea and Latest Copyright Law in the California Supreme Court in 2019, but their request for Ninth Circuit review was denied.38 Desny claims, i.e., theft of idea claims, are still alive The Ninth Circuit has been changing course in the and well in California. In order to prevail on a theft of field of copyright law. The most notable decision thus far idea case, the plaintiff must prove the existence of an came in March of 2020, with its ruling on Skidmore v. Led implied-in-fact contract and a breach thereof by satisfying Zeppelin, the contentious copyright infringement lawsuit the following requirements: (1) Submission of the idea relating to the famous song Stairway to Heaven.39 Up for on an obligation to pay for use of the idea; (2) voluntary debate was whether Led Zeppelin’s Stairway to Heaven acceptance of the submission based on knowledge of the was substantially similar to the plaintiff’s song Taurus.40 obligation to pay for the use of the idea; (3) use of the The lower court’s jury returned a verdict in favor of Led idea; and (4) damages.21 An interesting case (though un- Zeppelin, stating that the songs were not substantially published) that has arisen in the past few years is Sullivan similar.41 On appeal, one of the main issues raised was v. Pure Flix. the lower court’s failure to give the jury instructions on 42 In this case, Sullivan and Stine (the plaintiffs) pitched the inverse ratio rule. The inverse ratio rule refers to the an idea to Pure Flix, a studio that specializes in Christian- proposition that “powerful proof of access can substitute 22 for demonstration of the requisite degree of substantial themed films, through Stine’s agent. The plaintiffs sent 43 a first draft of a treatment to the defendants, which stated similarity” in a copyright infringement analysis. The that the film was about a young Christian professor who Ninth Circuit, en banc, ultimately abrogated the inverse finds out that there is a religious studies class on his ratio rule, reasoning that it was not a part of the Copy- right Act, that it defied logic, and that it caused undue campus in which the professor mocks God and prioritizes 44 science over religion.23 The two professors debate, and the confusion for the courts and the parties. In doing so, the 24 Ninth Circuit affirmed the lower court’s finding that the Christian professor wins. Pure Flix then hired screen- 45 writers who wrote the script, entitled “Proof,” that was two songs were not substantially similar. added to its list of prospective films.25 Unfortunately, Pure There have also been series of recent rulings from the Flix was unable to secure financing for the film.26 Then, Ninth Circuit Court of Appeals46 that, although previ- Pure Flix was pitched another film about apologetics27 ously known for siding with powerful companies on on a college campus and ultimately produced that film, copyright issues,47 is changing course. In three rulings, which contained the primary storyline about a Christian the Ninth Circuit reversed district court decisions that college freshman and an atheist philosophy professor had adjudicated substantial similarity on Rule 12 mo- who enter into a debate about God’s existence.28 Upon tions, ultimately granting the motions and tossing out the finding out about the produced film, the plaintiffs sued cases.48 In Zindel v. Fox Searchlight Pictures, a case in which for breach of implied and express contract.29 the son of a playwright sued Fox Searchlight for allegedly The trial court granted the defendants’ motion for infringing his father’s play by the Oscar-winning film The summary judgment and the plaintiffs appealed.30 On Shape of Water and book of the same name, the court noted appeal, the court affirmed the motion for summary that although ruling as a matter of law is sometimes appropriate at the pleadings stage, summary judgment judgment with respect to Sullivan, stating that there was 49 “insufficient evidence to support a breach of express or is not preferred on issues of substantial similarity. The implied contract claim by Sullivan against White or Pure- court further stated that “[c]ourts must be just as cautious before dismissing a case for lack of substantial similarity flix, because Sullivan fail[ed] to raise an issue of material 50 fact that he had any agreement with Pureflix.”31 However, on a motion to dismiss.” the court reversed the lower court’s decision with respect Similarly, in Alfred v. The Walt Disney Co., an infringe- to Stine, because his portion of the complaint had raised a ment case regarding the film The Pirates of the Caribbean: material issue of fact as to whether a breach of an implied Curse of the Black Pearl, the Ninth Circuit reversed a lower or express contract had occurred.32 In its discussion on court’s decision granting Disney’s motion to dismiss substantial similarity, the court distinguished theft of due to the fact that the lower court had given too much idea from copyright infringement and noted that since weight to Disney’s scènes -a-faire argument.51 The Ninth an idea need not be novel in order to be protected under Circuit, while admitting that the two works at issue California law,33 it was required to consider scènes-a-fair shared similar pirate-movie tropes, stated that, “at this and pre-existing ideas34 in its analysis.35 In doing so, stage of the litigation, it is difficult to know whether such the court concluded that there were enough similarities elements are indeed unprotectible material. Additional between the two stories in order for a jury to decide.36 evidence would help inform the question of substantial Furthermore, the court also noted that there were enough similarity.”52 The court added that the lower court had facts on the record for a jury to decide whether to accept also failed “to compare the original selection and ar- or reject Pure Flix’s independent creation defense.37 The rangement of unprotectable elements between the two defendants attempted to appeal the decision with the works.”53 Furthermore, in its decision, the Ninth Circuit

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 21 stated that the lower court had not erred when it failed to guidelines, the CARES Act, and workers’ compensa- apply the inverse-ratio rule, since the Ninth Circuit had tion protocols for employees. In addition, when it comes already held in Skidmore that the rule was no longer to be to hiring or re-hiring employees who have underlying used.54 These developments, although unpublished, bring health conditions that make them more at risk of contract- hope to independent creators. ing COVID-19, certain provisions of the Americans with Disabilities Act may come into play. For example, Gover- nor Gavin Newsom of California issued an executive or- Coronavirus, Productions, and Assumption der stating that employees who contract COVID-19 on the of Risk job will be presumed to have suffered from a work-relat- This June, New York State issued guidelines for film ed injury and as such will be presumed to be covered by and TV production to resume in Phase Four and began workers’ compensation.64 While New York has not speci- accepting film permit applications for after June 30.55 This fied whether this type of presumption will be applied, news came a few weeks after the Industry-Wide Labor- the New York Workers’ Compensation board has issued Management Safety Committee Task Force (Industry Task guidance stating that employees who contract COVID-19 Force) submitted a white paper containing recommended on the job will be more likely to receive benefits.65 protocols to governors across the country, including Cali- fornia and New York.56 Shortly after the announcement As employers may not be completely shielded from came regarding productions resuming, the DGA, SAG- litigation if a cast or crew member contracts COVID-19 AFTRA, IATSE and Teamsters released a comprehensive on a production, another issue is whether waivers not to joint report entitled “The Safe Way Forward” on June 12, sue may be enforceable. While the Editors Guild and the detailing the guidelines that will need to be implemented Cinematographers Guild have both issued guidelines that in order to safely resume production.57 Although this prohibit employers from asking or requiring any crew is great news for the industry, productions must still be members to sign liability waivers, other unions have not 66 aware that they are following the guidelines and not cut- specified whether waivers are prohibited. ting corners. New York has designated certain permit restrictions, Endnotes which include no reserved parking, no street closures 1. See Opinion and Order re: Plaintiff’s Motion for Reconsideration, or holding of vehicles, maximum amount of allowed Sinclair v. Ziff Davis, LLC, 1:18-cv-00790 (S.D.N.Y. Jan 29, 2018). equipment, no filming locations within 16 feet of an 2. See Opinion and Order re: Motion to Dismiss the Second Amended establishment participating in the NYC Open Restaurants Complaint, page 2, Sinclair v. Ziff Davis, LLC, 1:18-cv-00790 program without written consent from the establishment (S.D.N.Y. Jan 29, 2018). among other requirements.58 The union guidelines are 3. Id. at page 3. described as “a detailed set of science-based protocols 4. Id. serving as a path for Employers to uphold their respon- 5. Id. sibility of providing safe workplaces in a pre-vaccine, 6. Id. COVID-19 world” that were put together in consultation 7. Bill Donahue, Judge Revives Photog’s Suit Over Embedded Instagram 59 with leading epidemiologists and experts. The central Posts, Law 360 (Jun. 24, 2020), available at https://www.law360. focus is protecting performers, as they are the most vul- com/articles/1286412. nerable because they cannot always physically distance 8. See supra note 1, at page 3. 60 or wear personal protective equipment while filming. 9. Id. Frequent and regular testing is heavily emphasized and 10. Adir Robertson, Arthur Conan Doyle’s Estate Sues Netflix For Giving the protocol for testing is largely dictated by the zoning Sherlock Holmes Too Many Feelings, The Verge (Jun. 25, 2020), system that has been created based on proximity to cast available at https://www.theverge.com/2020/6/25/21302942/ and on-site production crew.61 Companies are required to netflix-enola-holmes-sherlock-arthur-conan-doyle-estate-lawsuit- provide personal protective equipment daily and opera- copyright-infringement. tions relating to health safety on set are to be exclusively 11. Id. handled by the healthy safety supervisor and his/her/ 12. Id. their team on set.62 The guidelines also suggest shorter, 13. Id. 10-hour workdays, as well as guaranteed sick leave for 14. See Complaint, Conan Doyle Estate Ltd. v. Springer et al, 1:20-cv- cast or crew members who contract COVID-19 on set.63 00610 (D.N.M. Jun. 23, 2020). The guidelines are expected to evolve as the state of the 15. Downing v. Abercrombie & Fitch, 265 F.3d 994, 1003-04 (9th Cir. pandemic progresses. 2001); Brown v. Air Pirates, 201 F.3d 654, 658 (5th Cir. 2000). 16. Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978); In addition to the guidelines set forth in the white pa- Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930). per and the Safe Way Forward guidelines, entertainment 17. Salinger v. Colting, 641 F. Supp. 2d 250, 254 (S.D.N.Y. 2009), vacated productions must also take into consideration applicable on other grounds, 607 F.3d 68 (2d Cir. 2010); Nichols, 45 F.2d at 121. federal laws and guidelines, such as The Occupational 18. Lone Wolf McQuade Associates v. CBS, Inc., 961 F. Supp. 587, 594 Safety and Health Administration’s (OSHA) COVID-19 (S.D.N.Y. 1997).

22 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 19. New Line Cinema Corp. v. Russ Berrie & Co., 161 F. Supp. 2d 293, 302 54. Id. at *3; 952 F.3d 1051, 1066 (9th Cir. 2020). (S.D.N.Y. 2001). 55. Jill Goldsmith, New York State Issues Production Guidelines, NYC 20. Silverman v. CBS, Inc., 870 F.2d 40, 50 (2d Cir. 1989). Now Accepting Film Permit Applications for Work After June 30, 21. Desny v. Wilder, 46 Cal. 2d 715 (1956). Deadline, (Jun. 24, 2020), https://deadline.com/2020/06/new- york-state-production-guidelines-ny-film-permits-applications- 22. Sullivan v. Pure Flix Entm’t LLC, No. B280305, 2018 WL 5993817, at june-30-1202968865/. *2 (Cal. Ct. App. Nov. 15, 2018), reh’g denied (Dec. 12, 2018), review Industry Task Force Submits Production Health denied (Feb. 27, 2019). 56. Carolyn Giardina, Guidelines to State Governments, The Hollywood Reporter (Jun. 1, 23. Id. at *2-4. 2020), available at https://www.hollywoodreporter.com/behind- 24. Id. screen/industry-task-force-submits-production-health-guidelines- state-governments-1296700. 25. Id. 57. The Safe Way Forward, SAG-AFTRA, available at https://www. 26. Id. at *5-8. sagaftra.org/files/sa_documents/ProductionSafetyGuidelines_ 27. Apologetics refers to reasoned arguments or writings in June2020EditedP.pdf. justification of something, typically a theory or religious doctrine. 58. See supra, note 39. 28. Sullivan, 2018 WL 5993817 at *5-8. 59. See supra, note 40. 29. Id. at *8. 60. Id. 30. Id. 61. Id. 31. Id. at *11. 62. Id. 32. Id. 63. Id. 33. This is in contrast to New York law, which requires the idea to be 64. California Executive Order N-62-20, available at https://www.gov. novel in order for a plaintiff to prevail. Nadel v. Play-By-Play Toys & ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf. Novelties, Inc., 208 F.3d 368, 376 (2d Cir. 2000). 65. Lindsay Colvin Stone, UPDATED: New York Workers’ Compensation 34. In copyright law, scènes-a-faire is not considered in the substantial Law: Is COVID-19 Compensable?, Sheppard Mullin Labor & similarity analysis. Sullivan, 2018 WL 5993817 at *11. However, Employment Blog, (Apr. 30, 2020), available at https://www. courts adjudicating copyright cases are encouraged to consider laboremploymentlawblog.com/2020/04/articles/coronavirus/ whether the works at issue are original in the way that they select new-york-workers-compensation-law/. and arrange unprotectible elements that would normally constitute scènes-a-faire. See Alfred, infra, note 46 at *2. Theft of 66. David Robb, Editors Guild Issues Protocols For Safe Return To Work idea cases generally are easier to prove than copyright During Pandemic: No Liability Waivers, Shorter Workdays, infringement. However, given the new decisions by the Ninth Nondiscrimination Against Older Crew Members, Deadline, (Jun. 10, Circuit, proving copyright infringement for plaintiffs has become 2020), available at https://deadline.com/2020/06/coronavirus- easier. editors-guild-return-to-work-protocols-1202956038/; Local 600 Principles, Key Recommendations and Recommended 35. Sullivan, 2018 WL 5993817 at *13. Departmental Protocols (Jun. 3, 2020), available at https:// 36. Id. at *14-15. pmcdeadline2.files.wordpress.com/2020/06/local-600- recommendations-for-returning-to-work-060120-final-wm.pdf. 37. Id. at *17-18. 38. Sullivan v. Pure Flix Entm’t LLC, No. S253072, 2019 Cal. LEXIS 1299, at *1 (Feb. 27, 2019). Neville L. Johnson and Douglas L. Johnson are 39. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 952 F.3d 1051 partners at Johnson & Johnson LLP, in Beverly Hills, (9th Cir. 2020). CA, practicing entertainment, media, business and class 40. Id. at 1057-60. action litigation. Suna Izgi, a third-year law student 41. Id. at 1061. at Southwestern Law School, is a law clerk there who 42. Id. helped write this article. 43. 4 Nimmer on Copyright § 13.03 (2019). 44. Skidmore, 952 F.3d at 1061. 45. Id. at 1080. 46. Hall v. Swift, 786 F. App’x 711 (9th Cir. 2019); Zindel as Tr. for David Zindel Tr. v. Fox Searchlight Pictures, Inc., No. 18-56087, 2020 WL 3412252 (9th Cir. June 22, 2020); Alfred v. Walt Disney Co., No. 19- 55669, 2020 WL 4207584, at *1 (9th Cir. July 22, 2020). As of the time of this writing, these decisions are unpublished. 47. White v. Samsung Elec. Am., Inc., 989 F.2d 1512, 1521 (9th Cir. 1993) (Kozinski, J., dissenting) (“For better or worse, we are the Court of Appeals for the Hollywood Circuit.”). 48. See supra, note 46. 49. See Zindel, supra note 46 at *3. 50. Id. 51. See Alfred, supra note 46 at *2. 52. Id. 53. Id.

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 23 Tackling Coronavirus: Maintaining Privacy in the National Football League Amid a Global Pandemic By Montené Speight

For many organizations, the rapid development of California became new technology raises several data privacy concerns. This the first U.S. state with a reality leaves many left to fare with the ever-increasing comprehensive consumer complexities concerning management of consumer data, privacy law when it en- and the lack of federal regulation in the United States fur- acted the California Con- ther exacerbates these issues. By way of illustration, we sumer Privacy Act of 2018 look to the National Football League (NFL) where, prior (CCPA).9 The CCPA went to the start of its 2020 season, there was an unprecedented into effect on January 1, need to implement contact tracing policies as part of on- 202010 with enforcement going efforts to mitigate the spread of COVID-19.1 beginning July 1, 2020.11 In its present condition, In addition to mandating daily COVID-19 test- California is recognized as ing, screening, and social distancing measures, the NFL a consistent leader in the requires that all team players and staff wear a KINEXON United States on the data SafeTag (SafeTag or Tag) before entering team facilities or privacy front and the CCPA is seen as one of the tough- otherwise engaging in football related activities (includ- est data privacy laws in the country.12 It applies to any ing in-person meetings, team weightlifting, practices, and 2 for-profit business that collects consumers’ personal games). These SafeTags ensure distance regulations and information or determines the purposes and means of allow the NFL to trace possible contact chains in the event 3 the processing of consumers’ personal information that of infection. Though already recognized by both medi- does business in California and either a) has $25 million cal professionals and courts as an appropriate strategy to 4 or more in annual revenues; b) derives 50% or more of its contain and trace the spread of COVID-19, the enactment revenues from selling consumer data; or c) annually buys, of such a contact tracing scheme nevertheless raises legiti- receives for the business’ commercial purposes, sells, or mate privacy concerns for the NFL. shares for commercial purposes, alone or in combination, The privacy issues associated with contact tracing the personal information of 50,000 or more consumers, emanate from the extended periods of time with which households, or devices.13 Under the CCPA, personal an individual’s personal information is collected, used, information comprises any “information that identifies, and stored; and although personal information surpasses relates to, describes, is reasonably capable of being as- oil as the world’s most valuable resource,5 there are no sociated with, or could reasonably be linked, directly or comprehensive privacy laws to govern management of indirectly, with a particular consumer or household.”14 it. The cross-disciplinary nature of privacy law, however, “Consumer” includes any “natural person who is a demands that federal policies immediately be passed to California resident.”15 Consequently then, the law is not guard both individual privacy and organizational liabil- limited to companies physically located in California, but ity. This article provides an overview of relevant privacy rather it applies to any company that does business with law before pointing to the NFL’s use of SafeTags to make California residents.16 The CCPA also applies to entities the argument for a comprehensive federal privacy law in that control or are controlled by a covered business or the United States. where an entity shares common branding with a covered business, such as a shared name, service mark, or trade- mark.17 The “extraterritorial effects”18 of the CCPA then, Relevant Privacy Laws require that privacy professionals throughout the country The European Union’s (EU) General Data Protection become familiar with its various implications. Subse- Regulation (GDPR) took effect in May 2018 to protect quently, as a covered business, there are many privacy EU citizens from privacy and data breaches.6 Under the issues for the NFL to consider following its decision to GDPR, all “natural persons” enjoy a “fundamental right” utilize SafeTags this season. to personal-data protection.7 Personal data is defined as any information that is related to an “identified or Contact Tracing identifiable individual” and thus, personal data includes Contact tracing has proven to be a venerable and not only names, addresses, social security numbers, and effective strategy to break chains of transmission19 and it email addresses, but also location data, behavioral data, is recognized by the Centers for Disease Control and Pre- financial information, IP addresses, health information, vention (CDC) as a “key strategy for preventing further ethnic information, and any other data that relates to an spread of COVID-19.”20 Contact tracing is essentially de- identified or identifiable consumer.8

24 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 tective work21 and when done manually, requires a large SafeTags built into their equipment for on-field use dur- workforce, as well as time and money.22 Alternatively, ing practices and games.32 In real time, this lightweight modern use of contact tracing apps can be implemented wearable proximity recording device, worn as either a quickly and for a relatively low cost.23 Location-based wristband or lanyard, measures the distance and duration apps utilize location data to record an infected person’s of contacts between users.33 Similar to Bluetooth-based prior whereabouts, then alarms other app users who may contact tracing apps, KINEXON SafeTags do not record have come into close contact. Apps relying on Bluetooth absolute location data.34 Rather, they rely on integrated technology alert a user when he/she/they encounters ultra-wideband sensors.35 In the case of a COVID-19 out- someone who tests positive for COVID-19, if that person break then, the NFL can trace all relevant contact points is using the same app and chooses to disclose his/her/ through a secure analysis platform.36 their test results. Noteworthy though, is the legitimate hesitation of consumers to provide personal health infor- Practical Application: Tracing Contacts mation to large technology companies. After playing the Minnesota Vikings in Week 3, seven players and six staff members from the Tennessee Titans Contact tracing apps have additional limitations tested positive for COVID-19.37 Having mandated daily because of the inability to account for whether people are use of SafeTags facilities, the NFL quickly identified wearing masks, are separated by a partition, or people more than 40 close contacts others had with the infected are otherwise following recommended social distancing individuals. It was then able to evaluate those contacts, practices.24 Moreover, there is no guarantee that a user’s perform additional testing, and monitor any new devel- phone is continuously charged or constantly near. In these opments.38 In this instance, contact tracing afforded the instances, critical contacts are missed, and the overall effec- NFL the opportunity to explore these contacts in detail, tiveness of app-based tracing is substantially hampered. in hopes of sharing any learned information with other 39 Privacy Issues Associated with Contact Tracing teams. While helpful in its goal to contain and trace CO- Maintaining Privacy Within the NFL VID-19 outbreaks, technology-assisted contact tracing The NFL’s organizational liability diminishes when (TACT)25 raises legitimate privacy concerns for both appropriate safeguards are put into place. For example, experts and consumers. A principal concern is the scope recognizing the legitimate fears associated with collecting of location data being collected, because effective con- location data from consumers, the NFL sought contact tact tracing need not identify exactly where two people tracing technology free of absolute location tracking capa- crossed paths, but only that they have come into close bilities.40 Moreover, its use of SafeTags is intended simply contact with each other. In Norway, for example, authori- to supplement the daily testing, screening, and social dis- ties found that the scope of its national contact tracing tancing mechanisms already in place.41 Only where these app proposed a disproportionate threat to user privacy, mechanisms fail then, will the NFL access any collected because the collection and storage of location data was data.42 more than what was necessary to achieve its intended purpose. 26 Bluetooth-based apps address this concern by As another safeguard, all data collected from the measuring only the strength of Bluetooth signals between KINEXON SafeTags is largely synthesized. Utilizing syn- user devices in determining whether users have come thetic data anonymizes any personal identifying informa- into close contact with each other. tion by creating a digital twin of the original data, which allows any important statistics collected to be shared Other concerns arise when data is stored and shared among third parties.43 Thus, in the scenario above, where within a centralized authority because by virtue, central- seven players and six staff members tested positive for ization creates only one of access.27 Consequently, COVID-19, rather than providing individuals’ names, the data of all users is compromised by the breach of a the NFL provided its vendor only with a corresponding single source.28 Consumers also need clarity about the identification number for each Tag.44 This process restricts purpose and use of their data, an understanding of what access to the collected data, and because SafeTags are to safeguards are in place to ensure restricted access to be used solely for the purpose of containing and tracing this information, awareness of the retention period, and COVID-19 outbreaks, such data minimization efforts are knowledge of plans regarding data disposal. The poten- appropriate. tial for misuse of such personal information is further magnified in the United States where national privacy Beyond the privacy concerns related to contact laws have not been adopted.29 tracing, NFL counsel must also consider the risks associ- ated with collecting saliva results from large numbers of Contact Tracing Within the NFL individuals on a daily basis.45 This risk in particular is Contact tracing within the NFL is made possible with magnified because the demand for COVID-19 test results SafeTags. 30 Currently, all players and club personnel are far outnumbers the amount of service providers, and required to wear Tags when at club facilities, during prac- consequently, the NFL sends results to multiple vendors tices, and during team travel.31 Additionally, players have across the nation.46

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 25 Fan experience, whether live or digital, also presents Endnotes its own set of privacy issues. What is the NFL’s responsi- 1. NFL Is Using Technology to Modernize Contact Tracing, Prevent Spread bility to fans amid a global health pandemic? Must it take of COVID-19, playsmartplaysafe.com (Aug. 4, 2020), https://www. temperatures? Provide masks and gloves? Administer playsmartplaysafe.com/focus-on-safety/protecting-players/nfl- partners-oakley-develop-innovative-mouth-shield-technology/. COVID-19 questionnaires? Should it require production of negative COVID-19 test? If so, how and where should 2. See Jessica Golden, Here’s the Device the NFL and NBA Are Using for Coronavirus Contact Tracing and Social Distancing, CNBC.COM, this information be collected and stored? These are the https://www.cnbc.com/2020/07/21/nfl-nba-to-use-safezone- questions privacy professionals are asking,47 and without tags-for-coronavirus-contact-tracing.html (last updated July 22, comprehensive federal regulations, the answers remain 2020). unclear. 3. KINEXON.COM, https://kinexon.com/safezone (last visited Sept. 24, 2020). 4. Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 2404923, at *1 (D. Conclusion Mass. May 12, 2020)(where the court found the government Widespread use of contact tracing highlights the need exercised “deliberate indifference” when addressing detainee 48 complaints where the government failed to make reasonable for a federal data privacy standard in the U.S. Though efforts to test for COVID-19 and to trace contacts of detainees). sports organizations recognizably do not possess the 5. See Joanna Kessler, Data Protection in the Wake of the GDPR: same lobbying power in privacy as technology companies California’s Solution for Protecting “The World’s Most Valuable or healthcare providers, the NFL’s current use of SafeTags Resource,” 93 S. Cal. L. Rev. 99, 100 (2019). is a worthy showing of the far-reaching nature of data 6. Id. at 103. privacy, and consequently, the need for federal guidance. 7. Id. (internal citations omitted). Although it is appealing to think that sports leagues are 8. Id. at 104 (internal citations omitted). better served drafting, overseeing, and enforcing their own privacy guidelines, in actuality, legal professionals 9. See Id. at 105. desire a comprehensive federal bill that unequivocally es- 10. Id. tablishes uniform parameters.49 Short of this, many states 11. See White Paper – Ready or Not, Here It Comes: How Prepared Are will follow in the footsteps of California and pass their Organizations for the California Consumer Privacy Act?, iapp.org, 50 https://iapp.org/resources/article/iapponetrustsurvey-ccpa- own privacy bills. Companies will then be forced to preparation/. comply with an assortment of privacy regulations, which 12. See Kessler, supra 100 (2019). is more expensive and burdensome than compliance with 13. See CAL. CIVIL CODE §1798.100. a uniform federal law.51 14. Kessler, supra at 108. The GDPR is recognized as the transnational gold 15. Id. 52 standard of data protection and thus, the United States 16. Kessler, supra at 107. would be well served to duplicate much of its guidance 17. See Laura Jehl & Alan Friel, CCPA and GDPR Comparison while also understanding that avoidance of overregula- Chart, iapp.org, 1, https://iapp.org/media/pdf/resource_center/ tion and federal preemption are key. Unnecessary red CCPA_GDPR_Chart_PracticalLaw_2019.pdf. tape (i.e. endless consent prompts for every data process) 18. Id. certainly runs the risk of significantly burdening custom- 19. See Dennis Thompson, What Is ’Contact Tracing’ and How Does It 53 ers’ enjoyment of technological services. This issue is Work?, WebMD.com (May 4, 2020), https://www.webmd.com/ of particular importance as it relates to contact tracing lung/news/20200504/what-is-contact-tracing-and-how-does-it- because of the need for both consumer buy-in and wide- work#1. spread adoption. Moreover, federal regulations need be 20. CDC, Contract Tracing: Part of a Multipronged Approach to Fight the at least as stringent as the requirements of the CCPA to COVID-19 Pandemic (“CDC Contact Tracing”) 1 (Apr. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/php/ avoid producing a watered-down version of the CCPA principles-contact-tracing-booklet.pdf. that preempts states and inhibits their ability to establish 21. See Thompson, supra. strong, comprehensive data privacy regimes.54 To con- 22. See Mike Capps, The Many Privacy Concerns Surrounding Contact clude then, the privacy issues emerging as a result of the Tracing Efforts for COVID-19, betanews.com, https://betanews. COVID-19 pandemic necessitates implementation of a com/2020/08/28/covid19-contact-tracing-privacy/. comprehensive, federal privacy bill. Short of this, privacy 23. Id. professionals will not have the guidance needed to advise 24. Scott Pink & John Dermody, Where Will the Needle Land? COVID-19 and counsel major organization about the liability risks Contact Tracing v. Protecting Personal Privacy, law.com, https:// associated with collecting, storing, sharing, selling, and www.law.com/legaltechnews/2020/06/12/where-will-the- destroying personal information of consumers. needle-land-covid-19-contact-tracing-v-protecting-personal- privacy/. 25. Chanley T. Howell & Chloe B. Talbert, Privacy Risks and Implications of Contact Tracing Apps and Related Technologies, natlawreview. com, https://www.natlawreview.com/article/privacy-risks-and- implications-contact-tracing-apps-and-related-technologies (Aug. 25, 2020).

