Attention client poachers: follow this case

By Eriq Gardner

We've always been a little surprised by the lack of litigation when top talent clients switch representatives.

It's no secret that Hollywood agents, lawyers and managers have become aggressive in poaching clients recently. Talking to the New Yorker a few years back, WME's Dave Wirtschafter described the way that agencies make come-ons to prospective clients:

"Most stars receive a number of calls each month from agencies who are eager to poach them away from their current representative. The poaching come-ons range from the bald ("That's all he got you?"; "We would never have let you appear in 'Troy'") to the subtle, long-term play. That goes something like this: 'I know you're happy with So-and-So, and I respect you too much to try to make you feel bad about how your career is going. But, in the future, just keep in mind that I'm a huge fan of your work, and that if you ever want access to more material than you're getting now, or just want to be able to exchange ideas with people like Tom and Steven, well, that's something we'd love to facilitate."

Poachers may wish to pay attention to an interesting lawsuit filed in Massachusetts state court this week. The case involves a heralded 21-year-old baseball prospect named Aroldis Chapman who defected from Cuba and has garnered interest from at least 15 major league teams. Last month, Chapman switched his representation, moving from Hendricks Sports Management to Athletes Premier International.

Hendricks is now suing on grounds of tortious interference and unjust enrichment, claiming an investment made of "substantial time and hundreds of thousands of dollars" on behalf of Chapman before API allegedly "made material false and disparaging statements" to Chapman causing him to switch agencies.

In Hollywood, most agents have a story like this to tell. We've seen lawsuits filed by agencies against agents who defect and bring clients with them, as well as a few rare lawsuits that make poaching an issue — the recent Black Eyed Peas case for example — but mostly, poaching instigates nothing more than rivalries and private grumbling.

We're not ready to say anything is about to change. On the strange scale of Hollywood ethics, poaching seems more acceptable than suing over poaching. Then again, if Hendricks wins this case, there certainly could be temptation by some in town to do what they do in baseball—settle scores.

Do not talk about this post without the express written consent of Major League Baseball

By Eriq Gardner

Major League Baseball enthusiasts can recite the televised disclaimer by heart: "Any rebroadcast, retransmission, or account of this game, without the express written consent of Major League Baseball,
is prohibited."

In past years, as professional sports organizations have developed strong online media platforms, they have imposed limits on the kind of content news outlets can transmit from inside the stadium. For example, last year, both MLB and the NFL came under heat after they limited audio and video content.

But how about merely talking about a game? If MLB owns the "account" of the game, can it stop people from describing what has already happened?

Phil Villareal at the Consumerist blog wanted to find out and sent an e-mail to MLB with a request for express written consent to describe the game to someone in his own living room. He spoke to an official from the business development department at MLB Advanced Media, and (understandably) was shrugged off. We'd guess that Villareal's description of a game would probably constitute transformative fair use of MLB's copyright. 

We're not sure when or why MLB decided to claim authority over accounts of games, but it may have had something to do with the development of companies in the 1980s offering subscribers the opportunity to call a phone number and get real-time game developments. Back then, a real-time account could pass off as something like a radio broadcast and threaten radio licensing revenue. In 1997, the NBA lost a case against Motorola over a pager service. That case chipped away at sports leagues' copyright authority.

MLB's claims of authority over the "account" of a game could be obsolete, but with the development of instant-media technologies, it probably wants to stake its ground just in case.

Man fingered in Roger Clemens steroids book sues for defamation

By Eriq Gardner

A former Houston gym owner has filed a defamation lawsuit against Knopf Doubleday Publishing Group over the release of "American Icon: The Fall of Roger Clemens and the Rise of Steroids in America's Pastime."

In the complaint filed Monday in Texas district court, Kelly Blair says the publisher and the four journalists from The New York Daily News who wrote the book published false statements that he was a drug pusher running an underground steroids network. Among the allegations in the book that Blair disputes is that he provided steroids to retired major league pitcher Roger Clemens and current New York Yankees pitcher Andy Pettitte.

