Category: Sports

The NCAA will Temporarily Allow Student-Athletes to Raise Money for COVID-19 – Here’s How They Can Protect Themselves

The NCAA will allow college student-athletes to raise money for COVID-19 related causes after some controversy over a fundraiser arranged by Clemson quarterback Trevor Lawrence. Lawrence and his girlfriend started a GoFundMe to raise money for food for those struggling during the pandemic. According to ESPN, Clemson compliance officials asked Lawrence to stop the fundraiser, believing it was violating NCAA policy around an athlete profiting from the use of their name, image and likeness. However, the NCAA released a statement that they would allow Lawrence and other student athletes to raise money related to the COVID-19 pandemic.

These types of issues may soon be a thing of the past. This month, the NCAA’s Federal and State Legislation Working Group is expected to report their recommendations on how to allow athletes to profit for the use of their name, image and likeness.

This month, the NCAA Board of Governors is receiving updated recommendations from their Federal and State Legislation Working Group after they ruled in Oct. 2019 that they would allow student athletes the opportunity to profit for the use of their name, image and likeness. The three divisions of the NCAA are analyzing their rules, which they must complete by January 2021.

While we wait for details, there are important topics college student-athletes should begin to understand. One critical legal issue that college student-athletes need to consider is the importance of protecting their potential intellectual property early in their athletic career. Oftentimes, college student-athletes wait to focus on their image and intellectual property until they have declared their entrance into a professional league’s draft. It is during this time period when athletes begin thinking about entering into licensing deals, developing their brand, and preparing trademarks for the commercialization of their brand and image. With the pending changes to the NCAA rules, this timeline moves up and college student-athletes and their families need to start focusing on the following intellectual property issues.

Brand and Image

Given the new stance taken by the NCAA, the development, management and protection of an athlete’s brand will be more important than ever before. With the explosion of social media over the last decade, athletes are more aware of the brand they present to the world; however, the question these athletes need to analyze is: how do they want the public to view them? The outcome of this analysis will help them understand what types of marketing and endorsement deals should they enter into and for how long.

Understanding some of the typical provisions of an endorsement deal are critical for the protection of an athlete’s brand. Does the agreement establish category exclusivity? How long is the term? What is required of the athlete? How does a particular sponsorship or endorsement deal align, or not align, with their college’s sponsorship deals? If a conflict exists, how is it addressed? All of these questions should be addressed in the written marketing agreement. Further, an athlete should to seek advice on ensuring that these provisions are addressed, and addressed in a way that protects the athlete.

Another question that athletes will have to address is whether they are being fairly compensated for the use of their name, image and likeness. Ultimately, the market will determine what it is willing to pay a college student athlete. The metrics for making this decision already exist through looking at social media followers, name recognition, etc. The more of a celebrity an athlete is, the more they will be able to demand in endorsement deal compensation.

Trademarks

Another aspect of the name, image and likeness discussion that will impact college student-athletes is the need to protect their intellectual property. As athletes build their brand, trademark protection might become a necessity. A trademark can range from a players own name, nickname, brand name or logo, or even slogan or phrase that they have used (e.g. NBA’s Kawhi Leonard applying for the trademark “What It Do Baby” after gaining serious popularity in memes and social media postings following the 2019 NBA Finals). A trademark filing will be important, for those student-athletes who have a name, attribute or phrase that they want to commercialize (e.g. NBA’s Anthony Davis’ registered trademark for “Fear The Brow” playing on the nickname of his eyebrows).

When a student-athlete protects his or her brand by filing for a trademark registration, it allows the athlete to stop anyone else from using their intellectual property without their permission. Additionally, thinking about a potential company that wants to use a student-athlete as an endorser, the company will need to ensure it has an appropriate license to use that student-athlete’s intellectual property in its marketing and promotions. In order to protect itself, such a company will likely require that the athlete has protected their own intellectual property.

Domain Names

One additional area of intellectual property protection that college student-athletes (even high school athletes) should understand is domain name registration. An athlete can reserve their own domain name for a minimal amount, typically $15 – $40 per year. However, if they wait too long, they may find the domain name was reserved by someone else.

Some athletes have had the domain name for their own name reserved by someone else and when trying to secure that name, the original owner tries to sell it to the athlete for sometimes tens of thousands of dollars. In 2009, Chris Bosh brought a lawsuit and won in federal court against an organization that had reserved www.ChrisBosh.com and many other athlete domain names.

The Anti-cybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), creates a cause of action for someone registering or using a domain name confusingly similar to a trademark or personal name. The law was established to try and stop “cyber squatters” who register domain names solely with the intention of selling the domain name to the person whose name it references at a profit.

While the law provides this protection, an athlete has to determine whether filing a lawsuit is worth the time and expense to get the domain name back. Oftentimes an athlete will simply use an alternate domain name, an uncommon top-level domain or create their own top-level domain. The lesson here is that athletes, at all levels, should register their name as their domain name in order to avoid these challenges.

Conclusion

While athletes like Trevor Lawrence have the temporary approval to fundraise during the COVID-19 crisis, profiting or from their name, image and likeness will become a reality for all student athletes over the next year. Athletes must protect themselves and ensure they take the appropriate precautions to protect their intellectual property.

© 2020 Porter Wright Morris & Arthur LLP All Rights Reserved.

High School Female Athletes Fail to Score on Class Certification

The U.S. District Court for the District of Hawaii recently denied female student-athletes’ motion for class certification under Title IX even though it rejected the defendants’ attacks on mootness and standing as well as Rule 23(a)’s requirements for commonality, typicality, and adequacy. Instead, the court found that the proposed class failed to satisfy the numerosity requirement that joinder would be impracticable.

The underlying case centered on Title IX allegations by female athletes at James Campbell High against defendants Hawaii State Department of Education and the Oahu Interscholastic Association. The athletes claimed that the defendants violated Title IX by failing to take remedial actions to meet Title IX’s anti-discrimination provisions and failed to provide Campbell female athletes with equivalent, athletic-participation opportunities. The athletes’ motion proposed the following class: “All present and future James Campbell High School female students and potential students who participate, seek to participate, and/or were deterred from participating in athletics at Campbell.” The plaintiffs alleged that the defendants’ records showed 366 Campbell female student-athletes in the 2018–2019 school year alone.

The court first addressed the issue of mootness after the defendants argued that two of the named plaintiffs had already graduated. The court found, however, that those athletes’ claims fit under the “inherently transitory” exception to mootness, given the necessarily finite duration of a high school student’s time as a student-athlete and the potential for repetition of the claims from similarly situated students.

The court next addressed the defendants’ argument that the named plaintiff — a ninth-grade water polo player — did not have standing because the water polo season had not yet begun at the time the motion was filed, and thus she had yet to experience the alleged discriminatory conduct. The court found that the defendants’ argument was erroneously narrow-focused and that the ninth-grade athletes had allegedly experienced discriminatory events generally suffered by the female student-athlete populations, which would apply even if a particular student’s athletic season had not yet started. Specifically, those student-athletes are forced to make plans around a discriminatory sports schedule or are exposed to a lack of publicity for female athletics programs, which are the types of harm that Title IX was implemented to prevent and remedy.

The court then turned its focus to Rule 23(a)’s requirements. While the court found that the athletes satisfied the commonality, typicality, and adequacy requirements, the court’s decision ultimately depended on the athletes’ inability to satisfy the numerosity requirement. Although the defendants did not appear to challenge numerosity, including that the class exceeded 300 members, the court found that the athletes had failed to demonstrate that joinder was impracticable and that the future members of the proposed class were reasonably identifiable. The court observed that the proposed class members were limited to the female population from a single high school and were geographically tied to one area of Hawaii and identifiable through school and athletic records. Thus, the court held that joinder of the current students within the class in a single lawsuit was not impracticable. The court also found that, with regard to the future and potential students, those subgroups were not reasonably identifiable and, thus, would not be considered in any numerosity determination.

As uncommon as it may be for a class of more than 300 members to fail the numerosity requirement of Rule 23(a), any case can offer distinct circumstances that allow a court to reject an otherwise presumed, accepted argument. The unique geographic facts here were sufficient for this court to reject certification. Ultimately, the facts always matter.

A.B. v. Haw. State Dep’t of Educ., Civ. No. 1:18-cv-00477 (D. Haw. Dec. 31, 2019).

©2011-2020 Carlton Fields, P.A.

For more on Title IX issues, see the National Law Review Public Education & Services section.

CNIPA Announces Registration of Beijing 2022 Winter Olympics Mascots and Logos

The China National Intellectual Property Administration (CNIPA) announced seven Beijing 2022 Winter Olympics and Paralympics symbols including mascots and names on January 15, 2020.  Per the Regulations on the Protection of the Olympic Symbols, the term of protection is 10 years subject to renewal terms of 10 years each.  Fines for unlicensed commercial of the symbols are up to 250,000 RMB (about $36,000 USD) or up to 5 times illegal revenue.

The 7 symbols are:

Beijing 2022 Winter Olympics Mascot

1. A000020 The Olympic Mascot

2. A000021 The Chinese characters 冰墩墩 (Bing dun dun; meaning approximately ice pier)

3. A000022 A Romanization of A000021: Bing Dwen Dwen.

Beijing 2022 Paralympic Mascot

4. A000023 The Paralympic Mascot

5. A000024 The Chinese characters 雪容融 (Xue Rongrong)

6. A000025 A Romanization of A000024: Shuey Rhon Rhon

Beijing 2022 Winter Olympics Volunteer logo

7. A000026 The 2022 Olympic and Paralympic Volunteer Logo

The 2022 Winter Olympics will take place from February 4 to February 20, 2022 in Beijing, China and Zhangjiakou, China. Beijing will be the first city to host both winter and summer Olympics.

© 2020 Schwegman, Lundberg & Woessner, P.A. All Rights Reserved.

For more on trademark registration, see the National Law Review Intellectual Property Law page.

A Slam-Dunk? Sweeping and Dramatic Changes may be Coming to the NBA

Adrian Wojnarowski and Zach Lowe dropped, what is known as a Woj Bomb, last week as they announced that the NBA is in high level discussions with the NBPA (the National Basketball Players Association) and broadcasting partners concerning “sweeping and dramatic changes to the league calendar that include a reseeding of the four conference finalists, a 30 team in-season tournament, and a postseason play-in”.

Reasons for change

There are a number of reasons why the NBA may consider changing the league format.

A culture of ‘load management’ has emerged in the league, which involves players opting to rest for certain matches, especially where teams play back-to-back games. Players are resting in the regular season so that they are fresh and healthy for the playoffs. The intense regular season takes its toll on players with a commitment of 82 games between October and April coupled with the demands of travel across North America.

TV viewing figures have dropped this season – broadcast audiences have declined by 18% compared to this point last season.

The Western Conference is also “stacked” when compared to the Eastern Conference. Teams in the West are perceived to have a large number of title contenders whereas the East is considered to have very few title contenders. The current format splits the 30 NBA teams into two conferences of 15 teams: East and West. At the end of the regular season, the top eight teams in each Conference qualify for the playoffs, where they compete against other teams within their Conference. The winners of the respective Conference playoffs meet in the NBA Finals. There is growing pressure on the NBA to change this format so the 16 best teams across the NBA compete in the playoffs, potentially skewing the playoffs so that more Western Conference teams qualify.

Proposed changes

 The proposed changes include:

  • shortening the regular season from 82 games to 78 games;

  • an in-season tournament;

  • play-in games for the playoffs; and

  • re-seeding the final four.

basketball hoopIn-season tournament: the NBA is separated into a number of divisions based on location. Teams will play a round-robin schedule against teams within their division and the top three teams from each division will advance to the quarterfinals. Reports indicate this may take place in December, possibly in Las Vegas. The NBA could incentivise teams to compete in this additional tournament by giving better draft odds to the winner or by counting victories in the tournament towards a team’s regular season record. Whilst this may encourage teams to compete seriously in the tournament, it may not encourage the players. James Harden and PJ Tucker, of the Houston Rockets, criticised the tournament with Tucker stating, “you fight for an NBA championship. I don’t want to play for anything else.” Additional financial incentives for players may be required.

Play-in games for the playoffs: this proposal involves two four-team tournaments featuring the seventh, eighth, ninth and 10th seeds in each Conference who would compete for the last two playoff spots available in each Conference.

Re-seeding the final four: this would involve re-seeding the top four teams left in the playoffs at the point they reach the Conference finals. The top seeded team would play against the lowest seeded team of the final four, regardless of Conference, whilst the teams with the second and third best records in the regular season would compete against one another. So the NBA Finals could include two teams from one Conference. This would appear to be an avenue to ensure the two best teams compete in the NBA Finals.

Implementing the changes

The NBA intends to implement these changes for the 2021-22 season, which will mark the NBA’s 75th anniversary. These changes will require approval from the Board of Governors and amendments to the current Collective Bargaining Agreement (CBA) between the league and the players. The CBA is due to run until the 2023-24 season, with an opt-out provision in its final year. Amending the CBA will pose a difficult challenge for the NBA, requiring significant negotiation with the NBPA (which represents the players’ interests). The CBA sets out numerous rules that govern the format and mechanics of the regular season and the revenue split between the league and its players, amongst other things. Its renegotiation is crucial in order to process and validate the proposed changes.

However, amending the existing CBA will present a number of challenges. The CBA is a mutual agreement, which requires compromise from both sides of the table. The NBPA will ensure that any changes to the league format confer certain rights and benefits on its players and that such changes are not detrimental to the interests of NBA athletes.

The NBA will also need to negotiate existing arrangements it has with sponsors and broadcasting partners. The changes present sponsorship and revenue-generating opportunities for the league. Although regular season games are likely to decrease in number (which will need to be reflected in existing agreements with broadcasters and partners), the introduction of an in-season tournament will likely generate interest from current and new fans. Similarly, the play-in games to secure the seventh and eighth playoff spots in each Conference should create an extra buzz at the end of the regular season.

Comment

Under Adam Silver’s stewardship, the NBA has progressed year on year financially and in terms of popularity across the world. Silver is certainly not resting on his laurels and the proposed innovations should be welcomed but there are significant logistical hurdles to overcome before they are implemented.

© Copyright 2019 Squire Patton Boggs (US) LLP

For more in NBA and other sports league news, check out the National Law Review Entertainment, Art & Sports Law page.

Three NBA Players Suspended for Drug Violations

The NBA commenced its new season on 22 October with the battle for Los Angeles, as Kawhi’s Clippers edged the Lakers this time. But, less than three weeks into the new season, attention has turned to off-the-court matters; three NBA players who were active on rosters last season have been suspended for testing positive for banned substances.

Wilson Chandler of the Brooklyn Nets tested positive for Ipamorelin, a growth hormone during the summer. The number 1 pick of last year’s draft, DeAndre Ayton tested positive for a diuretic whilst the Atlanta Hawks’ John Collins tested positive for Growth Hormone Releasing Peptide-2, a synthetic drug found to increase appetite and food intake.

The three players have been suspended without pay for 25 games for violations of the NBA/National Basketball’s Player Association (NBPA) Anti-Drug Program.

The terms governing the Anti-Drug Program are set out in the NBA’s Collective Bargaining Agreement (CBA), entered into between the NBA and the NBPA. The NBPA negotiates the terms of the CBA on behalf of NBA players. The CBA regulates a wide variety of matters relevant to the operation of the NBA.

Amongst other things, the CBA governs:

  • the share of “Basketball Related Income” between the players and the league;
  • the team salary cap and tax structures;
  • rules on player contract terms, including salaries and duration;
  • free agency – the process by which out-of-contract players can engage in contract discussions with other NBA teams;
  • rules on trading players; and
  • the aforementioned Anti-Drug Program.

