Volume 9-2 (Part 2)

 

 

Volume 9, Issue 2
(Fall/Winter 2007)

This issue is produced in two separate parts. This first document begins PART ONE and contains links to PART TWO.

TABLE OF CONTENTS

PART TWO

INTELLECTUAL PROPERTY LAW

American Needle, Inc. v. New Orleans La. Saints, 496 F. Supp. 2d 941 (N.D. Ill. 2007). NFL Merchandising is responsible for the development and production of all thirty-two NFL teams' intellectual property rights. For over twenty years, NFL Properties granted licenses to American Needle to use NFL trademarks. However, in 2000, NFL Properties entered into an exclusive license with Reebok and did not renew its contract with American Needle. American Needle claimed NFL Properties violated antitrust regulations when it granted an exclusive license to Reebok. The court granted summary judgment for NFL Properties because it was acting as a single entity rather than thirty-two separate entities, and therefore, was allowed to grant an exclusive license.

Baden Sports, Inc. v. Kabushiki Kaisha Molten, No. C06-210MJP, 2007 U.S. Dist. LEXIS 51186 (W.D. Wash. July 16, 2007). Baden developed a cushioned basketball and was granted a patent for the ball on June 10, 1997. Baden sued Molten, a Japan corporation, for patent infringement and false advertising. Baden claimed that Molten introduced basketballs to the U.S. market that included the same seam and cellular sponge layer construction as Baden's. The court granted summary judgment on the patent infringement in regards to Molten's old balls. However, there was a question of fact whether Baden's patent is valid because the technology may be so obvious that it cannot be protected. The court did not grant a permanent or preliminary injunction because there were questions about the validity of the patent.

Baden Sports, Inc. v. Kabushiki Molten, No. C06-210MJP, 2007 U.S. Dist. LEXIS 70776 (W.D. Wash. Sept. 25, 2007). Baden sued Molten for patent infringement and false advertising, but Molten claimed the patent was invalid. The court directed a verdict in favor of invalidity and the jury found that Molten had continued to sell the infringing basketball. The jury awarded over $8 million in damages, but Baden requested enhanced damages and a permanent injunction. The court granted a permanent injunction preventing Molten from advertising dual cushion technology within the United States and towards consumers in the United States because continued infringement would hurt the goodwill of Baden. The court did not award enhanced damages because Baden did not prove that Molten acted in bad faith, but it did award attorneys' fees and pre-judgment interest on the patent infringement claim to Baden.

Basketball Mktg Co. v. FX Digital Media, Inc., Nos. 06-2216 & 06-3274, 2007 U.S. App. LEXIS 28605 (3d Cir. Dec. 11, 2007). Basketball Marketing Company, also known as AND 1, has sponsored the AND 1 Mix Tape Tour, which features steetball basketball players. AND 1 had a sponsorship deal with Gittens, which required Gittens to play in the Mix Tape Tour and wear AND 1 apparel during all athletic activities. The agreement between AND 1 and Gittens allowed him to participate in other tours as well. Gittens participated in FX's Legends Basketball Tour and convinced other players to participate as well. FX began marketing the tour as including athletes from the AND 1 Mix Tape Tour. Basketball Marketing sued Gittens for trademark infringement, but the court ruled in favor of Gittens and awarded him attorneys' fees. Basketball Marketing appealed. The court affirmed the judgment in favor of Gittens because he did not take part in designing the flyers for the tour, and he did not know that they infringed on AND 1's trademark. However, the court reversed the judgment of awarding attorneys' fees because Basketball Marketing had a meritorious claim.

Brooks v. Topps Co., No. 06 CIV. 2539 (DLC), 2007 U.S. Dist. LEXIS 94036 (S.D.N.Y. Dec. 21, 2007). James Bell was a well known baseball player who played in the Negro leagues from 1922 to 1950 and was inducted into the Baseball Hall of Fame in 1974. Once he was inducted, he gave the Baseball Hall of Fame permission to use his likeness. Following his death, his daughter granted permission to use his likeness to several different companies. However, in 2001 and 2004, Topps released some trading cards with Bell on them without getting permission. His daughter also claimed that there was information on the cards that was both false and derogatory. Brooks sued Topps, claiming a violation of right of publicity, vioaltions of the Lanham Act and unfair competition. The right to publicity claim was dismissed because the statute of limitations had run out. The Lanham Act claims were dismissed because there was no evidence of liklihood of confusion and no false statements were made. The unfair competition claim was dimissed for the same reasons the Lanham Act claims were dismissed.

C.B.C. Distrib. And Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007). CBC sold fantasy sports products on the internet, including a fantasy baseball league. From 1995 to 2004, CBC licensed the information of many of the names and information about Major League Baseball players. However, in 2005, the Players Association licensed the information to Advanced Media. CBC sued the defendant to determine if it could continue to operate its fantasy baseball games. The court granted summary judgment for CBC and the defendants appealed. Although CBC used the information for commercial purposes, its First Amendment Rights superseded players' right of publicity.

