NYSBA SPRING 2014 | VOL. 25 | NO. 1 Entertainment, Arts and Sports Law Journal A publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association Concussion Litigation in the NHL; Is It Time to Pay College Athletes?; Bullying in Sports; The Anti-Flopping Policy in the NBA; and Much More WWW.NYSBA.ORG/EASL NEW YORK STATE BAR ASSOCIATION Section Members get 20% discount* with coupon code In The Arena: PUB2140N A Sports Law Handbook Co-sponsored by the New York State Bar Association and the Entertainment, Arts and Sports Law Section 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 fi eld of sports law. Written by dozens of sports law attorneys and medical professionals, In the Arena: A Sports Law Handbook is a refl ection 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 of useful appendices. Table of Contents Intellectual Property Rights and Endorsement Agreements How Trademark Protection Intersects with the Athlete’s Right of Publicity EDITORS Collective Bargaining in the Big Three Elissa D. Hecker, Esq. Agency Law David Krell, Esq. 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An Introduction to European Union Sports Law *Discount good until May 23, 2014 Dental and Orofacial Safety Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB2140N Table of Contents Page Remarks from the Chair .....................................................................................................................................................4 Editor’s Note/Pro Bono Update ......................................................................................................................................5 Law Student Initiative Writing Contest ...........................................................................................................................7 The Phil Cowan Memorial/BMI Scholarship .................................................................................................................8 NYSBA Guidelines for Obtaining MCLE Credit for Writing .....................................................................................10 Copyright Offi ce’s Copyright Small Claims Proposal .................................................................................................11 (Joel L. Hecker) Entertainment Immigration: Skilled Workers and Models .........................................................................................13 (Michael Cataliotti) Monuments Men, Hidden Treasures, and the Restitution of Looted Art .................................................................16 (Leila Amineddoleh) The Other Skate Drops: The NHL Concussion Lawsuit..............................................................................................23 (Carter Anne McGowan) The NHL Concussion Litigation .....................................................................................................................................33 (Carrie Anderer) The Twentieth Century and Property Expropriation: Quest for the Return of the Morozov Collection .............37 (Amanda Agnieszka Rottermund) Chronic Traumatic Encephalopathy: The Developing Legal Case Against High School Football .......................44 (G. Ivan Hannel, Andrew Gartman and Jason Karpel) Boys Will Be Boys, but the Law Is the Law—The Potential Liability for Professional and College Sports Teams When Handling Allegations of Bullying Among Teammates .................................51 (Eric D. Bentley) Who Is a Journalist? New Jersey Extends Shield Law Protection to Partisan Blogger Tina Renna ......................55 (Raymond Baldino) Notoriety, Exclusivity, and the First Amendment: What’s the Value of a High-Profi le Crime? ............................58 (Ethan Bordman) Labor Relations and the Anti-Flopping Policy: Has the NBA Dropped the Ball? ...................................................65 (David Fogel) Misrepresentation Under the DMCA: The State of the Law.......................................................................................72 (Amanda Schreyer) It Is Not Time to Pay College Athletes… ........................................................................................................................80 (James A. Johnson) Russian Sport Disputes Resolution: Theory and Real Practice ..................................................................................82 (Sergey Yurlov) Entertainment, Arts and Sports Law Section Annual Meeting Program Transcript ...............................................85 Once Upon a Time… A Brief Memoir and Life Tips ..................................................................................................129 (Michael A. Feit) TV 101 Not Everyone Smiles on Candid Camera ...............................................................................................................133 (Nima Daivari) Krell’s Korner: A Funny Thing Happened on the Way to McDonaldland .............................................................135 (David Krell) NYSBA Entertainment, Arts and Sports Law Journal | Spring 2014 | Vol. 25 | No. 1 3 Remarks from the Chair I am writing this less than by Jason Baruch and Diane Krausz, our Spring Meeting in 24 hours after being elected May and our legal panel at CMJ in October. Chair of EASL, so my initial I am sure that we will be presenting many other column will not dwell on programs, both educational and social, during the year EASL’s past activities, but on that will prove to be both enlightening and fun. Several the future. I am very honored of these are currently under discussion and will be an- to be Chair and excited about nounced as soon as they are confi rmed. our future. I know that I have very big shoes to fi ll (fi gura- Our law school liaison program, organized and super- tively, not literally). I am vised by Jason Aylesworth, has so far proven to be very grateful that Rosemarie Tully, successful and has introduced many future entertainment and, in fact all past Chairs, lawyers and EASL members to us. I also look forward to have left a great legacy. the continued events and activities of our Diversity Com- mittee, headed by Anne Atkinson, Rich Boyd and Cheryl Now that EASL’s 25th Anniversary is behind us, we Davis. I can’t list all of our subcommittees, but I’m sure can look to the next 25 with great anticipation. With the that they will all do exciting things over the next year. Our help of my Vic e Chairs, Diane Krausz and Jason Baruch, website, Journal and Blog, edited and administered by our Albany liaison Beth Gould and the entire Executive Elissa Hecker, will continue to be great resources for EASL Committee, I am confi dent that we can make 2014 a won- and the entire legal community. derful and unique year for EASL. I hope to have more things to report and comment The fi rst two quarters of the year contained several upon as I settle in. great programs, including The Fashion Law Committee event and Sports Law Symposium in conjunction with Fordham, the always popular and successful theatre law Stephen B. Rodner CLE event in conjunction with CTI in April, organized Follow NYSBA and EASL visit on Twitter www.twitter.com/ nysba and www.twitter.com/ nysbaeasl and click the link to follow us and stay up-to-date on the latest news from the Association and the EASL Section 4 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2014 | Vol. 25 | No. 1 Editor’s Note/Pro Bono Update Welcome to our new The Pro Bono Committee had a busy start to 2014. Offi cers! On January 14th, we co-sponsored a Clinic with the • Chair: Steve Rodner IP Section that focused on Intellectual Property issues for • Vice Chair: Diane Krausz startup companies, in conjunction with The City of New • Second Vice Chair: York and WeWork. Jason Baruch On February 23rd, we held our second annual • Secretary: Anne S. Dance/NYC Symposium Clinic at the Gibney Dance Cen- Atkinson ter in Manhattan. After over so many volunteer attorneys • Assistant Secretary: responded, we had to close registration due to capacity Jay Kogan issues. Thank you to everyone who attended—once again • Treasurer: Richard A. we had an overwhelming satisfaction rate from the dance Garza clients. • Assistant Treasurer: Carol J. Steinberg Special thanks to: This terrifi c leadership team will work closely with Caroline Camp the Executive Committee and continue EASL’s forward thinking programs, panels and activities. Bob Celestin Elissa Charles