Clarett Case Comes to an End

On Monday, the Supreme Court declined to hear the case of Clarett v. NFL, the case in which former Ohio State running back Maurice Clarett challenged the NFL's age limit. There was little chance of the Court taking the case, since the legal issue remains relatively new. In addition, despite Clarett's legal team asserting that the case would have an impact on a number of other players, Clarett is eligible for this month's draft, meaning the case most likely would have been ruled moot (not affecting the legal rights of the parties).

For now, this ends the legal struggle against the NFL's requirement that a player be three years out of high school in order to be eligible for the draft. I say "for now" because it is only a matter of time before another football player challenges the rule, in hopes for a more favorable ruling. And, depending on how the collective bargaining session in the NBA proceeds, rumors abound that basketball may soon have a similar eligibility limitation. This, too, will most definitely prompt litigation. Eventually, the Supreme Court will hear this case. The result will change the face of sports, and the law, for some time to come.

Injured Phillies Fan Strikes Out Again

As expected (2/6), the Philadelphia fan who was injured while attempting to catch a foul ball will not be allowed to pursue his lawsuit against the city and the Phillies. A state appellate court has upheld the grant of summary judgment and thus the case will be dismissed. The court first ruled that "[o]ne who attends a baseball game as a spectator can properly be charged with anticipating as inherent to baseball the risk of being struck by a foulball while sitting in the stands during the course of a game." Next, the court held that the team and city cannot be liable on a theory that the screen put up directly behind home plate provided insufficient protection.

By placing the protective screen behind home plate, [the city and team] did not assume a duty to use reasonable care with respect to the design of the barrier beyond seeing that it did not deviate from the established customs used in baseball stadiums. To conclude otherwise would lead to absurd results in that it would require an amusement facility to have screens encircling the entire field, or, alternatively, would allow an amusement facility to avoid liability by leaving stands unprotected, but expose the facility to liability when it erects protective barriers.

The full opinion can be found here.

Hat Tip: Overlawyered

History of Baseball's Antitrust Exemption

Skip over at the Sports Economist points to a great article detailing the history of baseball's antitrust exemption (Ratner, "Orioles run-ins with law historic," Baltimore Sun, 4/3/05). Skip also helpfully points out one error the author makes, relating to franchise location. I have done some analysis of the decision in Federal League Baseball Club of Baltimore v. National League, which created the exemption, in this earlier post (12/8/04).

Opening Day in Baseball

I love opening day. The first game might have been last night, but the baseball season starts today. Opening day is great, not only because it signals the beginning of a new baseball season, where anything can happen, but because it officially marks the beginning of spring and summer. Warm weather, green grass and swimming pools await, while snow shovels, ice and heavy winter coats can be put away until next year. For more on Opening Day, see this post from last year.

Hopefully, too, Opening Day can take some of the spotlight off of baseball's legal problems. Alex Sanchez has become the first player suspended under the new steroid policy (ESPN, 4/4), which will hopefully encourage others to leave the juice behind. At the very least, it proves that baseball intends to enforce its policy. Now, it remains to be seen how the new policy affects player statistics, if at all.

Even the phrase "opening day" cannot escape litigation. In January, a federal court ruled that Major League Baseball did not infringe the trademark of Opening Day Productions, Inc., through its use of the phrase. Although the company claimed to have registered the phrase as a trademark and had discussions with baseball in the early 1990s about a marketing campaign centering on "opening day", the talks never came to fruition and the company had never made more than sporadic use of the slogan. The court observed that the right to a particular trademark grows out of its use, and the use must be deliberate and continuous, not sporadic or transitory. Thus, the company's use of the phrase is not protectable under trademark law. (MLB Properties v. Opening Day Prod., 2005 WL 53260 (S.D.N.Y. 2005)).

For more baseball litigation, check out this list of Baseball's Looniest Lawsuits.

Steroids in NASCAR?

Charles E. Yesalis, a health professor at Penn State and a former trainer, wonders whether NASCAR, which does not have a mandatory drug testing policy, should investigate whether its pit crew members are using illegal substances in order to improve their strength, speed, and agility. Under current NASCAR rules, testing may only be imposed upon "reasonable suspicion of abuse of an illegal substance," a standard which Professor Yesalis deems insufficient. NASCAR dismisses this suggestion, with a spokesman noting, "there's not even a suspicion of a problem in the sport." (Newton, "NASCAR Comfortable with Current Drug Tests," The State, 04/03/2005).

North Dakota Seeks To Restore Roger Maris' Home Run Record

In light of apparent steroids use by Mark McGwire et al., the North Dakota Senate yesterday approved a resolution urging MLB commissioner Bud Selig to reinstate Roger Maris' 61 home runs in 1961 as the official major league record. The vote was 45-0. And in case you are wondering, yes, Roger Maris was from North Dakota.

The Home Run Record Resolution now moves to the North Dakota House for additional review.

The sponsor of the resolution, Sen. Joel Heitkamp (D), believes that although this matter may appear neither deserving of a state legislature's attention nor germane to any state policy, it actually reflects a broader commitment among North Dakotans to prevent cheaters from rewards.

Alabama Sues Artist Who Created Football Paintings

Daniel Moore is a proud graduate of the University of Alabama. He loves his alma mater and likes to express his feelings through paintings that depict great moments in the history of Alabama football. Unfortunately, Alabama does not much care for his artistic desires, and it has filed a lawsuit against him, claiming the paintings contain Alabama trademarks for which Moore has not obtained a proper license. The Alabama press has jumped all over this, vilifying the University for taking a beloved artist, and one of the school's biggest fans, to court over a few thousand dollars in royalties. (Walton, "UA Sues Artist Over Trademark Violation," Birmingham News, 03/23/2005; Finebaum, "Alabama Paints Itself Into a Corner," Mobile Register, 03/29/2005).

Public relations aside, does the legal case have any merit? Moore claims that his paintings, which depict famous moments in Crimson Tide football history, should receive First Amendment protections for free expression and free press. Says Moore, "It is a fact that artists were the first journalists." The University claims, however, that the paintings contain University trademarks that cannot be used without payment of required licensing fees.

There is some precedent on this issue. In 2003, the Sixth Circuit upheld an artist's right under the 1st Amendment to create paintings of historical golf moments over a challenge by Tiger Woods (ETW v. Jireh Publishing, 332 F.3d 915). That case was slightly different, because it dealt primarily with a right of publicity claim, but there were also trademark issues. The court emphasized that the work contained "significant transformative elements" that made it worthy of 1st Amendment protection and minimized the economic impact on Woods' protected right of publicity. Because the work "does not capitalize solely on a literal depiction of Woods" but rather "consists of a collage of images . . . which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods's achievement in that event," it is entitled to "the full protection" of the 1st Amendment.

I believe that a similar argument could be made in this case. Moore is depicting an historical event that contains "significant transformative elements." There is probably also little economic impact on the university's trademarks. In response, Alabama will most likely argue that, unlike in the Woods case, which featured his image along with many other golfers, these paintings depend on the use of Alabama trademarks. Without the Alabama name, colors and logo, there would be no painting.

In addition, what of Moore's argument that he is a journalist and his work is protected by the guarantee of a free press? If these paintings make him a journalist, does this not also open the door to bloggers, street artists, and anyone else who depicts an historical event, no matter the form? I do not know if courts will be willing to make such a leap. Are there any cases that speak to this? If anyone is aware of one, please let me know.