l Volume 7, Issue 2 and the - Andresen & Associates · 2020-02-27 · insurance. On June 12, the...

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May-June 2016 l Volume 7, Issue 2

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THIS ISSUEProfessional Team General Counsel Talk Shop at Sport Lawyers Meeting 1

The Hypocrisy of AIG’s Decision to Stop Insuring NFL Players against Head Trauma while Sponsoring Concussion Causing Sports 1

Sports Lawyer Ben Mulcahy Leaves Sheppard Mullin, Joins Jenner & Block 2

Imbibing Fan a Pain in the Neck at Blackhawks Game 3

Prudential Center Attendee Claims Website Terms and Conditions Contain Provisions that Violate of NJ Law 5

Former Pirates General Counsel Opens His Own Practice 6

Family of Braves Fan Who Fell at Turner Field Sues Team 7

California Workers Compensation: The Saga Continues— Election and Arbitration 9

The Baseball Rule Redux 14

and the

See Pro Team on 2

See Court Sacks on Page 17

By Nathan Martin

At this year’s Sports Lawyers Asso-ciation (SLA) Conference, a very

distinguished and experienced panel of experts discussed legal issues facing profes-sional sport franchises. Moderated by Nona Lee, Senior Vice President and General Counsel for the Arizona Diamondbacks, the panel comprised Jason Hillman, Vice President and General Counsel for the Cleveland Cavaliers; John Keenan, Senior Vice President and General Counsel for Anschutz Entertainment Group (AEG), which owns the Los Angeles Kings; and Richard Thigpen, General Counsel for the Carolina Panthers.

Day-to-day Issues Faced by General CounselLee began the session by asking the panel to discuss the day-to-day issues they face, both in legal and non-legal roles.

Hillman began joking seriously about playing whack-a-mole with the daily is-sues he faces. He noted the scope and the to-do list is so varied such that reviewing a sponsorship agreement, season ticket agreement, or an arena suite lease is just the beginning, as his company is now a media company, a real estate company, and a technology company all rolled into one. He described the job as 24 hours/day 365 days/year; there is no off-season.

Professional Team General Counsel Talk Shop at Sport Lawyers Meeting

By Richard C. Giller, Esq.

Over the past several months a number of legal and business decisions have

converged at the intersection of sports and insurance. On June 12, the New York Post reported that insurance giant American In-ternational Group, Inc. (AIG) had “stopped insuring NFL players against head injuries as the dangers of concussions became ap-parent even though it continues to play up its ties to the game.” The Post article came

just six weeks after the April 29 court order to lift the stay on discovery that had been in place in the insurance coverage litigation between the NFL and its insurers, like AIG, issued by New York State Supreme Court Justice Jeffrey K. Oing. In that case, which has been pending for over 4 years, AIG and other insurers contend that they do not owe any duty to either defend or indemnify the NFL against claims asserted against the

The Hypocrisy of AIG’s Decision to Stop Insuring NFL Players against Head Trauma while Sponsoring Concussion Causing Sports

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MAY-JUNE 2016 PROFESSIONAL SPORTS AND THE LAW2

HOLT HACKNEYEditor and Publisher

ELLEN RUGELEYContributing Writer

STEVEN STAMPSContributing Writer

THE ROBERTS GROUPDesign Editor

EDITORIAL BOARDGregg Clifton,

Jackson Lewis LLP

Carla Varriale, Havkins Rosenfeld Ritzert & Varriale,

LLP

Jeff Gewirtz, Executive Vice President of Business Affairs & Chief Legal Officer, Brooklyn

Nets and Barclays Center

Jeffrey E. Birren, Esq.

Irwin A. Kishner, Herrick, Feinstein LLP

Edward Schauder Steiner Sports

Robert E. Wallace, Jr. Thompson Coburn LLP

Scott A. Andresen Andresen & Associates, P.C.

Laura A. Zwicker Greenberg Glusker, LLP

Richard Giller, Esq. Polsinelli

Benjamin R. Mulcahy Jenner & Block LLP

Please direct editorial or subscription inquiries to Hackney Publications at:

P.O. Box 684611, Austin, TX 78768 (512) 716-7977 [email protected].

Professional Sports and the Law is published bimonthly by Hackney Publications, P.O. Box 684611, Austin, TX 78768. Postmaster send changes to Professional Sports and the Law. Hackney Publications, P.O. Box 684611, Austin, TX 78768.

Copyright © 2016 Hackney Publications

and the

Jenner & Block has announced that sports lawyer Benjamin R. Mulcahy

has joined the firm as a partner in the Content, Media & Entertainment (CME) Practice, where he will help media com-panies and major brands produce and distribute content as well as structure and negotiate major sports and entertainment marketing deals.

Mulcahy, previously of Sheppard Mul-lin, will practice in the firm’s Los Angeles office and will serve as co-chair of the firm’s Trademark, Advertising and Unfair Competition Practice. Also joining Jenner & Block’s CME Practice from Sheppard Mullin is Gina Reif Ilardi, though her practice tends to focus more on entertain-ment law.

Mulcahy brings more than 20 years of experience representing major motion picture studios, broadcast and cable televi-sion networks, retailers, consumer brands and their advertising agencies in all aspects of sports marketing, entertainment mar-keting and interactive marketing as well as in innovative branded entertainment and e-commerce initiatives, according to the firm.

He helps clients structure their relation-

ships with stakeholders and counterparties and guides clients through the ever-changing legal issues that affect how their promotional campaigns are implemented across all media. Another dimension of his practice includes advising social and online gaming operators with respect to state and federal regulations.

At Sheppard Mullin, Mulcahy was a co-team leader of that firm’s Advertising Industry Team as well as its Sports Team and Digital Media Team. He has a strong presence in the sports industry, where he has been a speaker at conferences and seminars as well as a frequent contribu-tor to Sports Litigation Alert. Mulcahy has been a fixture on the editorial board of Professional Sports and the Law since its inception in 2009.

Mulcahy clerked for the Minnesota Supreme Court after receiving his J.D., cum laude, in 1994 from the University of Minnesota, where he was a member of the Minnesota Law Review as well as the National Moot Court. He graduated magna cum laude in 1991 from Saint John’s University with a B.A. in govern-ment/psychology. l

Sports Lawyer Ben Mulcahy Leaves Sheppard Mullin, Joins Jenner & Block

Attendee Claims Website Terms Violate LawContinued From Page 5

Jersey law and federal law, and that she has therefore failed to state a cognizable cause of action. However, if Ms. Guzman can overcome such arguments, then the potential damages may be relatively large, even if no member of the purported class sustained any actual damages. As the TC-CWNA imposes statutory damages of at least $100 per consumer, a class of 1,000 plaintiff would result in damages of at least

$100,000.This case is a reminder for sports organi-

zations – and businesses of any type – that engage in commerce directed towards New Jersey consumers to ensure that the fine print associated with their products is lawful. Although a business may be selling products and services in good faith, a tech-nical error in the fine print could result in damages under the TCCWNA. l




www.BrittonGallagher.com/PAE

See Imbibing on Page 4

By Scott A. Andresen, Andresen & Associates, P.C.

It’s almost as ubiquitous as it is irritating that trips to the local sporting venue are sullied when a nearby spectator figuratively

becomes a pain in the neck when exhibiting an alcohol-induced lack of manners and decorum. For one fan at last year’s May 23rd Chicago Blackhawks playoff victory over the Anaheim Ducks, the pain went from figurative to literal when an allegedly over-served fan failed in his attempt to defy the laws of gravity.

In a complaint filed on April 7, 2016 in the Circuit Court of Cook County, Illinois,1 plaintiff John Cook alleged causes of action under the Illinois dram shop statute and for negligence against the Chicago Blackhawks Hockey Club, At Your Service, United Center Joint Venture and Levy Premium Foodservice Limited Partnership. The complaint alleges that, while attending the May 23rd Blackhawks-Ducks game, a fan identified only as “John

1 John Cook v. Chicago Blackhawks Hockey Club, At Your Service, LLC, United Center Joint Venture and Levy Premium Foodservice Limited Partnership, Case No. 2016-L-003550, Circuit Court of Cook County, Illinois (April 7, 2016)

Doe” “consumed large quantities of alcohol...was loud, boisterous and unruly.” The complaint then goes on to say that, despite the complaints of fellow spectators, arena ushers and security person-nel did nothing to remedy the situation...which ultimately lead to Mr. Doe losing his balance while celebrating a Blackhawks goal and falling on the plaintiff who was seated in front of him. The complaint alleged that the plaintiff “suffered injuries of a personal, pecuniary and permanent nature” [though none of these damages was alleged with specificity in the complaint], and sought damages in excess of $100,000.

Illinois Dram Shop ActIllinois’ dram shop statute, the Illinois Liquor Control Act of 1934,2 states that commercial establishments are liable for any damages or injuries caused by intoxicated persons, provided a plaintiff can prove that: (1) the establishment sold alcohol to the patron, (2) injuries or damages were, in fact, caused by the patron, (3) the establishment was the proximate cause3 of the intoxica-tion, and (4) the intoxication was at least one major cause in the complained of injury

Illinois’ dram shop statute is somewhat unique in that there is no requirement that the establishment have knowledge or reason to know that the person was already intoxicated, whereas other states require at least noticing that the person is visibly intoxicated. As such, the Illinois dram shop statute could permit a plaintiff to recover from multiple establishments. Applicable to the present case, if John Doe consumed drinks at multiple establishments in addition to the United Center, John Cook could potentially recover from each establishment if he can satisfy the four require-ments set forth above.

Illinois Law on Spectator InjuriesThough Illinois has statutes applicable to spectators injured at hockey and baseball games,4 neither apply here as the spectator injury was caused by a fellow spectator rather than a baseball or puck leaving the playing area. As such, we look to Illinois common law.

As a general rule, the owner of a business premises has a duty to a business invitee to exercise ordinary care in the use and main-tenance of its premises and, further to that end, the owner of the premises has a duty to discover dangerous conditions existing on the premises and to give sufficient warning to the invitee to enable

2 235 ILCS 5/6-213 Proximate cause looks to the ‘foreseeability’ of an outcome (i.e., the ultimate

outcome must be a foreseeable result of the defendant’s conduct).4 See Illinois’ Hockey Facility Liability Act (745 ILCS 52/1 et seq.) and

Baseball Facility Liability Act (745 ILCS 38/1 et seq.

Imbibing Fan a Pain in the Neck at Blackhawks Game

http://www.BrittonGallagher.com/PAE



Scott A. AndresenANDRESEN & ASSOCIATES, P.C.3025 North California Avenue, Suite 4 S.E.Chicago, Illinois [email protected] (773) 572-6049 Telephone

Sports LawAthlete Representation

Entertainment & the ArtsInternet Law

Business Law/StartupTrademarks & Copyrights

Imbibing Fan a Pain in the Neck at Blackhawks GameContinued From Page 3

the avoidance of harm.5 Along these lines, an Illinois court noted that the owners of a sporting venue had a special relationship with their invitees that obliged them to take reasonable action to protect against an unreasonable risk of injury either from the conduct of their agents or the conduct of third persons.6

A plaintiff’s claim in Illinois can be barred by the doctrine of assumption of risk when a plaintiff can be shown to have expressly or impliedly assumed the risks inherent in a particular activity or situation. However, it is difficult to believe that any court would find that a spectator at a Blackhawks game assumed the risks of an intoxicated fan unilaterally seeking an impromptu “piggy back ride” after consuming copious amounts of intoxicants—even in the 300 level of a hockey arena.

ConclusionIt is clear that the defendants in this matter jointly or severally owed a duty of care to John Cook and the other spectators at that

5 See Duffy v. Midlothian Country Club, 92 Ill. App. 3d 193, 197, 415 N.E.2d 1099, 47 Ill. Dec. 786 (1st Dist. 1980)

6 See Pickel v. Springfield Stallions, Inc., No. 4-09-0490, 2010 WL 1205959 (4th Dist. March 23, 2010)

fateful 2015 Blackhawks-Ducks playoff game. Whether or not the defendants breached this duty to the plaintiff will be borne out in the discovery process and the ferreting out of the particular facts of this matter. Regardless of the outcome of this case, it should serve to place sporting venues on notice that intoxicated fans are not just an annoyance to everyone around them- they are a potential liability that should be dealt with proactively when possible, and swiftly and decisively when reactive measures are called for. l

Brooklyn Nets Add Lawyers to Front OfficeThe Brooklyn Nets organization has announced that two executives with legal backgrounds have joined its front office. Natalie Jay has been named as cap and contract specialist. Jay comes to Brooklyn after most recently serving as a judicial law clerk for the U.S. Court of Appeals for the Eighth Circuit in St. Louis, Mo. Previously, she held sports law clinic externships with the Memphis Grizzlies and Fluminense FC of Rio de Janeiro, Brazil. Andrew Baker has been named strategic planning coordinator. Baker comes to Brooklyn after spending the past year as a quality assurance assistant in the basketball operations department of the San Antonio Spurs.


http://www.andresenlawfirm.com



See Attendee Claims on Page 2

By Shawn Schatzle, Esq. of Havkins, Rosenfeld, Ritzert & Varriale, LLP

The Prudential Center in Newark, New Jersey is home to the New Jersey

Devils hockey team and the Seton Hall Pirates college basketball team. It was also the former home of the New Jersey Nets basketball team before the franchise relo-cated to Brooklyn. In addition to sporting events, the facility regularly hosts concerts, professional wrestling matches and mixed martial arts bouts. One regular attendee of events at the Prudential Center, however, contends that the “Terms and Conditions” of its website violate New Jersey law.

Plaintiff Josephine Guzman, on behalf of herself and all others similarly situation, recently filed a class action lawsuit in the United States District Court of New Jer-sey, in which she alleges that Devils Arena Entertainment, LLC (“Devils Arena”), the operator of the Prudential Center, has imposed illegal and exculpatory provisions upon all users of its website. She alleges that Devils Arena has unlawfully sought to nullify the legal duties and responsibili-ties it owes its consumers. Ms. Guzman’s claims are based primarily on New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”).

The TCCWNA is a consumer protection law which provides standing to consumers to obtain damages from a seller who provides a contract, warranty, notice or sign which includes language that violates New Jersey or federal law in any respect. See N.J.S.A. 56:12-14. To prove a TCCWNA claim, a plaintiff must show that: (1) he or she is a consumer or potential consumer within the statute’s definition; (2) the defendant is a seller; (3) the defendant (a) offers or enters into a written consumer contract, or (b) gives or displays any written consumer warranty, notice, or sign; and (4) the offer or written contract, warranty, notice or

sign includes a provision that violates any clearly established legal right of a consumer or responsibility of a seller. See MB Imps., Inc. v. T&M Imps., LLC, 2012 U.S. Dist. LEXIS 168693, 21 (D.N.J. Nov. 28, 2012).

Essentially, any writing that may be shown to a consumer in connection with the sale of a product or service may con-stitute a “notice” under the TCCWNA. See Watkins v. DineEquity, Inc., 2012 U.S. Dist. LEXIS 122677, 17 (D.N.J. Aug. 29, 2012). The TCCWNA can impose liability on a seller who merely “gives or displays” such a notice. See MB Imps., Inc. v. T&M Imps., LLC, 2012 U.S. Dist. LEXIS 168693, 21 (D.N.J. Nov. 28, 2012). A consumer is defined under the statute as “any individual who buys … any … property … or service … which is primarily for personal, family or household purposes.” See N.J.S.A. 56:12-15. The statute has specifically been applied to online retailers. See Shelton v. Restaurant.com, Inc., 2013 N.J. Lexis 726 (Sup. Ct. N.J. 2013). It has also been applied to the sale of tickets to live events. See Katz v. Live Nation, Inc., 2010 U.S. Dist. LEXIS 60123 (D.N.J. June 17, 2010).

