Mr. Darren Heitner is one of a select group of University of Florida alumni named to this year’s prestigious “40 Under 40.” Honorees receiving 2019 Outstanding Young Alumni awards were recognized during a campus ceremony on Saturday, April 13.
Bay State Brewing Company, Inc. sought to trademark TIME TRAVELER BLONDE for “beer.” The Trademark Examining Attorney refused registration because it too closely resembled the already registered mark, TIME TRAVELER, registered by A&S Brewing. The registered mark is also for “beer,” and includes “ale and lager.” Bay State conceded that there is a likelihood of confusion between its mark and A&S, and more specifically that “the marks are similar and the goods related.” However, they believed that registration was still appropriate because it signed a consent agreement with A&S. The agreement acknowledges that confusion is likely unless both parties adhere to the terms of the agreement.
The relevant terms of the agreement state that neither company will use “Time Traveler” without its house mark; that Bay State’s logo must include “BLONDE”; that both must ensure that their trade dress is different; and that Bay State will not use its mark outside of New England and the State of New York.
Normally, where a consent agreement is involved, it can be given great weight. Consent is evidence that the marks may not be confusing when they co-exist in commerce. But this case was not the typical case. Both marks are nearly identical, the only difference between the two is the inclusion of “BLONDE” in Bay State’s mark. The examining attorney held that “BLONDE” was not enough to overcome the hurdle of confusion. Since “BLONDE” is a type of beer, it does not help to further distinguish the brands.
Bay State additionally argued that the geographical limitations would help to ease confusion in the market. However, the geographical limitation was not enough, because both marks overlap geographically. Although Bay State has a limitation, the same limitation does not apply to A&S.
Something of note in this case is the distinction between a geographically restricted registration and a nationwide registration. Bay State was geographically restricted per the consent agreement and yet, it applied for a nationwide registration. It seems that the board may have been more willing to grant the registration had Bay State applied for the appropriate registration. The examining attorney was uncomfortable affording Bay State’s mark a larger geographic scope than it sought to actually have.
Although the examining attorney outweighed the consent agreement with other factors, this decision does not signal the end for consent agreements. They are still a useful tool for those seeking to register a mark somewhat similar to an already registered mark. As stated above, the board acknowledged that consent agreements are “frequently entitled to great weight.” Nevertheless, it is still important to keep in mind the additional factors when signing a consent agreement.
Golf is a great sport. I’ve been promising myself that I’m going to get around to really learning how to play. And the excitement from this weekend may have given me the final nudge I need. As I did my routine check of the sports blogs I learned that there was a big brouhaha at this the Solheim Cup. For a novice, the story created so many questions. What’s the Solheim Cup, a concession, and why is everyone upset? In true Cecelia fashion, I set out to get answers. And once I got them it occurred to me that there might be others who wanted answers, so here’s my effort to share what I learned and educate a few people about some of the rules golf.
What’s the Solheim Cup?
The Solheim Cup is a biennial professional women’s golf tournament between the United States and Europe. That’s right, one country versus an entire continent. Go USA! The three-day tournament consists of twenty-eight matches—eight foursomes, eight fourballs and twelve singles. Players are selected based on their performances and rankings in the Ladies Professional Golf Association (LPGA), Ladies European Tour (LET) and Women’s World Golf Rankings.
Foursomes, Fourballs and Singles, Oh my!
Here are some key terms to help you understand the Solheim Cup and the drama.*
Singles: This is what most people think of when they think of golf. It’s every woman for herself. Each player plays each hole alone, against a single opponent and the person who wins the most holes (by taking the fewest strokes), is the winner.
Fourball: This form of play places two teams of two players directly against one another. Each golfer plays her own ball through the round so that there are four balls on the course at one time. The team’s score on each hole is determined by the teammate who scores the lowest, commonly referred to as the best ball. Each hole is won by the team whose member has the lowest score on that hole, and that team is awarded a point for the hole.
Foursome: This form of play places two teams of two players directly against one another, but only two balls are in play at one time. A hole is played when each player alternates shots with her teammate until the team holes out, or puts the ball in the hole. One teammate tees off at even holes and the other at odd. The team that takes the fewest strokes to hole out, wins the hole.
