|Volume 11, Issue 8||May 2, 2014|
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Timothy Liam Epstein, Esq.
A California state appeals court has affirmed the decision of a trial court, which declined to intervene in an eligibility dispute involving the parent of a student athlete and the California Interscholastic Federation (CIF).
In so ruling, the appeals court agreed that the parent altered the necessary forms to gain eligibility, leading to the CIF’s ruling.
Brandon Saliba and Estephen Saliba were successful swimmers at Saint John Bosco High School (St. Bosco) in Bellflower, Cal. Brandon was in the ninth grade, and Estephen was in the 10th grade. Sometime after Brandon was diagnosed with attention deficit hyperactivity disorder (ADHD), their mother, Sylvia Saliba (Mrs. Saliba), decided to transfer both sons to Mater Dei High School (Mater Dei) in Orange County, because of “what she understood to be its allegedly superior programming for Brandon's special needs,” according to the court.
In order to make the transfer to Mater Dei, the plaintiffs needed approval from CIF, a voluntary nonprofit organization authorized by the California Legislature to govern regional and statewide interscholastic activities.
The CIF bylaws require that students seeking transfers will have only limited eligibility for one year, which prohibits competition at the varsity level. However, under a hardship waiver, students may be able to transfer schools with unlimited eligibility. CIF Bylaw 208 defines a hardship as an unforeseeable, unavoidable, and uncorrectable circumstance that burdens the student's family, such as a valid change of residence. CIF Bylaw 202 allows the CIF to disqualify students from interscholastic athletics when a parent provides false information regarding eligibility on behalf of a student, even if the student is unaware of his or her parent's conduct.
Seeking help with the transfer, Mrs. Saliba emailed Monty McDermott, the athletics director at St. Bosco, about hardship waivers McDermott wrote that hardship petitions "are very difficult to obtain," and are normally only possible in cases of "'unforeseeable, unavoidable and uncorrectable' circumstances," such as the "divorce of parents . . . and change of custody."
Nevertheless, Mrs. Saliba completed a Form 207, the Athletic Transfer Eligibility Application, and claimed the transfer was made pursuant to a "valid change of residence," which would allow for unlimited eligibility. This is where the discrepancies emerged in the parent’s paperwork.
On May 3, 2010, staff from Mater Dei and CIF-SS met and discovered the discrepancies in parent’s paperwork. Seven days later, CIF-SS Commissioner James T. Staunton wrote to the principal of Mater Dei with findings from the meeting. He confirmed that there was no evidence that the family satisfied the requirements of a valid change of residence. As a result, he declared appellants ineligible for interscholastic competition through May 5, 2011. The plaintiffs appealed the ruling.
The panel upheld the decision of CIF-SS based on the fact that Mrs. Saliba” had provided false information to gain eligibility.” The plaintiffs filed a petition for a writ of administrative mandate on November 24, 2010. They claimed “the panel hearing was unfair, panelists abused their discretion, evidence was insufficient to support the finding, a fundamental right was at issue, they had exhausted all administrative remedies, and relevant evidence was improperly excluded at the hearing.”
In April 2011, the trial court denied the plaintiffs’ petition, finding that “substantial evidence supported the panel's findings.” The plaintiffs, again, appealed.
“On appeal, our function is identical to that of the trial court, as we too must determine whether substantial evidence supports the administrative decision,” wrote the panel. “This deferential standard requires us to presume the correctness of the administrative ruling, as all reasonable doubts must be resolved in favor of it." (Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1077-1078, fns. omitted (Ryan).)
The panel agreed with the trial court noting “substantial evidence to support the finding that Mrs. Saliba provided false information to obtain interscholastic eligibility for her sons at Mater Dei.”
The appeals court also examined the plaintiffs’ argument that CIF-SS “deprived them of due process. They argue they were unable to examine witnesses or offer evidence in unspecified proceedings. (They) also claim that the same CIF administrative body that heard their eligibility appeal also rendered their initial eligibility determination.
“The federal Constitution requires due process claimants to demonstrate a recognized liberty or property interest. (See Ryan, supra, 94 Cal.App.4th at p. 1059.) In Ryan, the court determined that students have no such interest in interscholastic activities. (Ibid.) Similarly, appellants here have no recognized right to compete in swimming at Mater Dei. Under the California Constitution's due process provisions, a claimant need not demonstrate a property or liberty interest if he or she can identify a statutorily conferred benefit or interest. (Id. at pp. 1069, 1071.) As the Ryan court held, no statutes confer a benefit on students to participate in interscholastic activities. (Id. at pp. 1072-1073.) Accordingly, appellants have no statutory right to swim for Mater Dei.”
The plaintiffs claimed that “the same agency that issues preliminary eligibility decisions also handles the appeals process. The evidence indicates otherwise. CIF-SS Commissioner Staunton rendered the first decision on the appellant's eligibility. The appeal to the State CIF Appeals Panel was held at a separate office with different panel members. Thus, the evidence does not support appellants' claim, and shows no violation of due process.”
Brandon Saliba et al., v. California Interscholastic Federation; Ct.App.Cal., 2d App. Dist., Div.; 4B233531, 2014 Cal. App. Unpub. LEXIS 1558; 3/4/14
Attorneys of Record: (for plaintiffs) Brandon Saliba and Estephen Saliba, pro per. Fagen Friedman & Fulfrost, Diane Marshall-Freeman, and Cynthia M. Smith, for Defendant and Respondent.
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California Federal Court Finds that the First Amendment Does Not Preclude Sporting Event Participants from Asserting Right-Of-Publicity Claims
By Matthew Ganas, of DLA Piper LLP
On April 11, 2014, a California federal court issued a First Amendment ruling that has potentially significant implications for broadcasters in the sports-media industry. Specifically, the Northern District of California’s Judge Claudia Wilken held that “the First Amendment does not guarantee media organizations an unlimited right to broadcast entire college football and basketball games” “without regard for the participating athletes’ rights of publicity.” Order at 19, 16, In re NCAA Student-Athlete Name & Likeness Licensing Litigation (“In re NCAA”), Case No. 09-1967 (N.D. Cal. Apr. 11, 2014), ECF No. 1025.
Led by former UCLA basketball player Ed O’Bannon, a group of class plaintiffs in In re NCAA (the “Antitrust Plaintiffs”) allege that defendant National Collegiate Athletic Association (“NCAA”) has violated federal antitrust laws by administering rules that prevent former and current Division I football and basketball players from licensing their names, images and likenesses for commercial purposes. The court’s recent ruling came in response to NCAA’s cross-motion for summary judgment, which sought dismissal of Antitrust Plaintiffs’ “live broadcast” liability theory on First Amendment grounds. The court found that the First Amendment does not preclude any of Antitrust Plaintiffs’ claims as a matter of law and has scheduled trial to commence on June 9, 2014.
Antitrust Plaintiffs allege that, absent the challenged NCAA restrictions, a market would exist for “group licenses” to use current student-athletes’ names, images and likenesses in live game broadcasts.
In their operative Third Amended Consolidated Class Action Complaint (“TCAC”), Antitrust Plaintiffs assert that NCAA’s prohibition on student-athlete compensation for the use of their names, images, and likenesses harms competition in two separate markets:
The court has recognized, on multiple occasions, that Antitrust Plaintiffs’ theory of a “group licensing” market “rests on the assumption that student-athletes, absent the challenged restraint, would be able to assert cognizable right of publicity claims against broadcasters who depict them in live game broadcasts or archival game footage without a group license or consent.” Id. at 15. Thus, while Antitrust Plaintiffs do not assert right of publicity claims directly against the NCAA, current student-athletes’ legal ability to bring right of publicity claims arising from live broadcasts is essential to their antitrust claims related to the so-called “group licensing” market.
In terms of relief, the Antitrust Plaintiffs request an injunction that would bar the NCAA from enforcing any rules or policies that prohibit current and former student-athletes from seeking compensation for the commercial use of their names, images, or likenesses (including in connection with live broadcasts).
NCAA seeks dismissal of the TCAC on the basis that — even absent the challenged NCAA restraints — no market would exist for “group licenses” to use current student-athletes’ names, images and likenesses in live broadcasts, because event participants have no legally cognizable publicity rights associated with such broadcasts.
In September 2013, NCAA moved to dismiss the TCAC, arguing that Antitrust Plaintiffs’ claims concerning alleged restrictions on the ability of current student-athletes to enter into “group licenses” for use of their names, images and likenesses in live broadcasts of men’s basketball and football games fail as a matter of law. See Motion to Dismiss at 2, In re NCAA, Case No. 09-1967 (N.D. Cal. Sep. 17, 2013), ECF No. 857. According to NCAA, the Antitrust Plaintiffs possess no legally cognizable right to their names, images and likenesses in connection with live broadcasts, because the law does not recognize a right of publicity for persons appearing in such broadcasts. See id. NCAA relied on three legal principles to support this argument:
The court denied NCAA’s motion to dismiss in October 2013. Order, In re NCAA Case No. 09-1967 (N.D. Cal. Oct. 25, 2013), ECF No. 876. It specifically rejected NCAA’s copyright preemption argument. The court reasoned that the Copyright Act does not preempt Antitrust Plaintiffs’ claims because “the rights Plaintiffs seek to assert in the present case are fundamentally different from those protected by the Copyright Act” and because “Plaintiffs’ underlying claims...are based principally on an injury to competition, not simply misappropriation.” Id. at 23.
