Celebrity Entertainer Sues Over Video Game Avatar

As real-world celebrities continue to expand the reach of their persona into the digital realm, the potential benefit for advertisers, game developers and esports event promoters is exceedingly high. But with increased opportunity comes increased risk.

A New York Supreme Court recently addressed this risk when it construed the State’s right of publicity statute[1] in a dispute over an NBA 2K18 video game avatar. In Champion v. Take Two Interactive Software, Inc., celebrity basketball entertainer Phillip “Hot Sauce” Champion sued the video game developer, alleging violation of his right to privacy for Take-Two’s use of his name and likeness. The Court ultimately dismissed the lawsuit, but not before it provided a helpful discussion of New York’s publicity statute and its modern application to the esports industry.

A Primer on New York’s Publicity Statute

New York publicity law allows both criminal charges and civil liability for use of a person’s “name, portrait or picture” for advertising or trade purposes without prior written permission. This right to publicity extends to any recognizable likeness that has a “close and purposeful resemblance to reality.” Courts have already held that video game avatars are within the scope of the statute’s reach.

However, while seemingly broad at first pass, this statutory right is actually more narrow than similar rights in other states where the right to publicity is recognized only at common law (i.e., in states that have no black-letter publicity statute). For example, in New York, neither “incidental” use of a person’s name or likeness, nor use that is protected under the First Amendment, are violations.

Further, unlike the words “portrait” and “picture,” the word “name” in the statute is construed literally. In fact, New York courts find liability only for uses involving an individual’s full name, and not just a surname, nickname, or business name. The statute does, however, protect certain “stage names” in limited situations, such as when the individual has become known by a stage name virtually to the exclusion of his or her real name.

The Plaintiff and the Video Game

Phillip Champion is a prominent street basketball entertainer known professionally as “Hot Sauce.” Champion claims that he is widely recognized as both “Hot Sauce” and “Hot Sizzle” in social media, and is regularly depicted on television and in blogs, movies, YouTube videos, sports magazines and live halftime shows. As a result, Champion is able to license his celebrity persona through sponsorships and endorsement deals with prominent consumer brands like AND1.

Photographs of Champion filed with the Court.

Take-Two created the NBA 2K18 basketball simulation video game, which realistically depicts the on-court competition and off-court management of the National Basketball Association. Users can create a custom player avatar, or select from existing player avatars modeled after real-life professional athletes. The game’s “MyCareer” mode allows the user to create a custom basketball player, and then design and play through the character’s entire career, competing in games and participating in off-court activities. The “Neighborhoods” option, which ties to the off-court activities in the MyCareer mode, lets users explore an off-court urban world while interacting with other basketball players—most of which are non-playable characters controlled by the computer—in scenarios like exercising in public gyms and playing casual basketball games on city courts.

Champion’s Claims

Champion’s lawsuit stems from one of the non-playable characters in the game’s Neighborhood mode, who is depicted as a young, African-American male with a mohawk, wearing all-white hi-top sneakers, a tank-top, and black shorts with white piping. On the front and back of the tank-top is the numeral “1,” and on the back are the words “Hot Sizzles.”

Images of the “Hot Sizzles” avatar filed with the Court.

Champion alleged that the look of the “Hot Sizzles” avatar incorporated numerous personal aspects of his life and identity in violation of the New York publicity statute, and further that the avatar’s “Hot Sizzles” name was itself a violation because Champion is “ubiquitously” known as “Hot Sizzle.”  Take-Two responded that its “Hot Sizzles” avatar does not sufficiently resemble Champion, whether in name or image, under New York law.

On Champion’s claims to his likeness, the Court found no physical resemblance between Champion and the “Hot Sizzle” avatar, and determined that the only reasonable commonalities are that “both are male, African-American in appearance, and play basketball.” The Court compared this case to two similar cases (Lohan v. Take-Two Interactive Software, Inc.  and Gravano v. Take-Two Interactive Software, Inc. ), both involving Take-Two’s Grand Theft Auto video game, in which the avatars exhibited many closer similarities to the plaintiffs in clothes, hair, poses, voice, and life stories. Finding no similar likenesses in this case, the Court ruled that, at least from a visual perspective, the Hot Sizzles avatar in NBA 2K18 is not recognizable as Champion as a matter of law.

