Tuesday, 12 May 2015
Legal Strategy for Tom Brady and New England Patriots
More catalyzed fans
Sports fans are certainly being catalyzed to spend money in crowdfunding efforts. But the focus of fan spending seems to be less on player recruitment and retention, the focus of our discussion, and more on one-shot efforts to handle team crises. The latest example: New England Patriots fans started a GoFundMe campaign to pay the $ 1 million fine the NFL levied against the team over the use of under-inflated balls during last year's conference championship game. In the first 22 hours, 500 people donated just over $ 7200.
Mike, Dan Markel, and I nodded toward this form of fan funding, although we recognized the obvious moral hazard problems. Still, these efforts are increasingly common, at least on a small scale.
Mike, Dan Markel, and I nodded toward this form of fan funding, although we recognized the obvious moral hazard problems. Still, these efforts are increasingly common, at least on a small scale.
Wednesday, 6 May 2015
Legal Analysis of the Wells Report on the Patriots and Tom Brady
Tuesday, 5 May 2015
Do the Yankees have to pay Alex Rodriguez for hitting his 660th Home Run?
Monday, 4 May 2015
Walk-off Infield Fly Rule
Great story about a Japanese baseball game on Monday that ended with a walk-off infield fly (H/T: My FIU colleague Ediberto Roman). This is a welcome new story for my hoped-for book on the IFR.
With the bases loaded and one out in the bottom of the ninth, the batter hit a pop-up right in front of home plate. The third-base umpire (although not the home plate umpire) signaled Infield Fly (you can see him in the background at the 0:57 mark). The ball fell to the ground between two players. One of them picked up the ball and stepped on home, looking to get the force out on the runner on third. But he did not tag the runner, who continued across the plate. The batter being called out on the IFR removes the force play at home; the runners can advance at their own risk and any play at a base becomes a tag play. After an argument and a conference, in which the third-base umpire presumably told the plate umpire that he had called IFR, the runner was called safe at home, and the game ended.
With the bases loaded and one out in the bottom of the ninth, the batter hit a pop-up right in front of home plate. The third-base umpire (although not the home plate umpire) signaled Infield Fly (you can see him in the background at the 0:57 mark). The ball fell to the ground between two players. One of them picked up the ball and stepped on home, looking to get the force out on the runner on third. But he did not tag the runner, who continued across the plate. The batter being called out on the IFR removes the force play at home; the runners can advance at their own risk and any play at a base becomes a tag play. After an argument and a conference, in which the third-base umpire presumably told the plate umpire that he had called IFR, the runner was called safe at home, and the game ended.
The Federalist Structure of Trademark Law Fosters Robust Public Debate
The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is their third guest post on the Washington Professional Football Team trademark case. It is cross-posted at the PrawfsBlawg.
In recent days, following a Federal Circuit ruling in one disparaging marks case (“the Slants”) and briefing in another (“Redskins”), civil libertarians and artists have joined forces to cry that the applicable provision in federal trademark law suppresses speech. But does it? In this post, we wish to suggest that the ban on registering disparaging marks not only does not suppress any high value speech, but might actually enhance freedom of expression.
Strong First Amendment regimes are valuable when political, social, or artistic creativity is endangered by direct regulation. Weaker First Amendment regimes are more sensible when a complicated mix of government objectives and expressive risks is at stake. In our view, whatever doctrinal tools are ultimately used (e.g., government speech or commercial speech), a weak role for the First Amendment is most sensible in this area.
We begin with the observation that trademarks are expressive in a specific but limited commercial sense: they are distinctive words, names, or symbols used to designate the source of a good or service and distinguish it from others in the marketplace. Most marks by themselves are not coherent enough to constitute political or social expression. Occasionally, one comes across a symbol that might have artistic value, but even then its contribution to public debate on matters of public importance is likely to be extremely limited. Thus, regulation of brand names does not implicate the core of the First Amendment.
Then, there is the most obvious point: denial of registration does nothing to prevent the owner of a mark from using that mark. We have already detailed the ways in which the registration framework does not actually suppress speech. Beyond the fact that the Lanham Act does not inhibit speech directly, however, it also contemplates a federalist structure that helps to promote free speech. Federal law does not create trademark rights, but merely seeks to streamline this area of law by building new federal remedies on the edifice of state law. As the Supreme Court explained in the Trade-Mark Cases, “This exclusive right was not created by the act of Congress, and does not now depend upon it for its enforcement.” Because federal law did not preempt state trademark law, the absence of Lanham Act remedies does not extinguish state law claims.