The lawsuit comes on the heels of a Washington D.C. grand jury investigating whether Clemens committed perjury in Congressional testimony about steroids. The complaint also requests a discovery process that could potentially offer interesting clues about allegations of steroids in baseball.

Manny Ramirez and the morals clause

By Eriq Gardner

Hollywood lawyers can appreciate what the LA Dodgers are going through today upon hearing news that Manny Ramirez has been suspended 50 games for using a performing enhancing drug. 

For years, "moral clauses" in talent contracts have been an object of fascination in a town famous for celebrities running amok. Ramirez's situation raises a question many a studio head has considered when picking up the tabloids: Could the Dodgers now void Manny's contract?

First, some history: Morals clauses in Hollywood originated during the silent-film era, when stars' wild parties and drug use resulted in some deaths and bad publicity for the studios.

Later, in the 1950s, the clauses became an excuse to fire suspected communists, the subject of a law paper by Weil Gotshal & Manges attorney Noah Kressler in the Columbia Journal of Law and the Arts. Since then, morals clauses have evolved further, although disputes over violations rarely make their way into courts. We know many talent lawyers believe studio morals boilerplate is  too broad and vague to be enforceable in court, and the legal and publicity cost of actually waging litigation often isn't worth any dividends. 

Now, back to Manny. Obviously we haven't seen his contract. But we checked in with Marc Edelman, a visiting sports law professor at Rutgers School of Law, who says that all player contracts at least adopt a standard clause from the league's collective bargaining agreement.  

The clause reads, "The Club may terminate this contract upon written notice to the Player...if the Player shall at any time...fail, refuse or neglect to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the Club's training rules."

Edelman says its possible that the Dodgers could have added specific covenants to its contract with Manny. Perhaps they took a page from Hollywood's negotiating playbook by putting something in the contract like "The Player shall not do or commit any act or thing that will degrade him in society or bring him into public hatred, public disrepute, contempt, scorn, or ridicule, or that will tend to shock, insult or offend the community."

The Dodgers may have good ground for terminating Manny, says Edelman, on the basis that the star player violated the contract's sportsmanship and training language, although he adds that a court would fuss over whether the facts in this specific case fit the broad and ambiguous morals clause and whether the league's punishment for substance violations (the 50 day suspension and loss of salary) might trump Manny's contract.  

 

"My gut is that both (the contract and the league rules) can be read together," he says. "I think if the Dodgers wanted out of the contract, both parties would open negotiations and reach a settlement before getting to a black box of a win-or-lose court case."

He also adds that if the Dodgers want out of their deal with Manny, to escape paying $20 million for next season or for the opportunity to sign other free agents, they should pursue it right way. "The longer they wait, the tougher the (legal) argument becomes," he says.

Sports leagues losing the battle to control fantasy leagues

By Eriq Gardner

We don't know how many celebrities play fantasy sports, but they should pay attention to how courts keep chipping away some of their legal protections.

On Tuesday, a Minnesota District Court granted CBS's summary judgment seeking a declaration that the media company should not have to pay licensing fees on players' names, likenesses, and statistics. The court had to balance state right-of-publicity laws against First Amendment free speech protections and decided the latter should triumph.

The decision echoes another fight over a fantasy baseball product, where Major League Baseball lost at the 8th Circuit and couldn't get the Supreme Court to hear an appeal over whether copyright law protects names, likenesses, and statistics.

In the latest case, the Minnesota District Court adopts that opinion and extends it beyond the baseball world. The NFLPA tried to note the 8th Circuit's words that baseball is a "national pastime," deserving of special protection, but in the latest opinion, "the Court declines to indulge in a philosophical debate about whether the public is more fascinated with baseball or football or the statistics generated by each."

Naturally, the question can be raised whether celebrities who protect their rights diligently have copyright control over professional and personal information that may be used for commercial purposes. Will the First Amendment give businesses the right to use and market this information without celebrity consent?

We're still awaiting an answer to this question, but cases involving fantasy sports aren't helping celebrities in a potential claim. So far, fantasy sports operators have been very smart in rushing to middle-America jurisdictions instead of allowing sports leagues to fight these cases on the coasts--such as in California, where rights of publicity are pretty sacrosanct. Eventually, conventional legal wisdom may set in that commercial operators are free to use personal information about celebrities as they please.  