On Champion’s claim to the name “Hot Sizzles,” the Court recognized that the use of a person’s celebrity or “stage” name with a video game avatar could aid in recognition of the avatar as that person’s likeness. However, the Court determined that Champion’s “primary performance persona” is actually “Hot Sauce,” which is entirely distinct from the NBA 2K18 avatar’s name, “Hot Sizzles.” Champion was not able to show that he is widely known as “Hot Sizzle” to the public at large—as opposed to just in the sporting or gaming circles—so the Court ruled that, without this level of connection between Champion and the name “Hot Sizzle,” Take-Two’s use of “Hot Sizzles” does not aid in the visual recognition of the NBA 2K18 avatar as Champion.[2]

Incidental Use and the First Amendment

Take-Two also defended against Champion’s claims by alleging that the “Hot Sizzles” character falls within the “incidental use” exception to liability under New York’s statute. After reviewing the NBA 2K18 game content and related advertising, the Court seemed to agree that the avatar “is a peripheral non-controllable character” that “adds nothing of true substance to a user’s experience in the game.” However, the Court declined to make an affirmative ruling on this component of the lawsuit.

Finally, Take-Two argued that its NBA 2K18 game is protected speech under the First Amendment, and as such, it does not constitute “advertising or trade” under New York’s law. In response, the Court declared that, while video games may conceptually qualify for free speech protection, not every video game constitutes “free speech” fiction or satire. In comparing NBA 2K18 to games that contain a detailed story with pre-defined characters, dialogue and unique environments created entirely by the game designers, the Court determined that here, the users create their own basketball career and completely define their character. Accordingly, the Court found that categorizing NBA 2K18 as “protected fiction or satire” under the First Amendment is “untenable.”

What it Means

As novel sponsorship and endorsement opportunities are created through the advent of esports, advertisers, game developers, and event promoters must be certain they have the appropriate content and publicity licenses in place. However, because publicity laws, in particular, are enforced at the state level, doing this without expert guidance can be daunting. Using the right tools and a proactive licensing and review strategy, brands and marketing agencies can capture (and keep) a broader share of the esports industry’s revenues, and keep the competition on the court, not in it.

[1] New York Civil Rights Law, §§ 50-51.

[2] The Court determined that “Hot Sizzle” is, at best, Champion’s secondary “nickname.”


Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

Jury Rules for NCAA in First Sports Concussion Case Tried to Verdict

In a landmark decision, a Pennsylvania jury ruled in favor of the defendant National Collegiate Athletic Association (NCAA) in the first sports concussion case tried to verdict. In a 10−2 decision, the jury in Onyshko v. NCAA, No. C-63-CV-201403620 (Wash. Cty. Ct. Comm. Pleas, PA) (filed 6/27/14, originally filed in federal court on 12/17/13) found that the NCAA was not negligent in its dealings with plaintiff Matthew Onyshko when he was a student at California University of Pennsylvania.

In 2008, five years after his college football career ended, Onyshko was diagnosed with amyotrophic lateral sclerosis (ALS), a progressive neurodegenerative disease usually diagnosed between age 40 and 70. Onyshko and his wife sued NCAA for claims of negligence and loss of consortium. The complaint stated that, during his college football career, Onyshko experienced numerous, repeated blows to the head, lost consciousness for at least 30 seconds on three separate occasions, and that repeated blows to the head caused him to develop ALS.

The NCAA is the main regulatory body for college sports to promote safe participation. According to Onyshko, the NCAA knew from at least the 1980s that football-induced brain injuries cause long-term damage, but it failed to adequately supervise, regulate, and minimize the risk of long-term brain injury resulting from repeated head impacts.

NCAA’s pre-trial motion to dismiss, which argued that the complaint failed to adequately plead the existence of the legal duty, was denied by the court on December 3, 2014. Subsequently, NCAA moved for summary judgment, arguing that (1) the action was barred by the statute of limitations, (2) NCAA did not have a duty to plaintiff, (3) NCAA did not breach a duty to protect against the long-term risks of concussion and (4) plaintiff’s alleged head injuries incurred while playing college football did not cause his later development of ALS. In denying the motion, the court found that plaintiffs’ expert opinions created a genuine issue of material fact about whether concussive and sub-concussive blows to the head while playing collegiate football could cause ALS.

