Category: Sports

Congress Scrutinizes Iran, as the Deadline for a Final Deal Approaches; Ceasefire Violations in Ukraine Continue; Congress to Hold Hearings on ISIL; The House is Expected to Turn to Trade Measures At Some Point in June

Vice President Mourns Death of Son

Late on Saturday, 30 May, the White House informed the public that Vice President Joseph Biden’s son, Joseph R. “Beau” Biden III , passed away after a two-year battle with brain cancer. He was 46 years old.

Iran

Despite media reports last week that yet another delay may be necessary, the State Department denied another extension may be needed beyond 30 June to conclude a final deal with Iran regarding its nuclear facilities. Under Secretary of State for Political Affairs Wendy Sherman, who leads the U.S. negotiators in the discussions with Iran, announced her resignation last Wednesday. She will continue to lead the U.S. negotiators in the discussions with Iran until a final deal is reached.

Secretary of State John Kerry is returning to Washington early, after concluding a round of talks with Iran and after breaking his leg during a bicycle ride over the weekend in Europe.

On Wednesday 3 June, the Senate Foreign Relations Committee is expected to hold a hearing titled, “Implications Of The Iran Nuclear Agreement For U.S. Policy In The Middle East.” The day before, the Committee will receive a closed briefing on Iran’s nuclear program.

On Tuesday, 2 June, the House Foreign Affairs Committee will hold a hearing titled, “Americans Detained In Iran.”

Russia/Ukraine Crisis

Last Thursday, the State Department criticized reports that the Russian government plans to classify military deaths during special operations in peacetime. Spokesperson Jeff Rathke alleged that the law is a misplaced effort to cover up Russian active duty military personnel fighting and dying in eastern Ukraine, and further serves as a blow to freedom of the press. The United States continues to urge Russia to fully implement the Minsk agreements, warning that otherwise “the costs will continue to rise.” While the media is reporting on a Russian military build-up along eastern Ukraine’s border, the State Department declined to confirm whether the Obama Administration believes that Russia is preparing for a new offensive against Ukraine.

On Wednesday, 27 May, Vice President Biden asserted that U.S. sanctions on Russia must and will remain in place until the Minsk agreements are fully implemented. He expressed hope that European leaders will renew the existing sanctions when they meet at the end of June until the Minsk agreements are fully implemented. He emphasized that in the interim, the United States will continue to expose the truth about Russia’s actions and will coordinate closely with its partners to ensure that further Russian aggression is met with further costs if Russia again moves beyond the line of contact.

Also last Wednesday, NATO Secretary General Jens Stoltenberg said that he was deeply troubled by Russia’s escalating rhetoric about its nuclear weapons, as well as increased flights by its nuclear-capable bombers. The Secretary General said that if Russia places nuclear weapons in Kaliningrad, near Poland, or in Crimea, the balance of security in Europe would fundamentally change. President Barack Obama met with Secretary General Stoltenberg last Tuesday and discussed Russia’s increasingly aggressive posture in eastern Ukraine, among other topics.

FIFA

One day after Senators Robert Menendez (D-New Jersey) and John McCain (R-Arizona) sent a letter to the International Federation of Association Football (“FIFA”) Congress encouraging the international soccer governing body reconsider granting a fifth term to President Sepp Blatter, Swiss law enforcement agents arrested top FIFA authorities last week in connection with a U.S. Department of Justice investigation. Nine FIFA officials and several corporate executives have been indicted in New York on charges involving a racketeering conspiracy, as well as wire fraud and money laundering. Much of the attention is focused on Qatar being named host of the 2022 World Cup, but Senators Menendez and McCain were critical of Mr. Blatter for his support of Russia’s successful bid for the event in 2018.

Last Thursday, State Department Spokesperson Rathke denied that a recent U.S. Department of Justice investigation against FIFA leadership is an attempt by the US to influence the organization’s internal processes, including its selection of Russia as host of the 2018 World Cup. He emphasized that the investigation and its associated indictments are focused on addressing corruption allegations within the organization. While more arrests are expected, Mr. Blatter was re-elected – reportedly without U.S. support – on Friday.