26 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 26. Id. 43. See Capps, supra. 27. Id. 44. Cioce, supra. 28. Id. 45. Id. 29. See Capps, supra. 46. Id. 30. NFL Is Using Technology to Modernize Contact Tracing, Prevent Spread 47. Telephone Interview with Jessica Lee, CIPP/US, CIPP/E, CIPM, of COVID-19, playsmartplaysafe.com (Aug. 4, 2020), https://www. Loeb & Loeb, (September 30, 2020). playsmartplaysafe.com/focus-on-safety/protecting-players/nfl- 48. See Richard Bird, Contact Tracing Apps Reinforce the Need for A partners-oakley-develop-innovative-mouth-shield-technology/. Federal Data Privacy Standard, Forbes.com, https://www.forbes. 31. Id. com/sites/forbestechcouncil/2020/09/10/contact-tracing-apps- 32. Id. reinforce-the-need-for-a-federal-data-privacy- standard/#4b2f78161a33. 33. KINEXON SafeZone, KINEXON.COM, https://kinexon.com/ technology/safetag. 49. Lee, supra. 34. Id. 50. Lindsey O’Donnell, Privacy Regulation Could Be a Test for States’ Rights, THREATPOST (Oct. 16, 2018, 10:45 AM), https:// 35. Id. threatpost.com/privacy-regulation-could-be-a-test-for-states- 36. Id. rights/138303/. 37. Turron Davenport, Source: Two More Tennessee Titans Players Test 51. Id. Positive for COVID-19, ESPN.com, https://www.espn.com/nfl/ 52. See Kessler, supra at 108. story/_/id/30022807/source-two-more-tennessee-titans-players- test-positive-covid-19. 53. Andrada Coos, GDPR: The Pros and the Cons, endpointprotector. com (Feb. 1, 2018), https://www.endpointprotector.com/blog/ 38. Courtney Cronin et al., Tennessee Titans, Minnesota Vikings Close gdpr-the-pros-and-the-cons/ Facilities After Titans Players Test Positive for the Coronavirus, ESPN. com, https://www.espn.com/nfl/story/_/id/30001007/ 54. See Kessler, supra at 102. tennessee-titans-close-facility-multiple-players-test-positive- covid-19 (last updated Sept. 29, 2020) Montené Speight graduated from Law 39. Id. School in December 2019. While her law school studies 40. Telephone Interview with Thomas Cioce, Privacy Counsel, focused on labor and employment law, she has a genu- National Football League (Sept. 25, 2020). ine interest in the intersection among sports law, data 41. Id. privacy, and cybersecurity. 42. Id.

The New York State Bar Association thanks the 200 Attorney Volunteers who have taken a Client through the Unemployment Insurance and Surrogate’s Court Pro Bono programs. Your extraordinary service exemplifies the best of the legal profession to do the public good.

Visit nysba.org/covidvolunteer to view the list of Attorney Volunteers and for more information on the COVID-19 Pro Bono Network.

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 27 The Dee-Fense: Sports Law Spotlight The Crossroads of College Sports, COVID-19, and Collective Bargaining: How a Hashtag That Went Viral During a Pandemic Resuscitated the Conversation on Unionization By Denise J. Mazzeo

Due to the coronavirus pandemic, most college jeopardize their wellbeing sports seasons have been postponed, abbreviated or and future athletic careers otherwise modified, if not cancelled altogether. Never- in order to play football for theless, the college athletes’ real campaign will be forging the monetary gain of others, ahead this fall off the gridiron—this year, the real show- or opt-out and likely face down is playing out on social media, and the kick-off retribution. Concurrently, was a hashtag that went viral. In August, before any some professional leagues college conferences officially cancelled sports, a contin- made their return to sports, gent of football players from the Pac-12 banded together underscoring a key differ- and collectively announced on social media its intention ence between professional to sit out the season unless the Pac-12 conference and the and college athletes: they National Collegiate Athletic Association (NCAA) agreed were represented by play- to a wide-ranging list of demands regarding health and ers’ associations who had safety, student-athlete compensation and revenue shar- negotiated on their behalf ing, racial injustice, and other issues.1 The group circu- for specific health protections and opt-out financial -ar lated its mission statement and list of demands via the rangements that allowed them to decide whether the risk hashtag #WeAreUnited, breathing new life into the topic of playing was worth it. of unionizing college sports. Parallel to the pandemic, widespread protests against social injustice in the wake of George Floyd’s death cast Context a spotlight on racial injustices within college sports. The The confluence of the surging coronavirus pandemic revenue-generating sports in the NCAA, for example, and mass protests amplified by social media created the NCAA Division I Football Bowl Subdivision (FBS) perfect milieu for the emergence of a college athletes’ football and men’s ,4 are vastly disproportion- rights movement. Returning to summer practices while ately comprised of Black athletes. On the contrary, the COVID-19 continued to spread like wildfire, causing coaches, commissioners, athletic directors, and other staff outbreaks amongst college teams, raised grave concerns they play for are overwhelmingly white.5 As a result, the over student-athlete health and safety and what some economic restraints on college athletes disproportionately players felt were inadequate COVID-19 health measures. affect Blacks, perpetuating what some have coined a sys- Some schools required student-athletes to sign COVID-19 tem of “modern apartheid.”6 Furthermore, the additional liability waivers as a condition to returning to play, which health risks college football players were taking to play the student-athletes found particularly worrisome given during the pandemic were exacerbated by these racial the lack of transparency regarding testing protocols and disparities. College athletes have a history of involve- health measures. Though the NCAA eventually banned ment in protests against racial injustice7 and social media the controversial practice, the effect on student-athletes further expanded their role during the Black Lives Matter was like pouring gasoline on a fire. One by one, NCAA movement.8 conferences cancelled fall sports seasons, but the Power 2 As student-athletes witnessed the power of platforms Five —a group of the five highest revenue-generating and strength in numbers to effect systemic change, the conferences in college sports—remained steadfast. empowerment spilled over into issues arising out of Meanwhile, the simmering controversy over proposed playing sports during the pandemic. Health and justice college athlete “pay to play” legislation was on the back issues resonate with the public more than ever, and col- burner and starting to boil over, perpetuating the growing lege athletes leveraged this. Emboldened and unified by sentiment of resentment and mistrust. As college foot- social media, they began to raise their voices on a litany of ball players came to realize they were not immune from health, safety, economic, academic, eligibility, and injus- the risk of unknown long-term and potentially fatal or tice issues. The PAC-12 coalition organized voices into a 3 career-threatening side effects, they faced a predicament: conference-wide chorus. #WeAreUnited quickly caught

28 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 fire, sparking a series of hashtag protests that flooded Navigating the Legal Landscape of College social media over the following weeks: #BigTenUnited, Athletes’ Rights #WeWantToPlay, #LetUsPlay, and even a collaboration of Labor Law: Unionization a collaboration: #WeAreUnited x #WeWantToPlay. Each hashtag represented an identifiable unit of players or con- Northwestern University ferences that united to express a cohesive message that The mere specter of college athletes unionizing is was published to social media with a list of its collective enough to rattle the world of college sports. Organized demands, or notice that they were prepared to boycott labor first became a credible threat in 2014, when the the season. These social media crusades highlight the Northwestern University football team, led by its star power of college athletes’ platforms and their readiness quarterback, Kain Colter, endeavored to form a union. to organize and utilize them in order to ignite change. The Northwestern campaign first gained traction when #WeAreUnited was an inflection point in college sports; FBS football players from separate teams agreed to wear it galvanized a full-blown student-athletes’ rights move- wrist tape with the hashtag #APU (“All Players United”) ment on social media. This unity, ironically, has reinvigo- during a televised game to bring awareness to concussion rated a divisive debate: can (and should) college athletes 9 safety issues. When a screenshot of this was posted to unionize? social media, the movement took off. As the conversation Before college athletes set out down that road, they over unionizing grew louder over social media and in the should tread lightly and use their end goal as their com- media, players became fired up, and enough members of pass. Unionization is not the desired destination; it is just the Northwestern team signed union cards to officially one of several legal pathways that could lead to addition- apply to the National Labor Relations Board (NLRB) to al economic, health, and other rights for college athletes: form a union.13 labor law, antitrust law, and legislation. The players’ objective in unionizing was not to get a salary, but to secure collective bargaining rights in order Historical Overview: Amateurism and the NCAA to bring the NCAA to the table; unionizing was merely a 14 The NCAA was formed by universities to keep play- means to this end. However, in order to have the right ers safe and the playing field even. Since its inception, to collectively bargain, the players would have to be the principle of “amateurism” has been the core of the classified as employees. Although the scholarship play- NCAA’s purpose. To that end, in drafting its inaugural ers successfully convinced the regional NLRB that they met the definition of “employee” within the meaning of bylaws and constitution, the NCAA promulgated several 15 rules intended to draw a line of demarcation between § 2(3) of the National Labor Relations Act (NLRA), their victory was short lived.16 In 2015, the NLRB vacated the student-athletes and professional athletes. These rules 17 required college athletes to be enrolled students and regional NLRB’s finding on appeal. The NLRB declined expressly prohibited them from receiving any compensa- to assert jurisdiction over the case on the rationale that tion.10 Until the 1950s, this prohibition included athletic college sports requires a “symbiotic relationship” be- scholarships as well. These “grants-in-aid” were allowed tween the teams within a sports league. The NLRB only to cover the costs of tuition, fees, books, housing, and has jurisdiction over private universities; public univer- meals. Additionally, schools were permitted to offer stu- sities, however, fall under the ambit of state law. In this dent-athletes a cash stipend for miscellaneous expenses case, since Northwestern was the only private university or “laundry money” until this was clawed back in 1976, in its conference, the panel ruled that establishing its own bargaining unit would not “promote stability” in labor which remained the case until 2015.11 relations within its conference or the larger ecosystem of The NCAA has continued to staunchly defend college football.18 the principles of amateurism, which has drawn mixed criticism as college athletics have become increasingly Possible Paths Forward Under Labor Law commercialized. The NCAA, a non-profit organization, By declining jurisdiction in Northwestern and punting has expanded into a behemoth enterprise, surpassing $1 on the classification of student-athletes as employees, the billion in revenue (not profits) by 2017.12 Through lucrative NLRB expressly left the door open to future attempts by broadcasting contracts, marketing, licensing, and ticket athletic scholarship recipients to unionize under a differ- sales, the NCAA, its member conferences, commissioners, ent set of facts.19 In light of Northwestern, legal scholars and schools—especially those with top tier FBS football have proposed that there are several possible paths for- and men’s basketball programs, and their coaches and ward under the umbrella of labor law:20 athletic staff have cleared millions of dollars in revenue, leading revenue-generating student-athletes to demand One path might be to define a different bargain- a piece of the pie. Over time, college athletes have looked ing unit; for example, a multi-school bargaining to the courts and Congress to push back on rules prohibit- unit within a conference that consists of a higher ing “pay for play” and procure various health and safety proportion of private universities would be less protections and benefits. likely to promote instability.

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 29 Another approach is to invoke the joint employer ted to join the bargaining unit, even if they are doctrine by arguing that, in addition to the in- revenue-generating athletes.24 It seems inherently dividual schools, the NCAA is a joint employer unjust to exclude athletes on the same team who of all schools. Theoretically, because the NCAA are already not receiving the same economic and would be a private employer, this would bring other benefits enjoyed by scholarship athletes. public schools within a mixed public-private Therefore, only scholarship FBS football and men’s school bargaining unit under the auspices of the basketball athletes would enjoy the right to have NLRB.21 However, this approach is not a slam their voices heard via collective bargaining, yet the dunk argument; the mixed bargaining unit raises overall impact is likely to adversely affect all other concerns of divergent interests and could impede student-athletes (non-revenue sports, all women an antitrust cause of action by triggering the non- athletes, and walk-ons). Finally, there could be di- statutory labor exemption (as discussed below). visiveness within teams even if the bargaining unit is limited to revenue-generating sports. Depending A third option to tackling public universities is to on how schools decide to allocate salaries, there bring statutory claims under state law, state-by- would likely be discrepancies between star players state. However, this would be a long road leading and others that could lead to conflict.25 to divergent results across the country; at least a few states, including Michigan and Ohio, express- Elimination of Entire Athletic Programs ly ban student-athletes from unionizing at state universities. While some of the top-tier Power 5 football schools may be able to afford to pay wages and concomi- Furthermore, if the NLRB determines that private tant increased costs, it is not economically feasible universities can unionize, public school athletes or desirable for many programs to enter into an may not need to bring a statutory claim to bring employment relationship with student-athletes. about change; schools would be incentivized to Numerous universities have expressly stated that voluntarily follow suit and mirror any incremen- they would abandon athletic scholarships, leave tal benefits achieved by unionized athletes in Division I (DI), or eliminate their athletic programs order to remain competitive in recruiting. altogether, altering the entire landscape of DI sports.26 Drawbacks of Unionizing Elimination of Non-Revenue Sports In order to unionize, student-athletes would first have to be legally classified as “employees.” Moving to Furthermore, because revenue-generating sports an employment model would create a seismic shift in the typically subsidize non-revenue sports, in some universe of college sports. Here are some chief pitfalls cases funding the entire athletic department, and hurdles raised by the organized labor route:22 reducing that revenue in order to pay football and men’s basketball players a salary combined with Fragmentation Among Schools/Conferences other increased costs of establishing an employ- The NLRA is the most straightforward path to ment relationship will cause many schools to drop unionizing, but it only applies to private schools. non-revenue sports.27 The landscape of unionized and non-unionized Tax Consequences schools would become lopsided, as approximately 80% of FBS football schools are public schools. Classifying student-athletes as “employees” could Further, the public schools would be fragmented result in the elimination of the university’s tax according to applicable state law.23 exemption, thereby reducing overall income. If a school loses tax-exempt status, it will have less Exclusion from Bargaining Units; Adverse Im- money to fund athletic programs, which could pact on Majority of Athletes. lead to cutting non-revenue sports or athletic Even within schools that successfully unionize programs that may no longer be viable altogether. there would be division. The majority of student- Student-athletes also risk converting their athletic athletes, including all women student-athletes, scholarships into taxable income, which could are non-revenue athletes. It is unlikely that rev- offset any benefits they ascertain by unionizing or enue-generating student-athletes would include “pay for play.”28 non-revenue sports in their bargaining unit, as Impact of Title IX Is Unclear their interests are not economically aligned. Ad- ditionally, Northwestern expressly held that only Title IX prohibits discrimination on the basis of scholarship athletes would meet the definition of sex in any federally funded education program or an “employee” because walk-on athletes do not activity.29 Presumably, if schools extend additional receive “payment,” and thus would not be permit- benefits to revenue-generating teams, they would

30 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 face increased costs in order to comply with Title letes will need to have a leader within teams and bargain- IX and many schools would not be able to com- ing units who is willing to tackle the logistical process ply.30 It is unclear how universities would imple- of organizing and forming a union, including funding, ment Title IX or if they would be able to afford obtaining legal counsel, and selecting a union representa- to comply. Compliance could operate as a 100% tive to negotiate on behalf of the bargaining unit. Unions payroll tax on athlete salaries, with 50% of the in- require additional administrative paperwork and dues as cremental compensation benefits being reallocated well. These may be offset by the benefits they negotiate, to women, which could potentially have a positive but they are worth noting. Finally, on the road to college impact on women athletes.31 However, revenue- athlete rights, successfully unionizing will not take them generating athletes are likely to resist sharing their all the way there; it will only bring them to the table. They revenue and push back on universities to come would still have to go through the bargaining process up with funding elsewhere. It is not certain how before they can enjoy additional rights. universities would apply Title IX and women may have to fight to re-level the playing field. Managing Union Conflict Aside from conflict resulting from the decision to Decrease in Benefits Due to Classification as go down the road to unionizing (i.e., between student- Employees athletes and their schools, coaches, athletic departments, Compensating student-athletes under any circum- conferences, alumni, student body, and public percep- stances will involve increased costs; but legally tion), unionizing will alter the dynamic of future conflicts classifying student-athletes as employees in order between the union and the school. Union conflict could to compensate them will lead to additional in- lead to university lockouts, labor strife, strikes, picketing, creased costs, including the costs of labor, insur- and social upheaval, leading to disgruntled athlete-em- ance, workers’ compensation, unemployment ployees and fans.34 benefits, medical care, costs, and taxes.32 To pay a student-athlete employee $100,000 would cost Roadblock to Antitrust Claims the school more than to pay a student-athlete Unionizing could trigger the “non-statutory labor non-employee the same $100,000. Stated differ- exemption”, which would preclude certain claims un- ently, if student-athletes are deemed employees, der antitrust law.35 It would behoove college athletes to the pot available to pay them will be smaller due preserve the broader ability to pursue antitrust law as an to increased costs of unionizing and moving to an avenue to economic rights, particularly for those college employment model, so they will be compensated athletes who will not be able to enjoy the same benefits of less and/or the increased costs would be passed unionizing (i.e., non-revenue, women, walk-on, and non- on to non-revenue and walk-on student-athletes as star athletes, as well as schools that do not unionize). well as all non-athletes. Some schools have pointed out that they would need to raise the cost of tuition Antitrust Law for the rest of the student body in order to pay athletes a salary.33 Some coaches have suggested Antitrust law is not a road to additional health and there could be a decrease in certain freedoms and safety rights, but it is the clearest path for college athletes privileges student-athletes currently enjoy that to challenge restrictions on compensation in the courts. they would not be compelled to offer to athlete- Two seminal cases have paved the way for college ath- employees, such as the freedom to travel home for letes to navigate the antitrust landscape. school breaks. Some top coaches have also indi- O’Bannon v. National Collegiate Athletic Association36 cated that they would leave if their schools went to a union model, which could lead to difficulties in In 2015 the Ninth Circuit addressed whether and how retaining top talent coaches and recruiting athletes college athletes should be compensated for the commer- who want to play for top coaches. cial use of their names, images, and likenesses (NIL). In O’Bannon, also known as the case that ended Electronic Logistical Roadblocks: Time and Cost Inefficiencies of Arts’s NCAA football video games, a former UCLA bas- Unionizing ketball player sued the NCAA after noticing that his im- Unionizing is certainly not a short cut to obtain- age and likeness was used as an avatar in a video game. ing additional rights. First, college athletes would need O’Bannon alleged that the NCAA and its conferences to fight for legal classification as employees in order to violated § 1 of the Sherman Act by conspiring “to fix the secure the right to collectively bargain, either through the price of former student athletes’ images at zero and . . . courts or legislatures? Although there may be a viable boycott former student athletes in the collegiate licensing 37 path under the NLRA for private schools, this will likely market.” be a longer road for public schools, which will need to The court held that the NCAA could not prohibit advocate on a state by state basis. Second, the unionizing schools from sharing licensing revenues with college ath- process itself presents logistical challenges. Student-ath-

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 31 letes in the form of scholarships tied to education-related rebuffed the opportunity to dismantle amateurism, pre- benefits up to the full value of the cost of attendance. The serving the distinction between professional and college court did not define what constitutes “education-related,” sports. Nevertheless, Alston/Jenkins further chipped away allowing schools latitude for interpretation. However, it at NCAA restraints on pay, giving student-athletes a bit expressly declined to broaden the holding beyond educa- more yardage. tion-related compensation on the grounds of amateurism, finding that payments in the form of cash untethered to Future of Antitrust Route educational benefits would turn the NCAA into minor Although the practical impact of O’Bannon and Alton/ 38 league sports. The immediate effect of the holding was Jenkins may not seem individually earth-shattering, the limited, in that it did not require schools to take any ac- significance lies in their collective broader implications. tions, it merely prohibited the NCAA from placing a ceil- First, they paved the way for NCAA rules to be subject ing lower than the cost of attendance, which the NCAA to antitrust scrutiny under the Sherman Act. They have had already removed earlier that year. Nevertheless, by made progress in striking down NCAA restrictions on holding that NCAA rules regarding student-athlete pay compensation tied to education; but more critically, they are subject to antitrust scrutiny, the O’Bannon decision could lead college athletes, directly or indirectly, to what was a step forward for student-athletes to procure “pay to is really at stake: continuing to erode NIL restrictions in play” and opened the gates to future change. order to access revenue derived from broadcasting college games and endorsements. It is worth noting that these Alston/Jenkins: In re NCAA Grant-in-Aid Cap Antitrust cases are only binding within the Ninth Circuit; students 39 Litigation v. NCAA in other circuits could sue and potentially get a differ- In 2014, former West Virginia University running ent result. Although the Supreme Court has previously back Shawne Alston filed a lawsuit against the NCAA, denied certiorari in these cases, a circuit split could change alleging that his athletic scholarship did not cover the full that, which means that the door is still open for additional cost of attendance (COA).40 Alston argued that NCAA change under antitrust law.43 rules that place a limit on compensation that schools could offer to student-athletes violated antitrust law Proposed Legislation under § 1 of the Sherman Act. In 2019, while Alston was still being litigated, a separate class action lawsuit was Student-athletes have largely taken to the courts to brought by former FBS football and men’s and wom- advocate for additional economic, health and other bene- en’s basketball players: Jenkins v. NCAA.41 Unlike both fits, but off this beaten path there is a parallel route that is O’Bannon and Alston, which sought to the recover for the likely to get them to their destination quicker: legislation. true cost of attending college by removing restrictions on NIL “Pay to Play” Laws education-related compensation, the plaintiffs in Jenkins sought to fully overturn NCAA rules limiting compensa- In response to college athletes’ vociferous demands tion, related to education or not. Stated otherwise, Jenkins for “pay to play” rights, several states began to pass or desired to create an entirely free labor market to pay introduce their own NIL bills that would strike down or college athletes, treating incoming college freshman no limit restrictions on compensating college athletes for differently than free agent professional athletes. use of their NIL. California,44 Colorado, and Florida have already passed bills into law, with Florida’s poised to be The U.S. Court of Appeals for the Ninth Circuit con- the first to take effect in July 2021. Last year, the NCAA solidated the two lawsuits on appeal into one of the larg- took a momentous step forward, announcing that it in- 42 est legal cases ever against the NCAA. The same judge tended to pass a new NIL policy; provided that the policy who decided O’Bannon went a step further in Alston/Jen- would be subject to guardrails to preserve a clear distinc- kins, holding that the NCAA could not limit schools from tion between college sports and professional leagues. As offering compensation tied to education at all. Put differ- part of the compromise, the NCAA proposes to include ently, O’Bannon raised the NCAA’s ceiling on educational an antitrust law exemption to insulate the NCAA from benefits to the full COA, but Alston/Jenkins removed the certain future antitrust lawsuits.45 Concerned that vary- ceiling on educational benefits completely. The decision ing state laws would result in a patchwork of inconsistent was upheld on appeal and the appellate court expressly legislation and create an uneven playing field among declined to expand the ruling to strike down NCAA pro- universities in different states, the NCAA and member hibitions on schools compensating athletes in ways that conferences sought congressional cooperation in passing are not tied to education. Similar to O’Bannon, the deci- uniform NIL legislation at the federal level. The hope is to sion does not require schools to offer student-athletes any preempt the state statutes by passing a federal law before additional compensation, but merely prohibits the NCAA July 2021.46 and conferences from conspiring to prevent schools from doing so to the extent the compensation is tied to educational benefits. Additionally, the court rejected the plaintiffs’ desire for a free agent market construct. It again