After years of litigation and substantial discovery, the case went to trial, with jury selection beginning on April 29, 2019. During the trial, which lasted almost a month, Onyshko, now 38 years old, used a computerized device controlled by eye movement to give testimony. According to Onyshko, he sustained at least 20 concussions as a college football player during which he blacked out, but was never taken off the field in a stretcher. He further testified that he did not report the episodes to a trainer because he did not know that these were an issue. He said that the diagnosis of ALS in 2008 was a shock because it did not run in his family.

During cross-examination, the NCAA’s attorney brought up Onyshko’s deposition testimony that Onyshko first experienced headaches, dizziness, and memory problems in 1999, before he played any collegiate games. Video recordings of games in which plaintiff played were shown to refute plaintiff’s claims of the multiple head injuries he allegedly sustained.

In his closing statement, plaintiffs’ attorney requested compensatory damages of $9.6 million. Deliberation began the afternoon of June 5, 2019. After seven and a half hours, the jury found in favor of NCAA on liability. The plaintiffs announced plans to appeal and re-file the matter as a wrongful death case under Pennsylvania law when Onyshko dies.


© 2019 Wilson Elser

Another Tool for NBA Coaches

The NBA has announced that it will introduce a new rule in the upcoming NBA summer leagues. If successful, the rule could be implemented next season in the NBA. The NBA anticipates “the rule will be in effect in the NBA next season as a one-year pilot program”.

The rule provides for a new “coach’s challenge” during a game. Coaches will be entitled to one challenge per game. Once used, even if successful, the coach has used their challenge for the entire game. The challenge may be used for called fouls, goal-tending, basket interference and instances where the ball is out of bounds. The challenge cannot be used where referees have missed calls.

To use a challenge, coaches must have a timeout remaining. This means that coaches may start to retain a timeout tactically in particularly important games in order to be able to use their challenge, especially in the dying seconds of a close contest. However, only challenges for personal fouls are permitted in the last two minutes of the fourth quarter or the last two minutes of overtime. To use the challenge, the head coach will call a timeout and indicate they are challenging the call. If successful, the team retains their timeout. If not, the timeout is used.

The NBA’s sister league, the G League, has implemented this rule for the past two seasons. In its first season, there were 232 challenges of which 75 original calls were overturned, representing a 32.3% success rate. The following season saw 81 successful challenges from 249 challenges, representing a similar success rate of 32.5%.

The League anticipates that the challenge rule will be rolled out next season on a trial basis and reviewed at the end of the season. For the rule to be implemented, two-thirds of the League’s teams must vote in its favour during a formal vote expected to take place this summer. If the vote goes ahead, it is likely to succeed. Coaches are generally in favour of the rule as it provides another tool for them to use in-game. Coaches gain greater powers of intervention whilst more decisions are ultimately correct due to incorrect calls being overturned. It could also ease tensions between referees and players. Sports Shorts recently addressed the heightening tensions between NBA players and match officials during the Playoffs this season.

 

© Copyright 2019 Squire Patton Boggs (US) LLP
For more NBA & other sports developments see the National Law Review Entertainment, Art & Sports page.

UPDATE: NCAA Flexes Its Muscle in Response to California Fair Pay To Play Act

NCAA President Mark Emmert has predicted that it would become “impossible” for the NCAA to consider California colleges eligible to participate in national championship competitions should California pass the Fair Pay To Play Act (SB 206) and allow college athletes to maintain their amateur status while accepting pay for marketing their name, image and likeness (as discussed in our recent blog posts on March 4, 2019, and May 23, 2019).

Emmert stated this in a letter to Senator Nancy Skinner, the sponsor of the proposed legislation, and the Chairpersons of two California State Assembly Committees (the Arts Entertainment, Sports, Tourism and Internet Committee and the Higher Education Committee).

Emmert has requested the two committees postpone consideration of the proposed legislation while the NCAA convenes an investigatory working group of school presidents and athletics administrators who will be reviewing the current prohibition on NCAA athletes earning income from the use of their names, images, and likenesses. The working group, led by Big East Commissioner Val Ackerman and Ohio State University Athletic Director Gene Smith, is authorized to propose specific recommendations to potentially reform and modify current NCAA Bylaws.

In his letter, Emmert recognized the California legislature’s efforts in developing the bill, but noted, “when contrasted with current NCAA rules,

the bill threatens to alter materially the principles of intercollegiate athletics and create local differences that would make it impossible to host fair national championships.”

Emmert continued, “… it likely would have a negative impact on the exact students athletes it intends to assist.”

The timing of President Emmert’s request presents a dilemma for the California state legislature as the Ackerman and Smith-led NCAA group is not scheduled to update the NCAA Board of Governors until August and will not issue a final report until late-October, more than a month after the end of the current California legislative session considering SB 206.

SB 206 was just approved by the Committee on Arts without any formal opposition. The bill is now headed to the 12-member Committee on Higher Education, which must express its approval before July 11 and before the 61 Democratic members of the full 80-member California assembly will have an opportunity to consider the bill.

In its current form, the legislation would prohibit a California postsecondary educational institution, athletic association, conference, or any other organization with authority over intercollegiate athletics, from preventing student-athletes from earning compensation in connection with the use of the student-athlete’s name, image, or likeness. This would result in colleges, such as perennial sports powers like UCLA, USC, the University of California, and Stanford from being unable to stop their male and female student-athletes from signing endorsement deals or licensing contracts under the NCAA prohibition, circumventing the power and authority of the NCAA.

Senator Skinner responded to Emmert’s letter, saying, “It’s definitely a threat to colleges.”

She continued, “And this is what I think is so ironic: They are colleges. The NCAA is an association of colleges, and yet they’re threatening California colleges and saying that they would not allow them to participate in championships if my bill passes.”

Skinner reminded the public that if her bill were signed into law, it would not go into effect for another three years. She said the NCAA would have ample time to assess its own rules regarding student-athlete compensation. “Both the colleges and the NCAA have plenty of time to do the right thing,” she said.

Jackson Lewis P.C. © 2019
For more on NCAA and other sports news see the National Law Review page on Entertainment, Art & Sports.

Agents Beware: Representation Agreement May Not Be Enforceable If It Violates State Sports Agent Laws

A North Carolina law designed to protect student-athletes may determine the enforceability of Prime Sports Marketing’s contract with former Duke University star Zion Williamson. While Williamson is preparing to become a member of the New Orleans Pelicans after his name is announced as the No. 1 selection in the 2019 NBA Draft, he is also preparing for a legal battle in a different court…the U.S. District Court for the Middle District of North Carolina.

Williamson has filed suit against the Florida-based company and its president, Gina Ford, to have the marketing contract he signed with Prime Sports declared null and void. After signing a five-year agreement with Prime Sports and an accompanying letter of authorization reaffirming his desire to have Gina Ford begin representing him as his Global Marketing Agent, Williamson changed his mind.

Williamson alleges the agreement was entered into in violation of North Carolina’s Uniform Athlete Agent Act (UAAA) and should be declared void.

In his complaint, Williamson alleges that Prime Sports and Gina Ford violated the specific provisions of the North Carolina law that forbids a person from acting as an agent in the state unless that person has previously registered with the North Carolina Secretary of State’s office. The law applies to any agency contract, including employment agreements and marketing agreements.

In addition, the law mandates any agent to follow a series of procedural requirements to protect student-athletes from unknowingly forfeiting their remaining NCAA eligibility. Any contract between a registered agent and a student-athlete must contain a specific, capitalized notice in boldface print cautioning the athlete of the rights he will be giving up by entering into the contract. Among the many required notices, the contract must state the following:

WARNING TO THE STUDENT-ATHLETE IF YOU SIGN THIS CONTRACT

  • YOU SHALL LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT-ATHLETE IN YOUR SPORT;
  • YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT. CANCELLATION OF THIS CONTRACT SHALL NOT REINSTATE YOUR ELIGIBILITY.

The agreement Williamson signed with Prime Sports did not contain any of these required notices mandated by the North Carolina law.

Of particular significance will be a judicial determination as to whether Williamson remained a student-athlete when he signed the agreement with Prime Sports and still protected by the North Carolina law. Williamson declared himself eligible to be drafted by an NBA team on April 15, arguably ending his status as an NCAA-eligible athlete. He signed the agreement with Prime Sports on April 20, when he had arguably given up his amateur status and was no longer protected by the state law. While a student-athlete’s declaration for the draft was irreversible at one time, current NCAA bylaws allow a student-athlete to “test the waters” regarding potentially becoming draft-eligible and withdraw his name from consideration as late as May 29 without risking the loss of any remaining eligibility. Here, Williamson lost the option to exercise his rights pursuant to NCAA bylaws and return to Duke University when he signed the contract with Prime Sports.