The court also rejected NCAA’s state law arguments. It recognized that state right of publicity statutes, including California’s, carve out express exceptions for sports broadcasts. See id. at 17; Cal. Civ. Code § 3344(d) (providing that individuals have no right of publicity “in connection with any news, public affairs, or sports broadcast or account.”) But because Antitrust Plaintiffs “allege harm to a national market for the licensing rights to their names, images, and likenesses in game broadcasts,” the court reasoned that “[t]o disprove the existence of this market at the pleading stage, the NCAA would have to identify a law or set of laws that precludes student-athletes from asserting publicity rights to game broadcasts in every state.” Id. at 17-18 (emphasis in original). On this basis, the court concluded that state-specific exceptions to right of publicity causes of action do not warrant dismissal of Antitrust Plaintiffs’ “live broadcast” claims brought under the Sherman Act.
Judge Wilken also refused to dismiss the TCAC on First Amendment grounds. She acknowledged that the U.S. Supreme Court and the federal circuit courts have never “squarely addressed whether the First Amendment bars athletes from asserting a right of publicity in the use of their names, images, or likenesses during sports broadcasts.” Id. at 18. But after analyzing the framework adopted in other right of publicity cases, Judge Wilken recognized that “the central question in determining whether the First Amendment bars an athlete’s right-of-publicity claim is whether the defendant’s use of the athlete’s name, image, or likeness is primarily ‘commercial.’” Id. at 20.
The court went on to conclude that “[e]ven though the commercial speech determination is a question of law,” it could not make this determination on the pleadings. Id at 21. The court specifically reasoned that, when construing the TCAC’s allegations in the light most favorable to Antitrust Plaintiffs, “it is plausible at least some of the broadcast footage described in the complaint — particularly the promotional highlight films and the ‘stock footage’ sold to advertisers — was used primarily for commercial purposes.” Id.
The court thus held that the First Amendment did not mandate dismissal of Antitrust Plaintiffs’ “broadcast-related claims” at the pleading stage. Id. But it did not foreclose the NCAA from subsequently moving for summary judgment on its First Amendment defense and provided the following suggestion for how it might address the First Amendment question on summary judgment: “Should the NCAA raise this issue again at summary judgment, Plaintiffs will need to submit evidence that the relevant broadcast footage on which their claims are based — including both the archival game footage and the live game broadcasts — was used primarily for commercial purposes.” Id. at 22.
NCAA moves for summary judgment on Antitrust Plaintiffs’ “live broadcast” claims on the basis that student-athletes’ names, images and likeness are not used in live sporting event broadcasts for commercial purposes, and thus the First Amendment shields such broadcasts from right of publicity liability.
In late 2013, both parties moved for summary judgment on the asserted antitrust claims. NCAA again argued that the First Amendment bars Antitrust Plaintiffs’ “live broadcast” claims. See Memorandum in Support of Motion for Summary Judgment, In re NCAA Case No. 09-1967 (N.D. Cal. Dec. 12, 2013), ECF No. 926. Expressly relying on language from the court’s prior motion to dismiss order, NCAA asserted that the use of players’ names, images and likenesses in live broadcasts of men’s basketball and football games is not primarily commercial in nature, and therefore entitled to full First Amendment protection against right of publicity claims. Id. at 3. To support this argument, NCAA emphasized that the Ninth Circuit defines speech as “commercial” when it “propose[s] a commercial transaction” with respect to a “particular product.” Id. at 5 (quoting Hunt v. City of Los Angeles, 638 F.3d 703, 715 (9th Cir. 2011)). NCAA characterized college sporting events, by contrast, as “matters of intense public interest,” which deserve the broadest scope First Amendment protection. Id. at 4.
The district court denies NCAA’s summary judgment motion, ruling that — even though live broadcasts of Division I football and basketball games are not commercial speech — the First Amendment does not preclude student-athletes from asserting rights of publicity in live broadcasts.
In its April 2014 summary judgment ruling, the district court rejected NCAA’s argument that the First Amendment necessarily shields broadcasters from liability for right of publicity claims asserted by participants in live sporting events. Even though the U.S. Supreme Court has never ruled on this specific issue, Judge Wilken found that its decision in Zacchini v. Scripps—Howard Broadcasting Co., 433 U.S. 562 (1977) “strongly suggests that the First Amendment does not guarantee media organizations an unfettered right to broadcast entire sporting events without regard for the participating athletes’ rights of publicity.” Order at 16, ECF No. 1025.
In Zacchini, the Supreme Court determined that the First Amendment did not protect a television station from the unauthorized broadcast of the plaintiff’s entire fifteen-second “human cannonball” routine performed at an Ohio county fair. In drawing this conclusion, the Zacchini court emphasized that the defendant decided to broadcast theperformer’s entire act without his consent, thus undermining his economic interest in attracting viewers to attend his live show. Judge Wilken found that this analysis “provide[d] useful guidance in balancing a performer’s right of publicity against First Amendment considerations.” Id. at 16. Applying similar standards, Judge Wilken concluded that “the First Amendment does not guarantee media organizations an unlimited right to broadcast entire college football and basketball games.” Id. at 19.
On the other hand, the California district court went on to find that “broadcasts of entire Division I football and basketball games do not constitute commercial speech.” Id. at 24. Yet, this finding did not impact Judge Wilken’s ultimate conclusion — that the First Amendment does not necessarily bar live sporting event participants from asserting right of publicity claims in connection with live broadcasts.
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A federal judge from the Eastern District of Kentucky has ruled for the University of Kentucky (UK) and other defendants, including Athletic Director Mitch Barnhart, in a case in which they were sued by a professional photographer for copyright infringement.
Factoring heavily in the decision to grant the motion for UK, the University Athletics Committee of the University of Kentucky Board Of Trustees and the individual defendants in their official capacities (Barnhart and university Vice President Eric N. Monday) was the doctrine of sovereign immunity under the Eleventh Amendment. Second, to the extent that Barnhart and Monday are sued in their individual capacities, the defendants argued that the plaintiff failed to allege facts sufficient to connect them personally to any alleged copyright infringement.
Plaintiff David Coyle is a professional photographer in Lexington, Kentucky, who has taken photographs for UK and the University of Kentucky Athletics Association since 1988. He alleged in his complaint that between 1988 and 2010 he entered into a series of varying contracts to photograph the university's varsity intercollegiate athletics teams. Although the terms of these contracts varied, Coyle's position was that he retained ownership of the copyrights to all the images he produced.
According to Coyle, the university defendants engaged in "a series of strategic partnerships" through which they used Coyle's photographs for various commercial activities. Because Coyle claimed he retained ownership of the copyrights, he alleged that such usage by the university defendants and other private defendants constituted a violation of his exclusive rights under 17 U.S.C. § 106. He sought a declaratory judgment that he is the owner of the copyrights in question, damages for copyright infringement, and injunctive relief.
The defendants moved to dismiss.
Addressing their sovereign immunity argument first, the court reviewed the plaintiff’s argument that the copyright claims “are not barred against the university defendants because Congress validly abrogated sovereign immunity for copyright claims when it passed the Copyright Remedy Clarification Act (CRCA), Pub. L. No. 101-553, 104 Stat. 2749 (Nov. 15 1990).
The court agreed that Congress's “intent to abrogate is so clear (that) the first prong of the test is satisfied.”
Thereafter, however, the plaintiff’s argument failed because CRCA was passed pursuant to the Copyright Clause found in Article I, Section 8 of the U.S. Constitution, and Congress cannot abrogate sovereign immunity under its Article I powers. Specifically, the Supreme Court has held that “Congress may not abrogate state sovereign immunity pursuant to its Article I powers.” Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S 627, 636 (1999). In Florida Prepaid, the court found that Congress’s attempt to abrogate state sovereign immunity in the Patent Remedy Act could not be justified under either the Commerce Clause or the Patent Clause, since both arose under Article I.
Thus, the CRCA was invalid to the extent that it abrogated sovereign immunity under the Copyright Clause, which is also part of Article I, according to the court.
Turning to the claim against the men in their individual capacities, “Coyle does not allege any actions by Barnhart and Monday that would render them liable for copyright infringement,” wrote the court. “Rather, he cites to the general duties that accompany their respective offices to draw an inference that they might have, at the very least, ‘approved of, condoned or acquiesced in’ the infringing activities. But this is insufficient to survive a motion to dismiss. Even taken as true, Coyle's allegations do not identify any particular wrongdoing by Barnhart and Monday.”
David Coyle v. University Of Kentucky, et al.; E.D. Ky.; CIVIL ACTION NO. 5:12-369-KKC, 2014 U.S. Dist. LEXIS 27824; 3/4/14
Attorneys of Record: (for plaintiff) David A. Cohen, Stephen Garrett Amato, W. Chapman Hopkins, LEAD ATTORNEYS, McBrayer, McGinnis, Leslie & Kirkland, PLLC - Lexington, Lexington, KY. (for defendant University of Kentucky, University Athletics Committee of the University of Kentucky Board of Trustees, as successor in interest to the, - University of Kentucky Athletics Association) Eric N. Monday, individually, Mitchell S. Barnhart, individually, Defendants: Stephen Lewis Barker, LEAD ATTORNEY, Joshua Michael Salsburey, Sturgill, Turner, Barker & Moloney PLLC, Lexington, KY; William Eugene Thro, LEAD ATTORNEY, University of Kentucky, Office of Legal Counsel, Lexington, KY.
