Legal Geek No. 133: NCAA Bends the Rules for All-Athlete DWTS Season

Hi, and welcome back to Legal Geek. This week, we review an interesting recent decision of the NCAA to allow a current player to make and keep prize money from appearing on the TV show Dancing With The Stars, without exhausting her eligibility.

https://archive.org/details/LegalGeekEp133 

The latest season of Dancing With The Stars premiered this week, and this all athlete-season is the biggest opening since Avengers Infinity War came out last weekend.  Jokes aside, this season of the dancing competition show features several human interest stories in the competitors, including a current college athlete in Notre Dame women's basketball player Arike Ogunbowale. 

Ogunbowale hit last second shots in the national semifinal against Connecticut and again in the national championship against Mississippi State to lock up the NCAA title for the Fighting Irish last month.  Needless to say, she's at the peak of fame in college athletics, and she plans to return for one more season in which she will be the face of women's college basketball.  However, as we've covered before on this segment, the NCAA strictly prohibits athletes from profiting on their likenesses while playing college sports.  These rules are under siege in court cases ongoing around the country, but they do stand currently.

What happened here was a narrow reading or interpretation of those rules.  NCAA Bylaw 12.4.1.1 prohibits college athletes from being paid "for value or utility that the student-athlete may have for the employer because of the publicity, reputation, fame or personal following that he or she has obtained because of athletics ability."  The NCAA is allowing Ogunbowale to accept prizes from Dancing With The Stars because such prizes will not be awarded based on her athletics ability, meaning basketball ability.  The NCAA is not allowing her to participate in any promotional materials for the show, however.

The NCAA may be backing down a bit because the writing is on the wall for this rule and modern college athletics.  By showing some flexibility, albeit with a flimsy interpretation of rules since Ogunbowale is only on the show because she's an athlete with specific abilities and achievements that make her an interesting story, the NCAA may be trying to forge a new path forward in defining what it means to be an amateur athlete.  But we really won't know for sure until other athletes are in similar positions and asking for NCAA permission.

The Bottom Line is, the NCAA has had to bend the rules in certain circumstances like for Olympic games athletes, but this television appearance based on recent fame generated from playing college basketball is new ground that the NCAA used to be much more wary of allowing.  We will continue to monitor whether the NCAA becomes more flexible or stands its ground as the court cases continue against it to try and allow payment of college athletes in some manner.

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Legal Geek No. 132: A Kickstarter Scam for the Ages in Tabletop Games

Hi, and welcome back to Legal Geek. This week, we cover a scam in the Tabletop game space that has recently come to light, as a lesson in why we all still need to be careful with Kickstarter and other funding websites.

https://archive.org/details/LegalGeekEp132 

Kickstarter has been a force in the tabletop board game development space for years, as many developers and publishers use the service as a pre-order system to fund first print runs of new games.  When dealing with funding concepts like Kickstarter, there's always a chance for fraud however.

Boarders Tabletop Game Studio served as a primary distributor for the southeastern Asia market when it came to several popular Tabletop game Kickstarter projects, including Anachrony and Gloomhaven.  The company also came up with a service where backers from this region would group together to save on shipping, which can otherwise be very cost prohibitive for individual backers far away from most tabletop game companies based in Europe and the U.S.

But these customers started to see warning signs a few months ago when shipping information began to be inconsistent with Boarder's deliveries, and the company became unresponsive to e-mails and chat requests.  The suspect activity came to a head when one game designer who worked with Boarders to distribute in southeast Asia announced on their Kickstarter page that Boarders had received the shipment of the backer's games but had stopped all contact and had absconded with the product and the down payment for fulfillment.  That was allegedly a $20,000 heist of sorts.

This led to further investigation by some companies and project backers, and it was discovered that Boarders had collected backer funds for many other projects without actually pledging to purchase the product.  That's the definition of fraud, taking money under a pretense that is completely false.  

Project backers in these countries have started to band together to make police reports and help local reporters investigate this situation.  Outside one Facebook update in late March indicating the board game café the company runs was closing permanently, there has been no communication from Boarders.  There appears to be at least 10 companies where Boarders did not pay them for games sent to Boarders as a distributor, and over $35,000 of product not delivered to consumers. 

While several isolated incidents have occurred over the years on single Kickstarter projects where the creators did not deliver product and absconded with the funds, this collection of activities is quickly becoming the biggest case of fraud ever reported in the tabletop game industry.  Unless facts begin to change in a hurry, these project backers and companies appear to be out of luck.  That's just sad, in an industry made for the purposes of having fun and making people happy.

The Bottom Line is, there's always some risk when crowdfunding or investing in a potential game or product.  When adding a third party intermediary like Boarders to the mix, that's simply another risk factor that has to be considered.   It will be interesting to see if game companies and Kickstarter itself puts in some more protections to try and avoid such fraudulent activity from occurring in the future.  But for now, keep safe with your investments, friends.

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Legal Geek No. 131: The Accelerated Federal Judicial Nominee Process under Trump

Hi, and welcome back to Legal Geek.  This week, we update you on the tribal sovereign immunity strategy used in some pharma patent cases, and then review the reasons behind a surprising set of trends in how quickly open seats in the federal judicial system have been getting filled so far under President Trump.

https://archive.org/details/LegalGeekEp131

A few months back we covered a case where a pharmaceutical company assigned its patents to a Native American tribe and then argued tribal sovereign immunity of that tribe stopped the patents from being challenged for invalidity in government proceedings.  Recently, Congress has introduced a bill that would exclude patent proceedings from what tribal sovereign immunity applies to, which would eliminate this potential loophole.  While it remains to be seen if this becomes law, do not be surprised if other similar loopholes are located and leveraged even if this one is addressed.  In other words, never doubt the genius ideas of some litigators with big budgets and a lot of time.