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Cent. Mfg., Inc. v. Brett, 492 F.3d 876 (7th Cir. 2007). Brett Brothers Sports sells a variety of wood bats that have the feel of a wood bat and the break-resistance of a metal bat. One of the models is called the Stealth model. Leo Stoller operates a variety of businesses, including Central Manufacturing, and claims that the companies have been using the Stealth mark for a variety of products since 1982. In 2001, Central Manufacturing filed a trademark application for using the Stealth word mark on baseball bats and numerous other products. Central Manufacturing sued Brett Brothers Sports for trademark infringement and unfair competition. Brett Brothers asked for information regarding the amount of money Central Manufacturing made from baseball bats sold under the term Stealth, but it did not provide that information to Brett Brothers. The District Court canceled the trademark registration because Central Manufacturing failed to show it had used it commercially. The appellate court affirmed the decision because Central Manufacturing did not provide documentation about its sales, and therefore, could not prove it had used the mark commercially.

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Garden City Boxing Club, Inc. v. Paquita's Café, No. 06 Civ. 6953 (RMB)(JCF), 2007 U.S. Dist. LEXIS 70893 (S.D.N.Y. Sept. 26, 2007). The plaintiff was granted the right to distribute the telecast of the fight between Oscar De La Hoya and Shane Mosely on September 13, 2003, and it sublicensed the right to show the fight to several establishments. Once the establishments paid, they received the decoding equipment and satellite signal to show the fight. However, Pacquita's Café showed the event without paying Garden City. Garden City sued Pacquita's Café under the Cable Communications Policy Act for the unauthorized authorized interception and commercial exhibition of the fight. The court awarded damages in the amount of $10,000, the statutory maximum, because the violation was willful and was done for the purpose of gaining commercial profits.

Ignition Athletic Performance Group, LLC v. Hantz Soccer U.S.A., LLC, No. 06-13684, 2007 U.S. Dist. LEXIS 51456 (E.D. Mich. July 17, 2007) and Ignition Athletic Performance Group, LLC v. Hantz Soccer U.S.A., LLC, No. 06-2308, 2007 U.S. App. LEXIS 19091 (6th Cir. Aug. 8, 2007). The plaintiff provided sports-specific training in the Cincinnati area. The plaintiff applied for trademark protection on February 5, 2005, and registered the Ignition mark and logo with the United States Patent and Trademark Office on March 5, 2006. On September 12, 2005, the defendant announced that it would operate a soccer team in Detroit named Detroit Ignition. The plaintiff sued claiming trademark infringement and moved for a temporary restraining order and preliminary injunction. The court did not grant the temporary restraining order or the preliminary injunction. The plaintiff appealed and the defendant moved for summary judgment. The court granted summary judgment for the defendant because the plaintiff's mark is only strong in the Cincinnati area, the users of the plaintiff's mark are likely to use a high degree of care when using its products and services, and the likelihood of confusion is low because the Detroit Ignition do not play in any of the same cities as the Cincinnati Kings. The appellate affirmed the district court's denial of a temporary restraining order and preliminary injunction.

Interforever Sports, Inc. v. Lopez, No. H-06-2420, 2007 U.S. Dist. LEXIS 49812 (S.D. Tex. July 10, 2007). The plaintiff had a license agreement with the promoter of the soccer match between Mexico and Costa Rica. The license agreement permitted the plaintiff to sublicense the right to show the match on closed circuit television to commercial establishments in Texas. The only establishments that could show the match on television in Texas were those that the plaintiff had authorized. The defendant intercepted the broadcast of the match and showed it to patrons at Billares Salamanca without paying a licensing fee to the plaintiff. The plaintiff moved for summary judgment, which was granted, and was awarded $60,000. The award included $50,000 in punitive damages because it was shown that the defendant intercepted the broadcast for financial gain and the defendant had previously broadcasted an unauthorized boxing match.

Izzo Golf, Inc. v. King Par Golf, Inc., No. 02-CV-6012T, 2007 U.S. Dist. LEXIS 48709 (W.D.N.Y. July 5, 2007). The plaintiff claimed that the defendant infringed on its Dual Strap Carrying System for Golf Bags patent. The patent is for a golf bag that includes a strap designed to evenly distribute the weight of a golf bag across both shoulders. The defendant moved for summary judgment claiming that it did not infringe on the patent and the patent was invalid. The court granted summary judgment for the defendant on infringement claim, but denied summary judgment on whether the patent is invalid. The infringement claim was dismissed because the defendant's golf bag was designed differently than the plaintiff's in several different ways. The defendant's motion for summary judgment on the issue of validity was denied because the defendant could not prove that other golf bags in the United States had the same design prior to the plaintiff filing for a patent.

J & J Sports Prod., Inc. v. Meyers, No. 06 Civ. 5431 (BSJ) (JCF), 2007 U.S. Dist. LEXIS 50834 (S.D.N.Y. July 16, 2007). The plaintiff purchased the right to sublicense the distribution rights of the fight between Bernard Hopkins and Jermain Taylor on July 16, 2005. The plaintiff sublicensed the right to show the fight to hundreds of establishments throughout the country. Because the plaintiff believed that establishments would intercept the fight without paying for the licensing fee, the plaintiff hired private investigators. One of the plaintiff's private investigators entered the defendant's hair salon and saw portions of the fight. The plaintiff claimed that the defendant violated the Cable Communications Policy Act when it showed the fight in her hair salon. The court ruled in favor of the plaintiff and awarded $3000 in statutory damages and an additional $3000 based on the plaintiff's willfulness to break the law.

