Slate's Hang Up and Listen devoted its first segment to the (problem?) of a Hack-a-[Blank], thr strategy of intentionally fouling a poor free throw shooter away from the ball throughout the game. They discuss whether it works, whether it spoils the game, and what, if anything, can or should be done about it. The best solution is probably to give the offense the option of getting the ball out of bounds instead of taking the free throws (there used to be a similar rule in international basketball).
So if this (or some other rule change) came about, should we understand it as a limiting rule grounded in cost-benefit disparity, a la the Infield Fly? Again, I don't think so. Instead, this would be a purely aesthetic rule, designed to make the game look better and be more enjoyable to watch. To be sure, there is an aesthetic component to the logic of the Infield Fly Rule; that rule disincentivizes teams from intentionally failing to catch easily playable balls, which is unappealing to watch. But the chief concern is the cost-benefit imbalance, of the defense getting two outs instead of one and the runner being unable to stop it. That is missing with Hack-a-[Blank], because the offense can overcome the strategy by making the free throws or rebounding the miss. Nevertheless, the game becomes unappealing when it involves nothing more than intentional fouls on DeAndre Jordan 25 feet from the basketball and a parade of missed free throws. So the rule change may seek to limit strategy solely in the name of aesthetics.
Tuesday, 28 April 2015
MLBPA & Reducing Player Contracts
Alas, MLBPA refused to sign off on his reduction in salary, blocking the trade in claiming that the Red Sox were not providing any "added benefits" to ARod to compensate for the loss in salary. The Red Sox offered to allow ARod to opt out of his contract two years early, but the union scoffed at that offer claiming he was the highest paid player in the league, unlikely to get the same money in free agency.
Ultimately, as we all know, the deal was blocked by the MLBPA leading Larry Lucchino, President & CEO of the Red Sox, to state "it's a sad day when the players' association thwarts the wills of its members...." Ultimately, as we all know, Alex Rodriguez found his way to the New York Yankees and the Boston Red Sox went on to win the 2004 World Series without him.
Fast forward to the present as the Los Angeles Angels of Anaheim agree to "trade" Josh Hamilton to the Texas Rangers after their owner's displeasure in his off-season drug relapse. As of now, the Rangers are offering the nebulous "player to be named later" as compensation to the Angels. With over $80 million remaining on his contract, Hamilton has reportedly agreed to forfeit $12 million to ensure his return to Texas. And, this time, the MLBPA has decided to allow this trade to go through. What's does the MLBPA see as differences between ARod's willingness to forgo salary and Hamilton's?
- Since there is no state income tax in Texas, the take home pay for Hamilton is close to negligible, thereby not actually "devaluing" Hamilton's compensation. In fact, Robert Raiola (@SportsTaxMan), told SI.com "By moving out of California sooner, Hamilton would escape the state's high income tax--the highest in the nation at 13.3%--and thereby recoup some of the money he'd lose if he takes less....";
- According to multiple reports, Hamilton will reportedly be given an opt-out clause in two years which qualifies as an "extra benefit" to the player; (not sure why this is valuable in 2015 but wasn't in 2003)
- And, finally, if one were to be optimistic, perhaps the union really is interested in what's best for a player, acknowledging Texas may be a better environment for Josh Hamilton off the field regardless of his salary.
Legal issues in Josh Hamilton's departure from the Angels
Hope you have chance to read my Sports Illustrated story on the Hamilton saga.
Sports Lawyers Association Conference Update
Sunday, 26 April 2015
Wednesday, 22 April 2015
The First Amendment and the Redskins’ Trademark, Part II: A Shot Across the Bow from the Federal Circuit
The following post is by Christine Haight Farley and Robert L. Tsai (both of American); it is their second guest post on the Washington Professional Football Team trademark case. It is cross-posted at PrawfsBlawg.
On Tuesday, the Federal Circuit issued a unanimous decision (In re Tam) holding that the mark THE SLANTS was properly refused registration because it is disparaging to people of Asian descent. Since 2010, Simon Shiao Tam, the front man for the Asian-American rock band “The Slants,” has been trying to obtain trademark recognition for the name of his band. The record shows that the band picked the name by thinking of “things that people associate with Asians. Obviously, one of the first things people say is that we have slanted eyes.” The record of the case confirmed that “slants,” used in the way proposed, would likely be received as a racial slur.
The fact that the registrant wished to re-appropriate an ethnic slur and try to create a positive connotation did not alter the outcome. Nor was the Court troubled that the user’s own race formed part of the background for assessing the objective meaning of the mark in commerce. Both of these jurisprudential choices are consistent with the Federal Circuit’s approach to statutory interpretation, which strives for an objective meaning of trademarks in actual use. In our view, the private cooptation of illiberal ideas can generate terrific art and might very well help to change social meaning in the long run. But you don’t need trademark protection to engage in such projects of appropriation; indeed, granting one user legal protection might even stifle others who would like to experiment further with taboo ideas.
