Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Sports and Entertainment Law (page 1 of 2)

Articles involving cases and controversies in the Sports Law and Entertainment Law field

How College Football Video Games Could Net Manuel Noriega a Million Dollar Judgment


Picture from

By: Chris Freiberg
J.D. Candidate, 2015

Manuel Noriega, the former dictator of Panama, is currently serving a 20-year prison sentence there for murder and human rights abuses.

U.S. courts convicted him of drug trafficking and racketeering and France, convicted him in absentia of murder and money laundering. He’s probably going to spend the rest of his life in prison.

But what has Noriega really upset these days is that his likeness appeared in a video game that referred to him as “old pineapple face himself, Manuel Noriega.”

Noriega appeared throughout the 2012 Activision game “Call of Duty II: Black Ops,” both fighting alongside the player and in a mission where the player captures him, much like his real-life arrest in 1990.

The “Call of Duty” is a franchise of billion dollar games where no one actually plays the single-player (the only part of the game where Noriega appears). Instead, players go online to shoot each other in the face as teenagers hurl racial epithets and claim to have a personal relationship with your mother.


Image from

Noriega’s lawsuit, filed earlier this year in Los Angeles Superior Court, claimed that Activision portrayed him “as a kidnapper, murderer and enemy of the state,” which may not be far from the truth.

Because of this negative portrayal, Noriega was seeking punitive damages, alleging that Activision used his “likeness to increase revenues and royalties, at the expense of plaintiff and without the consent of plaintiff.”

Apparently there was such high demand to play a game featuring Manuel Noriega? He may have a point here. One million people evidently want a game that simulates being a goat.

Not surprising, Activision is fighting Noriega’s suit, even going so far as to hire the firm of former New York City mayor Rudy Giuliani.

Noriega’s lawsuit is based on “the right of publicity,” a state-based quilt of laws that basically allow every individual to control commercial use of their image.

Although California, where Noriega filed his suit, has a great deal of law on the right of publicity because it’s the center of the entertainment industry, Indiana actually may have the farthest reaching statute. It protects the right of publicity for 100 years after death, and protects “name, image and likeness,” as well as “signature, photograph, gestures, distinctive appearances, and mannerisms.” Thus, Indiana law is far more inclusive than California law.

So, if California tosses Noriega’s lawsuit, he may want to consider re-filing it in the Hoosier state.

But perhaps the most absurd thing about a lawsuit over a game that *spoilers no one cares about *ends with a musical number from barely relevant alt-rock band Avenged Sevenfold, and has pitted an octogenarian former drug kingpin against a man who was spectacularly bad at running for president, is that Noriega may ultimately win.

As The Washington Post reported this summer, some California courts have found that “transformative works” where the celebrity’s likeness is only part of a raw material that is synthesized into a larger work are protected.

If a court were to adopt this test, Noriega’s lawsuit would likely be dismissed, or he’ll eventually lose. While he is included in “Black Ops 2,” he’s really just a small part of it compared to the rest of the campaign and being able to shoot a zombified George Romero.

Other California courts have found “transformative works” are not protected when they include a person’s attributes.

This test would actually help Noriega, because his portrayal in the game as the pineapple-faced dictator of Panama and an all-around terrible person draws on well-known attributes.

In Keller v. EA Sports, a 2013 Ninth Circuit Court of Appeals case in which a former college football player sued another video game manufacturer, Electronic Arts (“EA”) for misappropriation of his likeness in its football games, the court ruled in favor of Keller.

EA’s NCAA games, which the company announced it would no longer develop following the ruling, didn’t even include the names of players – only their height, weight and jersey number, among other attributes.

“EA’s use of Keller’s likeness does not contain significant transformative elements such that EA is entitled to the defense as a matter of law…” the court wrote in its opinion. “As the district court found, Keller is represented as ‘what he was: the starting quarterback for Arizona State’ and Nebraska, and ‘the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field.’”

An appellate court could consider a broader rule that would afford less protections to political figures such as Noriega, but given the rather on-point nature of the Keller precedent, Activision might want to get its checkbook ready.