As the federal court considers Williamson’s complaint and the anticipated defenses and potential counterclaims to be asserted by Prime Sports (which has alleged the potential for $100 million in damages in a pre-complaint letter to Williamson’s attorney), the significance of Gina Ford’s failure to register as an agent with the State of North Carolina before her initial meeting with Williamson could be of crucial importance in determining the enforceability of the agreement between Williamson and Prime Sports.

Jackson Lewis P.C. © 2019
This post was written by Gregg E. Clifton at Jackson Lewis P.C.
Read more on Sports Law on the National Law Review Entertainment, Art & Sports page.

Ohio State and Oklahoma Battle It Out Again (Just Not On The Football Field)

In 2016 and 2017, two storied college football programs – the Ohio State Buckeyes and the University of Oklahoma Sooners – battled it out on the football field.  While Ohio State was victorious in 2016, Oklahoma evened things up with a victory in Columbus in 2017. In 2018, these two universities will battle it out again, but this time not on the football field, but rather before the Trademark Trial and Appeal Board.

The Ohio State University owns various registrations for a “Block O” mark.  One of the registered marks appears below:
 

 

The University of Oklahoma has applied to register a design mark consisting of a drum major with a block O across the chest of the drum major’s shirt, for use in connection with live performance by a musical band. Oklahoma claims to have used the mark since 2001.  Oklahoma’s mark appears below:

 

 

 On August 29, 2018, Ohio State opposed Oklahoma’s application, alleging a likelihood of confusion.

Ohio State claims that it has used its “Block O” mark since at least as early as 1898 and alleges:

“Today, the Block O mark is the heart of the branding and image of Ohio State and is used in connection with all products and services offered and provided by Ohio State, including educational, athletic, recreational, and musical. Indeed, the Block O Mark is permanently displayed in the middle of the football field at Ohio Stadium where millions of viewers have seen in Ohio State Buckeyes football team play its home games and have cheered on Ohio State’s marching band as it performs its famous ‘Script Ohio.’”

Further, Ohio State alleges that the “Block O” mark as it appears across the chest of the shirt of the drum major in the “Drum Major” mark is the dominant portion of the “Drum Major” mark, and consumers will naturally gravitate to the lettering on the chest to identify and falsely believe that there is a connection to Ohio State. Moreover, Ohio State notes that the actual uniform currently worn by Oklahoma’s drum majors is inconsistent with the use of the “Block O” appearing on the applied-for mark, such that the likelihood for confusion as to source is exacerbated.

Oklahoma has until October 8, 2018 to respond to the opposition.

This is not the first time Ohio State has tangled with an Oklahoma university regarding trademarks. Last year, Ohio State and Oklahoma State University, after trading legal blows, came to an agreement with regards to their respective “OSU” trademarks. Both schools agreed not to promote, market, license or sell products or services in a way that would cause confusion.  Notably, both schools also agreed not to use their marks to disparage the other. An example from the parties’ agreement states that Oklahoma State will not make T-shirts calling Ohio State a “wannabe OSU,” and Ohio State will not produce T-shirts dubbing Oklahoma State a “copy-cat OSU.”

Instead of a battle between the Buckeyes and Sooners on the football field, a battle between them at the Trademark Trial and Appeal Board will be watched in 2018.   In the words of legendary sports announcer Keith Jackson, “It should be a dandy.”

© Copyright 2018 Brinks, Gilson & Lione

Were Analytics the Real MVP of the Super Bowl?

As the Eagles readied to celebrate the franchise’s first Vince Lombardi trophy, an unlikely candidate basked in the glow of being declared the game’s Most Valuable Player. Surely it was Nick Foles who, on his way to upsetting one of the NFL’s elite franchises threw and caught a touchdown in the same big game, was the true MVP. But was he?

In the days leading up to the Super Bowl, the New York Times published an article about how the Eagles leveraged analytics to secure a Super Bowl berth. The team relied, in part, on probabilistic models that leveraged years of play data to calculate likely outcomes, given a specific set of circumstances. They found that while enumerating outcomes and optimizing for success, the models would, in many cases, recommend plays that bucked the common wisdom. Indeed, we saw the Eagles run plays and make decisions throughout the season that, to the outside observer, may have seemed mind-boggling, overly-aggressive, or risky. Of course, the outside observer did not have access to the play-by-play analytics. Yet, in many instances, these data-driven decisions produced favorable results. So it seems that analytics were the real MVP, right? Well, not entirely.

