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| Volume 11, No. 5 | OCTOBER 2011 | |||||
Index this issue:
National Football League
NFL Retirees File Suit Against NFLPA
On September 13, 2011, a group of NFL retirees, led by Hall of Famer Carl Eller, filed a lawsuit against the NFLPA Executive Director DeMaurice Smith, retired NFL player Mike Vrabel, and quarterback Tom Brady in the United States District Court for the District of Minnesota in Minneapolis. The retirees allege that the NFLPA and active NFL players did not have the right to negotiate for retiree benefits during the recent lockout, and that the retirees themselves have the right to negotiate directly with the NFL for retirement benefits. The NFLPA dissolved earlier this year, and the ensuing lockout between the players and the NFL led to the negotiation of a new CBA shortly before the current NFL season began. The CBA addressed numerous issues, including player health and safety concerns, rookie contracts, a league salary cap, and retiree benefits. The plaintiffs, twenty-eight retired NFL players, including several prominent Hall of Famers, allege that the NFLPA lacked any authority to negotiate the benefits for the retirees during that period because they were not a union during the lockout. Further, according to the complaint, the plaintiffs in the lawsuit against the NFL were unqualified to negotiate on behalf of the retirees due to the "inherent conflict of interest" between active and retired NFL players. The complaint alleges that the result of this conflict of interest is evident through the vast discrepancies between the initial discussions of retiree benefits and those included in the final CBA agreement. During initial CBA discussions, the class of retirees made known that they wanted "substantial changes in all phases of the post-career life of retirees," including a significantly increased budget for retiree benefits, medical monitoring of brain conditions following retirement, an improved system for obtaining disability benefits, and retiree improvements totaling approximately $1.5 billion over the next ten years. After the implementation of the new CBA, however, the total value of retiree benefits was only $900 million, which the retirees claim is a "paltry" amount in light of the NFL's anticipated revenue over the next decade. The plaintiffs thus allege that their interests were inadequately represented, and the active players merely used retiree benefits as a "bargaining tool" in the negotiations. Consequently, the retirees seek a declaratory judgment stating that they be allowed to negotiate their own benefits and conditions with the NFL and that neither the NFLPA nor the active NFL players had the authority to negotiate the interests of the retirees. In addition, the complaint requests attorneys' fees and compensatory and punitive damages, alleging that the rights negotiated with the NFL interfered with the retirees' reasonable expectation of economic advantage or benefit in the future. "This deals with the rights of retirees and how they were shortchanged by a process that negotiated their rights without input from them and then reached an agreement without the retirees' right to be heard," stated Michael Hausfeld, an attorney for the plaintiffs. The retirees are also represented by Mark J. Feinberg, Michael E. Jacobs, and Shawn D. Stuckey of Zelle, Hofmann, Voelbel& Mason LLP in Minneapolis, MN and the firms of Arthur N. Bailey & Associates in Jamestown, NY, Coburn &Greenbaum in Washington D.C., and Hausfeld LLP in Washington, D.C. — Michelle Chatelain
MillerCoors Sues Patriots for Breach of Exclusive Beer Deal
On September 26, 2011, MillerCoors filed a lawsuit in Massachusetts Superior Court against the New England Patriots for breach of contract. MillerCoors claims that the Patriots reneged on an exclusive beer deal with them, opting instead to sign an exclusive deal with their competitor, Anheuser-Busch InBev. From the 2002-2003 season to the 2010-2011 NFL season, Coors Light, a product of MillerCoors, was the official beer of the NFL. For the next six years, however, Anheuser-Busch InBev will pay a reported $200 million per year to make its brand, Bud Light, the league's official beer. Teams, however, are still free to negotiate their own deals, most of which are non-exclusive. The Patriots have had non-exclusive deals with MillerCoors, Anheuser-InBev, and Boston Beer, producer of Sam Adams. MillerCoors claims that they reached an exclusive deal with the Patriots, but their company executives now believe that the Patriots either will or already have entered into an exclusive agreement with Anheuser-Busch