Concede a Hole: To concede a hole is to stop play on a hole and admit that another player has won the hole. For instance, if my opponent shot two under par (the number of strokes set as a standard for a specific hole) and two shots from par I hit my ball in the woods; I would concede the hole because at that point there’s no way for me to tie or beat her. The purpose of conceding a hole is to speed up play.
The Thing About Golf
There’s this thing you have to know about golf. It’s considered a gentlemen’s game. There aren’t referees, umpires or line judges. Everyone is expected to self-police and uphold the rules and spirit of the game out of a sense placing sportsmanship over winning. Players self-report their errors because the game is bigger than they are. That works more times than not, but nothing and no one is perfect.
What happened at this year’s Solheim Cup?
During the last day of fourballs U.S. teammates Alison Lee and Brittany Lincicome were playing the 17th hole against Europeans Suzann Pettersen and Charley Hull. Lee missed a putt and moved on to the 18th hole without completing the hole. She did so because she believed she heard someone say that the hole was conceded. Her belief was confirmed (at least based on common practice) when Hull immediately and briskly walked to the 18th hole rather than wait for Lee to finish. Pettersen later stated that the Europeans had not conceded the hole. The rules provide that a concession has to be clearly stated in order to be valid. When the Americans could not provide evidence that a concession had been given, the Europeans were awarded the point and subsequently won the match. Essentially, Hull and most others understood that Hull walking to the 18th hole signaled a concession. Pettersen (who would later apologize) chose winning over sportsmanship and used Hull’s failure to give a verbal concession to the Europeans’ advantage. Her unsportsmanlike conduct initially paid off, but would ultimately be pointless because the Americans mounted a comeback in the round of singles and took home the trophy. Maybe karma is referee enough in golf.
Hopefully, you learned a thing or two.
*These explanations apply to match play, which is a system where a player, or team, earns a point for each hole where they have beat their opponent. The opposite method of keeping score is stroke play, which counts the total number of strokes over one or more rounds of 18 holes.
Last week Patriots fans rejoiced as a federal judge ruled in favor of Patriots quarterback Tom Brady and erased his four-game suspension. It was another blow to the top brass of the National Football League (NFL or League) who have been in hot water for their seemingly less than capable management of player infractions. This was a major win for Brady so I thought it would be a good idea to explain exactly how he was able to beat the NFL and its commissioner Roger Goodell. Before we get to meat of Brady’s win, let’s take a step back and figure out how we arrived here in the first place.
Brady’s suspension was a result of Deflategate, an investigation into allegations that Patriots employees, with the knowledge (and perhaps at the behest) of Tom Brady, deflated footballs below NFL guidelines to receive a competitive edge. The investigation led to Brady’s four-game suspension* which prompted Brady, through the NFL Players Association (NFLPA), to appeal under the League’s Collective Bargaining Agreement (CBA). At the appeal hearing Goodell served as the arbitrator and (surprise, surprise) upheld the suspension.
Thankfully for Brady, Goodell doesn’t always have the final say. While the NFL is a private organization, the nature of its business dealings makes it subject to certain federal laws. Two such federal laws are the Labor Management Relations Act (LMRA) and the Federal Arbitration Act (FAA). Here, the LMRA establishes that if a player or the NFLPA believes the NFL violated the CBA, they have the right to sue in federal district court. The FAA establishes the various grounds under which a federal judge can vacate the decision of the NFL arbitrator. With federal law at their disposal, Brady forged ahead in his fight against the four-game suspension and sued the NFL in federal court on the grounds that the NFL violated the CBA and Goodell’s hearing was patently unfair. And now we’re ready to get to the good part, the decision.
Some may assume that the judge’s decision exonerated Brady from any wrongdoing. To the contrary, Judge Berman’s decision to vacate the suspension had nothing to do with Brady’s actual guilt or innocence. Instead, Brady beat the NFL because Goodell failed to give Brady the proper notice and opportunity to defend himself against his accusers. It’s pretty entertaining the way Judge Berman shreds through the NFL, so I encourage you to read the decision yourself, but since you came here for the quick and dirty version, here it goes.