Joe Hand Promotions, Inc. v. Phillips, No. 06 Civ. 3624 (BSJ) (JCF), 2007 U.S. Dist. LEXIS 50925 (S.D.N.Y. July 16, 2007). The plaintiff purchased the right to sublicense the distribution rights of the fight between Mike Tyson and Kevin McBride on June 11, 2005. The plaintiff sublicensed the right to show the fight to hundreds of establishments throughout New York. In order to help prevent establishments that had not purchased the rights to show the fight, the plaintiff hired a private investigator. The plaintiff's private investigator witnessed the plaintiff showing the fight at his barber shop. The plaintiff claimed that the defendant violated the Cable Communications Policy Act when it showed the fight in his barber shop. The court awarded the plaintiff $3000 in statutory damages and an additional $3000 in enhanced damages based on the defendant's willfulness to show an illegal broadcast.

Joe Hand Promotions, Inc. v. Collins, No. 06-CV-6521, 2007 U.S. Dist. LEXIS 77373 (E.D.N.Y. Sept. 7, 2007). The plaintiff purchased the right to sublicense the distribution rights of the fight between Jeff Lacy and Joe Calzaghe on March 4, 2006. The plaintiff sublicensed the right to show the fight to hundreds of establishments throughout New York. In order to help prevent establishments that had not purchased the rights to show the fight, the plaintiff hired a private investigator. The plaintiff's private investigator witnessed plaintiff showing the fight at the defendant's bar. The plaintiff claimed that the defendant violated the Cable Communications Policy Act when it showed the fight in his bar. The court awarded the plaintiff $1000 in statutory damages based on the amount of people that were present in the bar and an additional $3500 in enhanced damages based on the defendant's willfulness to show an illegal broadcast.

Messer v. Ho Sports Co., No. CV 06-826-PK, 2007 U.S. Dist. LEXIS 78812 (D. Or. Oct. 22, 2007). Jason Messer patented a device that permitted wakeboards to be used without bindings. This new technology allowed wakeboarders to use friction alone to control and remain upright on the wakeboard. Messer claimed that the defendants infringed his patent. The defendants moved for summary judgment on some of the claims because of prior art. The court granted summary judgment on five of the nine claims that the defendants had claimed were anticipated by prior art.

Sports Imaging Photography of Utah, Inc. v. Utah Sch. & Sports Imaging, No. 2:07CV517DAK, 2007 U.S. Dist. LEXIS 88589 (D. Utah Nov. 1, 2007). The plaintiff, Sports Imaging Photography of Utah, has been providing photography services to recreational sports leagues, scholastic sports leagues and other athletic associations in the greater Salt Lake City area for over twenty years. In 2005, defendant Chris Zullinger moved to Utah to start a company with his two brothers called Z3 Creative. In April, 2007, both the plaintiff and the defendants submitted bids to Salt Lake County for team and individual sports photography. The plaintiffs submitted a bid using its name, Sports Imaging Photography of Utah and the defendant used the name Utah School & Sports Imaging. Plaintiff sued the defendants for trademark infringement and sought a preliminary injunction, which would prevent the defendants from using the terms Utah School & Sports Imaging and Sports Imaging. The court declined to enjoin the defendants from using the marks because the marks were descriptive, but the plaintiff could not show that they had a secondary meaning, which is necessary for common law trademark protection without having a registered trademark.

World Triathlon Corp. v. Dawn Syndicated Productions, 8:05-CV-983-T-27EAJ, 2007 U.S. Dist. LEXIS 72544 (M.D. Fla., Sept. 28, 2007). World Triathlon Corporation (WTC) owns the mark Ironman Triathlon. Defendant Warner Brothers distributed a show called ElimiDATE. During five shows of ElimiDATE that aired in May of 2005, the show featured an on screen logo with the words elimiDATE Ironman Challenge. WTC sued the defendants for trademark infringement. The court granted summary judgment for the defendants because the mark is a common English word that is used regularly by third parties within the sports industry, and the plaintiff's mark does not have a strong significance outside of triathlon competitions. Further, there was little similarity between the plaintiffs and defendants in regards to the marks, the products and the services, and the advertising methods. Therefore, there was no likelihood of confusion and the plaintiffs could not prove that there was any actual confusion. The court also granted summary judgment for defendants on the dilution claim because the plaintiffs did not provide any evidence consumers would have a different impression of plaintiff's products because of defendant's use of the word Ironman.

PROPERTY LAW

Minn. Sports Fed'n v. Anoka, Nos. CX-05-4138, C5-06-4090, 2007 Minn. Tax. LEXIS 21 (Minn. Tax Ct. Sept. 25, 2007). Minnesota Sports Federation moved for a summary judgment determination as to whether its property is exempt as a public charity or as a baseball field rather than a Class 3(a), which is its current classification. The court denied summary judgment because there was more detail needed about the financial information before a decision could be made.

TORT LAW

Avila v. Newport Grand Jai Alai, LLC, 935 A.2d 91 (R.I. 2007). Avila worked at Newport Grand Jai Alai as a professional jai alai player. At the end of 2001, he was not rehired. Although the players were covered by a collective bargaining agreement, it did not include a grievance procedure and the players were considered at will employees. However, when Avila learned that he was not rehired, he contacted a union representative. The union representative then spoke with the CEO of Newport Grand and the union president. The CEO told the union representative that Avila was not rehired because he had too many inconsistencies as a player and was accused of fixing games. After the union president and representative advocated for Avila's reinstatement, Newport decided it would rehire him. However, when the players' manager threatened to quit because he believed Avila cheated, Newport decided not to rehire him. He then attempted to play jai alai in Florida, but prior to a tryout he was accused of being the player that fixed games in Newport. Avila sued Newport Grand for defamation. The defendants claimed that the statements made between the CEO, union representative and president, and the players' manager were privileged. The trial court granted summary judgment in favor of the defendants and the appellate court affirmed because the CEO had an interest in answering questions to the union representative as to why certain players were not rehired and the plaintiff had not shown there was any malice or ill will on the part of anyone at Newport Grand in making the statements regarding Avila.