InBev. The Patriots, however, claim that there was never an agreement with MillerCoors. MillerCoors seeks a declaratory judgment that its agreement is valid and enforceable, and compensatory damages for costs and good will. "We received and reviewed the complaint filed by MillerCoors. Since the team never had an agreement with MillerCoors,their decision to file this complaint is, at best, perplexing," said Dan Goldberg, outside litigation counsel for the Patriots. "This appears to be more of a media strategy to attack a competitor of theirs than a legal one against the Patriots." Goldberg is of Bingham McCutchen in Boston."We expect to win and when we win we will be a great partner to the Patriots," said Jackie Woodward, Vice President of Media and Marketing for MillerCoors. "We look forward to bringing our marketing muscle and activation prowess to bringing football to fans in New England." — T. Marshall Abel
Cedric Benson Sues NFLPA for Unfair Labor Practice
On September 23, 2011, Cincinnati Bengals running back Cedric Benson filed an unfair labor practice claim with the NLRB against the NFLPA. Benson alleges that the union improperly represented him in an agreement with the NFL during the recent lockout. On August 4, 2011, the NFLPA made anagreement with the NFL that appeared to allow eight players to be disciplined by the league for misconduct during the league's lockout. Part of the agreement also apparently stipulated that twenty-five players were to be made exempt from discipline for their conduct during the work stoppage. Benson alleges that since the NFLPA was no longer a union after dissolving during the lockout, the organization had no right to make an agreement with the league on behalf of Benson. According to Yahoo! Sports, Titans receiver Kenny Britt, Buccaneers cornerback AqibTalib, and Benson headlined the list of players in the agreement. The list also included Patriots defensive lineman Albert Haynesworth, Bengals cornerback Adam "Pacman" Jones, Packers cornerback Brandon Underwood and defensive end Johnny Jolly, and Arizona Cardinals linebacker Clark Haggans.Among those named, however, Benson is the only player facing league discipline. He currently faces a three-game suspensionfor two misdemeanor assault cases that resulted in five days jail time. An appeal hearing is scheduled with the NFL to determine Benson's fate, and the union plans to argue on Benson's behalf. The NFLPA emphasizes that it never abandoned the right to challenge any discipline. "There were some things in the CBA that we were not made aware of, which is really no surprise," said Benson. "That kind of falls on the (players' association). You would think they're here to support you and have your back -- that's what a union does. I guess in my case, it's different." Benson is represented by David Cornwell of DNK Cornwell in Atlanta. "We believe that no player should be subjected to discipline for incidents occurring during the lockout," said NFLPA assistant executive director George Atallah. "The NFL and the NFLPA signed a side letter to the CBA that resolved and absolved the overwhelming majority of players of conduct related issues. We retain all of our rights and ability to challenge any player discipline related to incidents occurring during the lockout." — Kemper C. Powell
Major League BaseballFox Sports Sues Dodgers in Television Rights Dispute
On September 27, 2011, Fox Sports sued the Los Angeles Dodgers for breach of contract in the U.S. Bankruptcy Court in Wilmington, Delaware. Fox Sports alleges that the Dodgers violated their exclusive television contract by preparing to sell the rights to future baseball games. The Dodgers filed for bankruptcy in June 2011 after MLB Commissioner Bud Selig denied the club's proposal for a $3 billion, 17-year television rights deal with Fox Sports. Selig appointed a former Texas Rangers owner to oversee day-to-day operations of the franchise. The Dodgers asked a federal bankruptcy judge to authorize an auction of the rights to broadcast the team's games, asserting that the auction would bring in billions of dollars and resolve their cash flow issues. The current contract between the Dodgers and Fox Sports Net West, which does business as Prime Ticket, requires that the team only negotiate with Fox until October 2012. Fox alleges that the team engaged in talks with unidentified parties before filing for bankruptcy, and thus violated Fox's rights under the telecast agreement. According to the lawsuit, the contract also gives Fox matching rights to any deal cut after that date. MLB officials stated that the league will not approve a new television contract