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The chief judge for the Western District of New York affirmed the vast majority of a magistrate judge’s report, recommendation, and order dismissing the claim of a former college basketball coach, who had alleged that his employer, the Mid-American Conference, and the NCAA conspired to have him removed over bogus NCAA rules violations.
The chief judge agreed with the magistrate that plaintiff Timothy Cohane could not sustain his allegation that the NCAA, in particular, violated his procedural and substantive due process rights because the NCAA is not a "state actor," or an arm of the government.
By way of background, Cohane was hired by the SUNY Buffalo in 1993. He continued to coach the team for five more years at which point defendant Robert Arkeilpane was hired as SUNY’s athletic director.
Cohane accused Arkeilpane of leveraging “a pre-existing friendship and business relationship with Rob Fournier, the then-Director of Compliance for the MAC” to have Cohane accused of violating NCAA rules. Fournier reported the alleged violations to the NCAA.
According to Cohane, “the SUNY Defendants authorized, assisted and conspired with Fournier to violate his due process rights as well as the protocols and rules promulgated by the NCAA and MAC. Specifically, he alleged that with the consent of the SUNY Defendants, Fournier conducted interviews without tape recording them, as required, prepared affidavits for adverse witnesses, intimidated witnesses into giving damaging testimony against Cohane, misrepresented himself to potential witnesses by claiming that he was an attorney or an employee of SUNY Buffalo, and refused Cohane’s request for information regarding the nature of charges against him or documentation of his alleged infractions.”
The NCAA subsequently moved to dismiss, claiming it “was not acting under the color of state law and, alternatively, on the ground that the plaintiff's allegations were insufficient to support a claim of either substantive or procedural due process.”
In a report dated August 8, 2013, the magistrate judge agreed with the NCAA on the state actor point. He also found that the procedural due process claim failed because “(1) the stayed show cause penalty does not constitute a tangible burden upon potential employers as required to invoke the procedural protections of the due process clause; and (2) the NCAA afforded plaintiff adequate process or, alternatively, plaintiff is a public figure with sufficient access to the media to refute the allegations against him regardless of the adequacy of the process afforded by the NCAA.”
The plaintiff appealed.
In his review, the chief judge looked at, among other things, the plaintiff’s assertion that the NCAA enforcement staff “adopted an investigation they knew was improper," thereby denying the plaintiff adequate process.
This argument was faulty, according to the court.
“The alleged improprieties in both the MAC and the NCAA COI's investigation were raised by Plaintiff before the NCAA Appeals Committee,” the court wrote. “That Committee, which did not include any named individual defendant, credited several of these arguments in reducing the plaintiff's penalty. The fact that Plaintiff ultimately did not obtain the full relief sought from the Appeals Committee does not mean that the afforded process was inadequate.”
Not surprisingly, NCAA Chief Legal Officer Donald Remy was pleased with the ruling: "The court's decision underscores the fairness of the NCAA's infractions process and affirms the integrity and professionalism of the NCAA's enforcement staff."
Cohane's attorney, Sean O'Leary of Brooklyn, told the media “this is just another step in the process,” hinting at an appeal.
Timothy M. Cohane v. National Collegiate Athletic Association, et al.; W.D.N.Y.;
Attorneys of Record: (for plaintiff: Sean O'Leary, LEAD ATTORNEY, O'Leary & O'Leary, Garden City, NY. (for defendants) William C. Odle, PRO HAC VICE, Linda J. Salfrank, LEADS ATTORNEYS, Spencer, Fane, Britt & Browne, Kansas City, MO; Lawrence J. Vilardo, Connors & Vilardo, LLP, Buffalo, NY; Patrick T. Morphy, Pattison, Sampson, Ginsberg & Griffin, P.C., Troy, NY.
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A federal judge from the Eastern District of North Carolina has granted the U.S. Federal Government’s motion to dismiss in a case in which it, along with United States Amateur Boxing (USAB), was sued by the family of boxer, who died in competition while competing for the All-Marine Amateur Boxing Team (Team).
The court sided with the government because the plaintiff had not “exhausted” its administrative remedies before filing the claim. It left the claim against USAB intact.
The boxer in the case was Limbardo Anthony Jimenez, Jr. II, who was also a Lance Corporal in the United States Marines. After his return from deployment in Iraq in January 2010, he was stationed at Camp Lejeune and decided to apply for membership on the Team. After receiving permission from his unit command, he had to complete an application and "try out" for the Team's coach, Ronald Simms. Although Jiminez had no previous boxing experience or training, he was accepted on the Team and placed on a 90-day probationary period. Jiminez registered for membership in USAB and paid a registration fee.
On February 27, 2010, Jiminez suffered a nose injury during a Team practice that caused him to experience respiratory problems. Jiminez was seen by several physicians before he was released from sick call and placed on full duty on March 11, 2010. Simms scheduled Jiminez to fight in a Golden Glove tournament on March 25, 2010. On March 20, 2010, Simms subjected Jiminez to an intensive training session in order to prepare for this tournament, according to the court
Jiminez allegedly informed Simms during this practice that he was having trouble breathing, and yet Simms forced Jimenez to continue to train. After Jiminez was allowed to leave the ring, he collapsed on the floor on two occasions, though no medical attention or help was offered from Simms, according to the complaint. Jiminez finally made it back ringside and his condition continued to deteriorate. Simms ignored Jiminez's complaints and the concerns of his Team members about Jiminez and continued the training session with the other team members.
After Jiminez lost vision and consciousness, his team members, not Simms, called for an ambulance, alleged the plaintiffs. During this period, Coach Simms continued his training practice, allegedly ignoring Jiminez's dire medical condition. Jiminez was ultimately airlifted to a hospital, where he died on March 28, 2010 from a closed-head injury.
The plaintiffs sued in state court, naming USAB and Simms as defendants. They alleged various negligence claims, wrongful death and breach of fiduciary duty. On May 31, 2012, the government certified that, at the time of the incidents alleged in the complaint, Simms was acting within the scope of his employment on behalf of the United States Marine Corps and substituted itself for Simms as a proper defendant in this action. See 28 U.S.C. § 2679. The government also removed the case to federal court, pursuant to the Federal Tort Claims Act (FTCA).
On June 7, 2012, the government moved to dismiss the claim for the plaintiff's failure to exhaust administrative remedies as required by the FTCA. On March 11, 2013, the court denied without prejudice that motion and directed the parties to conduct limited discovery as to whether Simms was an employee of the Marine Corps who was acting within the scope of his employment at the time of the underlying incidents in this case. After conducting such discovery, the government filed a motion to dismiss, which is addressed in the instant opinion.
In January 2007, Simms applied for the position of Sports Specialist, Amateur Boxing Coach, a flexible position that included no benefits, as boxing coach of the Team.
The position description called for Simms to administer the All-Marine Boxing Program; provide the Athletic Director with recommendation/suggestions for selection on the All-Marine Boxing Team; coach, plan and organize physical fitness programs that condition the boxing team; and, actively recruit Marine boxers.
On January 31, 2007, an official in the Personal and Family Readiness Division (PFRD) notified Simms that the Semper Fit Branch of the PFRD selected Simms for the position. “Employees of the Semper Fit Branch are considered to be government employees,” according to the court.
Additional factors supported this designation, such as the fact that Human Resources “maintained Simms's personnel file because it considered him to be a federal employee,” wrote the court. “If Simms were considered an independent contractor, the normal protocol would be for the contracting office to work with Simms and not the human resources office.”
A year later, the Marine Corps informed Simms that as a full-time employee he was eligible to participate in the employee benefit plan, according to the court.
“The government has provided overwhelming evidence as to its employment of Simms,” wrote the court. “It hired Simms, promoted him, provided salary and benefits, and supported the Team.”
Given the determination that both defendants were subject to the FTCA, the court turned to whether the plaintiff had “exhausted her administrative remedies. See 28 U.S.C. § 2401(b) (requiring presentation in writing to appropriate federal agency within two years of claim's accrual); Gould v. United States Dept. of Health & Human Servs., 905 F.2d 738, 742 (The FTCA ‘specifically requires an initial presentation of a claim to the appropriate federal agency within two years of the accrual of the cause of action and a final denial by that agency as a jurisdictional prerequisite to suit under the Act.’)
“In this case, plaintiff did not file an administrative claim with the Department of the Navy related to the incidents alleged in the complaint within the two year statute of limitations period dictated by the FTCA. In fact, the plaintiff has presented no evidence that she has filed such a claim at any time. Accordingly, the court lacks jurisdiction to hear the plaintiff's claims against the government, and the government's motion to dismiss is granted.”