Syria/Iraq Crisis

The U.S. military has started training Syrian opposition fighters in Turkey to combat ISIL, an expected expansion of the program first launched in Jordan several weeks ago.  Secretary Kerry is expected to join by teleconference a meeting in Paris this Tuesday of Foreign Ministers who are part of the coalition against ISIL.

On Wednesday, 3 June, the House Foreign Affairs Subcommittee on the Middle East will hold a hearing titled, “U.S. Policy Towards ISIL After Terror Group Seizes Ramadi and Palmyra.”

On Tuesday, 2 June, the House Foreign Affairs Terrorism Subcommittee will hold a hearing to review the State Department’s Counterterrorism Bureau.

Africa

On Thursday, 4 June, the Senate Foreign Relations Subcommittee on Africa will hold a hearing entitled, “Security Assistance in Africa.”

On Wednesday, 3 June, the House Foreign Affairs Africa Subcommittee will hold a hearing titled, “The Future of U.S.-Zimbabwe Relations.”

South China Sea

At the International Institute for Strategic Studies Summit in Singapore over the weekend, Secretary of Defense Ashton Carter said about China’s activities in the South China Sea:

“Turning an underwater rock into an airfield simply does not afford the rights of sovereignty or permit restrictions on international air or maritime transit.”

House June Agenda – Trade Measures Ahead

House Majority Leader Kevin McCarthy (R-California) released a Memorandum last Friday outlining his chamber’s June agenda. While the agenda does not definitively state when, the House is expected to consider: (1) Trade Promotion Authority (TPA); (2) Trade Adjustment Assistance (TAA); (3) a trade preferences measure (AGOA/GSP/Haiti program); and (4) a customs measure.

House Majority Leader McCarthy notes in the “Additional Items” section of the Memorandum:

“To preserve American interests abroad, grow our economy, and increase commerce, the House will likely consider H.R. 1314, The Trade Priorities and Accountability Act of 2015 (as amended by the Senate), which reauthorizes Trade Promotion Authority (TPA) and strengthens Congress’ role in trade policy. When TPA is considered, the House will also consider the Trade Preferences Extension Act of 2015 and the Trade Facilitation and Trade Enforcement Act of 2015.” (Emphasis added).

Customs Measure

In a letter dated 22 May to Senate Finance Committee Chairman Orrin Hatch (R-Utah) and Ranking Member Ron Wyden (D-Oregon), House Ways and Means Committee Chairman Paul Ryan (R-Wisconsin) said he intends to include four amendments in the House version of a customs and enforcement bill (H.R. 1907) that failed to advance in the Senate’s version of the TPA bill. These changes include:

  1. Trade remedy law changes championed by Senators Sherrod Brown (D-Ohio) and Rob Portman (R-Ohio), currently pending in the House as H.R. 2523.

  2. Compromise language on human trafficking originally offered by Senator Robert Menendez (D-New Jersey).

  3. An immigration-related amendment originally offered by Senators Ted Cruz (R-Texas) and Hatch.

  4. An amendment championed by Senator Dan Sullivan (R-Alaska) that would create a principal negotiating objective regarding opportunities for U.S. exports in fish, seafood and shellfish.

Despite an International Monetary Fund assessment that China’s currency is no longer undervalued, some argue a provision to address foreign currency manipulation is still needed.

Trans-Pacific Partnership

Chief negotiators of the Trans-Pacific Partnership (TPP) continued negotiations in Guam last week, though a lack of TPA remains a significant obstacle to concluding some of the agreement’s more complex chapters. Meanwhile, Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russell said on 27 May that the United States welcomes the Republic of Korea’s interest in joining the TPP in the future. On 26 May, the White House announced that President Barack Obama would welcome Korean President Park Geun-hye to the White House on 16 June.