Notably, the statute also applies to pro-spective consumers and therefore requires no agreement or contract between the consumer and the seller, nor does it even require proof of any actual damages. Any seller may be liable for a civil penalty of not less than $100 or actual damages, at the election of the consumer, if the seller violates the TCCWNA. See Slack v. Subur-ban Propane Partners, L.P., 2010 U.S. Dist. LEXIS 135530, 16 (D.N.J. Dec. 22, 2010). The Superior Court of New Jersey, Appel-late Division has held that class actions are permissible under the TCCWNA. See United Cons. Fin. Ser. v. Carbo, 982 A.2d 7 (N.J. Sup. Ct. App. Div. 2009).

A seller who makes any statement in writing that is related to the sale of a product or service may be held liable for damages

under the TCCWNA in the event that the statement is deemed to violate New Jersey law or federal law, regardless of whether the consumer in question actually sustained any damages.

Ms. Guzman’s claims under the TCC-WNA are based on numerous provisions of the Prudential Center’s website Terms and Conditions. For example, she points to language which limits the liability of Devils Arena for any damages arising out of a consumer’s use of the website, including damages related to viruses that may infect a computer through the downloading of in-formation from the website. She asserts that this provision violates the well-established duty of care to avoid creating an unrea-sonable risk of harm, as it essentially bars consumers from asserting claims against Devils Arena even if it negligently managed or maintained its website.

Additionally, Ms. Guzman notes that the aforementioned provisions on the web-site also purport to specifically bar consumers from seeking punitive damages. She as-serts that such language violates the New Jersey Punitive Damages Act (“NJPDA”). Furthermore, and among other allegations, Ms. Guzman points to language in the Terms and Condition which appears to limit its liability for the actions of third-parties who intercept personal information through the web site. She asserts that this language unlawfully serves to waive Devils Arena’s duty to take reasonable steps to protect consumers from the criminal acts of third-parties.

In response to Ms. Guzman’s claims, Devils Arena may file a motion to dismiss, which will seek to argue that her claims should not be subject to class certifica-tion. Devils Arena may also argue that the various provisions cited by Ms. Guzman do not violate any clear provision of New

Prudential Center Attendee Claims Website Terms and Conditions Contain Provisions that Violate of NJ Law



• Larry H. Miller Sports & Entertainment in Vivint Smart Home – Utah Jazz naming rights deal

• Joe Tacopina in acquisition of Italian soccer club Venezia F.C.

• New York City FC in new stadium development agreement with New York City

• Top Rank in Mayweather – Pacquiao at MGM Arena in Las Vegas

• Tampa Bay Lightning in Amalie Arena naming rights agreement

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SPORTS LAWRecent highlights:

Larry Silverman, one of the Pittsburgh region’s most prominent attorneys, is

opening his own private law practice.Silverman’s decision follows two stints,

one at Dickie McCamey & Chilcote, and nearly 10 years as Senior VP & General Counsel for the Pittsburgh Pirates. He is also an Adjunct Professor of Law at the University of Pittsburgh, where he has taught a class on the “Law of Professional Sports” for the past eight years.

In his new practice (www.lsilvermanlaw.com), Silverman will focus on representing small businesses and nonprofits, as well as companies in the Sports & Entertainment industry. His primary practice areas will include Contracts and other Transactions, Digital, Marketing and Advertising issues and Employment Law.

A native of Pittsburgh, Silverman received his undergraduate degree from the University of Pittsburgh and his law degree from Duquesne University’s School

of Law, where he was a member of the Law Review. He then had the privilege of serv-ing as a judicial law clerk for the Hon. Donald Ziegler of the U.S. District Court for the Western Dis-trict of Pennsylvania.

Following this 2-year clerkship, he joined the Pittsburgh law firm of Dickie McCamey & Chilcote, where his practice focused on commercial litigation, appellate practice and corporate law. He became a Shareholder at Dickie in 1986.

“My career took an exciting twist early in 2002 when I was hired by the Pittsburgh Pirates to become its first general counsel,” he said. “For the next 10 years, I served as the only in-house counsel for the Pirates, handling all of the legal affairs for the organization, including its player contract

negotiations, all contracts with vendors, sponsors, suite holders and other stakehold-ers of the team, all employee-related issues, all intellectual property matters and a host of other subjects. Additionally, I served as general counsel to the organization’s charitable foundation, Pirates Charities.”

After leaving the Pirates in late 2011, Silverman briefly worked for a high-tech company before re-joining Dickie Mc-Camey in 2013 as of counsel.

In describing his practice to Sports Litigation Alert, Silverman said he has “worked with a number of sports-related tech start-ups, companies looking to enter the fantasy sports industry and a number of fitness/health club facilities. I have also worked with a number of college athletic departments. In addition, I have worked with sports and entertainment agencies on a variety of IP issues involving their clients, including talent endorsement issues, right of publicity issues, etc.” l

Former Pirates General Counsel Opens His Own Practice

Silverman


http://www.herrick.com

http://www.lsilvermanlaw.com

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www.thompsoncoburn.comThe choice of a lawyer is an important decision and should not be based solely upon advertisements.

• Leases/Vendor Agreements• Stadium Finance• Labor & Employment/Immigration

Comprehensive legal services for sports entities across the country:

Thompson Coburn’s Sports Law GroupChaired by Bob Wallace, former general counsel for the St. Louis Rams and the Philadelphia Eagles

• Copyright/Trademark• Sponsorship Agreements• Business Litigation

The family of Greg Murrey, who died last year after falling out of the upper

deck at Turner Field, has sued the Atlanta Braves and Major League Baseball.

The Murreys, represented by the Law Offices of Michael L. Neff, P.C. and Ca-plan Cobb LLP, claimed specifically that Major League Baseball (MLB) was slow to respond to incidents at its stadiums involv-ing “dangerously low” guardrail heights in the upper decks of its stadiums.

“Murrey was watching the Braves play the New York Yankees on August 29, 2015 at Turner Field,” according to the complaint. “Greg was standing in front of his second-row seat in Section 401, located in the upper deck. The railing in front of Section 401 was only 30 inches above the floor of the first row. From where Greg stood at the second row, the top of Section 401’s guard rail barely reached the height of Greg’s ankles. As could happen to any baseball fan, Greg

fell forward. When Greg fell, he plunged over the railing and dropped approximately 50 feet to his death.”

The plaintiffs went on to site other in-cidents that were similar, such as the 2011 incident involving Shannon Stone, a Texas Rangers fan who fell over a 33-inch railing to his death. Among the others they cited, which involved railing issues, were:• In 1994, Hollye Minter fell backward

over a 30-inch railing while posing for a picture at the Texas Rangers’ ballpark.

• On April 21, 2009, a male fan attend-ing the St. Louis Cardinals game at Busch Stadium fell over a 30-inch rail on the front row of “Casino Queen Party Porch” section and was seriously injured.

• On June 26, 2009, Chris Hoffman fell over a 30-inch rail on the 4th deck

of Busch Stadium in St. Louis.• On April 25, 2010, Stuart Springs-

tube died after falling over a 30-inch rail at Miller Park watching the Mil-waukee Brewers.

• On July 6, 2010, Tyler Morris fell over a 30-inch rail at a Texas Rang-ers baseball game and was seriously injured.They further noted that after the Springs-

tube and Stone incidents, the Rangers raised the height of their railings to 42 inches, “a height closer to the waist of most adults. Unfortunately, the Braves chose not to raise the rail heights at Turner Field.”

The plaintiffs’ attorneys also quoted “safety specialist Jake Pauls” to emphasize their point.

“In the 1970s, it was known that rails of 30 inches would not guard most men from

Family of Braves Fan Who Fell at Turner Field Sues Team

See Family on Page 8

http://www.thompsoncoburn.com



Family of Braves Fan Who Fell Sues TeamContinued From Page 7

falling over them,” said Pauls. “Indeed, his-tory has repeatedly shown us that it is not safe for 30-inch rails to be used at ballparks. To provide for reasonable public safety, the heights of rails to guard against falls should be at least 42 inches.”

They alleged that MLB and the Braves “rejected the safety measures incorporated by the Texas Rangers and continued to rely upon dangerously low railings, placing their fans at grave risk.

