United States: The Herrick Scorecard - Summer 2014

Herrick and the 2014 Global Sports Summit

Last month Herrick co-sponsored the Global Sports Summit (GSS) in Aspen, Colorado. Each year GSS brings together owners of major sports franchises from all over the world for a few days of networking and collaboration, and to share their visionary leadership efforts in the industry. For more information about the event, please visit www.evanta.com/sports.

Herrick's New Sports Law Brochure is Here!

We are excited to share a link to our new sports law brochure.  Inside you'll find details about our recent work with many of the world's greatest sports franchises and entities, as well as feature sections on our pioneering work to help create new categories such as regional sports broadcasting (the YES Network), pay-per-view (Top Rank) and premium stadium experiences (Legends Hospitality).

Clippers Finally Set "Sale"

As widely reported in the media, earlier this year, TMZ Sports released a recording of a conversation between Donald T. Sterling and a female friend, V. Stiviano.  Mr. Sterling and his wife Shelly are the co-owners of the NBA's Los Angeles Clippers.  In the recording, Sterling was irritated over a photo Stiviano had posted on Instagram, in which she posed with Basketball Hall of Fame player Magic Johnson.  On that tape Mr. Sterling made a number of racially offensive comments to Stiviano.

On April 29th, NBA Commissioner Adam Silver announced that Mr. Sterling had been banned from the league for life and fined $2.5 million, the maximum fine allowed by the NBA constitution.  Silver stripped Sterling of virtually all of his authority over the Clippers, and banned him from entering any Clippers facility. He was also banned from attending any NBA games.  Commissioner Silver further announced that he would seek to force a sale of the Clippers, an action that would require the consent of three-quarters of the other NBA team owners.  While Shelly Sterling was not included in the NBA's ban on Mr. Sterling, the NBA stated that if three-quarters of the other NBA teams consented to the termination of Mr. Sterling's ownership interest in the Clippers, all other team owners' interests would automatically be terminated as well.

On May 29th, Shelly Sterling reached a deal, pending NBA approval, to sell the Clippers to former Microsoft CEO Steve Ballmer for $2 billion.  Shelly Sterling also agreed not to sue the NBA and to indemnify the NBA against suits initiated by her husband. The following day, Mr. Sterling sued the NBA for $1 billion, alleging it had violated antitrust laws and his constitutional rights. This was but the beginning of a long and winding road.

On June 4th, Mr. Sterling dropped his lawsuit against the NBA and stated that he was not opposed to the proposed sale.  On June 9th, Mr. Sterling withdrew his support for the sale and stated he would resume the lawsuit.  However, Shelly Sterling was granted a trial in probate court that began on July 7, to allow her to proceed with the sale of the Clippers.  At the trial, Shelly Sterling introduced medical evidence in support of her claim that her husband was suffering from Alzheimer's  and lacked mental capacity.  On July 23th, Mr. Sterling sued his wife, the NBA and Commissioner Silver for damages alleging that they violated corporate law and defrauded him in order to sell the Clippers to Mr. Ballmer.  Mr. Sterling also sought an injunction to block the sale.  On July 28th, the probate court ruled in Shelly Sterling's favor and granted her request for an order permitting the sale of the Clippers.

On August 12, 2014, the closing of the sale of the Clippers to Mr. Ballmer occurred. Following the closing, Mr. Ballmer commented, "There's real earnings in this business. There's real upside opportunity. So compared to things I looked at in tech, this was a reasonable purchase [...]."

Players to N.C.A.A. -- Can You See Me Now?

On August 8th, a federal District Court judge issued an injunction against the N.C.A.A.'s prohibition on college athletes earning money from the use of their names and images in video games and television broadcasts.  The injunction applies to college athletes who enroll on or after July 1, 2016.  The lawsuit was filed by Ed O'Bannon, a former U.C.L.A. basketball player, and 19 other former college athletes.