32 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 College Athletes’ Bill of Rights into the “College Athletes’ Bill of Rights,” which they The congressional hearings on NIL legislation took could construct in such a way that would give student- place during a tumultuous summer for college sports. athletes a mechanism to bargain for change more gener- With the NCAA already in the hotseat, the topic of the ally, similar to a trade association. This would not be a hearings invariably turned to issues arising out of the union, but it would be a more formal way to organize ongoing pandemic and return to fall sports. Spearheaded and “collectively bargain,” minus the adverse impacts of by Senators Cory Booker (NJ) and Richard Blumenthal moving to an employment model. A more limited form 49 (CT), both former college athletes, a group of senators has of collective bargaining has support from legal scholars 50 called for a “College Athletes’ Bill of Rights” to be includ- as well as some college sports insiders. This balanced ed within the NIL legislation. In August they unveiled approach would promote a more even playing field than a framework for sweeping reforms that included many moving to a unionization model, while also preserving items that also appeared on the #WeAreUnited players’ some principles of amateurism by not paying student-ath- list, such as guaranteeing NCAA players monetary com- letes a salary. Although the NCAA would not be legally pensation, long-term health care, lifetime scholarships, obligated to bargain in the same way they would with a and uplifting eligibility restrictions.47 If passed, the pro- union, they would nevertheless be incentivized to bar- posed legislation would significantly alter the landscape gain because of the opportunity cost of not coming to the of NCAA sports. table: the looming specter of unionization. In fact, there is a name for this research-backed pressure tactic where employers who face a credible threat of unionization offer College Sports at a Crossroads: Which Way from more benefits to employees: it is known as the “union Here? substitution effect.”51 Northwestern football players may There are several ways to get to the finish line, but is not have “succeeded” in their endeavor to unionize, but unionizing the best route? While there is a roadmap for they remain an instructive as a case in point. Merely go- a possible path forward, college athletes should proceed ing down the road of unionizing shook the college sports with caution before they go speeding down that road. world enough to bring about significant changes within Moving to an employment model is not the best way to the Power Five conferences and the NCAA.52 The tactic get there. In fact, it could be counterproductive to their has proven effective in spurring action not only with the best strategies. NCAA, but schools and lawmakers have responded with alacrity as well. During the Northwestern bid, UConn Unionization is an uphill legal battle and the terrain Final Four MVP Shabazz Napier commented to reporters will not be traversable for most college athletes (it will that he goes to bed “starving at night,” prompting state likely remain closed off to public schools, non-revenue legislatures to explore the possibility of student-athletes athletes, all women athletes, and walk-on athletes, all of unionizing the NCAA. Shortly thereafter, the university whom would not have a seat at the table). While it may and the NCAA passed rules that would allow all athletes be beneficial for revenue-generating athletes, on balance unlimited meal plans and snacks.53 it will likely have an adverse impact on far more college athletes than it helps. It is also not the quickest way to get Strength in numbers and a far-reaching platform are to the desired final destination; the right to collectively two key components of the college athletes’ campaign bargain will only take them halfway there—they still and Northwestern continues to be an illustrative example need to bargain when they get to the table. Furthermore, of how social media has combined these factors and can labor law could actually put them in the wrong direc- play a critical role in galvanizing a movement. We also tion. It could create an antitrust roadblock, and it would observed the paradox of how the threat of unionizing is behoove college athletes to keep that path viable. Ad- initially unifying, yet actually unionizing can be divisive. ditionally, taking labor law to the end of the road would In Northwestern, players were initially unified in their be counterproductive because it removes the single most plan to unionize and they had the most traction coming important weapon in the college athletes’ arsenal: the off their social media gambit, but sentiments shifted over threat of unionizing. the course of the year. As the team found itself pitted against its school, coaches, alumni, and the NCAA, and On balance, the best route to legal recourse is to pur- were confronted with some of the downsides to unioniz- sue antitrust and legislation in parallel. College athletes ing, the players became increasingly divided over wheth- have already made substantial progress down these roads er to go through with it, often among racial lines.54 By the and proposed legislation is expected to be passed within time the players took their final vote to unionize, a poll of the year. The architects of the currently proposed legisla- the room indicated that it was unlikely they had enough tion have acknowledged that college athletes themselves votes. The best way for college athletes to be a “union” is and their recent activism have been a catalyst in driving to remain united as a team. the proposed legislation, noting they have “stature” with lawmakers.48 These paths would result in less adverse 2020 is a watershed moment in college sports and we impacts on college sports overall. Lawmakers have al- are at a crossroads. There has never been a more oppor- ready proposed that an “oversight” mechanism be built tune time for college athletes to shift the status quo. In the

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 33 context of playing sports in the pandemic, they are faced 10. See W. Carter, The Age of Innocence: The First 25 Years of the National with putting their lives on the line because billions of dol- Collegiate Athletic Association, 1906 to 1931, 8 Vand. J. Ent. & Tech. L. 211 (2006). lars are at stake. Empowered by social protests, they have astutely leveraged a sympathetic public ear and power- 11. See Nicholas Ward & T. Ward Frampton, A Union of Amateurs: A Blueprint to Reshape Big-Time College Athletics, 60 Buff. L. Rev. 1003 ful platforms to amplify their voices. Using social media (2012) at 1012-1015; Marc Edelman, The Future of Amateurism after to ratchet up pressure on the NCAA has been a game Antitrust Scrutiny: Why a Win for the Plaintiffs in the NCAA Student- changer that is moving the spread in favor of college Athlete Name & Likeness Licensing Litigation Will Not Lead to the athletes. College athletes already possess everything they Demise of College Sports, 92 Or. L. Rev. 1019 (2014). need to extract at least some of their demands; they don’t 12. See Scooby Axson, NCAA Reports $1.1 Billion in Revenues, Sports Illustrated, (Mar. 7, 2018), available at https://www.si.com/ need a union—they just need a roadmap. college/2018/03/07/ncaa-1-billion-revenue. Note that the NCAA does not retain all of the revenue that flows through it as it makes Hindsight is indeed proving to be 20/20, as North- massive distributions to member universities. western’s “failure” to unionize was probably a win for all 13. See Joe Nocera & Ben Strauss, Fate of the Union: How Northwestern of college sports. The threat of unionizing is more pow- Football Union Nearly Came to Be, Sports Illustrated, Feb. 24, 2016, erful than actually unionizing. Northwestern propped available at https://www.si.com/college/2016/02/24/ the door open for college athletes to go down the road northwestern-union-case-book-indentured (adapted from Nocera of unionizing, but the best thing college athletes can do & Strauss, Indentured: The Inside Story of the Rebellion Against the NCAA (Penguin Random House 2016). to get to the benefits for which they hope to bargain is to keep the door propped open—and not walk through it. 14. See Joe Nocera, Unionized College Athletes? N.Y. Times, Jan. 14, 2014, available at https://www.nytimes.com/2014/02/01/opinion/ nocera-unionized-college-athletes.html?hp&rref=opinion. Endnotes 15. 29 U.S.C. § 152. 16. Nw. Univ. v. Coll. Athletes Players Ass’n (CAPA), No. 13-RC- 121359 1. See Players of the Pac-12, #WeAreUnited, Players Trib., Aug. 2, (N.L.R.B. Region 13 Mar. 26, 2014), vacated, Nw. Univ. v. CAPA 2020, available at https://www.theplayerstribune.com/en-us/ (Northwestern), 362 N.L.R.B. No. 167 (Aug. 17, 2015) articles/pac-12-players-COVID -19-statement-football-season. 17. Northwestern, 362 N.L.R.B. No. 167 (Aug. 17, 2015). 2. The Power 5 includes the PAC-12, SEC, ACC, Big Ten, and Big 12 conferences. 18. Id. 3. See Angelica LoVito, Dangerous COVID Complication Casts a Shadow 19. Id., at 6. Over College Sports, Bloomberg, Aug. 13, 2020, available at https:// 20. See, e.g., Steven L. Willborn, College Athletes as Employees: An www.bloomberg.com/news/articles/2020-08-13/dangerous- Overflowing Quiver, 69 U. Miami L. Rev. 6; Marc Edelman, The COVID -complication-casts-a-shadow-over-college-sports Future of College Athlete Players Unions: Lessons Learned from (discussing how numerous college athletes who had contracted Northwestern University and Potential Next Steps in the College COVID-19 developed a potentially fatal heart condition); see also Athletes’ Rights Movement, 38 Cardozo L. Rev. 1627 (2017). Paula Lavigne and Mark Schlabach, NCAA Medical Advisers Urge Focus on Pandemic Over Fall Sports, ESPN, Aug. 13, 2020, available at 21. See Edelman, supra note 21, at 1649-51; Jay Lonick, Bargaining with https://www.espn.com/college-sports/story/_/id/29653444/ the Real Boss: How the Joint-Employer Doctrine Can Expand Student- ncaa-medical-advisers-urge-focus-pandemic-fall-sports. Athlete Unionization to the NCAA as an Employer, 15 Va. Sports & Ent. L.J. 135 (2015). 4. The use of the term “revenue-generating” to modify “sports” and “athletes” throughout this Article refers to FBS football and men’s 22. Unionizing college athletes also raises significant concerns from a basketball. See Robert A. McCormick & Amy Christian fairness and policy perspective, but it is beyond the scope of this McCormick, The Myth of the Student-Athlete: The College Athlete as article to offer a complete discussion on this. See, e.g., Dr. Frank J. Employee, 81 Wash. L. Rev. 71, 72, 75 (2006) (discussing rationale for Cavico et al., Unionization and College Athletics: An Emerging Legal, treating football and men’s basketball differently than other Ethical, and Practical Quandary, 4 Mgmt. & Admin. Sci. Rev. 1 college sports). (2015). 5. See NCAA Demographics Database, available at https://www.ncaa. 23. See Michael H. LeRoy, Courts and the Future of Athletic Labor in org/about/resources/research/ncaa-demographics-database. College Sports, 57 Ariz. L. Rev. 476, 504 (2015). 6. See Robert A. McCormick & Amy Christian McCormick, Major 24. Northwestern, 362 N.L.R.B. No. 167 at 1364. College Sports: A Modern Apartheid, 12 Tex. Rev. of Ent. & Sports L. 1 25. See Cavico et al., supra note 23, at 15-16 (discussing adverse impact (2010). on non-star revenue-generating athletes as well as non-revenue 7. For example, in 2015 Missouri football players boycotted over the athletes). school’s handling of racist incidents until the university’s president 26. See Edelman, supra note 21, at 1634 (leaders of higher education stepped down. and former presidents of Princeton University and Macalester 8. An outpouring of racial issues were highlighted in a matter of College note that some schools will abandon college sports weeks, for example: two Clemson football players organized a altogether); Patrick Svitek, Bienen: Schools Could Leave Division I protest against police brutality; a Florida State player called out his Football Over Union Ruling, Daily Nw., April 8, 2014, available at coach and threatened to sit out in protest; Mississippi State players https://dailynorthwestern.com/2014/04/08/campus/bienen- threatened to boycott until a confederate symbol was removed schools-could-leave-division-i-football-over-union-ruling/ (former from the state flag; and a coach was fired at Iowa after former Northwestern University president testified and commented that athletes accused him of a pattern of racist remarks. universities like Northwestern might leave Division I if college teams were to successfully unionize); Nocera & Strauss, supra note 9. It is beyond the scope of this article discuss the threshold issue 14 (Stanford University president testified in Congress that the over whether and to what extent student-athletes should be school would look for a new way to its sports programs if compensated. Rather, this article focuses on the reality that topic of college athletes unionized). unionization will continue to rear its head as college athletes strive to procure additional economic, health, and other rights.

34 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 27. See Cavico et al., supra note 23; see also Kristi Dosh, The Problems available at https://www.si.com/college/2016/10/03/ed- With Paying College Athletes, Forbes, June 9, 2011, available at obannon-ncaa-lawsuit-supreme-court. https://www.forbes.com/sites/sportsmoney/2011/06/09/the- 44. S.B.-206, 2019-2020 Leg. Sess. (Cal. 2019). problems-with-paying-college-athletes/#647660485f7c (illustrating the financial and other difficulties posed by paying student- 45. See Dan Murphy, Appeals Court Upholds Ruling that Colleges Can Pay athletes a salary, citing many schools, including top programs, that for All NCAA Athletes’ Education Expenses, ESPN, May 18, 2020, would not be able to balance a budget); Dave Johnson, Former available at https://www.espn.com/college-sports/story/_/ Phoebus Running Back Shawne Alston Hopes to Make Things Right for id/29191519/appeals-court-upholds-ruling-colleges-pay-all-ncaa- College Athletes, Daily Press, Apr. 26, 2014 (noting that for many athletes-education-expenses (describing the proposed policy). schools increasing compensation to “make things right” for 46. See Dan Murphy, Florida Name, Image, Likeness Bill Now a Law; State student-athletes may not be affordable and many programs will Athletes Can Profit from Endorsements Next Summer, ESPN, June 12, need to shut down). 2020, available at https://www.espn.com/college-sports/story/_/ 28. See John R. Thelin, Here’s Why We Shouldn’t Pay College Athletes, id/29302748/florida-name-image-likeness-bill-now-law-meaning- Money.com, Mar. 1, 2016, available at https://money.com/why-we- state-athletes-profit-endorsements-next-summer. shouldnt-pay-college-athletes/ (illustrating how college athletes 47. Dan Murphy, US Senators Lay Out Framework for Future College would become worse off than because scholarships would be Sports Legislation, ESPN, Aug. 13, 2020, https://www.espn.com/ taxable income); Lonick, supra note 22; Thomas R. Hurst & J. Grier college-sports/story/_/id/29651474/senators-lay-framework- Pressly III, Payment of Student-Athletes: Legal & Practical Obstacles, 7 future-college-sports-legislation (hereinafter, Murphy, Senators Vill. Sports & Ent. L.J. 55, 73-75 (2000); Darren Rovell, Players Could Framework); Ross Dellanger, Senators Announce Proposal for Get Big Tax Bill, ESPN, Mar. 27, 2014, http://www.espn.com/ ‘College Athletes Bill of Rights’, Sports Illustrated, Aug. 13, 2020, espn/print?id=10683398; but see Marc Edelman, From Student- available at https://www.si.com/college/2020/08/13/senators- Athletes to Employee-Athletes: Why a “Pay for Play” Model of College announce-college-athletes-bill-of-rights-proposal. Sports Would Not Necessarily Make Educational Scholarships Taxable, 58 B.C.L. Rev. 1137 (2017) (arguing that unionizing might not lead 48. See Murphy, Senators Framework, supra note 48 (noting multiple to loss of tax-exempt status). senators who have attributed recent player-led movements to demand similar rights with generating interest among their peers 29. Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 in Congress); see also Billy Witz, Democratic Senators Suggest Bill of et seq. See U.S. Department of Education, Requirements Under Rights for College athletes, N.Y. Times, Aug. 13, 2020, available at Title IX of the Education Amendments Act of 1972, available at https://www.nytimes.com/2020/08/13/sports/ncaa-senate- https://www2.ed.gov/about/offices/list/ocr/docs/interath. athletes-bill-of-rights.html (also crediting college athletes with html. using their voices to stimulate change, citing #WeAreUnited as a 30. See Lonick, supra note 22; Todd Cherry, Declining Jurisdiction: Why recent example). Unionization should Not be the Ultimate Goal for Collegiate Athletes, 16 49. See Michael H. LeRoy, An Invisible Union for an Invisible Labor U. Ill. L. Rev. 1937, Part III A, 1968 (2016); Maureen Weston, Market: College Football and the Union Substitution Effect, 2012 Wisc. Gamechanger: NCAA Student-Athlete Likeness, 3 Miss. Sports L. Rev. L. Rev. 1077 (2012). 78, 80 (2013); Kristi Dosh, How Title IX Relates to Paying Players, Bus. of Coll. Sports, June 9, 2011, available at https:// 50. See David M. Hale, Clemson’s Trevor Lawrence, Darien Rencher: We businessofcollegesports.com/2011/06/09/how-title-ix-relates-to- Want to Play and Bring About Change, ESPN, Aug. 10, 2020, available paying-players/; Hurst & Pressly, supra note 22, at 71-72. at https://www.espn.com/college-football/story/_/ id/29636122/clemson-trevor-lawrence-darien-rencher-want-play- 31. See David A. Grenardo, The Duke Model: A Performance-Based bring-change (quoting head coach of FBS football powerhouse Solution for Compensating College Athletes, 83 Brook. L. Rev. 157, Clemson University supporting the idea of a college football 201-03 (2017). players’ trade association, as distinguished from a union). 32. See Cavico et al., supra note 23; Nocera & Strauss, supra note 14. 51. See LeRoy, supra note 50. 33. See Johnson, supra note 28. 52. See Nocera & Strauss, supra note 14 (noting the changes that 34. See Cavico et al., supra note 23. resulted from Northwestern because the NCAA and schools were “practically tripping over themselves” to do better by student- Brown v. Pro Football, Inc. See 35. , 518 U.S. 231, 233-38 (1996). Edelman, athletes). supra note 21, at 1655; Daniel E. Lazaroff, An Antitrust Exemption for the NCAA: Sound Policy or Letting the Fox Loose in the Henhouse, 53. See Johnson, supra note 28. 41 Pepp. L. Rev. 229, 247 (2014); Ronald Terk Sia, Clarett v. National 54. See Nocera & Strauss, supra note 14. Football League: Defining the Non-Statutory Labor Exception to Antitrust Law as it Pertains to Restraints Primarily Focused in Labor Markets and Restraints Primarily Focused in Business Markets, 4 Univ. Denise Mazzeo is a corporate attorney and sports of N.Hamp. L. Rev. 155 (2005). law enthusiast. Her love for sports and sports law stems 36. O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. from her own background as an athlete—running is her 2015), cert. denied, 137 S. Ct. 277 (2016). avocation. A competitive runner since 8 years old, she 37. Id. has firsthand insight in the world of DI college sports. 38. Id. She earned her undergraduate degree from Villanova 39. In re NCAA Ath. Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d University and her law degree from Fordham Law 1058, 1098 (N.D. Cal. 2019). School, where she was an editor on the Fordham Law 40. See Johnson, supra note 28. Review. She continues to train and compete in track and 41. Jenkins v. Nat’l Collegiate Athletic Ass’n, 311 F.R.D. 532 (N.D. Cal. field and road racing while practicing law in New York 2015). City. 42. In re NCAA Ath. Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058, 1098 (N.D. Cal. 2019). 43. See Michael McCann, In Denying O’Bannon Case, Court Leaves Future of Amateurism in Limbo, Sports Illustrated, Oct. 3, 2016,

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 35 Photojournalism and Drones in New York City: Recent Legal Issues By Robert Roth

Introduction images of the burials using Drones are becoming an important piece of equip- Unmanned Aircraft Sys- ment used by photojournalists much in the same way as tems (commonly known as the laptop and cellphone did a few years ago. Using a drones or UAVs) equipped camera-mounted drone in New York City, however, can with cameras. Two were subject the photographer to some special statutory and arrested and had their regulatory requirements that should be considered by drones seized by officers of counsel to media outlets and journalists. the New York City Police Department. This article explores the legal issues Background surrounding the charges In the early part of 2020, the coronavirus pandemic filed against them as well as struck New York City. Many people became ill, hospi- other laws, rules, and regu- tals were filled to capacity, and patients began dying at lations of which attorneys high rates. Among these deaths, tragically, were indigent should be mindful. people with no one to arrange their burials. New York City has been handling the problem of Analysis unclaimed dead for many years1 by burying the de- sought to depict the burials with a close-up ceased in City Cemetery, commonly known as Potter’s photograph shown on p. 37 that was taken from a van- Field, located on Hart Island. However, as the death rate tage point above a mass grave and the workers engaged increased, news coverage began focusing on the inter- in the burials. The only way this image could have been ments. In April, four photojournalists set out to capture obtained would have been from a low-flying helicopter

36 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 or drone. In its article,2 the publication declared, “New Both Minchillo and Jackson were able to do their jobs, York City is burying its unclaimed and dead gather the news and bring it to the public through numer- at a rate of almost five times more than usual, as public ous outlets without any reaction from law enforcement. officials struggle to keep up with the staggering death toll Others, however, were not so fortunate. from the COVID-19 pandemic.” On April 9, 2020, Andrew Theodorakis, a photojour- nalist affiliated with Getty Images, captured the aerial view shown here of a mass grave partially filled on Hart Island with construction equipment nearby.5

Theodorarkis was arrested by the police after taking the pictures and charged with violating § 10-126 (c) of Of the picture shown here, Gothamist said, “On Thurs- the New York City Administrative Code, a misdemeanor. day morning [April 2, 2020], an AP photographer [John Five days later, another photojournalist, George Stein- Minchillo] captured city workers on Hart Island burying metz, “tried to document the mass burials by flying a bodies in a mass grave.”3 drone from a City Island parking lot, a half mile across the Long Island Sound.”6 In a New York Times opinion piece,4 Sarah Elizabeth Lewis, a professor of art history at Harvard, said, “There City Island is a small,l 230-acre island located off the southeastern tip of the New York City borough of the are, to be sure, many extraordinary, intrepid photogra- 7 phers documenting the pandemic. . .” One of images Bronx. It is the closest land mass to Hart Island, which making this point was a dramatic overhead view of the is directly east on the Long Island Sound. Hart Island is burial process taken via a drone-mounted camera by the reachable only by boat and the only authorized boats are photojournalist Lucas Jackson of Reuters. those belonging to the city’s Department of Corrections, which administers the island. The Department grants very infrequent media access.

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 37 Legal Issues and Analysis The policy of the New York City Government is succinctly spelled out in its official website. On the page entitled “Drones,”12 the city declares: “Call 911 to report a drone in use in New York City.” By way of appar- ent explanation, it adds, “Drones are more formally known as unmanned aerial vehicles (UAV). It is illegal to fly them in New York City.”13

A satellite view showing the positions of Hart Island, City Island, and the Bronx from Maps8 In point of fact, while the regulations of the Fed- A few minutes later, “Steinmetz said that a group of eral Aviation Administration may speak to the actual fly- 14 plainclothes NYPD officers emerged from an unmarked ing of drones within the city and elsewhere, the statute van, and asked him to bring the drone back.”9 Then, the in question does not. It speaks of takeoffs and landings, an police “confiscated his $1,500 drone and issued him a mis- important distinction. (For purposes of this article it will demeanor summons ‘for avigation,’ a law that dates back be assumed that photojournalism using a drone is done to 1948 that prohibits aircraft—including drones—from for business and therefore requires an FAA remote pilot taking off or landing anywhere in New York City that certificate with a small UAS rating.) 10 isn’t an airport.” Both Steinmetz and Theodorakis were charged with He later posted the image below on his Instagram ac- violating Subdivision c of § 10-126 of the New York City count11 with a brief narrative of the event. Administrative Code. This statute is entitled “Avigation In And Over The City” and is key to the prosecutions and merits an extensive discussion. Section 10-126 was passed in 1948 and because of its 72-year age has been called “antiquated” in news coverage of the arrests.15 Further, it is argued, in 1948 the City Council could not have anticipated that drones would come into exis- tence. Both of these arguments seem specious. The First Amendment was rati- fied in 179116 and codified within it the Freedom of the Press. It is gener- ally accepted today that this right does not apply solely to the technol- ogy available in the 18th century, the hand-operated printing press. Over more than 200 years it has become commonly agreed that this right in- cludes new and evolving technology from radio to television, movies, the , podcasts, mobile devices, and apps, just to name a few. As the Imperial War Museum notes, “The first pilotless vehicles

38 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 were built during the First World War. These early to confirm a Remote Pilot Certificate in his name with a models were launched by catapult or flown using radio rating of Small Unmanned Aircraft System.) control.”17 To cite a later example: “The Queen Bee was devised as a low-cost radio-controlled target aircraft, Part of the problem may be that pilots—including for realistic anti-aircraft (AA) gunnery training . . . . drone pilots—look to the FAA for guidance on where The Queen Bee was first flown, manned, at Hatfield in and when they can fly. Further, the FAA data included in 1935, then remotely-controlled at Farnborough later that charts then made available via various websites and apps year.”18 does not take into account local ordinances. For example, this is the image portrayed by one such website, Airmap, Thirteen years later, the City Council passed § 10-126. of the area around City Island and Hart Island:28 Against this background, the very first part of subdivision a defined “aircraft” as “Any contrivance, now or hereafter invented for avigation or flight in the air, including a captive bal- loon, except a parachute or other contrivance designed for use, and carried primarily as safety equipment.”19 It does not re- quire a great leap of faith to be- lieve that the Council imagined that radio-controlled aircraft would become smaller in size or that entirely different kinds of aircraft would be invented. The definition of “avigate” is given as: “To pilot, The dark blue section to the west (left side) shows steer, direct, fly or manage an aircraft in or through the the area where flying a drone would be prohibited, as it air, whether controlled from the ground or otherwise.”20 is in controlled airspace. Almost all of City Island, the This word may be uncommon today for lay people, but entire Hart Island, and the water between them are not its existence in the law is well established in such terms as shown to have such restrictions. Thus, even a “licensed “avigation easement.”21 The definition of “place of land- drone pilot” might assume that flying between these two ing” is: “Any authorized airport, aircraft landing site, sky islands is permitted. However, the charts do not consid- port or seaplane base in the port of New York or in the er the New York City laws and other FAA Regulations. 22 limits of the city.” Returning to the April cases, if the takeoff and land- We then reach the key portion of the statute under ing prohibitions of § 10-126 did not exist, would the which the two photojournalists were charged: photojournalists have been able to take the same photo- graphs? Some FAA Regulations make this questionable. “c. Take offs and landings. It shall be Part 10729 covering Small Unmanned Aircraft Systems unlawful for any person avigating an has several provisions directly on point. The FAA pub- aircraft to take off or land, except in an lishes a summary of the key portions of this part.30 emergency, at any place within the limits of the city other than places of land- First to be considered is § 107.31 captioned Visual ing designated by the department of Line of Sight Aircraft Operation. It begins: “(a) With vi- transportation or the port of New York sion that is unaided by any device other than corrective authority.”23 lenses, the remote pilot in command, the visual observer (if one is used), and the person manipulating the flight City Island is not such a place. There appear to be control of the small unmanned aircraft system must only 11 such designated takeoff and landing places within be able to see the unmanned aircraft throughout the entire the city.24 Five other locations within three boroughs are flight. . . .” 31 designated as “model aircraft fields.”25 In other parts of the city many other municipal prohibitions apply. Using Google Maps, we measured the distance from the easternmost part of City Island to the westernmost Knowing of all these prohibitions, how do journalists part of Hart Island with an approximation of 3,200 feet.32 wind up in these legal predicaments? After all, the New York Post said that Steinmetz, “has an FAA license to fly a drone.”26 (The FAA Airmen Inquiry Database27 appears