Judge Berman based his decision on following three issues:
- 1. Inadequate Notice of Discipline and Misconduct
According to Goodell and the investigation, Brady was disciplined for being generally aware of the Patriots employees’ misconduct and for failing to cooperate with investigators. Judge Berman determined that Brady had no notice that he could receive a four-game suspension for such behavior. You see, you can’t really penalize a person for an act where that person was never notified that such an act was wrong or where there were no established penalties for committing such an act. There exists no NFL policy or precedent that establishes that a person can be disciplined for having a general awareness of another’s alleged misconduct or that football deflation and non-cooperation can be penalized in the same way as steroid usage. At no time before had a player been held responsible for maybe knowing what someone else was doing or had equipment tampering and non-cooperation been disciplined with anything but a warning or fine. Goodell contrived a new infraction and ignored NFL policies to hand down discipline that was unquestionably more severe than the CBA envisioned.
- 2. Improper Denial of the Opportunity to Examine Designated Co-Lead Investigator
Jeff Pash, General Counsel of the NFL, was the co-lead investigator on the supposedly independent Deflategate Investigation. Brady had requested that Pash testify at the appeal hearing, but Goodell denied that request. Because the right to cross-examine adversarial witnesses is fundamental to judicial procedure and is established precedent within the NFL, Judge Berman determined that Goodell’s refusal was fundamentally unfair and a violation of federal law. The refusal, which had no justifiable basis, prevented Brady from examining the true nature of the investigation and questioning one of his primary investigators.
- 3. Improper Denial of Equal Access to Investigative Files
Goodell denied Brady’s request for access to documents created during the investigation done by Pash and the law firm Paul, Weiss, Rifkin, Warton & Garrison. One problem with denying Brady the documents was that after conducting the investigation, Paul Weiss went on to represent the NFL in the appeal hearing. So the NFL had access to investigative notes but Brady did not. Judge Berman ruled that Goodell’s failure to ensure that both parties had access to the same information was unacceptable and prejudicial to Brady. It essentially prevented Brady from properly defending himself.
In retrospect, Brady didn’t really have to beat Goodell and the NFL. They defeated themselves. Goodell’s questionable decision-making and novel rules were the sole reasons that the suspension was vacated. At the end of day, we’re actually no closer to guilt or innocence and the NFL’s disciplinary arm still remains unreliable. I guess we’ll have to wait for the next player infraction to see if the NFL will get it right.
*In addition to Brady’s suspension the League fined the Patriots $1,000,000, indefinitely suspended the involved personnel, and made the Patriots forfeit their first-round draft pick in the 2016 draft and fourth-round pick in the 2017 draft.
Russell Okung, All-Pro left tackle, made news by announcing that he had fired his agent and would be negotiating his next contract without agent representation. Okung is set to become a free agent next offseason and figures to have a long list of suitors including his current team, the Seattle Seahawks. Okung says, “I know my worth. I can look at the market and go directly to a team without an agent and tell that team my worth. And I can do so with confidence because I’ve done my research, I’ve educated myself and I’ve questioned the answers I’ve been given.” In place of an agent, Okung will hire a sports attorney to review the new deal and will pay a one-time flat fee not dependent on his salary. The decision by Okung to negotiate his next contract without agent representation potentially saves him millions of dollars. The maximum commission to have an agent negotiate his contract would be 3%. If Okung had retained his agent at the 2.5% he was paid for his first contract when he was drafted and Okung signed a multi-year deal for the average salary of a top 5 tackle, then his agent could be receiving north of $1 million. Okung represents the new wave of athlete who is a businessman and a brand on top of being an athlete. Okung says, “You see, there’s a new sort of athlete, and he’s not just an athlete. He’s a businessman and a living brand, a la Magic Johnson or LeBron James. He’s a player who represents himself because he not only understands the market and his own personal value, but has the self-assurance and financial know-how to do so, too.” Okung understands his decision to represent himself isn’t for everyone, but is leading the charge for players to “free their agents.” Okung does not believe that 2.5% is worth what agents provide. New York Giants running back Rashad Jennings is also pushing for players to negotiate their own contracts. At Heitner Legal, we excel at negotiating and drafting contracts and understand the dynamics involved in contracts such as professional sports contracts, endorsement agreements, licensing agreements, and entertainment contracts. We can guide anyone through the process of negotiating a contract and reviewing it to ensure our clients not only earn their value but are protected from potential liabilities as well. Resources: Darin Gantt, Russell Okung wants to test free agency without an agent, Pro Football Talk (Jul. 20, 2015, 2:08pm), http://profootballtalk.nbcsports.com/2015/07/20/russell-okung-wants-to-test-free-agency-without-an-agent/ Ari Gilberg, A former NFL 1st-round pick explains why he fired his agent and will represent himself as a free agent, Business Insider (Jul. 21, 2015, 9:19am), http://www.businessinsider.com/russell-okung-will-represent-himself-as-a-free-agent-2015-7
Unmanned aerial vehicles, better known as drones, have been a hot topic in the news in recent years. More businesses are finding ways to utilize drones to become more efficient and to lower costs while also providing new angles to view the world. No doubt, the sports industry and the broadcasting industry know the benefits of using drones to film their events. However, they must be aware of the legal background behind drone usage.