In re Tam now makes it two cases on trademark disparagement that the Federal Circuit has ever decided—both have been in the past year and both affirmed the TTAB’s finding of disparagement. The court obviously felt bound by precedent. Nevertheless, Judge Moore, the author of the 11-page majority opinion, offered 24 pages of what was styled “additional views," but which read more like a petition for rehearing en banc on the constitutionality of § 2(a) of the Lanham Act.
Though not binding, this last bit by Judge Moore may prove most interesting of all. The judge offered many reasons for wanting to revisit the Federal Circuit’s position on the constitutionality of § 2(a): its 1981 decision In re McGinley did not cite any authority, its analysis consists of only a few sentences, the decision has been criticized in the intervening years, jurisprudence on the unconstitutional conditions doctrine and the protection accorded commercial speech has since evolved, and the source of the PTO’s funding has shifted from tax payers to user fees.
The judge contends that In re Tam presents an unusually strong case for considering trademarks as protected speech since the applicant intended to use the mark to reclaim Asian stereotypes and to participate in a political and cultural discourse about race as a musical artist. At oral argument, the judge tried to distinguish this feature of the case from the Redskins case.
But the main thrust of Judge Moore's constitutional challenge to § 2(a) is based on the unconstitutional conditions doctrine, which holds that the government cannot deny access to a government benefit on the basis of the recipients exercise of constitutionally protected speech.
In claiming that the benefits of registration are not just procedural, but are also substantive, Judge Moore states that a disparaging mark “cannot be protected by its owner by virtue of a § 43(a) unfair competition claim” because “§ 43(a) protection is only available for unregistered trademarks that could have qualified for federal registration.” (emphasis in original). This is a bold claim not exactly supported by the cases she cites. The Supreme Court’s Taco Cabana decision simply says that “the general principles” under § 2 are “for the most part applicable” in determining whether an unregistered mark is protectable. That’s right because for the most part, these general principles are common law doctrine codified in the Lanham Act. No case yet holds that the owner of a disparaging mark would not be able to assert common law rights against an infringer, but in a 2013 decision the Federal Circuit did suggest that an unregistrable common law mark may receive protection under § 43. As we argued in a previous post, variations in the availability of legal remedies are better understood as procedural changes rather than subsidies of private speech.
By focusing on the benefits of registration, Judge Moore loses sight of the significance of registration. Although in civil law countries trademark registration generally confers rights, in the US trademark rights are created by using a mark in commerce and developing good will. Registration is “essentially a recognition of a right already acquired by use.” At the same time registration is encouraged because it provides notice of rights—hence the benefits that flow from registration. These benefits, however, are distinguishable from benefits conferred by the government in other unconstitutional conditions cases, which typically involve direct subsidies of speech. In the case of trademark registration, the government is literally approving of certain trademarks; the symbol of trademark registration—the “R” in a circle—is a statement by the trademark owner that the government has approved, not its business or its goods, but the mark itself. Such approved trademarks are included in the government’s registry, or list of marks certified by the government. No other unconstitutional conditions case involves such symbolic acts of endorsement by the government, but instead involve unseen deeds such as exemptions from taxes or import duties.
The limited nature of the denial of registration seems to be lost on Judge Moore. The PTO’s refusal to register disparaging trademarks does not force the owner of a disparaging mark to relinquish a constitutional right. The owner can continue to use the mark. In cases where the Supreme Court has found an unconstitutional condition, the speaker has few realistic options other than to cease engaging in a particular form of speech in order to avail itself of a valuable government benefit. No such forced choice results from § 2(a). Because the registration system parallels common law trademark protection, some of which is enshrined in the Lanham Act, the owner of a disparaging mark can continue to engage in its chosen speech and endeavor to have it protected as a common law trademark.
Perhaps worst of all, Judge Moore's application of the presumption against content-based regulations to § 2(a) has no limit. If all trademarks are constitutionally protected speech and the act of registration is the conferral of a substantive benefit, then when may the PTO make a content-based determination that affects registration without violating the First Amendment? The Lanham Act also requires the PTO to refuse registration to marks that consists of simulations of state insignia and marks that include the name of a president. There’s no doubt that these determinations involve trademark owners as speakers and the denial of benefits. They also require the PTO to evaluate the content of the mark. Should the constitutionality of these provisions also be revisited? And what about the denial of registration to merely descriptive marks, deceptive marks, and marks that falsely suggest connections? Under Judge Moore’s logic, these determinations are as unconstitutional as direct content-based regulations of speech. Moreover, it is worth noting that none of these kinds of marks would fall within traditionally unprotected categories of speech (e.g., libel, incitement, obscenity). So applying the First Amendment full bore as Judge Moore proposes would also disable the PTO from barring the registration of these marks as well.
The broader point is that all trademark registration determinations under § 2 are content-based because they all involve an evaluation of the meaning of the mark in the context of its use and analysis of whether it is disparaging, descriptive, deceptive, etc. Thus, if strict scrutiny is applied to the ban on disparaging or scandalous marks, it is also required in evaluating the constitutionality of all the other trademark restrictions contained in § 2. If a court were truly serious about apply this presumption, there would be little left of trademark law.
Finally, Judge Moore asserts that trademarks are private speech, not government speech. Judge Moore asserts that when “the government publishes registered trademarks in the Trademark Principal Register, it does so not to communicate a particular message or select a particular viewpoint.” But it is hard to get around the fact that the Register is a list of marks that the government has approved and that when a trademark owner uses the registered “R” symbol along with its mark, it is using that symbol precisely as a certification that the government has approved its mark. It is only when the PTO rejects the registration of a mark that its use is purely private. There are a host of reasons why the government should have the power to distance itself from odious speech and illiberal business practices. As we argued in a recent Slate article, all of these are compelling features of the federal government’s power to regulate interstate commerce.
On Tuesday, the Federal Circuit issued a unanimous decision (In re Tam) holding that the mark THE SLANTS was properly refused registration because it is disparaging to people of Asian descent. Since 2010, Simon Shiao Tam, the front man for the Asian-American rock band “The Slants,” has been trying to obtain trademark recognition for the name of his band. The record shows that the band picked the name by thinking of “things that people associate with Asians. Obviously, one of the first things people say is that we have slanted eyes.” The record of the case confirmed that “slants,” used in the way proposed, would likely be received as a racial slur.
The fact that the registrant wished to re-appropriate an ethnic slur and try to create a positive connotation did not alter the outcome. Nor was the Court troubled that the user’s own race formed part of the background for assessing the objective meaning of the mark in commerce. Both of these jurisprudential choices are consistent with the Federal Circuit’s approach to statutory interpretation, which strives for an objective meaning of trademarks in actual use. In our view, the private cooptation of illiberal ideas can generate terrific art and might very well help to change social meaning in the long run. But you don’t need trademark protection to engage in such projects of appropriation; indeed, granting one user legal protection might even stifle others who would like to experiment further with taboo ideas.
In re Tam now makes it two cases on trademark disparagement that the Federal Circuit has ever decided—both have been in the past year and both affirmed the TTAB’s finding of disparagement. The court obviously felt bound by precedent. Nevertheless, Judge Moore, the author of the 11-page majority opinion, offered 24 pages of what was styled “additional views," but which read more like a petition for rehearing en banc on the constitutionality of § 2(a) of the Lanham Act.
Though not binding, this last bit by Judge Moore may prove most interesting of all. The judge offered many reasons for wanting to revisit the Federal Circuit’s position on the constitutionality of § 2(a): its 1981 decision In re McGinley did not cite any authority, its analysis consists of only a few sentences, the decision has been criticized in the intervening years, jurisprudence on the unconstitutional conditions doctrine and the protection accorded commercial speech has since evolved, and the source of the PTO’s funding has shifted from tax payers to user fees.
The judge contends that In re Tam presents an unusually strong case for considering trademarks as protected speech since the applicant intended to use the mark to reclaim Asian stereotypes and to participate in a political and cultural discourse about race as a musical artist. At oral argument, the judge tried to distinguish this feature of the case from the Redskins case.
But the main thrust of Judge Moore's constitutional challenge to § 2(a) is based on the unconstitutional conditions doctrine, which holds that the government cannot deny access to a government benefit on the basis of the recipients exercise of constitutionally protected speech.
In claiming that the benefits of registration are not just procedural, but are also substantive, Judge Moore states that a disparaging mark “cannot be protected by its owner by virtue of a § 43(a) unfair competition claim” because “§ 43(a) protection is only available for unregistered trademarks that could have qualified for federal registration.” (emphasis in original). This is a bold claim not exactly supported by the cases she cites. The Supreme Court’s Taco Cabana decision simply says that “the general principles” under § 2 are “for the most part applicable” in determining whether an unregistered mark is protectable. That’s right because for the most part, these general principles are common law doctrine codified in the Lanham Act. No case yet holds that the owner of a disparaging mark would not be able to assert common law rights against an infringer, but in a 2013 decision the Federal Circuit did suggest that an unregistrable common law mark may receive protection under § 43. As we argued in a previous post, variations in the availability of legal remedies are better understood as procedural changes rather than subsidies of private speech.
By focusing on the benefits of registration, Judge Moore loses sight of the significance of registration. Although in civil law countries trademark registration generally confers rights, in the US trademark rights are created by using a mark in commerce and developing good will. Registration is “essentially a recognition of a right already acquired by use.” At the same time registration is encouraged because it provides notice of rights—hence the benefits that flow from registration. These benefits, however, are distinguishable from benefits conferred by the government in other unconstitutional conditions cases, which typically involve direct subsidies of speech. In the case of trademark registration, the government is literally approving of certain trademarks; the symbol of trademark registration—the “R” in a circle—is a statement by the trademark owner that the government has approved, not its business or its goods, but the mark itself. Such approved trademarks are included in the government’s registry, or list of marks certified by the government. No other unconstitutional conditions case involves such symbolic acts of endorsement by the government, but instead involve unseen deeds such as exemptions from taxes or import duties.
The limited nature of the denial of registration seems to be lost on Judge Moore. The PTO’s refusal to register disparaging trademarks does not force the owner of a disparaging mark to relinquish a constitutional right. The owner can continue to use the mark. In cases where the Supreme Court has found an unconstitutional condition, the speaker has few realistic options other than to cease engaging in a particular form of speech in order to avail itself of a valuable government benefit. No such forced choice results from § 2(a). Because the registration system parallels common law trademark protection, some of which is enshrined in the Lanham Act, the owner of a disparaging mark can continue to engage in its chosen speech and endeavor to have it protected as a common law trademark.
Perhaps worst of all, Judge Moore's application of the presumption against content-based regulations to § 2(a) has no limit. If all trademarks are constitutionally protected speech and the act of registration is the conferral of a substantive benefit, then when may the PTO make a content-based determination that affects registration without violating the First Amendment? The Lanham Act also requires the PTO to refuse registration to marks that consists of simulations of state insignia and marks that include the name of a president. There’s no doubt that these determinations involve trademark owners as speakers and the denial of benefits. They also require the PTO to evaluate the content of the mark. Should the constitutionality of these provisions also be revisited? And what about the denial of registration to merely descriptive marks, deceptive marks, and marks that falsely suggest connections? Under Judge Moore’s logic, these determinations are as unconstitutional as direct content-based regulations of speech. Moreover, it is worth noting that none of these kinds of marks would fall within traditionally unprotected categories of speech (e.g., libel, incitement, obscenity). So applying the First Amendment full bore as Judge Moore proposes would also disable the PTO from barring the registration of these marks as well.
The broader point is that all trademark registration determinations under § 2 are content-based because they all involve an evaluation of the meaning of the mark in the context of its use and analysis of whether it is disparaging, descriptive, deceptive, etc. Thus, if strict scrutiny is applied to the ban on disparaging or scandalous marks, it is also required in evaluating the constitutionality of all the other trademark restrictions contained in § 2. If a court were truly serious about apply this presumption, there would be little left of trademark law.
Finally, Judge Moore asserts that trademarks are private speech, not government speech. Judge Moore asserts that when “the government publishes registered trademarks in the Trademark Principal Register, it does so not to communicate a particular message or select a particular viewpoint.” But it is hard to get around the fact that the Register is a list of marks that the government has approved and that when a trademark owner uses the registered “R” symbol along with its mark, it is using that symbol precisely as a certification that the government has approved its mark. It is only when the PTO rejects the registration of a mark that its use is purely private. There are a host of reasons why the government should have the power to distance itself from odious speech and illiberal business practices. As we argued in a recent Slate article, all of these are compelling features of the federal government’s power to regulate interstate commerce.
Tuesday, 21 April 2015
Guidance For State Legislators Seeking To Regulate "Fantasy Sports"
Those who follow this blog closely know that I have been writing here about legal issues in fantasy sports since long before the topic became chic. I also am the author of two law review articles on the topic: "A Short Treatise on Fantasy Sports and the Law" and "Navigating the Legal Risks of Daily Fantasy Sports."
Recently on FORBES I posted a short article entitled "Fantasy Games, Real Laws: 10 Factors States Must Consider When Regulating the Fantasy Sports Market."
The article discusses in particular ten areas where state legislators should focus when writing bills to regulate the fantasy sports industry.
The factors that I believe state legislators need to consider include the following:
1. Adequately defining the term "fantasy sports"
2. Assessing whether levels of skill should matter in determining the legality of fantasy sports contests
3. Assessing the pros and cons of requiring state licensing fees
4. The importance of understanding existing laws and policies before drafting new ones
5. Ensuring that the proposed bill benefits more than just lobbyists
6. Addressing the long-term risks of online gambling addiction
7. Addressing the adequate protection of minors based within the state
8. Determining reasonable minimum ages for eligibility to enter play-for-cash fantasy sports contests
9. Obtaining adequate disclosures of names and financial status of each fantasy sports company's shareholders
10. Ensuring that fantasy sports companies are not in a reasonably likely position to default without paying out contest winners.For those interested in reading the full FORBES article, a link can be found here.
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