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Becker v. Whittier Union High Sch. Dist., No. B191477, 2007 Cal. App. Unpub. LEXIS 7059 (Cal. Ct. App. Aug. 30, 2007). Three members of the Santa Fe High School cross-country team were running when they crossed a busy street in the middle rather than at an intersection. Becker hit one of them while riding his motorcycle and hurt his shoulder as a result of the accident. He sued Whittier Union High School District (WUHSD) claiming that the cross country coach failed to adequately supervise the runner, which was a substantial cause of the accident. The district court dismissed the case because the students were not running during a scheduled practice. Becker appealed, claiming that even if it was an unscheduled practice the students were still under the control of the coach. The court affirmed summary judgment for WUHSD because there was no evidence that the coach knew or should have known that the students had a propensity of engaging in reckless behavior while running on city streets.

Berry V. v. Greater Park City Co., 171 P.3d 442 (Utah 2007). During a skiercross race, the plaintiff fell and fractured his neck, which paralyzed him. The plaintiff sued the defendants for negligence, gross negligence and strict liability because the jump was too steep and the landing area was too small. The district court granted summary judgment on all claims because the plaintiff had signed a Release of Liability and Indemnity Agreement, which precluded the negligence claims, and the strict liability claim was not applicable because he was involved in abnormally dangerous activity. The appellate court affirmed summary judgment on the negligence claim and the strict liability claim, but it reversed and remanded the gross negligence claim. The court concluded that while the defendants could contract out of ordinary negligence claims, they could not contract out of gross negligence, and it had not been determined if the defendants were grossly negligent.

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Chrismon v. Brown, No. 14-05-00822-CV, 2007 Tex. App. LEXIS 7745 (Tex. Ct. App. Sept. 27, 2007). Robin Chrismon was a volunteer assistant softball coach when she was hit in the face by a bat that had slipped out the of head coach's hands. The trial court granted summary judgment for the head coach and the softball association because the injury was a result of an inherent risk in being involved with softball, and there was no evidence of gross negligence or intentional conduct.

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Creely v. Corpus Christi Football Team, Inc., No. 13-06-705-CV, 2007 Tex. App. LEXIS 6769 (Tex. Ct. App. Aug. 23, 2007). Creely owned a gym where she trained kids in tumbling and cheerleading. In exchange for some advertising, she also helped organize various half-time performances by cheerleading and tumbling participants. While getting ready for a half-time show she was standing in the tunnel and a football hit her and injured her thumb. Creely sued the cheerleading squad and football team for failing to exercise reasonable care. The district court granted summary judgment for the defendants because Creely had assumed the risk of being injured. The appellate court affirmed the decision because Creely did not present any evidence to show that the defendants did not use reasonable care in preventing the injury.

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DiPietro v. Farmington Sports Arena, LLC, No. X07CV054025110S, 2007 Conn. Super. LEXIS 2129 (Conn. Super. Ct. July 2, 2007). Michelle DiPietro fell and hurt her ankle while playing soccer at Farmington Indoor Sports Arena. DiPietro claimed that the defendant was negligent because the carpet used in the arena was not a safe playing surface. The court granted summary judgment for the defendants because DiPietro's expert witness did not testify that the defendant knew or should have known that the carpet was a dangerous playing surface.

Eriksson v. Cal. State Univ., No. F051229, 2007 Cal. App. Unpub. LEXIS 7597 (Cal. Ct. App. Sept. 20, 2007). Shana Eriksson was killed after the horse she was riding on the California State University, Fresno (CSUF) campus became startled and lost its footing. Although she was a member of the CSUF equestrian team, she was riding during her own free time during the accident. Her parents sued CSUF claiming that it did not adequately supervise Shana nor warn her of the dangers of riding near livestock on campus. The trial court granted summary judgment for CSUF. The appellate court affirmed summary judgment because the cause of the accident (a horse getting startled and losing its footing) was an inherent risk in riding a horse, and CSUF had no duty to supervise Shana while she was riding during her own free time.

Feagins v. Waddy, No. 1051349, 2007 Ala. LEXIS 156 (Ala. Aug. 3, 2007). Tamesha Feagins was a member of the Center Street Middle School track and field team. During a track meet, the head coach informed her that she would be competing in the high jump. Tamesha told her coach that she did know how to do the high jump, and she was apprehensive about attempting it. The coach assured her that she would be able to do it, but he did not instruct her on how to properly complete the high jump. While attempting a practice jump, Tamesha tore her ACL. Tamesha's parents sued the coach, the athletic director and the city of Birmingham school system. Her parents claimed that the defendants were negligent when they failed to adequately train her daughter in the high jump. The trial court granted summary judgment for the coach and the athletic director, and Tamesha's parents appealed. The appellate court affirmed summary judgment for the coach because he was making decisions as a track and field coach, which entitled him to State-agent immunity. Summary judgment was also affirmed for the athletic director because the plaintiffs did not make an argument on appeal as to why he should not be granted summary judgment.