The use of drones is not recent, but actually dates back to as early as August 22, 1849, when Austrians used unmanned balloons filled with explosives to attack Venice during the First Italian War of Independence. The United States first developed drones in 1959 for use by the Air Force during Vietnam. Until September 11, 2001, drones were designed exclusively for reconnaissance purposes as surveillance aircrafts. Following 9/11, drones began to be loaded with weaponry for military applications. Throughout their history, drones have always been flown for recreation by hobbyists.
The Federal Aviation Administration (FAA) is currently attempting to facilitate access to and the use of drones while still imposing some barriers. For instance, hobbyists can fly a drone for recreational purposes if they comply with basic requirements. The FAA Modernization and Reform Act of 2012 provides criteria a drone must satisfy to qualify under the Act and to be exempt from FAA rulemaking. Furthermore, since July 2014, the FAA has been granting operators commercial use exemptions for drones at a high rate.
On February 23, 2015, the FAA proposed new rules for drone flying and piloting requirements, particularly for commercial uses. It provides a comprehensive list of operational limitations that include a drone weight limit of 55 pounds, daylight-only operations, a maximum flying altitude of 500 feet above ground level, avoidance of use around people, and more. Also, the operator must keep the drone in his or her visual line-of-sight and must not be careless or reckless in operating the drone. In enacting these new rules, the FAA would require operators using drones commercially to obtain certification, but it would eliminate the long process of registering and obtaining an airworthiness certificate.
Some states have enacted strict regulations on top of the FAA requirements, hoping to get ahead of the curve in drone regulation to ensure privacy for their residents. For instance, Florida prohibits an operator from using a drone to capture images of private property or persons on such property with the intent to conduct surveillance if a reasonable expectation of privacy exists, unless the operator obtains their consent. Therefore, teams, leagues, and broadcasters must recognize that compliance with drone laws go beyond compliance with the FAA.
Teams and broadcasters have begun using drones to bring new perspectives to players and fans. For example, the Golf Channel tested a drone at the Arnold Palmer Invitational at Bay Hill. College teams, high schools, extreme sports athletes, Formula One, and many other entities have begun utilizing drones as well. NFL teams have also gotten in the mix, as the Cowboys, Patriots, and Giants have used drones to film practices. However, the FAA is currently investigating these teams for potential illegal use.
In order to avoid investigation, teams, leagues, and broadcasters would be wise to hire or partner with a drone operator or business that is certified and registered with the FAA to conduct commercial flights and to consult with the FAA. The FAA is ready and willing to work with teams, leagues, and broadcasters to allow the use of drones for filming sporting events, as it granted FOX Sports permission to use a drone to film this year’s U.S. Open. But again, these entities must examine local law to ensure that they are compliant.
A big concern with drone use is also fan and player safety, as the FAA encourages drone operators to not use drones around people. Drones have a short battery life and can potentially malfunction. If a drone is flying over the crowd or field and malfunctions, it can potentially fall hundreds of feet onto the fans or players, causing significant injuries to the victims. Also, drones are loud. One of the best uses for drones is in golf, but golf is a sport that requires silence.
These are just a few examples of things teams, leagues, and broadcasters should be evaluating on top of assessing relevant laws. There are a lot of issues teams, leagues, and broadcasters should consider before employing the use of drones. Drones can provide these entities with innumerable benefits. However, they must be aware that there can be unforeseen consequences when using a drone commercially, even if they are complying fully with FAA regulations.
On January 17, 2015, veteran horse jockey Roman Chapa and his horse “Quiet Acceleration” were holding steady in the Richard King Stakes Race at Sam Houston Park in Texas. Suddenly, the horse shifted gears and ended up winning the $50,000 purse by a mere half a length. What may have looked like a valiant effort quickly took a turn for the worse. While every jockey dreams of winning by a “photo finish”, perhaps Chapa would have preferred to skip this step.
