Posts Tagged ‘Legal’

Note:  This post is essentially a comment responding to a post by Hooper over at RTT regarding the Brian Butler Saga.  I considered posting some of this as a comment on that venerable site, but opted instead to post my thoughts in an actual article.  Thus, I would encourage anyone reading this post to give the original post by Hooper a look.

For a detailed account of Brian Butler’s exploits in the world of college football recruiting you should check out an excellent article written by The New York Times’ Thayer Evans and Pete Thamel entitled “College Recruiting’s Thin Gray Line,” upon which the author of this post also relied.

Brian Butler has been called many things by many people, not all of them are nice.

Butler is a former rapper and call-center manager, and a seemingly respectable football trainer based out of Wichita, Kansas.  At present, Butler is the principal and operator of the Potential Players recruiting service through which he serves as a self-styled, come-lately, “recruiting adviser” to high school football standouts across the country.  A “gifted” self-promoter, he is also the subject of a recently announced investigation by the NCAA.

Brian Butler working a recruit (NY Times / Simmons)

There are many questions being asked about Butler by many people, especially those recruiting high school standout Bryce Brown (which includes Tennessee).  The fundamental question, however, centers on whether he is essentially seeking to act as a sports agent for players being recruited by college football programs.

For now, at least, there is no definitive answer to this query.

The reason that this is an issue is that Butler has widely taken the position that the only way that college recruiters can speak with high-schoolers that he is “advising” is by going through him.  To many, this appears—at least outwardly—that Butler is serving as an “agent” rather than simply as an “adviser.”

Again, why does anyone care?  Under NCAA bylaws, current and potential student athletes are prohibited from retaining agents, and requires that all prospective athletes undergo an amateurism certification process, which includes, among other things, certifying that the athlete has not agreed to be represented by an agent.  On the issue of agents, NCAA Bylaw 12.3 states that:

An individual shall be ineligible for participation in an intercollegiate sport if he or she ever has agreed (orally or in writing) to be represented by an agent for the purpose of marketing his or her athletics ability or reputation in that sport. Further, an agency contract not specifically limited in writing to a sport or particular sports shall be deemed applicable to all sports, and the individual shall be ineligible to participate in any sport.

• See NCAA Operational Bylaw 12.3.1 (PDF )

The NCAA’s website offers additional guidance stating that:

…a student-athlete (any individual who currently participates in or who may be eligible in the future to participate in intercollegiate sport) may not agree verbally or in writing to be represented by an athlete agent in the present or in the future for the purpose of marketing the student-athlete’s ability or reputation. If the student-athlete enters into such an agreement, the student-athlete is ineligible for intercollegiate competition.

Also, a student-athlete may not accept transportation or other benefits from an athlete agent. This prohibition applies to the student-athlete and his or her relatives or friends.

The term “agent” includes actual agents, runners (individuals who befriend student-athletes and frequently distribute impermissible benefits) and financial advisors.

It is not a violation of NCAA rules if a student-athlete merely talks to an agent (as long as an agreement for agent representation is not established) or socializes with an agent.

• via: Overview of NCAA Bylaws Governing Athlete Agents | NCAA.org

Thus, Butler acting as the only means of communication with a recruit could be troubling and potentially a violation of NCAA rules, hence the NCAA investigation.

This raises a particularly thorny set of issues for high school athletes and their families, college athletic departments, high school coaches, college boosters, the NCAA, and State Legislators.  That’s right, I said State Legislators.

For these reasons, I am personally of the opinion that someone—whether it be Butler, athletes, college institutions, or otherwise—will end up paying for what amounts to an infraction that lies in the proverbial “gray area” of the NCAA’s rules.  A violation in spirit, if not in the letter.  The problem is, however, that whether Butler’s conduct violates many rules or none all depends on the perspective applied to the facts, and for the record, I make no assertion that I know or understand all of the facts.

Still, let’s use a hypothetical to illustrate the complexity of the situation.

Read the rest of this entry »

This Week’s Host: The Power T

Week Zwei

(That’s German for “2″)

This week’s Big Orange Roundtable is hosted by none other than The Power T, who has served up a heapin’ helpin’ of questions for we “Volggers” to consider. Being that I am all about riding the coat-tails of others (and the fact they haven’t kicked me out of the Roundtable … yet) here are Gate 21’s thoughts on all that is this week in the world of Tennessee Football.

(Questions in Sort-o-Teal-like color)

1) A position of strength for the Vols this fall should be wide receivers. Which 2 guys will emerge from the pack to start the opener against UCLA alongside Lucas Taylor? Why?

First of all, I think that Lucas Taylor is going to be a starter — probably from start to finish. He is the most tested and reliable of the receiving corps this year. As for the other spots, well, it gets more difficult there.