The injunction will permit, but not require, universities to offer college football players in the top ten conferences and all Division I men's basketball players trust funds that would first be accessible after graduation.  The amounts in the trust funds would be left up to the discretion of the universities.  The injunction further permits the N.C.A.A. to place a cap on the payments, provided that the minimum payment would be $5,000 per year per qualifying football and basketball player.  At a payment amount of $5,000, qualifying football and basketball players could earn an estimated $300 million combined over a four-year period.

In ruling against the N.C.A.A., the court found unpersuasive the N.C.A.A.'s argument that its amateur rules, while potentially restrictive in the marketplace, were vital to its business model.

O'Bannon v. Natl. Collegiate Ath. Assn., No. C 09-3329 CW (U.S. Dist. Ct., N.D. Cal., August 8, 2014)

U.S. Supreme Court Pulls the Plug on Aereo Broadcasts

In a prior edition, we reported on American Broadcasting Co. v. Aereo, a case then up on appeal to the U.S. Supreme Court.  Aereo developed a business model that used thousands of dime-sized antennas to pick up free, over-the-air TV signals which were transmitted to customers via the Internet for a monthly subscription fee.  Aereo was sued by the major broadcasting networks, who claimed that Aereo's service amounted to outright theft, because Aereo did not pay a retransmission fee to the networks.  Aereo countered that no such retransmission fee was due because each viewer was temporarily assigned an antenna at one of Aereo's antenna farms.  Under this arrangement, Aereo contended that its service transmitted "private performances" to individual viewers over a dedicated personal licensed antenna, rather than copyright protected "public performances."

On June 25th, the Supreme Court ruled in favor of the broadcast networks.  The Court found that Aereo had infringed copyrighted content of the broadcast networks by retransmitting such content to Aereo subscribers.  In support of its ruling, the Court noted that Aereo's business model closely mimicked cable television systems which are prohibited under the Copyright Act from making unauthorized retransmissions.

Amer. Broadcasting Co. v. Aereo, Inc., No. 13-461 (U.S. Sup. Ct. June 25, 2014)

Social Media Bedevils Saints Player's Salary Dispute

A Twitter account was at least partially to blame for an arbitrator's recent ruling against New Orleans Saints star Jimmy Graham.  After the Saints and Graham reached an impasse in contract extension negotiations, the Saints placed a franchise designation on him as a tight end.  By making this designation, the Saints could force Graham to re-sign by paying him the average salary of the five highest-paid tight ends on other NFL teams.  However, Graham disputed the designation, claiming that he was more properly classified as a wide receiver.

And why wouldn't he? Graham led his team in receptions, yards and receiving touchdowns. As a franchise wide receiver he would be paid $12.3 million in 2014, versus $7 million as a franchise tight end.

Although the full text of the arbitration decision was not made public, media reports have stated that the Saints listed Graham's reference to himself as a tight end on his Twitter bio as one of the justifications for the tight end designation. Graham subsequently appealed the arbitration decision. However, his appeal was rendered moot after he reached a four-year $40 million contract agreement with the Saints that makes him the highest paid tight end in the NFL.

"Wooooooo Pig Sooie" a Registered Sound Trademark

Since the 1920s, fans of University of Arkansas athletic teams have cheered "Wooooooo Pig Sooie" in support of the teams' Razorback pig mascot.  Over time, this cheer has become one of the most recognizable in collegiate athletics.  In an effort to protect the cheer, the University of Arkansas has obtained a sound trademark for the hog call.  This sound trademark is believed to be the first collegiate cheer or chant officially registered with the U.S. Patent & Trademark Office.  In support of its sound trademark application, the University of Arkansas submitted several examples of audio and video showing Razorback fans calling the hogs.  Some clips were crowd shots at football games, while others showed individuals, such as University of Arkansas Chancellor and Athletic Director making the hog call.

Trend Spotting – OTT Programming

One development that has recently caught our eye is the increasing amount of on-demand programming being made available directly to consumers through platforms such as Netflix, Hulu and Apple TV.  This programming, which is known in the broadcast industry as "OTT" or "over-the-top," does not require a cable or satellite TV subscription.  OTT programming obviously has the potential to disrupt the broadcast distribution industry.