Transatlantic Trade & Investment Partnership

Last Thursday, the European Parliament’s International Trade Committee passed a non-binding resolution that endorsed inclusion of an investor-state dispute settlement (ISDS) mechanism in the Transatlantic Trade & Investment Partnership (TTIP) agreement and also called on the United States to adopt higher labor standards.

Cuba

Last Friday, the Obama Administration formally removed Cuba’s designation as a state sponsor of terrorism. State Department Spokesperson Rathke said,

“The rescission of Cuba’s designation as a State Sponsor of Terrorism reflects our assessment that Cuba meets the statutory criteria for rescission.”

Cuba has been on the list for nearly 30 years.

2015 Climate Investment Reports Released

Last Friday, the State Department began a staggered released of its 2015 Investment Climate Statements. These reports cover more than 175 foreign markets and provide country-specific information and assessments on investment-related laws and other pertinent factors for doing business abroad. U.S. embassies and consulates prepared the statements to assist U.S. companies with making informed decisions regarding investment in foreign markets.

Looking Ahead

Washington will likely focus on the following upcoming matters:

  • 7-8 June: G-7 Summit in Schloss Elmau, Germany

  • 16 June: President Obama will host President Park Geun-hye of the Republic of Korea

  • 24-24 June: NATO Defense Ministerial in Brussels

  • 30 June: US Export-Import Bank charter expires

  • 30 June: P5+1 Talks with Iran deadline to reach a deal

  • 13 July: President Obama to host Conference on Aging

  • [TBD] July: President Obama to travel to Kenya attend the Global Entrepreneurship Summit

  • 15 September: 70th Session of the UN General Assembly (UNGA) opens in New York City

  • 24 September: Pope Francis to address Congress and meet with President Obama

  • 28 September: General debate of the UNGA begins

ARTICLE BY Stacy A. Swanson of Squire Patton Boggs (US) LLP
© Copyright 2015 Squire Patton Boggs (US) LLP

March (Appellate) Madness re: O'Bannon NCAA Antitrust Case

Womble Carlyle Sandridge Rice, PLLC

It has been a few months since we updated on the O’Bannon antitrustcase, where federal judge Claudia Wilken ruled last summer that theNCAA’s amateurism rules violated federal antitrust laws. But this week, as the rest of the country filled out their brackets and geared up for the start of the NCAA tournament, the NCAA was getting ready for another battle – in the Ninth Circuit.  On Tuesday, the appeals court heard oral argument from both the NCAA and plaintiffs’ counsel, as the parties debated the lower court’s decision, which allowed limited compensation for the use of athletes’ name, image, and likenesses.

Central to the parties’ argument was the interpretation of NCAA v. Board of Regents of the University of Oklahoma, a 1984 case regarding football television rights. While the NCAA lost that case, one statement in that case has become central to the NCAA’s current “amateurism” defense:  “To preserve the character and quality of the ‘product,’ athletes must not be paid.”  In Tuesday’s arguments, some of the judges seemed skeptical of the NCAA’s shifting definition of “pay,” they were also concerned about opening the door to “pay for play.”

We can expect a ruling in the upcoming months, though this is unlikely to be the final appeal in the case.

ARTICLE BY

Amanda Norris Ames
Womble Carlyle Sandridge & Rice, PLLC

March (Appellate) Madness re: O’Bannon NCAA Antitrust Case

Womble Carlyle Sandridge Rice, PLLC

It has been a few months since we updated on the O’Bannon antitrustcase, where federal judge Claudia Wilken ruled last summer that theNCAA’s amateurism rules violated federal antitrust laws. But this week, as the rest of the country filled out their brackets and geared up for the start of the NCAA tournament, the NCAA was getting ready for another battle – in the Ninth Circuit.  On Tuesday, the appeals court heard oral argument from both the NCAA and plaintiffs’ counsel, as the parties debated the lower court’s decision, which allowed limited compensation for the use of athletes’ name, image, and likenesses.