“The Braves and other MLB clubs hid behind an exception to the 42-inch standard rail height contained in the 1929 version of the NFPA Building Exits Code in order to justify rails that are dangerously low. However, as numerous stadium experts have noted, that version of the 1929 code was based on providing sight lines for the seated patrons at theaters/opera houses, not sports arenas.

“According to Robert Solomon, NFPA Building Fire Protection and Life Safety Division Manager, ‘the 26-inch exception relied upon by some stadium operators was designed mainly for theaters and symphony halls—not ballparks—to set railings where they wouldn’t impede someone’s view.’ Un-like patrons at theaters and symphony halls, sports fans in the upper decks of stadiums stand, jump, dance, drink beer, wave for cameras, and reach out for fly balls. Sports fans can easily lose their balance and fall over a 30-inch rail. The Braves’ choice not to raise rail heights meant more people could be killed or injured.”

The attorneys continued: “Had the Braves and the rest of MLB uniformly increased railing heights after the deaths of Mr. Springstube and Mr. Stone, Greg Murrey would not have died.”

The Team’s PerspectiveRobert Gorman, author of a book titled “Death at the Ballpark” told the Atlanta Journal Constitution that the problem for the Braves is that they are “constantly evaluating ways to ensure fan safety while maintaining the game-day experience.”

He said that, according to the Interna-tional Building Code, the actual minimum height for railings in front of seats is 26 inches.

“So if that is the case, the railing at Turner Field was higher than that,” he told the paper. “The problem with the railing is how it affects the line of sight. If the railing blocks a view, I don’t know how people would want to sit in those front-row seats. And teams know that.”

And yet it has to be a concern for any stadium manager.

See Family on Page 11


http://www.jacksonlewis.com/



By Jeffrey Birren

California’s workers’ compensation laws are among the most generous in the

nation. The California Legislature created a system to protect employees and their counsel. Thus, the workers’ compensation statute at Labor Code § 3200 (“Cal. Lab.”) states that:

“This division and Division 5 (commencing at Section 6300) shall be liberally construed by the courts with the purpose of extending their benefits for the protection of per-sons injured in the course of their employment.”

In theory, each party must “meet the evidentiary burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law” (Cal. Lab. § 3202.5). As a practical matter, many workers’ compensation judges construed both the law and the facts in the retired athlete’s favor in order to maximize benefits whenever possible. Celebrity-status has its benefits.

The Legislature recognized that the United States Constitution did theoretically limit the power of the state’s workers’ com-pensation statute for those engaged in in-terstate commerce, “except in so far as these divisions are permitted to apply under the Constitution or laws of the United States” (Cal. Lab. § 3203). In reality, that section rarely prevented a non-California profes-sional athlete from filing and collecting in California against non-California teams. Historically, all jurisdiction required was a single game in California over a career.

In addition, there has been virtually no statute of limitations in “cumulative trauma” claims as the statute has been construed to not begin until a doctor in-forms the retired athlete that he or she has “cumulative trauma” as opposed to what

the athlete already knows—that he or she suffered specific injuries. Consequently, for highly compensated, out-of-state profes-sional athletes, California has traditionally been the most generous state in the nation by a large margin. For decades, these ath-letes filed their claims in California and were mailed checks for tens of millions of dollars (See, “Golden State, Golden Payouts” Sports Litigation Alert, 12-12-14; “A New Approach” Sports Litigation Alert, 12-26-14; “California Court of Appeal Keeps Them Guessing When It Comes to Workers Compensation” Sports Litigation Alert, 10-13-15). Only recently has the gravy train been mildly disrupted (See, “Golden State, Golden Payouts, Sports Litigation Alert, 10-30-15).

The Legislature also gave “Applicants” another powerful tool: the election. In cases involving multiple employers, an Applicant may elect to proceed against a single em-ployer (Cal. Lab. § 5500.5). Thereafter, the employer stuck with the entire bill can go after the other employers, either for partial or total contribution, while the Applicant sits at home counting the money. All the elected-against employer can do is prosecute subsequent proceedings against one or more of the other former employers. This article now focuses on such a case.

Marcus Knight played wide receiver and punt returner at Michigan from 1996 through 1999. During his career, he scored ten touchdowns. He signed as an undrafted rookie free agent with the Oakland Raiders in 2000. He was cut, and then re-signed to the “Practice Squad” during summer camp, meaning that he could practice but not participate in games. He signed again in 2001 and spent most of the year being placed on the “Inactive” list for games. After the 2001 season he was made available for NFL Europe, but no team in that league took him. He then made the Raiders’ active roster for 2002. He was released during

summer camp in 2003.He had four unsuccessful tryouts in

2003, and signed with Tampa Bay in Janu-ary 2004. He was released on September 5 and re-signed on September 29. He was with Tampa Bay for 14 days and was “Inactive” for both games. He was cut on October 12, re-signed on October 20, placed on the “Inactive” List before being released on October 27.

He then turned to the Arena League. He played for the Philadelphia Soul in 2005 and part of the 2006 before being released. At the time, Jon Bon Jovi was the owner. A group headed by Ron Jaworski now owns it. Arena League players must be versatile, and Knight, played receiver, returned kicks and played defense, and that continued for his entire AFL playing tenure.

He signed with the Columbus Destroy-ers for the remainder of the 2006 season and stayed with the team through the 2007 season. The Destroyers folded after the 2008 Arena League season, but workers’ compensation insurance survives the demise of the employing-organization.

Knight then took up coaching, joining Valparaiso as wide receivers coach for 2007. As a football coach, he would be required to engage in several strenuous physical activi-ties, including running around the field, holding bags while receivers hit them, sitting for long hours watching film, standing for long periods of time at practice, traveling during recruiting, among others. In 2012 he moved on to Northern Michigan where he remains the Pass Game Coordinator/Receivers Coach.

Knight filed a workers’ compensation claim against the Raiders, Soul and Destroy-ers, his professional football club employers. He filed an Amended Application on July 24, 2014 that stated that the consecutive trauma (“CT”) period ran from 6-15-01

California Workers Compensation: The Saga Continues— Election and Arbitration

See California on Page 10



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California Workers Compensation: The Saga ContinuesContinued From Page 9

until 7-15-07. His application ignored the fact that the job duties of a receivers’ coach an also be quite strenuous. One wonders if he told Valparaiso that he believed he suffered disabilities to his head, neck, back, shoulder, hands, wrist, knees, knees, feet, internal, and a host of other parts that are not legible on his Application. Was any of his physical activities as a coach observ-able? If the answer is no, it shows yet again that California workers compensation’s disability rating system uses words and concepts very differently from the rest of the known world.

The Soul and Destroyers were joined by Court Order, “Order Joining Party Defendant, Marcus Knight v. Oakland Raiders, et al, ADJ 7205561, August 4, 2011), but the Soul never appeared. Rather than taking a default against the Soul, Knight instead “elected against” the Raiders

(Arbitrator’s Findings and Order, May 11, 2016 in Marcus Knight v Oakland Raiders and Philadelphia Soul, ADJ 7205561 at 1, (“Arbitrator’s F&A”)). That meant the Raiders were stuck with the entire bill, pending a future proceeding against the Soul and Destroyers.

Knight had been released by the Raiders in 2000, passed his physical and did not file a claim. He passed a preseason physical and post season physical in 2001 and 2002. He passed a preseason physical in 2003, passed his exit physical and did not file a claim. He passed Tampa’s physical before signing in 2004, when he was released for the first time, when he was released for the second time, and did not file a claim. He passed the Soul’s initial physical and end of year physical. He passed their physical when he was released, and when he signed with the Destroyers. He passed the physical at the

end of the year and did not file a claim, and the process was repeated in 2007. He never made a claim of any kind, including an injury grievance until he filed a workers’ compensation claim years later. So despite the fact that he acknowledged that he was healthy when he left the Raiders, California law forced the Raiders to pay Knight for all claimed injuries that occurred for five full years after he left the Raiders and California, plus the expenses for medical evaluations and travel that are part of the workers’ compensa-tion costs placed on California employers.

