Just Win (or get fired for cause), Baby.

Espn.com is reporting that Al Davis has fired Raiders head coach Lane Kiffin. The news isn’t surprising, but what has caused a stir is that Raiders announced that they do not plan to pay Kiffin the remainder of the salary due under his three-year, $6 million contract. The question is, can they do this? Or, perhaps, how can they do this?

Well, the Raiders are apparently claiming that Kiffin was fired “for cause” and thus has no right to any further compensation under the contract. I have not seen the terms of Kiffin’s contract, but let’s assume that it has a broad “for cause” provision that either does not specifically define for cause or gives a non-exhaustive list of examples of what might constitute for cause. For example, let’s assume the contract says something to the effect of: “If coach is fired for cause, he shall not be entitled to any further compensation under the contract.”

So, what is the “cause” for firing Kiffin in this case? It appears that the Raiders will argue that Kiffin was fired because of the team’s poor win-loss record during Kiffin’s tenure. The Raiders finished 4-12 in Kiffin’s first year as coach and have started this season with a 1-3 record. Absent a specific definition in the contract, does a 5-15 record constitute cause? Or, stated more broadly, does poor performance of a team constitute cause for firing the team’s coach?

There is some precedent in the NFL—created in part by Al Davis— supporting the Raiders on this one. Back in 1989, Al Davis fired then-head coach Mike Shanahan after he started the season with a 1-3 record (the team finished 7-9 in Shanahan’s first year as the coach) and refused to pay Shanahan the remainder of his salary. Shanahan filed a grievance against Davis, but lost. Shanahan has received some payback, though, as his Broncos have won eight out of the last ten games against the Raiders (then again, the Raiders haven’t won many games against anyone recently).

In addition, there is a fairly recent case from the Montana Supreme Court--
Cole v. Valley Ice Garden, LLC, 113 P.3d 275 (Mont. 2005)—that addresses this precise issue and provides further support for Davis. In Cole, the owner of an American West Hockey League team fired his coach for cause after the team started its season with a 1-6 record and refused to pay the coach the remainder of his salary. The coach’s contract did not define for cause, but the court concluded that for cause means a “legitimate business reason” and “[e]ssentially connotes a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power.” The court therefore held that “[d]ischarging the coach of a professional sports team which is performing poorly, despite management’s good faith efforts, is a discretionary decision related to the legitimate needs of the business and constitutes ‘cause.’

This report indicates that Kiffin may also have been fired because of insubordination, citing Kiffin's “brutal public honesty about his lack of control over coaching and personnel decisions since he was hired in January 2007.” If that’s the case, Davis’ for cause argument will carry even more weight.

So, absent specific controlling language in the contract, it appears that Al Davis and the Raiders may actually have a chance to win something this year.

Update: Espn.com has an update on Al Davis' explanation for firing Kiffin. Here's the latest:

Davis read a letter that he sent to his former coach that detailed mistakes made on and off the field by Kiffin. Davis finally concluded that he fired the coach for cause because he "disgraced" the organization, citing everything from conflicts over personnel moves to outright lies to the media.

"I don't think it was any one thing," Davis said. "It was a cumulative thing. I think the pattern just disturbed me."

Again, it's hard to analyze the issue without seeing the for cause provision in the contract, but it is clear that Davis will try to rely on a lot more than Kiffin's win-loss record in arguing that he had cause to terminate.

UCLA Sports Law Panel Today on NCAA Compliance

Nate Jones, a 2L at UCLA Law School and author of Jones on the NBA, lets me know about a panel discussion today hosted by the UCLA Sports Law Federation on NCAA compliance and other legal issues surrounding amateur sports, including those involving Brandon Jennings, O.J. Mayo, and Andy Oliver. If you are in the L.A. area today, it definitely looks like a great event to check out:

NCAA Flyer - Upload a Document to Scribd

The NFL Loses its Voice

Although fans of the NFL may not recognize his name, most fans can immediately recognize the distinctive voice of John Facenda. For many years, Facenda was the voice of the NFL, narrating weekly highlights for NFL films with his deep baritone voice. Along with a great soundtrack, Facenda’s narration transformed ordinary NFL action into an extraordinary television event (here’s one of his best). Facenda’s legendary voice was the subject of a recent lawsuit that raises a variety of interesting intellectual property issues.