reached by the Dodgers before the current Fox negotiating period ends in 2012. The league further asserted that, without its approval, the Dodgers' plan to sell the rights to future games would provide grounds for termination from MLB.Fox and MLB have accused Dodger owner Frank McCourt of using the bankruptcy case to try to improve his own personal financial problems instead of advancing the interests of the team. Fox seeks a declaratory judgment to reject any proposed sale of the Dodgers' TV rights that is inconsistent with the current contract. Fox also seeks unspecified compensatory damages from the Dodgers for sharing confidential broadcast rights information. "The Los Angeles Dodgers have fully complied with all of their obligations under the existing contract with Fox," said Stefanie Goodsell, a spokeswoman for the team. "The Dodgers look forward to the opportunity to obtain court approval of its marketing process, which will enable the Dodgers to emerge from bankruptcy on a solid financial footing." The Dodgers are represented by Brian Bennett. — Nicholas C. Rossi
National Collegiate Athletic AssociationCourt Dismisses Ex-Rutgers Quarterback's Suit for Use of Likeness in EA Video Game
On September 9, 2011 Electronic Arts, Inc. emerged victorious in a suit brought against the company by former Rutgers University quarterback Ryan Hart. U.S. District Court Judge Freda Wolfson held that EA's First Amendment rights outweighed Hart's privacy and publicity rights. SeeHart v. Electronic Arts, Inc. ___ F. Supp. 2d ___ WL4005350 (D.N.J. 2011). In June 2009, Hart filed suit against EA alleging that the company's video game, "NCAA Football '06" for PlayStation 2 and Xbox, contained a virtual version of a Rutgers quarterback with characteristics identical to the real-life characteristics of Hart. The suit was just one of many filed by popular former college athletic stars against EA for the use of their likenesses. In 2009, former Nebraska quarterback Sam Keller and former UCLA basketball star Ed O'Bannon brought similar suits against EA in other jurisdictions. In his complaint, Hart alleged that the virtual Rutgers quarterback constituted a use of his likeness without his permission by featuring various characteristics including his height, weight, uniform number, and even the particular wristband he wore on his left arm. In a 32-page opinion, Judge Wolfson held that EA's right to freedom of expression under the First Amendment outweighs Hart's right to control the use of his name and likeness and his right to privacy. Judge Wolfson noted specifically that any use of Hart's likeness was based on his physical appearance and statistics, and not his name. Timothy Mcllwain, Hart's lawyer, said the court's decision was a "major disappointment," and added that EA "engaged in the absolute taking of my client's persona." McIlwain is of McKenna McIlwain, LLP in Montclair, New Jersey. Elizabeth McNamara, counsel for EA said that the decision "validates Electronic Arts' rights to create and publish its expressive works." McNamara is of Davis Wright Tremaine LLP in New York. — Emma Stendig
TennisFour Umpires Sue USTA for Unpaid Wages
On September 9, 2011, four tennis umpires sued the United States Tennis Association in the U.S. District Court for the Southern District of New York in Manhattan. The umpires claim that the USTA,tennis' governing body and the organizer of the U.S. Open, underpaid them for years by classifying them as independent contractors. The U.S Open is an annual tennis tournament that takes places in late August and early September each year at the Billy Jean King National Tennis Center in the Queens, New York. The Plaintiffs claim that by classifying them as independent contractors, rather than employees, the USTA improperly undercompensated them for their servicesduring the 2010 U.S. Open tournament, in violation of federal law and New York state law. Specifically, the complaint alleges that the umpires were paid $115 to $200 per day during the U.S. Open, and the umpires seekclass-action status on behalf of hundreds of other umpires who have worked for the USTA. The umpires also seek monetary damages for the unpaid wages and overtime pay they believe to be owed to them, as well as attorneys' fees. "We're disappointed that the umpires have chosen to exploit the U.S. Open and take advantage of the goodwill generated by the tournament by using it as a platform to advance a claim against the USTA," said Chris Widmaier, a spokesman for the USTA. — JourdanI. Dozier
Officers Future SLA ConferencesMay 10-12, 2012 May 16-18, 2013 May 15-17, 2014
 
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