Spotlight A Glimpse Into Representing a Professional Sports Franchise
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spotlight
A Glimpse Into
Representing a
Professional
Sports Franchise
p l at i n u m s p o n s o r sA NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program in dealing with a specific legal matter have a duty to research the original and current sources of authority.
“SPORTS LAW” AT THE COLUMBUS BLUE JACKETS
Greg Kirstein and Peter Lovins
I. DEFINING SPORTS LAW THROUGH COVID-19
Legal Implications from COVID-19
A. Contract Law
1. Force majeure interpretations (corporate sponsors, broadcast,
concessionaire, ticketing).
2. Amendments; revisions to future contracts.
B. Labor Law
1. NHL/NHLPA “return to play” protocols (“terms & conditions of
employment”).
2. Implications for upcoming season (timelines, revenue
share/escrow, more back-to-backs).
C. Immigration Law
1. Global travel restrictions.
2. Return from Europe, travel to Canada (preclearance through NHL).
3. June 30 visa expirations (players/coaches).
4. Evolving standards (premium processing suspended; change to
forms/fees… overruled).
5. Passport renewal (offices closed, no expediting).
II. PREMISE LIABILITY
A. Parameters
1. Around 1 million people come into Nationwide Arena annually.
2. All ages (imagine difference of issues from toddlers to elders).
3. All weather conditions.
4. Food and beverage, alcohol.
• Uber/Lyft effect.
5. Different types of events (hockey vs. concerts).
16. Next day: “Event Summaries.”
a. Privileged?
b. Confidential?
c. Provide to… guests? CPD? Opposing counsel?
B. Common Issues
1. Slip and fall vs. trip.
2. Puck strikes.
3. Fights among players and ejections.
4. Alcohol.
C. Balance: Legal vs. PR/Customer Service
1. Law school exam: mini-tort claims.
2. Start analysis: What did we do wrong?
a. Did we not clean up a spill fast enough?
b. Was spill/hazard open/apparent?
c. Were stairs uneven? Was it poorly lit?
d. Was guest drinking? On phone? What type of shoes were
they wearing?
3. What type of evidence is available? How reliable is it?
a. Usher statements.
b. Other guests as witnesses (difficult to track down).
c. Video evidence.
4. Assumption of risk?
a. Ticket back disclaimer (mobile ticketing issue?).
b. “Baseball rule” application to puck strikes (PR, unless
insurance subrogation).
2III. TRANSACTIONAL: CONTRACTS AND SWEEPSTAKES
A. Many Contracts
1. Not player contracts.
2. Employment: management, coaches, scouts, trainers.
3. Corporate: sponsors, premium seating, sweepstakes.
4. Service/vendor: game operations, marketing, parking, digital,
escalator, trash removal, bugs/pests.
5. “Big” contracts: broadcast, naming rights, food and beverage,
Ticketmaster, arena, AHL affiliation, air charter, in-arena Wi-Fi.
6. Real estate: Tim Horton’s, mall lease, locker rooms.
7. IP licenses.
B. Recurring Tasks
1. Interpreting our own contracts:
a. “Can we do…?”
b. “What happens when…?”
c. “What does the contract say about…?”
2. Drafting according to our template.
• Review, redline contracts drafted by others.
C. Business vs. Legal
1. Educating business client.
2. KNOW the people (internal, external).
3. Risk tolerance.
4. Understanding leverage.
5. Deal fatigue.
D. Sweepstakes
1. State law (geographic reach of sweepstakes).
2. Lottery: prize + chance + consideration.
33. How to enter:
a. Skill-based vs. chance-based.
b. Consideration? (AMOE)
c. Social media?
4. Eligibility (age, geography, employer).
5. Prizing.
6. Selection of winner(s).
• Acceptance/denial of prize (taxes).
IV. EMPLOYMENT: WORKERS’ COMP, IMMIGRATION
A. Workers’ Compensation
1. Standard: injured in course and scope of employment.
2. Workers’ comp issues for most employers:
a. Did injury actually occur in course and scope?
b. Getting employee to return to work.
c. Sorting through pay scale.
3. Workers’ comp for Columbus Blue Jackets:
a. Multiple injuries at a time.
b. Keeping bills sorted by specific injury (insurance).
4. Permanent Partial Disability.
B. Immigration
1. Job security.
2. Fun fact: The Columbus Blue Jackets has players from nine
different countries on its opening roster, tied for most in NHL per
league. – Jeff Svoboda 2019.
3. 2020 draft:
a. Yegor Chinakhov (Russia).
b. Samuel Knazko (Slovakia).
4c. Mikael Pyyhtiä (Finland).
d. Ole Julian Bjørgvik-Holm (Norway).
e. Samuel Johannesson (Sweden).
4. NHL, AHL, Drafted.
a. Enter United States.
b. Work in United States.
c. Enter Canada.
