Thursday, August 29, 2013

Illustrating the difference in legal standards through the NCAA and Johnny Football autograph situation.

- Do we know that Johnny Manziel took money for autographs by a preponderance of the evidence? In other words, is it more likely than not that Manziel took money for autographs?
- Do we have clear and convincing evidence that Manziel took money for autographs?
- Is there reasonable doubt whether Manziel took money for autographs?

One of the biggest differences between the American judicial system and NCAA enforcement is the former's use of legal standards. The legal standards in the United States are: (1) proof by a preponderance of the evidence; (2) proof by clear and convincing evidence; and (3) proof beyond a reasonable doubt.

For a plaintiff to win in a civil case, proof by a preponderance of the evidence (more likely than not) is usually required. In some cases, such as juvenile or family law, proof is required by clear and convincing evidence. Only in criminal law is proof required beyond a reasonable doubt.

The NCAA enforcement bylaws provide no legal standards for guidance. As a result, lawyers for big-money schools can exonerate student-athletes alleged of wrongdoing as long as the student-athletes deal in cash. It is really that simple: If you deal in cash, it does not matter how brazen the violations are. If you are a big enough school with enough money, you can buy your way out of trouble. The NCAA is complicit in the alleged wrongdoing, because it tries to protect its economic interests in handing out penalties. The NCAA will rarely penalize an athlete if it can make money from him or her.

The rule prohibiting Manziel from signing autographs for money should be changed. He should be able to sign autographs and retain eligibility, just like Olympic athletes can sign autographs for money but still compete in the Olympics. But current NCAA rules prohibit signing for money, and Manziel should have abided by those rules. He was not forced to play college football.

Manziel allegedly signed thousands of autographs. The NCAA's rationale in not penalizing him was that it could not prove that Manziel took money for autographs? By what standard?

It is much more likely than not that Manziel took money for autographs. There is also very likely clear and convincing evidence that he did. This is without subpoena power, which the NCAA lacks. Witnesses said he took money. There are thousands of Manziel-signed items available. There is a picture of him signing autographs in a seedy hotel room with people he did not know. He admittedly hates signing autographs. Also, there is allegedly an audio recording where Manziel basically admits to receiving payment for the autographs.

There might not even be reasonable doubt whether Manziel took money for autographs. It would be for a jury to decide. Public opinion certainly suggests that there is no reasonable doubt, although it is sometimes difficult to determine exactly how much evidence the NCAA could use. Anonymous sources cannot be used. This is analogous to the criminal justice system where a defendant has the right to face his or her accuser.

Despite evidentiary limitations, there is no reason Manziel should not have been penalized. The NCAA even changed its definition of "agent" in January 2012 after the Cam Newton situation, which should have applied here. Manziel's handler allegedly told people that Manziel would not sign autographs for free. The NCAA could have penalized Manziel even without proving he accepted money. It did not do so.

We can be thankful that the American judicial system is more impartial than the NCAA's enforcement process.

Wednesday, August 28, 2013

The ongoing debate over misuse of copyright.

A copyright owner has the exclusive right to reproduce, adapt, publish, perform and display his or her copyrighted work. You regularly can find people posting copyrighted content on the Internet. Sometimes, these people will say that their conduct is not copyright infringement, because they are not making money. That is not really true. Not making money from copyright infringement is a factor in determining whether fair use applies, but it is not dispositive.

If you reproduce, adapt, publish, perform or display a copyrighted work, and you do not meet one of the exceptions (like fair use), you are infringing another's copyright.

The more content that is fair use, the less speech is inhibited. The less content that is fair use, the more speech is inhibited. Larger companies tend to have greater power in getting content removed than smaller companies or individuals. This can lead to abuse, and there is an ongoing debate over copyright misuse inhibiting free speech.