Central to the parties’ argument was the interpretation of NCAA v. Board of Regents of the University of Oklahoma, a 1984 case regarding football television rights. While the NCAA lost that case, one statement in that case has become central to the NCAA’s current “amateurism” defense:  “To preserve the character and quality of the ‘product,’ athletes must not be paid.”  In Tuesday’s arguments, some of the judges seemed skeptical of the NCAA’s shifting definition of “pay,” they were also concerned about opening the door to “pay for play.”

We can expect a ruling in the upcoming months, though this is unlikely to be the final appeal in the case.

ARTICLE BY

Amanda Norris Ames
Womble Carlyle Sandridge & Rice, PLLC

College Football Players As Employees ? – Illegal Formation!

Godfrey Kahn Law Firm

Members of the Senate Health, Education, Labor and Pensions (HELP) Committee filed an amicus brief on July 10 that opposed unionization of college athletes. A case involving athletes at Northwestern University is pending before the National Labor Relations Board. Northwestern University and College Athletes Players Association (CAPA), Case No. 13-RC-121359

Sen. Lamar Alexander (R-Tenn.) and fellow committee members Senator Richard Burr (R-N.C.) and Senator Johnny Isakson (R-Ga.) along with members of several House Committees signed the amicus brief in support of Northwestern University in the case. The brief stated:

“Congress never intended for college athletes to be considered employees under the National Labor Relations Act, and doing so is incompatible with the student-university relationship,” the senators said. “The profound and inherent differences between the student-university and employee-employer relationship makes employee status unworkable both as a matter of law and in practice.”

The complete brief can be found here.

The American Council on Education also filed an amicus brief on July 3. That brief can be found here.

Article By:

Jon E. Anderson
Of:
Godfrey & Kahn S.C.

The Redskins Decision: Much Ado About (Probably) Not Much

Dickinson Wright Logo

I’ve been having fun listening to commentators – most of whom appear to know little or nothing about trademark law – expound on last week’s decision by the Trademark Trial and Appeal Board to cancel six trademark registrations for variations of the wordREDSKINS as the name of Washington, D.C.’s pro football team. One observer described it as a “landmark” decision, and several have prophesied that it marks “the beginning of the end” of the team’s controversial nickname.

The decision may turn out to have significant impact on the team politically and in terms of public relations. But legally…not so much.

Into the Time Machine

Many of the “beginning of the end” analyses treat the TTAB decision as a referendum on current public opinion about the Redskins name issue. A spokesman for the National Congress of American Indians, which supported the plaintiffs, said, “I don’t know how the team doesn’t recognize at this point that it’s not just a small group of Indians anymore. It’s more than that. People and fans and the country itself are saying, ‘Let’s just change the name.’”

Maybe they are – but the TTAB decision has nothing to do with that. As the dissenting judge (it was a 2-1 decision) wrote, “To be clear, this case is not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today.” The task before the TTAB was not to render a judgment on the propriety of naming a football team the Redskins. Rather, the task before the TTAB was to conduct a kind of time-machine research project: to determine, as a matter of empirical historical fact, whether the term Redskins was considered offensive by a “substantial composite” (not necessarily a majority) of the Native American population at the time when the first of the REDSKINS registrations was granted – in 1967.

In performing this task, the Board was limited to the evidence placed in the record by the parties. It didn’t do any independent research or fact-finding of its own, and it was not allowed to take “judicial notice” of any information that may have come its way by other means. This procedural limitation is crucial to understanding why the decision may be vulnerable to being overturned on appeal.

“Déjà Vu All Over Again”

It is important to bear in mind that we have passed this way before. In 1999, in a case called Harjo v. Pro Football Inc., the TTAB canceled the very same six trademark registrations for the very same reason: that the word “redskin” was considered disparaging by Native Americans at the time the registrations were granted. Pro Football appealed to the U.S. District Court for the District of Columbia, and won: the court overruled the Board’s decision, holding – bear with me, this is the important part – that the evidence concerning the disparaging nature of the term “redskin” in 1967 was insufficient. The petitioners then appealed to D.C. Circuit Court of Appeals, which affirmed the district court – without disturbing the ruling on insufficient evidence. The six registrations – which had remained intact throughout the appeal process – were thus definitively preserved.