The current CBA was entered into in 2017, and is due to run until the end of the 2023-24 season. The terms of the Anti-Drug Program are set out in Article XXXIII of the current CBA. The new CBA increased penalties for positive tests for performance-enhancing drugs from 20 games to 25 games for first violations. There was also an increase in suspension periods for second violations from 45 games to 55 games. A third positive test continues to result in the player’s expulsion from the league.

Section 9 of the Anti-Drug Program provides that players who have been found to have taken performance-enhancing drugs may have penalties reduced or rescinded through arbitration. Section 19 provides a defence if the player can present:

clear and convincing evidence that he bears no significant fault or negligence for the presence of the drugs in his test result.

This means the player must not have known or suspected, and could not have reasonably known or suspected, that he was taking, ingesting, applying or using the banned substance. Further, the player must establish how the substance entered his system. This is a high evidential bar to meet.

Nevertheless, Ayton is appealing the findings. Diuretics can be used to help the body remove evidence of other banned substances. Ayton’s follow-up tests revealed no traces of other banned substances. The NBPA is preparing to take the case to arbitration, invoking the section 19 ‘unintentional ingestion’ defence, to appeal the decision. Collins intends to appeal the test results on the same basis, claiming that the offending substance derived from a supplement that “unbeknownst to me, had been contaminated with an illegal component”.

An impartial arbitrator will now review the arguments raised by the players and sustain, reduce or rescind the suspensions.

Performance-enhancing drug suspensions are relatively rare in the NBA. ESPN analyst Bobby Marks described the recent spate of suspensions as “unprecedented”. It will be interesting to see how the arbitration proceedings unfold and whether the penalties are changed.

© Copyright 2019 Squire Patton Boggs (US) LLP

For more on the NBA and related news, see the National Law Review Entertainment, Art & Sports law page.

U.S. Women’s National Soccer Team Wins Class Certification in Equal Pay Fight

A federal court has ruled that the U.S. Women’s National Soccer Team’s (USWNT) equal pay claims under Title VII of the 1964 Civil Rights Act can move forward as a class action, as opposed to myriad individual cases.

As part of its decision, the court also allowed the USWNT’s Equal Pay Act (EPA) case to proceed as a collective action.

Factual background

Earlier this year, the USWNT players filed a complaint in federal court against their employer, the USSF. The lawsuit alleges that USSF violated the EPA and Title VII by, among other things, paying the women’s team less than the men’s team for doing equal work.

Equal Pay Act and Title VII Legal Frameworks To Prove Wage Discrimination

To win their EPA case, the USWNT must first prove a prima facie case under the EPA. The team can do so by showing:

  • the employer pays different wages to employees of the opposite sex;
  • the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and
  • the jobs are performed under similar working conditions

If the USWNT establishes a prima facie case, the burden shifts to the USSF to establish one of four affirmative defenses: (1) that the pay difference is due to a seniority system, (2) a merit system, (3) a system that measures quantity or quality of production, or (4) “any factor other than sex.”

If the USSF makes this showing, the USWNT can still win if it shows that the USSF’s justification for the pay disparity was a pretext.

Title VII also makes it illegal to discriminate based on sex in pay and benefits, which is why the USWNT is also suing USSF under this law. Title VII prohibits discrimination in compensation and other terms and conditions of employment, so it has a broader reach than the EPA (and also outlaws, among other things, discrimination based on race, religion, and other protected characteristics).

The USWNT Argues That, Despite Their Better Results, They Are Paid Less For Equal Work

The USWNT’s complaint contains evidence and statistics supporting their argument that the USSF has unlawfully paid them less than the men’s soccer team. For example, the complaint alleges:

The USWNT is the preeminent women’s soccer team in the world and has contributed to the finances and reputation of the USSF at least as much as the USMNT. The complaint lists three World Cup titles (which is now four titles), four Olympic gold medals, and asserts that the USSF revised its projected earnings for 2016 from a net loss of $429,929, to a net gain of $17.7 million, because of the successes of the USWNT, particularly at the 2015 World Cup.

The USSF pays the women’s team less than the men’s team, despite requiring players on both teams to perform the same job duties that require equal skill, effort and responsibilities performed under similar working conditions. The complaint states that the women’s team players spend more time practicing, playing, and promoting the USSF than the men’s team does; indeed, from 2015 to 2018, the USWNT played in nineteen more games than the USMNT.

In addition, the complaint asserts that from 2013 to 2016, the USSF paid USWNT players $15,000 for trying out and making the World Cup team. Yet the USSF paid USMNT players $55,000 for making the team.

Similarly, in 2014, the USSF paid the USMNT more than $5.3 million in bonuses after their World Cup loss in the Round of 16. While in 2015, the USSF paid the USWNT only $1,725,000 in bonuses after they won the World Cup.

Finally, the USWNT received less favorable training and travel conditions, as well as reduced marketing for their games. For example, in 2017, USSF chartered private planes for USMNT travel at least seventeen times, but zero times for the USWNT.

USSF’s Potential Defenses

To rebut these claims, the USSF might argue that its legitimate, non-discriminatory reason for paying USWNT players less than USMNT players is that the men’s team generates more revenue for USSF than the women’s team, which accounts for the difference in pay.  The USSF denies the allegations in the USWNT’s complaint.

According to a report, however, this may not be accurate. That is, between 2016 and 2018, USWNT games generated about $50.8 million, compared with $49.9 million for USMNT games.

Currently, player compensation is not directly linked to money generated by the team in ticket sales, brand deals, and other promotional activity. The USWNT’s complaint refers to 2016 negotiations with the USSF in which the USWNT’s union offered to enter a revenue-sharing model. Under this model, player compensation would increase in years in which the USSF derived more revenue from USWNT activities and decrease in years when it earned less from USWNT’s activities. USSF rejected the offer, according to the complaint.

© 2019 Zuckerman Law

ARTICLE BY Eric Bachman of Zuckerman Law.
For more employment and other litigation outcomes, see the National Law Review Litigation & Trial Practice law page.

National Football Players Association Joins Forces with the National College Players Association in Effort to Market Name, Image and Likeness Rights for Student Athletes

The National Football League Players Association (NFLPA) has announced a partnership with the National College Players Association (NCPA) to jointly explore the marketing and licensing of all college athletes and how they can be paid for the use of their name, image and likeness through the NFLPA’s licensing affiliated entity, REP Worldwide.

Seeking to maximize the value of California’s Fair Pay To Play Act, recently signed into law by California Governor Gavin Newsom, which has empowered California student-athletes to seek financial opportunities relating to the marketing of their name, image and likeness beginning in January 2023, NFLPA Executive Director DeMaurice Smith stated, “We are proud to partner with the NCPA and offer the services of REP Worldwide to offer all athletes the same world class service that NFL players receive. For the first time, a legislature has indicated that these students have rights just like everyone else and we support this continuing movement towards fairness. Regarding the NFLPA’s new partnership with the NCPA, Smith added, the new relationship

“will explore opportunities for merchandise, gaming and other officially licensed products. We will also review how recent developments impact television broadcast revenues in pursuit of fairness.”

Ramogi Huma, former UCLA Bruins linebacker and current NCPA Executive Director, commented as well. “I am grateful that college athletes will finally have representation that cares only about fairness for the athletes.” He continued, “We are on the right side of history and invite the NCAA’s commercial partners to join us. It’s time to embrace a new beginning.”

Despite the announcement of the partnership, the potential relationship between these two entities and college athletes is still unclear.

While representatives of the NFLPA and NCPA continue to express their future role as one of “representation,” college athletes as a group are not viewed as employees and are neither unionized nor legally recognized as a collective group. Neither the National Labor Relations Act nor the Fair Labor Standards Act recognizes student-athletes within their definition of employee.

How and if, the NFLPA, Rep Worldwide and the NCPA can represent all college athletes and serve as their collective voice in exploring group marketing opportunities is a question that remains to be answered.

Jackson Lewis P.C. © 2019

For more on sports representation, see the National Law Review Entertainment, Art & Sports law page.

UKIPO Knocks Undefeated Reds off Their Perch: The Liverpool Trademark and Lessons for Brand Owners

To the interest of many a scouser and football fan alike, Liverpool Football Club’s attempt to register as a UK trademark LIVERPOOL has been rejected by the UKIPO on the grounds that the word is of “geographical significance” to the city. Liverpool FC had filed its application in regards to various goods in relation to football and the filing had attracted significant public attention.

Other English football clubs (Everton, Chelsea and Tottenham) have managed to register several trade marks for each of their respective area names. In addition Southampton Football Club has managed to register SOUTHAMPTON as an EU trade mark. As a result, it is not surprising that Liverpool FC would seek to register a similar mark to help protect its valuable brand.

However, as a result of the filing the club received significant backlash from the people of Liverpool, including their own supporters, and – probably in a related move – Liverpool FC has said that it does not plan to appeal the refusal and it has withdrawn the application. An additional trade mark application for LIVERPOOL with different claims has also been withdrawn.

The matter presents a great case study for brand owners on balancing the need to protect their brand whilst being considerate of the potential adverse PR that will come with the application for certain trade marks.

Innovation in protecting your brand

Brand owners certainly need to adopt innovative tactics when looking to fight counterfeiters and to protect their brand and Liverpool FC has shown a keen eye to identifying new brand assets.

Liverpool FC may have been unsuccessful with this application but they recently successfully applied to trade mark the phrase “LET’S TALK ABOUT SIX BABY” in the UK. The saying was coined by Reds Manager Jürgen Klopp when he ended his run of six successive final defeats and claimed a first trophy as Liverpool FC’s manager with the UEFA Champions League triumph earlier this year. No doubt will form an important part of the club’s merchandise moving forward and is a cunning registration.

Consideration of PR implications

However, all innovative steps in brand protection must be considered in their context.

Liverpool FC argued that the trade mark application was purely “in the context of football products and services” and to stop counterfeiters from benefiting from the sale of counterfeit Liverpool FC products. However, this does raise the question as to why the existing portfolio of club name, mottos and logos would not be sufficient to defeat the majority of inauthentic products that are currently on the market.

In addition, the vitriol with which the application was greeted raises further queries concerning the club’s decision to apply to register the trade mark. The Liverpool FC supporters group ‘Spirit of Shankly’ called the UKIPO’s rejection of the application a “victory for common sense” and declared that the word LIVERPOOL belongs to the “city of Liverpool”. Supporters also took the decision to wear non-official items of clothing carrying the club’s name and logo during a match against Newcastle in protest.

As a result, the case highlights the perils brand owners face when pursuing a robust approach to protecting their brand, particularly when looking to register terms as trade marks with cultural significance. Applicants must bear in mind the negative PR that can accompany any new filing strategy.

Copyright 2019 K & L Gates

ARTICLE BY Simon Casinader and Niall J. Lavery of K&L Gates.
For more trademark law, see the National Law Review Intellectual Property law page.

California Senate Bill 206-The Immediate National Impact

While California Governor Gavin Newsom considers placing his signature on Senate Bill 206 and making his state the first state in the country to allow college student-athletes to market and profit from their name, image and likeness without affecting their student-athlete status, the legislation is already having an impact nationally. In response to the unanimous support for Senate Bill 206,

two South Carolina State Legislators intend to make South Carolina the second state to recognize the rights of student-athletes to profit from their name, image and likeness.

South Carolina State Senator Marlon Kimpson and Representative Justin Bamberg have announced that they intend to introduce a bill similar to California SB 206 when the South Carolina General Assembly reconvenes in January. Their proposal would allow the state’s largest schools to pay $5,000 a year in stipends to athletes in profitable sports like football and basketball. It would also allow other student-athletes who would be eligible to receive athletic scholarships benefits, but not the stipend, an opportunity to earn money from potential sponsorships and sales of their personal autograph.

In response to questions about introducing his proposed legislation, Senator Kimpson said, “The legislation passed in California is a sign of the time. The NCAA is not an amateur sports league. This is a multibillion dollar sports empire where everyone involved makes money except the players on the field who earn it.”