The race’s actual finish line photo revealed a small device in the palm of Chapa’s hand. According to the Horse Collaborative, the device is known as a “machine, battery or buzzer—a crudely fastened hand-held electro-shock device offenders apply to the horse to give them an extra jolt of encouragement.” Not only is the device cruel to the horses but it’s also a crime.
The Harris County District Attorney charged Chapa with one count of unlawful influence on racing. The charge is “a misdemeanor unless ‘the actor possessed the device or substance with the intent to influence or affect the outcome of a horse or greyhound race,’ in which case it is a ‘state jail felony,’ according to the Daily Racing Forum. The Texas Racing Commission has suspended Chapa indefinitely. All others involved with the horse, including the trainer/ owner, assistant trainer, Chapa’s agent, and an outrider, denied knowledge of the buzzer use. Chapa was suspended twice before, in 2007 and 1994, for using an illegal device or object. In 2012, he received a fine for whipping a horse in the face. In 2001 and 2002, he was charged with misdemeanor animal cruelty charges.
The Harris County Sherriff’s Department has issued a warrant for Chapa’s arrest. The real question remains: why is someone who is this cruel to animals still allowed to compete?
A lot has happened between the National Football League and National Football League Players Association these last few weeks regarding the scope and ability of Commissioner Roger Goodell to discipline players. Here is a brief summary of what has transpired:
- Ray Rice, the former Baltimore Raven’s running back, is now free to sign with any NFL team after Arbitrator Barbara Jones, a former federal court judge, ruled that the NFL abused its discretion in suspending Rice indefinitely after initially suspending him for two games stemming from a domestic abuse incident earlier this year in Atlantic City, NJ. Jones also suggested that the NFL take a second look at its disciplinary process in these types of matters.
- In the wake of the Rice ruling by Arbitrator Jones, NFL legal counsel Jeff Pash issued an executive memorandum to all NFL teams stating in part that Jones’ ruling did not raise any specter of Commissioner Goodell’s credibility, despite the fact that the Jones’ ruling essentially indicated that the testimony of Ray Rice, his wife, and a union attorney were more credible than those of the NFL’s witnesses, which included Goodell.
- On November 18, Arbitrator Shyam Das denied Minnesota Vikings’ Adrian Peterson’s petition for removal from the Commissioner’s “Exempt List.”
- In a separate grievance hearing held from December 2 through 4, former NFL Labor Policy Director Harold Henderson served as the neutral third-party arbitrator to determine whether Peterson should be reinstated in light of the discipline meted out by Commissioner Goodell and after Peterson agreed to a plea bargain. The plea bargain included a clause that stated his suspension would be for the remainder of this season “at least.” The NFL Players Association has publicly called into question the potential neutrality of Henderson.
- After Arbitrator Jones gently excoriated NFL executives in their handling of the Rice matter for a variety of reasons, word came from various reputable publications that the NFLPA, the players’ union representing Adrian Peterson, had requested that former union representative-turned-NFL executive, Troy Vincent, testify at the grievance arbitration for his role in possibly negotiating with Peterson a deal to attend a November 14 hearing in exchange for a “time served” penalty, instead of the full season suspension the NFL dealt a few days later to Peterson. Further, those same reputable outlets are reporting that Adrian Peterson recorded those conversations with Vincent and has a transcript. On December 2, Arbitrator Henderson granted the NFLPA’s request and Vincent testified at the hearing on December 4.
Authority under the NFL Collective Bargaining Agreement
Irrespective of whether the transcript or the taped conversations will be allowed in as evidence, or whether Peterson’s grievance is strong, there’s a bigger picture being framed here. The outcome of these disputes will further shape the new revisions to the NFL personal conduct policy.
Presently, NFL Commissioner Roger Goodell has very broad authority under Article 46 of the Collective Bargaining Agreement. Under this article, he has authority to unilaterally rule on player discipline and if such decision is appealed, it is again Goodell or an appointed designee that enters the final judgment on the appeal.
In April of 2007 the initial Personal Conduct Policy was established, which is now part of the Collective Bargaining Agreement, and was agreed to by the players after several off-the-field incidents involving players. An ad-hoc committee that actually included then-current players, in large part, shaped the Personal Conduct Policy. Former NFLPA Executive Director Gene Upshaw also consulted on the Policy.
