From the Big Game to March Madness

February 9, 2010

Trademark issues associated with major sports events are in season.  Fresh off of the short-lived controversy concerning the Saints rallying cry of ‘Who Dat?’ Geoffrey Rapp over at Sports Law Blog brings us “March Trademark Infringement Madness.”

In his discussion of the NCAA’s defense of the ‘March Madness’ mark, Rapp shared an interesting piece of information on the origins and federal registration of the mark:

Interestingly, the Illinois High School Athletic Association, which has used the term “March Madness” for its own basketball tournament since the 1940s, holds the federal trademark registration for the term. However, the 7th Circuit has excluded rights to the use of the term in connection with the NCAA tournament from the scope of IHSA’s registered mark. IHSA v. GTE Vantage, 99 F.3d 244 (7th Cir. 1996).

Click here to see Rapp’s article in its entirety.  Stay tuned for more legal issues in March Madness as the tournament draws near.

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Posted by Dan Fitzgerald

Natick Football Players Commit to UConn, Southern Connecticut

February 6, 2010

Congratulations to Scott McCummings and Kevin Duffy, who signed letters of intent to attend and play football at UConn and Southern Connecticut, respectively.  Both players attend Natick (MA) High School, my alma mater. 

Congratulations are also in order for Natick coach and Athletic Director Tom Lamb, who recently announced his retirement following Natick’s 12-1 season.  Lamb finishes his hall of fame coaching career with a record of 248-65-2.

Check out this video of McCummings in action, especially the plays at 1:40 and 2:00 (nice deep throws); and 3:05 (great run, stiff-arm).

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Posted by Dan Fitzgerald

The Final Word on the National Letter of Intent

February 5, 2010

National Signing Day became National Letter of Intent Week here at Connecticut Sports Law.  Adding to our prior coverage of the National Letters of Intent was the perspective of four Quinnipiac School of Law Students taking my Sports Law course, Davidson G. Lucas, Martine Trinka, Leo J. White and Dan Mokrycki.  Three of the four students came down on the side most commonly advocated by observers of collegiate athletics: the NLI, in its “take it or leave it” form, is a one-sided agreement that may violate basic tenants of contract law. 

One student opined that the system provided schools and student-athletes with mutual benefit and protection, and is acceptable in its present form.  During class, only one other student (of a class of about 17) agreed that the NLI is acceptable.

Although the NLI and recent rules against adding terms (such as an escape clause should the coach change schools) certainly strengthens the argument in favor of unconscionability, there is a practical side to this debate.  Accordingly, I asked the class the following question:

If you were representing a student-athlete would you advise that he or she sign a NLI?

The answer was generally yes – most would advise a student-athlete to sign this one-sided contract.  The reason?  Lack of leverage.  Only the absolute top student-athletes have the leverage to risk not signing the NLI.  The remaining players risk, by not signing, that schools will fill up scholarship slots with other student-athletes.  Although the NLI is at best flawed, and at worst unconscionable, it is still the only vehicle through which a student-athlete can secure, at least to some extent, a scholarship.

Considering that the academic debate and practical realities of the NLI occupy opposite sides of the spectrum, is the entire debate over the NLI a waste of time and energy?  I don’t think so.  Even though student-athletes will likely sign a NLI if it is offerred, they should be fully aware of the terms of the contract.  And, there is increasing evidence that student-athletes are taking a critical look at the NLI.  Consider Seantrel Henderson, the top offensive line recruit in the country.  Henderson made an oral committment to USC, but will not sign a NLI until USC appears before the NCAA Infractions Committee. 

Henderson, as the top offensive line and perhaps top overall recruit, clearly has the leverage to decline signing the NLI until he learns more about the possible sanctions faced by USC.  There will be a scholarship for Henderson, who stands 6′8″ and weighs over 300 pounds, whether he signs or not.  Others may not possess the same leverage, but the lesson is the same: know the terms of the agreement before signing your name on the dotted line of a NLI.

Thanks to Aaron Katzman for the information on the Seantrel Henderson commitment.

