Thursday, October 31, 2013

Preventing enforcement of a district court judgment pending an appeal.

I previously discussed injunctive relief and the basics of an appeal. In appealing a district court judgment, a party can move to stay or for an injunction of the judgment until the appeal is completed. In this context, a stay of the judgment is effectively the same as an injunction. Both prevent the winning party from enforcing the district court judgment until the appeal is over.

A motion to stay or for an injunction of the judgment is generally filed in district court. Such a motion is only filed with the court of appeals if it is impracticable to file it in district court, or if the motion has already been denied in district court. If a party files neither a motion to stay nor for an injunction, the district court judgment is effective on appeal.

In deciding whether to grant a stay or injunction pending appeal, the court's considerations include the likelihood of success on appeal. If the same judge who presided over the case in district court rules on the motion (which is likely), he or she will not likely consider the likelihood of success on appeal to be very high. This weighs in favor of filing the motion in the court of appeals. However, if you file the motion in district court first, you get two chances for the motion to be granted. This weighs in favor of filing the motion in district court.

Tuesday, October 29, 2013

A primer on NCAA enforcement rules and related issues.

Here is an overview of current NCAA enforcement rules and related issues. As NCAA rules change, this primer will be updated from time to time.

NCAA seeks Supreme Court intervention on First Amendment argument in student-athlete likeness antitrust litigation.

On October 25, 2013, the NCAA filed a motion for review by the U.S. Supreme Court of the Ninth Circuit's decision on the NCAA's First Amendment argument in the student-athlete likeness antitrust litigation. The Ninth Circuit determined that the First Amendment argument did not apply, because the NCAA did not change the likenesses of the football players enough in the NCAA Football series of video games. The NCAA contends that the argument does apply, and wants the Supreme Court to decide the issue. As mentioned yesterday, certiorari is infrequently granted.

If certiorari is granted, the Supreme Court would review the decision concurrently with the likeness antitrust litigation. This sort of review is analogous to when a football coach calls timeout in a game so he can challenge a referee's decision and obtain further review. Upon doing so, the referee consults instant replay and decides whether his decision is confirmed, stands, or is reversed. Here, the difference is that the referee does not review his own decision; the Supreme Court would review the Ninth Circuit's decision.

Monday, October 28, 2013

The very basics of appeals.

Appeals are fairly complex and differ from district court proceedings. There is no new evidence in an appeal, which means that witnesses are not called and exhibits are not entered. A party often gets a new attorney on appeal, and is sometimes required to do so. If you are the losing party and appeal a judgment, your new attorney orders the transcript from the prior case. The attorney from the trial is typically the one who files a notice of appeal in the district court. There is a strict timeline for filing an appeal. A party commonly has only 15-30 days to file a notice of appeal.

Appellate courts ordinarily review the thought-process of the judge or jury's district court decision. If the judge made an error of law or the jury came to a conclusion that no reasonable jury could conclude, and you are the losing party, you can appeal (so long as the error is preserved). Preservation of error requires an objection in district court or other notification that the trial attorney disagrees with a decision on a particular issue. In some cases, appeals are standard procedure, and the losing party does not need to preserve the error.

Sometimes, you can appeal a non-dispositive order, which is one that does not end a case in its entirety. Not all non-dispositive orders permit an appeal. For instance, if a motion for class certification is denied, the aggrieved party can immediately appeal, and must do so within a limited time. If an order is entered that partially decides a case, the aggrieved party need not appeal until after the entire case is finally decided at the district court level.

As you can see, there are many considerations in an appeal, and this is simply when it comes to initiating an appeal. After an appeal is initiated and the transcript has been ordered, the appeals court will set a timeline for writing legal briefs and oral argument (if requested and/or necessary). State and federal jurisdictions differ on the appeals process. In some states, filing a notice of appeal sends the case to the state's supreme court, who might resolve an appeal or send it to its court of appeals, if that state has a court of appeals. Some smaller states do not have courts of appeals.

Under federal law, the procedure is different. Filing a notice of appeal in district court sends the appeal to the regional circuit court of appeals. Then, depending on the disposition of the case at the circuit court level, a party can petition for certiorari to the U.S. Supreme Court. "Cert," as it is commonly called, is infrequently granted.

Friday, October 25, 2013

No surprise: NCAA's motion to dismiss student-athlete likeness antitrust lawsuit was denied.