The Policy at that time was widely hailed as a victory for the NFL, as off-field activity became an important issue. Some of the players immediately affected by the new policy were Adam “Pacman” Jones, Chris Henry, and Tank Johnson. Within months, the NFL applied the same Personal Conduct Policy to suspend Michael Vick indefinitely for his part in a dog-fighting ring. The Policy had, to that point, been utilized by the Commissioner’s office to suspend and fine players without regard for blowback from the NFLPA, individual players, or the public, because (a) it was jointly negotiated and (b) the Policy was being applied in some fairly egregious instances involving weapons charges, animal abuse, and multiple arrests.
Then came the decision from a Goodell appointee (and not coincidentally), his predecessor, Paul Tagliabue, in the New Orleans Saints bounty matter. In the bounty matter, Tagliabue overturned Goodell’s decision to suspend four Saints players because, in part, the investigation against the players had been tainted by the actions of coaches and members in the Saints organization.
Almost two years later, the Ray Rice matter concluded with a decision calling some to question the consistency of the NFL office in meting discipline in domestic abuse matters, and the credibility of NFL executives in their recollection of a meeting they had with Rice.
The NFLPA’s recent allegations against the NFL that one of its own executives, Troy Vincent, may have made a promise to Adrian Peterson to reduce his suspension to “time served” bears watching. Rules of evidence are relaxed in arbitration proceedings, which means there is a chance that the tape (although there are issues involving surreptitious recordings that may arise) and/or transcript of the taped conversation could at least be discussed at the hearing, if not evaluated as part of the overall evidence. Even without this evidence, it is important to note the commonalities between the Rice and Peterson matters, which involve two or more people debating what was said between one another. At a minimum this can serve to again undermine the disciplinary process, because it could be perceived that the NFL is working without a framework or blueprint in disciplining its players. After all, Peterson’s attorneys and the NFLPA have publicly accused the NFL of making things up as to the disciplinary process under the Policy when the Commissioner’s Exempt List is utilized. In fact, Peterson refused to attend a separate and special proceeding before outside experts that was scheduled by the NFL office.
Labor Law and Collective Bargaining
In labor matters, leaders of unions and management often tussle on issues prior to them being raised during actual collective bargaining negotiations. Part of what we are witnessing right now is a culmination of the aforementioned background involving the evolution and implementation of the Personal Conduct Policy in various scenarios. The NFL wants to retain as much control over the policy as it possibly can, while the NFLPA wants to rein in the power of the Commissioner’s office in Article 46 and define a process for discipline utilizing in part the Commissioner’s Exempt List, or some version of it. Incidentally, there is a similar dance going on between the NBA and NBAPA regarding what will eventually become a potentially contentious negotiation over basketball related revenue sharing and the NBA salary cap system.
At this time, it is difficult to predict if the NFL’s Personal Conduct Policy will change insofar as the extent of discipline and appeal process. However, with each Ray Rice or Adrian Peterson matter that pops up, the issue of management’s current ability to unilaterally discipline players and the scope of that discipline will come to the forefront. Each side, labor and management, will do the things we have seen in the last several weeks, to spin the message to their own advantage in the hope of either changing the scope of discipline completely or modifying it to some part, if at all.
Back in May 2014, former NFL players filed a lawsuit in a San Francisco federal court on behalf of over 600 former NFL players from 1969 to 2008. The complaint alleges that the NFL illegally supplied the players with narcotics and painkillers to mask their injuries during games. This alleged medical malpractice has since led to medical complications later in the players’ lives.
According to a recent Washington Post survey (see complaint), close to 9 out of 10 former players said that they played while injured. Also, 68% said they did not feel like they had a choice but to play hurt. Consequently, the complaint alleges that the NFL gave these players no choice but to play injured and acted unethically and illegally by substituting “pain medications for proper healthcare to keep the NFL’s tsunami of dollars flowing.” The complaint concludes that, “[i]n contravention of Federal criminal laws, the NFL has intentionally, recklessly and negligently created and maintained a culture of drug misuse, substituting players’ health for profit.”