Jim Brown Runs To Court After Seeing Himself In Videogame

By Eriq Gardner

For those in sports and entertainment who didn't like the 8th U.S. Circuit Court decision that established that copyright law offers no protection over the names, nicknames, and likenesses of athletes (and perhaps a broader list of celebrities) in fantasy games, here might be an opportunity to respark the fight in a different circuit.

NFL Hall of Famer and actor Jim Brown has filed a lawsuit in New York claiming Sony and video game maker Electronic Arts are exploiting his likeness in a video game featuring a character who looks like him and wears his No. 32.

The legal issues involved seem to be quite similar to the MLB v. CBC case, which was turned down for review by the Supreme Court earlier in the year. Brown seeks unspecified damages and an injunction barring the companies from "taking a free ride on the trade value" of his fame.

Supreme Court Refuses Major League Baseball's Request To Examine Rights of Publicity

Posted by Eriq Gardner

The Supreme Court has turned down a request to hear a dispute over whether a fantasy baseball operator violated the intellectual property rights of Major League Baseball. The league claimed domain over names and statistics.

In turning down the appeal, the ruling by the 8th U.S. Circuit Court of Appeals in St. Louis stands, which established that copyright law offers no protection over the names, nicknames, likenesses, signatures, pictures, playing records, and biographical data of players from major sporting leagues.

The ruling holds some impact too for celebrities in the entertainment industry, who have zealously guarded likeness rights. Many legal experts believe this to be an important victory for free speech over "rights of publicity."

Lawsuit Coming Over Ownership Of Sports Coverage?

Posted by Eriq Gardner

Techdirt picks up an interesting lawsuit threat at the end of a NY Times article about how sports blogging is forcing leagues to consider their media access rules.

Many media organizations have long had problems with the way in which professional sports leagues like Major League Baseball and the National Football League have doled out credentials. Typically, these leagues hold their audio and video intellectual property rights close to chest and have tried to limit the types of information that can be reported live. Especially as many of these organizations set up hot web venues designed to capture the value of the data themselves.

Now, Dave Tomlin, associate general counsel for the Associated Press, says the media may "need to get more organized" to fight back.

In addition, according to the paper, the Media Law Resource Center has "commissioned legal research in anticipation of the question of media restrictions going to the courts. One tactic being considered is to challenge MLB’s antitrust exemption."

Echostar Catches Curveball Lawsuit From Major League Baseball

Posted by Eriq Gardner

Just in time for the start of the season, Major League Baseball has pitched a lawsuit to Echostar Satellite. According to the summons, Echostar breached its contract by "failure to pay license fees...concerning telecast rights for certain Major League Baseball games during the 2006 season."

This continues the yearly feud between the two entities. It was almost exactly a year ago that Commissioner Bud Selig opened the 2007 season by chastising Echostar for failure to step up to the plate to license MLB's Extra Innings premium package.

In other baseball legal news, Rusty Hardin is pleading with a court to allow him to continue representing client Roger Clemens after it was revealed he was conflicted by also having previously represented witness/pitcher Andy Pettitte.

Play ball.

Major League Baseball Issues Ultimatum to Amateur League Over Trademarks

Posted by Eriq Gardner

Major League Baseball is again throwing a brushback pitch on the trademark front. The league is demanding that six teams in the amateur Cape Cod Baseball League who share nicknames with professional ballclubs purchase uniforms and souvenir merchandise from MLB-licensed vendors.

As pointed out by Techdirt, MLB does give the Cape Cod League a $100,000 annual grant. The amateur league will now have to decide whether this grant is worth the new price, which also includes a demanded 11 percent royalty on sales next summer of existing inventory from the six affected Cape League teams.

Even if Cape Cod doesn't capitulate, it might face an interesting trademark suit over whether these names are protectable. Currently, the two leagues have franchises with shared nicknames including A's, Red Sox, Mariners, Braves, Mets and Cardinals. Something tells us a certain football franchise in Arizona might wish to pay attention to this.