What do we think?  The jury is out with us as it is too early to tell.  But ESPN president John Skipper seems to have captured the current state of affairs with the following quote:  "With what the over-the-top services are currently offering, they are not going to drive much viewership.  My concern is where people become invested in their success and they decide they have to keep putting more and more compelling content on until it gets to where it is potentially a problem."

Do You Know the Way to San Jose? -- Part IV

In prior editions, we reported on the proposed relocation of the Oakland A's to San Jose.  The Oakland A's, however, will continue to call O.co Coliseum "home" through at least the conclusion of the 2018 Major League Baseball season.  In August 2014, the Oakland-Alameda County Coliseum Joint Powers Authority approved a ten-year lease extension of the O.co Coliseum by the Oakland A's.  This lease brought to a close a 15-month-long negotiating process to keep the A's in Oakland.

The lease contains an "out clause" permitting the Oakland A's to leave the O.co Coliseum after the 2018 Major League Baseball season. However, if the A's exercise that clause, they would be obligated to pay rent through the expiration of the lease in 2024, absent relocation to another site in Oakland.  The lease further provides the City of Oakland with the right to evict the A's from the O.co Coliseum if an agreement is reached for the development of the O.co Coliseum site into a football-only stadium for the Oakland Raiders.  The Oakland Raiders currently share the use of O.co Coliseum with the A's.

The lease marks an end to the Oakland A's current relocation efforts and will cause Dionne Warwick to search elsewhere for an answer to her popular song.

Washington Redskins Attract More Attention off the Field than on it -- Part III

In prior editions, we reported on Washington Redskins owner Daniel Snyder having been besieged by a firestorm of pressure to change the team's name and logo.  Numerous groups have charged that the Redskins' name and logo are out of date, offensive and racist.  Despite this intense controversy, Mr. Snyder has remained steadfast in his position that the team name and logo will not be changed.

The latest challenge to Mr. Snyder's position was the cancellation of six Redskins' trademark registrations by the U.S. Patent and Trademark Office's Trademark Trial and Appeal Board.  In a divided ruling, the Board found that the six trademark registrations "must be cancelled because they were disparaging to Native Americans at the time of registration" in contravention of Section 2(a) of the Trademark Act, which prohibits the registration of trademarks that disparage persons or bring them into contempt or disrepute.  This ruling, however, will only have a limited effect on the Redskins.  The ruling left undisturbed the team's exclusive ownership of common law rights in the Redskins trademarks, including the right to use such trademarks for commercial purposes.

Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185 (Trademark Trial and Appeal Board (June 18, 2014))

Just Asking...

With the 2014-15 NFL season closing in quickly, we thought we'd offer up some NFL trivia:

The city of Oakland was awarded the eighth American Football League franchise in 1960. Right around that time the Oakland Tribune held a "name the team" contest, and the winning name was adopted by the team's limited partners...for a limited time, before it was ridiculed out of existence. For a few weeks in 1960, what were the Oakland Raiders known as?

Answers to Just Asking...

We posed two questions in our last edition of Just Asking. Without further ado, here are the answers:

1. Why does a Major League Baseball pitcher, when ahead in the count 0-2, typically "waste" a pitch by throwing a ball outside of the strike zone?

Answer: We posed the question to David Cone, a former New York Yankees and New York Mets pitcher and the "author" of a perfect game. David explained to us that the "waste pitch" traces its origin to the minor leagues where pitchers were often fined $50 for giving up a hit when ahead of a hitter in the count 0-2. David noted that back in his minor league baseball days, $50 was considered a "king's ransom" by minor league pitchers.

2. Only three Major League Baseball players have played for all four former and current New York Major League Baseball franchises — the Giants, Dodgers, Yankees and Mets. Who are they?

Answer: Darryl Strawberry, Jose Vizcaino and Ricky Ledee

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.