The latest example is a copyright professor who used a copyrighted song during lecture for instruction, and the video of the lecture was posted on YouTube. The recording company of the song complained to YouTube, and YouTube removed the lecture. The professor's lecture is clearly fair use, because it was for nonprofit educational purposes, and would not have affected the market for sales of the song.

Monday, August 26, 2013

Former football players' concussion lawsuit against the NCAA.

The student-athlete likeness antitrust litigation is not the only high-stakes case the NCAA is facing. In July 2013, the plaintiffs in a concussion lawsuit against the NCAA filed a motion for class certification. The requirements for class certification have been discussed in another post.

The concussion lawsuit is under a stay (which essentially means a timeout), because the parties are hoping to settle. Simply filing a motion for class certification before a stay gives the plaintiffs leverage, because it provides the NCAA incentive to settle. If the NCAA does not settle while under a stay and the plaintiffs' motion for class certification is later granted, then the NCAA is in a much worse position for settlement. If the NCAA does not settle while under a stay but the plaintiffs' motion for class certification is denied, the NCAA is not really in any better position than before the ruling on class certification.

Friday, August 23, 2013

On trade dress: Texas Roadhouse example.

The restaurant Texas Roadhouse is alleging trademark and trade dress infringement against Amarillo Roadhouse and Texas Corral, restaurants operated in Michigan and Indiana. Although I have discussed trademarks and trademark infringement elsewhere on this blog, I have not done so with trade dress.

Trade dress refers to the visual characteristics of packaging, décor, shapes, designs or site layout. Trade dress can be registered as a trademark if it is source-identifying and otherwise meets the requirements of a trademark, but it is usually protected without registration. Additionally, the trade dress must be nonfunctional in order to be protected. For instance, the décor and design of the Cheesecake Factory may be protectable as trade dress; but to the extent that any of that décor or design is functional (e.g., relating to shelter or architecture), it is not protectable.

Monday, August 19, 2013

A possible breach of contract action arising out of the dispute between the New York Yankees and Alex Rodriguez.

Recently, New York Yankees' third baseman Alex Rodriguez was suspended for 211 games by Major League Baseball (MLB) for performance-enhancing drug use. Rodriguez appealed, but the appeal is not likely to be decided until after the 2013 season. The suspension was not due to a failed drug test, but due to records and statements provided by a performance-enhancing drug distributor.

Rodriguez alleged that the Yankees worked with MLB to suspend him, because the team wanted a reason to void the remainder of Rodriguez's contract. Rodriguez recently returned from injury. He is aging and arguably not producing at the level the Yankees are obligated to pay him. Per Rodriguez,
"[W]hen . . . people are finding creative ways to cancel your contract, I think that's concerning for me. . . . "
The Yankees denied the allegations. I would not be surprised if this ends up in litigation, even if it is not the most likely scenario. If the 211-game suspension is upheld on appeal, the Yankees may be able to avoid full payment on Rodriguez's contract. If Rodriguez's allegations of collusion between the Yankees and MLB are true, he would have a breach of contract action against the Yankees.

The obligation of good faith and fair dealing is implicit in a contract. If a party enters into a contract and later engages in subterfuge to impede the contract's function, it is a breach of contract. In other words, if the Yankees contract with a player, they cannot secretly sabotage the player to avoid making payment on the contract.

Rodriguez's contract likely has a choice of law provision (preference for New York law). It may also have an agreement to arbitrate all disputes arising out of the contract. To prove a breach of contract, Rodriguez would have to show that he did what the contract required, and the Yankees breached the contract. If Rodriguez ends up suing, the Yankees would counterclaim for breach of contract. The Yankees would argue that Rodriguez's performance-enhancing drug use was a breach of the contract. As an affirmative defense to Rodriguez's claim, the Yankees would argue that Rodriguez's performance-enhancing drug use excused the team from having to fully perform the contract.

Thursday, August 15, 2013

Conferences to stop licensing trademarks to EA Sports' NCAA Football video games; more posturing in settlement negotiations in NCAA student-athlete likeness antitrust litigation.