Shortly before Facenda died in 1984, he signed a “standard release” contract stating that NFL films “enjoys the unequivocal rights to use the audio and visual sequences recorded of me, or any part of them…in perpetuity and by whatever media or manner NFL Films...sees fit, provided, however, such use does not constitute and endorsement of any product or service.” In 2005, NFL Films produced “The Making of Madden NFL 06,” a 22 minute program about the newest version of the popular video game. The program, which was shown on the NFL Network eight times in a 3-day span leading up to the release of the game, featured interviews with NFL players and used three brief sound recordings of Facenda used in earlier NFL Films highlights.

Facenda’s estate then sued NFL Films for false endorsement under the Lanham Act and for violation of Facenda’s right of publicity. The Eastern District of Pennsylvania granted summary judgment for Facenda’s estate on both issues. In a lengthy opinion published earlier this month, the Third Circuit vacated and remanded the Lanham Act portion of the decision but affirmed the judgment on the right of publicity claim.

Here are some of the highlights of the Third Circuit’s opinion(these are much more entertaining if you read them in a Facendian voice and play classical music in the background).

1. With respect to the false endorsement claim, the court adopted the Ninth Circuit’s test from Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001). Under the Downing test, likelihood of confusion regarding sponsorship or endorsement is a question of fact to be determined by weighing 8 different factors. Because there were genuine disputes over some of these factors, the Third Circuit held that summary judgment was not appropriate and remanded the case back to the district court.

2. NFL Films did not raise a First Amendment or incidental use defense to the right of publicity claim on appeal. Instead, NFL Films raised two preemption claims, both of which the court rejected.

3. First, NFL Films argued that federal copyright law expressly preempts the state right of publicity claim. The Third Circuit rejected this argument for two reasons. First, the court noted that under the express copyright preemption provision, a state law claim is not preempted if it contains an “additional element” beyond what a federal copyright infringement claim would require. Here, the “additional element” was the Pennsylvania right of publicity statute’s requirement of a showing of commercial value, defined as a “[v]aluable interest in a natural person’s name or likeness that is developed through the investment of time, effort, and money.” Second, the court held that voices are outside the subject matter of copyright and thus not subject to preemption.

4. Second, NFL Films argued that federal copyright law implied preempts the right of publicity claim. Despite the absence of an express preemption, the court explained that an implied preemption may exist because of the conflict between copyright law and the right of publicity. The Third Circuit thus asked: “When does the right of individuals to avoid commercial exploitation of their identities interfere with the rights of copyright owners to exploit their works?” To answer this question, the court looked at the use of Facenda’s voice and the scope of the copyright acquired by NFL Films in the original contract. With respect to the use issue, the court emphasized that the Madden video was not an expressive work. Rather, it was a “promotional piece akin to advertising.” With respect to the contact, the court stated that “Facenda consented to participation in films documenting NFL games, not an advertisement for a football video game.” The court thus held that implied preemption was inappropriate.

There is a lot to be said about this case, and I plan to write more about it later on, but I have one quick reaction to the decision. Although the plaintiff won on the right of publicity claim, the Third Circuit seems to continue the troubling trend of narrowing the rights protected by right of publicity statutes (Rich has blogged about the right of publicity issue extensively and persuasively), to the point where one could argue that the Third Circuit may only be willing to recognize a right of publicity in false-endorsement type cases. Granted, this issue came up in the preemption context in a false-endorsement type case with specific contract language prohibiting false endorsements, but here’s what the Third Circuit had to say about the Pennsylvania right of publicity statute and the rights it protects:

 “Precisely what Pennsylvania’s right of publicity is meant to protect is a citizen’s prerogative not to have his or her name, likeness, voice, or identity used in a commercial advertisement.”
 “Pennsylvania’s [statute] focuses solely on the commercial-advertising context. It is targeted at endorsements, not the full universe of creative works.”
 “In the endorsement context, an individual’s identity and credibility are put directly on point.”
 “Advertisements are special in the way they implicate an individual’s identity.”

Again, given the facts of the case and the legal issues before the court, it’s not surprising that the court emphasized the evils of false endorsements, but the language used by the court is at least consistent with (if not the next step in) the trend of equating the right of publicity claim with a false endorsement claim.

Upcoming Sports Law Conference at Marquette University Law School

Marquette University Law School Professor Paul Anderson, who is Associate Director of the National Sports Law Institute, has let me know of what should be an excellent sports event coming in October at Marquette Law:

On Friday, October 24, 2008 the National Sports Law Institute of Marquette University Law School will host a conference on Professional Sports: Current Issues and Their Future Implications. The day long event will be held at the Alumni Memorial Union on the Marquette campus. Conference sponsors include the Sports & Entertainment Law Section of the State Bar of Wisconsin, Foley & Lardner LLP, and Greenberg & Hoeschen, LLC.