As we have written in the past, the most effective analytics platforms provide guidance and should never be solely relied upon by employers when making decisions. This analytics concept rings as true in football as it does in business. The New York Times article talks about how mathematical models can serve to defend a playmaking decision that defies traditional football logic. For example, why would any team go for it on fourth and one, deep in their own zone, during their first possession in overtime? What if the analytics suggested going for it was more likely to result in success? If it fails, well, the football pundits will have a lot to talk about.

Coaches and players weigh the analytics, examine the play conditions, and gauge on-field personnel’s ability to perform. In order words, the team uses analytics as a guide and, taking into account other “soft” variables and experience, makes a decision that is right for the team at that time. This same strategy leads to success in the business world. Modern companies hold a wealth of data that can be used to inform decisions with cutting edge analytics, but data-driven insights must be balanced with current business conditions in order to contribute to success. If this balancing act works on the grand stage of professional football, it can work for your organization.

Indeed, we may soon see a day when football stars raise the Super Bowl MVP trophy locked arm-in-arm with their data science team. Until then, congratulations, Mr. Foles.

 

Jackson Lewis P.C. © 2018
This post was written by Eric J. Felsberg of Jackson Lewis P.C. 

0.44% of NFL Brains

When The New York Times reports that 110 out of 111 NFL brains (99.09%) have chronic traumatic encephalopathy (CTE), everyone pays attention. Mothers worry about their kids. Some worry about their jobs. Senate subcommittees investigate. The Times article covers Dr. Ann McKee’s recent article in the Journal of the American Medical Association, “Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football” (JAMA. 2017;318(4):360-370) in dramatic fashion, illustrated with pathology slides of tissue samples from the brains of former football players and anecdotal information about them. Such claims are certain to be fuel for CTE litigation and cries to ban tackle football.

Let’s put this in perspective. About 25,000 men have played American professional football. So, 110 is roughly 0.44%. Even if the real number is double, the outcome remains a statistical nonentity.

In all fairness, the study points out some of its limitations; for example, “Ascertainment bias associated with participation in this brain donation program.” Inclusion was based entirely on exposure to repetitive head trauma eliminating any form of “control” group, a necessary element of any scientific study. The authors also disclose that “public awareness of a possible link” between head trauma and CTE “may have motivated” some participants. Finally, the authors acknowledge that the study is not representative of the population of all American football participants, as most play only at the youth or high school level, whereas the majority of the donors played at the professional level. The study data somewhat illustrates that point: CTE was found in none of two pre−high school participants and three of 14 high school participants (21%).

Breaking It Down

The 800-pound gorilla in this room is suicide. Suicide among former football players gets major media attention (Junior Seau and Aaron Hernandez) and has spawned a cottage industry of CTE litigation against every level of the sport from NFL down to Pop Warner. The study tries to correlate neuropathology with “clinical observations” − information drawn from “retrospective interviews” with family members of deceased donors. Observations are grouped as cognitive, behavioral or mood or both, and signs of dementia. Suicide was identified as the cause of death in 10% of the study group. “Suicidality” (ideation, attempts or completion) is identified among 33% of the study group. Some might conclude that if you play football you are 33% more likely to contemplate or attempt suicide and 10% more likely to succeed.

In fact, the rate of suicide mortality among retired NFL players is substantially lower than in the general population. An investigation performed at the National Institute for Occupational Safety and Health (NIOSH) and published in 2016 (Lehman, et al.) found that among players retired since 1987, the suicide rate is 6.1 / 100,000. Among players retired since 2005, it’s 12.5 / 100,000. Among average American men, the rate since 2014 is 20.1 / 100,000. One would conclude that since 2005, NFL players are 48% less likely to commit suicide than the general population, and since 1987, 70% less likely. The study covered those who played for five years or more.

Of note, drugs are assessed by standardized mortality ratio – the increase or decrease in mortality with respect to the general population. “If playing in the NFL (for a minimum of five seasons) were treated like taking a drug, it would reduce the standardized mortality (measured 30 years later) by half!” Samadani, Brain Injury and Football, Reality v. Perception. THSCA presentation, 2016.

Similar studies have been done at the college level where the NCAA maintains a robust database. A nine-year study published in October 2015 (Rao, et al.) observed that as against a rate of 12 / 100,000 among 18−22-year-old non-college individuals, the suicide rate among college students was 7.5 / 100,000. Among male NCAA athletes, the suicide rate was 2.25 / 100,000.