C. Immigration Alphabet Soup
1. USCIS, CBP.
2. P-1 / P-IS / P-4.
3. B-1 / B-2.
4. F-1 / J-1 / TN / OPT.
5. H-1B / H-2B (Temporary non-agricultural workers).
6. ESTA / VWP.
7. ETA.
8. I-129 / I-907.
9. I-797.
10. I-94.
11. RFE.
D. Evolving Standards
1. On December 18, 2018, some of Canada’s impaired driving laws
changed. An impaired driving conviction prior to December 18,
2018 is considered pursuant to the provisions of ordinary criminality
in the Immigration and Refugee Protection Act (IRPA). Under the
new laws, an impaired driving conviction after December 18, 2018
is considered to be serious criminality, which comes with different
consequences.
2. On September 29, 2020, Judge Jeffrey S. White of the Federal
District Court for the Northern District of California enjoined the
Department of Homeland Security (DHS) from enforcing its new fee
5rule, which was set to take effect on October 2, 2020. Judge
White’s ruling prohibits DHS from enforcing the rule while a lawsuit
challenging it is litigated in court.
3. USCIS announced a new policy, effective September 11, 2018, in
which adjudicators will be given broader authority to deny an
application, petition or request without first issuing a request for
evidence (RFE) or a notice of intent to deny (NOID) if they
determine the submission lacks initial evidence to establish
eligibility for the benefit.
4. USCIS documents reveal the sources of Trump H-1B visa
restrictions: New government documents reveal the increase in
denials and Requests for Evidence for H-1B petitions are part of an
effort by U.S. Citizenship and Immigration Services (USCIS) to
achieve desired results – fewer high-skilled foreign nationals
working in America.
V. IP: NHL GUIDLEINES, ENFORCEMENT, DATA
A. Basics
1. Copyright, trademark, patents.
2. Common law vs. registered.
3. “Bundle of Sticks” metaphor.
a. NHL → Columbus Blue Jackets.
b. Columbus Blue Jackets → foundation, sponsors,
broadcasts.
B. NHL Rules
1. Line of sight.
a. Dashboards.
b. In-ice logos.
c. Benches, penalty boxes.
2. National sponsors (rights, restrictions, preemption).
3. Alcohol.
4. Gambling, sports books, daily fantasy.
6C. Data, Data, Data
1. Emerging, evolving industry.
a. State laws.
b. International laws.
2. Who “owns”? Who “processes”?
3. What can be gathered? What can be shared?
4. What does applicable privacy policy say?
5. Can you contact without consent? Only with consent?
• Email (CANSPAM) vs. telephone (TCPA).
VI. SUMMARY OF SPORTS LEGAL WORK
Arena Work – oversee all legal aspects of use agreement for major sports arena
including naming rights, property and other tax obligations, insurance, capital
improvements, easements, ingress/egress issues and on-site injuries.
Broadcast (TV/Radio) – oversee major RSN team deal for television and FM/AM
radio deals; negotiate affiliate and network deals. Ensure compliance with NHL
broadcast rules.
Sponsor and Corporate Sales – negotiate/draft hundreds of contracts with
prominent sponsors, including extensions, buyouts and amendments.
Food & Beverage – oversee major food, beverage and concession contracts,
including concession stand construction and rents, sub-leases, liquor law
compliance and use of sponsor products.
Ticketing Systems – negotiate Ticketmaster and related ticketing software
contracts.
Finance – assist CFO in overseeing team’s line of credit, bank covenants, taxes,
insurance and investing strategies.
Player, Coaching and Related Contracts – prepare/negotiate contracts for NHL
general managers, coaches, players, scouts and broadcasters.
Arbitrations/Grievances – handle all claims players make against the club.
Workers’ Compensation – handle, in conjunction with HR department, all player
and other employee workers’ compensation claims.
7Immigration – ultimate responsibility for immigration clearance and visas for non-
American players, coaches, broadcasters and team personnel.
Technology – negotiate/oversee arena Wi-Fi and DAS (Distributive Antennae
System) contracts.
Government Affairs – handle all interaction with federal, state, county and city
authorities regarding team/arena issues, including liquor laws, building codes and
risk prevention.
Charity/Foundation Work – Board Member of franchise’s charitable foundation.
Insurance – review/negotiate team’s insurance programs, including property,
casualty, general liability, auto, E & O, terrorism and liquor. Review insurance
coverage for performing acts.
Minor League Teams – negotiate affiliate agreements for minor league player
development.
Litigation – coordinate all claims/cases involving team/arena; select, monitor and
assist outside counsel.
Intellectual Property – handle, in conjunction with NHL, all trademark, copyright,
licensing and intellectual property issues for team.
401(k) Plan – serve as advisor to Club’s 401(k) plan.
Human Resources – responsible for unemployment, pension and labor law
compliance; handle all employment disputes.
Team Air Charter – handle contract and negotiation of team charter air travel.
Retail – handle all contracts from third-party merchandise providers.
Web/Internet – negotiate team’s website and internet content deals, consistent
with League policy.
Construction – handle all contracts for construction/modifications to arena and
attached practice facility.
Building Management – coordinate building management, security and janitorial
contracts.
Promotions/Contests – review all contest rules for compliance with state/federal
law and promotions for liability issues.
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