Northwestern Football Players granted ability to Unionize

By: Kevin Hansen
J.D. Candidate, 2015
Valparaiso University Law School

In January, College Athletes Players Association (CAPA) filed a petition to the NLRB to allow college athletes at private universities to form a union and collectively bargain. Regional Director Peter Ohr made the decision last Wednesday granting scholarship athletes the option to vote to unionize by determining they were employees.

The Supreme Court defined “employee” as a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment. NLRB v. Town & Country Electric, 516 U.S. at 94 (1995).

Ohr made the controversial ruling based on the athletes’ scholarship value, monetary benefits for the school, and the control held by the Head Coach and the athletic department over the players, that the athletes were “clearly” employees. This ruling applies only to football players, on scholarship, with eligibility at private universities.

CAPA argued scholarships were given out to individuals for their athletic abilities, not academic abilities. The scholarships are tendered; these tenders provide the contractual language of the agreement between university and athlete. After it was determined the scholarship was compensation for the athlete, Ohr found it easy to prove Northwestern University benefits from this contractual relationship. To prove this issue, CAPA provided ample evidence of revenues of $5-10 million since 2003, student-enrollment increase, and growth in alumni donations.

Furthermore, Ohr found Northwestern’s argument, citing Brown University, stating athletes are just like graduate students, inapplicable. The Brown University ruling determined graduate students’ relationships with the university were primarily related to their graduate degree requirements making them students first, employees second. Ohr stated football players’ responsibilities had nothing to do with their academic studies, proving they are actually employees, not students.

According to Lester Munson of ESPN, the ruling should be appealed by Northwestern to the national office of the NLRB in Washington D.C., but it will be difficult for them to alter their arguments on appeal because of Ohr’s articulate opinion. Ohr shut down Northwestern’s main argument, and it will be difficult to bring evidence to combat the ruling.

The debate of compensating collegiate players for their contributions to universities has been a hot topic for a long time now. It has come to a head with this ruling and the O’Bannon lawsuit, which is moving forward in court.

If the NLRB ruling makes it unchanged through the whole judicial process, it will completely change collegiate athletics. Labor attorney and Professor at Valparaiso University Mark Adams says, “public schools and private schools in the same conference cannot co-exist; there will be a direct conflict when it comes to bargaining for benefits of unionized players; one team will bargain for different working conditions than another and so on.” Adams goes on to say this labor dispute is so unusual because of what the union will try to bargain for, “There is so much uncertainty because unions usually fight for higher wages, pensions, better working conditions etc.” According to ESPN, the main focus point for CAPA has been medical benefits after players graduate and a guaranteed scholarship for 4-5 years. Per USA Today, CAPA has stated it wants to collectively bargain within the current rules of the NCAA.

It will be very interesting to see how this develops and whether the national office will overturn the ruling and how collegiate athletics will change based on the aforementioned O’Bannon lawsuit, concussion litigation and the unionization of athletes.

Compensating college athletes is an incredibly polarizing issue, do you agree with the ruling? Will it get overturned? What happens to college athletics if it stands?

Does this look like an ad misappropriating Michael Jordan’s identity and fame for commercial benefit?

Text reads: A SHOE IN! After six NBA championships, scores of rewritten record books and numerous buzzer beaters, Michael Jordan’s elevation in the Basketball Hall of Fame was never in doubt! Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was “just around the corner” for so many years

By: Kevin Hansen
Valparaiso University School of Law
J.D. Candidate, 2015

According to the Seventh Circuit Court of Appeals it does! Last week Judges Flaum, Sikes and Randa stated that the congratulatory message inserted in the Sport’s Illustrated Michael Jordan edition was an advertisement determined to be commercial speech.