Haymon v. Pettit, No. 151, 2007 N.Y. LEXIS 3281 (N.Y. Nov. 20, 2007). Falcon Park was running a promotion offering free tickets to anyone who returned a ball to the ticket office. Leonard Haymon was chasing foul and home run balls outside of Falcon Park during this promotion and was struck by a car after failing to look both ways while crossing the street. At the time of the incident, the driver had a .11% blood alcohol level. Leonard's mother sued the operator of Falcon Park. She claimed it had a duty to prevent fans from chasing balls into a nearby street while running the promotion. The trial court granted summary judgment for the operator. The appellate court affirmed because chasing foul balls was an inherent risk of the sport, regardless of the promotion, and the duty to warn all people surrounding the park of the inherent risks of chasing balls into the street without paying attention would have been impractical.

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Heilig v. Touchstone Climbing, Inc., No. A113901, 2007 Cal. App. Unpub. LEXIS 8770 (Cal. Ct. App. Oct. 30, 2007). Jason Heilig fell and broke his foot and ankle while competing in a rock climbing competition at one of the defendant's climbing gyms. Prior to competing in the event, he had signed a Release of Liability and Assumption of Risk Agreement, which specified that the climber assumed both known and unknown risks of climbing. Heiling claimed Touchstone did not provide enough crash pads around the rock climbing area and sued. The trial court granted summary judgment for the defendants and the appellate court affirmed because the fall was an inherent risk in the sport of rock climbing, and Heiling had assumed that risk when he entered the competition.

Lewin v. Lutheran W. High Sch., 2007 Ohio 4041 (Ohio Ct. App. 2007). Joan Lewin fell into a hole while in the Lutheran West High School parking lot following a football game. Lewin sued Lutheran West, claiming negligence. The trial court granted summary judgment for the defendants. The appellate court reversed and remanded because there was a question as to why and how Lewin fell into the hole.

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Mantovani v. Yale Univ., No. 0550000480, 2007 Conn. Super. LEXIS 1908 (Conn. Super. Ct. July 26, 2007). Eugene Mantovani was attending a cookout outside of a New Haven Ravens baseball game when he was hit by a baseball and injured his eye. The plaintiff sued the defendant for negligence because it did not have any safety nets near right field to prevent injuries to bystanders. The defendant moved for summary judgment, but the court denied it. While a limited duty applies to spectators in the stands, it did not apply to a section of the stadium where the defendant encouraged spectators to engage in something other than playing close attention to the game. In addition, there was a question of fact whether the threat of a foul ball in the right field pavilion was an open and obvious danger because the defendant did not provide any evidence that Mantovani knew that a foul ball could come into that area.

McGarry v. Univ. of San Diego, 154 Cal. App. 4th 97 (Cal. Ct. App. 2007). McGarry had been the head football coach at the University of San Diego (USD) for seven years prior to being fired. Shortly before McGarry was fired, a new athletic director was hired and after a tense exchange with her, McGarry filed a complaint against her. The athletic director confronted McGarry about kicking a football towards trainers and towards a player during practice. A day after receiving a written memo memorializing these conversations, McGarry was fired. After he was fired, an article appeared in the San Diego Union-Tribune that stated several incidents had led to the firing of McGarry. The article also included information from university sources speaking on anonymity. After the newspaper article was published, two university officials met with the parents of the players and implied that McGarry had committed immoral acts. McGarry sued USD for defamation. The court denied McGarry's motion to compel depositions of the reporters because the coach was a limited purpose public figure and the statements were a matter of public interest. The court also dismissed the claims because McGarry could not show malice on part of any of the university officials.

Moakley v. Carle Place Union Free Sch. Dist., No. 8543/06, 2007 N.Y. Misc. LEXIS 6878 (N.Y. Sup. Ct. Sept. 6, 2007). Dina Moakley was an eleventh grader and a member of her high school's cheerleading squad. While performing a stunt at practice one day she lost her balance, fell, and injured herself. While attempting to perform the stunt, she was being spotted by several teammates, supervised by the coach, and there was a mat on the floor for protection. However, when Moakley fell she missed the mat and fell on the hardwood floor. Moakley sued the school district for negligence. The school district moved for summary judgment because it claimed Moakley assumed the risk of falling. Moakley claimed that because there was a mat on the floor she did not assume the risk of falling on the hardwood floor. The court granted summary judgment for the defendant because it did not breach any duty by failing to provide additional mats.

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Morales v. Beacon City Sch. Dist., 44 A.D.3d 724 (N.Y. Sup. Ct. 2007). Scott Morales was injured while running hurdles during track practice. Morales had never run hurdles before, but his coach told him to run varsity height hurdles. Morales claimed that his coach did not give him instructions on how to properly run hurdles. Morales also claimed that the hurdle he fell over was not properly set up. The defendant claimed that Morales assumed the risk and moved for summary judgment. The court denied summary judgment because there was a question of fact whether the coach failed to instruct Morales, and whether not instructing him properly unreasonably increased the risk.