Four conference panels composed of leading sports lawyers, sports law professors, and industry professionals will address cutting edge legal and business issues related to the acquisition, sale, and valuation of sports franchises, sports broadcasting, playing facility issues, and a potpourri of hot topics in professional sports. Speakers include Mary K. Braza, Partner and Chair, Sports Industry Team, Foley & Lardner, LLP; Eryn Doherty, Senior Counsel, Labor Relations, Fox Entertainment Group, Inc.; Martin Greenberg, Member, Southeast Wisconsin Professional Baseball Park District; Greg Heller, Senior Vice President & General Counsel, Atlanta Braves; and Jim McKeown, Partner, Chair, Antitrust Practice Group, and Member, Sports Industry Team, Foley & Lardner, LLP.

The conference is from 9 am to 5 pm on Friday, October 24th. Complete details of the conference, including conference panels and participants, registration costs and forms, and conference sponsors, are available on the web at http://law.marquette.edu/jw/2008conf.

Sports Law Blog Bowl

The big sports law news is from college football:

Florida International University 35, Toledo 16, with FIU scoring 21 unanswered points in the second half. Put another way: Howard Wasserman's school 35, Geoffrey Rapp's school 16.

Pursuant to our geographic-native-food/government-official-style wager, I think Geoff owes me some Tony Packo's sausage.

Sports Media Ethics (or lack thereof), Part III

Steve Donohue of SportsBusiness Journal has an interesting piece this week in which he discusses the recent trend of news outlets cutting costs on sports coverage, for example by reducing headcount in recent years, slashing travel budgets and not allowing beat reporters to cover as many away games (Newspaper Cutbacks Slice into Sports Coverage, 9/22/08). Donohue writes:

The trend has sports properties looking for ways to maintain their coverage and exposure, even with steps such as offering discounted hotel rooms to help lower travel expenses for journalists. Local newspapers are relying more on wire services to cover away games, and Tribune Co., Gannett and other newspaper groups often assign one local reporter to cover a game for their entire chains. Several major daily newspapers didn’t send reporters to the MLB All-Star Game in July, including The Dallas Morning News and The Cincinnati Enquirer. “The days of midsized metro papers sending their columnist to the Masters, the NCAA Final Four and the World Series every year are long gone and won’t be coming back,” said John Moriello, president of the New York State Sportswriters Association. “Maybe he still gets to cover the Super Bowl, but you’d better believe the boss expects a dozen stories or columns from him that week.”
....
Helping news outlets shave travel expenses is the goal of Major League Soccer, which is working with the Hyatt Regency Century Plaza to offer discounted room rates of less than $100 per night to reporters wanting to cover the Nov. 23 MLS Cup outside Los Angeles. “We’re trying to assist the print journalists with lowering their costs,” said Dan Courtemanche, MLS senior vice president of marketing and communications. MLS also subsidizes air travel costs for journalists from Latin America, whose employers, unlike American newspapers, allow reporters to accept free or discounted travel from the teams they cover, Courtemanche said.

Journalism ethics in sports coverage are eroding at a rapid pace. There are a couple of ethics issues raised by Donohue's article. First, what was once considered unethical and completely unacceptable -- journalists' receipt of benefits from teams and leagues -- is apparently now going to be tested.

The second ethics issue I see from this article is that news outlets are cutting costs in the form of reduced headcount, the elimination of travel expenses and reliance on wire services as the basis for coverage, but at the same time demanding more stories and columns from journalists. While it makes sense from a purely business standpoint, it is a formula for disaster from a journalism ethics standpoint. In essence, there are fewer journalists writing more stories and columns, and those journalists are principally relying on other sources (e.g. wire services) for their reports instead of relying on their own investigations. How can the journalist know or verify that the information in the original report is accurate? Where is the source verification?

The business objectives and incentives in the current journalism marketplace are overshadowing journalism ethics.

Pirates sign draft pick, avoid labor confusion

A couple of weeks ago, I linked to commentary on a brewing dispute between the Pittsburgh Pirates and their top draft pick, Pedro Alvarez, that threatened to raise some open issues of the labor agreement. Well, the question is moot (the car is mine); the Pirates and Alvarez have agreed on a contract worth approximately $ 6.4 million, slightly more than the original purported agreement, but over a longer term.

Update, 6:30 p.m. E.D.T., Monday:

Mark Fenster at PrawfsBlawg (whose original commentary I linked to and who comes at this as a life-long Pirates fan), gives his thoughts on the deal. Note, by the way, discrepancies as to the precise amount of the final deal.