It is no surprise that the NCAA's motion to dismiss the student-athlete likeness antitrust lawsuit was denied. The NCAA is the lone remaining defendant; all others have settled. The NCAA's attorneys who filed the motion could be sanctioned by the court, because there was no chance the motion would be granted and they filed it anyway.

If an attorney files a document in a lawsuit for an improper purpose like harassment or to needlessly increase the cost of litigation, the court can sanction the attorney who filed it. As you would expect, an attorney who files a motion for sanctions raises the personal stakes of everyone involved.

Thursday, October 24, 2013

Aggravating and mitigating circumstances in NCAA enforcement.

In addition to lacking subpoena power and legal standards, the presence or absence of aggravating and mitigating circumstances affects the penalties levied in NCAA infractions cases.

Aggravating circumstances warrant the imposition of more severe penalties in an infractions case. Mitigating circumstances warrant the imposition of less severe penalties in a case. Aggravating circumstances include but are not limited to an institution's history, and the school's cooperation with the NCAA during an investigation. If you fail to cooperate or try to conceal violations, you are subject to more severe penalties. Conversely, if you exhibit exemplary cooperation or have little to history of rules violations, you may be given less severe penalties.

It may seem axiomatic that cooperation mitigates potential penalties in an infractions case, but without subpoena power the NCAA must put a premium on openness. Otherwise, it would be extremely difficult for the NCAA to discover relevant information in a given case, because there would no incentive for schools to do so.

Wednesday, October 23, 2013

On the Trademark Trial and Appeal Board and the "Redskins" mark.

I previously discussed the Washington Redskins' trademark. It is being challenged by a group of Native Americans who find the mark disparaging, offensive and/or scandalous. More than a decade ago, the mark's federal registration was challenged on the same grounds. The reasoning was that the mark is entitled to registration, basically because more people associate the mark with the football team than with its offensive meaning.

This is a good background article to the Trademark Trial and Appeal Board, the group charged with making such decisions. The TTAB oversees petitions opposing and to cancel a trademark, along with interference and concurrent use proceedings. The TTAB does not decide whether a mark can be used or is being infringed; it only determines whether a certain mark is entitled to federal registration.

Wednesday, October 16, 2013

The use of affirmative defenses for summary disposition.

Upon service of a complaint, the defendant must answer it or move for dismissal. A motion to dismiss will be denied unless:

- there is no jurisdiction;
- the location of the lawsuit is improper;
- there was insufficient service of process or the original notice was deficient;
- a necessary party was not included; or
- the complaint fails to state a valid claim.

The defendant must usually file an answer, along with affirmative defenses (often included as boilerplate and not argued during the case). Sometimes, the applicability of an affirmative defense is apparent in the complaint. If so, it may lend itself to summary disposition. In such a case, the defendant will answer the complaint, but shortly thereafter files a motion for summary judgment. Some of the most effective but underutilized affirmative defenses for summary disposition are laches, equitable and promissory estoppel, and estoppel by acquiescence. They are all similar, yet distinct.

If you are sued, but think to yourself, "it's not fair," then one of these affirmative defenses (or a different one) may apply.

1. Laches.

Applicable when (a) the plaintiff delays filing a lawsuit for an unreasonable and inexcusable length of time, and (b) the delay injures the defendant.

2. Equitable estoppel.

Applicable when (a) the plaintiff does or says something the defendant relies on, (b) the plaintiff later changes his/her mind and sues on it, and (c) it is inequitable to allow the plaintiff's claim to proceed. In other words, the plaintiff must "bait-and-switch."

3. Estoppel by acquiescence.

Applicable when the plaintiff expressly or impliedly consents to the defendant's conduct.

4. Promissory estoppel.

Applicable when (a) the plaintiff makes a promise that the defendant relies on, and (b) the plaintiff later reneges on the promise and brings a lawsuit based on it. This is comparable to equitable estoppel, but does not require the degree of bad faith that equitable estoppel does.

Wednesday, October 9, 2013

Why is it more difficult to win a lawsuit than it is to defend an NCAA investigation?

1. Subpoena power.

In court, plaintiffs and defendants have subpoena power, which is the ability to require someone to testify or produce information in a lawsuit. If you fail to comply with a subpoena, you can be held in contempt and placed in jail. If you are served with a subpoena but consider it an improper request, you can move to quash it. You must file a motion to quash and set the matter for hearing before the date specified in the subpoena. You can try this by yourself, but it is unlikely to be successful without an attorney's help.