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 39 § 107.31—Visual line of sight aircraft operation and § 107.39—Operation over people. In fact, the FAA has published documents from a UAS Symposium; that could be helpful, “BVLOS [Be- yond Visual Line Of Sight] Waivers”37 and “How To Get an Ops Over People Waiver,”38 which provide details in applying. Another important provision that can come into play when journalists are arrested is § 107.23,39 which says: No person may: a.) Operate a small unmanned While this distance alone makes it difficult, if not aircraft system in a careless or impossible to see a tiny aircraft, in fact, the drone would reckless manner so as to endanger the life have to fly further inland to reach the cemetery for a total or property of another. distance of approximately one mile. Consequently, a vio- lation of § 107.31 might conceivably be charged. This provision mirrors one in the General Operating and Flight Rules,40 which can be used as the basis of an In addition, § 10-126 of the Administrative Code, FAA enforcement action against certificate holders (pilots). Paragraph 3 (f) provides: “Air traffic rules. It shall be unlawful for any person to navigate an aircraft within The New York City statute goes further: the limits of the city in any manner prohibited by any e. Dangerous or reckless operation or aviga- provision of, or contrary to the rules and regulations of, tion. It shall be unlawful for any person to the federal aviation administration.” The city is thereby operate or avigate an aircraft in a careless claiming the right to prosecute individuals for what it or reckless manner so as to endanger life or believes are violations of FAA regulations. property of another. In any proceeding or Other FAA Regulations may also come into play. For action charging careless or reckless opera- example, § 107.39, states: tion or avigation of aircraft in violation of this section, the court, in determining Operation Over Human Beings whether the operation or avigation was careless or reckless, shall consider the No person may operate a small un- standards for safe operation or avigation manned aircraft over a human being of aircraft prescribed by federal statutes unless that human being is: or regulations governing aeronautics.41 (a) Directly participating in the operation A major issue with both paragraphs e and f is that in of the small unmanned aircraft; or a prosecution charging either, it would require a crimi- (b) Located under a covered structure or nal court judge to interpret specialized federal regula- inside a stationary vehicle that can pro- tions that are rarely applicable to local prosecutions. It is vide reasonable protection from a falling noteworthy that neither Theodorakis nor Steinmetz were small unmanned aircraft.33 charged with this violation, but were instead charged under the “takeoffs and landing” prohibition,42 which is Some of the published images of the burials show still a misdemeanor.43 workers nearby, although not necessary 90 degrees below the drone camera. People can and do move and may come under the drone. The FAA actually set forth a pro- Other Issues with New York City Laws, Rules, and posal to modify this rule,34 but for now, it is still in effect, Regulations which means there is a chance for journalists to be cited Section 10-126 also says: “h. Rules and regulations. The for violating it. police commissioner is authorized to make such rules and If the New York City Avigation statute was not a con- regulations as the commissioner may deem necessary to enforce the provisions of this section.”44 A review of the sideration, the FAA allows waivers of certain of its own 45 restrictions as provided in § 107.200.35 In the List of [nine] New York Police Departments (NYPD) Regulations, Regulations Subject to Waiver36 are two that would have however, has not found any such rules. It is conceivable been applicable in the incidents discussed previously, that the Department may promulgate some in the future.

40 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 In the meantime, journalists who cover “spot or the visual observer (if one is used), and the person manip- “breaking” news, generally carry Press Cards issued by ulating the flight control of the small unmanned aircraft the NYPD’s Deputy Commissioner, Public Information system must be able to see the unmanned aircraft throughout pursuant to its own regulations.46 At least one lawsuit47 the entire flight . . . .”55 alleges that the NYPD routinely confiscates and suspends press credentials of journalists who are arrested, espe- The intent of this bill is to liberalize and modernize cially if the arrest occurred while covering a story. The the avigation law. However, this provision, if enacted, NYPD has proposed changes to these rules,48 which, if would still likely prohibit the very conduct that caused enacted, would formalize this process by providing writ- the two arrests discussed above, that is, launching a drone ten grounds for this practice in the following rule: on City Island and flying it to and over Hart Island. §11-11 As of this writing, the bill has only three sponsors (b) Summary Suspension (out of 51 Council members) and has not yet had a com- mittee hearing. While there have been some challenges to (1) The Deputy Commissioner, Public 56 Information may summarily suspend a local ordinances that touch upon aviation in other states, press credential that has been previously none are pending against § 10-126. issued based upon: (i) the press creden- tial holder’s lawful arrest based on the Selective Enforcement? press credential holder’s commission of a Were Steinmetz and Theodorakis arrested because 49 violation or crime; they were journalists covering the burials on Hart Island? While there are no reports that either Theodorakis or Were they charged because they used drones in their Steinmetz had their credentials taken away, this process photojournalism? Have other drone operators come to the presents an additional risk to journalists who wish to use attention of the police and not been arrested? drones for photography in New York City. Criminal Procedure Law Section 140.10 says ”. . . The New York City Department of Parks and Rec- a police officer may arrest a person for: . . . (b) A crime reation has rules50 that can be read as prohibiting flying when he or she has reasonable cause to believe that such in all but the five approved parks previously mentioned person has committed such crime, whether in his or her with penalties of a $500 fine or a misdemeanor charge. presence or otherwise.” Even recreational or model flying can carry a misdemean- A statement from Steinmetz implies that police of- 51 or charge as well: ficers watched him launch his drone and thus had rea- (2) No person shall engage in any toy sonable cause: “A few minutes after he launched a small or model aviation, model boating, model drone to survey what was happening on Hart Island, automobiling, [sic] or activity involving Steinmetz said that a group of plainclothes NYPD officers 57 other similar devices except at such times emerged from an unmarked van. . .” and at such places designated or main- Has the NYPD been aware of other drone videos of tained for such purposes. Violation of this New York City or Potter’s Field? paragraph constitutes a misdemeanor. A of the words “drone video New York City,” limited only to videos in the result, brings up Potential Legislation and Litigation nearly 2.7 million results: There is no provision in § 10-126 allowing for the city to waive any part of it. However, a bill was introduced two years ago in the City Council52 that would amend the law, most significantly to photojournalism, by provid- ing: “. . . a UAV may take off or land in a location where a UAV may be avigated legally, so long as such takeoff or landing does not pose an unreasonable risk of harm to persons or property.”53 This bill, if enacted, however, would also provide that a drone may not be operated, “(c) Outside the line of sight of the operator.”54 There is no definition of the term “outside the line of sight of the operator,” so it is not unreasonable to infer that a court would use the definition in FAA Regulation 107.31 “Visual Line of Sight Aircraft Operation” cited before, namely: “(a) With vision that is unaided by any device other than corrective lenses, the remote pilot in command,

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 41 One from the New York Daily News YouTube Channel families of the buried,”67 links to a video68 from 2018 cred- showing different parts of the city from the air58 is a good ited to the Hart Island Project founder Melinda Hunt that example. was unquestionably shot with a drone-mounted camera. It shows the graves as well as workers burying the dead. Nevertheless, reports of prosecutions for the aviga- The Hart Island Project is quite open about this, stating: tion law are difficult to find. In one of the more well- “In 2018, The Hart Island Project mapped the entire island known cases, on September 21, 2017, “An Army Black using a drone and embedded geotiffs into over 68,000 Hawk helicopter was struck by a drone at approximately profiles listed in the Traveling Cloud Museum.”69 500 feet over a residential neighborhood on Staten Island. The helicopter, based out of Fort Bragg, N.C., was in New That video is followed by a longer one70 that shows York City for the United Nations patrol.”59 the island but no people. It ends with credits, “Directed by Melinda Hunt, Cinematography by Daniel Herbert The drone operator, later identified as a recreational 60 and Parker Gyokeros.” At least one of these people would pilot named Vyacheslav Tantashov, operated a drone have launched and landed the drone used for the photog- off an area in southwest Brooklyn. The National Trans- 61 raphy, but we can find no article telling of an arrest of any portation Safety Board investigated and issued a report, of them. which put the blame squarely on him summarized as follows: Since all of the videos discussed are on publicly available websites whether YouTube, Vimeo or others, we The National Transportation Safety Board presume that the police are able to know of them and if determines the probable cause(s) of this they were looking to prosecute everyone for unauthor- incident to be: ized takeoffs and landings or unauthorized takeoffs and the failure of the sUAS pilot to see and landings for the purpose of photographing Hart Island, avoid the helicopter due to his intentional they might well have been able to meet the reasonable flight beyond visual line of sight. Con- cause requirement of Criminal Procedure Law 140.10. tributing to the incident was the sUAS In another interview, Steinmetz made a very strong pilot’s incomplete knowledge of the regu- claim about why he (and perhaps also Theodorakis) were lations and safe operating practices. arrested. He declared regarding his arrest for violating Nonetheless, we have been unable to locate any re- § 10-126: “It was a clear example of a law being used for port of him having been arrested. In another famous case petty press intimidation. It doesn’t look good to see the from 2016, reported: city’s poor treated like toxic waste.”71 A New Jersey man who accidentally flew That was on April 14, 2020. Twelve days earlier, a drone into the Empire State Building however, the Hart Island Project had made a recording was arrested on Thursday [February 4, described as, “Aerial video shows mass graves being dug 2016] after he asked security guards there and bodies being buried by inmates at an island cemetery for help retrieving it from a ledge on the in the midst of the COVID-19 emergency in New York.”72 famed skyscraper’s 36th floor, the police Another video purportedly shot on August 6, 2020 said. and also from the Hart Island Project appeared on the Sean Riddle, 27, of Jersey City, was ar- New York Post website the next day with the headline, rested shortly before 8 p.m. on Thursday “Drone video may show inmates burying coffins on on charges of reckless endangerment and NYC’s infamous Hart Island.”73 The Post’s coverage avigation in and over New York City, a began: “Disturbing new drone video shows a crew of charge the police apply in cases related to city inmates in protective gear burying coffins in a mass the navigation of an aircraft.62 grave on Hart Island—where the city says it may bury the mounting dead from the COVID-19 pandemic.”74 (It later Research turned up a few other incidents. On October was revealed that by the time Steinmetz and Theodora- 22, 2018, Swiss tourist Paolo Prosetti was arrested by the kis had shot their videos, the city was no longer using NYPD after his drone crashed into a midtown Manhattan inmates to work the burials.)75 building.63 However, reports are conflicting over whether he was charged with violating the avigation law.64 The Numerous videos shot in New York City with drone- New York Post also has a list of some other incidents in an mounted cameras have been published. Other videos article65 about the Blackhawk helicopter incident. showing Hart Island and its cemetery, along with burials, have also been released. Before the arrests of Steinmetz Are there published videos of Hart Island and Potters and Theodorakis, burials of alleged victims of COVID-19 field taken with drone-mounted cameras? Most assuredly. were also documented by video taken by unmanned 66 The Hart Island Project, which “. . . provides access to aerial system cameras. If the NYPD is attempting to chill information about the burials on Hart Island, tools and news coverage of burials by using the Avigation Law, it workshops for storytelling as well as personal support to

42 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 has not arrested the authors of several videos. Since these towing banners from or upon an aircraft over two cases have yet to be heard in criminal court, we will the limits of the city, or to drop advertising leave this argument to counsel for the defendants. matter in the form of pamphlets, circulars, or other objects from an aircraft over the limits of the city, or to use a loud speaker or other sound Conclusion device for advertising from an aircraft over Taking off or landing a drone in New York City with the limits of the city. Any person who employs the exceptions outlined above remains illegal. If photo- another to avigate an aircraft for advertising in journalist clients wish to create images or video using violation of this subdivision shall be guilty of a cameras mounted on unmanned aircraft systems, be violation hereof. aware of the particular and specific laws involving drone operation in New York City and advise accordingly. 2. Any person who employs, procures or induces another to operate, avigate, lend, lease or do- nate any aircraft as defined in this section for the purpose of advertising in violation of this New York City Administrative Code subdivision shall be guilty of a violation hereof. § 10-126 Avigation in and over the city. 3. The use of the name of any person or of any a. Definitions. When used in this section the follow- proprietor, vendor or exhibitor in connection ing words or terms shall mean or include: with such advertising shall be presumptive evidence that such advertising was conducted 1. “Aircraft.” Any contrivance, now or hereafter with his or her knowledge and consent. invented for avigation or flight in the air, in- cluding a captive balloon, except a parachute or e. Dangerous or reckless operation or avigation. It other contrivance designed for use, and carried shall be unlawful for any person to operate or primarily as safety equipment. avigate an aircraft either on the ground, on the wa- ter or in the air within the limits of the city while 2. ”Place of landing.” Any authorized airport, air- under the influence of intoxicating liquor, narcot- craft landing site, sky port or seaplane base in ics or other habit-forming drugs, or to operate or the port of New York or in the limits of the city. avigate an aircraft in a careless or reckless manner 3. ”Limits of the city.” The water, waterways and so as to endanger life or property of another. In land under the jurisdiction of the city and the any proceeding or action charging careless or reck- air space above same. less operation or avigation of aircraft in violation of this section, the court, in determining whether 4. ”Avigate.” To pilot, steer, direct, fly or manage the operation or avigation was careless or reckless, an aircraft in or through the air, whether con- shall consider the standards for safe operation or trolled from the ground or otherwise. avigation of aircraft prescribed by federal statutes 5. ”Congested area.” Any land terrain within the or regulations governing aeronautics. limits of the city. f. Air traffic rules. It shall be unlawful for any per- 6. ”Person.” A natural person, co-partnership, son to navigate an aircraft within the limits of the firm, company, association, joint stock associa- city in any manner prohibited by any provision tion, corporation or other like organization. of, or contrary to the rules and regulations of, the federal aviation administration. b. Parachuting. It shall be unlawful for any person to jump or leap from an aircraft in a parachute or any g. Reports. It shall be unlawful for the operator or other device within the limits of the city except in owner of an aircraft to fail to report to the police the event of imminent danger or while under of- department within ten hours a forced landing of ficial orders of any branch of the military service. aircraft within the limits of the city or an accident to an aircraft where personal injury, property dam- c. Take offs and landings. It shall be unlawful for age or serious damage to the aircraft is involved. any person avigating an aircraft to take off or land, except in an emergency, at any place within the h. Rules and regulations. The police commissioner is limits of the city other than places of landing des- authorized to make such rules and regulations as ignated by the department of transportation or the the commissioner may deem necessary to enforce port of New York authority. the provisions of this section. d. Advertising. i. Violations. Any person who violates any of the provisions of this section shall be guilty of a 1. It shall be unlawful for any person to use, suffer misdemeanor. or permit to be used advertising in the form of

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 43 Endnotes Downtown Manhattan/Wall St Heliport, Manhattan; 1. According to the New York City Council, “Hart Island was first East 34th Street Heliport, Manhattan; used by the City as a public cemetery in 1869 for the burial of Evers Seaplane Base, Bronx; (Approx. 2.5 miles to Hart Island) people who died indigent or whose bodies went unclaimed after John F. Kennedy International Airport, Queens; their death.” Hart Island: The City Cemetery, available at https:// LaGuardia Airport; Queens; council.nyc.gov/data/hart-island/. New York Skyports Inc. Seaplane Base, Manhattan; 2. Christopher Robbins, Sydney Pereira and Gwynne Hogan, WNYC, Mass Burials On Hart Island Increase Fivefold As COVID-19 NYPD Air Operations (Floyd Bennet Field) Heliport, Brooklyn; Death Toll Skyrockets, Gothamist, April 9, 2020, available at https:// One Police Plaza Heliport, Manhattan; gothamist.com/news/mass-burials-hart-island-increase-fivefold- Taylor Field at Fort Hamilton Heliport, Brooklyn; covid-19-death-toll-skyrockets. West 30th Street Heliport, Manhattan. 3. Id. 25. Model Aircraft Fields, Official Website of the New York City 4. Sarah Elizabeth Lewis, Where Are The Photos of People Dying of Department of Parks & Recreation, available at https://www. COVID?, available at https://www.nytimes.com/2020/05/01/ nycgovparks.org/facilities/modelaircraftfields (last visited July 16, opinion/coronavirus-photography.html. 2020) lists the following facilities: Calvert Vaux Park, Brooklyn, 5. Retrieved from Sarah Cascone, This Aerial Photographer Captured Marine Park, Brooklyn, Flushing Meadows Corona Park, Queens, Images of the Mass Burials on Hart Island. Then, the New York Police Forest Park, Queens, La Tourette Park (Greenbelt), Staten Island. Department Confiscated His Drone, available at https://news.artnet. 26. Moore and Balsamini, Op cit. com/art-world/nypd-confiscates-drone-hart-island- 27. https://amsrvs.registry.faa.gov/airmeninquiry/Main.aspx. 1838187?fbclid=IwAR2hnE-B7hiHE8I9tbPfmTQtrovo2JhFNSTTvi 28. Data generated at https://app.airmap.com/geo?40.847300,- QjLtgAcMiMoDKSVkOrnyk (an article that does not discuss this 73.786500,14.000000z. particular photojournalist). 29. 14 C.F.R. § 107.1 et seq. 6. Christopher Robbins, NYPD Seizes Drone Of Photojournalist Documenting Mass Burials On Hart Island, Gothamist, April 17, 30. https://www.faa.gov/uas/media/Part_107_Summary.pdf. 2020, available at https://gothamist.com/news/nypd-seizes- 31. 14 C.F.R. § 107.31. Emphasis added. drone-photojournalist-documenting-mass-burials-hart-island. 32. Google Maps, https://www.google.com/maps/@40.8518875,- 7. See, e.g., Rebecca Bengal, Exploring the ‘Nantucket of the Bronx,’ an 73.7791465,15z (calculated July 27, 2020). island of contradictions, Curbed, July 25, 2018, available at https:// 33. 14 C.F.R. § 107.39. ny.curbed.com/2018/7/25/17608346/city-island-hunters-avenue- 34. Operation of Small Unmanned Aircraft Systems Over People, A bronx-neighborhood. Proposed Rule by the Federal Aviation Administration on 02/13/2019, 8. https://www.google.com/maps/@40.8506251,- available at https://www.federalregister.gov/ 73.7826137,4317m/data=!3m1!1e3. documents/2019/02/13/2019-00732/operation-of-small- 9. Robbins, id. unmanned-aircraft-systems-over-people. 10. Id. 35. 14 C.F.R. § 107.200. 11. https://www.instagram.com/p/B-94zNbDti_/. 36. 14 C.F.R. § 107.205. 12. From The Official Website of the City of New York at https:// 37. https://www.faa.gov/uas/resources/events_calendar/ portal.311.nyc.gov/article/?kanumber=KA-01541. archive/2019_uas_symposium/media/How_To_Get_Approval_ 13. Id. (emphasis added). to_Fly_BVLOS-Part_107.pdf. 14. See 14 C.F.R. § 107. 38. https://www.faa.gov/uas/resources/events_calendar/ archive/2019_uas_symposium/media/How_to_Get_Ops_Over_ 15. Tina Moore and Dean Balsamini, NYPD Seizes Drone Documenting People_Waiver.pdf. Mass Hart Island Burials Amid Coronavirus, New York Post, April 18, 2020, available at https://nypost.com/2020/04/18/nypd- 39. 14 C.F.R. § 107.23. seizes-drone-documenting-mass-hart-island-burials-amid- 40. 14 C.F.R. § 91.13. coronavirus/. 41. Administrative Code § 10-126, supra (emphasis added). 16. https://www.archives.gov/founding-docs/bill-of-rights/how- 42. Administrative Code § 10-126 c, supra. did-it-happen. 43. Administrative Code § 10-126 i. 17. Imperial War Museum, A Brief History of Drones, January 30, 2018, 44. Administrative Code § 10-126 h. available at https://www.iwm.org.uk/ history/a-brief-history-of-drones. 45. 38 R.C.N.Y. §§ 1-01 et seq. 18. DeHavilland Aircraft Museum, de Havilland DH82B Queen Bee, 46. 38 R.C.N.Y. § 11-01. available at https://www.dehavillandmuseum.co.uk/aircraft/ 47. Nicholas v. Bratton, et al, 15-CV-9592 (JPO), (Southern District, NY). de-havilland-dh82b-queen-bee/. Emphasis added. 48. NYC Rules: Amendment of Rules for Suspension or Revocation of Press 19. Emphasis added. Credentials, July 14, 2020, available at https://rules.cityofnewyork. 20. § 10-126 a. 4. us/wp-content/uploads/2020/07/NYPD_Proposed_Suspension- or_Revocation_Press_Credentials.pdf 21. See, e.g., Ardell Adams, et al v. United States, 680 F.2d 746 (Fed. Cir., 1982) (“In this case, plaintiffs, owners of 27 tracts of land in the 49. Id. vicinity of Hill Air Force Base, Utah, allege the inverse 50. 56 R.C.N.Y. § 1-04 (e). condemnation by the United States of an avigation easement for the 51. 56 R.C.N.Y. § 1.04 (r) (2). interference with their properties caused by overflights of Air Force 52. Intro 403-2018, available at https://legistar.council.nyc.gov/ aircraft.”) or Suggested Template for Avigation Easements, Federal LegislationDetail.aspx?ID=3332220&GUID=67201453-3FA3-412A- Aviation Administration, available at https://www.faa.gov/ B199-EB64B3D6BE55&Options=ID%7CText%7C&Search=. airports/central/airports_resources/media/RPZeasement.pdf. 53. Id. at Section 4 (b). 22. § 10-126 a. 2. 54. Id. at Section 3 (c). 23. § 10-126 c. 55. 14 C.F.R. § 107.31 (emphasis added). 24. The following list was distilled from information at http://www. 56. See, e.g., Singer v. City of Newton, 284 F.Supp.3d 125 (D. Mass., 2017); city-data.com/airports/New-York.html: City of Burbank v. Lockheed Air Terminal Inc., 411 US 624 (1973). Corporate Park of Staten Island Heliport, Staten Island;

44 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 57. Christopher Robbins, NYPD Seizes Drone Of Photojournalist 71. Kara Murphy, Photographer Cited Had Drone Confiscated for Documenting Mass Burials On Hart Island, Gothamist, April 17, 2020, Documenting Hart Island Mass Burials, Digital Photography Review, available at https://gothamist.com/news/nypd-seizes-drone- April 16, 2020, available at https://www.dpreview.com/ photojournalist-documenting-mass-burials-hart-island. news/0697559238/photographer-cited-drone-documenting-hart- 58. New York Daily News, December 31, 2014, Drone Flight Through island-mass-burials-with-his-drone?fbclid=IwAR26ZAa_csTfXWB New York’s Five Boroughs, available at https://youtu.be/ 9v9oOtzL8x19tHNjHWNNZ9ADHyt-9-NM7gy6XqEzi_PM. Cz0cTurNpZE. 72. Jackie Vandinther, Drone Video Shows Inmates Digging Mass Burial 59. WABC-TV, September 22, 2017, Drone Hits Military Chopper Over Graves on New York’s Hart Island, CTV News, April 8, 2020, Staten Island, available at https://abc7ny.com/drone-hits-military- available at https://www.ctvnews.ca/world/drone-video-shows- chopper-over-staten-island/2443487/. inmates-digging-mass-burial-graves-on-new-york-s-hart- 60. Justin Zaremba, NJ Advance Media for NJ.com, Drone operator to island-1.4888134. blame for mid-air crash with Army helicopter, NTSB finds, available at 73. Julia Marsh and Jorge Fitz-Gibbon, Drone Video May Show Inmates https://www.nj.com/news/2017/12/drone_operator_caused_ Burying Coffins on NYC’s Infamous Hart Island, New York Post, April crash_with_army_helicopter_n.html. 7, 2020, available at https://nypost.com/2020/04/07/drone-video- 61. https://app.ntsb.gov/pdfgenerator/ReportGeneratorFile.ashx?Ev may-show-inmates-burying-coffins-on-nycs-hart-island/. entID=20170922X54600&AKey=1&RType=HTML&IType=IA. 74. Id. 62. Liam Stack, New Jersey Man Is Arrested After Drone Hits Empire State 75. Melissa Klein, NYC’s Potter’s Field Has Buried Nearly 900 People Building, N.Y. Times, February 5, 2016, available at https://www. During Coronavirus Outbreak. New York Post, June 27, 2020, available nytimes.com/2016/02/05/nyregion/new-jersey-man-is-arrested- at https://nypost.com/2020/06/27/nycs-potters-field-has-had- after-drone-hits-empire-state-building.html. nearly-900-burials-amid-coronavirus/: “By April 6, the city stopped 63. Associated Press, Tourist Arrested After Drone Crashes Into NYC using prisoners to bury the dead because of social-distancing High-Rise, October 22, 2018, available at https://apnews.com/0952b concerns. A private landscaping firm was instead hired for the grim 7c060b6469780c4baa3e667f8d8. task, at a cost of about $320,000 through May 22, City Hall said.” 64. ABC News, October 22, 2018: He Was Charged With Violating a City Robert Roth, an attorney in Brooklyn, is the only Administrative Code, available at https://abcnews.go.com/US/ swiss-man-arrested-crashing-drone-york-city-building/ member of the NYSBA Committee on Media Law who story?id=58671484; Associated Press, October 23, 2018: “A Swiss holds a valid New York City Press Card. Among the tourist accused of accidentally flying a drone into a midtown parts of his journalism career relevant to this article was Manhattan office tower has been arraigned on a misdemeanor his work on-air at Fox News Channel, where he was the criminal mischief charge,” available at https://apnews.com/ bf9c905efdd84a4aa9a25f5a09c6c7a8. Aviation Analyst. He also provided guest commentary 65. Danielle Furfaro, Larry Celona and Natalie Musumeci, Civilian on aviation for NBC News, ABC News and MSNBC, Drone Crashes Into Army Helicopter, New York Post, September 22, among others. Formerly a reporter and photographer 2017, available at https://nypost.com/2017/09/22/army- for United Press International, he still shoots news helicopter-hit-by-drone/. pictures and is a member and former trustee of the New 66. https://www.hartisland.net. York Press Photographers Association. He concentrates 67. https://www.hartisland.net/about. his legal practice on representing photojournalists and 68. Melinda Hunt, Traveling Cloud Museum, https://vimeo. com/298436874. reporters. More information is available at www.roth. 69. https://www.hartisland.net/about. nyc and he can be reached at [email protected]. Samuel 70. Loneliness in a Beautiful Place, https://vimeo.com/281536625. Dangremond, a third-year student at Fordham Law, pro- vided some research assistance for this article. CasePrepPlus NEW YORK STATE BAR ASSOCIATION Serving the legal profession and the community since 1876 Save time while keeping up to date on the most significant New York appellate decisions An exclusive member benefit, the CasePrepPlus service summarizes recent and significant New York appellate cases and is available for free to all NYSBA members. It includes weekly emails linked to fea- tured cases, as well as digital archives of each week’s summaries.