Flash forward. The case decided last week, Blackhorse v. Pro Football, Inc., was essentially a re-run of Harjo, with different plaintiffs but with essentially the same evidence. The parties stipulated that all the testimony, expert reports, affidavits, and other documents from Harjo would be received into evidence in Blackhorse as well, and the new petitioners made a strategic decision not to add any substantial new evidence.

Same Evidence, Same Result?

This appears to have worked well in the TTAB: the same tribunal, asked to decide the same issue by examining the same evidence, came to the same conclusion.

But the same strategic decision may backfire in the appellate courts. Note what happened in Blackhorse: the petitioners went into court armed solely with a body of evidence that a higher court had already ruled was insufficient. As the dissent inBlackhorse wrote, “The consequence of petitioners’ decision to rely on the same evidence [that was] previously found insufficient to support cancellation[,] without substantial augmentation[,] is that the evidence before the Board in this case remains insufficient as well.”

Will the appellate courts agree, and overturn the Board’s decision a second time? The picture is clouded by the fact that, owing to an intervening restructuring of the federal court system, the initial appeal might be heard this time by the U.S. District Court for the District of Eastern Virginia, rather than the District of Columbia. Will the new court agree with the old? Only time will tell. But the petitioners may have a hard time persuading anycourt that a body of evidence already deemed insufficient had somehow grown in stature merely as the result of growing 15 years older.

The initial aftermath of Blackhorse, however, will be much the same as that of Harjo. The TTAB has already stayed execution of the Blackhorse decision on the assumption that Pro Football will appeal. So the six REDSKINS registrations will remain in full force and effect throughout the appeal process, which could take several years (as it did last time).

What Impact?

Let’s suppose that Pro Football’s appeal ultimately fails, and that the six registrations are, finally and definitively, canceled. What then? The fact is that the impact of such an outcome on the Washington Redskins team would likely be far less than many observers have suggested.

For starters, the team would not need to change its name. The TTAB decision does not cancel the REDSKINS trademarks, only the federal registrations for those marks. To be sure, federal registration provides important benefits. But as my trademark law students could tell you, under U.S. trademark law rights ultimately come from use of a mark in commerce, and even unregistered marks can become quite strong by virtue of long-standing and widespread use, substantial investment in advertising and promotion, and strong “name recognition” among the public. By any of those measures, REDSKINS is a very strong mark indeed, and Pro Football would not find it difficult to enforce its common-law trademark rights against infringers.

Purely as a matter of legal and economic reality, the post-cancellation world of the Washington Redskins might not look much different than the current one.

IP Rights and Censorship

All this, of course, addresses only what may happen as a result of what is done in courts of law. The court of public opinion is a different matter. Blackhorse appears to have triggered significantly stronger public reaction than Harjo, which may help bring other forces to bear on the situation.

One thing that has not changed is my conviction that deciding issues of this nature is not a job for the Trademark Office. The judges who decide cases in the TTAB are experts on trademark law. They shouldn’t be expected to be experts on the kinds of social and political issues that drive cases like this one, or even on the kind of historical research questions such cases present. Nor do they have the opportunity to submit fact issues to a jury, which might be better positioned to render a verdict about what is or is not “immoral” or “scandalous.”

The Lanham Act is the only intellectual property statute that includes a censorship provision. Why do we feel it is improper to place a government “stamp of approval” (the ® symbol) on a trademark that is “immoral” or “scandalous,” when we have no qualms about placing another such symbol (the © symbol) on copyrighted pornography or hate speech, which we do all the time?

The Redskins case raises many interesting, and important, issues. But none of them are really trademark issues. That’s why their ultimate resolution will likely have little to do with what happened in the Trademark Office last week.