Penny Palmer, executrix for the Estate Of Libardo Anthony Jimenez, JR., Deceased v. United States Amateur Boxing, INC. and United States Of America; E.D.N.C.; NO. 4:12-CV-106-H, 2014 U.S. Dist. LEXIS 27637; 3/4/13
Attorneys of Record: (for plaintiff) E. Bradley Evans, Lynwood P. Evans, Thomas E. Stroud, Jr., LEAD ATTORNEYS, Ward & Smith, P.A., Greenville, NC. (for defendants) Rodney A. Dean, LEAD ATTORNEY, Dean & Gibson, PLLC, Charlotte, NC and Michael James, LEAD ATTORNEY, Raleigh, NC.
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By Ronald G. Christian, M.S., (Ph.D. candidate, University of Kansas), Baker University (Kansas), and Lee E. Green, J.D., Baker University (Kansas)
In 2010, as part of the terms of a lawsuit settlement with the family of Dale Lloyd II, a Rice University football player who suffered from undiagnosed Sickle Cell Trait and who died in 2006 a day after collapsing following a workout, the NCAA instituted mandatory screening of all Division I college athletes for SCT unless they provide prior test results or sign a waiver declining the test. Mandatory SCT testing for all Division II athletes began in 2012 and for all Division III athletes in 2013.
Sickle Cell Trait is an inherited blood disorder that in rare, extreme conditions accompanied by intense physical activity, severe dehydration, and high temperatures, leads to serious illness and death. The March 11, 2013 issue of The American Journal of Sports Medicine featured an article summarizing 20 years of data from the National Center for Catastrophic Sports Injury Research that found 243 deaths among American college and high school football players, with 11 of those occurring among players (all African Americans) with SCT. Since 1973, 19 athlete deaths have been linked to SCT, including 17 football players (Harmon, Drezner, Klossner, & Asif, 2012). An estimated 3 million Americans, including 1 in 12 African-Americans, carry SCT. Many live asymptomatically.
The issue of SCT screening is a highly controversial one, sparking not only health concerns, but also a host of legal issues. In September 2013, the parents of Jack Hill, Jr., sued Slippery Rock University, an NCAA Division II institution, and the NCAA after their son collapsed and died during an intense workout in 2011. Hill, Jr., died just one year after the NCAA Division I mandate for SCT screening went into effect, and just one year before SCT testing was required for NCAA II institutions.
Some medical associations, among them the American Society of Hematology and the Sickle Cell Disease Association of America, oppose mandatory SCT testing because of concerns regarding the lack of peer-reviewed scientific evidence that SCT screening will actually save lives. There are also concerns regarding potentially discriminatory use of the genetic information revealed through SCT testing, including possible violations of the Genetic Information Nondiscrimination Act of 2008, HIPAA, and FERPA. Other organizations, including the American Medical Society for Sports Medicine, the American College of Sports Medicine, the American Academy of Pediatrics, the American College of Emergency Physicians, and the National Academy of Sports Medicine support mandatory SCT screening for athletes as an important component of a three-pronged approach to preventing SCT-related deaths (j knowledge, k education, l precautions).
The American Society of Hematology released a statement in January 2012 asserting that “implementation of universal preventive interventions will render screening unnecessary and better protect all athletes from exertion-related illness and death,” (ASH, 2012). According to ASH, SCT screening attributes risk imprecisely, obscures consideration of other risk factors, fails to incorporate appropriate counseling, and could lead to racial discrimination. ASH also noted that the extremely small number of deaths in a highly prevalent carrier state implies other factors play a role.
Recommended preventive interventions by ASH include 1) monitoring heat acclimatization and work-rest cycles based on the training environment, 2) implementing guidelines for hydration, and 3) maintaining staff preparedness for early and rapid detection, and treatment of student-athletes. Many NCAA recommendations are consistent with ASH, requiring progressive acclimatization, appropriate medical coverage, and development and practice of an emergency action plan (NCAA Sports Medicine, 2013). The NCAA also requires student-athletes to complete a medical history questionnaire prior to competition.
The perceived fear of discrimination or being “treated differently” once SCT status is known may be a valid concern in the minds of student-athletes. In 2001, Florida State University officials refused to provide medical clearance for Devard Darling, a wide receiver and SCT carrier, after his twin brother Devaughn died at age 18 from SCT complications during an off-season workout with the Seminoles. Devard went on to play for Washington State University for two seasons and enjoyed a five-year NFL career.
Several scholars have examined the issue from a research perspective. Study results among 375 NCAA I, II, III, and NAIA institutions (Jung, Selmon, Lett, & Petrella, 2011) published in the Medicine & Science in Sports & Exercise Journal revealed that 57% of athletic departments counsel student-athletes about SCT. Data from a pilot survey among athletic sports medicine professionals from 40 selected NCAA I, II, and III institutions (Christian & Green, 2014) produced some interesting findings as well. Consistent with the discrimination concerns shared by many professional medical associations, this survey revealed that 56% of institutions had 100 or more student-athletes sign a waiver declining the SCT test. Although this finding warrants further inquiry, the initial results suggest that student-athletes may have some concerns about SCT screening, a lack of understanding about the importance of SCT screening, or a combination of the two.
Research from the aforementioned studies produced consistent results regarding education about SCT, with 59% compliance (2014) and 57% compliance (2011), respectively, when it comes to counseling student-athletes about the condition. The studies also revealed an upward trend in monitoring work-rest cycles (64% in 2014) and modifying workouts (40% in 2011), lending support to the position held by many medical associations advocating for prevention measures to address exertion- and heat-related illness and death in student-athletes.
One effective measure for SCT screening employed by some institutions involves obtaining a release from the athlete, parent, or guardian to obtain medical records from a state agency. At-birth SCT screening has been required in all states since 2006, but many states have been screening all newborns much longer, including California (1990) and Florida (1998). Although many states may lack a protocol for disseminating results directly to SCT carriers and/or parents of SCT carriers (Zarda, 2010), institutions can obtain SCT status from state agencies with a release from the athlete, parent, or guardian.
Further examination of the arguments on both sides of this important safety and legal issue may provide sound recommendations for sports organizations and educational institutions regarding the future development and implementation of SCT protocols.
Ron Christian is an assistant professor at Baker University (Kansas) where he teaches courses in sports administration, including sports marketing, sports leadership, sports management, sports law, and facility and event management. He completed his master’s degree at the University of Northern Colorado and is pursuing a Ph.D. at the University of Kansas.
Lee Green is an attorney and a professor at Baker University (Kansas) where since 1986 he has taught courses in sports law, constitutional law, and business law. He has written three books on sports law, more than 50 articles on sports law, and he regularly presents sports law seminars and workshops for the NCAA, NACDA, the NAIA, the NFHS, and state athletic associations and athletic director associations around the country.
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By Gregg E. Clifton, Howard Bloom and Patrick Egan, of Jackson Lewis
The decision of the Regional Director of Region 13 of the National Labor Relations Board (“NLRB”) that scholarship football players at Northwestern University are “employees” under the National Labor Relations Act (“NLRA”) has created an interesting question for all colleges and universities: Are members of coaching staffs now considered to be supervisors under the NLRA? The answer is likely “yes.” This would mean that members of athletic department coaching staffs must be trained to foster their understanding that the NLRB has changed the rules relating to scholarship athletes.
A Section 2(11) “supervisor” under the NLRA is one who possesses the authority, in the employer’s interest, ”to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
Supervisory status requires an extensive analysis turning on the facts in each case. However, based upon the defined role and generally accepted responsibilities of most college football coaches, it is likely that the NLRB will conclude in almost all cases that coaches are statutory supervisors, if their players are employees.
If this is so, coaches’ actions and statements can legally bind their university and constitute unfair labor practices (“ULP”) in violation of the NLRA. The NLRA prohibits employers from making statements or engaging in conduct that “interferes with, restrains or coerces” employees in their right to join a union or to band together to improve working conditions. It also prohibits employers from discriminating against employees because of their union activities or sympathies, or because they band together to improve working conditions.
An NLRB Regional Office’s investigation of a ULP charge will decide whether the athlete is an employee under the NLRA, and whether the coach who engaged in the complained-of conduct or made the allegedly unlawful statement is a “supervisor.” If the Region decides that the answer to both questions is yes, it will then decide whether the coach’s conduct/statement violated the NLRA.
The remedies that potentially can be imposed against a college or university by the NLRB depend on when the ULP occurs:
If the ULP involved what the NLRB refers to as “outrageous” and “pervasive” violations, or those tending to undermine the union’s majority strength and impede the election process, and where the possibility of erasing the effects of that conduct and ensuring a fair election is slight, the NLRB also could impose a more drastic remedy of issuing a “bargaining order.”
This would require a college or university to recognize the union as the representative of the players and begin the process of negotiating a collective bargaining agreement. This could occur in the absence of an election or after an election in which the union lost. Examples of such “hallmark” violations of the NLRA include conduct such as terminating key union supporters (e.g., cutting union supporters from the team), providing benefits to players to discourage their interest in the union or threatening plant closure (e.g., shutting down the program or taking away all scholarships) to discourage union organizing.
The impact of the NLRB’s finding that scholarship football players at Northwestern University are “employees” provides potential ramifications in addition to the change in status for these scholarship athletes. It requires the further education of athletic department coaching staffs to ensure their understanding that the NLRB has changed the rules. All coaches must be aware of their likely status as legal supervisors and the potential legal ramifications of their actions under the NLRA.