The Raiders agreed to pay Knight $100,000 (Id.), in 2013. The Workers Com-pensation Court (“WCAB”) approved the settlement on February 25, 2013, and held open the Raiders’ “right” to seek reimburse-ment from the Soul, (Knight v Raiders et al, Order Approving Compromise and Release,

See California on Page 11


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California Workers Compensation: The Saga ContinuesContinued From Page 10

ADJ7205561, (February 25, 2013)). Three years later, the Raiders finally were able to arbitrate the claim for contribution from the Soul, meaning the $85,000 paid to Knight and $15,000 paid to his counsel, but not any of the costs previously paid by the club. The WCAB sent the case out for mandatory arbitration to determine that liability, (Id.).

The issue is not who is liable for a work-ers’ compensation claim but who is liable for the California workers’ compensation claim. That is a very different thing, as many states enforce a statute of limitations, and many only recognize specific injury claims and not CT claims. In a rational world, the Destroyers would be liable as he last played there, or Northern Michigan as the last employer, However, as to Northern Michigan, California typically ignores any CT that might arise from coaching, unless of course, a coach who never played professional sports files the claim. In theory should leave the Destroyers, but no.

Liability for CT claims is supposed to be imposed only on employers who are in the last year of CT exposure (Cal. Lab. § 5500.5). However, California law in certain instances recognizes “reciprocity” statutes from other states. If the other state (i.e. Ohio) has a specific statute that recognizes California law, then Cal. Lab. § 3600.5 divests the California court over jurisdic-tion, not over the claim as should be the case, but over the Ohio defendant. Ohio’s statute is Ohio Revised Statute 4123.54. Thus the Destroyers escaped California jurisdiction, even while Knight’s claims for injuries suffered while playing for the Destroyers continued in California against prior employers (Arbitration F&A at 2).

This is due to yet another one of Cali-fornia’s eccentricities. In the event that the last employer does not have insurance, or where there is no jurisdiction over that employer, then liability “rolls back” to

the next potential employer (Cal. Lab. § 5500.5, Portland Trailblazers v. WCAB (Whatley) 72 CCC 212, Tampa Bay Buc-caneers v. WCAB (Curry) 73 CCC 994). So, rather than tell Mr. Knight to take his claim to Ohio, California turns to the next prior employer.

Nicole Bryson, Esq. of Shaw, Jacob-smeyer, Crain and Claffey represented the Raiders in the arbitration against the Soul. California law put her into a position where her only options were to arbitrate against the Soul or walk away, as so many have done. She litigated. The case between the Raiders and the Soul began on March 15, 2016; three years after Knight elected against the Raiders and made it pay his claim. None of the other employers bothered to appear. That worked well for the Destroyers, as there was no jurisdic-tion over that club due to the reciprocity statute, and Tampa Bay, as they were not in the last year of CT exposure, and there was also a question of jurisdiction, since Knight never played in California for Tampa, (Arbitrator’s F&A at 2).

On the other hand, the Arbitrator found that California did have jurisdiction over the Soul. He seemingly ignored that Knight played for the Soul in San Jose, California on March 11, 2005. Instead, the Arbitrator noted that Knight had been a California resident during a portion of the CT period, owned land in California during a portion of the CT period, had medical treatment in California during the CT period and had played for the Raiders during a portion of the CT period. “Therefore, it is clear that California can assert jurisdiction over this defendant (the Soul)” (Id. at 2). Yet all of that is also true over Tampa, and the only difference is the game played in California.

The Arbitrator noted that the Raiders’ Arbitration Brief stated that the Soul had workers’ compensation coverage through the Pennsylvania Insurance Fund (Id. at

Family of Braves Fan Who Fell Sues TeamContinued From Page 8

As Edwin A. Machuca, senior counsel at CBRE (www.cbre.com), a global leader in real estate services, wrote for Sports Litiga-tion Alert in 2012, “Effectively managing the venue includes ensuring the safety of its occupants. First, a property manager should develop a risk assessment analysis of the venue in order to address any safety concerns, such as: low-lying stadium railings that can lead to fans falling over, proper maintenance and operation of escalators, safety exits, stair cases, corridors and other common areas.”

The complaint can be viewed here: http://media.cmgdigital.com/shared/news/documents/2016/04/19/fan_lawsuit.pdf l

2/3). However, since neither the Fund nor the Soul bothered to appear, in despite of the fact that the Soul had been in the case since 2011, the Arbitrator stated that without proof of insurance, he could not find against the Fund. Thus, “(l)iablity will fall solely on the Philadelphia Soul,” (Id. at 4).

Should the Soul seek to set aside the arbitration decision, they will have a lot of ‘splaining to do as to why they never showed. The next step for the Raiders will be to get an enforceable judgment.

California workers’ compensation laws bedevil California companies so it is hardly a surprise that periodic visitors to the state can become ensnared in its tentacles. For-tunately for the Soul, $100,000 is small by California CT standards, but it should put all out of state teams on notice as to may await in the Golden State, with its golden payouts for workers’ compensation awards. l

http://media.cmgdigital.com/shared/news/documents/2016/04/19/fan_lawsuit.pdf





See 8th Circuit on Page 13

Pro Team General Counsel Talk Shop at Sport Lawyers MeetingContinued From Page 1

Thigpen commented that it’s a lot of fun being in-house counsel, particularly because you get to be a part of the business enterprise and not just an outside legal advisor. You get to be involved in multiple facets, especially events. But, the 24 hours/day can wear on you, especially if you are small legal department.

Keenan added that you won’t likely see a successful general counsel in professional sport who doesn’t have a business skill set that complements their legal skill set. Being in the early meetings on a business deal affords you the understanding to do your job more effectively and efficiently. In fact, Keenan noted that his mentor expects him to listen to both parties in those early meetings and solve for any disconnects, and those business skills are essential to do so.

Player DisciplineLee continued the session by asking about employment related issues, specifically player disciplinary matters.

Hillman basically reframed the issue to the non-player side since most player-related issues are handled through the league and the players association. He advised law students to focus on becoming well versed in employment law issues like workers compensation since that is where much of his issues take place.

Thigpen concurred with Hillman about player-related issues being handled by the league. But, he noted that player-related issues do present challenges for franchises on how they react and respond to such issues, especially in today’s age of instant notification through social media and other means. The organization must have a system in place to handle whatever may present, and be able to balance what the public is demanding with the player’s rights (both under the law and under the collective bargaining agreement) and what is best for the team and organization as a whole. While the league can get involved with non-player

discipline when anyone affiliated with the franchise behaves poorly, it is most often taken care of in-house unless it rises to conduct that is detrimental to the league.

Keenan didn’t have day-to-day involve-ment in player issues, but when an issue rose to a level where it had implications on employment contracts or further aspects of AEG business, then he would get involved. Even with language that requires players to adhere to the highest standards or morality, integrity, and sportsmanship and that they must refrain from doing anything that will be contrary to the best interest of the club, league, and hockey in general, Keenan noted that it is extraordinarily difficult to termi-nate a player’s employment contract. Drug use, drug trafficking, and domestic abuse were actual player related issues that rose to such a threshold for which Keenan had to get involved. He highly recommended having a crisis plan in place that coordinates the organization response to media, spon-sors, partners, etc. to maintain associations with these constituencies, and the overall business and its reputation.

Thigpen reminded the audience that although we hear about bad actors very quickly and easily because of the media attention professional athletes draw, the majority of them are good guys and most of the time issues like these do not affect organizations all that often.

Morals ClausesWith a nice segue, Lee redirected the conversation from morals clauses in player contracts to morals clauses elsewhere, asking the panel to what extent they see them in use in sponsorship agreements.

Hillman characterized morals clauses as alarmingly frequent in sponsorship agree-ments he has seen recently, and they are mostly rejected because they are often too broadly written, allowing them to serve as pretext. If he and his team are unable or unwilling to reject them, they qualify the

morals clause more carefully and narrowly, as well as embed a cooling off period element to allow for whatever issue that may have triggered the morals clause to play out a bit further before terminating an agreement. Furthermore, they insist on the morals clauses being bilateral versus unilateral.