Article By:

John C. Blattner
Dickinson Wright PLLC

Michigan District Court Confirms $1.6 Million Judgment Against Former Spartan and Detroit Red Wing Hockey Player

Varnum LLP

In a 17-page opinion issued on June 5, 2014, the Honorable Gordon J. Quist of the United States District Court for the Western District of Michigan entered an order recognizing a judgment entered in Switzerland against former NHL hockey player Kevin Miller. The case is of particular local interest in that Miller was born and raised in Lansing, played college hockey for Michigan State University, and played professional hockey for a number of teams, including the Detroit Red Wings.

The underlying judgment against Miller arose out of an on-ice incident on October 31, 2010, between Miller and Andrew McKim during a Swiss hockey league game. Miller checked McKim from behind, hitting McKim in the head and neck and causing McKim to fall on the ice and hit his head. McKim suffered a concussion and other injuries and was hospitalized for several weeks. The Swiss hockey league determined that Miller’s check was intentional and suspended Miller for eight games.

In addition, McKim brought a civil lawsuit against Miller for injuries resulting from the incident. At the conclusion of the civil proceedings in Switzerland, judgment was ultimately entered in the amount of 1 million Swiss Francs against Miller, which, when converted to United States dollars, and adding interest, costs, and attorneys’ fees, resulted in a current judgment amount of approximately US $1.6 million.

Miller challenged recognition of the judgment under the Uniform Foreign Country Money Judgments Recognition Act (“FCMJRA”), which Michigan has adopted. Miller raised two arguments: (1) that the Swiss judgment was repugnant to public policy and violated due process because Miller was not allowed to cross-examine the independent expert who provided opinion testimony about Miller’s intent at the time he checked McKim; and (2) that it was repugnant to public policy and violated due process for the Swiss civil tribunal to consider as evidence the determination by the Swiss hockey league that Miller’s check of McKim was intentional.

The district court was not persuaded that either of these objections rose to the level of the Swiss judgment being repugnant to public policy. The court noted that the fact that Swiss law does not allow for cross-examination of expert witnesses “is a mere difference of procedure that does not trigger the public policy exception.” Op. at 11. The district court also noted that the civil tribunal’s consideration of the hockey tribunal’s disciplinary determination was not repugnant to Michigan public policy in that the hockey tribunal’s determination was only one of numerous sources of information, and the “Swiss civil court did not accord preclusive effect to the National League proceeding that determined that Miller intentionally injured McKim.” Id. at 12.

The district court also held that these concerns did not deny Miller due process in the Swiss civil proceedings. The district court clarified that foreign tribunals do not have to provide identical procedural safeguards as United States courts, but rather “must only be compatible in that they do not offend the notion of basic fairness.” Id. at 14. Although the court acknowledged that the procedures in the Swiss tribunal were not identical to those in the United States, particularly the restriction on Miller’s ability to cross-examine the independent expert, “the Court cannot say the Judgment presents a serious injustice or lacks basic fairness, such that nonrecognition is appropriate.” Id. at 15.

© 2014 Varnum LLP

Article By:

Bryan R. Walters
Of:
Varnum LLP

 

“REDSKINS” US Trademark Registrations are Canceled for Disparaging Native Americans

MintzLogo2010_Black

A three-judge panel of the US Trademark Trial and Appeal Board (TTAB), for the second time and in a 2-1 decision, has held that the REDSKINS trademark used in connection with professional football and related services by the Washington Redskins National Football League team was disparaging to a substantial composite of Native Americans between 1967-1990, the time during which the registrations issued. It also held that the defense of laches did not apply to a disparagement claim where the disparagement pertains to a group of which the individual plaintiff or plaintiffs comprise one or more members. Accordingly, it ordered the registrations at issue canceled as violations of Section 2(a) of the Trademark Act. The cancellation of the registrations has no effect on the team’s ability to continue to use the REDSKINS marks.

Efforts to cancel the REDSKINS registrations have been ongoing for many years. The first petition to cancel the registrations was filed in 1992 and, after seven years of litigation, the TTAB canceled the registrations on grounds that the marks were disparaging to Native Americans. After several rounds of appeals and remands through the DC federal courts, the case was dismissed on grounds of laches.