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Posted by Dan Fitzgerald

The National Letter of Intent Should Remain in Place

February 5, 2010

By Dan Mokrycki

National Signing Day always takes place on the first Wednesday of February, and is quickly becoming quite popular in the collegiate and high school football communities alike.  This past Wednesday morning, at 7:00AM marked the initial opportunity for high school student athletes to formally announce, through a binding “National Letter of Intent”, which college football program they will become a part of. National Signing Day has many effects on players, the media, fans, and society in general. 

The recent popularity of the signing day is well founded.  It serves as a reasonable means by which the school and the student can reach an agreement.  Signing day is the beginning of a two month period in which students commit for a one-year period to attend a certain school.  The signing period evens out the bargaining power of both sides.  With no such period, the bargaining power would sway strongly in favor of the most recruited students as the school year approached, while swaying strongly in favor of the school for the less recruited students.

Requiring mutual services from both the school and player, well in advance of the school year, is fair to both parties.  Students have sufficient time to explore all of the schools they are considering attending, and the school is given enough time to fill the gaps it needs to fill from the loss of its graduating seniors. 

There are some weaker arguments in opposition of the National Signing Day system; however, they are without merit.  It can be argued that the pressure related with getting recruits to sign with schools on signing day is a negative. In certain cases teams are brought to the spotlight for engaging in illegal activities related to recruiting top athletes to their campus. College football is a high revenue industry nationwide, and whenever so much money is involved, there will always be people looking to get an edge.  It is a flawed reasoning to say that such things would end with the removal of National Signing Day, and it is arguable that the situation would get worse. 

If students were committed to a four-year stay with a particular school then I would agree that signing day was proceeding beyond reasonable limits.  As there are stronger arguments that a student should be allowed to attend which ever school they prefer.  In the current system, if a student signs his letter of intent, he only commits for the minimum amount of time which is fair and necessary in order for the school to have a successful season, and for the team to operate properly.  The student should not be allowed to leave mid-season, or transfer to a team headed to the national championship game. 

This minimally invasive one-year commitment is fair, and the clear best practice in the recrutiment of college football players.  It provides security for the student, and the school.  It also provides the community and fans with an exciting day to look forward to.  The National Signing Day is an excellent kickoff to the football season, and should remain in place. 

Dan Mokrycki is a second-year law student at Quinnipiac University School of Law concentrating in Tax and Intellectual Property Law.

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Posted by Dan Fitzgerald

The National Letter of Intent Violates Doctrine of Unconscionability

February 4, 2010

By Leo J. White

It is my opinion that the National Letter of Intent (NLI) program, and specifically the executed National Letter of Intent itself, is in need of reform to place the universities and the athletes, along with their families, on more equitable terms. The NLI, which is a binding contract between the university and the athlete, in my opinion violates basic cannons of contract law, specifically the doctrine of unconscionability. Without reform, the NLI in its current form should be held void.

A contract may be found unconscionable if either the procedures by which the formation of the contract have followed, or the terms of the contract itself, are unfair. The NLI is a boilerplate contract that is not open to negotiation. Clause 15 of the NLI, for example, expressly prohibits additions or deletions to the NLI. The inability to negotiate terms puts the athlete at a significant disadvantage. For example, the NLI may be nullified if the athlete does not meet the admissions or eligibility requirements of the institution. The NLI does expressly include, or incorporate by reference, what the terms for admissions or eligibility are for the signing institution. Such ambiguity may provide a loop-hole through which the institution may back out of the contract. The athlete does not have such an option.

Also, the terms of the NLI do not indicate what recourse the athlete has should the institution be found in violation of NCAA rules. The athlete may be adversely affected if the institution is held ineligible for tournament participation, required to forfeit wins, put on probation, or suffers a host of other potential punishments. The athlete, however, by the terms of the contract may not enroll in another institution without suffering the basic penalty for breach.

In addition, the choice of an institution by an athlete may be significantly influenced by the coach and coaching staff of the particular sport in which the athlete intends to participate. The NLI, however, explicitly states that the NLI is executed between the institution and the athlete (Clause 19). The athlete remains bound to the institution if the coach remains or leaves. In today’s world of a seemingly coaching carousel at top athletic programs, the athlete should be entitled to some form of recourse without penalty if the coach decides to leave after the NLI is signed.