In an interesting twist to current law, Senator Kimpson also said his bill would compensate players for their hourly work, allow them to make money from using their likeness to sell merchandise, and establish a fund to assist players who suffer from sports-related injuries later in life.

Despite California’s success is achieving unanimous support from its Legislature for its bill, it is thought that South Carolina Legislators will voice strong opposition to Kimpson and Bamberg’s bill. Prior efforts put forth by South Carolina legislators, including legislation introduced by Senator Kimpson in 2015, to allow student-athletes to receive compensation beyond their athletic scholarships have failed to gain support.

University of South Carolina Athletic Director Ray Tanner has already expressed opposition stating that any such proposal “gives him angst.’ In addition, Clemson Head Football Coach Dabo Swinney, who recently signed a multi-year contract extension making him the highest paid college football in the nation, has already publically stated that if college players are paid, “I’ll go do something else because there’s enough entitlement in this world as it is.”

Despite anticipated opposition, South Carolina Senate Education Committee Chairman Greg Hembree, the head of the committee that will initially consider the bill when it is introduced, said he is open to the idea, comparing the NCAA student-athlete to Olympic participants and their rights to benefit from their name, image and likeness.

Representative Bamberg expressed his feelings as to why he believes the bill is an important measure for South Carolina to consider. “Our job is to take care of our citizens, our schools, our players. If another state wants to continue the proverbial football farm, that’s their problem.” He added,

That extra money — even just a few thousand dollars a semester — could go a long way for underprivileged athletes and their families.

Jackson Lewis P.C. © 2019

Running Backs NLRB Petition Seeks To “Stiff Arm” NFL Players Association With New Bargaining Unit

An upstart labor organization, the International Brotherhood of Professional Running Backs (IBPRB), has filed a petition with Region 13, the Chicago office of the National Labor Relations Board (NLRB), seeking to form a separate union for the National Football League’s running backs. The unit clarification petition, NLRB Case No. 13-UC-246227, seeks to sever and create a separate running back bargaining unit from the National Football League Players Association (NFLPA), which has historically represented all NFL players regardless of position.

A unit clarification or “UC” petition generally is used to resolve disputes regarding the unit placement of disputed positions, typically newly created positions, in a process referred to as an accretion. However, a UC petition also can be used as a method to affect the subdivision of an existing bargaining unit, as the IBPRB seeks to do here. A severance effort is most often undertaken when some changed circumstances have occurred that have negated any “community of interest” (similarity of terms and conditions of employment) that may have previously existed among the bargaining unit and raise uncertainty regarding the continued appropriateness of the existing bargaining unit.

The petition filed by the IBPRB cited “the unique career structures” of running backs as its basis for the loss of the necessary community of interest between the running backs and the other NFL player members of the NFLPA.

For a successful UC petition, the petitioner must show “recent, substantial changes in their operations, or that other compelling circumstances exist which would warrant disregarding the long-existing bargaining history” of the parties. In Batesville Casket Company, Inc., 283 NLRB 795 (1987), the NLRB relied upon the standard established in Rock-Tenn Co., 274 NLRB 772 (1985), and dismissed a UC petition because the employer-petitioners did not show any “recent, substantial changes in their operations, or that other compelling circumstances which would warrant disregarding the long-existing bargaining history” of the parties.

It may be difficult for the IBPRB to meet the “recent, substantial changes” test.

While the role of a running back has evolved over recent years as the passing game has become the dominant force in offensive schemes, the basic mission of the position– to carry the ball, catch passes, and block – is unchanged. Whatever may be the unique career structures to which the IBPRB referred in the petition (the average career of an NFL running back is 2.5 years compared to 3.3 years for all positions), it may be difficult for the union to show that there have been “recent, substantial changes” in the running back position to satisfy the Batesville Casket threshold for unit clarification.

In representation cases such as this, the regional office of the NLRB conducts an initial investigation and holds a hearing if appropriate. A notice of hearing has not yet been issued. The NLRB may still be in a huddle.

Jackson Lewis P.C. © 2019

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