The Big Ten, Southeastern (SEC) and Pac-12 Conferences have decided to stop licensing their trademarks to EA Sports for its NCAA Football series of video games. Last month, the NCAA said it would discontinue licensing its trademarks to EA Sports for the NCAA Football video games. In light of the NCAA's decision, EA Sports said its next college football release would be titled "College Football '15."

The Big Ten, SEC and Pac-12 are just the first conferences to say they will not license their trademarks to EA Sports for the video game. More conferences are expected to do the same. While individual schools can still license their marks to EA Sports for the game, EA would no longer be able to mention the NCAA or any of the conferences in future releases. This would diminish the realism of the game, and likely severely diminish profits EA is able to realize.

The conferences' decision is a continuation of the strategy employed by the NCAA: The conferences are "taking their balls and going home." Rather than pay the players for licensing their likenesses in video games, the conferences and the NCAA before them are now simply saying they will not take any part in the game's production, to avoid having to compensate the players.

In settlement negotiations, this is probably the best strategy the NCAA and the conferences can employ, because it eliminates the student-athletes' ability to negotiate for future profits. Unfortunately for gamers, it could mean the beginning of the end for college football video games.

Wednesday, August 14, 2013

What is injunctive relief?

The most common remedy in a lawsuit is money damages. Everyone is familiar with this, because money is the basis for trade in our society. Sometimes, a plaintiff will request "preliminary and permanent injunctive relief" along with money damages. Injunctive relief, or an injunction, is a court order preventing a defendant (or other party) from doing something or enforcing rights it would otherwise have under law.

Preliminary injunctive relief is often requested in intellectual property litigation and high-dollar business disputes. In patent litigation, a plaintiff may request a preliminary injunction to prevent a defendant from selling infringing products that competitively damage the plaintiff's business. A plaintiff must show a likelihood of success at trial before obtaining a preliminary injunction. So, in high-stakes cases lasting several years, a preliminary injunction hearing can turn into a mini-trial, due to the possible business consequences of getting or not getting a preliminary injunction.

Injunctions are available even when money damages are not requested. Sometimes, standalone injunctions are the best remedy for preventing enforcement of a bad law or policy, because they can be obtained relatively quickly. You cannot get an injunction without notice to the other party and a hearing, but the whole process of getting an injunction can take a matter of weeks. Getting money damages can take years.

Tuesday, August 13, 2013

Comparing NCAA enforcement rules with rules of civil procedure and court.

Rules of civil procedure and court are similar to the NCAA operating bylaws on enforcement. Court and NCAA enforcement rules both have time limitations for initiating proceedings. Court and NCAA enforcement rules have deadlines in responding to notices sent by opposing parties or the NCAA. Both have rules of evidence, discovery, and pleadings. Both have hearings and procedures for appeals.

NCAA enforcement rules can trace their origin to court rules. The biggest difference is the NCAA's "Notice of Inquiry," which is written or oral notice to the president of an institution that it is being investigated by the NCAA. It has no direct analog in court procedure.

After providing notice of inquiry, the NCAA conducts interviews and gathers documents, similar to depositions and discovery in court proceedings. Like in discovery in court proceedings, a school is responsible for providing truthful and relevant information to the NCAA, even if the information is against its self-interest.

If the NCAA thinks it has discovered a violation during its inquiry, it will issue a "Notice of Allegations," which is like a complaint (federal court) or petition (state court). The notice of allegations is provided to the school and any involved individuals, and details the alleged violations, the severity of the violations, the available hearing procedures and provides an opportunity for response. The school and involved individuals have 90 days to respond. In court proceedings, defendants typically have 20 days to respond to a complaint or petition.

Within 60 days of the school and/or involved individuals' responses to a notice of allegations, a pre-hearing conference is held, which is similar to a discovery or pre-trial conference. At the pre-hearing conference, the parties make stipulations and clarify the issues to be discussed in the hearing.