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By Jordan Kobritz
What began as an isolated lawsuit has become an epidemic. The Buffalo Jills became the third NFL cheerleading squad in the past four months to sue over wages - or lack thereof - and working conditions.
Lawsuits have also been filed by the Raiderettes against the Oakland Raiders and the Ben-Gals against the Cincinnati Bengals. All three suits detail the lack of compensation, strict club control over dress and appearance - at the cheerleaders’ own expense - and the summary imposition of fines and other penalties for any rule violations. Rather than the glitter and glamour depicted on television and described on team websites, cheerleading, at least NFL-style, appears to be nothing more than a scam perpetrated on naive young women and an unsuspecting public.
One of the most damning allegations contained in the Jills’ complaint is that they are treated as independent contractors rather than employees. Employers do not have to pay social security, Medicare and unemployment taxes nor do they have to withhold federal income taxes on independent contractors. As independent contractors, cheerleaders are responsible for their own tax withholdings — when they are paid at all - and are ineligible for workers compensation insurance and other benefits usually associated with employment. But any objective review of their circumstances leads to only one conclusion: The cheerleaders are in fact employees.
For federal employment purposes, the usual common law rules are applied to determine whether someone is an independent contractor or an employee. Courts focus on the degree of control vs. independence in the relationship. Factors that are considered fall into three categories: Behavioral Control, Financial Control and the Relationship of the Parties.
Behavioral Control covers facts that show whether the business has a right to direct and control what work is accomplished and how the work is done through instructions, training, or other means.
Financial Control looks at facts that show whether the business has a right to direct or control the financial aspects of the worker’s job, including the extent to which the worker has unreimbursed business related expenses, the worker’s investment in the tools used in performing services, how the business pays the worker and whether the worker can realize a profit or incur a loss.
Factors that determine the Relationship of the Parties include the terms of their written contracts, whether benefits are provided to the workers, the permanency of the relationship, and how integral the services provided by the worker are to the regular business of the company.
The standards that determine state employment vary from state to state, which means it’s possible that cheerleaders in one state could be declared employees while cheerleaders in another state are classified as independent contractors. However, the general rule is that a worker is an independent contractor if the payer has “the right to control or direct only the result of the work and not what will be done and how it will be done.” An individual is an employee if he or she performs services that can be controlled by an employer, i.e., what will be done and how it will be done. The key is whether the employer controls the details of how the services are performed.
You want details? Teams control a cheerleader’s hairstyle and makeup, right down to the length of finger nails and color of eye shadow, for which the girls foot the bill. Cheerleaders are told when to show up for work and which events they must attend. To add insult to injury, cheerleaders are usually required to pay the cost of traveling to such events. Every team has a detailed handbook and Code of Conduct that must be adhered to.
The Ben-Gals handbook regulates everything from panties to boobs. The section on panties and pantyhose reads as follows: “No panties are to be worn under practice clothes or uniform, not even thong panties. Wear pantyhose to match skin tone (L’eggs). No Danskins/Dance type tights. No control top at practices or games. No exposed skin at ankles — pantyhose must extend down into socks.” Admonitions concerning a cheerleader’s chest include: “No slouching breasts. Support as needed. Black or nude seamless bra mandatory for games. (No lace)”
The Jills’ handbook consists of twelve pages of dos and don’ts that are both demeaning and insulting in their detail. Cheerleaders are given instructions on such things as conversation starters for appearances and etiquette for formal dining (25 rules), rules for communicating with people with disabilities (17 rules), and rules on female hygiene (17 rules). Examples include: “When trying to capture a small piece of food onto a utensil, it is acceptable to use another utensil for aiding it aboard. Never use your fingers.” In the section of the handbook titled, “General hygiene & lady body maintenance,” cheerleaders are told which tampons to use and how frequently to change them. Another clause instructs them how to keep their “intimate areas” fresh.
Every cheerleader is subject to a weight and appearance clause which is contained in their contract or the team’s handbook. The ultimate indignity is the so-called “Jiggle Test” imposed on the Jills. Periodically, cheerleaders’ body parts - stomachs, arms, legs, thighs and butts - are scrutinized while they perform jumping jacks before team personnel. If their bodies fail to measure up to some subjective standard, cheerleaders are “...penalized, suspended or dismissed.”
The most scathing complaint, and potentially the greatest risk to the defendants, is how much — or little — the cheerleaders are paid. The suit against the Bengals alleges that Ben-Gals are paid only $90 per game, plus whatever they make during paid appearances. In addition, the rules require cheerleaders to sign up for at least 12 charity (i.e., unpaid) appearances for the season before they will be selected to attend a paid event.
The lawsuit against the Raiders alleges that the team withholds all pay from the Raiderettes until the end of the season, does not pay for all hours worked and forces the cheerleaders to pay many of their own business expenses. Cheerleaders are paid $1,250 per season, which amounts to less than $5 per hour for the time they spend rehearsing, performing and appearing at events for which they are not compensated.
Jills are not paid for game day cheering, practice, or the bulk of their required minimum 20 personal appearances. When they do receive tips, for example during the Jills Golf Tournament (for which participation is mandatory), they are required to turn them in. In addition to being a freebee, the golf tournament itself is particularly demeaning. According to the allegations in the complaint, cheerleaders are required to wear bikinis, are “auctioned off” to the highest bidder and forced to ride around in the winner’s golf cart where they are subjected to “...degrading sexual comments and inappropriate touching.”
While the cheerleaders themselves are underpaid, they generate millions for their employers. A 2003 article in Forbes estimated that cheerleaders generated a minimum of $1 million per year for their teams. That amount has surely increased over the past decade.
The NFL should be embarrassed. Teams are swimming in cash — the league grossed nearly $10 billion in revenue last year — but they can’t resist squeezing the little people that are affiliated with the most popular sport in the country. In contrast to the cheerleaders, NFL Commissioner Roger Goodell was paid $44.2 million in 2012, based on tax returns filed by the league. Surely the courts will decide that cheerleaders are entitled to be paid minimum wage.
Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is a Professor in the Sport Management Department at SUNY Cortland and also maintains the blog: http://sportsbeyondthelines.com Jordan can be reached at email@example.com.
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In a complaint filed in April, the Florida Bar Association has alleged that the attorney representing Nevin Shapiro at the time of Miami’s 2009 impermissible benefits case, Maria Elena Perez, committed a range of ethical and rules violations.
More specifically, the compliant claims Perez violated regulations regarding competence, diligence, and candor toward the tribunal, while representing the Ponzi-scheming Shapiro.
Perez, a graduate of Miami, allegedly assisted the NCAA during its investigation of the university’s athletic department. While representing Shapiro—a Miami booster—during his bankruptcy proceedings, she proposed to the NCAA that she could use her subpoena power to retrieve information the association could in turn use for its investigation, according to reports.
After an external review by the NCAA, it was determined members of the enforcement staff accepted Perez’ offer, even after warnings from legal staff. Julie Roe Lach, a former enforcement director for the NCAA, allegedly gained permission to spend roughly $20,000 on Perez to obtain the information the association would otherwise not have been able to get.
According to records, Perez received payment of $18,325 from the NCAA, which she billed for “paralegal services” at an attorney’s rate.
The information obtained through Perez was eventually thrown out of the NCAA’s investigation, but Perez could still face probation, reprimand, suspension, or disbarment by the Florida Bar as a result of her procedural errors.
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By Brittany Tellex
Overview of the Case
In December 2011, the citizens of New Jersey voted in favor of amending the State Constitution to permit gambling “on the results of any professional, college, or amateur sport or athletic events” (N.J. Const., art. IV, sec. VII para. 2(D)). Following this vote, the New Jersey State Legislature enacted the Sports Wagering Law authorizing sports betting in Atlantic City casinos and horse racing tracks around the State. On July 2, 2012, the New Jersey Division of Gaming Enforcement implemented a series of regulations permitting private parties to obtain sports betting licenses in accordance with the Sports Wagering Law.
Shortly thereafter, on August 7, 2012, the National Collegiate Athletic Association (“NCAA”), National Basketball Association (“NBA”), National Football League (“NFL”), National Hockey League (“NHL”), and Major League Baseball (“MLB”) (collectively “Leagues” or “Plaintiffs”) filed suit against New Jersey Governor Chris Christie and other high ranking State officials (collectively “Defendants” or “New Jersey”) seeking an injunction preventing Defendants from implementing the Sports Wagering Law. Plaintiffs asserted that the Sports Wagering Law violated the federal Professional and Amateur Sports Protection Act (“PASPA”). PASPA, enacted by Congress in 1992, prohibits government entities from “licensing or authorizing...[a] betting, gambling, or wagering scheme based...on competitive games in which professional or amateurs participate,” and prohibits private individuals from engaging in betting pursuant to any such scheme (28 U.S.C. § 3702). Also, PASPA gives sports organizations a civil remedy to combat sports betting. “A civil action to enjoin a violation of section 3702 may be commenced in an appropriate district court of the United States...by a professional sports organization or amateur sports organization whose competitive game is alleged to be the basis of such violation” (28 U.S.C. § 3703). PASPA also contains a “grandfather clause” which exempts states, like Nevada, that already have gambling schemes in place (28 U.S.C. § 3704).