In 2009, Sport’s Illustrated and Jewel-Osco made an agreement to display the magazine in its grocery stores and in return the chain would have the inside back cover all to themselves for a full page spread. After the commemorative issue of the magazine hit the public, Jordan sued for $5 million claiming violations of state law claims (right of publicity, unfair competition etc.) and violation under the Federal Lanham Act (false endorsement). Jewel-Osco brought the ultimate defense of noncommercial speech receiving First Amendment protection.

The dispositive issue for the Court was whether this ad was commercial or noncommercial speech…if it was noncommercial speech, First Amendment applied; if it was commercial speech, it would not.

The Court cites Bolger v. Youngs Drug Products where a formidable test was created to better exam speech that has both commercial and noncommercial elements…they look to three things: “1)Whether the speech is an advertisement; 2)the speech refers to a specific product; and 3)the speaker has an economic motivation“.

The Court had the most difficulty determining the first element…is it an advertisement?  As the Court points out, what is it really advertising? It stated the ad held two functions, congratulating Jordan on making the Basketball Hall of Fame and the commercial function of enhancing the Jewel brand to consumers. Ultimately, the Court held the ad was an advertisement; it promoted something to potential buyers: Jewel-Osco supermarkets.

“Jewel’s ad is an example of a neighborly form of general brand promotion by a large urban supermarket chain…what does it invite readers to buy?…a loaf of bread, a gallon of milk, perhaps the next edition of Sport’s Illustrated”

The other two parts to the test were subsequently easier to determine. The ad promotes patronage at Jewel-Osco stores in a general sense but not specific to a certain product and the economic purpose is to enhance consumer goodwill to get people to come into the store and buy its goods.

Because the Court found this was commercial speech Jewel-Osco’s First Amendment defense was defeated and will ultimately be held liable for damages. The case was remanded to determine the Lanham Act claim for confusion in the marketplace of whether Jordan is endorsing Jewel-Osco or not.

If you look at the ad itself, the Jewel-Osco logo is the most legible text on the page and its slogan is readily apparent in quotations.

The ability for an athlete, celebrity, or public figure to profit from their name or fame or prevent others from doing so is paramount. Readers are going to say… “yeah Jordan really needs the money,” but it has more to do with the idea of saturation rather than monetary damages. If Jewel-Osco can create ads that use his fame, what is to stop anybody from doing so, leaving the Jordan brand worthless because everything has “His Airness” on it. Arguably, Jewel-Osco was trying to congratulate a local hero in the community, a very noble and benevolent gesture, but  it crossed the line into commercially benefiting from Jordan’s fame, and in the eye of the Seventh Circuit court…that won’t fly.

What do you think was the real intention here by Jewel-Osco? Was this commercial speech? Is this harmless advertising?

James Dean trademark claim could lead to new legal rule


Being under the age of 30, I am admittedly not terribly familiar with James Dean.

As far as I can tell, he’s most known for being a symbol of the time in American history when a rebellious attitude and ability to rock a leather jacket were the gravest threats to America’s youth, behind only Communism and Elvis’s swinging hips.

Just looking at pictures of James Dean’s coolness 58 years after his death makes me want to take up teenage smoking.

And apparently I’m not the only one. In 2009 an anonymous Twitter user set up the account @James Dean to honor the “Rebel Without a Cause” who was born in Marion, Indiana.

The account regularly posted quotes praising the actor and photos from his brief life.

Unfortunately, this didn’t sit well with CMG Worldwide, an Indianapolis-based company that represents Dean’s estate, James Dean, Inc.

Last week, the company filed a lawsuit in Hamilton Superior Court alleging unauthorized use of Dean’s name and image. The account doesn’t violate any of Twitter’s policies.

Because federal trademark law is at issue and CMG is potentially seeking a large amount in damages, the case was moved to U.S. District Court for the Southern District of Indiana Friday. CMG is also asking for ownership of the @JamesDean Twitter account to be transferred to the company.

Courts have come up with a multi-factor test to determine trademark infringement. One leading case, In re E.I. du Pont de Nemours & Co., 476 F.2d 1357 (CCPA 1973), articulated 10 factors in determining trademark infringement, including the similarity of the marks, the fame of the prior mark, the nature and extent of any actual confusion, the length of time concurrent use of the trademarks has existed, the variety of goods on which a mark is used, and market interference.