Keenan added that he sees them regularly and resists them as well, but when used he and his team include an objective measure of some material adverse impact on the business in order to trigger the termination based on a morals clause.

League ExpansionIn a new line of questioning, Lee asked each member to discuss expansion specific to each panelist’s league and the issues and resolutions they encountered as part of it.

Hillman reminded the audience that the NBA has not had an expansion move since 2008 when the Seattle Supersonics moved to Oklahoma City and became the Thunder. However, he noted that the NBA is looking for franchise stability, and keeping them in their respective towns is a priority.

Thigpen concurred with Hillman’s stability comment for the NFL as well, but movement does happen as the Rams just moved back to Los Angeles. He men-tioned that the Oakland Raiders situation is untenable in the long term and that they are looking at Las Vegas if a community solution near Oakland cannot be found. Five years ago the NFL would not have even considered getting that close to the gambling world, but they are now and if at least 24 owners agree to such a relocation, we may be watching football in Vegas live.

Keenan had some experience across different leagues with expansion, and although AEG failed to secure an NFL team in downtown Los Angeles with its Farmer’s Field endeavor, its Major League Soccer initiatives have panned out well.




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Pro Team General Counsel Talk Shop at Sport Lawyers MeetingContinued From Page 12

He also mentioned AEG recently opening T-Mobile Arena in Las Vegas where they hope to secure an NHL team. However, he cautioned that the amount of work, time, and effort that goes into preparing for an expansion franchise, without any guarantee, is daunting.

Media RightsLee concluded the session by asking about media rights in a changing world, specifical-ly around issues with technology and social media, as well as new media opportunities and their anticipated legal issues.

Thigpen noted that carving out and separating new media rights could build value for franchises and expand partner-ships. However, Hillman cautioned that the value of exclusivity is important, and looking at the relationship from a partner-ship perspective rather than a licensor/

licensee relationship could avoid dilution and unnecessary competition. Keenan commented on a softening of the TV rights market and such uncertainty encouraged his company to re-focus on the in-seat consumer and how they can better the experience for them, citing Coachella and Stagecoach music festivals as examples. Thigpen concurred regarding the in-seat consumer citing that TV has gotten so good that making the stadium experience better (e.g. upgrading Wi-Fi, cellphone infrastructure, A/V systems) is critical to draw them away from the TV.

Keenan also noted that ticketing plat-forms provide another way to connect with and know more about customers, like beacon technology that provides ambient context identification and background positioning and detection. Such massive data collection has obvious legal implica-

tions. While it can help a business become more effective and efficient, it costs a lot of money and time talking about data security and privacy policies. Thigpen agreed that although the capacity to collect tons of data exists, the trick is utilizing it. Determining who needs to know what to take advantage, as well as how to do it while protecting rights of those from whom the data came. Hillman added that in 2006 they bought the Veritix to help them better understand the secondary ticket market so they could develop more targeted and meaningful sales offers. l

Martin is an Assistant Professor of Recreation and Sport Manage-ment at California State University, Northridge and the Executive Direc-tor of the CSUN Aquatic Center at Castaic Lake.

http://www.greenbergglusker.com



By Gil Fried and Takao Ohashi

Most of those familiar with sport law, especially the liability side, know

about the “baseball rule.” The rule as ap-plied by many courts for almost 100 years is that an owner or operator of a ballpark should not be held liable if a patron is hit by a projectile leaving the field if the owner/operator has provided enough screened seats for those who might demand such protected seats and if the most dangerous part(s) of the ballparks are protected. The law has faced challenges over the past couple years with some courts refusing to adopt the principal and using a basic negligence approach (such as assumption of risk). There currently is a class action suit against Major League Baseball (MLB), which faced a summary judgement decision in California last month based on jurisdictional issues with teams outside of California. The suit, examining what MLB is doing to protect fans, was also impacted by a recommendation by MLB before the start of the 2015-16 season to encourage teams to expand the amount of netting at ballparks.

Regardless of how that case will con-clude, it is important to examine where we stand with the baseball rule in light of how the game has changed over the years. When the rule was first developed by courts- it was in the early 1900’s with some cases before 1920- the game was a lot different back then. People came to the games in suits and top hats. There were no mascots, scoreboards, Ferris wheels, outdoor pools, kid zones, and other distractions at the game. Nowadays, the players are stronger, the bats are better, the pitchers are stronger, fans are closer to the action, and some claim the ball is a lot livelier. Also, the fans have changed in terms of their viewing habits. Years ago fans were not burdened by live streaming, social media updates, and surfing the web. Yes, some fans kept score in the program,

but were able to really watch the game and notice foul balls entering the stands. Teams/stadiums are enabling this activity and encouraging fans to be as engaged as possible with content and the team. Thus, the viewing patterns have changed and fans need enough protection to reflect the current state of the industry.

What do these changes mean? It means that maybe the baseball rule is not as ap-propriate as in years past. As an expert wit-ness in probably 20 batted ball cases over the past 20 plus years, I have been a strong advocate, believe it or not, of a modified baseball rule. I feel that in certain areas of a stadium a fan should not be able to recover for being hit by a foul ball. However, there are locations where injured fans should recover- if the area was not safe. That is what I want to focus on in this article. The baseball rule requires a team/stadium

to protect the most dangerous part of the stadium, but where is that?

As a college professor, we rely on research to identify possible concerns and solutions. Many teams/stadiums track incidents through their incident management soft-ware system. These systems track everything from broken seats to fan complaints and fan injuries. The data can be used to identify where fans are most likely to be injured and where the most frequent locations are for foul balls. Medical treatment records can also help shed light on such incidents. One of my peer reviewed articles several years ago examined data from fan injury reports at an MLB stadium, foul balls tracked at an MLB stadium, and foul ball locations at a minor league park. From these stud-ies, as well as other research, we identified the first and third base lines as the most

The Baseball Rule Redux

See The Baseball on Page 15

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dangerous parts of the ballpark. The ques-tion then becomes whether the new MLB recommendations will actually cover these areas? The area extends beyond just the start of the dugout and runs the length of the dugout according to our perspective. The same analysis has also been undertaken in Japan and I want to summarize some of that research provided by my colleague Takao Ohashi (who practices sport law in Japan for the Toranomon Kyodo Law Office). There are 12 teams in the Nippon Professional Baseball Organization.

In 2005, the Tokyo Dome protected field seating with netting installed so as to extend in front of infield and outfield seats. Similar netting was used in 2008 at the Seibu Dome, in 2010 at the Osaka Dome, and in 2013 at the Yokohama Stadium. However, in 2005, the protective netting for the infield seats was removed at Yokohama Stadium,

and the netting for the infield seats was removed from the Sapporo Dome in 2006.

In Japan, announcements are typically made before and during games at ballparks to warn spectators about being hit by foul balls. Warnings are also displayed on signs and on scoreboards, employees blow whistles when a foul ball is hit, warnings are printed on the backs of the tickets, and fan viewing rules are posted on the team websites, as examples. MLB teams often use some of the same techniques, but Mr. Ohashi’s opinion is that there are more frequent warnings in Japan.

In contrast to the rich history of cases around the baseball rule, the first verdict in a foul ball injury case in Japan was handed down in the Kleenex Stadium case in 2011. That same year saw a verdict in the Kamagaya Stadium case, followed by a verdict in the Koshien Stadium Case in

2014, and a verdict in the 2015 Sapporo Dome case (which was just decided on appeal). Thus, the law in Japan is much less developed.

There is no limited duty rule in Japanese law, and the point at issue in foul ball ac-cident litigation is construction liability (Civil Law, Article 717), which focuses on whether or not the stadium is “as safe as it normally should be.” Specifically, these cases focus on the safety of locations where foul ball accidents occur and generally take into consideration the physical situation and measures undertaken to alert people to foul ball accidents. According to this standard of judgment, Japanese case law up to 2013 recognizes that conditions are safe to the extent that there is appropriate balance between three elements: protection of spectators’ safety, the obligation for spec-

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The Baseball Rule ReduxContinued From Page 15

tators to exercise due caution, and the sense of presence that is an essential element of professional baseball. Further, this standard recognizes that the responsibilities assumed by teams and stadium owners are limited to the extent that spectators having a normal capacity to make decisions would obviously be aware of foul balls when they watch a professional baseball game at a stadium. All three of the cases up to 2013 were lost by the injured plaintiffs.

