By: Caleb Long, Associate Editor

On Wednesday, February 15, 2023, Diamond Sports Group, the parent company to all the Bally Sports local networks, announced it would forgo the payment due on its $140 million debt. The lack of payment triggered a 30-day grace period for Diamond Sports Group, which the organization will use to figure out its financial state moving forward. While Diamond has not articulated as much, many speculate that this indicates it will be filing for Chapter 11 Bankruptcy very shortly. Since Bally Sports contracts with the NBA, NHL, WNBA, and MLB for licenses to locally broadcast 47 different professional sports teams across the country, this situation raises concerns for how these sports organizations will reach their fans with game broadcasts. The most immediate concern lies with the MLB, whose season is set to begin on March 30, 2023.

Chapter 11 Bankruptcy, frequently referred to as “reorganization” bankruptcy, does not mean that the entity filing is going out of business. According to the United States Courts’ online explanation of Chapter 11 Bankruptcy, “Usually, the debtor remains ‘in possession,’ has the powers and duties of a trustee, may continue to operate its business, and may, with court approval, borrow new money. A plan of reorganization is proposed, creditors whose rights are affected may vote on the plan, and the plan may be confirmed by the court if it gets the required votes and satisfies certain legal requirements.”

This means that if Diamond files Chapter 11, the reorganization may or may not affect its contracts with the MLB in a way that consumers will notice. Because contracting with sports organizations to provide local broadcasting is Diamond’s only business, it will most likely do everything it can to avoid losing its license contracts with the MLB and other professional sports leagues. If Diamond can manage to pay all the license payments due, nothing will change for consumers. For instance, The Athletic suggests that perhaps Diamond’s creditor could convert Diamond’s loans into equity, gobble Diamond up, and continue paying the license fees. It is well within the realm of possibilities, however, that it will have to cease license payments for at least some of the teams. Since the MLB season is beginning in the midst of Diamond’s financial struggles, the highest likelihood of non-payment of licensing fees will be to the MLB.

A stop of payment would constitute a material breach of the contract with the MLB for each MLB team’s contract for which payment was missed. In this scenario, the MLB may void the breached licensing contracts with Bally Sports networks. While that would likely be a financial hit to the MLB, the Commissioner of Baseball, Rob Manfred, said that the MLB will be prepared to provide the games themselves through the MLB Network and MLB.TV. Manfred did not say that he would be glad if Diamond Sports Group breached their contract, however, he did voice a potential silver lining—“This could mean no more blackouts!”

When professional sports leagues contract with local sports networks to broadcast the games locally, the contract includes a promise from the league that it will not digitally broadcast the games of the team that is within the territory of the applicable local network. For instance, if a Yankees fan in Los Angeles pays to watch the Yankees via MLB.TV, that fan can

enjoy every game, except the games in which the Yankees play against the Dodgers and likely the Angels, regardless of whether the game is home or away. Or, in my unfortunate case, the Cincinnati Reds’ network territory has an astonishingly far reach that extends to Nashville, TN. So, I cannot watch my team by any means.

While this blackout practice makes perfect sense and is necessary to keep MLB’s digital streaming offering from hurting local cable sports viewership, it is quite a headache for those who rely on digital streaming to watch their team. With cable subscriptions on the major decline and streaming settling in as the new normal for sports viewing, the MLB has been looking for a way to end blackouts for quite some time.

Therefore, if Diamond Sports Group materially breaches its contracts with the MLB, Rob Manfred has made it quite clear that the MLB will take the opportunity to make local games available to fans of the actual local area they are in via MLB.TV; effectively doing away with blackouts for the first time ever. The Athletic quoted Manfred expressing his feelings on the subject: “I hope we get to the point where on the digital side, when you go to MLB.TV, you can buy whatever the heck you want . . . You can buy the out-of-market package. You can buy the local games; you can buy two sets of local games — whatever you want. I mean, that is, to me, the definition of what is going to be a valuable digital offering going forward,”

It is too soon to say for sure if this is on the horizon for baseball fans. If the organization files for Chapter 11 bankruptcy, Diamond Sports Group may very well be able to reorganize, in a way that allows the licensing payments to continue, keeping the MLB bound to its agreements with Diamond. However, baseball fans everywhere ought to be crossing their fingers that that does not happen, because this could be the most beneficial breach of contract they could ever hope for.