Another federal law, the Anti-Cybersquatting Piracy Act prohibits unauthorized use of celebrity names in web domains.

Taken together, the @JamesDean account seems like a fairly obvious infringement on the trademark of James Dean, Inc. While the account never claimed to be “official,” a cursory look before last week’s lawsuit would certainly give the impression that it was endorsed by the Dean estate.

However, there actually isn’t any case law covering operation of social media accounts by fans of a deceased celebrity, and at least one legal expert thinks the operator of the account could have a First Amendment right to talk about a celebrity online, especially if he or she isn’t selling anything.

So even though James Dean has been dead for more than half a century, his legacy could establish a brand new rule of law in the coming months… and that’s kind of cool.

Do you think CMG has a valid trademark infringement claim, or does the owner of an account like @JamesDean have a constitutional right to tweet about a celebrity?

By: Warren Freiberg
Valparaiso University School of Law
J.D. Candidate 2015

Judge rules on O’Bannon v. NCAA Class Certification

Ed O’Bannon, picture from Wikipedia Commons

Huge news out of the District court in California, the ongoing case involving former and current Collegiate Athletes suing the NCAA over the use and profit of their likeness in merchandise and over anti-trust conduct. The claims by the Plaintiffs string from NCAA Forms athletes have to fill out that arguably require them to relinquish all rights to the commercial use of their image even after they graduate or leave college. The Plaintiffs argue that they do not consent to the NCAA being able to contract license agreements with third parties and profit off of the athletes name. The Anti-trust claim comes into play because when the NCAA makes these license agreements, it saturates the market for the athletes to make money off their own name after they leave college; it puts restraint on trade in violation of the Sherman Anti-trust Act.

Last Friday, Judge Wilken of the the Northern District of California made a crucial ruling on the class certification of the plaintiffs. The Judge allowed for current and future players to sue the NCAA on behalf of their claims but disallowed former athletes to be included. This is a class, so former players can sue individually in a seperate lawsuit but cannot be represented in this case. O’Bannon made the argument that former players would have stayed in college had there been financial incentives to do so. The Judge found this argument illusory because if star players would have stayed it would have meant less scholarships for other athletes or even not playing at all so the court cannot determine the actual impact of athletes staying.

The Judge did allow current and future players to be represented in the class which keeps the lawsuit alive and swiftly headed towards a showdown either in the courtroom or the settlement table. Legal Analysts from both Sports Illustrated and Above the Law believe that this ruling is the first step in the long process of changing the landscape of College Sports. Michael McCann of reasonably argues that the ultimate goal of the legislation is to create some type of union that will be able to contract on the athlete’s behalf in licensing agreements or broadcast rights. This would be extremely detrimental to the NCAA because its taking money directly out of their future pockets but as Above the Law writer Joe Patrice stated, this ruling is somewhat of a win for the NCAA because they do not have to payback all the money they previously had received on behalf of former player’s images  saving them millions of dollars.

The trial for this case is set for June so in the coming months there will most likely be settlement negotiations. Ultimately, either through trial or settlement, the NCAA landscape will be changing, some say for the better and some say for the worst.

O’Bannon v. NCAA filed complaint from Wall Street Journal
Joe Patrice’s article from Above the Law
Michael McCann’s article from

By: Kevin Hansen
Valparaiso University School of Law
J.D. Candidate 2015

Man hit by Hotdog at the Ballpark, Sues Team

An interesting light hearted topic to start off the week: According to the Associated Press article, a man, John Cooper, was hit by a hot dog thrown by a mascot at a Kansas City Royals game a couple years back; the incident left Cooper with a detached retina needing to have cataracts surgery and implant an artificial lens in his eye.