Another study dispels the notion that CTE is a path to neurological deficit. Published in Acta Neuropathol, “Histological Evidence of CTE in a Large Series of Neurodegenerative Diseases” (Ling, et al., 2015) observed that (1) CTE prevalence in people with neurodegenerative diseases (11.8%) was the same as in controls (12.8%); (2) patients with CTE died at a mean age of 81 years and “most positive cases [were] likely to be clinically asymptomatic”; and (3) CTE is found under the microscope in equal proportions of healthy, normal, asymptomatic people as it is in people with dementia and other diseases. For those worried about doing the right thing by their kids, a study published in December 2016 in Mayo Clinic Proceedings (Savica, et al., “High School Football and Risk of Neurodegeneration: A Community-Based Study”) found that among 438 football players followed for 50 years, the risk of dementia was the same as for members of the chorus, glee club or band.

Facts and Findings

Fortunately, in court science matters. The notion that football causes CTE has been rejected by at least one United States District Court, the Eastern District of Pennsylvania, and the Third Circuit Court of Appeals. See In re NFL Players Concussion Injury Litig., 307 F.R.D. 351 (EDPA, 2015), aff’d 821 F.3d 410 (3d Cir. 2016). Judge Brody’s key findings, based on current scientific knowledge and affirmed by the appellate court, negate causation: (1) the study of CTE is nascent, and the symptoms of the disease, if any, are unknown; (2) medical research has not reliably determined which events make a person more likely to develop CTE; and (3) research has not determined what symptoms individuals with CTE typically suffer from while they are alive. In re NFL Players Concussion Injury Litig., 821 F.3d at 441.

The point: Media should not lead science. The health and psychosocial benefits of athletic activity at all ages far outweigh any perceived risk. As parents, we should encourage healthy activity. As professionals, we need to peel back what the media pushes, read the literature and understand the fundamentals.

This post was written byAnthony B. Corleto of Wilson Elser Moskowitz Edelman & Dicker LLP.
For more legal analysis check out The National Law Review.

Yes, Your March Madness Office Bracket is Technically Illegal

march madness office bracket
marc

March Madness has arrived!  The 2017 NCAA Basketball Tournaments tip-off tonight (March 15) and continue through the Women’s and Men’s National Championship Games on April 2 and 3 respectively.  With this, comes the American tradition of companies and their employees betting on tournament outcomes through office bracket pools.

As lawyers, we have to point out that your company’s March Madness pool is very likely illegal under at least three federal gambling laws (the Professional and Amateur Sports Protection Act, the Interstate Wire Act of 1961, and the Uniform Internet Gambling Enforcement Act) and many state laws.  And we would be remiss to not mention that there is a parade of horribles that could happen from permitting such workplace wagering.

With that said, the more practical reality is that office pools have become a widely-practiced and culturally accepted form of gambling, law enforcement authorities seem to have little interest in enforcing laws that technically prohibit them, and many employers view these office pools as a workplace morale booster.

For those employers – seemingly, most all of them – who will not shut down this popular practice, here are some best practices to help mitigate legal issues when sponsoring or allowing office pools:

  • Make sure that all entry fees are distributed solely to the winner or winners of the pool.  An employer, or employees organizing a pool, should never take a “cut” of entry fees.  Under various anti-gambling laws, profiting from the pool in this way raises a host of issues.

  • Limit pools to offices within a particular state.  Doing so may prevent the pool from violating federal laws, as they generally require the transmission of money or communications across state lines to be applicable.

  • Make participation completely voluntary and limit entry fees to nominal amounts.  Expensive or compelled buy-ins may encourage the predilections of employees who are problem gamblers, and expensive buy-ins may tempt those employees responsible for collecting and distributing entry fees to surreptitiously take a “cut.”  Compelled buy-ins could implicate wage and hour and religious anti-discrimination laws.  Following these guidelines helps ensure that an office pool is low-stakes and simply intended to promote friendly rivalry.

  • Do not retaliate against or single-out employees who may complain to the pools.  There are plaintiff’s lawyers out there who will try to tether an internal complaint of unlawful activity to later adverse action against the complainer.

  • Prohibit employees from gambling in other pools on company time or through company equipment.  Apart from a workplace pool, employees may choose to participate in other pools with non-employees, and there are many options to do so online (including through company-issued or owned computers).  These other pools can raise additional concerns about potential violations of the law, to the extent they involve large wagers, are structured to profit the organizer, or involve interstate communications.  Consequently, for reasons of both legality and ensuring employee productivity, employers are best served by a policy that prohibits employee gambling in other pools on company time or company equipment.