Either before or during the pre-hearing conference, the school or involved individual can elect for summary disposition in cases involving allegations of Level I or II violations (formerly "major" violations). The election of summary disposition proceedings is like a stipulated trial, in which the parties agree on the relevant facts, and let the judge decide whether a violation occurred and if there is a penalty.

After the hearing, or in summary disposition proceedings, the Committee on Infractions is like a judge or a jury. The Committee makes its decision based on the evidence. If a school or involved individual appeals, the Infractions Appeals Committee is like the appeals court.

Monday, August 12, 2013

On the new NCAA Division I violation structure.

Before August 2013, all NCAA college sports divisions had the same infractions structure: "major" and "secondary" violations. On October 30, 2012, the NCAA adopted a new penalty and violation structure for Division I sports, which became effective on August 1, 2013.

Divisions II and III retained the "major" and "secondary" violation structure. In Division I, there are now four levels of violations (Levels I-IV), instead of two. Level I violations are severe breaches of conduct. They include but are not limited to:
  • A lack of institutional control;
  • Academic fraud;
  • Failure to cooperate in an NCAA enforcement investigation;
  • Individual or unethical dishonest conduct, regardless of whether the underlying institutional violations are severe breaches of conduct;
  • Cash payments or other benefits provided by a coach, administrator, athletic representative or booster;
  • Third party involvement in recruiting violations;
  • Intentional violations or reckless indifference to the NCAA constitution and bylaws; or
  • Multiple Level II and/or III breaches of conduct.
Level I violations "seriously undermine or threaten the integrity of the NCAA Collegiate Model," and include "any violation that provides or is intended to provide a substantial or extensive recruiting, competitive or other advantage, or a substantial or extensive impermissible benefit." NCAA Division I Bylaw 19.1.1.

Level II violations are significant breaches of conduct. They include but are not limited to:
  • Failure to monitor;
  • Systemic violations that do not amount to a lack of institutional control;
  • Multiple recruiting, financial aid, or eligibility violations that do not amount to a lack of institutional control; or
  • Multiple Level III breaches of conduct.
Level II violations "provide or are intended to provide more than a minimal but less than a substantial or extensive recruiting, competitive or other advantage; include more than a minimal but less than a substantial or extensive impermissible benefit; or involve conduct that may compromise the integrity of the NCAA Collegiate Model[.]" NCAA Division I Bylaw 19.1.2.

Level III violations are standard breaches of conduct. They include but are not limited to:
  • Inadvertent violations that are isolated or limited in nature; or
  • Extra-benefits, financial aid, academic eligibility and recruiting violations, provided they do not create more than minimal advantages.
Level III violations are "isolated or technical in nature; provide no more than a minimal recruiting, competitive or other advantage; and provide no more than a minimal impermissible benefit." NCAA Division I Bylaw 19.1.3. Level IV violations are incidental infractions. They are minor. They are technical in nature and generally will not affect eligibility unless there are multiple Level IV violations. NCAA Division I Bylaw 19.1.4.

Friday, August 9, 2013

Challenging Major League Baseball's antitrust exemption: San Jose v. MLB.

Elsewhere, I discussed baseball's antitrust exemption:

- Why does Major League Baseball have an antitrust exemption?
- More on the antitrust exemption in baseball.
- An antitrust lawsuit against Minor League Baseball.

This is a good piece on a current lawsuit between the City of San Jose, California, and Major League Baseball. The City is challenging MLB's antitrust exemption, because it wants the MLB's Oakland Athletics to move to San Jose. MLB argues that stare decisis -- prior precedent or the status quo -- prevents the City from challenging the antitrust exemption. MLB also argues that the City does not have antitrust standing to bring suit, and allowing the City to do so would open the door for any city that wants a major league team to sue any major league organization.