The Sapporo District Court, in a 2015 decision involving the Sapporo Dome, did not adopt the principle of “sense of pres-ence” that had been one of the elements considered in previous decisions. The court held that safety should not be sacrificed in the pursuit of a sense of presence. This same decision limited the spectators’ duty to exercise caution and for the first time handed down a victory to a plaintiff, hold-ing teams and stadium owners accountable for implementing safety measures that take into account the presence of spectators who may not be paying attention to the ball. The appellate court in 2016 decided not to adopt the “sense of presence” rule so the plaintiff lost that claim. The plain-tiff prevailed against the team, Hokkaido NipponHam Fighters, on a contract claim. The plaintiff was a parent guardian on a school field trip to the stadium and since this was her first game ever attended and she was working (not their as a baseball fan but supervising children) the team had an obligation to provide her with additional warnings.

Similar to the limited available public research on MLB foul balls, the only foul ball study from Japan focused on the Japanese high school spring and summer national championships in 2002 (both

held at Koshien Stadium). This research was undertaken to develop safety measures in the wake of an incident at the summer national championship in 2001 in which a member of a brass band, who was seated in the infield “Alps” seats, was struck and blinded by a foul ball. Although this was not necessarily an accurate comparison to professional baseball (they were high school students using metal bats) it is clear that the areas subject to sharp foul balls were the first and third base sidelines.

MLB’s 2015 recommendations do not speak to the height of protective nets, saying only “…that shields from line-drive foul balls in all field-level seats that are located between the near ends of both dugouts.” Similarly, there are no consistent rules or guidelines for protective netting in NPB. Japanese courts rely on the construction guidelines for baseball stadiums issued by the Exterior Sports Facilities Commit-tee of the Sports Facilities Association as guidelines. These guidelines suggest that stadium infield protective netting should be approximately 3 m (9 feet) high. The average height of stadium infield protective netting is approximately 4.59 m (13.77 feet)(fence and protective net), and judicial precedent up to 2013 made use of the question of whether or not the standard was met as a basis for decisions. In the 2015 Sapporo Dome foul ball case, the accident occurred with a net approximately 5.6 m (16.8 feet) above ground level. The netting was actu-ally lower than it had been in the past. Nevertheless, the court did not attach much importance to this fact, and as indicated earlier, limited the spectator’s obligation to exercise due care, which resulted in a victory for the plaintiff.

Of course MLB and NPB are not the

same and there games are different. How-ever, as Japanese and American courts are starting to more liberally interpret the baseball rule (or to get away from its strict interpretation), MLB teams should con-sider examining every stadium to determine what are the most dangerous areas and how much actual protection they need. While MLB claims that fans do not want the net to interfere with their viewing and fans want souvenirs, the facts show that the most expensive seats at most stadiums are already behind the home plate screen and these fans do not complain. Furthermore, having a net in the infield protects against the sharp line drives, but allows the less harmful pop-ups to still be caught by fans. The same concern was raised by the NHL before the death of a Columbus Blue Jackets fan, but after the NHL increased netting at all their arenas they do not hear any complaints from their fans. I hope it doesn’t take a death for MLB to provide enough netting to protect the most dangerous areas in their stadiums. I would challenge every MLB team to pub-licly release data showing where the most frequent line drives land and how many people were injured in those seats and how many people could have been protected by adding enough netting to cover the area impacted by the most frequent line drive foul balls. l

Gil Fried, is sport management professor at the University of New Haven and has been serving as an expert on sport facility safety issues for almost 25 years.

Takao Ohashi is an attorney in Ja-pan and a partner in the Toranomon Kyodo Law Office.




See The Hypocircy on Page 18

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The Hypocrisy of AIG Not Insuring Players against Head TraumaContinued From Page 1

League by retired players claiming the NFL knew about and covered up the dangers of concussions in football. Justice Oing ruled that the NFL must make available to insur-ance companies its executives and league doctors for depositions as well as producing relevant documents concerning what the NFL knew about concussion risks and for how long those risks were known. Justice Oing is quoted as having said: “I can’t stop this anymore.”

The NFL has previously argued against lifting the discovery stay claiming that allow-ing depositions and written discovery to go forward might jeopardize the approximately $900 million settlement between the NFL and thousand retired players. The timing of Judge Oing’s ruling may not be coincidental because earlier in April, the United States Circuit Court of Appeals for the Third Cir-cuit had upheld a lower court ruling that the

settlement was fair despite being far from perfect and, in so doing, may have neutered the NFL’s prejudice argument.

Finally, in March 2016, the Pennsylvania-based youth football organization Pop War-ner, settled a wrongful death lawsuit filed in Wisconsin by the mother of a man who committed suicide, allegedly as a result of numerous head injuries he suffered playing in a Pop Warner football league as a child. According to the New York Post, the Pop Warner case was settled for less than the $2 million limits of a liability insurance policy issued to the youth football organization by Lexington Insurance Company, an AIG company. The newspaper also reported that AIG stopped insuring Pop Warner “a few years ago as the NFL’s concussion crisis trickled down to the high school level and even younger.” The youth football organi-zation now reportedly maintains liability

insurance coverage through K&K Insurance Group with limits of $1 million per player and individual chapters have the option of purchasing an additional $1 million in coverage per player.

On its website, AIG trumpets itself as a “multinational insurance corporation with more than 88 million customers in 130 countries. AIG companies employ over 64,000 people in 90 countries.” In fact, prior to the financial crisis of 2008 and the $182 million federal bailout for AIG, the company had been ranked as the largest insurer in the world. The bailout muted the carrier’s bravado and, in an April 2009 interview AIG CEO Edward Liddy, acknowledged that “AIG will never again be the world’s largest insurer. Pretty soon you will have a much smaller AIG. And what is left will look a whole lot different than

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it does today.” While AIG is no longer the largest insurer in the world, in 2014 it still ranked as the 8th largest writer of property and casualty insurance (by direct premiums written), collecting nearly $19 billion dollars in premiums. Among the AIG expenditure areas hardest hit by the 2008 bailout was the amount of money AIG invested in sports sponsorships.

Before the 2008 crisis, one of the most iconic and universally recognized logos in all of sports was the white “AIG” insignia, set out inside a white bordered rectangular box, on the front of the fire engine red soccer jerseys worn by members of the Manchester United Football Club, one of the most valuable sports franchises in the world. The AIG logo on the Red Devils jerseys dwarfed the Nike swoosh and the football club’s gold crest that sat above it. That jersey sponsorship had cost AIG approximately

$19 million per season, although it was originally worth nearly $25 million annu-ally, due to the prevailing exchange rate, when the sponsorship deal was first inked in 2006. The Manchester United deal was scheduled to run through 2010 but partner-ship changed after the 2008 crisis, when it was announced in 2009 that the four-year deal would not be renewed.

It took AIG several years after the debacle of 2008 before getting back into sports spon-sorships. In 2012 AIG announced that it had launched an international rugby platform that included multi-year sponsorship deals with USA Rugby and the New Zealand Rugby Union. AIG’s 5-year sponsorship deal with NZRU costs AIG about $15 million per year or $75 million in total. AIG also served as the official global insurance partner of the 2013 Rugby World Cup Sevens held in Moscow.

Perhaps the most well-known rugby team in the world is New Zealand’s All Blacks, known as much for having one of the win-ningest records in all of sports, as they are for wearing all black uniforms and their world famous pre-game ritual of performing a traditional Haka dance, complete with a throat slashing motion aimed at their op-ponents. The recognizable capitalized white AIG logo, set out in the same white bordered rectangular box that once adorned the red Manchester United jerseys, is now plastered across the front of the black Adidas jerseys worn by the All Blacks rugby club, as well as five other NZRU teams. In New Zealand sports, the AIG deal is second in value only to the All Blacks contract with Adidas.

