July 8, 2011

NFL Lockout Ruling

The 8th U.S. Circuit Court of Appeals gave the NFL owners a big win today, reversing the District Court ruling to lift the NFL lockout, handing the league a victory in a labor stoppage. Personally, I'm counting this as a loss for Tom Brady. He was the "starter" as the lead plaintiff in the players' class action.

There is a pretty strong dissent in the case by a Clinton appointee. The court split right on party lines.

What does this mean? I think the deal is done. Now they are just battling over the details. The owners were going to win 80% of those details. Now they win 90%.

You can find a copy of the 8th Circuit Opinion here.


August 13, 2010

Roger Clemens Appeal Fails

Roger Clemens lost his appeal to the 5th Circuit in New Orleans to revive his defamation lawsuit against Brian McNamee for the allegations made that he provided performance enhancing drugs to Clemens. The 2-1 decision upheld U.S. District Judge Keith Ellison’s ruling that there is not jurisdiction in federal court in Texas for the lawsuit because the alleged defamation was in New York.

Clemens is certainly welcome to refile his case in New York. I'm betting that with the FBI investigation, he will be smart enough to leave well enough alone.

May 25, 2010

American Needle Opinion

The Supreme Court yesterday unanimously rejected in American Needle v. NFL, the NFL's request for broad antitrust law protection as a joint venture, ruling that the NFL should be viewed as 32 separate corporations when selling branded merchandise and apparel. The court's ruling in American Needle flips a 7th Circuit opinion that reached the opposite finding.

The NFL really wanted this appeal, hoping to knock the ball out of the park and grab a baseball like antitrust exemption. This means that someone handicapped the Supreme Court and saw a victory. But the league's lawyers read it wrong and it was not even close. If the NFL had won, they would have parlayed that new leverage into even more anticompetitive behavior that would have been great for team owners but not for fans or players. If the American Needle ruling gave the NFL a broad exemption, it could have destroyed the years and years of leverage building NFL players have earned in the collective bargaining process. I think this ruling makes it less likely the owners are going to lockout the players in 2011. In fact, if the NFL owners (actually, their lawyers) had read the situation correctly, the league would have tried to get a deal done with American Needle hanging over the players heads.

February 27, 2010

Illinois Settlement 18 Years After Injury

The Chicago Board of Education and a youth center settled $14.7 million lawsuit with a man who became a quadriplegic after hitting his head on the side of the trampoline. The injury occurred when the man was 13 years-old. Underscoring how slow the wheels of justice can be, the man is not 31.

Plaintiff had what I thought was a tough case at trial because Illinois law sets a high bar for "contact" participant sport injuries, requiring willful or wanton conduct which is certainly a tougher standard than ordinary negligence.

I have always disliked this judicially created exception to the usual "reasonable person" standard in Illinois so I'm a glad to see that this incredibly sympathetic plaintiff was able to get a meaningful recovery.

March 16, 2009

New Executive Director of the NFL Players Association

Washington lawyer DeMaurice F. Smith, a partner at Patton and Boggs, was voted the executive director of the NFL Players Association last night.

I think it is interested they picked a lawyer who is not a former NFL player. I thought the big problem with Troy Vincent's candidacy was that he was so young. But Smith is only 45.

Smith is going to need to be ready to roll from Day 1. This reminds of me President Obama, who was also elected to take over an absolutely mess. The NFL owners voted last year to exercise a reopener clause in their labor agreement, which is likely to lead to a lockout unless cooler heads prevail. I think the NFL owners are really ready for war this time which means the new executive director of the NFL Players Association, who has some big shoes to fill replacing Gene Upshaw, needs to buckle his chinstrap and be ready to start (figuratively) hitting people.

You can read the Washington Post article here.

November 12, 2008

Retired NFL Players Awarded $7.1 Million

The jury said the union owed the retirees $7.1 million in actual damages for failing to include them in lucrative marketing deals with Electronic Arts Inc., the maker of the popular "Madden NFL" video games, sporting card companies and other sponsorship agreements.

Herb Adderley, 69, played cornerback for the Green Bay Packers and Dallas Cowboys, playing in four of the first six Super Bowls. He was the class action’s representative. He came to court everyday wearing his yellow "NFL Alumni" sports jacket. He cried after the verdict and provided the quote of the month: "I won three Super Bowls and this feels better than all of them combined," Adderley told reporters. "I always felt I had one big play left."

I just love that line.

September 16, 2008

Maryland Athletic Club Lawsuit Settles

The Severna Park Fitness and Health Blog, published by Club One Fitness in Millersville, has a post today on a Maryland Daily Record article written by Danny Jacobs involving a woman who sued the Maryland Athletic Club ("MAC") over a theft that occurred at the club. The case was settled by the Maryland Athletic Club just before it went to trial in Baltimore City earlier this month.

I'm surprised the Maryland Athletic Club did not file a motion for summary judgment based on what I'm sure is a clause in their contract that says they are not responsible for thefts at their gym even if the theft is due to the Maryland Athletic Club's negligence. (I'm assuming, I have never read the MAC's contract.) Accordingly to Seigneur v. National Fitness Inst., Inc., 132 Md. App. 271(2000), this is permissible contract language.

Elsewhere, I have talked about how so many silly cases in Maryland find their way to Circuit Court which decreases average jury verdicts in Maryland well below the national average. This is yet another example.

June 14, 2008

Mixed Martial Arts in Maryland

The Severna Park Fitness and Health Blog reports that Maryland Governor Martin O'Malley signed a new law adding mixed martial arts to the list of sports regulated by the Maryland State Athletic Commission, effective October 1, 2008. A lot of mixed martial arts competitors at Club One Fitness were required to fight in other states where bouts were sanctioned. Next year, Maryland will have its own sanctioned fights.

