Dwayne Bowe and the StarCaps Saga

I have a column up in the Huffington Post discussing the StarCaps saga and the recent suspension of Dwayne Bowe. For a different take on the issue, please check out Professor Standen’s post here. In a nutshell, I do not believe that the 8th Circuit’s decision in the StarCaps case poses a real problem for the NFL or other sports leagues. At least not quite yet. Professor Standen, in contrast, believes that the NFL’s performance enhancing drug testing policy is now dead…

Marcus Jordan and The Capacity of College Players to Choose their own Sneakers

Over on MSN Money, John Kelly of Minyanville News recently had an interesting story on Michael Jordan's son Marcus, a freshman at the University of Central Florida. Marcus Jordan wears Air Jordan sneakers even though his team, until a few weeks ago, had a sponsorship contract with Addidas. The piece came out before Addias decided to terminate its sponsorship contract with UCF, but addresses some of the key issues. Here's an excerpt:

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In an interview with AOL’s Fanhouse, UCF athletic director Keith Tribble said that Jordan could make his own choice on what to wear, and that he wouldn't be the first athlete at the school to get permission to wear something other than Adidas -- a football player wore a different pair of shoes because of a better fit.

But that concession didn’t sit well with Adidas. The athletic-gear company says it won't bend the rules, even if -- or perhaps, especially if -- it’s for a Jordan. "There is no compromise, and the contract is currently under review," Adidas spokeswoman Andrea Corso said. . . .

This situation is just the latest in a string of recent cases exploring exactly what control current and former college athletes have over their own image. Last year, former Nebraska University quarterback Sam Keller filed a lawsuit against video-game company Electronic Arts (ERTS) and the National College Athletic Association arguing that they were illegally using the images of college football and basketball players in video games without their permission or compensation.

Former UCLA star basketball player Ed O’Bannon is suing the NCAA over its use of former student athletes' images in DVDs, video games, photographs, apparel, and other material. In a federal lawsuit filed in July, O'Bannon said the NCAA illegally has athletes sign away their rights to the commercial use of their images and doesn't share any of the proceeds from their use with the former athletes.

Other than the name of the players on the back of the character’s jersey, the images on screen are often an exact replica of the more famous college athletes, including weight, height, uniform number, and athletic skills. EA and the NCAA claim that by not including player names, they're not stealing their "likeness."

Others are not so sure. Michael McCann, who teaches legal issues relating to sports at Vermont Law School, told Minyanville that while the scholarships that universities offer the student athletes may cover any revenues that the schools generate from the players’ images, "it seems like a separate matter when a third party like a video-game publisher profits off the players' apparent images, especially when the players are forbidden under NCAA rules from earning off of their celebrity."

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To read the rest, click here.

Legal Fallout of Tiger Woods Saga

I am a contributor to the Legal Broadcast Network, which was co-founded by environmental torts and consumer protection lawyer Jan Schlictmann, and I was interviewed this week by Scott Drake about a story that Rick also discussed in a different forum: the legal fallout of the Tiger Woods saga. Here's the interview:

Tiger's Privacy and Image

The Lawyer 2 Lawyer show of the Legal Talk Network has a 30-minute podcast on "The Tiger Woods Saga" that can be downloaded from here. Josh Galper, partner in Orrick, Herrington and Sutcliffe's Washington D.C. office, and I discuss and debate Tiger's right to privacy and the impact on his image.

American Needle v. NFL Moot Court

Two weeks ago, the Penn State School of Law hosted a moot court session considering American Needle v. NFL. Gary R. Roberts, dean of the Indiana University School of Law in Indianapolis, argued on behalf of the NFL, with Penn State's own Stephen Ross representing American Needle. Guest Judges were Judge D. Brooks Smith and Judge Dolores Korman Sloviter of the United States Court of Appeals for the Third Circuit, and Judge Richard Cudahy from the Seventh Circuit Court of Appeals.

Penn State has made a video of the event available online.

More Amicus Briefs in American Needle v. NFL

Last Tuesday was the deadline for amicus curiae briefs supporting the NFL in American Needle v. NFL. A number of supporting briefs were filed with the Supreme Court, and are now available for download:

• A brief by the National Hockey League, available here.
• A brief by the National Basketball Association and NBA Properties, available here.
• A brief by the NCAA, available here.
• A brief by the ATP Tour, WTA Tour, Major League Soccer, and NASCAR, available here.
• A brief by various economists in support of the NFL, available here.
• A brief by Visa and Mastercard, available here.
• A brief by Electronics Arts, Inc., available here.
• A brief by VF Imagewear, Inc., available here.

Unfortunately, a copy of the NFL's brief has still not been made publicly available for downloading, as far as I have been able to discern. However, the brief is now available on LexisNexis, for those with access to its Supreme Court briefs database.

Tiger Woods Brings to Light the Privacy Rights of Public Figures

Eric Zorn of the Chicago Tribune wrote an interesting post titled, Up in Tiger's Business: Is it Our Right to Know? Zorn writes that many of us may want to know what precipitated the weird, low-speed crash outside Tiger Woods' home very early Saturday. But he raises the question whether we have the informal right to know. Zorn makes an excellent point:

The implicit bargain of modern celebrity is that it's a battle between the image makers and the image wreckers -- the celebrity is no longer able to draw lines between public and private that the public will respect.

With athletes this is less true than with, say, actors. Tiger Woods' ability to earn millions of dollars in tournament prize money every year is not dependent on what you or anyone else thinks of him. For the most part he has avoided making his private life public and kept the journalistic focus on matters related to golf. His endorsement deals trade on his enormous talent and legendary focus on the links, not on whether or not he's a jolly paterfamilias.

Zorn is articulating in layman's terms the legal test that I propose (in my article Tort Law and Journalism Ethics) for public disclosure of private facts claims involving public figures, which I discussed in my post last week.