Furthermore, the NLI is a contract whose term is for one year (the athlete is to receive a one-year scholarship in return for enrolling in the institution for one academic year). The basic penalty upon the athlete for breach of the contract by not enrolling in the original institution for one academic year and enrolling in another institution that participate in the NLI program carries a duration of two years. The athlete that breaches must not participate in intercollegiate competition of any kind for one year. In addition, the athlete loses one year of athletic eligibility. Such a punishment is unfair to the athlete.

Finally, the contract is not negotiated at arm’s length by equally sophisticated parties. It is not likely that prospective college athletes deciding to sign an NLI, or their families, are receiving counsel of any kind. The university, the NLI Steering Committee, or the NCAA, on the other hand, I presume to have had significant legal guidance in drafting the boilerplate NLI. The disparity in representation is further evidence in support of an unconscionable contract.

The NLI may provide some level of predictability in the behavior expected between the signing institution and the athlete. However, the level of predictability afforded does not outweigh the contract law issues associated with the NLI. It is current form, it is my view that the NLI is an unconscionable contract due to: (1) the express inability to negotiate terms; (2) the terms of the contract heavily favor the institution; and (3) the contract is not negotiated at arm’s length by similarly sophisticated parties.

Leo J. White is a third-year evening law student at Quinnipiac School of Law concentrating in Intellectual Property Law.

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Posted by Dan Fitzgerald

Letters of Intent Should Reflect a Mutual Agreement

February 3, 2010

By Martine Trinka  

The Letters of Intent (LOI) that prospective collegiate athletes are enticed to sign seem unconscionable in their current form and therefore should be changed to more accurately reflect two parties contracting in an arms-length transaction. Although student athletes are not required to sign the LOI, signing it is the only mechanism available to bind the school to their scholarship commitment.  

The current form of the LOI is unconscionable because it is a one-sided agreement that favors the educational institution. Only the most skilled athletes have the bargaining power to make the LOI less of an adhesion contract by bargaining for more favorable terms. By signing the LOI, the student commits to one school, giving up the opportunity to be recruited by other programs. In consideration for this commitment, the school agrees to give the student a scholarship, which will not be revoked unless the athlete is not admitted to the school. The student is bound to this contract. If the student decides to transfer to another school after signing a LOI, they will be forced to sit out of athletics for one year.  

Facially, this contract seems reasonably fair. After all, schools spend a lot of money recruiting athletes and it makes sense for schools to seek contractual commitments from their athletes. The agreement seems to have consideration because students agree to play for a school, and in return, the school agrees to extend a scholarship. Furthermore, students are not required to sign a LOI, but signing one is a way for both parties to make legal commitments to each other.  

However, the problem with the LOI, and main reason that I find them unconscionable is that the school has an escape clause. If the admissions committee of a school “rejects” an athlete, then the school is off the hook on its contractual obligation to commit to the athlete and provide a scholarship. So, for example, if a coach recruits a more desirable player than the one he has already committed to with a LOI, he can potentially simply not support the athlete with the school’s admissions committee, and when the student is rejected, the school has a legal way of backing out of their commitment to the student. This loophole puts the school in a better position than the student – and makes the consideration that the school gives the student in the LOI illusory. While the student is promising to attend a certain school, the school hasn’t really promised the student anything.  

I think that it is beneficial for student athletes and schools to make contractual commitments to one another, however the LOI because it is unconscionable as it currently stands does not reflect a mutual commitment. The contractual commitment between the parties should have weight. The student should not be able to walk away from an institution as easily as coaches are able to walk away from their coaching contracts (see Richard Karcher’s article The Coaching Carousel in Big-Time Intercollegiate Athletics), on the other hand the agreement should not be so heavily weighted in favor of the institution. 

Martine Trinka is a second-year law student at Quinnipiac University School of Law, concentrating in tax law.  She can be contacted at martine.trinka@quinnipiac.edu. 