While the above proceedings were still pending, six new individual petitioners, all Native Americans, initiated the current case seeking to cancel the same REDSKINS registrations. The matter was suspended pending a final decision in the above proceedings, and resumed in March 2010. After four more years of litigation, the TTAB again cancelled the registrations for disparaging Native Americans.

The Trademark Act prohibits registration of a trademark which may disparage persons or bring them into contempt or disrepute. A two-pronged test was used by the TTAB to decide the issue of disparagement as follows:

  1. What is the meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the goods and services identified in the registrations?
  2. Is the meaning of the marks one that may disparage Native Americans?

Both questions are required to be answered as of the various dates of registration of the marks involved, which was between 1967 and 1990, considering the views during that time of a substantial composite of Native Americans, not the American public as a whole. The questions are not to be determined based on current views on the subject.

The TTAB found that first prong was satisfied by evidence that the term REDSKINS when used by the Washington Redskins football team retained its Native American meaning and imagery inherent in the original definition of the word. It stated that the football team “has made continuous efforts to associate its football services with Native American imagery.”

The second prong of the test required a determination of whether the use of the word was disparaging within the context of its use. “Context of use” can consist of several types:

  1. One which turns an innocuous term into a disparaging one;
  2. One which strips the disparaging meaning from the disparaging term; and
  3. One which has no effect on the disparaging meaning.

The TTAB held that as used by the football team, the word “Redskins” retained its original meaning and the context of the use had no effect on the disparaging nature of the word. It noted that the team’s “alleged honorable intent and manner of use of the term” did not change this finding.

In reaching its decision to cancel the registrations, the TTAB considered expert reports and testimony, dictionary definitions, and reference books. In considering the specific views of Native Americans, it considered the National Congress of American Indians’ (NCAI) 1993 Resolution 93-11, deposition testimony of several Native Americans, and various newspaper articles, reports, official records, and letters of protest filed at the Trademark Office. It concluded that the NCAI Resolution represented the views of a substantial composite of Native Americans who believed the term was disparaging, that the trend in dictionary usage labels corroborated the time frame of objections from Native Americans starting in the late 60s and continuing through the 90s as lexicographers began and finally uniformly labeled the term as “offensive” or  “disparaging,” and that, at a minimum, approximately 30% of Native Americans found the term used in connection with football services to be disparaging at all the times at issue.

In rejecting the laches defense, the TTAB stated that it was difficult “to justify a balancing of equities where a registrant’s financial interest is weighed against human dignity.”  Moreover, both it and the courts have routinely held that when a broader public policy concern is at issue, the laches defense does not apply.

The dissenting judge disagreed with the majority’s decision on the claim of disparagement arguing that the dictionary evidence relied upon was inconclusive and there was no reliable evidence to corroborate the membership of the National Counsel of American Indians. However, he stated that he wanted to make clear that the case was “not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today.” He disagreed with the majority that the evidence of record proved that the term was disparaging “at the time each of the challenge registrations issued.”

According to the Washington Post, the Redskins plan to appeal the decision and the team has no plans to discontinue use of the REDSKINS mark. Unlike the last proceeding, any appeal of this decision will not go to the DC federal courts but must now go to the United States District Court for the Eastern District of Virginia. This change was implemented in the America Invents Act which was enacted in September 2011 and it is not clear how a different court will decide these issues. The cancellation of the registrations will be stayed pending any appeal.

©1994-2014 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Article By:

Susan Neuberger Weller
Of:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Do Public School Athletic Leagues Have To Admit Private Schools?

Womble Carlyle

Liberty Christian Academy (LCA), a private high school in Lynchburg, Virginia, has filed an antitrust action against the Virginia High School League (VHSL), a non-profit organization of public high schools in Virginia.  The lawsuit was filed June 2, 2014 in the Charlottesville Division of the Western District of Virginia.