The conventional wisdom would be to go with Austin Rogers and Josh Briscoe (not to be confused with Briscoe Darling) — both have had significant playing time and key catches. They were solid down the stretch (especially in the overtime win against Kentucky, where Rogers saved the day with a huge 2-point conversion catch), however, they both had a few key weaknesses which hampered their overall production. Both had some big drops at key moments, and both appeared to have some shortcomings at times when it came to field awareness. That said, both of these upperclassmen now have an additional year of experience under their belt, and will no longer have to live in the shadow of the amazing and talented Robert Meachem.

The “Other” Briscoe

That said, I really like what I saw from Gerald Jones in his limited playing time last season, and something in my gut tells me that this talented sophomore will secure — at a minimum — 50% of one of the remaining starting spots. Based upon what I understand Dave Clawson’s offensive model to be, it seems that Jones would make a perfect fit — especially when it is time to go deep.

I am a huge fan of using the Tight End as an additional passing threat (something that I have a feeling we may see under Dave Clawson’s tricked-out-offense), and I hope that we end up using Jeff Cottam more in that role to complement and build upon the strengths of this year’s receivers — thereby making the Vols less one-dimensional and tougher to defend against. Either way, it seems to me that — despite losing a gamebreaker like Meachem — the receivers will be much stronger as a unit this season on the whole, largely due to experience and having more than just one go-to receiver. I feel this is especially true considering that, with Jonathan Crompton under center, it is fair to assume that opposing defenses will now have to honor the possibility that No. 8 may come running at them “Straight Outta Crompton” as well as throw to one of the wide-outs.

Read the rest of this entry »

In case you haven’t noticed (and given the fact most of my readers live in the south, and the fact that the Cincinnati Bengals … well … suck hard, you probably haven’t), there is a major showdown between blogosphere and the NFL brewing. This battle pits the Cincinnati Bengals against the Fan-Sided Blog Network and its StripeHype blog covering the Cincinnati Stripes.

Apparently, the Cincinnati “Football” Bengals — without warning — sent StripeHype (via its network parent Fan-Sided Blog Network) the proverbial lawyerly “nastygram” informing StripeHype and Fan-Sided that if they didn’t cease and desist use of the Bengals identity a lawsuit would be filed. This led to a blow-out between the powers that be at the Fan-Sided Network and the lead writer at StripeHype.

In the end, Fan-Sided backed down at the threat from the Bengals, and the lead writer at StripeHype, quit the blog and has decided to start pulling for the Cleveland Browns (“Hold on, wait a minute, put a little Dog in it! Woof, Woof Woof, Woof Woof…”).

The Bengals — apparently in partnership with the NFL — decided that StripeHype was appropriating the identity of the Bengals and were causing the Bengals and the NFL “serious and irreparable harm.” Ultimately, lawyers for the Bengals and the NFL demanded that StripeHype and Fan-Sided:

See Nastygram, p. 2. <Click to download in PDF Format>

I still just don’t get the position that some institutions take with regard to blogs…

On the first point, I’ll give the Bengals their due, if it’s their trademarked logo, then they have the right to control it. Be that as it may, under the Fair Use Doctrine (See below), I’m not sure that the use of the logo is an infringement in the context it was used (reporting on the Bengals). Newspapers often print team logos next to stories about that team — simply to hel identify the subject matter.

On the third point … well … I understand what they are saying, but wouldn’t Axl Rose and the other members of Guns & Roses also have a claim here as well? While I appreciate they may have trademarked the phrase, the fact remains that the English language is not subject to being trademarked. All that said, I do understand what the Bengals are saying with respect to the use of the phrase within the context of a blog about football, the Cincinnati Bengals, etc.

The second point — at least in part — however, is pretty laughable. Ignoring the issues of helmet designs and uniform designs, telling someone they cannot use a certain color scheme — whether the team uses it or not — is about as absurd a notion as I have ever heard.

Bearing all of this in mind, the larger issue is one going to the heart of the blogosphere — where is the line between “promoting” a team as opposed to “appropriating the likeness” of a team? On one level, this is a question of law and fact, and one which is not always that clear — that’s the stuff that lawyers argue about till they are blue in the face.

On a more practical level – removed from the absurdity of legal arguments made by shysters, degenerates, and lawyers (I can say that, I am one) — is reality. In day-to-day life, what is okay and what is not?

As a general rule, the Fair Use Doctrine is embodied by a series of of defenses laid out at 17 U.S.C.A. 107-118. The most important being the ones found in section 107 which reads:

17 U.S.C.A. 107 (2008) (emphasis added). Also see e.g. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218 85 L. Ed.2d 588 (1985).

This, along with the caselaw construing it, is what protects writers, reporters, teachers, editors and — yes — even bloggers in their reports, analysis, commentary, and other “publications” about whatever subject they choose. While the concepts and court opinions emanating from this doctrine are extremely powerful in terms of the protections they grant, they are defenses (i.e. they are only useful after you are already in court). Thus, they are more academic concepts for most folks, than they are guiding principles.