Also sometimes called Ultimate Fighting Championship fighting, mixed martial arts are all the rage now. Maryland now must get rules in place to keep mixed martial arts competitions fair and safe. Maryland state regulators say we can expect sanctioned mixed martial arts bouts in Maryland sometime in 2009.

April 30, 2008

Lawsuit over Pitch Counts

Overlawyered has a blog post today about the reports of a high school pitcher suing his school district because he wore out his arm throwing 140 pitches in a single game. Here is the gist of the story from the Seattle Times: Seven years ago, Plaintiff was pitching against a rival school. He had no plans to take himself out of the game. In the eighth inning his mother, assuming you believe her story, told coach, "He's at 117 pitches. He's done." (How many mothers out there are keeping exact pitch counts?) You know the rest of the story. The Plaintiff hurts his arm. He thinks he was the next coming of Roger Clemens... better make that Greg Maddux... and files suit claiming the coach should have pulled him out of the game.

Overlawyered and the Maryland Lawyer Blog agree that the possibility of a lawsuit causes people to act differently than they otherwise would. Where we disagree is whether, on balance, this is a good thing for society. For example, football coaches now know that depriving kids of water during practice is a bad thing and their doing so may expose the school to liability. In this area I think coaches already have proper incentive to do the right thing and this will only serve to exaggerate the risk of a "pitch count" lawsuit. Even if this is what I believe is the first lawsuit of its kind in this country. Obviously every baseball coach around the country is going to be talking about this and many are going to become worried about pitch counts.

Awareness of valid lawsuits properly encourages people (including doctors) to proceed with caution and to consider the risks that may cause harm. Frivolous lawsuits like this one have the opposite effect and are going to have some coaches - a small minority but still some - overreacting and limiting kids to ridiculously low pitch counts. But just as free speech requires us to tolerate hate speech, the search for justice requires us to tolerate some level of frivolous lawsuits. Whatever inertia this country has towards tort reform, it comes in no small measure from mainstream media and Internet reports (many of which are simply false) of ridiculous lawsuits.

I’m digressing from this story now, but one of the problems personal injury lawyers have in fighting back against the tort reform movement is their refusal to appreciate valid arguments made by reform advocates. For example, as a student of economics, no one will ever convince me that medical malpractice damage caps don’t decrease doctor’s insurance premiums. So why on earth do we keep arguing this?

I also think we have to concede that there is a “tort tax” and that litigation in pure economic terms is counterproductive. So is social security on many levels but the system stays because it brings about a greater good. According to the Consumer Product Safety Commission, every year about 4,500 deaths and 13.7 million injuries occur as a result of defective products in 15 different categories. Not included in these classifications are motor vehicles, drugs, medical devices, and toxic substances. It seems like the “wild west” with respect to consumer safety even with the risk of lawsuits. What would these numbers be like without tort litigation? The reality is tort litigation costs money but saves lives.

Of course, there is another argument against limiting plaintiffs’ tort recoveries. If you are injured as a result of the negligence of someone else, who should pay for those injuries, the innocent victim or the person responsible? Litigation provides some measure of justice. The problem with using the justice argument to fend off tort reform is that no one sees themselves as the tort victim until they are the tort victim. People who strongly support efforts to reduce jury awards rarely hesitate to file a claim or a lawsuit when they are seriously injured as a result of someone else’s negligence. I’ve represented many of these people. Are they greedy hypocrites? I don’t think so. I think they see the world differently when they step into shoes they never expected to be in and were statistically unlikely to wear: the serious injury victim. It changes the way they think and they no longer care about the “tort tax” but about fairness and justice and the lives saved by personal injury lawyers who help in the battle of keeping corporations focused on what almost everyone agrees should be their first priority: consumer safety.

March 6, 2008

Fantasy Baseball v. Major League Baseball

According to the Sports Business Journal, Major League Baseball and its Players’ Association are submitting a Writ of Certiorari to the U.S. Supreme Court to overturn a ruling made by the 8th Circuit Court of Appeals that allows fantasy baseball companies to continue to use players’ names and statistics without paying a licensing fee.

Major League Baseball has argued that players should be paid when their names are used for fantasy baseball leagues. Conveniently, they believe the players should be paid in the same way they are paid when their names are used to endorse products.

The problem Major League Baseball has had in advancing this argument is that their position flies in the face of existing copyright law. As the 8th Circuit pointed out, it would be strange law, to say the least, that a person would not have a First Amendment right to use information that is available to everyone in the public domain. There is no violation of the right of publicity.
Given the difficulty in getting certiorari from the Supreme Court, Baseball's brief argues for the need to establish uniform standards for publicity right disputes.

In raising this issue, I suspect Major League Baseball will cause themselves, and likely other sports, far more harm than good. Based on the 8th Circuit's ruling and the likelihood that baseball will not only lose on appeal but not even receive certiorari, you have to wonder how the sports video games industry is going to respond. While I would not expect the major players like the Madden franchise to discontinue paying the NFL a licensing fee for the use of the players names, it has to have an impact during negotiations when someone from Madden looks across the table and says, "Tell me again exactly what we are paying you guys for?"

Moreover, is this really a battle baseball wants to win? Do they want less people playing fantasy baseball? If they do hold all of the fantasy providers hostage, demanding licensing fees, wouldn't you think Congress, many of whom play fantasy baseball, might find that problematic? Congress waves the antitrust exemption in front of baseball at every turn and there is no reason to think they would not do the same thing here. You would think that in light of the Mitchell Report and the Clemens debacle, major league baseball would want to lay low and try to curry the favor of its most ardent fans and Congress. It seems the skippers of Major League Baseball continue to direct their ship towards short term profits at the long term expense of this great game.

You can read the 8th Circuit's opinion here.