 

 

Works Cited:

Shea, Billy & Kaplan, Daniel. “What the Bally Sports saga means for NBA, NHL, MLB broadcasts: All you need to know.” The Athletic, 17 Feb. 2023, https://theathletic.com/4219468/2023/02/17/bally-sports-rsn-nba-nhl-mlb-broadcasts/?redirected=1

Trister, Noah. “MLB: Bally network troubles could lead to end of blackouts.” AP, 16 Feb. 2023, https://apnews.com/article/mlb-sports-rob-manfred-business-a4f556cfebff72629036d0b7b3ab220a

“Diamond Sports Group.” Sinclair, Sinclair Broadcast Group, Inc., Accessed 19 Feb. 2023, https://sbgi.net/investor-relations/diamond-sports-group/

“Blackout Restrictions.” MLB.TV, Accessed 19 Feb. 2023, https://www.mlb.com/live-stream-games/blackout-mobile

Bruce, Harring. “Major League Baseball Seeks End To Local Markets Blackouts.” Deadline, 14 Jan. 2023, https://deadline.com/2023/01/major-league-baseball-seeks-end-local-markets-blackouts-1235222140/

Von Hoffman, Constantine. “Cable TV subscriptions set to drop below 50% of all US households.” Martech, 17 Mar. 2022, https://martech.org/cable-tv-subscriptions-set-to-drop-below-50-of-all-us-households/

“Chapter 11 Bankruptcy Basics.” United States Courts, Accessed 19 Feb. 2023, https://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-11-bankruptcy-basics

By: Gavin Dwyer, Senior Editor

In the last half decade, California positioned itself as the frontrunner of student-athlete advocacy. In September 2019, Governor Gavin Newsom signed S.B. 106: “Fair Pay to Play Act,” which created a legal right for student-athletes to monetize their name, image, and likeness, also known as NIL rights. This bill preceded the decision in NCAA v. Alston and the NCAA decision to end the NIL restrictions nationwide, by almost two full years. 

In the meantime, California continues to push forward on the cutting edge of protecting student athletes. In December 2022, the Los Angeles regional head of the National Labor Relations Board (“NLRB”) sided with University of Southern California (“USC”) student-athletes concluding they have been unlawfully classified as mere student athletes and denied employee rights and benefits. This ruling echoed a 2021 memo sent out by the NLRB’s general counsel that stated the NLRB would support claims brought by student athlete’s challenging their status as non-employees. 

This monumental step toward further student-athlete compensation remains in its infancy stage. The parties have two options from here: they can either settle with the student athletes or the NLRB regional director will prosecute the student-athletes’ claim before an administrative law judge. USC appears ready to take the latter approach. The school released a statement alluding to this and said, “We look forward to presenting those facts, along with 75 years of favorable legal precedent”. As seen in the Alston opinion, the 75 years of precedent may be favorable, but the Court does not believe that precedent is entitled to deferential treatment any longer. 

California has not rested on their laurels. Instead, the state introduced a bill in its State Assembly titled the “College Athlete Protection Act” (“AB252”). This bill may potentially prove to be the biggest shift in the collegiate athletics landscape yet. AB252 requires universities to share profits with student athletes in football, men’s basketball, and women’s basketball. At least a portion of this payment is related to graduation requirements from the university. However, the optimism around this bill needs to be tempered, as a similar bill died after being introduced in the California State Senate last year. 

California’s current onslaught against the NCAA monopolistic practices has the potential to dwarf the impact that NIL had on the college athletic landscape. At this stage, profit sharing amongst student athletes remains a pipe dream. However, the battle over employee status will occur soon. The outcome of such battle has the potential to drastically change the NCAA as currently constructed.   

California continues to push the envelope to alter over a century worth of NCAA practices and afford their student-athletes with more protections and compensation. A ruling recognizing student-athletes as employees of the NCAA and PAC-12 affects every student-athlete, unlike NIL that most student-athletes will not meaningfully profit from. A favorable ruling will dramatically alter the entire NCAA model in a way that will dwarf the NIL ruling. 