First of all, I am not going to say that the folks at StripeHype did not cross the line of Fair Use and infringe on the likenesses (copyrighted or otherwise) of the Bengals and the NFL. The reason for this is that — until this story started developing — I had never read StripeHype, and all of the “offending” content has been taken down.

What I will say is this, I think that the powers that be with various teams, schools, institutions, and so forth misunderstand the goal and purpose of the blogger. Today’s blogger was the penny-press writer, pamphleteer, or street corner barker of the late 19th Century. True, the medium and potential reach of the blogger is quite different from those early raiders of the Fourth Estate, but the concept remains the same:

“I have something I want to say publicly, and I’m going to say it…”

Now it does not follow that anyone will actually want to hear what is said (especially in the case of Gate 21) but that is the driving force for most bloggers. Some have an axe to grind, some have a “cause” they seek to promote, some simply want the satisfaction of seeing their thoughts on public display, there are numerous motivations. In the case of sports-related blogs, however, the typical motivation arises from a fan’s dedication to “their team” and their desire to support it more publicly.

In other words, most sports-bloggers — at their basic level — are fans first and writers second.

Thus the question of why a team, league, or player would go after a blog seeking to promote them arises. Now, make no mistake, part of supporting your team often includes bashing your rival — I’m as guilty of that as anyone. There is also a fair amount of satire involved with sports-blogging, which — I suppose — could be taken the wrong way. As best I can tell, none of this was at play in the case of StripeHype — the writers there were fans (stress “were”) of the Bengals. So why go after them?

Well, first of all, the Bengals are hardly new to this. In 2000, they sent a similar cease and desist letter to the anti-Mike Brown site: MikeBrownSucks.com — apparently to no avail since the site is still up and running, and has publicly posted their “Legal Documents Library” which includes their absolutely priceless response to the demand.

Even though I am a lawyer, it seems to me that a quick email asking nicely if StripeHype would remove the logos that the Bengals felt were being infringed upon might have been sufficient. I got such an email from a really nice guy at the Knoxville News-Sentinel asking me to attribute or remove a photograph that I posted which I never realized they owned. I called him, we had a very friendly conversation, I apologized, and I took it down. No harm, no fight, no conflict. He won, I won — and I still read the paper. That, however, just isn’t the way some folks think.

Ignoring what the Bengals “could have done,” however, the only thing that ever really matters when it comes to big-time sports any more is, of course, money. This once again seems to be an issue in the case of StripeHype. The above-referenced nastygram unabashedly keys the fact that they felt StripeHype used these images to make money stating:

See Nastygram, p. 1.

It is true that some bloggers do little more than try and use their “platform” for making money on ads, click-thrus, etc. I have ads here on Gate 21, but — to date — I believe that I have made a total of, maybe, $30.00 — and due to minimum payments on revenues, I have yet to get a single check. The ads are there to try and defray some of the costs associated with the operation of this site, not to line my pockets. This is the case for most bloggers.

Ignoring all of this, at the end of the day, the question remains do teams really want to go after fans who are — at least by most standards — promoting them?

Of course, this question is completely rhetorical — there is no answer. Fortunately for me, Mike Hamilton, the Tennessee Volunteers, and the University of Tennessee have — essentially — adopted the “just ignore them” mentality. Thus, I haven’t gotten any nastygrams (Although, in the interest of disclosure, I have sent quite a few in my day, but never as a result of a copyright issue. Damn lawyers!) and Gate 21, my temple of wasted time, continues on.

In the end, I have a feeling that teams and franchises will eventually have to face the issue of bloggers directly. Purely speculating, I would imagine that collegiate athletic programs will — in the end — be far more willing to embrace bloggers than professional sports teams. Bloggers, however, cannot be ignored indefinitely, simply due to their growing popularity. Whether that face-to-face takes the form of cooperation or legal attacks is yet to be determined.

In the meantime, the Bengals appear to have won this battle — on little more than a threat from a young associate at a big law firm in New York. It is a shame that a team feels the need to attack fans like that, but I suppose they felt it was what they had to do.

In completely turning his back on the Bengals as a result, I’m sure the lead writer at StripeHype felt exactly the same way…

– Go Figure …

For More Information on Copyright and Blogging, Check out the Following:

• Copyright Law for Bloggers – MoonDog
• Citizen Media Law Project
• Legal Guide for Bloggers – Electronic Frontier Foundation
• Chilling Effects Clearinghouse

*Disclaimer: While the writer of this post is an attorney licensed to practice law in the state in which he resides, this post is not intended to give or offer legal advice, or otherwise render a legal opinion on the matters discussed herein. Furthermore, the author does not actively practice in matters pertaining to media law, copyright, trademarking, or intellectual property, and makes no claims as to the accuracy or correctness of any statements regarding the law(s) herein. Should you have questions regarding such legal matters you should consult an attorney licensed in your jurisdicition.