A subpoena can be quashed when it seeks privileged information or protected matter; fails to allow a reasonable time to comply; requires excessive travel to comply; or otherwise imposes an undue burden on the party subject to it. The NCAA has no subpoena power. Accordingly, it has no way to force a party to divulge information.

In court and in NCAA investigations, there is a duty to speak truthfully. If you do not in court, you can be charged with perjury. If you do not in an NCAA investigation, you can lose your eligibility if a player, or issued a show-cause order if a coach or administrator. If you do not speak to the NCAA at all when information is requested, you will likely be penalized to a similar extent than if you had lied to the NCAA. Accordingly, you should speak to the NCAA when requested, even if you are not obligated to do so.

2. Legal standards.

As discussed elsewhere, there are no legal standards in enforcing NCAA rules. A criminal defendant must be proven guilty beyond a reasonable doubt. A civil plaintiff generally must prove his or her case by a preponderance of the evidence. Sometimes, the standard is "clear and convincing." Without legal standards for determining guilt of a party, it is exceedingly difficult for the NCAA to find a school or involved individual guilty, because the school or individual can simply claim there is insufficient evidence.

Tuesday, October 8, 2013

What is a "lack of institutional control" in NCAA Bylaws?

To encompass a variety of conduct, the NCAA's definition of "institutional control" is broadly written. When a school exercises control and responsibility over its intercollegiate athletics programs, it has institutional control. Accordingly, a school lacks institutional control if it does not exercise control and responsibility over its intercollegiate athletics programs. Under the new Division I violation structure, a lack of institutional control is a severe breach of conduct (Level I violation). A failure to monitor is usually a significant breach of conduct (Level II violation) unless severe enough to be a Level I violation.

When the NCAA conducts an investigation after an alleged violation, a primary factor in determining whether there is institutional control is the compliance measures in place at the time of the violation. Basically, an NCAA investigation is a process audit, and a charge of a lack of institutional control is a failing grade.

Most violations do not result from a lack of institutional control. If a school has adequate compliance measures in place, properly educates and monitors relevant personnel, and takes action when alleged violations are discovered, it will not be charged with a lack of institutional control. However, if a school does not establish adequate compliance measures, does not properly oversee or educate relevant personnel, does not fix ineffective measures, or suffers some other defect preventing it from monitoring compliance, it will be charged with a lack of institutional control.

Wednesday, October 2, 2013

Impermissible financial inducements in college football recruiting.

Those following college sports know that a school representative cannot provide financial inducements to a prospective student-athlete, or the friends or relatives of such athlete. This holds even if the athlete does not eventually attend that particular school.

If the school’s representative had a pre-existing relationship with a family member of the athlete, the representative can provide a benefit to the family member so long as it is consistent with the nature and level of benefit provided to the family member before the athlete reached ninth grade.

If there is no pre-existing relationship, prohibitions on the financial aid a school representative can provide include but are not limited to:

- Employment for a prospective student-athlete’s relatives;
- Gifts of clothing or equipment;
- Co-signing of loans;
- Providing loans to a prospective student-athlete or his or her friends;
- Cash or like items;
- Any tangible items, including merchandise;
- Free or reduced-cost services, rentals or purchases of any type;
- Free or reduced-cost housing;
- Use of an institution’s athletics equipment;
- Sponsorship of or arrangement for an awards banquet; and
- Expenses for academic services.

Article 13 of the NCAA Operating Bylaws is broadly written to prohibit financial inducements not specifically mentioned. For instance, “cash or like items,” and “any tangible items” are prohibited.

Tuesday, October 1, 2013

On one of the University of Alabama's few losses.

Unlike its football team, the University of Alabama lost a recent court battle with an artist who has painted realistic scenes of the school's football games since 1979. The school sued the artist for trademark infringement, unfair competition and breach of contract. In 2012, the district and appellate courts sided with the artist on the trademark infringement and unfair competition claims. The school argued that the artist could not sell reprints of the painted scenes, because they contained the Alabama trademarks. The artist said both the artwork and reprints were protected speech under the First Amendment. The courts agreed with the artist on those claims.

In 2013, the district court sided with the artist on the breach of contract claim, because it found the school effectively waived its right to sue. The court said one of the licensing agreements was breached, but the University lost its right to claim a breach of contract when it sold the artist's reprints to which it was objecting in the lawsuit. The court basically said the school could not have its cake and eat it too.