Ultimately, more facts are needed to determine the merits of the City's case. Baseball's antitrust exemption will be overturned at some point in the future, but it is too early to tell if this is that point.

Thursday, August 8, 2013

By definition, a college athlete with a federally registered trademark is violating NCAA rules.

By definition, a college athlete with a federally registered trademark on the principal register is making money from the mark. One of the requirements of a valid trademark is a bona fide use in commerce.

"Use in commerce" means that the mark is being used immediately on or in connection with goods or services as of the date of filing. In filing a trademark application, the applicant must file an affidavit of use -- a written statement under oath and subject to the penalty of perjury -- that the mark is owned by the applicant and is being used in commerce. If the applicant does not own the mark, or is not using it in commerce, he or she is committing a fraud on the United States Patent and Trademark Office (USPTO).

Johnny Manziel received special permission from the NCAA to protect the "Johnny Football" mark, but he did not necessarily get permission to use the "Johnny Football" mark in commerce until his eligibility expires. He could have protected "Johnny Football" without using it (through the common law). In November 2012, Manziel filed an intent-to-use trademark application, like I would expect a college athlete to do.

On February 2, 2013, Manziel filed a trademark application on the principal register for "Johnny Football." In other words, he stated under oath that he was using the "Johnny Football" name in commerce (making money from it), and that he owned the mark.

It really is as simple as this: Either:
  1. Manziel lied to the USPTO by submitting an affidavit of use when he was not using the mark in commerce; or
  2. Manziel is violating NCAA rules by profiting from the mark (e.g., by signing autographs); or
  3. Manziel misunderstood the NCAA's special permission, because he would necessarily have had to use the mark in commerce if the NCAA allowed him to pursue federal trademark protection.
There is no middle-ground.

(For further reading: "The conflict between U.S. trademark law and NCAA rules: The "Johnny Football" scenario.")

Wednesday, August 7, 2013

What is the NCAA enforcement team looking at when investigating Johnny Manziel's eligibility? Part 3: Teaching basic legal analysis through college football.

All NCAA student-athletes must be eligible to compete. All must be "amateurs" to be eligible. Among other things, a student-athlete is no longer an amateur and is ineligible if the individual:
  • Uses his or her athletics skill (directly or indirectly) for pay in any form in that sport;
  • Accepts a promise of pay even if compensation is deferred to a time after the student-athlete's eligibility has expired; or
  • Enters into an agreement with an agent.
An "agent" is:
"any individual who directly or indirectly: (a) [r]epresents or attempts to represent an individual for the purpose of marketing his or her athletics ability or reputation for financial gain; or (b) [s]eeks to obtain any type of financial gain or benefit from securing a prospective student-athlete's enrollment at an educational institution or from a student-athlete's potential earnings as a professional athlete." 
An "agent" includes but is not limited to "a certified contract advisor, financial advisor, marketing representative, brand manager or anyone who is employed or associated with such persons."

If a member institution discovers that a student-athlete is ineligible, it must report it to the NCAA. It also must declare the student-athlete ineligible and withhold him or her from competition. If an institution does not declare the student-athlete ineligible, it is subject to penalties. Penalties include but are not limited to vacation of games in which the student-athlete participated.

Before competing each academic year, a student-athlete must sign a statement providing information relating to his or her eligibility and amateur status. If a student-athlete practices or competes while ineligible, he or she loses one-year of eligibility.

In 2013, a new penalty structure was developed, replacing "major" and "secondary" violations. Now, there are four types of violations: Levels I-IV. "Level I" violations are severe breaches of conduct. "Level IV" violations are incidental or technical. Level I violations seriously undermine or threaten the integrity of the NCAA collegiate model, and include those intended to provide a substantial or extensive competitive or other advantage, or a substantial or extensive impermissible benefit. In appropriate cases, aggravating factors can result in higher penalties, and mitigating factors can result in lower penalties.