  • Consider sponsoring a free pool that provides a non-monetary award.  Although employees may not find it as interesting, an employer concerned about the legality of its office pool may consider sponsoring a pool that is free to enter, with a non-monetary award (a gift card or some other prize) for the winners.  The lack of an exchange of money in such a pool may avoid the reach of potentially applicable anti-gambling laws.

Putting legality aside, it is well-established that employee productivity takes a hit during March Madness, particularly since it is now possible to watch games online through work computers or personal mobile devices, and permitting an office pool could encourage distraction.

To accommodate employee interest in the tournaments while reducing productivity loss employers should consider airing the games in a breakroom or lunchroom. At the same time, add sports broadcasts and websites to blocked sites on company systems that monitor and limit Internet use on company-owned computers, systems and devices (certainly, gambling and unlawful activity websites should be blocked year-round).  And if productivity becomes a problem, communicate policies addressing these concerns to employees, including policies restricting viewing to non-break times or reminding employees (including those tempted to duck out early to catch a game) of applicable attendance and punctuality policies.

As March Madness begins, we wish you the home court advantage.

©2017 Drinker Biddle & Reath LLP. All Rights Reserved

Super Bowl 51: What to Do When Fantasy is Over and Football Fever Becomes Work Reality?

Super bowl 51Super Bowl LI is just around the corner, and many of your employees probably already have football fever. According to a January 2016 study conducted by the Workforce Institute at Kronos, 77 percent of American workers planned to watch Super Bowl 50. So whether they are cheering for the Patriot’s ninth Super Bowl appearance, the halftime show, or the much-talked-about commercials, it’s a safe bet that most of your employees will tune in to at least part of the game day programming. Here are some issues employers may want to consider as they brace themselves for game day fumbles:

1. The fantasy football pool.

Gambling is still illegal in most jurisdictions—even at work and even when it’s just over football. Federal law and most state laws prohibit gambling: the Professional and Amateur Sports Protection Act of 1992 prohibits gambling on sports in most states, and the Interstate Wire Act of 1961 has been interpreted to prohibit online betting. In some states, gambling is a misdemeanor. However, in others, while gambling is generally prohibited, gambling at work may be considered an exception under certain circumstances. Nevertheless, it’s expected that millions of workers will participate in office pools related to the Super Bowl.

Employers may want to take this opportunity to clearly delineate their policies and communicate these policies to employees. To eliminate any confusion, employers may want to relay the state law on gambling to employees and define exactly which acts are covered under the law.

2. A widespread case of the Mondays.

If your Super Bowl party goes as it should, you and your guests might have a little more Monday angst than usual. The 2016 Workforce Institute study suggested that one in 10 workers (approximately 16.5 million U.S. employees) were expected to miss work on the Monday after Super Bowl 50 and that almost 10.5 million employees had requested that Monday off.

Is there anything employers can do to curb employees’ absences on Monday? Two initial considerations when managing employee sick time requests are: (1) whether the employee has sick time available; and (2) whether the employer’s sick time policies are enforced uniformly and all employees are treated equally in terms of their requests.

Employers might be able to decrease the likelihood of employees failing to come in on Monday and create morale-building opportunities by taking some proactive steps. For example, an employer could plan a celebratory work event on the Monday after Super Bowl Sunday. Employees will be itching to talk about the ins and outs of the game and the hot new commercials anyway—they may as well do it around a football-shaped cake while wearing their favorite team’s jersey.

3. Online instant replays.

Employees are not just watching games online; they are also streaming them on social media platforms. Last year, Twitter started carrying live streams of professional football games both on its site and on its app. In 2015, Facebook launched a Super Bowl news feed consisting of a live feed, photos and videos from media outlets, posts from users’ “friends,” live scores, and other ways to interact within the Facebook community. As employees watch games online and on apps, in addition to using the company’s email to communicate, companies might experience performance degradation in their computer networks.

This is a good time to remind employees of your company’s Internet use policies as well as any policy on the appropriate use of company-issued devices such as smartphones and tablets. Whichever course employers take, they should be sure to enforce their technology policies uniformly.

With a little foresight and planning—and a few carefully implemented policies—employers can avoid the blitz when it comes to the Super Bowl and workplace productivity.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.