 

Sources: 

https://www.reuters.com/world/us/us-labor-board-region-sides-with-usc-athletes-seeking-employee-designation-2022-12-16/ 

https://www.si.com/college/2019/09/30/fair-pay-to-play-act-law-ncaa-california-pac-12 

https://www.si.com/college/2023/01/19/california-assembly-college-athletes-revenue-sharing-bill-ncaa-nil 

By Olivia Floyd, Associate Editor 

 ABC newscasters Amy Robach and TJ Holmes will not be returning to their anchor chairs.  ABC took the pair off the air in December of 2022 after The Daily Mail published a story chronicling their romantic relationship.  Up until the story broke, neither the public nor the ABC network officials were aware that the two hosts of GMA3, a midday news program broadcast by ABC, were involved in such a relationship.  ABC’s decision to cut ties with Robach and Holmes comes after the president of the network reported that the pair’s relationship did not violate company policy.  Even so, on January 27, 2023, the company released a statement which “recogniz[ed] their talent and commitment over the years,” but ultimately concluded that it was “best for everyone that [the couple] move on from ABC News.”  While this decision presents itself as somewhat tabloid fodder, the anchors’ exit from ABC, a Disney subsidiary, brings up several legal concepts, such as non-disclosure agreements, protected class employees (since Robach is a woman and Holmes is Black), and employment at will.  However, the most important legal issue at the center of Robach and Holmes’ relationship is the morals clause. 

A morals clause is a contractual provision that essentially allows a party to terminate an agreement, such as an employment contract, if the other party engages in any sort of scandalous or offensive behavior.  Companies often use this clause to fire employees who have acted in a way that puts the company in a negative light.  If that seems like a broad-ranging power, it’s because it is. These clauses use especially vague language such as “public disrepute, humiliation, contempt, scandal or ridicule” which in effect, gives the company carte blanche to terminate a contract if the other party does anything to make them look bad.  Peter Nelson, a film and television lawyer, commented that the first draft of many entertainment contracts features a morals clause that is “completely subjective and leaves to the studio any interpretation they choose.” The responsibility then falls upon attorneys to negotiate the deal in a way that provides their client some protection. 

In the aftermath of the #MeToo movement, morals clauses became very prevalent. These clauses allowed major companies such as Netflix and NBC to cut ties with the likes of Kevin Spacey and Matt Lauer.  In the entertainment industry, the morals clause first became widespread practice during the Red Scare. According to entertainment attorney Linda Lichter, “Companies [began to] put them in contracts so they could fire people if they were accused of being a [communist].”  In the post #MeToo era, entertainment companies reinforced the language in morals clauses.  Long gone are the days of companies needing proof that scandalous or disreputable conduct actually occurred.  Rather these days, morals clauses often use language that allows termination so long as the conduct is alleged to have happened or believed to have happened. 

Entertainment attorneys note that the Walt Disney Corporation notoriously draws a hard line when it comes to morals clauses.  This is not surprising, given that historically Disney takes extra precaution to avoid any sort of scandal.  CNN reporter Oliver Darcy wrote that Disney’s brand is “family-friendly, fun-for-everyone, [and] intentionally inoffensive.” Put another way, Disney prides itself on steering clear of impropriety.  To its credit, an inoffensive brand is one which, in theory, should be more profitable than brands who take a stand on political or social issues.  By not taking a stance on political and societal issues, inoffensive brands do not risk deterring potential customers who do not share the same political or societal views.  Perhaps that is why Disney has long been one of the most profitable corporations in the world.  As one of the most successful producers of family friendly entertainment content, it makes sense for Disney to vigorously protect their ability to terminate talent whose conduct compromises the brand’s mission to remain inoffensive.  

Recently, 20th Television and ABC Signature, which are both Disney subsidiaries, bolstered their morals clauses in ways that gave Disney a vast amount of discretion when choosing to terminate an employee.  The amended morals clauses allow the company to terminate for any act or omission that could cause Disney to incur public disrepute or may cause offense to the “community or any substantial group thereof.”  This presents a massive problem for individuals who are politically active.  Any sort of liberal-leaning public act could “offend” someone with conservative political views, and vice versa.  As Republicans and Democrats are both “substantial groups” in America, per the terms of their contract, Disney could use any political activism as grounds for termination.  Beyond politics, morals clauses present major issues for individuals whose personal lives stray from the narrow path of traditional family values. 