 
 

  

 

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Posted by Dan Fitzgerald

National Signing Day Brings Excitement, Issues for Minors

February 3, 2010

By Davidson G. Lucas

The television rating for the NFL draft increased 62% between 2002 and 2008[1].  Fans of professional teams are interested to see which college players will be selected by their team while college football fans tune in to see where the recently departed stars from their team will play professionally.  The NFL draft is organized to place each of the 32 teams on equal footing and to promote parity by ordering the draft as inverse to the team’s success from the previous year.  For the casual professional football fan the player’s career begins at this threshold between amateur and professional status when the player leaves college to enter the NFL draft.

For the college football fan, the equivalent of the draft is the recruiting process, and there has been a comparable boom in interest and coverage of this aspect of college football.  Unlike players leaving college for the professional ranks who sign lucrative contracts with professional teams, players entering college football sign a binding agreement, or a national letter of intent (NLI), with the college or university of their choice.  The Football Bowl Subdivision (FBS) includes 120 colleges or universities and each school is allowed 85 scholarships.  There is no formal draft, no rounds where universities takes turns picking players, and there is no universal method to ensure that less successful teams acquire the best players in order to provide parity.  In fact, successful teams are likely to sign the best players.  Blue chip high school football players are free to choose the university which they will attend; winning is always an attraction.  Additionally, winning games expands a fan-base, encourages greater donations from alumni, and leads to more revenue which can be spent on both athletic and academic facilities.  All of these factors play a role in the decisions of recruits for which school they will attend. 

There is no national limit to the number of players that a school may recruit and offer scholarships to in a single season.  Because the agreement between the school and player is a one year contract the school can choose not to renew the scholarship after the academic year is complete.  Schools can also refuse to honor a signed NLI if the athlete cannot qualify for admission to the school for academic reasons.  When schools are recruiting players who with potential problems regarding academic eligibility they often “over-sign” and accept NLIs from a larger number of players than they have scholarships available.  In 2009, the University of Mississippi accepted 37 NLIs with the expectation that some of these prospects would not qualify academically.  Part of the strategy included placing some of the non-qualifiers in preparatory or junior college institutions with the expectation that some may be able to improve their academics and enroll at Ole Miss in the future.  In response to Ole Miss’ actions the SEC limited the number of NLIs that a school may accept in one year to 28.[2]

Today, February 3, 2010 is national signing day.  Fax machines in university offices across the country will be laboring all day starting at 7am.  It is the first day that current high school seniors who graduate in May 2010 may legally submit their NLI.  Schools may recruit a player as early as they want but they may not give the player an official written offer until September 1 of their junior year in high school.  Players often decide to give a verbal commitment before national signing day, but because this verbal commitment is not legally binding, the player can de-commit or void his commitment at any time.  For this reason, schools other than the school to which the player is committed continue to recruit the player and the player often visits and pursues other schools.

Some of the athletes that sign NLIs are minors under the age of eighteen.  In the entertainment industry, another industry where minors often agree to significant contracts, some states have enacted specific legislation to protect the interests of minors.  For example, California has the Coogan Act which protects the interests of minors who sign contracts to be a “performer or entertainer.”  In August 2009 Kelsey Evans filed a suit against the athletic director at Western Carolina University in North Carolina state court.[3]  At the age of seventeen Evans signed a NLI to attend WKU to play basketball but the coach who recruited her left to coach for another university before she enrolled.  After the coaching change Evans wanted to matriculate at another school but WKU refused to release her from the obligations under the NLI.  Like California, North Carolina has a law meant to protect minors who sign contracts; the law allows the minor to disaffirm the contract unless the contract has been approved by a North Carolina Superior Court.  The law also specifically includes minors who “render services as a participant or player in a sport.”[4]  The case was settled and the University allowed Evans to matriculate elsewhere before trial proceedings, but it appears there was a strong case against the University under North Carolina law.

 The lesson that college coaching staffs and university officials across the country should remember today is to note when the recruit turns eighteen, and if it has not happened before the fax arrives… consult an attorney and figure out the applicable state law.  Otherwise, the school risks the possibility of not having any legal method from preventing a valuable recruit from going elsewhere.

Davidson G. Lucas is a third-year law student at Quinnipiac University School of Law in Hamden, Connecticut, with a concentration in Intellectual Property Law.

[1] http://tvbythenumbers.com/2009/04/24/nfl-draft-viewership-up-62-over-6-years/17351

[2] http://www.usatoday.com/sports/recruiting/football/2009-06-04-sec-oversigning_N.htm

[3] http://www.charlotteobserver.com/606/story/910630.html

[4] NC ST § 48A-11(3).