The legal issue here is whether the man assumed the risk of being hit by something other than object directly related to the baseball game by sitting in the realm of the ball park. There is a legal doctrine known as the “baseball rule” that denies liability to sports teams for injuries to fans because the fans readily assume the risk of being hit by a flying object within the course of game play. In the situation with the hot dog, it took place in between innings and wasn’t the result of something that took place during the game i.e. a broken bat or foul ball.

The jury in the lower court found for the Royals saying that Cooper was completely at fault for not being aware of what was going on around him at the ball park. (Always need a head on a swivel) The Judge in the appellate court overturned that decision because they distinguished between game activities like being hit with a broken bat or foul ball as inherent risks that fans assume and in game entertainment going on while the game is being played like the risk of being hit with food to which they do not assume.

According to USA Today, this case has gone all the way up to the state Supreme Court where they have yet to make a decision. The big question the Judge has to deal with is whether or not Mascots and between inning activities are considered part of the game. In today’s day and age the overall fan experience is more than just watching the ball game, it’s the food, between inning trivia, races around the park and mascots going into the stands and actually interacting with fans. A court has never included Mascot interaction into the category of assumed risks by fans but there is a legitimate argument to be made that when a fan goes to the game they reasonably could expect the experience to include activities other than the game itself and that they assume the risk not only when the game is going on but when other actions take place as well.

To counter that, it is just as easy to see that the Mascot, having not paying close attention to what he/she was doing has a duty to the fans to not put them in any harm by throwing objects at them when they aren’t expecting it. The Judge could decide that Mascots are not integral to the baseball game and have no such protection under the “baseball rule”.

AP story on
USA Today Article

By: Kevin Hansen
Valparaiso University School of Law
J.D. Candidate 2015

Judge makes ruling on NFL Arbitration for Employees



St. Louis Rams Logo

On Monday an Appellate Judge from Missouri declared that the NFL’s arbitration policy in relation to team/league employees, not players, is open to significant bias. The background of the arbitration policy is basically as follows: an employee has a claim or grievance, instead of suing the injuring party in the court system, they must seek a remedy within the NFL arbitration system. The problem with this and what the Judge points out is that the arbitrators are hand picked by Commissioner Roger Goodell who coincidently works on behalf of the teams and the league.

In the case at hand, a man named Todd Hewitt was an equipment manager for the St. Louis Rams for 25 years and was subsequently fired in 2011. He claimed that he was fired because of his age, he is 54 years old. A section of his employment agreement with the St. Louis Rams has the arbitration provision stating that both parties agree that in a matter of dispute the grievance will be given to the Commissioner and NFL for a decision and that decision will be the final word. Hewitt sued in the trial court of Missouri and the St. Louis Rams filed for a motion to compel arbitration, meaning the trial court should rule that arbitration is the proper course for Hewitt’s remedy, not a courtroom. Trial court did grant the motion but left it open for appeal. Hewitt appealed and fortunately for him the appellate court overturned the ruling.

Hewitt argued that he had no adequate remedy by way of arbitration but the Court said neutral arbitration is adequate but in his situation this is not neutral. The Court argues that the possibility for bias is there. It reasons the 6 degrees of separation: the arbitrator is appointed by the Commissioner who works the NFL and on behalf of the teams that make of the league i.e. the Rams. The Court makes it very clear that they are not accusing Commissioner Goodell of showing bias, it contends that the possibility is there even when they might not intend to do it. The Court holds that this Arbitration Provision in Hewitt’s agreement is “unconscionable” more clearly, not reasonable.

A caveat that makes the provision “unconscionable” is that like with most employers, an offer of employment is never really negotiated between the parties and in this case the agreement with the Rams and Hewitt was on a take it or leave it basis. The Court argues that he had no opportunity to bargain for a better arbitration provision and seeing as how there could be bias, it puts Hewitt at a significant disadvantage further solidifying the point that this provision is unreasonable.

The Court decided that in this specific situation the trial court may appoint a neutral arbitrator to hear his claim.