Judge Michael Shipp of Federal District Court for the District of New Jersey initially heard the case and issued a ruling in favor of the Leagues. New Jersey appealed the case to the Third Circuit Court of Appeals, arguing that PASPA violated the 10th Amendment of the Constitution. The Third Circuit affirmed judges Ship’s ruling in a 2-1 decision, and held that PASPA was a permissible use of Congress’s power to regulate state activity. Following it’s defeat in the Third Circuit, New Jersey successfully petitioned the Supreme Court for a writ of certiorari, and the case is currently awaiting review by the Court. This paper will examine in detail the amicus briefs filed by various parties in support of New Jersey’s petition for certiorari.
Numerous organizations filed briefs in support of New Jersey’s petition for certiorari. Among these groups are the Pacific Legal Foundation (“PLF”) and Cato Institute (“Cato”). Both foundations are non-profit legal institutions dedicated to advocating in support of limited government and strict federalist separation as protections of constitutional liberty.
PLF and Cato begin their brief by taking issue with PASPA’s grandfather clause, and urging that the federalist system of the U.S. Constitution requires that, absent compelling circumstances, each state be treated equally under federal laws. They argue that this principle of equal state sovereignty extends to congressional regulations enacted under the Commerce Clause, like PASPA. The Framers of the Constitution “maintained as perhaps their single most important goal...vesting Congress with the power to enact regulations and duties governing interstate commerce, so long as those regulations and duties were uniform throughout the United States” (Thomas B. Colby, Revitalizing the Forgotten Uniformity Constraint on the Commerce Clause Power, 91 Va. L. Rev 249, 273 (2005)). Despite this historical backdrop, recent Supreme Court decisions have held that the “doctrine of equality of the States...applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared” (South Carolina v. Katzenbach, 383 U.S. 301, 328-29 (1966)). The brief takes issue with this position as contrary not only to the Constitution’s history, but to its plain text as well: “[A]ll duties, Imposts and Excises shall be uniform throughout the United States” (U.S. Const. art. I, § 8, cl. 1).
PLF and Cato call on the Supreme Court to reconsider the issue and decide once and for all whether the principle of equal state sovereignty applies to Commerce Clause legislation. They argue that the Court’s resolution of this matter is critical because it will affect a number of important federalism issues facing the country today. One such issue is the Clean Air Act, which allows California to set its own standards for air pollution, while making all other states subject to federal emissions regulations. This gives voters in California the ability to directly affect their state’s pollution standards, while leaving citizens in other states with no similar sovereignty. This imbalance in freedom to affect local regulations is similar to that created by PASPA, which would afford Nevada residents the unique opportunity to affect the gambling laws in their state. PLF and CATO argue that a Supreme Court decision on whether the equal sovereignty principle prevents Congress from creating such disparate electoral accountability is necessary to guide the decision-making of lower courts and of Congress itself.
Another group that filed a brief in support of New Jersey’s petition is the states of West Virginia, Wisconsin, and Wyoming (collectively “West Virginia”). Their brief focuses on whether PASPA’s prohibition on state licensing of sports wagering commandeers the regulatory authority of the States in violation of the 10th Amendment. Their enumerated concern is not with state or federal sports wagering laws, but rather with the federalism issues implicated by the Third Circuit’s decision.
West Virginia begins by arguing that the Third Circuit’s ruling is inconsistent with Supreme Court precedent on the issue of preemption. Pursuant to the Supremacy Clause of the Constitution, the preemption doctrine dictates that federal laws take precedence over any conflicting state laws (Black's Law Dictionary (9th ed. 2009), preemption). West Virginia notes that Supreme Court decisions allow state laws to be preempted only where they conflict with an existing federal scheme directly regulating citizens’ conduct. “The Supremacy Clause has been held to give primacy to valid federal laws over contrary state laws, but it has never been construed as a license to Congress to prohibit state lawmaking whenever and however it desires” (New York v. United States, 505 U.S. 144, 178 (1992)). The Third Circuit’s decision, they argue, runs contrary to this principle by permitting Congress to pass laws that do not regulate individual conduct, but operate only to directly preempt state law. West Virginia rejected the Third Circuit’s contention that PASPA does impose an affirmative federal regulatory scheme to control individuals’ gambling conduct, noting that PASPA’s sole purpose is to control the states’ regulation of sports wagering.
West Virginia next argues that the Third Circuit’s decision is at odds with the Supreme Court’s anti-commandeering jurisprudence. In holding that PASPA did not improperly commandeer the states’ regulatory authority, the Third Circuit distinguished between affirmative and negative regulatory commands. The court explained that federal laws like PAPSPA, which simply give a negative command to prevent states from doing something, do not run afoul of the anti-commandeering principle. West Virginia urges that this distinction misunderstands the purpose of the anti-commandeering clause: to ensure that the state and federal governments remain directly accountable for their own actions. Under this understanding, they argue, Congress runs afoul of the anti-commandeering doctrine anytime is obscures its electoral responsibility by forcing states to effectuate federal policy. Congress can create this type of impermissible obfuscation both with negative and affirmative regulatory commands.
The brief goes on to point out that direct political accountability to the electorate is the core concern of the Constitution’s federalist structure. “The Framers determined that the new National Government must carry its agency to the persons of the citizens...[and] address itself immediately to the hopes and fears of individuals” (New York, 505 U.S. at 163). The anti-commandeering principle protects electoral accountability by ensuring that state and federal governments act to regulate citizens separately and directly, and are therefore forced to bear the political consequences for their actions. West Virginia argues that laws like PASPA, which force the states to implement federal policy, unjustly put state lawmakers at the mercy of their electorate’s disapproval, while insulating from political consequences the federal officials who devised the regulation.
West Virginia closes their brief by noting that the Supreme Court has never endorsed the Third Circuit’s “affirmative versus negative” anti-commandeering doctrine test. They argue that the Third Circuit improperly relied on the fact that recent Supreme Court cases invalidating laws under the anti-commandeering doctrine involved affirmative regulatory commands. The Court could not have intended to allow all negative commands because Congress can exert just as much control over states by preventing actions as it can by requiring affirmative actions. Finally, West Virginia closes by highlighting the injury that could be done to state sovereignty if the Third Circuit’s decision is allowed to stand.
Three sports law analytics scholars by the names of Ryan M. Rodenberg, Anastasios Kaburakis, and John T. Holden (collectively “Scholars”) also filed a brief supporting New Jersey’s petition for certiorari. The Scholar’s interest as amici is in ensuring that sports-wagering and intellectual property laws comply with the Constitution. Accordingly, their brief focuses on PASPA’s purported violation of the Intellectual Property Clause of the Constitution.
The Intellectual Property Clause gives Congress the authority “To promote the Progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their perspective Writings and Discoveries” (U.S. Const. art. I, § 8, cl. 8). As mentioned above, PASPA’s civil remedy provision grants professional and amateur sports leagues the right to file an injunction against any state that violates the statute. This injunction remedy is conferred upon Leagues “whose competitive game is alleged to be the basis of such violation” (28 U.S.C. § 3703). The Scholars argue that Congress’ use of the word “whose” in § 3703 gives the Leagues perpetual intellectual property rights in their games that violate the Intellectual Property Clause. Specifically, they argue that these property rights violate the Clause’s “limited Times,’’ “Authors and Inventors,” and “Writings and Discoveries” requirements. Also, they argue that PASPA’s grandfather clause confers intellectual property rights upon exempted states that violate Clause’s “limited Times” requirement.
In addressing the intellectual property rights granted to the Leagues, the Scholars highlight that “whose” is a possessive word that refers to “that which belongs to whom” (Merriam Webster’s Collegiate Dictionary at 1352 (10th ed. 1993)). Therefore, they argue, PASPA’s use of the word “whose” grants League ownership of the “competitive games” referred to in § 3703, and gives the Leagues the right to prevent sports-wagering that would otherwise be permissible under state law. Additionally, the Scholars point to statements made by various parties during the present litigation that serve support their position. For example the DOJ stated that “...the legal protection that PASPA affords to sports leagues is similar to the protections traditionally afforded in fields such as copyright and trademark law, where companies are given the right not to have their creative works exploited by other parties” (Brief for Appellee United States at 22 n. 7, NCAA et. al. v. Christies et. al. (June 7, 2013) (No. 13-1713, 13-1714, 13-1715)). Congress’ conferral of such rights, which have a function similar to patents and copyrights, the Scholars argue, must comply with limitations of the Intellectual Property Clause.
The Scholars assert that these rights violate the Intellectual Property Clause’s “Authors and Inventors” requirement because the Leagues are not the inventors, writers, or authors of the “competitive games” that they are awarded ownership rights in. Additionally, the Leagues’ right to file an injunction excluding states from authorizing regulated sports wagering on “competitive games” mirrors the remedies given to patent holders to exclude others from using their inventions. This de facto patent right violates the Intellectual property clauses’ requirement that such exclusions be granted only to “promote the Progress of Science and the useful Arts.” Also, the Scholars contend that the property rights PASPA grants to Leagues is perpetual, and is therefore in violation of the “limited Times” requirement. The limitations contained in the Intellectual Property Clause apply to “ all of Congress’ power and therefore...Congress may not look to [it’s Commerce Clause] powers to avoid these limits” (Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 Columbia L. Rev. 272, 272 (2004)).