In the Johnny Manziel autograph situation, Texas A&M University is subject to penalties if it allows Manziel to compete while ineligible. The most likely penalty is the vacation of games, but if Texas A&M was certain of Manziel's ineligibility and allowed him to play anyway, more severe penalties could be imposed. If the allegations are true, Texas A&M is not responsible for Manziel's conduct, but it is responsible if it plays an ineligible player.

Unlike the 2010 Cam Newton case, Manziel's might involve aggravating factors. Newton maintained that he was unaware of his father's solicitation of money from Mississippi State University. This prevented the NCAA from imposing penalties on Newton or Auburn University, because he could maintain a degree of "plausible deniability."

With Manziel, allegedly there is incriminating video of him during the autograph sessions betraying his willful violation of NCAA rules. Before Manziel would play in 2013, he must provide a statement to the NCAA regarding his eligibility. If he should be ineligible but says he is eligible, he lies and is in greater trouble with the NCAA.

The NCAA does not necessarily have to prove that Manziel accepted money, because Manziel's personal assistant was an "agent" for Manziel. Manziel's family hired the assistant, and he allegedly solicited money from autograph dealers in exchange for Manziel's autograph. Seeking impermissible benefits through an agent does not require the actual receipt of money to be a violation.

Tuesday, August 6, 2013

Agency, Cam Newton and Johnny Manziel -- Part 2: Teaching basic legal analysis through college football.

In 2010, the father of Auburn University Heisman Trophy winner Cam Newton sought $180,000 in exchange for his son's commitment to play football at Mississippi State University. Mississippi State did not pay and Newton went to Auburn. Ultimately, Newton was not penalized for violating NCAA rules, because there was no proof that Newton knew his father or a third party solicited money from Mississippi State.

As a result of the Newton situation, the NCAA amended its definition of an "agent" in January 2012. The manual on major college athletics now defines an agent as:
"[A]ny individual who, directly or indirectly: (a) [r]epresents or attempts to represent an individual for the purpose of marketing his or her athletics ability or reputation for financial gain; or (b) [s]eeks to obtain any type of financial gain or benefit from securing a prospective student-athlete's enrollment at an educational institution or from a student-athlete's potential earnings as a professional athlete."
It further provides that "[a]n agent may include, but is not limited to, a certified contract advisor, financial advisor, marketing representative, brand manager or anyone who is employed or associated with such persons."

The NCAA's definition of an agent is inclusive, because the word "or" is prevalent. If "and" was used more than "or," the definition would be more restrictive and harder to satisfy. In the list of examples, "but is not limited to" indicates that the definition of an agent is to be broadly construed. Further evidence of this construction is found in the last 10 words of the definition: ". . . or anyone who is employed or associated with such persons."

Application of this construction shows that the 2012 amendments encompass both the Cam Newton situation and the more recent Johnny Manziel situation. In the latter, the friend and "personal assistant" of Manziel, the 2012 Heisman Trophy winner from Texas A&M, allegedly told autograph brokers that Manziel would no longer provide autographs for free. The allegations include later payment.

In 2010, Newton's father sought to obtain financial gain or benefit from Mississippi State boosters in exchange for his son's enrollment at the school. This met Part (b) of the above definition (Rule 12.02.1(b) of the Division I manual). Manziel's personal assistant, who was hired by Manziel's family, sought financial gain by representing Manziel for the purpose of marketing his reputation for financial gain through autograph sales. This met Part (a) of the above definition (Rule 12.02.1(a) of the Division I manual).

The definition does not require the agent or individual to actually receive money. It just requires the solicitation of financial gain by an agent. Accordingly, the Manziel situation centers around whether his "personal assistant" was an agent, if the allegations are true, rather than whether Manziel actually received money for his signature.

Monday, August 5, 2013

Teaching basic legal analysis through college football.

Applying the rules of college football to in-game situations is like applying the law to legal disputes. The same process is used: abstraction, which is the application of written rules or laws to new and unique situations. American law is largely statutory. This is similar to the rules of college football, which are entirely based on a written rule book.