When no federal registration exists, a trademark owner can sue an alleged infringer in the jurisdiction where the mark is used and where the infringement occurred. It is said that under the common law, one cannot protect a trademark that violates public policy. But it would be up to each state to determine whether certain kinds of marks contravene that state’s established public policy. Maine, for instance, apparently has no trouble with disparaging marks, barring only marks that are “obscene, contemptuous, profane or prejudicial… [or i]nappropriately promotes abusive or unlawful activity.”
Most states have adopted the model trademark bill patterned on the Lanham Act. This is true in California, which also prohibits the registration of immoral, scandalous, and disparaging marks. A trademark owner such the Slants can argue that the mark is not disparaging under California law. Even with identical statutory provisions, different outcomes in different jurisdictions are possible. State law may base determinations on local perceptions of the mark, which may deviate from national views, and may develop different doctrines such as taking into account the mark owner’s intent to re-appropriate slurs. Thus it is conceivable that states may reach a different conclusion about the same mark.
Does refusal to register raise the costs of enforcement? It might very well do so, but such differences in enforcement regimes has never been enough to raise constitutional difficulties, especially in a federal system of laws that includes many built-in inefficiencies.
These inherent inefficiencies could actually enhance liberty better in the long run than a First Amendment dominated system. Some states would surely follow the federal government’s lead by broadly disallowing registration/enforcement of certain slurs as trademarks. They would prefer to withdraw the state’s imprimatur from illiberal ideas and hope to discourage their use. The fact that copycats and counterfeiters might make widespread use of the same design or logo, perhaps even to coopt the ideas for benevolent goals, would be taken as evidence of healthy public discourse.
On the other hand, other states might see value in granting legal protection to certain taboo ideas disallowed by the federal government, by finding that particular terms are not offensive to local communities. Or perhaps states might do so on the theory that legal protection of coopted epithets promotes dissent within ethnic communities. Madhavi Sunder has made just this kind of argument, but the rationale does not depend on a nationwide rule. States themselves could decide to strike its own path on how to determine when a mark “disparages.”
The key to a system characterized by a weak First Amendment is that no jurisdiction—neither federal nor state—has the obligation to reject or endorse disparaging marks. Rather, the government’s power to ensure broad participation in the marketplace and guard against illiberal business practices are treated as just as important as an individual right to expression. It is worth remembering that even in a weak First Amendment regime, the Constitution would still remain powerfully available in the background, protecting against direct efforts to stamp out disparaging ideas.
This more nuanced approach that can only flourish if the First Amendment is not deployed in a one-size-fits-all manner requiring government to protect whatever a trademark applicant demands. If the strong First Amendment position prevails, then state and federal restrictions on trademark content would be swept aside, across the board. By operation of the Fourteenth Amendment, every level of government would have to endorse and subsidize morally repugnant marks.
The people of each state would no longer be allowed to determine public policy in this domain or to express their view that certain commercial practices are illiberal. In such a world, free speech principles might reign nationally in trademark law, but one should wonder whether they would really promote robust debate.
In recent days, following a Federal Circuit ruling in one disparaging marks case (“the Slants”) and briefing in another (“Redskins”), civil libertarians and artists have joined forces to cry that the applicable provision in federal trademark law suppresses speech. But does it? In this post, we wish to suggest that the ban on registering disparaging marks not only does not suppress any high value speech, but might actually enhance freedom of expression.
Strong First Amendment regimes are valuable when political, social, or artistic creativity is endangered by direct regulation. Weaker First Amendment regimes are more sensible when a complicated mix of government objectives and expressive risks is at stake. In our view, whatever doctrinal tools are ultimately used (e.g., government speech or commercial speech), a weak role for the First Amendment is most sensible in this area.
We begin with the observation that trademarks are expressive in a specific but limited commercial sense: they are distinctive words, names, or symbols used to designate the source of a good or service and distinguish it from others in the marketplace. Most marks by themselves are not coherent enough to constitute political or social expression. Occasionally, one comes across a symbol that might have artistic value, but even then its contribution to public debate on matters of public importance is likely to be extremely limited. Thus, regulation of brand names does not implicate the core of the First Amendment.
Then, there is the most obvious point: denial of registration does nothing to prevent the owner of a mark from using that mark. We have already detailed the ways in which the registration framework does not actually suppress speech. Beyond the fact that the Lanham Act does not inhibit speech directly, however, it also contemplates a federalist structure that helps to promote free speech. Federal law does not create trademark rights, but merely seeks to streamline this area of law by building new federal remedies on the edifice of state law. As the Supreme Court explained in the Trade-Mark Cases, “This exclusive right was not created by the act of Congress, and does not now depend upon it for its enforcement.” Because federal law did not preempt state trademark law, the absence of Lanham Act remedies does not extinguish state law claims.