*It’s very interesting to note that the Court made the distinction between players and team employees. They argue that the process for contracting with a given team is very different; the fact that the players can negotiate their contracts and have a Collective Bargaining Agreement lessens their ability to claim that the the arbitration process is flawed.  The provisions in the CBA were negotiated for and one could make the argument that the players wanted the process in place, so if it is biased against them, tough luck, they contracted for it. The other side of the coin is, “well did they really have much of a say in how arbitration would work? and are they really that different from the equipment manager signing their Employment Agreement?

Deadspin article detailing the case
Plain text of the Court’s Ruling

Kevin Hansen
Valparaiso University School of Law, JD Candidate 2015

University of Miami Accepts Sanctions

Picture from Wikipedia

Picture from Wikipedia

A brief background of the scandal is as follows: back in 2011 the NCAA investigated the University of Miami, more specifically the Men’s basketball team and the football team. The NCAA looked into whether these teams violated any rules regarding the acception of money from boosters. A booster by the name of Nevin Shapiro, scorned by the players he had aided, decided to notify the NCAA Enforcement Committee on Infractions of what was really going on in Miami. Shapiro stated he paid $2 million to players from the football team and basketball team over the course of a 10 year period starting in 2002. He provided athletes with women, money, alcohol, and jewelry. Basically anything athletes asked for, he got for them. In the process he violated several NCAA rules. Shapiro, currently in prison for securities fraud, felt betrayed by the athletes he helped and decided to blow the whistle on the whole operation. To read more about the background go to Yahoo! Sports incredibly detailed article,–spt.html

The NCAA Enforcement Committee on Infractions rewards cooperation. A University or a player that cooperates fully with the organization will likely get a lesser sentence than if they withhold documents or fight the process every step of the way. The NCAA Enforcement Committee on Infractions is like a lawyer doing discovery, they gather as much information as they can, sift through it, and determine whether they have a strong case. For example, in the Johnny Manziel autographs case this year, no one was willing to give up information so there wasn’t enough substantial evidence to punish Manziel.

For the University of Miami, they tried to cooperate as fully as possible. An NBC affiliate website stated that the University sanctioned themselves by imposing a ban on the football team to be eligible in any bowl games in 2011 and 2012. The ban in 2012 ended any chances of them winning their conference title game and potentially getting a Bowl Championship Series bowl bid. This is how the system works, the Schools have the option to self-sanction in the hopes that the NCAA will be more forgiving when they give out their own sanctions. For Miami, this was the case.

The punishments were finally doled out this past week from the NCAA, the Hurricanes football team lost 9 total scholarships over the next 3 years with no bowl ban, the Head Coach of the basketball team at the time, Frank Haith (now coaching at University of Missouri) is suspended 5 games for his involvement in violations. As Sports Illustrated reports, the NCAA cited a lack of institutional control by allowing multiple infractions to continuously occur over the 10 years. The sanctions seem to be relatively minor, the NCAA probably took into account the fact that they self-imposed pretty severe sanctions on their own and didn’t see fit to punish them any harder than that. The ruling ends the 2 year investigation into the University, allowing them finally to move forward.

The elephant in the room that everyone seems to have an opinion on lately is the discussion of paying college athletes for their performance on the “field”. For the most part, that topic is for another blog for another day but the Miami case is just one of the many instances of college athletes taking money to play, I mentioned Manziel earlier as well. The system put in place by the NCAA doesn’t deter college athletes from taking money from anyone who is willing to give it. The system puts the pressure on the University to police its students properly but has proven ineffective. The NCAA is at a crossroads right now, whether to keep the amateur status of its athletes or make them essentially employees by paying them. For the time being, for the NCAA’s enforcement committee to be more effective in protecting the amateur status of athletes, they have to put the burden on the players who take the money and on the coaches who know what is going on but fail to stop it.