Moss v. Pete Suazo Utah Athletic Comm'n, 2007 UT 99 (Utah 2007). Bradley Rone died during a boxing match. Moss had been knocked out in a fight less than two months prior to the fight he died in, but he was not required to undergo a neurological examination, which is required by the Pete Suazo Athletic Commission. The rules also require boxers to be evaluated by a physician not less than eight hours prior to a fight, but Rone was not evaluated prior to the boxing match. Rone's sister sued the Athletic Commission for failing to abide by its rules. The Athletic Commission moved to dismiss the case because it claimed the lawsuit was barred by the Utah Governmental Immunity Act. The court dismissed the case because a governmental entity is immune from negligence claims if it is in regards to a licensing decision and the decision to prevent a boxer from competing is essentially a licensing decision. Further, it did not violate the Utah Constitution because the regulation of boxing is a governmental activity.

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Murphy v. Polytechnic Univ., No. 18645/06, 2007 N.Y. Misc. LEXIS 8547 (N.Y. Sup. Ct. Dec. 31, 2007). The head coach of the Polytechnic University softball team was demonstrating a drill to Murphy when the coach accidentally hit her in the face with a bat. The defendants claimed that Murphy assumed the risk and moved for summary judgment. The court determined that Murphy did not assume the risk because she had experience in being coached and believed that the coach would have made sure that the player was out of swinging range prior to swinging the bat.

Nardiello v. Allen, No. 07-cv-0580 (GLS-RFT), 2007 U.S. Dist. LEXIS 85080 (N.D.N.Y. Nov. 16, 2007). Nardiello was the head coach of the US Olympic Skeleton Team from 2002 to 2006. As the head coach, he was required to report to the Skeleton Programming Committee (SPC). Allen was an athlete representative on the SPC board from 2003 to 2005. Nardiello claimed that Allen made false statements through email correspondence to the SPC on five separate occasions between December 17, 2005 and January 3, 2006, which led to his suspension as head coach and harmed his reputation. Allen moved to dismiss the case for lack of personal jurisdiction. Nardiello claimed that Allen was a member of the SPC, which was run under a New York not-for-profit and occasionally attended meetings in person in New York. However, at the time of the alleged acts, Allen was not a member of the SPC and had not been in New York since November 2005. The court dismissed the case because Allen's contacts with New York had ended at the time of the alleged defamatory statements were made, and the mere fact that he sent emails to persons within the state of New York did not amount to the transaction of business in New York.

Newsom v. Ballinger Indep. Sch. Dist., No. 03-07-00022-CV, 2007 Tex. App. LEXIS 5690 (Tex. Ct. App. July 17, 2007). Cecyle Newsom was a teacher and the head girls' basketball coach at a junior high school within the defendant's school district. On her way to a Saturday practice she was killed in a car accident. Her husband filed a claim for workers' compensation benefits on behalf of himself and his children. The defendants denied the claim because her death did not occur in the course and scope of her employment. The Texas Division of Workers' Compensation held a hearing and determined that Newsom was acting within the scope of her employment when she died. The school district appealed and the Division sought judicial review. The defendants moved for summary judgment. The husband argued that she was within the scope of her employment because the Saturday practice was a special practice, but the school district claimed that it did not direct her to schedule the Saturday practice. The court determined that Newsom was not killed in the course and scope of her employment because she scheduled the Saturday practice, Saturday practices were not unusual, and she was not traveling on a special mission for the school district.

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Noble v. Bronxville Union Free Sch. Dist., 45 A.D.3d 548 (2007). Ashley Noble was hit in the face with a hockey stick by Elizabeth Goodell during a field hockey scrimmage. Noble sued the school district for failure to properly supervise the scrimmage. The school district filed a third party action against Goodell. Goodell moved to dismiss the claim for failure to state a claim. The court denied Goodell's motion because the claim stated a cognizable claim for contribution or indemnification.

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Oakland Raiders v. Nat'l Football League, 161 P.3d 151 (Cal. 2007). After failure to negotiate a stadium in Los Angeles, the Oakland Raiders commenced negotiations with the City of Oakland to renovate Oakland Coliseum and ultimately moved to Oakland. The Raiders sued the NFL claiming that because it left Los Angeles, which allowed the NFL to bring in another team, it should be compensated for allowing the NFL the opportunity to place another team there. The jury ruled in favor of the NFL and the Raiders moved for a new trial due to jury misconduct because one of the jurors was biased against the Raiders and another had difficulty understanding English. The trial court granted a new jury trial, but it did not give reasons for granting a new trial. The court affirmed the jury's decision because the Raiders did not meet their burden of proof showing that there was jury misconduct.

O'Connor v. Burningham, 165 P.3d 1214 (Utah 2007). O'Connor was the girls' basketball coach at Lehi High School. Numerous parents voiced their concerns about his coaching style, his use of money budgeted for the program, and unfair treatment to certain players. The parents complained to the principal, school administrators, and eventually the Alpine School District. When O'Connor refused to promise that he would not retaliate against the girls whose parents complained, the school district dismissed him from his position as the girls' basketball coach. O'Connor sued the parents for defamation. The district court granted summary judgment for the parents because it believed O'Connor was a public official and defamation could not be proven without the showing of actual malice, which could not be shown. The appellate court ruled that O'Connor was not considered a public official and remanded the case to the district court to determine if the statements were defamatory.