In legal situations, a client or prospective client comes to an attorney's office with a story. The attorney identifies the issues in the story and figures out the best way to proceed. For a situation to fit within a particular law or theory, specific criteria must be met. This is similar to college football. If you see a player break a rule, you must identify the infraction and apply the correct rule and penalty. With both, you cannot simply throw a flag when you see wrongdoing without knowing exactly what rule or law to apply.

Referees in football are like judges in the law. They are the arbiter of infractions. The coaches are like lawyers, arguing for their own particular interpretation of the rules. To illustrate abstraction of college football rules to in-game situations, watch this video from the 2013 Sugar Bowl. Here, the University of Louisville quarterback is hit by a defensive player from the University of Florida. The penalty called was "roughing the passer." Roughing the passer occurs when a defensive player "charge[s] into a passer or throw[s] him to the ground when it is obvious the ball has been thrown." Clearly, the correct call was made in this situation, because it was obvious that the Louisville quarterback threw the ball immediately before he was hit.

Here's another one to try. Is the running back a "defenseless player"? A defenseless player is "one who because of his physical condition and focus of concentration is especially vulnerable to injury." The definition provides examples of a defenseless player:

  • A player in the act of or just after throwing a pass.
  • A receiver attempting to catch a pass, or one who has completed a catch and has not had time to protect himself or has not clearly become a ball carrier.
  • A kicker in the act of or just after kicking a ball, or during the kick or the return.
  • A kick returner attempting to catch or recover a kick.
  • A player on the ground.
  • A player obviously out of the play.
  • A player who receives a blind-side block.
  • A ball carrier already in the grasp of an opponent and whose forward progress has been stopped.
  • A quarterback any time after a change of possession.

The running back was a defenseless player. The examples provided in the definition were not limited only to those situations. Referees have discretion in determining whether a player is defenseless or not. The running back's focus was on taking the ball from the quarterback. He was vulnerable to injury, because he could not protect himself. Accordingly, he was a "defenseless player."

Applying the law to a particular situation is rarely this easy, and is often much more complex. Nevertheless, abstraction is used in both the law and college football.

Friday, August 2, 2013

Copyright infringement when a mark is not being used "in commerce": The Baltimore Ravens example.

This is an interesting case involving an atypical application of copyright law. The plaintiff created a logo for the NFL's Baltimore Ravens shortly after the team announced its move from Cleveland in 1995. The plaintiff faxed his copy of the logo sketch to the team, and when the Ravens' logo was later released to the public, it was practically the same as the plaintiff's.

Normally, logo-copying is the province of a trademark infringement suit. However, the plaintiff here could only sue for copyright infringement, because his logo was not being used in commerce. If it had been used in commerce when the plaintiff faxed the logo to the team, he may have had a viable trademark infringement claim. Alternatively, if he had been a team official, he could have filed an intent-to-use trademark application when he created the logo, and an affidavit of use once it was being used in commerce.

Thursday, August 1, 2013

EA's First Amendment defense a no-go in NCAA student-athlete likeness antitrust litigation.

In the NCAA student-athlete likeness antitrust litigationEA Sports argued that its use of player likenesses is protected speech under the First Amendment. The court shot down this argument, basically saying that EA Sports did not change the likenesses enough to qualify as protected speech. Instead, the court said that the likenesses were directly replicated in the game. The players' class action complaint seeks damages and relief for players whose game likeness does not differ more than 10 percent from their real-life attributes (height, weight, etc.).

It is not surprising that the First Amendment argument was unsuccessful. I played the NCAA Football video games throughout my youth, and the game's success hinges on its use of accurate player likenesses. Year-to-year, the actual gameplay does not change much. The reason people keep buying the game is the updated rosters for every major college football team and its ability to create a virtual proxy for real-life football.