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Posted by Dan Fitzgerald

National Signing Day: The Law of Letters of Intent

February 3, 2010

Another National Signing Day in college football is upon us - an exciting and joyous occasion for high school student-athletes preparing to play ball at the next level.  But student-athletes and their families should enter into a Letter of Intent with eyes wide open, as this contract is fraught with legal issues.  Connecticut Sports Law has covered these issues in some detail:

Signing Day Brings National Letter of Intent (NLI) into Focus

Talk to My Lawyer: 3 Situations Requiring Counsel in Collegiate Athletics

CTSportsLaw Mailbox: Is the National Letter of Intent Legally Enforceable?

Should Memphis Recruits Be Allowed to Follow Calipari?

National Signing Day: Beware of the National Letter of Intent

Jagodzinski Controversy Overshadowed Plight of Recruits

Today, in recognition of National Signing Day, I’ll post a few articles from my Quinnipiac University Law School students on Letters of Intent.  Enjoy the insight and perspectives!

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Posted by Dan Fitzgerald

‘Who Dat’ – NFL, Lousiana Attorney General Clarify Proper Use of Saints Rallying Cry

February 2, 2010

The two weeks leading up to the Super Bowl are known for heavy analysis of the participating teams, anticipation of the best commercials and party planning.  Recently, another Super Bowl tradition has taken hold: the NFL’s zealous protection of its trademarks.

The latest example involves the New Orleans Saints, and the chant “Who dat say dey gonna beat dem Saints”, which has been utterred at Saints’ games since the 1980s.  A shortened version of the chant – “Who Dat” – has appeared on T-Shirts and other apparel.  The NFL, however, reportedly sent a cease and desist letter to store owners selling apparel bearing the “Who Dat” phrase.

According to Louisiana Attorney General Buddy Caldwell (via an AP article), the dispute has been resolved:

“They’ve conceded and they’ve said they have no intention of claiming the fleur-de-lis, which would be ridiculous, or the ‘Who Dat,’ which would be equally ridiculous,” Caldwell said in an interview.

The NFL is only objecting to shirts that are marketed or presented as an official Saints or NFL product, Caldwell said. Shirts that are black and gold and say “Who Dat” can be sold, he said, if they don’t purport to be Saints gear and don’t include the team logo.

NFL spokesman Brian McCarthy added as follows:

“People can use Who Dat all they want if it doesn’t include NFL and Saints trademarks,” said NFL spokesman Brian McCarthy, in an e-mail. “We explained that we would contact merchants only if a Who Dat item also contained NFL or Saints trademarks or if it is falsely claimed that an unauthorized item is affiliated with the Saints or NFL.”

Attorney General Caldwell is working on guidelines to clarify permitted uses of the “Who Dat” phrase.

As Ron Coleman pointed out on his trademark and copyright blog, Likelihood of Confusion, the NFL’s efforts to protect its perceived trademark rights often make news this time of year.  In fact, in 2007, the NFL even asserted ownership for the phrase “The Big Game.”

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Posted by Dan Fitzgerald

Part II: Interview with the Wolf Pack’s Bob Crawford

January 30, 2010

By Dan Canavan

Here’s Part II of my interview with Bob Crawford, voice of the Hartford Wolfpack.  Click here to read Part I of the interview.

Dan Canavan: As you get ready to call a game, what is your average game day experience here at the XL Center?

Bob Crawford: On game day, I usually start off the morning working with my game day assistant to put together all the media related materials such as game notes and stats, and press credentials.  At this time of year, we will begin to see more NHL scouts in the building as the big league clubs approach the trading deadline, and we are obviously working with the league to process those requests.  Typically, the team will have a morning skate around 10:00 a.m., and if the visiting team is already in town, they will also have access to the rink before noon.  I will usually attend the morning skates to pick up interviews or other interesting story lines that I can use later for on-air discussions or during intermission reports.  That process usually takes me through lunch, and I typically use the afternoon hours to study the visiting squad’s personnel and become more conversant on issues relating to that team.  Around 4:00 p.m., I will head back up to arena and film a short video with the Wolf Pack coaches, which is unique to that night’s game.  I will then grab a quick dinner and head up to the booth to call the game. 