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Parker v. S. Broadway Athletic Club, 230 S.W.3d 642 (Mo. Ct. App. 2007). Curtis Parker was training as a professional wrestler at the South Broadway Athletic Club (Club). On July 16, 2002 he told the person who was training him that his head was hurting. He sat down for a while and then left. When he returned about a week later, he was asked how he was feeling. He said it took him about five days to get rid of the headache, but he was feeling great. After practicing a few moves that day, Curtis went into a seizure and he died nine days later. It was determined that he had suffered a second concussion prior to recovering from the first concussion. Curtis' parents sued the Club for negligence in allowing Anthony to return to the ring prior to recovering from his first concussion. The jury ruled in favor of the Club, and the Parkers appealed. The appellate court affirmed the jury's decision because the Parkers did not provide any evidence that the Club knew or should have known that Curtis suffered a concussion.

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Parsons v. Arrowhead Golf, Inc., 874 N.E.2d 993 (Ind. Ct. App. 2007). Victor Parsons was hurt while playing golf at Arrowhead Golf Course. After driving his golf cart to the 16th hole, he stepped from the cart path onto the green, which was a four to twelve inch drop that he had not noticed. When he stepped down he immediately felt pain in his back. Parsons sued Arrowhead Golf for allowing him to play on a negligently designed golf course. The trial court ruled in favor of the defendant. The appellate court affirmed the decision because Parsons assumed the risk of injuries foreseeable in the game, which included stepping off the cart path into a lower area.

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Porter v. Dartmouth Coll., No. 07-cv-28-PB, 2007 U.S. Dist. LEXIS 81396 (D.N.H. Oct. 24, 2007). Christina Porter, an inexperienced skier, enrolled in an introductory skiing class at Dartmouth College to satisfy the physical education credit, which is required for all undergraduate students. During class one day, Porter was told to ski down a hill by herself while the instructors accompanied all other students in the class down a more difficult hill. As Porter was skiing down the hill she hit a tree and sustained serious injuries that led to her death. Porter's parents sued for negligence and wrongful death. Darmouth moved to dismiss the claims because they were barred by the New Hampshire Skiers, Ski Area, and Passenger Tramway Safety Act (Ski Statute), which bars lawsuits for claims that result from inherent risks in the sport of skiing. The court denied the motion to dismiss because the Ski Statute does not bar claims for negligent instruction.

Rebischke v. Metro. Sports Facilities Comm'n, No. A06-1605, 2007 Minn. App. Unpub. LEXIS 726 (Minn. Ct. App. July 17, 2007). Frieda Rebischke was injured as she was leaving a Minnesota Twins baseball game. As she was walking through a set of open balance doors the wind effect caused her to fall face-first into a turnstile. Frieda had been to games before and was aware of the wind effect, but claimed that the wind was much stronger on the day she was injured. In addition, there were signs posted near the doors to warn spectators of the wind effect. The Metrodome's roof is largely supported by air pressure and the balance doors are only opened when the air pressure conditions allow for it. The decision to open them is made by a technician based on different factors and the Metrodome's operations manual. Frieda sued the defendant for negligence and failure to warn. The defendant filed a motion to dismiss because it claimed immunity. The trial court denied the defendant's motion to dismiss because the decision to open the doors was a ministerial act rather than a discretionary act. The appellate court remanded the case to the trial court because there was a question of fact whether the technician's decisions constituted a ministerial act or a discretionary act.

Regan v. Mutual of Omaha Ins. Co., 874 N.E.2d 246 (Ill. App. Ct. 2007). Brendan Regan was a member of the St. Ambrose baseball team and traveled with the team to a baseball tournament in Florida in March 2002. During the team's day off, Regan was paralyzed when he dove into a wave and hit the ocean floor at a beach next to the team's hotel. Mutual of Omaha issued a catastrophic athletic insurance policy to St. Ambrose University and a claim was made on Regan's behalf following his injury. Mutual of Omaha denied the claim because the injury occurred during a day off and did not occur during a covered activity or event. Regan claimed that the entire trip to Florida was a covered activity or event. Regan sought a declaratory judgment, and the trial court granted summary judgment for Regan. The appellate court affirmed the trial court's decision because Regan was not violating any team rules while being at the beach.

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Ribaudo v. La Salle Inst., 45 A.D.3d 556 (N.Y. Sup. Ct. 2007). Mark Ribaudo, Jr. was injured during a basketball game at La Salle Institute when he ran into a concrete wall while trying to prevent a ball from going out of bounds. Mark sued the defendants to recover damages for his injuries. The defendants moved for summary judgment, but the trial court denied the motion. The appellate court reversed and granted summary to the defendants because Mark was an experienced player who assumed the risks associated with playing basketball and the risk of running into the wall was readily apparent to Mark and the lack of padding on the wall did not violate any standards related to basketball courts.

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Shin v. Ahn, 165 P.3d 581 (Cal. 2007). Shin and Ahn were golfing in a group together. On the thirteenth hole, Ahn hit his ball before confirming where Shin was standing, and the ball hit Shin. The trial court granted summary judgment in favor of the defendant because Shin assumed the risk of being hit by a golf ball, but then reversed itself saying there was a triable issue of fact. The appellate court affirmed saying that the assumption of risk doctrine did not apply, but there was a question of fact of whether the plaintiff's conduct raised issues of comparative negligence. The California Supreme Court affirmed the decision of the appellate court, but for different reasons. The Supreme Court determined that the primary assumption of risk applied, but it needed to be determined whether Ahn engaged in conduct that was so reckless that it was considered outside the range of ordinary activity involved in golf.