Sports Illustrated Article
NCAA Enforcement Website
NBC Affiliate Article

By: Kevin Hansen
Valparaiso University School of Law
J.D. Candidate 2015

Judge to rule on Dryer v. NFL settlement


Picture via

In 2009, a handful of retired NFL players sued the NFL for violating their right of publicity by using their likeness without their consent. The players believe they should be compensated for their likeness being used in the NFL’s popular subsect, NFL Films. The Plaintiffs argue that the increasing popularity of the NFL is due to the creation of NFL Films and their ability to recapture groundbreaking moments in the NFL’s history and televise them to the public. Consequently, players that were involved in those moments have not been compensated nor did they give their consent for their likeness to have been used.

Right of Publicity is a common law rule: it is defined as the right of an individual to have the control over their name, likeness, or image and to deny other people to profit off of their name, likeness or image without their consent. It is a property right essentially that can be divested and can be contracted out.

According to Bloomberg News, The NFL settled with these players back in April for $42 million which would go into a communal fund for all players that need financial and medical assistance. The settlement also included $8 million for attorney’s fees. The caveat of the agreement is that the players would forfeit over all of their licensing rights to the NFL.

Currently the Plaintiffs are split on whether they want the deal or not. The biggest concern, according to the Dryer Plaintiff website, is that the money from the settlement could potentially never see their pockets. They would be giving up their licensing rights for what could turn out to be nothing in return. According to the New York Times article back in June, the Plaintiffs sent out notices to 20,000 retired players asking them to approve, opt out or object the settlement. As of today, 2,100 returned requesting to be excluded from the lawsuit. There is no set number of opt outs or objections the Plaintiffs must have for the court to deny the settlement and open the negotiations back up. According to the Bloomberg article, the Judge heard arguments today and in the coming days will make a decision as to whether the settlement will be approved.

Bloomberg News Article
Retired Players website
NY Times Article

By: Kevin Hansen
J.D. Candidate 2015

What is going on in Tampa?

josh-freeman-bad2The dissolution between the Tampa Bay Buccaneers and Quarterback Josh Freeman flooded the first quarter of the NFL season. From reports that he was stripped of his captain title to him skipping the team picture, it all ended last week in his release from the team. He has since signed with the Minnesota Vikings in hopes to out duel Matt Cassel and Christian Ponder for their starting QB job. A problem still lingers in Tampa as both parties try to amicably move on. In Freeman’s last days with the team, a leaked report got into the hands of ESPN who then reported it to the world, that Freeman had failed a drug test and had been admitted into the NFL’s substance-abuse program. It turns out Freeman has AD-HD and failed a test because he changed his medication and has voluntarily taken random drug tests to prove his innocence. That’s great and all but someone still divulged  sensitive material and shouldn’t be let off the hook for it.

This becomes a legal matter because divulging player’s private information breaches the confidentiality agreement of the NFL’s Collective Bargaining Agreement. It explicitly states in the NFL CBA under General Policy (B)(1-3) that among other entities, NFL clubs, “shall take reasonable steps to protect the confidentiality of information acquired in accordance with the provisions of this Intervention Program, including but not limited to the history, diagnosis, treatment, prognosis, test results, or the fact of participation in the program of any player or the club who employs or has employed such player.”

Whoever leaked the information did so in direct violation of that clause of the CBA and could face up to $500,000 in fines. The initial stages of an investigation has commenced and as more time goes on, more information will come out and the leak will potentially surface, but penalties are up to the discretion of the NFL and Commissioner Goodell and if the penalties aren’t substantial…what message does that send to the players and NFLPA…Teams can just nonchalantly disclose confidential information about their employee and face no backlash?

Reading this you’re probably saying so what? he’s a football player/public figure, what does it matter if that information gets out into the public? Well, think of it as if your employer just divulged that you failed a drug test to all employers in your field? Who wants to hire you? How much money are they going to pay you if they do hire you? and in a professional athlete’s case, how many endorsements is he/she going to be able to receive? An NFL career lasts on average 6 years…so players have to make as much money as they can while they are in the league and an individual divulging confidential material that could directly harm the athlete’s ability to do so should not go unpunished.

USA Today article discussing the investigation
NFL Policy and Program for Substances of Abuse PDF

By: Kevin Hansen
Juris Doctorate Candidate 2015

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