DC: This organization has always put a strong hockey product on the ice, qualifying for the Calder Cup playoffs for 12 straight seasons.  Who are a few current players that stand out on this year’s squad?

BC: Well, it’s hard to not notice Corey Locke, who is having a great offensive year.  He has a ton of skill, and he is a great offensive player in this league.  He can make something out of nothing, and not being a big guy, he finds a way to get it done.  The big question for Corey is whether he will have an opportunity to make the jump to the next level. 

In goal, we have Chad Johnson, who is real nice prospect.  For a big goaltender, he plays under control, stays in position, and reads the play well.  He squares up to the puck, and doesn’t make a lot of flashy saves.   Johnson also has a real calm demeanor, which I think will help him in the long run.  He has a lot of raw talent, and like all prospects, he will need more time to develop.

Jordan Owens is also fun to watch.  While he isn’t a scoring machine, he is a great skater and is a solid physical presence.  If he can make it to the big leagues, he will go up as a role player. No one heard of him when he came in on a try-out, but he is now on a two-way contract.

Dale Weise is also a dynamic player.  He has great size, and skates well.  With regard to his physical play, he just doesn’t hit people, he goes through them.  He wasn’t drafted until he was 20, which is a little older than most of his peers, but his numbers are starting to trend up, which is obviously important. Dale has the whole tool box, but he needs to become more consistent and continue to grow as a professional, which you can say about most of the players in this league.

DC: As ctsportslaw.com has continued to reach new readers, we routinely receive emails seeking advice on how to start a career in the sports industry. Do you have any advice for those looking to break into the industry?  

BC: The most common and effective path these days is through internship programs.  There are fewer jobs in the sports industry as compared to other fields, which makes it very difficult to get a foot in the door.  Internship programs give students a chance to meet and work for people in the industry, which is always important to starting any career.  And once you get into an organization on any level, you need to work hard, prove that you can be an asset, and showcase a specific skill set that brings value to the group.

DC: You have watched a lot of Wolf Pack hockey in this building over the years.  Are there any moments that stand out from the rest?

BC: The moment that first comes to mind is the overtime winning goal in Game 7 of the Conference Finals over the Providence Bruins in 2000.  The Pack came back after trailing in the game to tie it up and force overtime. We had a full barn that night, and from a hockey fan’s perspective, you couldn’t ask for much more.  People forget that we were down in Game 5 of that series and should have been eliminated, never mind force a Game 6 or force overtime in Game 7.  The momentum from that overtime win carried over into the Calder Cup Finals, where we won the Championship over the Rochester Americans.  While the finals were exciting, that Game 7 in this building against Providence was special.

Also, when we moved the club here in 1997, I’ll never forget walking out into the arena on opening night.  We had over 12,000 fans here that night, and this place was jumping.  You have to remember that the Wolf Pack had just moved from Binghamton, which only had about 4,800 seats.  I remember looking out at the crowd and thinking that this was a wholly different experience.

For more on the Hartford Wolf Pack and Bob Crawford, check out Crawford’s Corner at HartfordWolfPack.com.   You can also follow the Pack on Twitter at http://twitter.com/HtfdWolfPack.

Dan Canavan is an attorney in Hartford, Connecticut.  As a featured columnist for Connecticut Sports Law, Dan regularly covers business and legal issues facing the hockey industry for.  Dan is also the Carolina Hurricanes correspondent for The Hockey Writers.  He has appeared as an on-air guest with regard to the NHL and the Phoenix Coyotes bankruptcy proceedings on CBC Radio’s World Report. His analysis and commentary have also been published in various media outlets including The National Post, The Windsor Star, The Star Phoenix, The Montreal Gazette, The Edmonton Journal, The Ottawa Citizen, The Vancouver Sun, The Province, Faceoff.com, and the Sports Litigation Alert.  You can follow Dan on Twitter at twitter.com/DanielRCanavan.  Dan can be contacted directly at dcanavan@ctsportsgroup.com.

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Posted by Dan Fitzgerald

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