Sports Arena Mgmt, Inc. v. K&K Ins. Group, Inc., No. 06 C 6290, 2007 U.S. Dist. LEXIS 55812 (N.D. Ill. July 31, 2007). American Heartland operated an ice arena and asked K&K Insurance Group to procure an insurance policy on its behalf and to name Cicero, the owner of the arena, as an additional insured. K&K told American Heartland that it had secured the insurance policy. However, when there was a floor heaving on both of the arena's skating surfaces, American Heartland submitted a claim to Great American, but it denied the claim because it excluded coverage for losses caused by earth shifting, settling, cracking and corrosion and it said Cicero was insured only under the liability portion, not the property damage. The plaintiffs sued K&K for breach of fiduciary duty. The court dismissed the claim because an Illinois statute precludes breach of fiduciary duty claims for insurance producers.

Ultimate Creations, Inc. v. McMahon, 515 F. Supp. 2d 1060 (D. Ariz. 2007). Warrior was a professional wrestler and used to work for the defendant. The defendant released a DVD called The Self-Destruction of the Ultimate Warrior, and Warrior claimed that there were several defamatory statements within the video. Warrior, his wife, and their company, Ultimate Creations, sued the defendants for defamation. The defendants filed a motion to dismiss. The court dismissed Ultimate Creations and the Warrior's wife because there were no allegations that there were any false statements made about these two plaintiffs on the DVD. However, the court did not dismiss the defamation and false light claims because the statements are capable of being defamatory, and some of the statements were regarding the Warrior's personal life; therefore, it did not matter that he was a public figure.

Yatsko v. Berezwick, No. 3;06cv2480, 2007 U.S. Dist. LEXIS 88967 (M.D. Pa. Dec. 4, 2007). Tracey Yatsko was a member of the Tamaqua Area High School basketball team. During a game in January 2005, she hit her head with another player's head while attempting to get a rebound, which caused vision problems and a severe headache. She told her coaches that she was in severe pain, but the coaches did not take her to the trainer because they did not want the trainer to say she couldn't play. The following day she continued to have a headache and told her friends that she suffered a concussion. Two days after the incident, Tracey had another basketball game. She told her coaches that she had a concussion, but they still allowed her to play. After collapsing that night, Tracey's mom took her to the hospital and she asked the coaches why they allowed her daughter to play. The head coach said that he had made the wrong decision. Tracey suffered serious brain injuries, missed several months of high school, dropped out of college, and has had large medical expenses. Tracey sued the school district claiming a violation of due process rights by failing to keep her free from state-created dangers. The court dismissed the due process claims because the coaches' behavior did not shock the conscience.

MISCELLANEOUS LAW

Abdallah v. U.S. Ass'n of Taekwondo, No. H-07-2880, 2007 U.S. Dist. LEXIS 68179 (S.D. Tex. Sept. 14, 2007). Abdallah lost to another competitor at the 2007 U.S. Olympic Team Trials for taekwondo. She claimed that she lost because of bias and unfair judging. She asked the court to either declare her the winner of the competition or schedule one or two subsequent competitions to determine the correct winner. The court dismissed the claim because Abdallah had failed to exhaust the internal remedies within the United States Association of Taekwondo and the United States Olympic Committee.

Bryant v. Nat'l Football League, Inc., No. 07-cv-02186-MSK-MJW, 2007 U.S. Dist. LEXIS 77473 (D. Colo. Oct. 18, 2007). Antonio Bryant played for the San Francisco 49ers in the NFL until the 49ers terminated his contract on March 1, 2007. However, the NFL has required Bryant to continue submitting random drug tests and told him that he was going to be disciplined for not complying with the tests in the same manner as if he had failed a test. The NFL also told teams that if they signed Bryant, he would be suspended. Bryant sued for tortious interference with prospective contractual relations and filed a motion for a temporary restraining order (TRO). The court denied the TRO because Bryant failed to show that he is at risk of suffering an immediate injury. Although the NFL has disclosed the results of past tests to prospective NFL teams, there is nothing that shows the NFL will disclose information in the future.

Royster v. Comm'r, T.C. Summary Op. 2007-151 (2007). Royster created the Royster Basketball School in order to give Chicago area basketball players the opportunity to travel around the country to play in basketball tournaments, which provided them more exposure to college and professional scouts. Royster also hoped to gain recognition for his coaching skills, attract attention from one of the major athletic apparel and shoe companies and receive a sponsorship offer from one of them. Royster claimed business expenses from the Royster Basketball School and claimed it was a not-for-profit. The IRS asked for documentation, but he claimed that his house had been broken into and all documentation related to the Royster Basketball School was stolen. The court determined that he was responsible for paying the deficiencies and that he could not claim business expenses because he had not run the basketball school in a manner that generated profit, he did not model his school on a business model, and the basketball school was maintained to meet his personal goals rather than business goals.

Matthew J. Mitten, Editor, Professor of Law and Director, National Sports Law Institute

Paul M. Anderson, Editor & Designer, Adjunct Associate Professor of Law and Associate Director, National Sports Law Institute

Megan Ryther (L'07), Contributing Author. Editorial Assistance provided by Aaron Glass (L'08), Survey Editor, Marquette Sports Law ReviewSports Law Review, Senior Members,David Espin (L'08) & Rob Bernhard (L'09).

Copyright 2007-2008: National Sports Law Institute of Marquette University Law School