The Scholars next address PASPA’s conferral of perpetual intellectual property rights to grandfathered states. They argue that the creation of this right runs contrary to the Intellectual Property Clause’s purpose of protecting desirable, useful creations, because it protects sports wagering — an activity that Congress has deemed undesirable. Further, PASPA’s grandfather clause violates the “limited Times” requirement by granting Nevada and other exempted states an indefinite monopoly on sports wagering. The Scholars close their brief by stating that their Intellectual Property Clause reasoning offers the Supreme Court an alternative, narrower basis to decide the case.
The legal theories offered by the amici to support their contentions that PASPA is unconstitutional are persuasive. The most persuasive of them, and the one that the Supreme Court should base its opinion on, is that PASPA violates the anti-commandeering principle of the 10th Amendment. A ruling on these grounds will have the beneficial effect of shoring up the somewhat eroded condition of the 10th Amendment’s guarantee of state sovereignty. The anti-discrimination theory is an alternative basis that would also help reestablish 10th Amendment protections, but this reasoning would make the opinion narrower because it is a seemingly rare situation in which federal regulations discriminate among the states. Finally, although the intellectual property theories offered by the amici Scholars are likely sufficient grounds on which to invalidate PASPA, the Court should take advantage of this case as an opportunity reaffirm 10th Amendment federalism principles.
Brittany Tellex is a Masters student at Florida State University.
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By Chloe Scheller
The goal line isn't the only line being crossed these days in NFL stadiums. With changes in technology have come accompanying threats, placing a growing burden on team officials to identify such threats and then act.
There is no better example of this than in the realm of technology, where teams and their security firms are increasingly monitoring fans posting to Twitter, Facebook, and/or Instagram in hopes of identifying potential problems, such as fans plotting to rush the field, or a threat to an NFL player or coach.
Citadel, a New York-based security agency, handles events for the NFL. Citadel looks through the Twitter and Instagram followers of a team or major player to monitor hashtags and other posts for any potential threats. If they come across a suspicious post a background check is performed and if needed, the security staff is made aware. "It's just mind-blowing that you can, in a 10- or 15-minute search, follow some hashtags, you follow a trail and you can uncover all kinds of information," said Yorio, managing director of Citadel.
Social media isn't the only new tool used by NFL security to ensure a safe game day. Over time the NFL has seen changes in the types of security threats it sees. "Prior to 9/11, there was little thought given to security other than as it related to fan behavior and maintaining a no-fly zone over the stadium during games," said Richard Thigpen, general counsel for the Carolina Panthers. "Security is now a major point of emphasis at all sports venues. Keeping up with the ever-evolving types of threats and identifying potential perpetrators is probably the toughest challenge."
After September 11, 2001 the NFL put in motion a Task Force made up of league, club and stadium executives to provide suggestions on security matters in relation to fans, teams and stadiums. The NFL's Best Practices is an all-inclusive assessment of stadium security which was created after 9/11 and has been updated every year since. As the only set of best practices certified as anti-terrorism technologies by the Department of Homeland Security, the NFL has been a leader in the sports industry for stadium security.
Implications of the New Bag Policy
One of these Best Practices is the new bag policy which is one of controversy among fans. In 2013, the NFL changed the size and type of bags permitted to bring into the stadium aimed to increase public safety and more efficiently allow fans to enter the stadium. Fans are now limited to bringing one clear plastic bag or freezer bag and one clutch or small purse both with size limitations. The clear bags are meant to be more easily searched and supports the Department of Homeland Security's "If You See Something, Say Something" awareness campaign that encourages the public to report suspicious behavior. The changes may have some feeling like they are standing in line for airport security. Others embrace the change with the shorter waits and the greater sense of safety that goes along with it.
One of the goals of the new clear bag policy is to prevent alcohol from being brought into the stadiums, a key concern of minimizing inebriated and potentially violent fans. "The crowd management staff acting as screeners at the gates or doors of the venue must be trained and motivated to spot the prohibited items. Identifying an overly intoxicated individual is only the first step," said Dr. Robin Ammon of the University of South Dakota whose expertise lies in crowd management. "However, one major flaw in some crowd management plans is to simply eject the individual. Now they have placed an overly intoxicated individual (who in most cases became inebriated inside the facility) outside the venue who is left to fend for themselves. The level of liability is now magnified tremendously."
Another potential security threat has taken to the air. The FAA (Federal Aviation Administration) has paired with the NFL to create no-fly zones for planes and drones over and around the stadiums during game days including this past season's Super Bowl XLVIII at MetLife Stadium in New Jersey.
Drones, otherwise known as unmanned aerial vehicles (UAV), are remotely controlled aircrafts which use software-controlled flight plans with GPS. Drones are often used for surveillance, photography, search and rescue, and weather monitoring. Used by military and hobbyists alike, the drones’ capabilities are expanding ever year. One of these new innovations is Amazon’s recent announcement to use drones to deliver orders through their future Amazon Prime Air service for those placed within 10 miles of a fulfillment center.
However, new threats follow the development of new technologies. Gil Fried, professor and chair of The Sport Management Department at the University of New Haven, weighed in on the FAA's no-fly zone. " I think it is a good start, but my big concern right now is with radio controlled planes and drones. A terrorist can pack a drone with explosives or anthrax and launch an attack from the safety of a car in the parking lot," Fried said.
And no-fly zones aren't the only NFL Best Practice that will need regular review and scrutiny. According to Fried, another potential future threat may be data theft. "I think data theft might be a big concern in the future. If people can scam Target, why can’t they scam a stadium and all the fans therein." said Fried.
Unfortunately for the league and its franchises, the possibilities are limitless, placing a premium on identifying the bad guys before they can act.
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By Cadie Carroll
Two former San Diego Chargers have sued the NFL and its main helmet supplier, claiming the league kept secret its knowledge of the dangers of head injuries and that Riddell knowingly produced and equipped players with a defective product.
Plaintiff James “Jim” Allison was a running back for the Chargers from 1965 to 1968, which at the time was under the American Football League. Co-plaintiff Burt Grossman, a first round draft pick in 1989, spent five seasons as a defensive end with the Chargers—then under the NFL—before ending his career with the Eagles in 1994.
Allison, 71, and Grossman, 47, are aiming to prove that the NFL knowingly withheld information about the effects of concussions from its players and that it knew of those dangers long before its creation of its “Mild Traumatic Brain Injury Committee” in 1994, according to the suit.
The claim points to medical studies as far back as the 1920s researching the effects of repeated concussions on boxers and also lists numerous rules changes—beginning in 1956—aiming to increase protection of football player’s upper bodies as evidence of “a longstanding and comprehensive plan to mislead its players and the general public” about brain injuries.
Additionally, the suit alleges the NFL’s brain injury committee was never used for its intended purpose. It states: “Although the NFL created [the committee] purportedly to investigate the effect of concussions on its players, its actual purpose was to attempt to discredit legitimate research on brain injuries and continue to push the NFL’s party line: Concussions and other repeated head trauma are not dangerous.”
The pair claims they “would regularly lose consciousness during games,” but were repeatedly misdiagnosed by team doctors “so they would be cleared to return to the field.”
In addition to their claims against the NFL, Allison and Grossman also name Riddell in the suit, saying the company’s helmets were ineffectively designed and lacked proper testing.
“At the time the helmets were designed, manufactured, sold, and distributed, the helmets were defective in their manufacturing and unreasonably dangerous and unsafe for their intended purpose,” the suit claims.
The two are requesting a jury trial and are seeking damages for medical care and loss of income. They are being represented by Casey Gerry Schenk Francavilla Blatt & Penfield, LLP, a firm that is no stranger to concussion litigation. In 2012, Casey Gerry joined the Plaintiffs Steering Committee overseeing brain injury-related litigation against the NFL and in 2013 brought about a wrongful death suit on behalf of Junior Seau’s family, another former Chargers player who suffered from chronic brain trauma.
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By Gonzalo E. Mon
Most marketers know they need to get consent before sending text messages. Despite this, the number of lawsuits involving allegedly unsolicited text messages keeps growing, and many companies have paid millions of dollars to settle these suits. These settlement amounts have attracted the attention of class action lawyers, who often see these suits as a path to easy money. The Buffalo Bill’s recent decision to enter into a settlement to end one of these suits shows just how dangerous this area can be.
First, some quick background. The Telephone Consumer Protection Act (TCPA) generally makes it unlawful to send marketing text messages to a person without that person’s express written consent. The law also provides for penalties of up to $1,500 per violation. Because each individual message sent without consent can be deemed a separate violation, the dollars can add up quickly, especially when a team has a large number of fans enrolled in a program.
In 2012, the plaintiff in the Bills case signed up to receive text messages from the team. The terms of the text message program disclosed that “you will be opted in to receive 3-5 messages per week for a period of 12 months.” After the plaintiff opted-in, he received a confirmation message that also referred to “up to 5msgs/week.” The plaintiff claimed that shortly after signing up, he received six texts in one week and seven texts in another week.
In the lawsuit, the plaintiff argued that the one additional message received during the first week and the two additional messages received during the second week were sent without consent and, thus, in violation of the TCPA. During discovery, the team produced a spreadsheet indicating that at least 20,000 were sent messages in excess of five per week. At $1,500 per violation, that could have meant a lot of damages, if the Bills lost.