Turning to this week's main topic, the Trump presidency has certainly been marked with a lot of memorable news moments.  However, other than the tax bill passed a few months ago, it's hard to point to many things that will be long-lasting legacies of this presidency.  One notable exception to this is our subject today: the federal judiciary.

While it may be easy to overlook with sexier news stories always popping into your attention each week, the Trump administration has established unprecedented success in quickly nominating and gaining approval of new federal judges.  Federal judges at all levels from local courts to the Supreme Court are appointed by the executive branch and then reviewed by the Senate for approval before joining the federal bench, and these are lifetime appointments for the judges.  Thanks to the presidency and the Senate being held by the same party for this two-year period, any opposition to Trump's generally-conservative nominees has been mitigated.

Here's some numbers to explain Trump's quick filling of the federal bench compared to prior presidents.  He has nominated 69 potential judges to the bench in his first year in office, compared to 34 in Obama's first year, and Obama is more in line with the average.  The Senate has already confirmed 29 of these judges, 15 of them at the Court of Appeals level or at the Supreme Court.  That number of 15 high-level judge confirmations in one year is nearly more than the first years of the last three presidents combined, as Obama had 6, Bush 7, and Clinton 3.  So the Trump Administration is filling up a lot of the federal judiciary with judges who may hold more with his views than the judges they may be replacing, and such a trend is somewhat troubling.

Why is this happening?  In addition to the White House and the Senate being held by the same party, the obstructionist recent past of judicial nominations has been the primary driver to where we are today.  During Obama's presidency, judicial nominations languished in front of the Senate as nobody could drive these nominations through, including most notably the year-long delay on Supreme Court nominee Merrick Garland before Obama left office.  The obstructionism continued when Neil Gorsuch replaced Garland on the Supreme Court nominee agenda, and all the while more and more open judicial seats were left unfilled thanks to retirements not being replaced.

So it's clear why a critical mass of seats are there to fill, but the obstructionism of past Senates came to a head when the GOP removed the filibuster rule that used to apply to judicial nominees, making it possible to push for votes with only 50 members on board instead of 60 out of 100 under the filibuster rules.  Without the filibuster rules, a simple majority can push through a lot of nominees in a short period of time, and that's precisely what happened.  So while the overloaded dockets of federal courts caused by so many open seats is being addressed, the process for vetting and approving judicial nominees has changed significantly.

Not surprisingly, one party had to be the first to take advantage of that situation.  If a blue wave occurs in future elections, we may see similar results with Democrats in charge, but with different ideological judges.  However, the big crush of openings available in the judiciary won't likely repeat itself like this, meaning the long-lasting effect of the Trump presidency may be first and foremost, a reshaping of the federal bench to be far more conservative.

The Bottom Line is, when there's obstructionism in government processes, sometimes that forces only the cream of the crop to move forward.  Unfortunately, it can also lead to opportunities like this one, and it may indeed be the biggest effect of that landmark 2016 election.  We will keep an eye on the courts moving forward to see where they go.

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Legal Geek No. 130: Does a Hacky Sack World Record create a Right of Publicity?

Welcome back to Legal Geek, coming to you from a new home studio, so apologies for any sound quality quirks while we get used to the new space.  This week, we review an ongoing case from Illinois in which a hacky sack world record holder is claiming he has a right of publicity that comes from his world record holding status, in a conflict with Wendy's and Guinness World Records.

https://archive.org/details/LegalGeekEp130

Children of the 90's will remember the hacky sack craze, a game in which you kick a small footbag or beanbag repeatedly with your feet and knees to keep the footbag off the ground for as long as you can.  In 1997, a man named Ted Martin set the record for consecutive kicks of a hacky sack, as he achieved 63,326 kicks in a little less than 9 consecutive hours of play.  That record still stands today, per the record keepers at Guinness World Records.

Ted Martin leveraged this world record into a commercial business, as he sells footbags to those still interested in the hacky sack game.  Thus, it should come as no surprise that Martin objected to the unauthorized use of his name when Guinness and Wendy's combined on a 2013 kids meal promotion that gave out footbags with marketing asking kids if they could beat Ted Martin's longstanding record.  The interesting legal question is whether Martin's world record entitles him to sufficient fame to make a right of publicity claim against such a marketing practice.

Under the Illinois law being applied, the federal courts thus far have denied Martin's requests to hear this case in detail.  Their reasoning has included the fact that Martin does not challenge Guinness's rights to publish his name and record in their book, and that it would be a farce to allow them to sell a book with Martin's name in it while prohibiting the same recitation of a fact in promotional materials.  Martin argues this is a distinction between free speech and commercial speech that the courts do not comprehend.

As you might guess, when a person like Martin represents themselves in court and makes such broad sweeping arguments, it's probably not a great sign.  He does cite an interesting prior case in Illinois where retailer Jewel-Osco was found liable under the Illinois right of publicity law for including Michael Jordan in a full page ad in a magazine congratulating him on his Hall of Fame induction while also connecting him with their store slogan.  However, Jordan is on another level of celebrity fame, and the apparent association between Jordan and Jewel-Osco was much stronger in that case than the association that could be implied by the Wendy's advertisements here.

The Bottom Line is, a hacky sack world champion likely has some ability to commercialize his small claim to fame and protect that fame with trademark and branding type protections.  When it comes to proving higher burdens of proof associated with most right of publicity laws as applied to private citizens instead of celebrities, cases like this one often fall short.  So while Martin will continue to hold the world record, a payday does not appear to be in his future for this case.

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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy