Recent Articles in Media, Entertainment & Sports Law from LexMonitor

Mobile Content Providers Settle Unauthorized Billing Class Action

Thu, 02 Sep 2010 17:00:00 GMT

While the FCC has taken an interest in mobile marketing by carriers -- most notably with investigations of carrier early termination fees and proceedings examining wireless consumer "bill shock" -- it also is helpful to remember that the mobile content providers are subject to enforcement for deceptive marketing practices. Our colleagues at the Ad Law Access blog covered a recent settlement of a class action lawsuit by several mobile marketers. They remind marketers to clearly and conspicuously disclose costs so that consumers know what they are obligated to pay. Mobile service providers should ensure that their billing and collection agreements impose such an obligation on the content provider and that the carrier properly polices compliance.

Read the Ad Law Access story here.

Secrets of Reality TV Participant Contracts

Wed, 01 Sep 2010 22:15:04 GMT

How much would it cost a reality show participant who revealed a secret storyline twist before the episode was broadcast? If the show in question is Survivor, the tattle-taler (tattle-teller?) could be looking at lawsuit from the producers for $5 million.

Eriq Gardner at THR, Esq. points out some of the highlights in his report on the matter: 'Survivor' Contestants Owe $5 Million If They Spill Secrets. The website reality blurred has uploaded a copy of the Survivor participant agreement (it was first uploaded back in May, then taken down due to a copyright infringement claim, but is currently back online), and offers a detailed look at its provisions, including releases for infliction of severe mental stress and the granting of an option to enter into a talent agreement following the show (which makes perfect sense: if the network is going expend capital in turning someone into a "star", they're going to want to realize on that investment).

While Survivor is a celebrated legend in the world of reality TV, readers may also be interested in the participant agreement from the 2007 series Kid Nation - a sort of ersatz Lord of the Flies.

Finally, Rachel Wilkes at Law Law Land provides some details about The Reality of Court-Themed "Reality" Shows:

To participate in the show, the parties must sign an agreement to dismiss their court claims and submit the case to binding arbitration. ... in The People’s Court the show pays any judgment, and pays both parties a nominal amount for their time regardless of the outcome.

So, not only is The People's Court not really a court, the parties aren't even obligated to pay the awards? Colour me disillusioned...

Canadian Copyright and Derivative Rights in Non-Fiction Books

Wed, 01 Sep 2010 17:38:29 GMT

Matt Galsor (writing at Law Law Land) answers the question: I Want to Write a Screenplay About a Guy Who Uses a Particular, Published Book. Do I Still Need to Option the Book? The question relates to using a book as the basis for a movie - not using a novel, however, but using a non-fiction instructional book (let's pretend it's Seven Steps to Becoming the Best Entertainment Lawyer You Could Possibly Be). Let's pretend someone writes a screenplay featuring a character who buys 7STBTBELYCPB, a screenplay which chronicles the character's inspiring implementation of those seven steps. What rights would the screenwriter (or producer) need from the author of the book? Matt's answer, which he offers from a US perspective, is one with which every entertainment lawyer should be able to agree:

while you may not need to option the book (which would give you the ability to acquire the exclusive right to turn the book into a movie), what you do need is an agreement, akin to a release, in which the author grants you permission to use the book in the manner in which you want to use it (e.g., to use it as a plot point, to reproduce certain quotes, to use the title)

What's of particular interest is how Matt reaches his conclusion and the slight (but important) differences between US and Canadian copyright law which the analysis exposes. Matt's conclusion is of course informed in part by a practical, E&O-based concern (ie E&O insurers will want to see some kind of release even if, strictly speaking, the copyright law basis for that requirement isn't completely clear-cut) - and that concern is shared north of the border as well. In focusing just on the copyright analysis, however, Matt says the following:

One of the most important rights held by a copyright owner is the exclusive right to create derivative works based on her original copyrighted material. Derivative works are new original works that contain copyright-protected elements from a pre-existing copyrighted work. A movie based on a book is considered a derivative work because it will share with that book many of its copyright-protected elements (like characters and scenes). Therefore, at the outset, every author of a book owns the exclusive right to create a movie based on that book. ...

The question here is whether a movie about a guy following an instructional guide is a derivative work of that book. Unlike a typical situation in which the movie is going to contain many of the copyright-protected elements of the book on which it is based, your movie is simply using the book as a plot point and likely won’t be making use of elements such as the plot and characters (since such elements likely don’t even exist). Therefore, you may not need to acquire the movie rights to the book like you would in the traditional sense.

Matt's analysis hinges on the question of whether a movie which depicts the steps contained in an instructional book is a "derivative work" (he concludes that it might be, but even if it's not, given the aforementioned E&O-driven practical concerns, obtaining a release is still advisable). It's the "derivative work" question where Canadian and US copyright law diverge. Canadian copyright law does not have a distinct "derivative work" concept (unlike the US, where "derivative work" is defined in the US Copyright Act) - instead, the ability of our purported author to claim infringement would rest on two alternative theories: first, the author could claim that the screenplay/movie copies a substantial part of his original work in a material form (and the right to make a copy of a substantial part in a material form is an exclusive right of the copyright owner, per Section 3(1) of the Copyright Act (Canada)); alternatively, the author could claim that the movie infringes the author's sole right (found in Section 3(1)(e)) to reproduce, adapt and publicly present a "literary work" as a movie (or "cinematographic work"). (It's worth noting, parenthetically, that a "literary work" need not be "literary" in any meaningful sense - so long as it is in writing, it qualifies as "literary" - and so our imaginary instructional book would qualify.)

In short, I think under Canadian law we can more easily conclude that the screenplay and/or resulting movie would be an infringement of the author's copyright in the instructional book - and so obtaining a release or license would be imperative, rather than being subject to a cost/benefit analysis.

A US Perspective on Tax Credits

Wed, 01 Sep 2010 17:32:02 GMT

Writing at the NYSBA's The Entertainment, Art and Sports Law Blog, Bennett Liebman reports on the recent expansion of New York State's film and TV production (and post-production) tax credits - and also offers, among other things, a snapshot of tax credit programs across the US, a handy capsule history of film/TV tax credits in the United States, and references to studies on the economic benefits of film/TV tax credits.

Jersey Shore Trade-marks: The (Canadian) Situation

Wed, 01 Sep 2010 13:41:12 GMT

A flurry of stories appeared in August 2010 about the stymied efforts of Nicole "Snooki" Polizzi, cast member of the MTV hit Jersey Shore, to register her nickname as a trade-mark in the United States. The news stories themselves (such as this item at The Smoking Gun) focused on the rejection of Snooki's application because the USPTO (Patent and Trademark Office) examiner thought there would be a likelihood of confusion with the already-registered mark "The Adventures of Snooky", which is based on a children's story book series.

Polizzi's situation is slightly more nuanced than that, however: it appears that the Snooki application was not rejected outright, but only as it related to the category of "books" (the purported text of the rejection can be found here). A quick search of the USPTO online database reveals there are a surprisingly large number of registrations for various iterations of "Snooky" (including one for "electric motors operating blinds") and "Snookie's". As might be expected, however, there is only one application for "Snooki". The "Snooki" application reveals that registration was sought for two categories: "printed matter, namely books" and "entertainment in the nature of personal appearances by a television personality". Only the former category was rejected, so presumably Snooki's application for registration in the latter category is still alive.

Eriq Gardner, writing at THR, Esq., posed the question: Which 'Jersey Shore' Star Could Actually Trademark Their Name?, and reported on the efforts to obtain US federal trademark registrations by DJ Pauly D (two applications (here, here), both rejected on a preliminary basis due to likelihood of confusion with registration for "DJ Paulie's Worldwide Countdown"), The Situation (application rejected (and now suspended) due to likelihood of confusion with registered mark (though I'm unable to find a record of the Situation's application)) and Jwoww (application still alive, though clarifications have been requested by the USPTO).

Eriq's post leads, naturally, to the question: Which 'Jersey Shore' Star Could Actually Trade-mark Their Name in Canada?

Things look good for the GTL (or GFF or IFF) crowd. The Trade-marks Act (Canada) contains (in Section 12(1)(a)) a restriction on the types of words which can be registered as trade-marks in Canada: a word that is "primarily merely the name or the surname of an individual who is living" (or who has died within the last thirty years) is not registrable. Unless, that is, one can qualify under Section 12(1)(b), which provides that if a person's name or surname has been used in Canada so as to become "distinctive", then that name is registrable as a trade-mark. (Hence, for example, the fact that "Britney Spears" is a registered trade-mark in Canada.)

Helpfully, however, for most of our trade-mark seeking Jersey Shore gang, they aren't seeking to register their own names, but rather nicknames (though in the case of DJ Pauly D, his proposed mark is at least in part comprised of his actual first name). Nicknames of famous people don't seem to be registered all that often in Canada (though homegrown wrestling legend Bret "Hitman" Hart has a registered mark). A quick search of the Canadian Intellectual Property Office's online trade-mark database reveals that our favourite Shore-ites are unlikely to face any obstacles from registered marks: there is no "Snooky" or "Snooki" registered, nor any obviously conflicting registered mark which uses the word "Situation", nothing which seems to conflict with the registration of "Pauly" (or even "Paulie") (though there are 107 search results for marks with "DJ" present in them) and, though it probably goes without saying, "Jwoww" likewise seems not to appear too often in marks which have been registered to date.

Late-Filed Forms Update: Airband Seeks Review of FCC Denial

Wed, 01 Sep 2010 13:15:32 GMT

Last week, we posted an entry about the tough stance the FCC's Wireline Competition Bureau is taking on late-filed Universal Service Forms submitted by contributors. One of the parties whose USF appeal was denied, Airband Communications, has filed an application for review of the Bureau decision. The Commission yesterday asked for comment on the request. Comments are due September 30 and October 15.

The FCC's quick action is unusual in one sense: the deadline for petitions for reconsideration or applications for review of the Denial Order is not until September 14. Other parties to the same order may file additional petitions on the same issue.

Regulation Spreads to Advertisements on Corporate Websites and Social Networking Sites

Wed, 01 Sep 2010 12:47:14 GMT

The Advertising Standards Authority, ASA, announced on the 1st September 2010 an extension of its regulatory remit, from March 2011, which will give the Regulator jurisdiction over all marketing communications on the Internet including those on corporate websites and social media networks such as Twitter and Facebook, as well as over advergames and user generated content.

This controversial move has been introduced without any public consultation, and includes new serious sanctions for advertisers. Exemptions to the new regulation include "heritage advertising" and marketing communications promoting "causes and ideas". All other marketing promotions on-line will need to comply with the CAP Code. Some areas of concern include how the ASA will deal with the fine line between editorial and promotional material; how the extended remit will be adequately funded; how sanctions can be effectively enforced against companies with sites based overseas or indeed against those thousands of smaller on line advertisers who are blissfully unaware and ignorant of the CAP Code and whose advertising can change in seconds in this fast paced media environment.

All this comes into effect on the 1^st March 2011, which does not give businesses long to review their on line promotions and marketing plans. The changes to the CAP Code ironically comes literally days after printed versions of the revised CAP and BCAP Codes were sent out to purchasers, and only a few months after a public consultation, which excluded these latest provisions.

Some on-line promotions are more risque than in other media. This is justified since much on-line material on corporate websites and social media networks is “pulled” by the consumer and not “pushed”. These new provisions do not indicate how the ASA will adjudicate marketing material that is aimed at adult markets. Pulled materials ought to be treated differently to those that are pushed at consumers such as pop ups and banners. This is a recognised practice in the off-line environment where advertisements in adult magazines are treated differently to those on a poster or press ad. Otherwise there is a serious danger of a dumbing down of creativity and a less enjoyable experience for consumers.

Many other problems are yet to be determined. For example can a fast food company produce a children’s advergame and comply with the CAP Code given the social responsibility clauses and the restrictions on food advertising?

Many advertisers may be surprised to learn they will pay a levy on sponsored search to fund this new extended remit. Google has provided some initial funding to cover the first year or two of the new system but the 0.1% levy on advertising spend by ASBOF (Advertising Standards Board of Finance) collected by advertising agencies, (albeit that they represent only a fraction of spend in this sector) from their client advertisers, is intended to cover the additional cost of the extended system.

The risk to the ASA is that it may be unable to cope with the number of complaints and the funds available may be inadequate in the long term to deal with this vast medium where reputable advertisers will comply, as they largely do already for reputational reasons alone, and where smaller traders and many rogue traders carry on as they do now.

For further advice on what this means for your business please see our Ad Guide.

Roger Clemens Pleads Not Guilty. Now what?

Wed, 01 Sep 2010 00:42:40 GMT

Yesterday, former Red Sox and Yankee star pitcher entered a plea of not guilty to federal perjury and obstruction of Congress charges. This story was widely reported but little was mentioned about what happens with Clemens' case between now and the April 5, 2011 trial date.

Well, it may not be front page news but the defense now gets to conduct document discovery from the prosecution. Until this moment, the defense likely possessed very few official reports held by the government, but this is about to radically change.

Clemens' defensive team is basically entitled to a copy of the prosecutor's file. This means the defense will now have access to investigative reports, police reports, witness statements, and grand jury testimony. This information is critical for the defense lawyers to develop their plan of attack against the government's case. However, these documents should also go a long way in showing how strong the prosecution's case against the Rocket may be.

We know Clemens has turned down a plea bargain that didn't carry jail time. After Roger reviews the "care package" he is about to get from the Feds, I wonder if he will have any second thoughts.

The question facing women lawyers: money or balance?

mike@androvett.com (Mike Androvett) — Tue, 31 Aug 2010 20:30:36 GMT

So, is the biggest problem facing women lawyers the fact that they earn, on average, tens of thousands of dollars less than their male colleagues, or is it that their work hours are so brutal that they leave the profession? Both are serious problems, writes Dallas lawyer Kathleen Wu in this week?s Texas Lawyer, and one of the best ways to address both of them is for firms to get serious about offering flex-time.

I realize the disconnect: How will women ever close the pay gap if firms offer flextime policies, which allow women to downshift their careers temporarily and thereby get paid less but have more time off? The answer is simple: Because one of the main reasons the pay gap exists ? lack of diversity on compensation committees ? won't ever get resolved if women keep leaving the profession before they're senior enough to get on to those committees.

According to a recent study released by the Project for Attorney Retention, "New Millennium, Same Glass Ceiling? The Impact of Law Firm Compensation Systems on Women," women partners earn dramatically less than their male counterparts, with equity partners averaging $66,000 less and income partners averaging $25,000 less.

While some of the disparity was attributed to origination credit policies (which gives the ?originating? attorney a larger share of the fees earned by a particular client), one of the main reasons cited for the pay gap was a lack of women on compensation committees. More than half of the firms surveyed by PAR have one or no women on the compensation committee.

But if firms allow women to downshift and work more manageable hours, those lawyers stay on track. They maintain their contacts, they stay on top of the law and they don't disappear into the void that so many women find themselves in when they step off the treadmill altogether. Yes, lawyers need to address the pay gap. It's enraging and should be remedied. But the legal profession can't do that by putting work-life policies on the back-burner. Only by keeping women in the work force ? even if it's not at 100 percent ? will there be enough of us in a position to make sure the rest of us are paid what we're worth.

ENTERTAINMENT LITIGATION: COMMISSION ON JUDICIAL APPOINTMENTS CONFIRMS NOMINEE FOR CHIEF JUSTICE

Tue, 31 Aug 2010 06:17:46 GMT

JURIST ONE STEP CLOSER TO BECOMING FIRST FILIPINO-AMERICAN STATE SUPREME COURT JUSTICEMy practice and this blog is focused on entertainment, media and intellectual property litigation. However, the past week -- an historic one for the Filipino and Asian American legal...

JURIST ONE STEP CLOSER TO BECOMING FIRST FILIPINO-AMERICAN STATE SUPREME COURT JUSTICE

My practice and this blog is focused on entertainment, media and intellectual property litigation. However, the past week -- an historic one for the Filipino and Asian American legal community -- was consumed by the confirmation process for California Court of Appeal Associate Justice Tani G. Cantil-Sakauye and her nomination to become the first Filipino-American justice of the California Supreme Court, and first Asian-American Chief Justice of California. On Wednesday, August 25, 2010, Justice Cantil-Sakauye's confirmation hearing before the Commission on Judicial Appointments took place at the California Supreme Court in San Francisco. I was privileged to testify in support of Justice Cantil-Sakauye's nomination on behalf of the Philippine American Bar Association.

More on my testimony and Justice Cantil-Sakauye's hearing after the jump.

LIVING THE AMERICAN DREAM

Justice Cantil-Sakauye is the embodiment of the American Dream. She was born in California's capital city of Sacramento where she was raised by her immigrant parents. Her parents were farm workers who worked hard so that their children could be well educated. Justice Cantil-Sakauye took advantage of her opportunities, obtaining her bachelor's degree with honors in 1980 from the University of California, Davis and her law degree from the Martin Luther King, Jr. School of Law at the University of California, Davis in 1984. Justice Cantil-Sakauye worked as a deputy district attorney in Sacramento before joining Governor George Deukmejian's staff in 1988. Governor Deukmejian appointed Justice Cantil-Sakauye to the bench as a municipal court judge in 1990. Governor Pete Wilson appointed her to the Sacramento County Superior Court in 1997, and Governor Arnold Schwarzenegger elevated her to the California Court of Appeal in 2005. When current Chief Justice Ronald M. George announced his retirement, Governor Schwarzenegger nominated her to replace him as the Chief Justice of California.

The nomination of Justice Cantil-Sakauye has been lauded by virtually all in the California legal community. Justice Cantil-Sakauye received the Judicial Nominees Evaluation Committee's highest rating of "exceptionally well qualified." Chief Justice George called her uniquely qualified to take over California's judicial branch.

My testimony in support of Justice Cantil-Sakauye focused on the tremendous inspiration she would be as the top judicial officer in California. With 10 judges of Filipino descent in California, where some 1.9 million people identify themselves as Filipino-Americans, should Justice Cantil-Sakauye become the first Filipino-American to be a justice of a state supreme court, and the first Asian-American woman to be Chief Justice, she would become the role model who embodies the American dream -- that anyone with dedication and hard work can aspire to achieve at the highest levels. I was proud to play a small part in this process.

You can see the full confirmation hearing at the California Channel. I've also posted links to other coverage at The Avanzado Law Firm Facebook Page. Finally, you can hear the NPR California Report radio broadcast coverage below.

Why IDPPPA is going to KO the Business of Fashion

Tue, 31 Aug 2010 00:34:13 GMT

Apparel manufacturers. I am worried about the Innovative Design Protection and Piracy Act ("IDPPPA") and so should you.

Do you know that last week WWD predicted a 10-15% rise in the wholesale price of fashion products for spring 2011? Or home sales are down 27% this year and unemployment remains about 9.5%? Or that cotton costs are up 32.2% and analysts are predicting dim holiday sales?

The last thing our country, its fragile economy and the apparel industry needs is more legislation that is guaranteed to drive up the cost of fashion products. IDPPPA would do just that.

How? By giving fashion houses with fat litigation budgets the opportunity to convince judges that their designs are uniquely different from anything that has ever been made before. If you know your design history, or even have worked in the fashion business for awhile, you know how hard that standard is to meet.

But this is America and everyone is "entitled" to their day in court. Plaintiff's lawyers (working on a contingency) are creative and judges historically interpret copyright law expansively. Companies all along the supply chain would pass off the cost of litigation to the retailer purchaser. Just what the country needs right now, right?

And the harm of IDPPPA doesn't stop there. Since IDPPPA requires a plaintiff show that a defendant had "access" to the alleged copied products, designers would have to stop:

reading fashion magazines;
shopping retail stores or attending trade shows;
watching or subscribing to trend reports, or
caring about the runway shows.

If they do, designers will be prohibited from claiming that their designs are the "results of independently creation." Another hit our economy doesn't need.

So, if you want to influence the process, now is your chance! Call your congressmen and senator today.

Otherwise, you'll have no right to complain when it costs more for clothes for you and your family, or when an unscrupulous plaintiff (think of the ones we see making fabric claims) sues you.

take action now!!!

Auditor of failed Parcentral hedge fund now facing fraud lawsuit

mike@androvett.com (Mike Androvett) — Mon, 30 Aug 2010 21:11:47 GMT

After seeing their $16 million investment in a Plano, Texas-based hedge fund vaporize in less than 90 days, stunned investors turned to Houston?s Ahmad, Zavitsanos & Anaipakos for answers.

Last week, Ahmad, Zavitsanos & Anaipakos lawyers Demetrios Anaipakos and Amir H. Alavi sued Ernst & Young for its role in the spectacular implosion of the Parkcentral Global hedge fund. The lawsuit claims that Ernst & Young falsely represented that it had fairly audited Parkcentral Global and failed in its ?watchdog? role to warn relying investors of the risk of fraud and noncompliance by management, among other things.

The lawsuit focuses on two funds sold by Plano?s Parkcentral Global and was filed on behalf of Houston financial consultant Gus H. Comiskey and four Tucson, Ariz.-based entities, including the Thomas R. Brown Family Private Foundation. The now-defunct Parkcentral Global was operated by affiliates of billionaire and former presidential candidate H. Ross Perot before closing its doors after the bottom fell out of the securities market and credit froze in November 2008, losing more than $2.6 billion in a matter of days.

Earlier this month, Brown Investment Management, L.P., one of the plaintiffs in this suit against Ernst & Young, won a Delaware Supreme Court ruling that requires Parkcentral Global to disclose its former investors. Those investors could be added to the new Houston lawsuit. ?Our clients were told that an investment in Parkcentral was designed to preserve capital,? Mr. Anaipakos says. ?Instead, they lost every penny in record time. E&Y was supposed to be auditing Parkcentral, but the audited financial statements never once warned Parkcentral?s investors of their impending doom.?

After seeing their $16 million investment in a Plano, Texas-based hedge fund vaporize in less than 90 days, stunned investors turned to Houston?s Ahmad, Zavitsanos & Anaipakos for answers.

Will the Potential of an NFL Lockout Make Darrelle Revis Blink?

Mon, 30 Aug 2010 13:46:47 GMT

New York Jets cornerback Darrelle Revis' holdout is starting to get dangerously close to the beginning of the season. A Jets' defense without its best player, Revis, certainly will put the team at a disadvantage entering the regular season where the team hoped to make it to the Super Bowl.

But for Revis, there is much more at stake then just his holdout for payment as the best cornerback in the NFL. According to the NFLPA head DeMaurice Smith a NFL lockout may be inevitable for the 2011 season. Smith has complained that the NFL owners want billions of dollars back from the players in any new collective bargaining agreement ("CBA") to save the 2011 season.

Well, where will those billions of dollars come from if a new CBA can be reached?

In the NFL labor world, the owners want less and less guaranteed money to be paid to its players. In a league with an 100% injury rate, the owners continue to press from non-guaranteed contracts.

This is the problem for Revis. If he holds out too long, like the entire season, Revis may return to a very different NFL with a much different contract landscape. Let's face it, the NFLPA hasn't done a great job protecting its players. In the NFL, the owners have had the upper hand in the CBA outcomes.

If Revis doesn't grab as much guaranteed (and upfront) money in 2010 as he possibly can, there may not be any left if and when the NFL comes back after a nasty lockout battle.

The K-Rod Mess: An Opportunity for the Players' Union, the Mets, and the Troubled Closer to Make a Change for the Better and Revive Common Sense in Labor Issues

Mon, 30 Aug 2010 13:31:07 GMT

Too many times, when lawyers see a similar kind of case or a certain set of facts, they tend to take the same legal approach to the problem over and over again. Yet, the beauty of good "lawyering" is the ability and courage to take a fresh and individualized look at each case or dilemma (even if you think you've seen it all). I know it's sappy but the law is supposed to be "alive" to meet the changing times we live in and different issues we may face. This means a lawyer, even in the most competitive sports law venues, must sense when its time to change his or her way of doing things.

It has been well documented that Francisco Rodriguez, the New York Mets star closer, is alleged to have punched his 53-year-old father-in-law in or around the player's "family waiting" area inside of Citi Field (the Mets' home). After the attack, K-Rod's father-in-law had a trip to the hospital for minor treatment for his injuries and K-Rod got a trip downtown to be arraigned on misdemeanor assault charges. After a two-game suspension, K-Rod pitched one inning before coming up with a season-ending thumb ligament injury. The Mets, in turn, placed K-Rod on the "disqualified list," which means the team can cut off his pay and consider the remainder of his 2011 salary (a whopping $11.5 million with a doubtful $17.5 million 2012 option) to be non-guaranteed if he gets cut by the team. As always, the MLB Players' Union filed a grievance concerning the Mets' decision and has demanded arbitration (which is how disputes are settled in the MLB) to challenge the Mets' punishment of K-Rod.

Now, we've all seen this show all too often in professional sports. A high-price player does something awful, the team tries to discipline the player and the union fights it. Truth be told, the players' unions have done fairly well in these types of labor disputes. I am reminded here of how the NFLPA won an appeal to reinstate a large portion of Michael Vick's roster bonus as he was heading to federal prison for financing a dog fighting ring. How often have we seen the MLBPA fight any steps in baseball to require testing for performance enhancing drugs? Recently, the union came out against blood testing for HGH because the testing was too unproven, even though the World Anti-Doping Agency is recommending and using such tests.

In labor law, it is the role of a union to obtain a favorable collective bargaining agreement for its members, and then, to enforce an employee's rights if the agreement is violated. I have no issue with this function of a labor union. In sports, unlike other types of vocations, the union's role has changed to an extent that is beginning to disturb common sense. The question is: When should a union decline to defend a player? A union does not have to defend a player every time the player violates the law or does something outrageously unfortunate.

We all know that MLB players (and all sports stars) live a pampered life and sometimes get away with bad behavior. The problem is this privilege has spun out-of-control. Whether it's Adam (don't call me Pacman) Jones, Ben Roethlisberger, Gilbert "Gunslinger" Arenas, Roger Clemens or K-Rod, the "Sport in the Courts" business has never been busier. The problem is, even though some of these players have received criminal punishment, the public is getting sick of the circus of privilege. After his alleged attack, when K-Rod came in to pitch his last inning at Citi Field, he was booed mightily by a fed-up fan base.

So is it too late to return some common sense to high stakes team/player disputes? Do we have to watch the teams and unions take the same positions over and over again when a player acts in a way that would get anyone else fired?

Maybe not, if K-Rod, the Union and the Mets are willing to use some elusive common sense in this troubling situation. In the K-Rod case the Union could take no further action with regard to his grievance until the player's criminal case was resolved and his anger management treatment was successfully completed. Given K-Rod' violent workplace actions, the Union could seek a resolution of the K-Rod mess where it does not challenge the Mets' decision with regard to the disqualified list for this season (meaning no more pay for 2010). In addition, the Union could withhold any challenge to the potential non-guaranteeing of K-Rod's 2011 contract unless, and until, the pitcher shows he can actually get back on the field and live up to the terms of his deal.

It may seem like I am giving the Mets a pass in the K-Rod situation; Not so fast. In this isolated and strange K-Rod incident the Mets have been somewhat victimized. Any Mets fan knows that, while K-Rod has been so-so as the Mets' closer, the team needed him on the field to have any faint chances of success this season.

What the Mets must do, for the good of the organization and their fans, is fight (legally, no more punches). The Mets must hold steadfastly to their decision to disqualify K-Rod for the 2010 season. The organization must stand up to the Union to show the public (and themselves) that when you wear the Mets uniform you are expected to act as a true professional, which means keeping the beatings on the field. The Mets have already seen the disaffection of their base by a rapid decline in attendance; they must stop this bleeding.

I believe that some teams in the past have gone too easy on players out of a fear of reprisals from powerful agents, who control valuable free agents (paging Scott Boras). Memo to the Mets: Take a stand here for the good of your team and the future of the organization, step up to the plate, do what is right and good things will happen.

Lastly, what about K-Rod himself? Although we have watched player after player hide behind the legal team of their capable union for bad behavior and steroid use, this doesn't mean K-Rod must act in kind. No matter what happens in his case, K-Rod is wealthy athlete. He's not going to starve if he doesn't get paid for the rest of the year. K-Rod also has the opportunity to change the broken labor dynamic in sports. Besides apologizing, K-Rod could actually accept the Mets penalty for 2010 and forego the rest of his salary. As for 2011, K-Rod should endeavor to redeem himself by getting healthy, cleaning up his legal situation (before the season starts), and actually making the Mets' fans proud by helping his team do something they haven't done since 1986 - win a championship.

Sports In The Courts Blog Contributes to Sports Litigation Alert

Mon, 30 Aug 2010 13:24:52 GMT

Check out the write up Sports In The Courts Blog has contributed.

Sports Litigation Alert (SLA) is a narrowly focused newsletter that monitors case law and legal developments in the sports law industry. Every two weeks, SLA provides summaries of court opinions, analysis of legal issues, and relevant articles. The newsletter is published 24 times a year.To subscribe, please click here.

FCC Preparing Multiple "Junk Fax" Enforcement Actions

Sun, 29 Aug 2010 23:28:31 GMT

There has not been an official announcement, but indications are strong that the FCC is planning soon to issue a number of forfeitures and proposed forfeitures for the sending of so-called "junk faxes." Under the Telephone Consumers Protection Act of 1991 ("TCPA"), it is unlawful to send "unsolicited advertisements" via facsimile. In the past two weeks, the Enforcement Bureau has begun "circulating" 11 new orders that appear to be junk fax enforcement orders. (Circulation is the process of submitting an order for a vote by the Commission.)

The Commission, rather than the Bureau, must vote on all proposed fines above $100,000, so one may presume that each item involves a significant fine. Significant fines also are likely because several of the subjects of the draft enforcement orders have histories of prior FCC enforcement actions. One company -- The Hot Lead LLC -- received a fine of $2.5 million in 2008 for junk faxes. Pending against it are four proposed fines, of $739,500, $695,000, $47,000 and $51,500. Another company -- Sunstar Travel and Tours -- received a fine of $169,500 in 2008 and has a proposed fine of $136,000 pending now.

In addition, one potential action appears to be against an alleged "fax broadcaster." If issued, it would be the first proposed forfeiture issued under the Commission's "high degree of involvement" standard for fax broadcaster liability.

Caveat: Circulation of an item does not necessarily indicate impending action by the FCC. Four apparent "junk fax" orders began circulating in June 2009. 14 months later, those orders remain under consideration.

In the TruTV studio: Barry Sorrels talks courtroom x?s and o?s of the Javon Walker trial

mike@androvett.com (Mike Androvett) — Fri, 27 Aug 2010 21:02:11 GMT

Not only has Dallas defense attorney Barry Sorrels slugged it out in more than 300 state and federal trials on both sides of the aisle. The Ivy League gridiron star with the syrupy Texas drawl has over the years become a sought-after legal analyst at the local and national level. Earlier this month, Barry was in the TruTV?s New York studios to discuss the day?s testimony in the Javon Walker robbery and kidnapping trial.

Century 21 franchisees win round, proceed to class-action status against Cendant

mike@androvett.com (Mike Androvett) — Thu, 26 Aug 2010 18:52:03 GMT

For eight long years, a group of Century 21 franchisees has soldiered on in litigation against Century 21 owner Cendant (now known as Realogy) over the proper use of more than $40 million in annual contributions to a trust for the benefit of franchisees and the withholding of services required in the franchise agreements. These individual Century 21 real estate offices point to franchise agreements that require revenue from a so-called National Advertising Fund to be used for marketing for the benefit of Century 21 franchisees. According to court documents, Cendant has instead diverted the funds for its own benefit and the benefit of Century 21?s competitors, including Coldwell Banker and ERA, both wholly owned by Cendant.

Newly released court transcripts indicate that Century 21 real estate franchisees might have clear cause to recoup some of their money via a class-action lawsuit against Cendant, which bought Century 21 back in 1995. In an August 17 ruling from the bench, New Jersey Superior Court Judge Robert Brennan indicated that the Century 21 franchises have an interest in ensuring that Cendant abides by the franchise agreement.

Importantly, the Plaintiffs in this case do not seek to change the franchise agreement, they simply want Cendant to abide by the terms of the agreement and to deliver the full panoply of benefits that it undertook to supply. No former franchisee has disavowed this goal.

Brennan added that the lawyers at Zwerling, Schachter & Zwerling LLP argued successfully for a class-action suit because they proved that all Century 21 franchisees were impacted by Cendant?s actions. The sheer number of potential plaintiffs ? more than 1,000 ? also helped qualify the matter for class-action status, he said.

Before it?s over, the class-action suit could include more than 4,000 individuals who held Century 21 franchises between 1995 and 2002.

"Class certification is a difficult hurdle to overcome," plaintiffs? attorney Robert S. Schachter of Zwerling Schachter & Zwerling LLP told Law360. "You have to show why and how it's necessary, which we did. The judge found that we overcame that burden."

In 1995, former Century 21 CEO Richard J. Loughlin told the Orange County Register that Cendant?s purchase would have little impact on Century 21. The newspaper also quoted one franchisee saying that she hoped the purchase might mean more money to promulgate more sales.

But the lawsuit, which was filed in 2002, contends the opposite happened: that following the purchase, Cendant started using money from the National Advertising Fund to promote its other holdings, which included Century 21 competitors Coldwell Banker and ERA. Cendant also cut the Century 21 support staff from about 5,000 workers to fewer than 300 and trimmed Century 21?s salesperson training and recruiting programs as well, the suit maintains. At the time of the purchase, Cendant was known as Hospitality Franchise Systems Inc.

New York Knicks Center Eddy Curry is Free to Sit The Bench

Thu, 26 Aug 2010 16:25:00 GMT

New York Knicks Center Eddy Curry's recent arrest warrant has been lifted in Cook County, Illinois after a payment agreement was reached on the outstanding balance for Curry's civil suit. Curry, the former Chicago Bull, failed to maintain a payment schedule on a $660,000 settlement with Christina White. The settlement stemmed from an earlier legal settlement of a 2005 sexual abuse lawsuit. This was the second warrant issued for Curry's arrest this summer.

With all the issues Curry has had off the court and his failure to perform on the court, the logical thing would be for the Knicks to try to void Curry's contract. Unfortunately, NBA players usually win the arbitrations held about these types of cases and Curry's expiring contract is one of the few pieces the Knicks have left to land a big player like Carmelo Anthony.

In a perfect world, the court would be able to make an order to seize Curry's paychecks from the Knicks. This would not only keep Curry's name out of the news for all the wrong reasons, but allow the Knicks to have the satisfaction of knowing Curry will not see that money while he is riding the pine.

Filer Beware: FCC Affirms Tough Stance on Late-Filed Universal Service Forms

Thu, 26 Aug 2010 12:37:22 GMT

In stark contrast to the Bureau's more liberal waiver policy for recipients of Universal Service Funds, the Wireline Competition Bureau recently released orders affirming a tough stance for contributors who miss USF filing deadlines. In the Waiver Order, the Bureau granted two waviers of the deadline to file 499-A revisions. In the Denial Order, the Bureau denied ten requests for similar waivers. The difference? In the Waiver Order, the Bureau found "special circumstances" -- complex revisions undertaken after a merger and late-filing due to the 9/11 terrorist attacks. By contrast, in the Denial Order, the Bureau characterized the reasons for late-filing as "simple negligence."

The Bureau's stance is summarized with this quote from the Denial Order:

We reaffirm the importance of filing revisions to FCC Forms 499 promptly and within the windows established by the Commission's rules and requirements. In order for USAC to process the thousands of forms it receives each year and for contributors to know that their contributions will not dramatically change each year on account of late-filed revisions, filers must comply with the deadlines we have established for filing and revising FCC Forms 499.

As a public service, we remind readers: Corrections to the quarterly estimates (499-Q) are due within 45 days of the due date. Revisions that reduce USF liability for a year (499-A) are due within one year of the April 1 499-A filing date.