To access CasePrepPlus, visit www.nysba.org/caseprepplus.

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 45 PUBLICATIONS In The Arena: A Sports Law Handbook

Editors Elissa D. Hecker, Esq. David Krell, Esq.

As the world of professional athletics has become more competitive and the issues more complex, so has the need for more reliable representation in the field of sports law. Written by dozens of sports law attorneys and medical professionals, In the Arena: A Sports Law Handbook is a reflection of the multiple issues that face athletes and the attorneys who represent them. Included in this book are chapters on representing professional athletes, NCAA enforcement, advertising, sponsorship, intellectual property rights, doping, concussion-related issues, Title IX and dozens Book (4002) of useful appendices. eBook (4002E) NYSBA Members $65.00 Non-Members $80.00

ORDER ONLINE: NYSBA.ORG/PUBS | ORDER BY PHONE: 800.582.2452 Exit for a Better Start: How to Break a Commercial Lease By Tin-Fu (Tiffany) Tsai

When entering into a contract, it seems counterintui- Sublease tive to picture how it will end. It is important to prepare Another option that for this possibility in the negotiation process. Every relieves a tenant’s finan- contract not carefully thought out is a litigation waiting cial burden is to sublet the to happen, and the current COVID-19 pandemic is just premises to a subtenant. Es- one of the many uncertainties complicating the deal. For sentially, subletting a lease example, it is not uncommon for a commercial lease to will not release the tenant’s expand from a few years to decades. As a result, thinking obligations, since the tenant beforehand about how a lease may end is crucial, because remains on the lease and the terms of the lease may no longer match one’s business is liable for the subtenant’s strategy down the road. default. Similar to lease as- The once designated luxury shopping districts in signments, consent from the New York City, Midtown East and the Upper East Side landlord is usually required, of Manhattan, have become war zones as many high-end which could be withheld brands are litigating against their landlords to exit their unreasonably if not specified under the lease. leases. Valentino, the Italian fashion brand, and Venus Over Manhattan Gallery, once known as the “Grand Termination Right Central Terminal of the art world,” are just a few of the A termination right, which is usually granted to a well-known tenants that resorted to litigation. However, tenant with more leverage power, enables a tenant to exit litigation is not the only way to end a lease. Although the lease early without paying for the remainder of the an exit strategy should be customized for any lease, this term. It is not free of charge, as the tenant needs to satisfy article hopes to provide an overview of alternatives for certain conditions first, such as a minimum lease period, a tenants to consider prior either to entering into commer- triggering event, a prior notice, and recoupment of unam- cial leases and/or before resorting to litigation. ortized costs. Certain unamortized costs include free rent, brokerage commissions, legal costs, and buildout costs. Repurpose the Premises Further, the termination right often results in higher rent Though not an actual exit of a lease, repurposing the as compensation to the landlord for early termination. premises is a way for a tenant to align the lease with its Despite still having strings attached, a tenant may find current needs. While the overall demand for brick-and- the termination right a worthy avenue in which to retain mortar stores has decreased, there has been a growing a level of flexibility in response to future changes. need for warehouse space due to growth of e-commerce. Repurposing the premises may not be allowed when Lease Buyout there is a narrowly defined use provision under the lease. A lease buyout literally enables a tenant to buy an For example, if a lease specifies that the premises can only early way out. Often an expensive option, the price for a be used as a storefront, it will be a breach of the lease for lease buyout depends heavily on the rental market. In a other uses. Furthermore, a tenant should be mindful of soft market, a tenant may be able to walk away without the zoning law requirements to ensure compliance. emptying its pockets, as the landlord is more optimistic in re-letting the premises. Generally, the “break-up fee” Assignment would reflect the landlord’s cost of re-letting, the esti- The lease assignment is when a tenant transfers the mated vacancy period, the unamortized costs, and the re- entire lease or a portion of it to a new tenant. Most juris- maining lease term. A landlord’s development plan of the dictions favor free alienability and permit the tenant to premises also plays a crucial role in the dynamic of the assign if the lease is silent about assignments. If not speci- buyout negotiation. If the buyout matches a landlord’s fied, New York courts allow the landlord to withhold the plan at the time, such as one to repurpose the premises, it consent unreasonably or even without any reason at all. is more likely to be settled at a lower price. Generally, the lease articulates the logistics of the right of assignment where a landlord’s consent is re- Force Majeure and Similar Common Law quired. The financial qualification of the new tenant is Doctrines a common requirement to show the reasonableness of a In an extreme situation, such as the COVID-19 pan- landlord’s consent. demic, a tenant may have other options to excuse its lease

ORDER ONLINE: NYSBA.ORG/PUBS | ORDER BY PHONE: 800.582.2452 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 47 obligations. Force majeure, a clause that had not attracted Tenants may want to break the leases, but not the much attention until recently, has become a focal point as relationships or their bank accounts. Amongst all the un- a result of the global pandemic. If written in a contract, certainties that are outside of one’s control, the best policy the force majeure clause exempts a party’s contractual is to read the fine print and understand what options a obligation when it is disturbed by a triggering event tenant may have to excuse or to reduce its contractual ob- that is neither foreseeable nor within the party’s control. ligations. While repurposing the premises, subletting, and That said, whether a tenant can assert the force majeure lease assignment keep the current lease in place, there are clause to its advantage depends on the specific contrac- restrictions associated with these arrangements. The ter- tual language, which is narrowly construed by New York mination right and the lease buyout could be useful when courts. If a certain type of triggering event is not included the former is built into the lease and the latter is applied in the clause, New York courts usually conclude that it is under a landlord’s market. In rare cases, the tenants are intentionally excluded by the parties. Often, even when better off if the conditions are met under force majeure, the clause is in place, it benefits the landlord and not the other common law doctrines, and landlords’ defaults. In tenant. sum, different alternatives come with different price tags. With a good road map, one can find peace of mind. If no force majeure clause is available under a lease, a tenant can still resort to other common law principles As a bilingual international attorney fluent in to relieve its contractual obligations, such as impossibil- Mandarin Chinese and English with significant matters ity and frustration of purpose. A tenant should look out closed across the U.S. and Asia, Tiffany Tsai provides for provisions that waive common law defenses before legal expertise with a deep understanding of cultural raising those defenses against the landlord. For the nuances and business needs. Currently, she is the Dep- impossibility to apply, the party’s performance will only uty General Counsel of a New York-based real estate be excused if it is rendered objectively impossible by an development company, where she advises on various unforeseeable triggering event. For example, if a lease re- transactional and litigation matters. A Co-Chair of the quires a tenant to operate continuously, such tenant may EASL Section’s Pro Bono Committee, she is excited to argue for impossibility due to government orders limiting combine her passions in art and law by helping profes- the operation hours. Frustration of purpose applies when sionals in the creative world navigate legal issues and an unforeseeable triggering event frustrates the basis of use regulations to their advantage. This article previ- the contract and makes it pointless. For example, when a ously appeared on the EASL Blog. lease ties rent payments to the tenant’s profits, a reduction of business caused by governmental restrictions may war- rant a frustration of purpose defense. Again, New York courts interpret these doctrines narrowly and the asserted party bears the burden of proof. Still, many tenants, such as Valentino, are using them with hopes of terminating the lease or to reduce the rent payments. It may be too early to predict how those lawsuits will play out, but it is safe to say that the COVID-19 pandemic is likely to change how the courts view the issues.

The Landlord’s Default If a landlord has promised to have a certain type or percentage of occupancy threshold in a lease, commonly known as the co-tenancy provision, a tenant may have a way out upon the landlord’s violation of such provision. Often, a demonstration of economic harm is a prerequisite before a tenant can terminate its lease. An exclusive use provision can also be helpful for a tenant when its land- lord leases other spaces on the premises to the tenant’s competitors. In addition, a tenant has a right of quiet enjoyment, which guarantees an undisturbed possession of the premises, and it can invoke a constructive eviction claim when the landlord violates such right. For example, if a tenant is denied access to the premises, it may have a claim of constructive eviction.

48 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 From “Location, Location …” to “On Location”: Considerations in Using Your Client’s Home as a Film Location By Ethan Bordman

Earlier this year, I received a call from an individual Tax Incentives and whose family owns a summer camp, inquiring about how Locations: Credits, to offer the property as a location to movie productions Rebates and Refunds during its fall and winter vacancy. Over the years, I have No longer are films spoken with several real estate attorneys whose clients made exclusively in Hol- were contacted by production companies interested in us- lywood; now, they are ing clients’ homes as movie sets. If one receives a request frequently filmed on the to showcase a property in front of the camera, then there streets in front of our offices are several considerations that should happen behind the and homes. Before a pro- camera first. duction begins looking at your client’s property for The Money Could Be Tax Free the filming, it first chooses If your client is apprehensive in allowing a property the state where the shoot to be used as a location, you may choose to start by shar- will occur. When choosing ing the best news first. Money received from renting the a location for a shoot, producers consider factors such client’s home as a film location may be tax free, under as the setting for the screenplay, availability of the crew, federal tax rules, depending on several factors, such as access to sound stages, and costs of travel and lodging. length of use. Internal Revenue Code 26 U.S. Code § 280A However, their first priority is to reduce the cost of pro- titled “Disallowance of certain expenses in connection duction. According to Vans Stevenson, Senior Vice Presi- with business use of home, rental of vacation homes, etc.” dent State Government Affairs for the Motion Picture As- (g) “Special Rule for Certain Rental Use” states: sociation of America: “Incentives are the number one item that film finance and production companies look at when Notwithstanding any other provision they are trying to decide where to locate a production.”3 of this section or section 183, if a dwell- Stevenson also pointed out that labor costs and location ing unit is used during the taxable year are important, although he noted that most places can be by the taxpayer as a residence and such made to look like someplace else.4 One example is Battle: dwelling unit is actually rented for less Los Angeles. This film, about an alien invasion of Los than 15 days during the taxable year, then Angeles, was not filmed in that city or even in the state of (1) no deduction otherwise allowable un- California; nearly all of it was filmed in Shreveport and der this chapter because of the rental use Baton Rouge, .5 of such dwelling unit shall be allowed, and (2) the income derived from such use Production incentives in different states vary on for the taxable year shall not be included certain points. These include the type of incentive offered, in the gross income of such taxpayer qualifying expenditures, and whether a financial cap is under section 61.1 allocated to the incentive. The typical forms of incentives are tax credits, tax rebates, and refundable tax credits. A To abridge the above, the Internal Revenue Service state can issue a tax credit to refund a portion of the tax states under “Minimal Rental Use” “[t]here’s a special incurred by a production in the state. A tax rebate pays rule if you use a dwelling unit as a residence and rent it cash, in the form of a check, to a production for certain for fewer than 15 days. In this case, don’t report any of expenditures made in the state. A refundable tax credit the rental income and don’t deduct any expenses as rental is paid by the state to the production for the balance in expenses.”2 Of course, it is best to speak to an accountant excess of taxes owed. The credits are based on qualified to check on how any particular situation applies to the expenses, which vary from state to state. code and to see if other tax obligations, such as state or city, apply. The types of expenditures included in the incentive vary from state to state. “Qualified expenses” generally cover pre-production, production, and post-production expenditures such as facilities, props, travel, wardrobe, and set construction. This is where the cost of renting out

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 49 the home would apply. If the state’s incentive program in spending and more than 1.7 million hires.17 The state covers the cost of filming at residential properties as a promotes more than just financial incentives in luring “qualified expense,” this is an incentive for the produc- productions. New York also showcases its unique land- tion to use those locations. Doing so is beneficial to the scapes and landmarks by ensuring that location scouts are production, because all or part of the payment made to aware of location advantages.18 New York’s Empire State the homeowner will be returned to the production in the Development website on Television and Film Industries19 form of tax credits, tax rebates, or refundable tax credits, highlights the state’s historic architecture, quaint rural depending on the state’s program—thus lowering the towns, picturesque farms, six-million-acre Adirondack cost of production. New York’s Commercial Production Mountains wilderness, and its beaches along the Great Tax Credit, Form B, which lists the programs “Schedule Lakes and Atlantic Ocean.20 New York’s incentive has of Qualified Expenditures” states that under “Location been renewed several times over the years, most recently Expenses,” “location fees” and “permits” are covered.6 through 2025.21 “Qualified labor” includes those individuals whose salaries are covered by the incentive, but many states Offering the Property as a Location place a cap on an individual’s salary. “Qualified produc- The first step before the client decides to offer the tions” usually includes feature films, episodic television property as a film location is to check whether that is series, television pilots, television movies, and miniseries. allowed to be done. Many apartment buildings’ by-laws Most incentives exclude documentaries, news programs, and Home Owner’s Associations (HOA) do not permit interview or talk shows, instructional videos, sports productions due to the disruption in the buildings’ opera- events, daytime soap operas, reality programs, commer- tions and potential inconvenience to fellow residents. cials, and music videos. Moreover, there may be local government permission Cities, too, may offer additional enticements in the needed, such as a obtaining a permit, which could be forms of tax credits, city services, and marketing cred- denied if the city believes that filming will interfere with its. New York City’s Office of Media and Entertainment municipal services, sidewalks, streets, traffic patterns or “Made in New York®” Marketing Credit Program offers local businesses. Though many residents enjoy the excite- advertising incentives where at least 75% of the total ment of seeing a movie filmed in their neighborhood, oth- shooting days take place in New York City or at least 75% ers dislike the disruption of closed streets and sidewalks. of the total below-the-line production costs are incurred In 2010, during filming of a scene in New York City, a in New York City.7 The credits, available on a “first-come, production assistant on Premium Rush, starring Joseph first-served basis,” qualifies for promotion and advertis- Gordon-Levitt, was head-butted by an angry neighbor- hood resident after requesting that the resident wait a few ing of the film through public transportation, such as 22 8 minutes to cross a street. The resident was arrested for bus shelters and on subway cards. The New York Police 23 Department (NYPD) offers the services of the NYPD assault and the assistant was treated for a broken nose. Movie/TV Unit, which assists productions in dealing Conversely, because of the notoriety gained as a result with any filmed scenes that may impact public safety.9 of being in a movie or television show, governing boards New York’s State Film Tax Credit Program has allocated of many buildings and neighborhoods are changing their $420 million per year with a fully refundable credit 25%10 policies. Potential homebuyers are often impressed to of qualified production costs. This incentive, along with hear about the movies that have been filmed in the build- New York City’s program, has made the City a draw for ing or in the apartment, giving the space a bit of history productions. In 2014 (for the first time ever), 24 television that distinguishes it from other prospective homes, and drama pilots were filmed in New York City, more than the may even add to the value of a home. There is also a bit of number in Los Angeles (which was 19).11 In the 2015-2016 excitement in seeing one’s home in a movie.24 Co-ops and season, a record-breaking 52 episodic television series condos may also benefit financially, and can be compen- were filmed in New York.12 That record was broken again sated for storing production-related materials and equip- during the 2016-2017 season, with 56 episodic TV series.13 ment in areas including the basement, which may help The number of hour-long broadcast drama pilots filmed cut down on the number of storage trucks needed outside in New York City continued to rise, from 38 in 2017 to 43 the building. in 2018.14 If the client is able to offer a property as a location, the In 2019, New York State Governor’s Office of Mo- next step is to contact the various film commissions (state, tion Picture and Television Development reported that county, and city) to see if they have scouting or location 73 television series spent approximately $4 billion on websites that production companies can use to find loca- productions in New York State.15 That averages to $53 tions. The requirements of each film office vary for listing million in spending per series, with 2,597 people hired to properties as a potential shooting location. Georgia’s Film work on those productions.16 Since January 2011, 1,650 Office has a website that offers residents information applications have been accepted to the Film Production and guidelines for people who are interested in listing Tax Credit Program, generating an estimated $29.5 billion property in the state’s location database.25 There are strict

50 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 requirements for submitting photos, which include num- Legal Considerations ber (10 to 20 total), size, maximum dots per inch (dpi), Making your client’s experience with the production 26 angles, as well as unique features and rooms. Items to successful involves ensuring that the agreement ad- omit include staged pictures of people, pets or objects; dresses the various possible contingent circumstances that videos; and photos taken during inclement weather (rain, may occur. Although the following is not an exhaustive 27 snow, or fog). The website also requests a description of list of considerations, because each production is differ- the property, including square footage, architectural style, ent and each client’s property is unique, it does discuss year built, number of bedrooms, and any special features several areas that should be contemplated. It is advisable 28 the property may have (such as a pool or barn). Califor- to speak with other homeowners who have worked with nia’s submission policy, called CinemaScout, has fewer the production company in the past to determine if their guidelines, requesting only the address of the property, experience was positive, particularly if the company is location description, usage restrictions, and submission of new or has only a few productions to its name. Addi- 29 up to 10 photos. tionally, it is wise to ensure early on that the production The New York Mayor’s Office of Media and En- company has proper permits with the state, county, and tertainment website, called “Make Your Home a Star,” city governments, and that it has the necessary level of states that the office “does not maintain a list of private insurance coverage. In obtaining insurance, it is advis- locations interested in hosting production,” as using the able to identify the type of production (i.e., feature film, property is a private negotiation between the owner and TV movie, commercial, music video, or episodic televi- production. However it does offer guidelines to in sion), the name and address of the production company, the process. 30 The first step, “Publicize Yourself,”31 offers and, if applicable, the contact information of the parent several avenues to make the property known to location company or studio. Once this is acquired, you should scouts and location services.32 Location scouts are profes- determine if the company’s insurance policy allows it to sionals hired by the production to find locations while conduct such productions. A proof of insurance certificate location services are brokers who may list a property for will safeguard coverage of your client by the production use in a production.33 A percentage of the rental fee your company’s policy. It is important to ensure that the pro- client receives is usually collected by the location ser- duction company lists your client’s name and property as vices provider if the property is selected.34 Though New an additionally insured entity on the policy. Once this is York City does not maintain a list of private locations for completed, be sure that the production company provides productions, the Mayor’s Office of Media & Entertain- a copy of the policy to your client. A standard location ment website35 lists suggested external organizations to insurance policy in New York City provides coverage of contact, such as the New York Production Guide36 and at least $1 million of liability or its equivalent of Compre- 40 411 Publishing.37 California’s Film Commission website38 hensive General Liability for each instance of claim. lists properties with the state and also lists a number of Other areas in the agreement should include the 39 external registries on its website. number of days that the home will be utilized or occu- In addition, New York residents can discover local pied in any manner. The use of the property will involve productions by looking around their neighborhoods. several visits before a decision is made to use it and then Brightly colored postings on street signs and poles notify several more once the property is selected. Although the residents of dates and times when filming will take place scene being filmed may only be on the screen for a few in the coming days or weeks. Often, residents are advised minutes, it will take several hours or days to film accord- of changes to customary parking regulations; closures of ing to the director’s specifications. The location scout, the surrounding streets and/or nearby subway entrances; location supervisor, and the director will be visiting the and production company contact information, should any property to approve the location. Once approved, numer- questions or problems arise. Contacting the production ous people will be involved in preparing the location, company to indicate interest in listing a client’s home may filming the location, removing all equipment and then lead to consideration for current and future shoots. returning the location to its original condition. During this time, occupants may be required to spend nights out Another method is to contact real estate companies. of the home; therefore, it is advisable to make sure that Many have a database of homes that are used as locations production agrees to cover the cost of hotels and meals if by productions. The real estate agent will typically ask overnight shoots occur, or if any occupants are unable to for photos of the home. Due to privacy concerns, pictures be in the home during regular mealtimes. The time frame are usually not listed on the real estate company’s web- is important, because the dates and times of filming on site; they are only viewable to location scouts with whom the property are often subject to change due to modifica- the agents have relationships. Owners may also market tions in production schedules, or even factors beyond themselves by creating a website. If a client’s property is the production company’s control, such as weather. A selected, the next step is to join in the process as your cli- one-day shoot may actually take several days, so be sure ent’s advocate. that the agreement includes “buffer days” or alternative

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 51 time frames during which the production can shoot if the The client may also want to remove items that have schedule changes. personal significance. However, first clarify with the production company to make sure that the personal item Another important element to consider is the type of is not something the production intends to have visible scene and physical change the production company will during the shoot. For example, the removal of a piece of make to the home. Is the movie a drama that will feature art that was an important factor in the location’s selec- a family eating dinner in a dining room, or is it an action tion may render the location no longer desirable. It is also movie involving two people fighting and smashing into recommended that a household representative be present walls? There is a big difference between moving a couch at the location during any times when someone from the and putting a hole in a wall in an action scene, though production is in the home. Doing so helps to ensure that the production company will repair it before it leaves. Be all elements of the agreement are observed. sure that your client approves any changes the production company may want to make. If a client absolutely does Once filming is completed, the agreement should not want a particular item moved, or any physical change include the right to inspect the property as soon as the made for any reason—even though the crew will return crew leaves in order to be sure everything is returned to the home to the original condition—you must make this its proper place and in its previous condition. Most film clear in case a change is necessary to film a scene. One productions are meticulous about repairs, making homes real estate agent whose client’s home was selected for a look as though no one was ever there. film shoot included a production company that wanted to change the color of the walls in the home from white Stop Throwing Pizzas at My Home: Other to purple. Though the company assured the homeowner that, after filming, the walls would be returned to their Considerations original color, the owner did not feel comfortable with As attorneys, we are also counselors. In that role, we such a drastic change. One consideration is that the crew offer our clients guidance on how the law can affect other may actually improve the property. An ideal time to use areas of their lives. Aside from legal considerations per- the home as a location would be if the homeowner is taining to the use of property as a film location, there are planning on doing renovations. Your client may actu- other aspects clients should take into account. ally be able to benefit from home improvements, like a The first is to consider the client’s family.41 When a fresh coat of paint, at the production company’s expense. daily routine is changed, it may upset children and pets Homeowners need not be concerned about any damages having strangers42 running around the home and, in if they are planning to make changes after filming is com- particular, in their rooms. If the home has pets, they will pleted. Further, one should be clear as to any restrictions likely need to live elsewhere43 during the shoot to avoid on access to the home, such as rooms that are off limits, or interfering with the production as well as to ensure both activities that are prohibited, such as smoking, eating, and their safety and the safety of those working in the home. drinking anything other than water, during the shoot. As previously stated, an important factor to consider Once the details of the shoot are known, take time is how it will affect the neighbors. Though a building to negotiate the fee. The payment schedule is negotiable; or HOA may allow using a home as a production, the payment can be made entirely up front; 50% up front, disruption to neighbors may create a bad experience. A with the remainder paid upon conclusion of the scene; or “small crew” can mean up to 50 people, depending on daily. The amount varies based on several factors, includ- what is required to film the scene. If filming is done in ing the type of scene being filmed, uniqueness of the loca- an apartment, the client should check with the building’s tion, amenities offered, how well it fits the production’s management to see if the homeowner will be responsible needs, number of days of use, number of people in the for any fees for the crew’s use of the freight elevators, home, extent of changes to the home, interior versus ex- elevator operator, or maintenance personnel. Neighbors terior shots (or both), and availability of space for staging should be informed about plans to film, particularly if the scene (i.e., use of other rooms for preparation, such as the client believes that they may not approve. Letting hair and makeup). Additional considerations also include them know in advance about the project and the actors the number of days of setup and shooting, and whether attached, or perhaps even arranging in the agreement that the fee will be all-inclusive or exclude itemized expenses, the lead actor(s) meet the homeowner and neighbors to such as electricity and water used by the film crew. If the thank them for enabling access to shoot in the area, can scene involves extensive structural changes, consider es- also help in convincing neighbors to be cooperative. tablishing an escrow account to hold monies that you and the production company agree to use to return the home Having the home featured can have financial benefits, to its prior condition. This way, you are assured that you such as increasing the property value of the client’s home will receive the funds necessary to make repairs to the and neighborhood, along with increasing tourism in the home. Further, pictures should be taken of everything property’s town and city. It has been 31 years since Field before the production crew comes in to serve as evidence of Dreams was filmed in a cornfield outside of Dyersville, of any damages that may occur. Iowa (population 4,000), yet last year the farm drew