When no federal registration exists, a trademark owner can sue an alleged infringer in the jurisdiction where the mark is used and where the infringement occurred. It is said that under the common law, one cannot protect a trademark that violates public policy. But it would be up to each state to determine whether certain kinds of marks contravene that state’s established public policy. Maine, for instance, apparently has no trouble with disparaging marks, barring only marks that are “obscene, contemptuous, profane or prejudicial… [or i]nappropriately promotes abusive or unlawful activity.”
Most states have adopted the model trademark bill patterned on the Lanham Act. This is true in California, which also prohibits the registration of immoral, scandalous, and disparaging marks. A trademark owner such the Slants can argue that the mark is not disparaging under California law. Even with identical statutory provisions, different outcomes in different jurisdictions are possible. State law may base determinations on local perceptions of the mark, which may deviate from national views, and may develop different doctrines such as taking into account the mark owner’s intent to re-appropriate slurs. Thus it is conceivable that states may reach a different conclusion about the same mark.
Does refusal to register raise the costs of enforcement? It might very well do so, but such differences in enforcement regimes has never been enough to raise constitutional difficulties, especially in a federal system of laws that includes many built-in inefficiencies.
These inherent inefficiencies could actually enhance liberty better in the long run than a First Amendment dominated system. Some states would surely follow the federal government’s lead by broadly disallowing registration/enforcement of certain slurs as trademarks. They would prefer to withdraw the state’s imprimatur from illiberal ideas and hope to discourage their use. The fact that copycats and counterfeiters might make widespread use of the same design or logo, perhaps even to coopt the ideas for benevolent goals, would be taken as evidence of healthy public discourse.
On the other hand, other states might see value in granting legal protection to certain taboo ideas disallowed by the federal government, by finding that particular terms are not offensive to local communities. Or perhaps states might do so on the theory that legal protection of coopted epithets promotes dissent within ethnic communities. Madhavi Sunder has made just this kind of argument, but the rationale does not depend on a nationwide rule. States themselves could decide to strike its own path on how to determine when a mark “disparages.”
The key to a system characterized by a weak First Amendment is that no jurisdiction—neither federal nor state—has the obligation to reject or endorse disparaging marks. Rather, the government’s power to ensure broad participation in the marketplace and guard against illiberal business practices are treated as just as important as an individual right to expression. It is worth remembering that even in a weak First Amendment regime, the Constitution would still remain powerfully available in the background, protecting against direct efforts to stamp out disparaging ideas.
This more nuanced approach that can only flourish if the First Amendment is not deployed in a one-size-fits-all manner requiring government to protect whatever a trademark applicant demands. If the strong First Amendment position prevails, then state and federal restrictions on trademark content would be swept aside, across the board. By operation of the Fourteenth Amendment, every level of government would have to endorse and subsidize morally repugnant marks.
The people of each state would no longer be allowed to determine public policy in this domain or to express their view that certain commercial practices are illiberal. In such a world, free speech principles might reign nationally in trademark law, but one should wonder whether they would really promote robust debate.
Friday, 1 May 2015
The NCAA: What IS Their Mission?
If you visit the NCAA's homepage, the organization boldly declares "Student-athlete success on the field, in the classroom and in life is at the heart of our mission."
Let's evaluate that claim with two recent statements made by the NCAA:
1. In response to a recent wrongful death lawsuit brought by a college athlete, the NCAA stated "it has no legal duty to protect student-athletes." [Here is a terrific recap of this case and the NCAA's response by Dennis Dodd.] Quick history lesson, the NCAA was founded in 1906 to promote the safety of the college athlete.
2. In response to the academic scandal unfolding at UNC, the NCAA stated it did not have a "duty to ensure the quality of the education of student-athletes." So apparently, when NCAA executive director Walter Byers created the term "student-athlete" in the 1950s to ostensibly shield the NCAA from worker's compensation claims, the concept of "student" was merely an empty label.
In sum, the NCAA is declaring that their aforementioned lofty mission does not include any responsibility to protect either the STUDENT or the ATHLETE.
Let's evaluate that claim with two recent statements made by the NCAA:
1. In response to a recent wrongful death lawsuit brought by a college athlete, the NCAA stated "it has no legal duty to protect student-athletes." [Here is a terrific recap of this case and the NCAA's response by Dennis Dodd.] Quick history lesson, the NCAA was founded in 1906 to promote the safety of the college athlete.
2. In response to the academic scandal unfolding at UNC, the NCAA stated it did not have a "duty to ensure the quality of the education of student-athletes." So apparently, when NCAA executive director Walter Byers created the term "student-athlete" in the 1950s to ostensibly shield the NCAA from worker's compensation claims, the concept of "student" was merely an empty label.
In sum, the NCAA is declaring that their aforementioned lofty mission does not include any responsibility to protect either the STUDENT or the ATHLETE.
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