The VHSL organizes public schools into districts and regions for purposes of conducting athletic competitions and statewide playoffs.  LCA filed its lawsuit because, as a private school, LCA is barred from membership in the VHSL and claims to be unable, with limited exceptions, to schedule athletic games with the nearby public schools.  LCA complains that it has to travel far distances to play games against inferior opponents.  LCA argues that the VHSL’s rules are akin to a group boycott and constitute an unreasonable restraint of trade in violation of federal and state antitrust laws.  The relevant markets alleged in the Complaint are the markets for commercial exhibition of high school football contests and basketball contests in Virginia.

Although some states allow private high schools to join their public high school athletic leagues, other states have separate private and public leagues, such as Virginia, Maryland and Texas.  In the lawsuit, LCA argues that the prohibition on non-public high school membership in the VHSL has no pro-competitive purpose and cannot be justified on any claimed basis that it is necessary to promote fair on-field competition.  I suspect that the ability of private schools to recruit and give scholarships to football and basketball players from a wide geographic area (unlike public schools who have to find players within their own geographic district) would be one of the reasons for the VHSL’s rule.

The Complaint’s reference to the “integration of public and private schools into one athletic association” appears to suggest a strained analogy to civil rights and the racial integration of public schools in Virginia.  LCA should be very careful in suggesting any such analogy, given that LCA was specifically founded in 1967 as a segregation academy in response to the integration of public schools in Virginia.  There is no small amount of irony in LCA’s complaint that it is being excluded and segregated from public school athletic competition.

Several public high school athletic programs are described in the Complaint.  These schools are very familiar to my ears: T.C. Williams in Alexandria, famous from the movie Remember the Titans; football powerhouse Oscar Smith High School in Chesapeake; and Brookville High School outside Lynchburg, my fathers’ almar mater and the arch rival of my high school, Jefferson Forest.

Article By:

Jason C. Hicks
Of:
Womble Carlyle Sandridge & Rice, PLLC

California District Court Won’t Reconsider Prior Ruling in NCAA Class Action – National Collegiate Athletic Association

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On May 12, 2014, the National Collegiate Athletics Association (NCAA) lost its motion for leave to file a motion for reconsideration of a prior ruling, which barred the NCAA from arguing at trial that not paying student-athletes for their likenesses increased competition by raising financial support for women’s and less prominent men’s athletics.  A former NCAA basketball player originally filed a class action suit against the NCAA in 2009 in the Northern District of California, alleging that the NCAA profited from student-athlete likenesses on television and in video games while prohibiting the athletes from receiving payment.

In re Student-Athlete Name & Likeness Licensing Litigation, case number 4:90-cv-01967.  In April 2014, upon consideration of the parties’ opposing motions for summary judgment, District Judge Claudia Wilken ruled that plaintiffs were entitled to summary judgment as to the NCAA’s fourth justification for the challenged restraint – greater support for women’s and less prominent men’s sports – because this argument was not legitimately pro-competitive.  Judge Wilken first determined that the NCAA could not restrain competition in the relevant market, football and men’s basketball, to allegedly promote competition in the markets for women’s sports and less prominent men’s sports.  Second, the NCAA could financially support women’s sports and less prominent men’s sports through less restrictive means by forcing member conferences to redistribute a greater portion of profits made from football and men’s basketball to these other sports.  In moving for leave to file a motion for reconsideration, the NCAA submitted a declaration and report from an economic expert, who argued that the relevant market should be broadened to include athletes who play sports other than football and men’s basketball.  In response to the NCAA’s arguments, Wilken concluded that plaintiffs’ allegations challenged conduct with respect to football and men’s basketball, and the possibility that the challenged behavior affected student-athletes in other sports did not redefine the relevant market.  Judge Wilken thus denied the motion, reiterating that the purported pro-competitive justification did not address competition in the relevant market of football and men’s basketball.  Trial is set to begin on June 9, 2014.

Article By:

Megan Morley
Of:
McDermott Will & Emery