52 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 115,000 visitors.44 The film, starring Kevin Costner, tells Endnotes the story about a farmer who converts acres of the family 1. U.S. Code, Title 26. Internal Revenue Code. Subtitle A. Income farm into a baseball field, which then attracts the ghosts Taxes. Chapter 1. Normal Taxes and Surtaxes, Subchapter B. of the 1919 White Sox.45 Visiting the ball field Computation of Taxable Income. Part IX. Items Not Deductible, available at https://www.law.cornell.edu/uscode/text/26/280A. is free, though a guided tour is $20 for adults and $12 46 2. Internal Revenue Service Tax Topics—Topic No.415 Renting for children. This an opportunity to generate substan- Residential and Vacation Property, available at https://www.irs. tial benefits for the field and the local businesses where gov/taxtopics/tc415. people visit and stay. 3. McCurry, John W. Battle: Film Incentives, Site Selection Magazine, March 2011, available at http://www.siteselection.com/ssinsider/ As with every positive, there can also be drawbacks. snapshot/Film-Incentives.cfm. Fans of the TV show Breaking Bad took a scene featured on 4. Id. the show a bit too far.47 In the second episode of the third 5. Id. season, the lead character, played by Bryan Cranston, 6. New York State–Empire State Development. New York State 48 Commercial Production Tax Credit: Form B—Schedule of brought a pizza home for dinner. After his wife told him Qualified Expenditures, available at https://esd.ny.gov/file/ that she has already cooked dinner, an argument ensued formbcommercials020720xls. and he threw the pizza box in the air, where the pizza flies 7. New York City Mayor’s Office of Media & Entertainment ‘Made in out of the box, landing upright, perfectly flat on the roof NY’ Marketing Credit, available at https://www1.nyc.gov/site/ of the garage. The homeowners where the scene was shot mome/initiatives/marketing-credit.page. were forced to build a “six-foot-high wrought-iron fence” 8. Id. 49 9. New York City Mayor’s Office of Media & Entertainment NYPD to stop fans of the show from recreating the scene. As Movie/TV Unit, available at https://www1.nyc.gov/site/mome/ these attempts occurred so often, the producer of the permits/students.page. show made a statement asking fans to stop.50 Moreover, 10. New York State - Empire State Development. New York State Film the homeowner stated that her home was bombarded Tax Credit Program (Production), available at https://esd.ny.gov/ with “up to ‘hundreds’” of tourists on one weekend; new-york-state-film-tax-credit-program-production. 11. Agard, Chancellor. For the First Time Ever, More TV Drama Pilots Are visitors would tell the homeowners to close their garage Filmed in New York than L.A., Entertainment Weekly, June 25, 2014, or move out of the way to avoid interfering with pictures available at http://ew.com/article/2014/06/25/for-the-first-time- they wanted to take of the home.51 The homeowners ever-more-tv-drama-pilots-are-filmed-in-new-york-than-l-a/. became frustrated, reporting that fans would “tell us 12. New York City Mayor’s Office of Media & Entertainment. Surging what to do on our own property,” and hoped the “pizza- Television Production in New York City Breaks New Record, May 23, 52 2016, available at https://www1.nyc.gov/site/mome/news/tv- repelling fence” would curtail the behavior. series-announce-5-23-16.page. 13. New York City Mayor’s Office of Media & Entertainment. Mayor De Blasio Announces All-Time Record Number of Television Shows Getting Credit Shooting in New York City, June 6, 2017, available at https://www1. Aside from being compensated and knowing that nyc.gov/site/mome/news/television-productions-2016-2017- the client’s home was used in a film shoot, you may ask season.page. 14. New York City Mayor’s Office of Media & Entertainment, Mayor’s the production company to provide the home a credit. A Office of Media and Entertainment Announces Sharp Rise in Number of clause can be written in the contract so that the client’s Broadcast Pilots Shooting in NYC, March 22, 2018, available at name will be listed in the film’s ending credits as a result https://www1.nyc.gov/site/mome/news/03222018-nyc-tv- of involvement with the production. The client’s name pilots.page. may be listed under “A special thank you to (client’s 15. New York State–Empire State Development. From Montauk to Buffalo, New York State is Camera-Ready and Film-Friendly, available name here)” in the area where other locations and mu- at https://esd.ny.gov/industries/tv-and-film. nicipalities are thanked for their cooperation with filming. 16. Id. The client can then tell friends, family, and future home- 17. Id. buyers that the home was part of cinema history. 18. Id. 19. https://esd.ny.gov/industries/tv-and-film. Please Stay Safe 20. Id. On the subject of homes, we are all too aware that we 21. Id. have largely been confined to our own residences over 22. Fleming, Kristen. Upper West Side Man Head-Butts Production Assistant on Movie Set, New York Post, August 8, 2010, available at the past several months, so I wanted to end on a per- https://nypost.com/2010/08/08/upper-west-side-man-head- sonal note. As someone who has had friends and family butts-production-assistant-on-movie-set/. affected by the coronavirus (and thankfully recovered), I 23. Id. know that many aspects of our lives have been changed 24. While watching The Talented Mr. Ripley, starring Matt Damon, my by the current situation. So, during this difficult time, I wife mentioned that a scene, which features Damon playing the piano at a rooftop party, was filmed on the deck of the building would like to send my very best wishes for good health to where she used to live. She remembered how excited the residents all NYSBA and EASL members and their families. were to have a film shoot happening in the building. 25. Georgia Department of Economic Development. List Your Property as a Film Location, available at https://www.georgia.org/ industries/film-entertainment/georgia-film-tv-production/list- your-property-as-a-film-location.

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 53 26. Id. 43. Id. 27. Id. 44. , Brian. “Field of Dreams” Movie Site Continues To Draw Fans to 28. Id. Iowa, 30 Years Later. Milwaukee Journal Sentinel. September 20, 29. California Film Commission. Locations, Location Submission 2019, available at https://www.jsonline.com/story/travel/ form, available at https://ca.reel-scout.com/loc_add.aspx; see wisconsin/weekend-getaway/2019/09/20/field-dreams-movie- also—List Your Property Online, available at http://film.ca.gov/ site-iowa-30-years-later/2350666001/. locations/list-your-property/. 45. Id. 30. New York City Mayor’s Office of Media & Entertainment. Make 46. Id. Your Home a Star, available at https://www1.nyc.gov/site/ 47. Wange, Evelyn. The “Breaking Bad” House Owners Have Erected a mome/industries/make-home-star.page. Fence to Curtail Pizza Throwing and Picture Taking, Architectural 31. Id. Digest, October 12, 2017, available at https://www. 32. Id. architecturaldigest.com/story/breaking-bad-house-fence-pizza- throwing. 33. Id. 48. Id. 34. Id. 49. Id. 35. https://www1.nyc.gov/site/mome/industries/make-home-star. page. 50. Id. 36. www.nypg.com. 51. Id. 37. Id. at 34. www.411publishing.com. 52. Id. 38. http://film.ca.gov/locations/list-your-property/. 39. California Film Commission. Locations—List Your Property Ethan Bordman is an entertainment attorney and Online, available at http://film.ca.gov/locations/list-your- film finance consultant (www.ethanbordman.com) who property/. represents directors, producers, screenwriters, and ac- 40. New York City Mayor’s Office of Media & Entertainment. Insurance Requirement for Permits, available at https://www1. tors. In addition to his law degree and M.B.A., he holds nyc.gov/site/mome/permits/insurance.page; see also Make Your an LL.M. in Entertainment Law from the University Home A Star. of Westminster in London, England and an LL.M. in 41. Coburn, Robyn. Want Your House to be a Filming Location? Here Are International Sports Law from Anglia University in 10 Cautionary Tips for Homeowners. April 13, 2017, available at Cambridge, England. He serves as co-chair of the EASL https://workinproduction.com/2017/04/13/want-your-house-to- be-filming-location-here-are-10-cautionary-tips-for-homeowners/. Section’s Motion Pictures committee and Vice-Chair for 42. Id. the EASL Section.

CLE Review our upcoming LIVE WEBINAR schedule

We’re offering dozens of brand new webinars every month on a variety of topics, including COVID-19 related programs, so be sure to register today!

Visit us online at NYSBA.ORG/CLE

54 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 CBS and Apple: An Entertainment Law Comparative Analysis of the Approach to Trademark Abandonment by the United States and Singapore By Matthias Brown

Introduction years.”12 As a result, trademark owners’ non-use risks 13 Many times, entertainment intellectual property is their trademarks being cancelled after three years. The embodied in a trademark. Sometimes a trademark is no party that applies for the trademark to be canceled must longer used. Trademark abandonment occurs1 when a prove non-use. Contrarily, the trademark owner that does trademark’s owner abstains from using a trademark. Vari- not use a trademark must prove “intent to use” to avoid 14 ous countries have trademark statutes that authorize the cancellation. As a result, the meaning of “intent to use” termination of a trademark due to trademark abandon- comes into play. ment. The United States and Singapore trademark laws are no exception. Both countries have trademark laws United States: Bona Fide Use concerning trademark abandonment, which lead to the United States trademark law, embodied in the Lan- termination of the trademark. This article will analyze ham Act,15 uses the standard “bona fide use.”16 “Use” is two entertainment law cases in each jurisdiction within a broad term in that a trademark owner might think any the contours of the similarities and differences of the use may qualify as “intent to use” for the purposes of the trademark laws concerning trademark abandonment. Lanham Act.

United States and Singapore Trademark However, what some trademark owners consider “use” may be nothing but a blanket attempt to maintain Abandonment Adjudication rights to a trademark, but not actually use the trade- In the United States, trademark abandonment cases mark. Simply, a trademark owner may resort to “token can be adjudicated in federal court.2 On the other hand, in use.”17 “Token use” has taken many forms, but a con- Singapore, trademark revocation proceedings occur in the stant and reoccurring one has been in the form of brand Intellectual Property Office of Singapore.3 In Singapore, maintenance programs. Among cases that analyzed the a hearing officer will entertain a trademark revocation trademark right in brand maintenance programs was application.4 At the same time, a trademark proprietor is Procter & Gamble Co. v. Johnson & Johnson Inc. In Procter & afforded the opportunity to challenge the revocation ap- Gamble, Johnson & Johnson tried to wrestle ownership of plication by offering proof of use.5 the trademark Sure, for feminine tampons, and Arrid, for mouthwash, from Procter & Gamble. During discovery, United States and Singapore Are First-to-Use Johnson & Johnson exposed that Procter & Gamble had Jurisdictions a trademark retention program called the “Minor Brands Program.”18 The purpose of the Minor Brands Program The United States is a “first to use” jurisdiction. Ac- was to ship small quantities of products for the sole cordingly, the trademark applicant must have already purpose of maintaining the trademarks in those products. 6 used the trademark in commerce before registration. The court ruled that the Minor Brands Program did not Likewise, Singapore’s trademark law has the same “use” satisfy the “use” requirement sufficiently to withstand 7 requirement. As the name implies, “first-to-use” empha- a § 1064(3) “trademark cancellation based on abandon- sizes use. The reason behind the emphasis on “use” is ment” challenge because the use was not “bona fide.”19 the notion that a trademark cannot be monopolized. This idea was heralded by Justice Pitney in United Drug Co. v. Theodore Rectaunus Co.8 According to Justice Pitney: “The CBS v. Silverman owner of a trade-mark may not, like the proprietor of a Trademark abandonment was examined in the patented invention, make a negative and merely prohibi- landmark entertainment law case CBS v. Silverman.20 In tive use of it as a monopoly.”9 Additionally, Justice Pitney Silverman, a Broadway playwright began a stage play wrote: “the right to a particular mark grows out of its use, in 1981, based on the “Amos ‘n’ Andy” characters from not its mere adoption .…”10 a CBS television series and former radio show.21 After the series ended, CBS decided to not promote “Amos ‘n’ United States Trademark Abandonment: Three Andy” in any capacity due to racial stereotypes portrayed in the series. The Broadway playwright argued that CBS Years of Non-Use had abandoned the “Amos ‘n’ Andy” trademark on the Under United States trademark law, a trademark is grounds that CBS had not used the “Amos ‘n’ Andy” presumed abandoned11 after “non-use for 3 consecutive

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 55 trademark since the 1960s. CBS’ defense was “that it has Singapore: Genuine Use always intended to resume using them at some point “Genuine use”31 is the standard of Singaporean in the future, should the social climate become more jurisprudence used to determine trademark validity. Lim 22 23 hospitable.” The District Court sided with CBS. Ching Kwang v. Audi32 was a case that highlighted the Specifically, “the District Court concluded, however, that silhouettes of the meaning of “genuine use.” In that case, CBS had successfully rebutted the presumption of aban- German automaker Audi applied to revoke the trademark donment arising from its prolonged non-use by offering a “A1” used by Lim Ching Kwang in his Singapore spare reasonable explanation for its decision to keep programs auto parts company. Kwang registered the “A1” trade- off the air and by asserting its intention to resume use at mark for Class 12 trademark registration for a multitude 24 some indefinite point in the future.” of auto parts. Audi argued that Kwang’s use of the “A1” However, the Second Circuit was troubled by the in- trademark did not rise to level of “genuine use” pursuant terpretation of the statutory phrase “intent not to resume” to § 22(a) of the Singapore Trademark Act. The hearing of- and asked: “Does the phrase mean intent never to resume ficer’s analysis was based on separating “token use” from use or does it merely mean intent not to resume use with- “genuine use,” and cited the English Court of Appeal case 33 in the reasonably foreseeable future?”25 The Second Cir- Laboratories Goemar SA v. La Mer Technology Inc. (2005). In 26 that case, the court defined “token use” as serving solely cuit ruled that the latter interpretation was correct. Yet, 34 the Second Circuit acknowledged that trademark non-use to “preserve rights in the mark.” On the other hand, is not necessarily suspect and will not infer abandonment “genuine use” is a different standard. The La Mer opinion by citing Saratoga Vichy Springs Co. v. Lehman27 and Defi- cited the European Court of Justice opinion, Ansul v. Ajax, ance Button Machine Co. v. C & C Metal Products Corp.28 In which provided a detailed explanation of “genuine use.” these cases, the saving conduct was that “the proprietor [R]egard must be had to all the facts and of the mark had an intention to exploit the mark in the 29 circumstances relevant to establishing reasonably foreseeable future by resuming its use .…” whether commercial exploitation of the It is worth noting that the Second Circuit did con- mark is real, in particular whether such sider CBS’s noble justification for not using the “Amos use is viewed as warranted in the eco- ‘n’ Andy” trademark for decades. Yet it could not over- nomic sector to maintain or create a share look the fact that CBS had not used the “Amos ‘n’ Andy” in the market for the goods or services 35 trademark: protected by the mark. [W]e believe that however laudable one The evidence presented in Lim Ching Kwang v. Audi might think CBS’s motives to be, such showed that Kwang systematically used the “AI” trade- motives cannot overcome the undisputed mark for torque brushes but not for other auto parts. The facts that CBS has not used its marks hearing officer ruled that Kwang demonstrated genuine for than 20 years and that, even now, it use for torque brush but nothing else. As a result, the has no plans to resume their use in the hearing officer revoked Kwang’s class 12 trademark regis- reasonable foreseeable future…. [W]e tration, except for torque brushes. cannot adjust the statutory test of aban- It is worth emphasizing that both the United States donment to reward CBS for such motive and Singapore jurisprudence are askance to the notion of by according it protection where its own trademark “token use.” While the United States and Sin- voluntary actions demonstrate the statu- gapore have different legal standards and traditions, they tory protection has ceased. Moreover, we share a belief that trademarks should actually be used in see nothing in the statute that makes the commerce. Most of all, a trademark should not be ware- consequence of an intent not to resume housed solely to preserve rights to the trademark. use turn on the worthiness of the motive for holding such intent.30 Apple v. Bigfoot Internet Ventures Accordingly, the CBS case affirmed the long-held Apple Computers, while a technology company, has belief in United States jurisprudence that trademark use achieved pop-culture status to where Apple Computers is must be actual, continuous, and reasonably foreseeable now part of the entertainment realm.36 Yet, Apple’s dual to rebut a cancellation challenge. Moreover, as Procter & status as both a technology and entertainment company Gamble proved, trademark use must also be bona fide or has not stopped individuals from accusing Apple of rise to level of being genuine. While “genuine use” is a maintaining, but not actually using, some of its registered shade of “bona fide use,” “genuine use” is the actual stan- trademarks. In Apple, Inc. v. Bigfoot Internet Ventures Pte dard to determine trademark use in other jurisdictions. Ltd.,37 Bigfoot filed a revocation application on March 12, 2015 in Singapore. Bigfoot argued that Apple stopped us- ing the “Sherlock” trademark once Apple introduced Mac OS X 10.5 “Leopard” in 2007.38

56 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 Apple Computers introduced Mac 8.5 in Singapore application is defeated. The Audi case illustrated how a in 1998.39 Apple Computers completed registration of trademark owner that stopped using a trademark could the trademark “Sherlock” in 2001 as the name of the maneuver through the delineations of § 22(1)(a) and (b) of operating system for Mac OS 8.5.40 The deciding factor the Singapore Trademark Act. In the Audi case, the hear- of the case was whether the “Sherlock” trademark was ing officer explained how a trademark revocation applica- in “genuine use” at the time of application for revoca- tion could be defeated. tion. The hearing officer divided the time frame into two five-year periods, March 6, 2001-March 5, 2006 (the five 15 ….the relevant dates under consider- years after Apple first registered the “Sherlock” trade- ation are as follows: mark), and March 12, 2010-March 11, 2015 (the five years a. The registration procedure was com- before Bigfoot filed the revocation application concerning pleted on 18 January 2010. The 5-year the trademark) to determine whether there was “genuine period immediately following the use” of “Sherlock” by Apple. 41 The hearing officer started completion of registration ended on the analysis by writing, “Although, it may seem surpris- 18 January 2015. The period of use (or ing, the most convenient way of answering this question non-use) in issue is 19 January 2010 to is to begin with the end of ‘Sherlock.’”42 18 January 2015. Apple argued that it put the “Sherlock” trademark b. The application for revocation was to “genuine use” throughout the first five-year period filed on 31 March 2015. The 5-year (2001-2006). For the five-year period before Bigfoot’s chal- period prior to this application for lenge, Apple’s argument then turned on whether updates revocation starts from 31 March 2010. counted as “genuine use.” Apple used Ansul43 to support The period of use (or non-use) in issue its argument that updates counted as “genuine use.” Cit- is 31 March 2010 to 30 March 2015. ing Ansul, the hearing officer stated: 16. As the two sets of relevant dates The European Court of Justice held that overlap, if I find that there is use of the the use of a mark in connection with Subject Mark for any of the goods listed goods that were no longer newly traded in the Registration . . . the application for could nonetheless constitute genuine use revocation under both grounds must nec- provided that the proprietor makes actual essarily fail in relation to those goods.48 use of the same mark for component parts that are integral to the make-up Accordingly, Kwang presented evidence that he used or structure of such goods, or for goods the trademark “A1” in relation to sales of torque brushes or services directly connected with the to a Russian customer, which included emails correspon- goods previously sold and intended to dence between himself and his Russian customer that meet the needs of customers for those bore the “A1” trademark. As a result, Kwang defeated goods.44 Audi’s revocation application, but only for his “A1” trademark of torque brushes. “Although Mac OS 8.5 was no longer newly traded, it continued to be supported with component parts (in this case updates).”45 Accordingly, the hearing officer ruled The Resumption of Use in the United States Will that the “Sherlock” trademark was put to genuine use in Not Restore Rights to the Trademark the first five years (2001-2006) and the Bigfoot revocation Unlike Singapore, the United States trademark law application was defeated as to the first five-year period. does not acquiesce to the resumption of trademark use after trademark non-use. Rather, the trademark owner However, as for the five-year period before the can lose rights to the trademark after three years of revocation application, the hearing officer stated, “as continuous non-use. The AmBrit49 case illustrates the the Applicants rightly point out, the ‘Sherlock’ software United States view that a trademark owner must use was removed from the Mac OS in 2007. This made all the a trademark or lose it. The fact pattern of the AmBrit difference.”46 As a result, Bigfoot’s application to revoke parallels Singapore’s § 22(1)(a) and (b)’s overlap Apple’s “Sherlock” trademark was successful as to final framework. In AmBrit, Kraft acquired the trademark five-year period, and Apple’s “Sherlock” trademark was “Polar B’ar” from an ice cream producer, Southern revoked.47 Diaries, Inc. (which had used the trademark from 1929- 1932), but then Kraft did not use the trademark “Polar Resumption of Use Can Defeat a Revocation B’ar” from 1932 to 1980. Then, in 1980, Kraft started Challenge in Singapore using the “Polar B’ar” trademark again extensively. Suppose a Singapore trademark owner resumes use? Plaintiff AmBrit f/k/a Islay Co. argued that Kraft’s If this use falls within the five years before the trade- trademark should be canceled due to abandonment. Kraft mark revocation application, the trademark revocation argued that its resumption of the use of the “Polar B’ar”

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 57 trademark precluded Islay’s cancellation application. Top Beverage v. Wildlife Brewing N.B., 338 F.Supp.2d 827, 835 (S.D. The court sided with Islay. It cited Conwood Corp. v. Loews Ohio 2003). Theatres, Inc.,50 writing, “[i]rrespective of whether a 18. See Procter & amp; Gamble Co. v. Johnson & Johnson Inc., 205 U.S.P.Q. 697, 485 F. Supp. 1185, 1204 (S.D.N.Y., 1980). competitor has used the mark in question, a registered 19. Id. at 1206. trademark, once abandoned, may be cancelled even after 20. See Silverman v. CBS Inc., 870 F.2d 40, 9 USPQ2d 1778 (2nd Cir. 51 the holder resumes use of the mark.” 1989). 21. See Silverman v. CBS Inc., 632 F.Supp. 1344, 1347-1348 (1986). Transitioning from ice cream to bourbon, a recent 22. Id. at 45. case held that an abandoned trademark is lost for good. 23. Id. at 46. In an unpublished opinion, Allied Lomar v. Lone Star 24. Id. 52 Distillery, the plaintiff sued the defendant for trademark 25. Id. infringement due to the defendant’s use of the “Cowboy 26. Id. Little Barrel” trademark. The defendant counterclaimed 27. See Saratoga Vichy Spring Co., Inc. v. Lehman, 625 F.2d 1037, 208 that the plaintiff abandoned the “Cowboy Little Bar- USPQ 175 (2nd Cir. 1980). rel” trademark. The court sided with the defendant and 28. See Defiance Button Machine Co. v. C & C Metal Products Corp., 759 F.2d 1053 (2d Cir.) cert denied, 474 U.S. 844, 106 S.Ct. 131, 88 L. ruled that: “[u]se of a trademark after abandonment does Ed.2d 108 (1985). not revive a party’s rights in that mark . . . Once aban- 29. See Silverman v. CBS Inc., 870 F.2d 40, 47, 9 USPQ2d 1778 (2nd Cir. doned, the marks were free to anyone who wished to use 1989). them . . . . ”53 The plaintiff appealed to the Fifth Circuit 30. Id. at 47. and that court sided with the defendant, ruling that the 31. See Trademark Acts, § 22(1)(a). plaintiff’s trademark was abandoned.54 32. See Lim Ching Kwang v. Audi. Trade Mark No. T0911230B (10 October 2016); See also Aucera S.A. v. Bentley Motors Limited. Trade Mark No T9604780F (29 August 2016). Conclusion 33. See Laboratories Goemar SA v. La Mer Technology, Inc. Court of Appeal-Civil Division, July29, 2005, [2005] EWCA Civ 978 The United States and Singapore trademark laws 34. Id. at § 22. authorize the termination of abandoned trademarks. Even 35. See IPPT20030311 ECJ, Ansul v. Ajax (§ 38). prominent media and technology companies like CBS and 36. See https://variety.com/2018/tv/news/apple-original-content- Apple cannot keep their trademarks in perpetuity unless strategy-1202944153/. they use them. However, in Singapore, an abandoned 37. See Apple Inc. v. Bigfoot Internet Ventures Pte Ltd, (Trademark No. trademark can be revived through use and defeat a trade- T9812571E, (11 November 2016). mark revocation challenge, whereas in the United States 38. Id. at § 11. an abandoned trademark is lost forever. 39. Id. at § 10. 40. Id. at § 2, § 9. 41. See. Apple Inc. v. Bigfoot Internet Ventures Pte Ltd, (Trademark No. Endnotes T9812571E, (11 November 2016, § 17). 1. See 15 U.S. C. § 1064 (3); see also 15 U.S.C. § 1127. 42. Id. at § 23. 2. See 15 U.S.C. § 1119. 43. Id. at § 34a; see also Ansul BV v. Ajax Brandbeveiliging BV [2003] IP & T 970. 3. See https://www.ipos.gov.sg/resources/hearing-mediation. 44. Id. at 34a. 4. See https://www.ipos.gov.sg/docs/default-source/resources- library/hearings-and-mediation/guidelines-and-useful- 45. Id. information/ipos-hmd---tm-case-guidef6de1a77c2d0635fa1cdff000 46. See Apple Inc. v. Bigfoot Internet Ventures Pte Ltd, (Trademark No. 0abd271.pdf T9812571E, (11 November 2016, § 44). 5. Id. 47. Id. at § 46, 49. 6. See 15 U.S.C. § 1051 (a); See also 15 U.S.C. § 1127. 48. See Lim Ching Kwang v. Audi. Trademark No. T0911230B (§ 16) (10 7. See Trade Mark Acts § 5(2)(e)(i). October 2016). 8. See United Drug Co. v. Theodore Rectaunus Co., 248 U.S. 90, 97-98,39 49. See AmBrit, Inc. v. Kraft, Inc., 805 F.2d 974, 1 USPQ2d 1161 (11th S.Ct. 48, 63 L.Ed. 141 (1918). Cir., 1986). 9. Id. at 97-98. 50. See Conwood Corp. v. Loews Theatres, Inc., 173 U.S.P.Q. 829 (T.T.A.B 1972). 10. Id. at 97. 51. See AmBrit, Inc. v. Kraft, Inc., 805 F.2d 974, 995, 1 USPQ2d 1161 (11th 11. See 15 U.S.C. § 1127. Cir., 1986). 12. Id. 52. See Allied Lomar Inc. v. Lone Star Distillery, LLC (Case No. A-14-CA- 13. See La Societe Anonyme des Parfums LeGalion v. Jean Patou, Inc., 181 1078-SS, 2017 WL 1187949 (W.D. Tex. March 28,2017). USPQ 545, 495 F.2d 1265 (2nd Cir., 1974); Procter & Gamble Co. v. 53. Id. at 11. (citation omitted). Johnson & Johnson Inc., 205 U.S.P.Q. 697, 485 F. Supp. 1185 (S.D. N.Y., 1980); see also AmBrit, Inc. v. Kraft, Inc., 805 F.2d 974, 1 54. See Allied Lomar v. Lone Star Distillery, L.L.C., 731 Fed.Appx. 367 USPQ2d 1161 (11th Cir., 1986); see also Silverman v. CBS Inc., 870 (5th Cir., July 18, 2018). F.2d 40, 9 USPQ2d 1778 (2nd Cir., 1989); Allied Lomar, Inc. v. Lone Star Distillery, LLC (W.D. Tex., 2017). Matthias Brown is an attorney based in Washington, 14. See 15 U.S.C. § 1127. D.C. who is a member of the New York and District of 15. See 15 U.S.C. § 1051. Columbia Bars. He received a B.A. from UCLA, a J.D. 16. See 15 U.S.C. § 1127. from Syracuse University College of Law, and a M.P.A. 17. See La Societe Anonyme des Parfums LeGalion v. Jean Patou, Inc., 181 USPQ 545, 495 F.2d 1265, 1273 (2nd Cir., 1974); see also Mountain from Cornell University.

58 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 The New York Yankees of the 1930s and the Issue of Hate Speech in Sports By Bennett Liebman

The New York Yankees of the 1930s at Comiskey Park, calling The New York Yankees of the 1930s won five World for Powell to be barred from Series championships and featured many of the greatest baseball. players in baseball history: , , Joe While the mainstream DiMaggio, , , , and press seemed to discount . Yet the Yankee outfield of that era featured the severity of Powell’s some of the most prominent bigots of any era in baseball. statement (The New York The Yankees had , who was one of the Times called it “a flippant leaders of the petition of the 1947 Brooklyn Dodgers play- remark that was taken to be ers asking management to keep off their offensive to Chicago’s Ne- 11 team and claiming they would refuse to play with Robin- gro population”), baseball son.1 The team also had , who as the man- commissioner Kennesaw ager of the , aimed all kinds of verbal Mountain Landis suspend- racist abuse at Jackie Robinson in 1947.2 Veteran reporter ed Powell for 10 days, citing Harold Parrot wrote, “At no time in my life have I ever that he had made an ”uncomplimentary remark about a 12 heard racial venom and dugout abuse to match the abuse portion of the population.” The suspension was issued that Ben sprayed on Robinson.”3 While a Yankee, Chap- without a hearing, and apparently was the first of its kind man was involved in anti-Semitic confrontations with suspension issued by a commissioner for off-field conduct fans4 and allegedly “taunted Jewish spectators at Yankee and speech. Landis, to a certain extent, downplayed the Stadium with Nazi salutes and anti-Semitic epithets.”5 Powell incident, suggesting “that the remark had been made thoughtlessly and without any intention of hurt- In the late spring of 1936, the Yankees, tired of Chap- ing anyone.”13 It was due “more to carelessness than man’s excesses,6 traded him to the Washington Senators intent.”14 The problem was due to the use of an unscript- for . While not as skillful an overall ed live radio interview.15 player as Chapman, Powell enjoyed a good 1935 (batting .312). For the Yankees in 1936, Powell hit .302 and more Commissioner Landis wanted to be able to take significantly hit .455 in the 1936 , leading praise for his swift actions against Powell while at the the Yankees to a 4-2 series triumph over the New York same time being able to argue that because Powell’s state- Giants. While Powell played in 11 major league seasons, ments were not directly related to baseball, the penalty after 1936 he enjoyed minimal success.7 Yet on the bigotry could not be severe. By and large, Landis was praised by 16 value scale, a trade between Chapman and Powell was a the African American press. fair one. Powell was a “very outspoken racist and anti- The Yankees were not so fortunate. When Powell Semite who had been accused of deliberately breaking played in Washington two weeks after the incident, the ’s wrist during a violent collision that fans threw glass bottles on the field at him.17 Fans in cost the great Detroit just about all of the Harlem suggested a boycott of the Yankees and even a 8 1936 season.” boycott of Ruppert Beer, the brand owned by Jacob Rup- pert, the owner of the Yankees. The Yankees countered Jake Powell Meets Kennesaw Mountain Landis by having its general Ed Barrow talk about the relationship the Yankees had with the African American The issues with Powell came to a head in July of community. (The Yankees helped support the YMCAs 1938. Before a game against the White Sox at Comiskey in Harlem, often gave free tickets to children, and hired Park, Powell was doing a live radio interview show with as undercover police. The team did broadcaster Bob Elson. Elson asked Powell how he kept not employ African Americans at stadium concessions, in shape during the off-season. Powell made a crude joke but that was the choice of its concessionaire.) Powell, about staying in shape by roughing up Blacks during his himself, went to the bars in Harlem and bought drinks for time as a patrolman in Dayton.9 Elson stopped the inter- the patrons.18 The dancer Bill Robinson, who was a famed view and immediately apologized. It hardly mattered Yankee fan, supported Powell publicly.19 that Powell was never a policeman in Dayton. For 1938, his remarks went viral, and the African American press While the Yankees kept Powell on its roster into the called for organized baseball to take severe action against 1940 season, he was played sparingly. After the 1940 Powell.10 A petition was quickly submitted to the umpires season, his contract was sold to the Seals of

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 59 the Pacific Coast League. Powell ended his career in 1945 the best interest of the sport. Even into the 21st century, playing for the Philadelphia Phillies, where ironically Ben “under former baseball commissioner , MLB Chapman was his manager. Powell committed suicide in had never suspended a player for his involvement in a 1948 at age 40 while being questioned by the police for domestic violence situation. Former NBA commissioner writing bad checks. David Stern did not suspend a player arrested for domes- tic violence charges for more than five games and some players arrested were not suspended at all.”28 In more Legacy of the Powell Case recent years, NFL players, including Ray Rice, Ezekiel El- The Powell affair ushered in two major developments liot, Tyreek Hill, and Adrian Peterson, have been found in in sports. First of all, it played a significant role in fur- violation of its personal conduct policies.29 In recent years, thering integration efforts in baseball. African American MLB has suspended Aroldis Chapman, Roberto media showed that its organized voice could be recog- Osuna, Domingo German, and Jeurys Familia for domes- nized at the highest levels of baseball. Additionally, the tic violence.30 hypocrisy of —decrying racism while maintaining a totally segregated sport—was dem- onstrated to much of America.20 Penalizing Reprehensible Speech MLB may have been upset at Ben Chapman in 1947, The other legacy was punishment for off-field con- but there was never a threat to suspend him. Nobody duct and reprehensible statements not directly related suspended the players who may have tormented or orga- to sports. Yet, it took years for this precedent to set in. nized against Jackie Robinson’s participation in baseball. For many decades, off-field activities that led to sus- No suspensions were in order for anti-Semitic statements pensions were gambling activities (which are certainly aimed at Hank Greenberg or anti-Italian statements directly related to on-field actions) and actual criminal directed at Joe DiMaggio, either. Minnesota Twins owner violations. National Hockey League (NHL) players Billy Calvin Griffith stated in 1978 that he had moved the Taylor and Don Gallinger were suspended for life in 21 Twins to the Twin Cities when he found that there were 1948 for their gambling. Well before , in 1943, only 15,000 Black people there.31 He said, “We came here Philadelphia Phillies owner William Cox was banned for because you’ve got hard-working white people here.”32 life for gambling on his team’s games. In 1947, Brooklyn Dodgers manger Leo Durocher was suspended for a year Yet, in the 1990s the sports world would rediscover for associating with gamblers.22 Jack Molinas of the Fort the Powell precedent. It did not come in the case of Al Wayne Pistons was suspended indefinitely in 1954 by the Campanis, the general manager of the Los Angeles Dodg- National Basketball Association (NBA) for his gambling.23 ers. In 1987, on the 40th anniversary of Jackie Robinson’s In professional football, New York Giant players Frank entrance into the major league, Campanis indicated that Filchock and Merle Hapes were suspended indefinitely Black people lacked the “necessities” to serve as general for not reporting bribe offers. In 1963, the National Foot- managers in baseball. He also suggested that Black people ball League (NFL) suspended star players Alex Karras lacked the “buoyancy” needed to be top swimmers. No and Paul Hornung for betting on games. Perhaps the action was taken by organized baseball; instead, Campa- oddest gambling-related suspension was imposed by nis quickly resigned from his baseball position. Major League Baseball (MLB) commissioner Bowie Kuhn on baseball greats Mickey Mantle and Willie Mays. They Yet the Powell precedent did reenter baseball in the were banned from organized baseball during the time 1990s, with the outspoken remarks of Reds they worked for Atlantic City casinos.24 owner Marge Schott. She expressed her admiration for and repeatedly voiced racist and anti-Semitic MLB suspended George Steinbrenner in the 1970s for statements. In the winter of 1993, MLB’s executive com- his federal felony of authorizing illegal campaign contri- mittee suspended Schott for a year for “using language butions. The original two-year suspension was reduced that is racially and ethnically offensive.”33 Her language to 15 months.25 In 1953, MLB forced St. Louis Cardinals contained “the most base and demeaning type of racial owner Fred Saigh to sell his club after a conviction for and ethnic stereotyping.”34 federal tax evasion.26 After her suspension, Schott repeated her obnoxious Nonetheless, after the Powell incident, baseball and behavior in 1996. She engaged in “another flurry of insen- other sports did not take action against participants who sitive remarks about Adolf Hitler, Asians, the prime min- made biased or racist statements. Major sports until the ister of Japan, umpires and women in the workplace.”35 1990s rarely took action against individuals engaged in She was suspended for two-and-a-half years and forced off-field misconduct.27 Only in the last quarter century to give up management of the team for that time. Perhaps have sports leagues have started to take action against seeing the handwriting on the wall, Schott sold her inter- individuals engaged in domestic violence, sexual assault est in the Reds in 1999. or cruelty to animals. This was not considered at the The Schott episode was soon followed by the John time conduct detrimental to the game or conduct not in Rocker episode. Rocker was a star relief for

60 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 the Atlanta Braves. In a story published by Sports Il- Atlanta Hawks general manager Wes Wilcox, at a lustrated, Rocker made disparaging “comments about meeting with fans in 2017, said, ““I know you guys may gays, Asian drivers and New Yorkers.”36 About foreign- be angry with me . . . but I’m used to it because I have a ers, Rocker said, “The biggest thing I don’t like about black wife and three mixed kids, so I’m used to people New York are the foreigners. I’m not a very big fan of being angry and argumentative.”46 No action was taken foreigners.”37 Commissioner Bud Selig suspended Rocker against Wilcox. for 28 days and issued a $20,000 fine. MLB players can arbitrate their suspensions, and when Rocker appealed Miami Marlins manager Ozzie Gullen in 2012 told Time Magazine Selig’s decision to an arbitrator, the penalty was reduced that he “loved and respected” former to 14 days and a $500 fine.38 Cuban dictator Fidel Castro. For those remarks, Marlins management suspended Guillen for five games. There The NBA had its version of Marge Schott in Los An- was considerable editorial support for Guillen across the geles Clipper owner Donald Sterling. The gossip web- nation suggesting that Guillen had been improperly pun- site TMZ in 2014 posted a racist conversation between ished for political speech.47 Sterling and his mistress V. Stiviano. Sterling’s statements expressed “deeply offensive, demeaning, and discrimi- In the , Houston Astros first base- natory views toward African Americans, Latinos, and man Yurri Gurriel was suspended for five games for a ra- ‘minorities’ in general, and demanded that a female ac- cially insensitive gesture directed at Japan-born Dodgers quaintance not associate publicly with African Americans pitcher Yuel Darvish. After hitting a off Darvish or ‘minorities’ or bring them to Clippers games.”39 NBA in the second inning of game three, Gurriel returned to commissioner Adam Silver banned Sterling for life and the dugout and made an offensive, racist gesture. Baseball fined him $2.5 million. The NBA forced a sale of the club. commissioner Rob Manfred determined that the penalty While Sterling brought suit to prevent the sale, a federal was to be imposed not during the World Series, but at the beginning of the next baseball season. district court ruled against him.40 In November of 2016 Sterling dropped his suit,41 and the Clippers were sold. There have been several incidents involving homo- phobic activity. In 2012, Toronto Blue Jay shortstop Yunel At about the same time as the Sterling revelations Escobar was suspended for three games by MLB com- were made public, there were two other racial bias issues missioner Bud Selig for wearing an anti-glare face strip that hit NBA management. Atlanta Hawks co-owner displaying a homophobic slur written in Spanish. Five Bruce Levenson voluntarily reported his racially offensive years later, the Blue Jays imposed a two-day suspension email and stepped down from his ownership position. on outfielder Kevin Pillar for uttering a homophobic slur Levenson in an email had written that “the Hawks fan in the course of a game against the Atlanta Braves.48 base was too heavily African-American and that this Back Chicago Sun-Times was a problem for the team as it ‘scared away’ white in 2006, Ozzie Guillen called columnist fans.”42 With Levenson’s voluntary departure, NBA com- Jay Marriotti a derogatory term for homosexuals. No ac- missioner Adam Silver did not need to act on his case. tion was taken by organized baseball. Nor did Silver need to act in the matter of Atlanta Where Do the Sports Leagues Stand on Hateful Hawks general manager Danny Ferry. Ferry in 2014, in a conference call, had said about Cleveland Cavalier Speech? forward Lual Deng, “He’s got some African in him. And It is now a quarter of a century since the first Marge I don’t say that in a bad way other than he is a guy who Schott case, but it is fair to say that there is little consis- will do something behind you. He has a store front out tency or even much principle involved in the outcome front that’s beautiful and great, but he may be selling of these cases. Nothing approaching a logical philoso- some counterfeit stuff behind you.”43 Based on this inap- phy has emerged from these cases. We know that sports propriate remark, the Hawks conducted its own investi- leagues and/or teams will punish hate speech, but we do gation of Ferry, Ferry took an indefinite leave of absence, not know what will go into determining the decisions and and eventually left his job.44 the penalties. There are markedly more questions than there are answers. There have been other instances where sports execu- tives have engaged in insensitive and racially inappropri- The first issue is whether there is a need to punish ate remarks. The patriarch of the family that owns the hateful or inappropriate speech. In a nation devoted to , Joe Ricketts, 77, wrote in an email, “There- free speech values, should speech by sports participants fore we cannot ever let Islam become a large part of our be regulated or censured? Should the marketplace simply society. Muslims are naturally my (our) enemy due to determine the reaction to the speech? Was it proper to their deep antagonism and bias against non-Muslims.”45 penalize Ozzie Guillen for praising Fidel Castro when The Ricketts family apologized for the statements, and no numerous American politicians and public officials had formal actions were taken against Cubs ownership. praised the Cuban dictator?49 When the offensive remarks were made orally in private or in a private email, should they be the subject of disciplinary action?50

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 61 What is the proper party to issue the discipline? In the Donald Sterling case, the NBA utilized a pri- Should it be the team or the league office? Should the vate recording of a confidential communication. No con- league office only be involved if the team fails to act? Is a sent to the dissemination of the recording had been given sports commissioner the right person to make a determi- by Sterling. Instead, TMZ obtained the recording from V. nation on what constitutes hate speech? What qualifica- Stiviano and distributed it. Is it proper for a sports league tions do sports commissioners possess that make them to base a decision on hate speech while utilizing material appropriate parties to determine what qualifies as cul- subject to basic privacy rights?54 pable racist speech? What happens when the licensing authority is a Assuming that hateful speech—including praise of government agency? In professional boxing, Mixed Mar- dictators—should be regulated, is there a hierarchy of tial Arts (MMA), and horse racing, government athletic dictators and authoritarian regimes? Is there a higher pen- commissions determine the penalties for licensees. Given alty for praising Hitler or Stalin than there would be for the First Amendment, can a government agency pun- praising Mao, Pinochet, Pol Pot or Mussolini? ish a licensee for offensive speech?55 For many years, a number of high-profile fighters have made homophobic, What ethnic groups are protected from hate speech? anti-Semitic, racist and/or misogynistic remarks. Cham- We have witnessed penalties for speech aimed at Asians, 51 pion MMA fighter Conor McGregor has been accused African Americans, Latinos, and Jews. Does that protec- of racism.56 Champion Floyd Mayweather has regularly tion include Arabs, Muslims, Italians or other ethnic Euro- been accused of misogyny. Top fighters Manny Pacquiao, peans? Is expressed hatred for Israel or Zionism merely a Adrien Broner, and Dario Larralde have made a variety of more subtle form of anti-Semitism? homophobic statements. Heavyweight champion Tyson Is there any sort of statute of limitations for hate Fury has been accused of the superfecta of racism, sexism, speech? What if the hate speech was uttered when a homophobia, and anti-Semitism.57 Yet licensing of all sports participant was a teenager? We have seen in recent these individuals has continued. years the uncovering of social media posts by players that In horse racing, one would not be able to find regula- were certainly offensive. Milwaukee Brewer all-star relief tory actions for uttering offensive comments on religion, pitcher Josh Hader posted a series of offensive tweets nationality, sexism or nationality.58 Nor would there be described as “racist, sexist and homophobic” when he penalties for trainers and/or owners who stated a desire was 17. These tweets were not generally known by the not to employ Latino or female riders. public until he was 24. He was not penalized by MLB.52 In the same month of July 2018, when Hader’s tweets were While not strictly governmental actors, it would be uncovered, Washington Nationals shortstop Trea Turner interesting to see how international organizations and the and Atlanta Braves pitcher Sean Newcomb apologized for United States Olympic Committee might punish offensive racist and insensitive tweets written when they were in statements by athletes. their teens.53 They were not penalized, leaving open the question of at what age does the responsibility for hate Finally, there needs to be some consideration of speech set? misogyny in the sports workplace. While there was con- siderable controversy in the 1970s over women entering Is the setting of the hate speech significant in deter- men’s locker rooms, the misogyny issue has not currently mining the penalty for hate speech in sports? If the setting achieved the same degree of attention as racist, homopho- is during the contest (i.e. Kevin Pillar and Yurri Garriel), bic, and anti-ethnicity statements. Yet, one would expect is there a reason for a smaller penalty, due to the likeli- to see issues involving hostile work environments for hood that the speech was unpremeditated? Does the fact team employees at the offices of sports teams. This issue that the speech is part of a tradition of bench jockeying was raised in 2008, when New York jets quarterback Brett in baseball—akin to “locker room talk”—that makes it Favre allegedly sent X-rated photographs of himself to less deplorable? On the other hand, does the fact that this Jets employee and sideline reporter Jenn Sterger.59 One speech is taking place in public during the action of the would also expect to see more incidents similar to that game an aggravating factor for a penalty determination? which occurred with the Houston Astros in the fall of After all, in the Jake Powell case, one of the reasons for 2019. The Astros fired assistant general manager Bran- Landis’ moderate penalty was that the statement did not don Taubman “who directed an obscenity-filled tirade occur in the course of the game. toward three female reporters.”60 Sports teams that treat women reporters differently might be subject to hostile Should the executives of a team (including its field work environment investigations, while at the same time management) be subject to higher penalties than the play- misogynistic comments and communications directed at ers? It would seem that the de facto expulsion of Bruce reporters by team members might require league disci- Levenson for indelicately referring to a much-discussed plinary action. issue for 50 years of “white flight” might not merit the same penalty as that of Donald Sterling.

62 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 Commissioner Kennesaw Mountain Landis and Jake player Manny Ramirez’s occasionally bizarre actions as “Manny, Powell might not have guessed in 1938 where the prece- Being Manny.” This was “Jake, Being Jake.” dent of a 10-game suspension for objectionable statements 12. Rud Rennie, Powell Draws Ban of 10 Days for Negro Slur, New York would lead. While for a half century there was little Herald Tribune, July 31, 1938. The YMCAs in Harlem often gave children free tickets. follow-up to this precedent, the maxim attributed to Joe 13. Id. Louis—“You can run, but you can’t hide”—has returned to sports. 14. Negro Delegation Against Offensive Broadcast, Associated Press, July 30, 1938. All sports are now dealing with the problem of how 15. Rennie, supra note 12. The Sporting News, considered the Bible of to deal with reprehensible statements by sports partici- Baseball, wrote, ““Powell was on the spot and was the victim of pants. Sports have entered this “political thicket,”61 and circumstances, which should not be held against him by the fans. Other players, in other instances, might offend other groups. The nobody has yet figured out anything other than an ad hoc remedy, as we see it, is to relieve players of such assignments. Put resolution to these issues. More than 80 years after Landis them on the radio, but under more propitious conditions, where and Powell, we lack a consistent rationale for handling they can do themselves and the game justice, without being forced these cases. to run the gauntlet of questions to which they cannot give some thought.” Quoted in David Hinckley, Regretting the Slur, New York Daily News, June 4, 2003. See generally Chris Lamb, L’affaire Jake Powell, 76 Journalism and Mass Communication Quarterly 21 Endnotes (Spring 1999). 1. Walker was the least belligerent of the trio of outfield bigots. He 16. See An Orchid to Landis in the Jake Powell Case, Pittsburgh Courier, became extremely popular in Brooklyn in the 1940s, where he was August 1, 1938; Praise Judge Landis for Powell’s Suspension, New known in proper Brooklynese as the “People’s Cherce.” During York Age, August 20, 1938. The Daily Worker thought that the the 1947 season, Walker ended up saying, “No other player on this penalty was mild. See supra note 10. club has done more to put the Dodgers up in the race than 17. Jake Powell Will Continue to Play, McCarthy States, Troy Record, Robinson has. . . . He is everything Branch Rickey said he was.” August 18, 1938; Edward T. Murphy, Powell Booed on Return to John Delcos, Jackie Robinson’s Lonely Fight, York Daily Record, April Yankee Line-Up, New York Sun, August 17, 1938. 15, 1997. See also Harvey Araton, The Dixie Walker She Knew, The 18. Bill Mills, With Our Negro Athletes, Daily Worker, August 29, 1938; N.Y. Times, April 11, 2010, Maury Allen, Dixie Walker of the Dodgers: , Guy Who Made Mistakes, New York Herald Tribune, The People’s Choice (2010). November 7, 1948. 2. See Jackie Robinson, I Never Had It Made, 73 (1972). Jules Tygiel, 19. Ray Robinson, When Bojangles Came to the Yankees’ Defense, New Baseball’s Great Experiment (1997). It is hard in retrospect to York Times, August 22, 2009. Robinson was a “dyed-in-the wool understand why Chapman was ever a manager. His overall record Yankee fan.” Chappie Wins Another Sprint, Beats 3 Rivals, New York as a manager for the Phillies was 196-276 over a four-year period. Daily News, July 27, 1931. Perhaps baseball has always assumed that former players known for their bellicosity, scrappiness and aggressiveness are preferred 20. The conservative columnist Westbrook Pegler would write, “But managerial material. See Leo Durocher, Billy Martin, Chuck the baseball business does nothing at all about this discrimination, Dressen, Earl Weaver, , etc. and Powell can argue plausibly that he got his cue from the very men whose hired disciplinarian has benched him for an idle 3. Tygiel, id.; see also Ben Chapman, Philly Skipper Guns for remark.” Westbrook Pegler, Fair Enough: Negroes and Baseball, Robinson . . . Winchell, Atlanta Daily World, May 14, 1947. Washington Post, August 5, 1938. 4. Id. “He stood in front of the stands to deliver anti-Semitic diatribes 21. Michael Madden, Unlucky Bettor Is Tapped Out, Boston Globe, May to fans who disturbed him and charged over the guardrail to 18, 1999; Taylor, Gallinger, Banned by NHL, Buffalo Courier-Express, punish those who truly offended him.” Richard Sheinin, Field of March 10, 1948. Screams: The Dark Underside of America’s National Pastime, 219 (1994). 22. Bob Cooke, Durocher Suspended for Year from Baseball by Chandler, New York Herald Tribune, April 10, 1947. See also 5. Public Slur in 1938 Laid Bare a Game’s Racism, The N.Y. Times, July pitcher Denny McClain who was suspended for six months in 1970 27, 2008; see also Mark Kram, The Nightmare That Was Philly, for involvement in bookmaking activities. George Vecsey, Baseball Philadelphia Daily News, April 9, 1997. Early in the 1936 season, Suspends McLain for Ties to Gambling, New York Times, February Chapman did make an appearance at the Yonkers Jewish 20, 1970. Community Center. 400 Attend Athletic Banquet at Jewish Community Center, Yonkers Herald Statesman, April 27, 1936. 23. See Molinas v. National Basketball Assoc., 190 F. Supp. 241(S.D.N.Y. 1961). 6. See Arthur Perrin, Yankees Trade Ben Chapman to Senators for Jake Powell, New York Herald Tribune, June 15, 1936. 24. .Michael Martinez, Mays and Mantle Reinstated, The N.Y Times, March 19, 1985. 7. Powell’s career wins above replacement (WAR) measurement is -.8, which is extremely low for a player who spent 11 years in the 25. See , Yankees Owner Is Reinstated by Kuhn, The N.Y major leagues. By contrast, Chapman’s career WAR was 41.9, Times, March 2, 1976. which is indicative of a high-class player. 26. See Joseph Durso, Steinbrenner Suspended for 2 Years, The N.Y 8. Bob Ryan, “Bad Blood Infusion in 1938, Boston Globe, April 2, 2004. Times, November 28, 1974. Saigh Puts Baseball Future Up to Frick, New York Herald Tribune, April 24, 1952. 9. Fay Young, The Stuff Is Here, Chicago Defender, August 6, 1938. 27. Even by 1998, the sports leagues had taken almost no actions 10. See Powell Condemned for Anti-Negro Slur, Daily Worker, August 1, against athletes engaged in domestic violence or sexual assault. 1938. Only one sports league, the NFL, had a “written formal policy for 11. Powell Suspended for Radio Remark, N.Y. Times, July 31, 1938. See Bill disciplining athletes accused or convicted of domestic violence or Madden, Before There Was Rocker, Back in 1938, Landis Ruled Against sexual assault.” That policy had only been invoked once against a Slurs, New York Daily News, February 3, 2000. To a certain extent, player who had a felony conviction for rape. Ellen E. Dabbs, the mainstream media took Powell’s action as akin to star baseball

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 63 Intentional Fouls: Athletes and Violence Against Women, 31 Colum. Controversy Shows How Online Ghosts Will Haunt Us Forever, J.L. & Soc. Probs 167, 176 (1998). Washington Post Blogs, July 19, 2018. 28. Anne Phillips, When Crime Pays, Does Anyone Lose? 35 The 53. Trea Turner and Sean Newcomb Apologize for Racist and Homophobic Entertainment and Sports Lawyer 29 (2019). See also Tate Martin, Tweets, The N.Y Times, July 30, 2018. Wake Up Call: How the Ray Rice Incident Opened the Public’s Eyes to 54. “When all Sterling’s racist thoughts and opinions are placed to the Domestic Violence in Professional Sports and the Need for Change , 24 side, the only legal issue that remains is whether the NBA should Sports L J 183 (2017). hold Sterling legally accountable for a conversation that was 29. The NFL Fails to Punish Violence, University Wire, New York illegally obtained and recorded in the private confines of a home.” University, December 3, 2018. See also Tara Sullivan, Will Chiefs’ Hill Zachary Stirparo, No Privacy for the Intolerant: A Reflection on Using learn from Rice? Boston Globe, February 2, 2020. On the Adrian an Illegal Recording of Donald Sterling To Set NBA Precedent, 13 Peterson case, see NFL Players Ass’n v. NFL, 831 F.3d 985 (8th Cir. Willamette Sports L. J.1, 3 (2016). Lewis Kurlantzick, Feature, 2016). Donald Sterling and the National Basketball Association: The Matter of Privacy 30. Zach Roberts, Domestic Violence: The Hypocrisy in Sports, University , 32 Ent. & Sports Law 27 (2015). Wire, Southern Adventist University, November 14, 2019. 55. See Perez v. Hoblock, 368 F.3d 166 (2d Cir., 2005) permitting the fine 31. Morris Siegel, Stonewalling: Baseball Establishment Shies Away from of a racehorse owner for abusive language where the setting for Action on Minnesota Owner’s Racial Remark, Austin American the abusive language was at a nonpublic forum. Statesman, October 9, 1978. 56. Wail Qasim, When It Comes to Racism, Conor McGregor Needs to Show Humility not Humour , 32. Nick Thimmesch, Baseball Plantation, Washington Post, October 7, , The Independent July 15, 2017. 1978. 57. Anthony Bushfield, Christian Boxer Tyson Fury in “Homophobic, Sexist and Anti-Semitic” Rant , 33. , Reds Owner Suspended for Slurs, Boston Globe, , Premier Christian News May 14, February 4, 1993. 2016. See for example Prominent Breeder Catches Heat for 34. Clare Smith, Baseball Bans Cincinnati Owner for a Year Over Racial 58. , Janet Patton, Racist Post Remarks, The N.Y Times, February 4, 1993. , Daily Gazette, July 8, 2020. 35. Bernie Miklasz, Owners Stone Schott from Glass House, St. Louis Post 59. The NFL fined Favre $50,000 not for his actions but for failing to The Favre Girl; Dispatch, June 4, 1996. cooperate in the investigation. Cynthia McFadden, Out of Bounds, ABC Nightline, April 12, 2011. 36. Mitch Albom, Baseball Crosses Line by Policing Stupidity, Detroit Free Astros Executive Fired for Outburst, Press, February 2, 2000. 60. Chandler Rome, Houston Chronicle, October 25, 2019. 37. K.C. Baker, Michel R. Baker and Bill Hutchinson, Pitcher Hurls Hate See Colegrove v. Green, at City, New York Daily News, December 22, 1999. 61. opinion of Justice Frankfurter in 328 U.S. 549, 556 (1946). 38. Ross Newhan, Rocker’s Penalty Trimmed Severely, Los Angeles Times, March 2, 2000. 39. Sterling v. NBA, 2016 U.S. Dist. LEXIS 38076 (2016). Bennett Liebman is a government lawyer-in-resi- dence at the Government Law Center of Albany Law 40. Id. School and an adjunct professor of law. In his three- 41. Y. Peter Kang, Donald Sterling Drops Suit Against NBA Over Clippers Sale, Law 360, November 18, 2016. decade career in New York State government, he served as a counsel to Cuomo, as a member of the State 42. Joshua S.E. Lee and Jaimie K. McFarlin, Sports Scandals from the Top-Down: Comparative Analysis of Management, Owner, And Athletic Racing and Wagering Board, and as a deputy secretary Discipline in the NFL & NBA, 23 Jeffrey S. Moorad Sports L. J. 69, 89 for gaming and racing for Governor Andrew Cuomo. (2016). 43. Id. at 88. 44. Chris Vivlamore, Ferry Era Over as Team Approves Buyout, Atlanta Journal-Constitution, June 20, 2015. 45. Ray Sanchez, Another Pro Sports Franchise Is Doing Damage Control Over Racist Statements. This Time It’s the Chicago Cubs, CNN Wire, February 6, 2019. 46. Tim Bontemps, Atlanta Hawks GM Wes Wilcox Won’t Be Disciplined by NBA for Comments, Washington Post, January 7, 2017. 47. See, for example, Free Speech: The Marlins Strike Out, Boston Globe, April 12, 2012; The Marlins Punish Political Speech, The N.Y Times, April 10, 2012. 48. Kevin Longley, “Ashamed”: Blue Jays’ Pillar Suspended for Homophobic Slur, Toronto Sun, May 18, 2017. 49. Humberto Fontova, Strike Two for Ozzie Guillen, Washington Times, April 12, 2012. 50. Tung Yin, Donald Sterling and Bad Things Said in “Private,” Jurist— Forum, June 30, 2014, http://jurist.org/forum/2014/06/tung-yin- sterling-privacy.php [last viewed July 4, 2020]. 51. See Mitch Albom, Anti-Semitic Posts—and Tepid Reactions—Should Enrage Us, Detroit Free Press, July 11, 2020. 52. See Andrew Wagner, Starry Night Darkened. Wisconsin State Journal, July 19, 2018; Abby Ohlheiser, Josh Hader’s All-Star Game

64 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 Krell’s Korner is a column about the people, events, and deals that shape the entertainment, arts, and sports industries.

Homes of the Braves By David Krell

Once upon a time, Boston’s baseball loyalties were waukee’s monetary priorities for the moment. Plus, the divided between two teams—the Red Sox and the Braves. county still maintained control of the parking concessions, That time ended in 1953, when the Braves left Beantown a lucrative revenue source, considering the expansion of for bratwurst and beer. Milwaukee welcomed the team, suburbs and car usage in the 1950s. beginning the trend of baseball migration in the 1950s— The morale boost that a city gains from major league Philadelphia Athletics to Kansas City; St. Louis Browns to status cannot be quantified. Wisconsin sportswriter Red Baltimore (and redubbed the Orioles); Brooklyn Dodgers Wyczawski observed, “The thing that amazed us most to Los Angeles; and New York Giants to San Francisco. was the tremendous spirit which prevails in and around Braves owner Lou Perini deflected pleas from Gover- the stadium once the Braves get on the field. From the nor Christian Herter, Mayor John Hynes, and the Boston moment the public address system announces the line- Chamber of Commerce. There was a theory—or at least, a ups, the fans start whooping it up and they don’t relent hope—that keeping the Braves in Boston would let Perini until the last man is retired. It’s remarkable. Even when a field offers from potential buyers. Herter and Hynes com- player hits a foul ball the fans applaud him.”3 bined their political savvy to make this happen, resulting Milwaukee’s first love affair with major league in Boston Globe journalist Joseph F. Dinneen, Jr. chroni- baseball lasted a little more than a decade; Perini sold the cling their last-ditch effort and recounting the politicos’ team in 1962. By the mid-1960s, the new ownership group telegram: “Removal of the Braves’ franchise from Boston sought to move the Braves to Atlanta, sparking a lawsuit will have a disturbing and far-reaching effect on the city. between the state of Wisconsin and the team. Their battle We appeal to you to reconsider the proposed removal, at went to the Supreme Court of Wisconsin.4 least for 1953, so that other arrangements may be worked out and so that an opportunity may be provided other The state’s argument relied on classifying baseball as interests to purchase and retain the franchise in Boston.”1 an activity of interstate commerce and the Braves organi- Civic pride notwithstanding, their efforts were for zation’s migration scheme as acts of conspiracy, restraint naught. Further, Perini had a trump card—the Braves of trade, and monopoly. However, the argument pointed to the Wisconsin antitrust statute, not the federal law that owned the -A Brewers in Milwaukee; therefore, ter- 5 ritorial rights were not a concern. Though Perini had the contravened. It advised that the issue required Congres- right to move the Brewers, displacing the team mandated sional action, not judicial intervention. a payment of $50,000 in compensation to the American If Wisconsin were allowed to prevent the Braves from Association. Perini transported the Brewers to Toledo, moving out of the state, then other states with conflicting changed the team name to Sox, and won the 1953 AA priorities would be allowed to do the same. Chaos would pennant. result because a state would not likely take into factors be- Milwaukee County Municipal Stadium, initially con- yond its border’s account. “There may well be thought to structed for the Brewers, became the home of the city’s be a national interest in a wider distribution of available new ball club. To say that it was a bargain is like saying franchises throughout the country, but it may be doubted that Hank Aaron was an ordinary hitter. The Wisconsin that a state will be objective in deciding whether that is an appropriate consideration, nor what the answer should be State Journal reported that the Braves’ rent would be 6 $1,000 for the first two years of occupancy, followed by in a given case.” 5% of “ticket sales and concession income” through 1957. Though the Wisconsin Supreme Court’s ruling al- Renegotiations were expected after that five-year term.2 lowed the Braves move to Atlanta, it chastised, “The Although public funding financed the ballpark, it seemed record strongly suggests that the defendants gave little that the glamor of a major league team outweighed Mil-

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 65 heed to the interests of the Milwaukee community, and Endnotes to the injury which the move would cause. There ought, 1. Joseph F. Dinneen, Jr., Governor, Mayor, Fans Urge Perini to Stay we think, to be included in any law which Congress may Here, The Boston Globe, March 17, 1953: 1. pass upon this subject some provision which would pro- 2. Henry J. McCormick, Playing the Game, Wisconsin State Journal tect communities, either those who have or hope to have (Madison, WI), May 27, 1953: 23. home teams, from arbitrary and unfair dealing.” 3. Red Wyczawski, Northwest Sportscope: Milwaukee County Stadium Beautiful Plant, The Daily Telegram (Eau Claire, WI), May 19, 1953: 10. The United States Supreme Court refused to hear the 4. https://law.justia.com/cases/wisconsin/supreme-court/1966/31- appeal.7 wis-2d-699-6.html. 5. State v. Milwaukee Braves, Inc., 31 Wis 2d. 699 (1966). “Thus it Milwaukee became a major league city again in 1970. appears that organized baseball enjoys, by reason of long continued When the Seattle Pilots—one of four expansion teams in reliance on Federal Baseball [Club of Baltimore vs. , 259 U.S. 200 (1922)] and the policy reasoning of the supreme court 1969—battled severe financial issues, Bud Selig, a former [sic] that any change should be brought about by legislation, with minority owner of the Braves, led a group to buy the team prospective effect only, an exemption from the federal antitrust and transplant it to Milwaukee. When the Pilots’s owner- laws which no other organized sport enjoys even where the ship entity was declared bankrupt, Selig’s group closed structure and operation of the organization may be similar.” the sale.8 6. Id. 7. Supreme Court’s Action, The N.Y. Times, December 13, 1966: 39. In a nod to history, Selig et al. redubbed the team— 8. Andrew Wagner, Remember When: April 1 Marks 50 Years since the Brewers. Though Milwaukee had suffered a loss and Seattle Pilots’ Move to Milwaukee, Madison.com, April 1, 2020, bitterness remained when the Braves moved to Atlanta, Wisconsin State Journal, https://madison.com/wsj/sports/ baseball/professional/remember-when-april-1-marks-50-years- restoration of major-league status somewhat assuaged the since-seattle-pilots-move-to-milwaukee/article_7022c36e-2dc9- feelings. Little, if any, attention was paid to the journey; 5859-a01a-0ad136c1230f.html. Milwaukee’s gain came at the psychological, financial, and civic expense of another metropolis losing its team. David Krell is the editor of the anthologies The in Popular Culture and The New York What was good for the goose was good for the gan- Yankees in Popular Culture. He’s also the author of Our der, apparently. Bums: The Brooklyn Dodgers in History, Memory and Popular Culture. Krell’s contributions to SABR’s Base- ball Biography Project include Johnny Podres, Bucky Dent, Joe Pepitone, Kurt Russell, and Harry Sinclair. David is the chair of SABR’s Elysian Fields Chapter (Northern New Jersey).

For yourThank dedication, For You!your commitment, and For recognizing the value and relevance of your membership.

As a New York State Bar Association member, your support helps make us the largest voluntary state bar association in the country and gives us credibility to speak as a unified voice on important issues that impact the profession.

Scott M. Karson Pamela McDevitt President Executive Director

66 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 The Entertainment, Arts and Sports Law Section Welcomes New Members

The following members joined the Section between September 24, 2020 and November 9, 2020.

Harvey I. Bezozi Caterina Pizzuti Domenique Stevens Danielle Caswell Samuel Gaspar Rodrigues Robert L. Thony Angelica Iacono-Henderson Jerrel Kristoph Samaroo-Campbell Jay Mahesh Vyas Leland James Mack Morgan Silva Meng Wang Robert J. Olejar Tyler A Sims

PUBLICATIONS Counseling Content Providers in the Digital Age A Handbook for Lawyers Editors Kathleen Conkey, Esq. Elissa D. Hecker, Esq. Pamela C. Jones, Esq.

For as long as there have been printing presses, there have been accusations of libel, invasion of privacy, intellectual property infringements and a variety of other torts. Now that much of the content reaching the public is distributed online, as well as by television, radio and in print, the field of pre-publication review has become more complicated and more important. This title provides an overview of the issues content reviewers face repeatedly. Counseling Content Providers in the Digital Age was written and edited by experienced media law attorneys from California and New York. This book is invaluable to anyone entering the field of pre-publication review as well as anyone responsible for vetting the Book (4063) content of their client’s or their eBook (4063E) firm’s website. NYSBA Members $55.00 Non-Members $70.00

ORDER ONLINE: NYSBA.ORG/PUBS | ORDER BY PHONE: 800.582.2452

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 67 Section Committees and Chairpersons The Entertainment, Arts and Sports Law Section encourages members to participate in its programs and to contact the Section Officers or the Committee Chairs or Co-Chairs for further information.

Alternative Dispute Resolution Fashion Law Literary Works and Related Rights Judith B. Prowda Olivera Medenica Judith B. Bass Sotheby’s Institute of Art Dunnington Bartholow & Miller LLP Law Offices of Judith B. Bass 570 Lexington Ave 250 Park Ave, Ste 1103 1325 Avenue of the Americas, Fl 27 New York, NY 10022-6837 New York, NY 10177 New York, NY 10019 [email protected] [email protected] [email protected]

Copyright and Trademark Fine Arts Joan S. Faier Christine-Marie Lauture Paul Scroppo Cossu 1011 North Ave Lauture IP, PLLC Pryor Cashman LLP New Rochelle, NY 10804-3610 445 Broadhollow Rd, Ste 25 7 Times Sq [email protected] Melville, NY 11747 New York, NY 10036-6569 [email protected] [email protected] Litigation Brian D. Caplan Stephen B. Rodner Judith B. Prowda Reitler Kailas & Rosenblatt LLC Pryor Cashman LLP Sotheby’s Institute of Art 885 3rd Ave 7 Time Sq 570 Lexington Ave New York, NY 10022 New York, NY 10036 New York, NY 10022 [email protected] [email protected] [email protected] Paul V. LiCalsi Digital Entertainment Carol J. Steinberg Reitler Kailas & Rosenblatt LLC Sarah Margaret Robertson Law Firm of Carol J. Steinberg 885 3rd Ave, Fl 20 Dorsey & Whitney LLP 74 E. 7th St, Ste F3 New York, NY 10022 51 W 52nd St New York, NY 10003 [email protected] New York, NY 10019 [email protected] [email protected] International Committee Law Student Committee Donna E. Frosco Andrew Howard Seiden Gabrielle Costa Dunnington Bartholow & Miller LLP Curtis, Mallet-Prevost, Colt Syosset, New York 250 Park Ave, Ste 1103 & Mosle LLP [email protected] New York, NY 10177 101 Park Ave, Ste 3500 Isaro Carter [email protected] New York, NY 10178-0061 Jamaica, New York [email protected] [email protected] Membership Anne Louise LaBarbera Diversity Legislation Thomas LaBarbera Counselors at Law PC Anne S. Atkinson Marc Jacobson 11 Broadway, Ste 615 Pryor Cashman LLP Marc Jacobson, PC New York, NY 10004 7 Times Sq 440 E 79th St, Fl 11 [email protected] New York, NY 10036-6569 New York, NY 10075 [email protected] [email protected] Judah S. Shapiro Judah S. Shapiro, Esq. Cheryl L. Davis Steven H. Richman 33 Brandt St Authors Guild Board of Elections, City of New York Hastings On Hudson, NY 10706 31 E 32nd St, Fl 7 32 Broadway, Fl 7 [email protected] New York, NY 10016 New York, NY 10004-1609 [email protected] [email protected]

68 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 Motion Pictures Pro Bono Steering (cont.) Theatre and Performing Arts Ethan Y. Bordman Carol J. Steinberg Jason P. Baruch Ethan Y. Bordman, PLLC Law Firm of Carol J. Steinberg Sendroff & Baruch, LLP 244 Godwin Ave 74 E. 7th St, Ste F3 1500 Broadway, Ste 2201 Ridgewood, NJ 07450 New York, NY 10003 New York, NY 10036-4052 [email protected] [email protected] [email protected]

Robert L. Seigel Tin-Fu (Tiffany) Tsai Kathy Kim The Law Office of Robert L. Seigel New York, NY 101 Productions, Ltd. 575 Madison Ave, Fl 10 [email protected] 260 W 44th St, Ste 600 New York, NY 10022 New York, NY 10036 [email protected] Publications [email protected] Elissa D. Hecker Music Law Office of Elissa D. Hecker Diane F. Krausz Judah S. Shapiro 64 Butterwood Ln East Diane Krausz & Associates 33 Brandt St Irvington, NY 10533-2336 115 W 29th St, Fl 3 Hastings On Hudson, NY 10706 [email protected] New York, NY 10001 [email protected] [email protected] Publicity, Privacy and Media Rosemary Tully Edward H. Rosenthal Young Entertainment Lawyers Rosemarie Tully, PC Frankfurt Kurnit Klein & Selz, P.C. Ronald J. Coleman P.O. Box 1054 488 Madison Ave, Fl 10 Georgetown University Law Center Huntington, New York 11743 New York, NY 10022-5702 Silver Spring, MD 20910-6278 [email protected] [email protected] [email protected]

Not-for-Profit David H. Faux Christine-Marie Lauture Robert J. Reicher Law Office of David H. Faux, P.C. Lauture IP, PLLC 630 9th Ave, Ste 802 1180 Avenue of the Americas 445 Broadhollow Rd, Ste 25 New York, NY 10036 Floor 8 Melville, NY 11747 [email protected] New York, NY 10036 [email protected] [email protected] Phil Cowan-Judith Bressler Memorial Scholarship Committee Sports Committee Judah S. Shapiro Jill Pilgrim Judah S. Shapiro, Esq. Pilgrim & Associates 33 Brandt St New York, NY 10026 Hastings On Hudson, NY 10706 [email protected] [email protected] Jeffrey G. Aber Pro Bono Steering Law Office of Jeffrey G. Aber, P.C. Louise Marie Abigail Carron Mamaroneck, NY 10543 Center for Art Law [email protected] 195 Plymouth St, Ste 621 Brooklyn, NY 11201 Television and Radio [email protected] Pamela C. Jones Law Offices of Pamela Jones Elissa D. Hecker P.O. Box 222 Law Office of Elissa D. Hecker Fairfield, CT 06824 64 Butterwood Ln East [email protected] Irvington, NY 10533 [email protected]

NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 69 Publication of Articles Entertainment, Arts and The Journal welcomes the submission of articles Sports Law Journal of timely interest to members of the Section. Articles should be submitted with biographical information Editor Elissa D. Hecker via e-mail in Microsoft Word format. Please submit Law Office of Elissa D. Hecker articles to: [email protected] Elissa D. Hecker Citation Editor Editor, EASL Journal Eric Lanter ([email protected]) [email protected] Section Officers Chair NEW YORK STATE BAR ASSOCIATION Barry Werbin Herrick Feinstein LLP 2 Park Ave New York, NY 10016-5675 Find us Online [email protected] Vice-Chair Ethan Y. Bordman Find the Ethan Y. Bordman, PLLC EASL Journal Online: 244 Godwin Ave • Past Issues Ridgewood, NJ 07450-3720 (2000-present) [email protected] of the EASL Journal* Second Vice-Chair • EASL Journal Andrew Howard Seiden Searchable Index Curtis Mallet-Prevost Colt & Mosle LLP (2000-present) 101 Park Ave, Ste 3500 New York, NY 10178-0061 *You must be an EASL Section member and logged in to access the Journal. [email protected] Need password assistance? Visit our website at www.nysba.org/pwhelp. For questions or log-in help, call 518-463-3200. Secretary Robert L. Seigel www.nysba.org/EASL 575 Madison Ave, Fl 10 New York, NY 10022-2511 [email protected] This Journal is published three times a year for members of the Assistant Secretary Entertainment, Arts and Sports Law Section of the New York Carol J. Steinberg State Bar Association. Mem­bers of the Section receive the Journal Law Firm of Carol J. Steinberg without charge. The views expressed in articles published in 74 E. 7th St, Ste F3 this Journal represent those of the authors only, and not nec- New York, NY 10003 essarily the views of the Editor, the Enter­tainment, Arts and [email protected] Sports Law Section or the New York State Bar Association. Treasurer We reserve the right to reject any advertisement. The New York State Bar Association is not responsible for typo­ ­graph­i­cal or Kathy Kim other errors in advertisements. 101 Productions, Ltd. 260 W 44th St, Ste 600 Accommodations for Persons with Disabilities: New York, NY 10036-3900 NYSBA welcomes participation by individuals with disabilities. [email protected] NYSBA is committed to complying with all applicable laws that prohibit discrimination against individuals on the basis of Assistant Treasurer disability in the full and equal enjoyment of its goods, services, Cheryl L. Davis programs, activities, facilities, privileges, advantages, or accom- Author’s Guild modations. To request auxiliary aids or services or if you have 31 E 32nd St, Fl 7 any questions regarding accessibility, please contact the Bar New York, NY 10016-5583 Center at (518) 463-3200.

©2020 by the New York State Bar Association. ISSN 1090-8730 (print) ISSN 1933-8546 (online)

70 NYSBA Entertainment, Arts and Sports Law Journal | Fall 2020 | Vol. 31 | No. 4 New York State Bar Association New York

NYSBA Membership 2021 Renewal Is Now Open NYSBA membership grants you access to exclusive benefits and to be part of monumental change. Whether it’s adapting to the new virtual environment, participating in health law discussions, or speaking out on racial injustice, we are always looking to increase involvement via leadership and task force opportunities. Here’s a list of existing benefits and partners…with additional ones added throughout the year! • Complimentary CLE programs included with select Membership • 25%+ discount on all additional CLE programs offered • 25%+ discount on all NYSBA published books & forms • Complimentary copies of the NYSBA Journal, State Bar News, CasePrepPlus and NY Law Digest NYBSA Partners ABA Retirement Funds JDL Group Renew Online USI Affinity Insurance Ruby Receptionists ABACUSLAW UPS NYSBA.ORG/RENEW2021 Clio Digital Age Marketing Group or by phone 800.582.2452 LawPay Fastcase

Don’t forget! Discounted entertainment, travel and activities. New York Yankees Radio City Music Hall NYC Zoos and Aquariums Brooklyn Nets Sightseeing Pass AVIS/Hertz Rental Cars Barclays Center

*Select discounts and promotions will vary by partner NEW YORK STATE BAR ASSOCIATION NON PROFIT ORG. ENTERTAINMENT, ARTS AND SPORTS LAW SECTION U.S. POSTAGE PAID One Elk Street, Albany, New York 12207-1002 ALBANY, N.Y. PERMIT NO. 155

New York State Bar Association ANNUAL MEETING A TWO-WEEK VIRTUAL CONFERENCE

JANUARY 19 – 29, 2021

ENTERTAINMENT, ARTS AND SPORTS SECTION TUESDAY, JANUARY 19, 2021 12:30 p.m. – 4:00 p.m. TUESDAY, JANUARY 26, 2021 2:00 p.m. – 4:15 p.m. NYSBA.ORG/AM2021

Special Early Bird Pricing Ends 12/31/20

*Date and time is subject to change