This lawsuit portrays the NFL and its member teams as an astonishingly unethical entity by suppressing players’ pain to keep them on the field. Team doctors and trainers are described as continually administering the players medications without prescriptions and without warning of the dangers of addiction and side effects. The primary motive was to speed up the return of hurt players in order to maximize profits. At times, players were not even told about broken bones and were instead given pills to numb their injuries. There are also allegations that physicians were ignoring players’ medical histories, which could have resulted in fatal injuries due to each player’s “unique body chemistry.” In effect, the lawsuit depicts the NFL as a greedy enterprise which will stop at nothing to make money, including treating its players as “disposable assets” and “thoroughbreds” rather than human beings. The NFL and its team physicians, if the allegations prove true, would be in violation of the Controlled Substances Act, state laws, and the American Medical Association Code of Medical Ethics.
The lead attorney for the former players, Steven Silverman, listed the painkillers to be Percodan, Percocet, and Vicodin, with other common drugs administered being Ambien and Toradol. To illustrate the pervasiveness of this practice by the teams’ physicians, Silverman was quoted as saying the drugs were “handed out like candy at Halloween” and further noted that some of the drugs were even given in combinations, which the complaint refers to as “cocktailing.” The long-term effects of these drugs, according to the former players, have been kidney failure, high blood pressure, violent headaches, chronic muscle and bone ailments, and permanent nerve and organ damage.
While the American Medical Association provides a code of ethics for its physicians, it is difficult for the NFL to ensure that the physicians are doing their job correctly and ethically. The NFL has failed over the years to stop this mistreatment and lack of informed consent as evidenced by this case, the concussion litigation, and other cases involving a range of issues. Without authoritative action to protect current and former players, these problems will persist, as the costs of these lawsuits do not outweigh the benefits that this mistreatment provides the NFL through profits.
It will be interesting to see how this lawsuit plays out. There is little coverage of this lawsuit today. However, as it progresses and picks up steam, these allegations could prove to be just as threatening to the NFL as other recent controversies. More than likely, the NFL will try to settle early in attempt to avoid discovery and to avoid revealing potentially harmful information. After the Ray Rice scandal, concussion litigation, and a plethora of other blemishes on the NFL’s reputation lately, it is expected that the NFL will seek to avoid more litigation and negative exposure.
An NCAA emerging sport is defined as: “A women’s sport recognized by the NCAA that is intended to help schools provide more athletics opportunities for women, more sport sponsorship options for institutions and help that sport achieve NCAA championship status.”
Unfortunately, beginning in 2017, the NCAA Committee on Women’s Athletics (“CWA”) has recommended the NCAA no longer recognize women’s equestrian as an emerging sport. Archery, badminton, team handball, and synchronized swimming are four examples of other emerging sports that have suffered the same fate. Women’s equestrian failed to reach the 10-year benchmark set by NCAA bylaws for emerging sports. During an emerging sport’s first 10 years it must reach “championship status,” which means the sport must establish 40 varsity programs or steady progress toward that goal. Currently, there are only 19 division I varsity women’s equestrian programs with only 719 participant athletes.
Even if collegiate athletic programs want to continue varsity equestrian at their schools, it may not be feasible due to NCAA bylaws. NCAA Bylaw 20.9.6 requires that NCAA athletic programs maintain 16 NCAA recognized sports. Without the NCAA’s recognition of equestrian, schools will be forced to add a different NCAA recognized sport to meet the bylaw requirement. Ultimately, this may mean the end of women’s equestrian programs because without NCAA recognition, there is no incentive to continue to fund this expensive sport.
As a 4-year letter winner in equestrian at South Dakota State University with All-American honors, the loss is unfortunate, though understandable. Equestrian requires more than just facilities; it also requires well-trained operational staff, 40-50 horses, and other considerations when dealing with a barn. However, despite the cost, varsity equestrian was more than just a fun activity during college for me. It was an excellent motivating factor to work hard both in and out of the classroom and to contribute to the community around me. Varsity equestrian positively impacted my life in an indescribably positive way.
“Varsity Equestrian provided great opportunities for both equestrian athletes and the equestrian community as a whole,” noted former varsity equestrian Kelsey Byrnes. “I’m worried for the future of the athletes – both human and equine.”
Kansas State University (“KSU”) is the first of the 19 programs to discontinue the sport. However, KSU will continue to honor its financial commitments to both the athletes and coaches. To meet the NCAA’s 16 recognized sport threshold, KSU will establish a women’s soccer program in the 2016-17 school year. It will be interesting to see how long it takes for other programs to follow suit. Hopefully, other schools will honor their financial commitments to both athletes and coaches as KSU has done.