After more than a year of litigation, the Bills agreed to a $3 million settlement. As part of the deal, the team will provide class members who submit valid claims up to $2.5 million worth of debit cards good at the team’s stadium or online store. Separately, the Bills will pay over $500,000 in attorneys’ fees. That makes for a very expensive text message campaign.
If your organization is contemplating a text message promotion, make sure that you have a lawyer familiar with this area on your team. Some of the requirements under the TCPA can be tricky, and the costs of getting things wrong can be devastating. This case shows that even minor mistakes can cost millions of dollars.
Gonzalo E. Mon is a partner in the Advertising Law practice at Kelley Drye & Warren LLP. You can reach him at firstname.lastname@example.org. Read more on Kelley Drye’s advertising blog, www.adlawaccess.com
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By Tanner Simkins
To many, tailgating is synonymous with football and big parties. Whether it is at an NCAA bowl game or a local NFL matchup, tailgating is cemented as an American tradition. In fact, over 50 million Americans annually participate in this social pre-game behavior. Naturally, tailgating has become highly commercialized. There is nearly $12 billion spent on tailgating activities annually. Some are so enthralled with the social block party experience that up to 35 percent of tailgaters never even enter the stadium for the game. Along with such high activity come increased safety threats, as alcohol and passionate rivalries often create tense situations. Inevitably torts and criminal incidents occur at tailgates, which can leave various parties liable. Recent court rulings demonstrate that liability in tailgating frequently falls on facility owners, organizations, and social hosts.
Entire fraternity membership individually named in suit
Atypically individuals in voluntary organizations can also be held liable. In 2011, a fatal accident occurred at a tailgate outside the annual Harvard Yale football game. A truck driven by Yale student, Brendan Ross, swerved out of control in the Sigma Phi Epsilon fraternity tailgate area tragically killing Nancy Brown and injuring student Sarah Short and Harvard employee Elizabeth Dernbach.
Initially, Short and Barry filed suits against the national Sigma Phi Epsilon fraternity. But primarily due to a lack of legal and insurance ties to the local chapter, focus shifted towards the local chapter itself. Now, a new lawsuit filed in Connecticut Superior Court names each of the Yale Sigma Phi Epsilon student members. In all, it targets 86 fraternity members at the time of the crash, regardless of whether or not they were present at the tailgate.
“[The national fraternity and its insurance], to try to save money, are trying to distance themselves from the case,” Short’s lead attorney Joel Saxon told Yale Daily News. “The only remedy that our client has is to sue the local fraternity.” In Grenier v Commissioner of Transportation,Connecticut Supreme Court set the precedent that local fraternity chapters have no general duty to protect its adult student members.
Despite disavowing itself, Saxon predicts the national organization will likely take some of the burden. Regardless, the attorneys remain confident they will be awarded the damages they seek unrelated to what party ultimately takes responsibility. A criminal case is also pending against Ross.
Parking lot security
Fans are considered business invitees and therefore courts rely on tests of reasonability to determine if property owners created a safe environment. This, of course, includes parking lots and similar areas. Naturally, these tailgating/parking areas come into question during ingress and egress. Infamously in 2011, San Francisco Giants fan Bryan Stow was severely beaten by rival fans while in the parking lot at Los Angeles’ Dodgers stadium. The assailants have since been criminally sentenced.
Now, the Dodgers are facing negligent security, liability, and negligent hiring claims in a civil lawsuit set to go to trial in May. Stow’s attorney, Tom Girardi, told KNX 1070 “the most important element of this case is the huge amount of expense that is required to take care of [Stow].” Stow is permanently disabled as a result of the attack. It is estimated that Stow will require medical care for the remainder of his life; experts state this will exceed $30 million.
Team management is under intense scrutiny for not satisfactorily protecting fans. In addition to team entities, Stow has brought suit against then-Dodgers owner Frank McCourt. Stow’s attorneys claim both ownership and management had inadequate security, insufficient parking lot lighting, and misguided leadership overall. Team officials said in a release that "because of the pending civil action, the Dodgers decline to comment further on the matter."
Tailgating is engrained in the sport consumer’s total experience, so efforts have to be taken to reduce danger and further litigation. Given the fallout of the discussed cases, sport event managers need to understand social hosts and premises liability in order to best mitigate risk. This way teams, facilities, and other salient parties can fulfill their responsibility to provide a reasonably safe environment for business invitees.
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Sheppard, Mullin, Richter & Hampton LLP has announced the addition of R. Randal Crispen, who is involved in concussion litigation, to its San Diego office. Crispen, who previously practiced at McKenna, Long & Aldridge, specializes in litigating complex business disputes, with an emphasis on representing insurance companies in major coverage and bad faith lawsuits. He currently represents a major insurer in coverage litigation arising out of the National Football League and NCAA players' concussion injury litigation.
Wong To Teach Sport Law Class as Part of McCormack Online Graduate Sport Management Certificate Program
Nationally recognized sports lawyer Glenn Wong will launch the new Mark H. McCormack Online Graduate Sport Management Certificate program this coming Fall semester. Professor Wong’s three-credit “Sport Law” course will be the first in a 15-credit certificate program that enables working professionals to access the highly regarded McCormack Sport Management curriculum and faculty in a convenient, 100 percent online format. In addition to authoring one of the leading Sport Law textbooks, Wong has previously served as an MLB Salary Arbitrator and as Interim Athletic Director at UMass. Students can take up to two courses towards the certificate before applying to the full program. Application deadlines are June 1. For more information go to www.isenberg.umass.edu/sportcert
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An Austin, TX hotel has sued the Circuit of the Americas for breach of contract, alleging that the organizer of the Formula One race did not prepay for the hotel rooms as required and then cancelled at the last minute. The Austin American Statesman reported that A&D Hotel LLC, which owns the Orangewood Inn and Suites, is seeking approximately $59,000, or the price of 68 rooms, a 15 percent occupancy tax, and legal fees. The plaintiff claims that it agreed to hold 80 rooms at $180 per night from Nov. 10 to Nov. 14, but the organizer later requested that the rate be reduced to $160, and then canceled all but 12 rooms on Nov. 7, according to the paper. The plaintiff alleged that full prepayment was required if cancellation is made within 30 days.
A Texas-based golf course ownership group has sued an insurance company, claiming that the insurer failed to compensate the group for damages that occurred to one of its golf courses during the floods in the Central Texas region in October of 2013. The plaintiff, The River Place Golf Group, filed the lawsuit in Travis County District Court, alleging specifically that the floods damaged the landscape and infrastructure features on the property, such as fencing, cart paths, and irrigation systems. It also alleged that the defendant, Greenwich Insurance Company, denied or delayed legitimate claims that the group made for damages. The plaintiff is reportedly seeking more than $1 million in damages as well as legal fees and interest.
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Florida Reps. Matt Gaetz and Jose Felix Diaz suggested recently that Major League Baseball (MLB) facilities in their state should not receive any new tax incentives unless League rules are adopted that “treat Cuban ball players fairly and equitably.” Specifically, they called on MLB “to repeal an outmoded policy that unfairly places additional barriers to the majors for Cuban players that are not in place for those from other nations. The proposed legislation would thwart human traffickers who prey on these baseball players.” As an example, they cited the “harrowing journey” of Los Angeles Dodgers star Yasiel Puig, which reportedly involved a Mexican drug cartel, death threats and demands for 20 percent of his major league salary in exchange for getting him out of Cuba. Reps. Gaetz (R-Fort Walton Beach) and Diaz (R-Miami) said “an antiquated rule established by Major League Baseball is to blame. The rule has the unintended effect of enticing talented Cuban ballplayers to first establish residency in another country rather than come directly to the United States.” They further elaborated that “if Puig had come to freedom in America first, the MLB policy would have forced him to wait and then be placed in the Major League draft. But because the star outfielder established residency in another country first, he was allowed to sign as a free agent and earn significantly more money.” The Gaetz-Diaz proposal would amend CS/HB 7095, legislation related to the Professional Sports Facilities Incentive Application Process. “Florida should not stand idle as baseball players are exploited by the Castro Brothers and international drug cartels,” Diaz said. “We are making a request of Major League Baseball: Treat Cuban major league prospects the same as players from other countries. Whatever system MLB crafts must treat Cubans equally. It is that simple.” The politicians have created the following Website -- www.BaseballInjustice.com.
George Washington University’s law school plans to start what it described as “the first course devoted to the legal implications of traumatic brain injuries.” A weekly seminar, the class will reportedly address brain injuries of all sorts, including those sustained in car accidents and in falls. “But the concussion crisis gripping the N.F.L. is what caught the law school’s attention,” according to a story in the New York Times. The class will be taught by Michael Kaplen, a plaintiffs’ lawyer with expertise in the area. “It’s a constant battle that really defaults every step of the way to the legal profession to handle on behalf of the millions of people who get injured,” Kaplen told his students last month, according to the paper. “The legal profession becomes, in one way or another, the champion because nobody else is there to do it. The lawyer has to become the doctor, has to become the social worker, has to become the neuroscientist and put that together for the individual.”
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Sports Litigation Alert is a bi-monthly publication of Hackney Publications. Copyright 2014. All Rights Reserved.