Licensing and Use of Original Materials Published on This Website

This work is licensed under a
Creative Commons Attribution-No Derivative Works License.

In addition to the foregoing license, the following provisions apply:

1)  All depictions, photos, graphics, and logos on this blog, including all photoshopped, “farked,” or otherwise re-touched or altered images contained herein, are intended solely for humor and satire, and are in no way intended to express, describe, or depict actual events, locations, occurrences, or items.

2)  The views expressed on this blog are strictly based upon the opinion(s) of the author(s) and are not necessarily based upon factual events, occurrences, and/or persons (natural or otherwise). This blog is often satirical in nature, and may express farcical descriptions, depictions, and/or images.

3)  If any materials contained herein are, in the opinion of the reader, offensive or defamatory, please notify the publisher of this website (“lawvol“) and a prompt revision and/or retraction shall be made by the author.  If any materials contained herein are, in the opinion of the reader, protected, copyrighted, or otherwise unattributed proprietary material, please notify the publisher of this website (“lawvol“) via the procedure described in the “Statement Regarding Fair Use Publication of Non-original and/or Derivative Content,” below.

4)  All “Gate 21″ logos, banners, or headers, may not be re-produced without advance permission, except for the sole purpose of providing a hyperlink to this blog (http://Gate21.net), and for no other purpose. Any other materials contained in this blog may be freely linked, reproduced, and/or re-distributed via any means without advance permission, so long as attributed to this blog, linked to http://Gate21.net, or otherwise referenced.

5)  All notices, questions, comments, requests, other communications regarding the issues discussed in this notice, or regarding licensing, copyright, content, or legal issues should be directed to the publisher of this website (“lawvol“) via the contact form found on this site.

6)  To the extent that the provisions enumerated on this page are in conflict with the provisions of the Creative Commons Attribution-No Derivative Works License, the provisions of the Creative Commons Attribution-No Derivative Works License shall govern.

© 2008 – 2009 “lawvol” and Gate 21 Sports Rights Reserved as Stated Herein.

This work is licensed under a
Creative Commons Attribution-No Derivative Works License.

Statement Regarding the Fair Use Publication of Non-original and/or Derivative Content on This Website

The publisher of this website has every desire and intent to honor all copyrights or other intellectual property rights, and constantly endeavors in good faith to ensure compliance with the law and to respect the rights of others. In the event of  any unintentional or inadvertent use of content — in  whatever form it may take –  which is inconsistent with the rights of the creator of such content, upon notice, the publisher of this site will gladly remove, amend, attribute, or otherwise alter any published material(s) to prevent an infringement of the intellectual rights of such affected persons.

The following is a statement of the policy of this website regarding the use of content produced by others:

Statement of Policy

All non-original or derivative images, media files, text, and/or other content (hereinafter “Content”) published or otherwise displayed on Gate21.net are drawn from readily available sources across the internet and are believed in good faith to be in the public domain or, to the extent practicable, are attributed via hyperlink or substitute attribution.  All such Content is in good faith believed to be published and/or re-published on this website in a manner consistent with U.S. Copyright laws and the Fair Use Doctrine (both as codified at 17 USCA § 107 and as that Doctrine has been interpreted and applied by the Courts of the United States of America).

Reporting Claims of Believed Infringement

If you believe that any Content appearing on Gate21.net infringes on your copyright or intellectual property rights, please inform the publisher of this website (“lawvol“) via email immediately.

When notifying the publisher of Gate21.net of any such alleged infringement, please provide the following information, and the infringing material will be removed as soon as possible.

1. Your name, address, telephone number, and e-mail address;
2. A description of the copyrighted Content that you claim has been infringed or, if possible, a screen image or capture of same;
3. The exact URL (web address) or a description of each place where alleged infringing content is located or published;
4. A statement by you detailing the basis of any good faith belief on your part that the disputed use has not been authorized by you, your agent, or the law;
5. A statement by you detailing the basis of any contention on your part that the use or publication of such Content is not protected under the Fair Use Doctrine;
6. Your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
7. A statement by you, made under penalty of perjury, that the information in your notice is accurate to the best of your knowledge, that you are the copyright owner or are authorized to act on the copyright owner’s behalf.

Misrepresentations of Third Parties

The publisher of this website reserves the right to seek any and all appropriate remedies for misrepresentations related to claims of infringement, including, but not limited to, redress under the provisions of Section 512(f) of the Copyright Act, 17 U.S.C.A. § 512(f), which provides that any person who knowingly materially misrepresents that material or activity (Content) constitutes an infringement of copyright shall be liable for any damages, including costs and attorneys’ fees.