While Rugby is one of the fastest-growing sports in the world, it is also one of the more violent sports where concussions are all too




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Ed SchaudEr has almost 30 years of experience handling complex corpo-rate and finance transactions. Ed has maintained a sophisticated corporate and finance practice, advising clients in mergers and acquisitions, venture capital, public and private debt and equity offerings, PIPE transactions, leverage buyouts, SEC compliance and general corporate planning. Throughout his career, Ed has also been intimately involved in both the legal and business side of the sports and entertainment industries. Prior to joining Steiner Sports, Ed conceived and implemented a unique concept in sports marketing. By forming incor-porated entities made up of members of championship sports teams or professional athletes linked together by similar accomplishments, he cre-ated programs to protect and market their intellectual property. From initial contact with the athletes to obtain-ing licensing rights, corporate spon-sorships, endorsements, autograph memorabilia deals and appearances, Ed represented some of sports histo-ry’s most beloved and storied teams, including the 1969 Mets, 1977 Yan-kees, 1972 Miami Dolphins, 1980 United States Olympic Hockey Team, and 1986 Giants. Ed has extensive experience building and protecting sports properties while raising money for numerous worthy charities in the process and is considered an expert in sports licensing.

Ed formerly was a Partner and the Chairman of the Sports and Enter-tainment Practice Group at Sichenzia Ross Friedman Ference LLP.

Ed is a recipient of the prestigious 2016 Ellis Island Medal of Honor.

Sports and Entertainment Experience

For almost 30 years, Ed has nego-tiated sponsorship and endorse-ment agreements in transactions involving some of the most iconic athletes, entertainers and brands of our generation including: the 1969 Mets, 1980 Olympic Hockey team, Tiger Woods, Arnold Schwarzeneg-ger, The Cleveland Cavaliers, Derek Jeter, Mariano Rivera, Manchester City Football Club, Mike Tyson, Alex Rodriguez, 1994 New York Rangers, David Wright, Walt “Clyde” Frazier, Larry Bird, Odell Beckham, Jr., Triple Crown Winning Jockey victor Espino-za and countless Hall of Famers in all major sports league. Ed Has also rep-

resented Steiner Sports for the past 5 years including Steiner’s player agreements and partnership agree-ments with the New York Yankees, Madison Square Garden, the Boston Red Sox, Notre Dame and Syracuse Universities and the Brooklyn Nets.

Charitable and Pro Bono Representations

• Co-Founder of the not-for-profit Negro League Baseball Players Association and served as its General Counsel.

• General Counsel to the 2011 World Police and Fire Games and was re-sponsible for negotiating all of their sponsorship, endorsement, licensing, marketing and venue agreements.

Speaking Engagements / Other Activities

Ed has appeared on “Good Morning America” and numerous sports cable network shows and has been a fre-quent guest on WFAN Radio. He has been featured and quoted in numer-ous sports industry periodicals and national newspapers and magazines. Ed is also on the editorial board and is a frequent contributor to Professional Sports and the Law, a periodical that is distributed to General Counsel of major sports leagues and their fran-chises and the Sports Litigation Alert. Ed is also a member of the New York City Bar Association and the Sports Lawyers Association.

Edward SchaudErExECutivE viCE PRESidEnt LiCEnSing & gEnERAL COunSEL

prevalent. According to a 2015 Bloomberg article, concussions were the most common injury at rugby premiership clubs for a third year in a row, accounting for 12.5 percent of all injuries. English clubs reported a 59 per-cent increase from the previous year. Because of the increasing frequency of head trauma in rugby, including a May 2015 coroner’s inquest in Dublin that concluded a former amateur rugby player had died at the age of 57 from repeated head blows while playing for the Landsdowne rugby club, the sport may be at risk of lawsuits similar to the NFL. Last January a famous New Zealand rugby player was forced to retire at the age of 33 after suffering at least 20 concussions and blackouts during his playing career.

In November 2013 AIG announced its arrival as the sponsor of the Dublin County Board of the Gaelic Athletic Association (GAA) in Ireland. The Dublin GAA is one

of the 32 county boards of the GAA in Ireland and is responsible for Gaelic games in the Dublin Region and the Dublin inter-county teams. AIG’s resurgence in sports sponsorships culminated earlier this year in AIG winning the award for the Best Rugby Union Sponsorship of the Decade at the United Kingdom Sponsorship Awards. AIG also won the 2016 award as the best Business to Business Sponsorship for their partnership with New Zealand Rugby.

Danny Glantz, the AIG Global Head of Sponsorship, recently shared his views on the value of jersey sponsorships with the website Repucom, noting that “a jersey sponsorship offers a brand the ability to differentiate itself in a busy advertising and sponsorship environment and maintain visibility as ad-blocking technology grows. Exposure goes well beyond a match or game, with the brand featuring in sports highlight videos

and photographs in traditional and social media. If done well, jersey sponsorships can grow brand awareness, loyalty, equity and recall. They can also help reach targeted markets.” Mr. Glantz also noted that “be-cause of jersey sponsorships, our AIG logo has received exposure in some unexpected places. A Dublin GAA fan wearing a jersey with our logo was brought up on stage at a U2 concert at Madison Square Garden. A journalist who was kidnapped and held hos-tage for more than two years in Somalia was repeatedly photographed and videotaped wearing a Manchester United jersey with the AIG logo front and center. A safety video for Air New Zealand … currently features the All Blacks in business suits and an ador-able dog “Frank the Pug” wearing the AIG branded jersey. Most recently the Reserve Bank of New Zealand, in association with



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New Zealand Post, produced the world’s first jersey shaped coin and All Blacks Stamp.”

In addition to its NZRU and the Dublin GAA sponsorships, AIG is also currently listed as an “event sponsor” for USA Football, which is the fourth highest level of sponsorship of that youth football organization. According to the recent New York Post article, AIG is also one of the chief sponsors of USA Football’s 2016 Protection Tour which travels around the country teaching kids ages 7 to 14 proper tackling techniques, correct helmet fit and use and other safety-related issues. The USA Football website publicizes AIG’s “aHead of the Game advocacy campaign,” which is described as helping to “reduce the risks of concussions and other head injuries in youth sports through greater awareness and educa-tion.” For AIG’s part, its website describes aHead of the Game as “an initiative to raise

awareness on the risks of concussions and other head injuries in youth sports.” On that same page, AIG also notes that “in 2012 there were 163,760 young athletes seen in the emergency department for a concus-sion, which is more than 8 percent of the 1.35 million youth sports-related injuries reported to the emergency department. This means that every three minutes a child is seen in the emergency department for a sports-related concussion.”

A number of commentators have criti-cized AIG’s decision to stop insuring NFL players for head trauma as hypocritical or misleading. One risk management expert is quoted as describing the decision as “false advertising” noting that AIG is “putting [its] name on something [it] will not insure.” This author agrees. It appears that AIG wants it both ways; it gladly accepts the benefits of brand awareness and recognition from jersey

The Hypocrisy of AIG’s Conflicting PoliciesContinued From Page 19

sponsorships, hoping that a new generation of fans will wear jerseys with the AIG logo plastered across the front, and loudly touts is concussion initiatives like aHead of the Game and its event sponsorship of USA Football, while simultaneously seeking to avoid any defense or indemnity obligations for “claims related to bodily injury allegedly suffered by individuals due to brain injuries that occurred while playing football” under numerous policies of insurance it issued to the NFL over the course of a dozen years. And, if that hypocrisy were not enough, AIG canceled its insurance coverages for the very youth football leagues the aHead of the Game initiative is aimed at protecting and now refuses to provide insurance protection to NFL players against the damages caused by head trauma. l

Giller is a partner at Polsinelli. More can be found on him here: http://www.polsinelli.com/professionals/rgiller


http://www.polsinelli.com/professionals/rgiller



l Volume 7, Issue 2 and the - Andresen & Associates · 2020-02-27 · insurance. On June 12, the...

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