This brings us back to Amy Robach and TJ Holmes, the terminated hosts of GMA3, a news program produced by ABC News, a Disney subsidiary.  In December, ABC suspended Robach and Holmes after an article detailing the pair’s private romantic relationship was published.  An off-screen relationship between two co-anchors of a news program might, on its own, make headlines.  But what takes this relationship from headline news to what some–including Disney–would call a scandal, is the fact that both Robach and Holmes are married.  Robach is married to Andrew Schue, a TV actor known for his role in Melrose Place.  Holmes’ wife is Marilee Fiebig, a successful immigration attorney.  Both Robach and Holmes publicly commented they are separated from their spouses and planning on finalizing a divorce.  Even so, nearly every pop-culture news organization, gossip column, and tabloid ran stories chronicling the relationship which Gawker dubbed a “torrid love affair.”  The specific reasons for termination are likely to remain unknown due to non-disclosure agreements.  However, given its history with morals clauses, it is safe to assume that Disney found the Robach-Holmes relationship to be too offensive.  It is not every day that the people who report the news are also the subject of it.  Unfortunately, for Robach and Holmes, their time in the limelight cost them their seats at the GMA3 desk. 

Works Cited: 

“Breaking down the Many Businesses of Disney (DIS): The Most Magical Stock on Earth.” Forbes, Forbes Magazine, 8 Nov. 2022, https://www.forbes.com/sites/qai/2022/08/27/breaking-down-the-many-businesses-of-disney-dis-the-most-magical-stock-on-earth/?sh=229fd7be297e.  

Cullins, Ashley. “Moral Clauses: Why a Red Scare Tactic Revived in the #Metoo Era Could Lead to a Fight with the Guilds.” The Hollywood Reporter, The Hollywood Reporter, 3 Oct. 2022, https://www.hollywoodreporter.com/business/business-news/moral-clauses-revived-in-the-metoo-era-1235228113/.  

Darcy, Oliver. “Demonizing Disney: Fox and Right-Wing Media Attack the Entertainment Giant as ‘Woke’ Company Indoctrinating Kids | CNN Business.” CNN, Cable News Network, 31 Mar. 2022, https://www.cnn.com/2022/03/30/media/disney-right-wing-media-reliable-sources/index.html.  

“Disney Ranks High on Fortune’s 2022 List of ‘World’s Most Admired Companies.’” The Walt Disney Company, 2 Feb. 2022, https://thewaltdisneycompany.com/disney-ranks-high-on-fortunes-2022-list-of-worlds-most-admired-companies/.  

Grynbaum, Michael M., and John Koblin. “ABC Co-Anchors to Leave Network after Tabloid Scandal.” The New York Times, The New York Times, 27 Jan. 2023, https://www.nytimes.com/2023/01/27/business/media/abc-news-holmes-robach.html.  

Maglio, Tony. “’GMA3′ Can Definitely Fire T.J. Holmes and Amy Robach, Lawyers Say.” IndieWire, IndieWire, 9 Dec. 2022, https://www.indiewire.com/2022/12/gma3-can-fire-t-j-holmes-amy-robach-1234789753/. 

By: Lucia Izzolo, Associate Editor

In the latest round of tech layoffs, Spotify announced last week that they are shedding 6% of their staff. This amounts to around six hundred employees. The streaming giant joins companies like Meta, Amazon, Google, IBM, Microsoft, and more by letting go of significant portions of their workforce.  

Spotify, like many other tech companies, engaged in a spending and hiring spree during the pandemic. Spotify expanded into new global markets and poured money into its podcast business. While the live music industry suffered, Covid-19 sparked an economic boom for many large companies within the technology sector. Individuals stuck at home due to lockdowns had more time and money on their hands, leading to an increase in the consumption of entertainment. However, as the pandemic slowly fades into history, so does this market trend. With the cost of living climbing and inflation rates remaining high, many individuals canceled their streaming subscriptions to save money. 

The layoffs at Spotify follow the economic downturn widely felt throughout the tech industry. Daniel Ek, Spotify’s CEO, posted a memo to the company’s website citing the changing dynamics of the organization and a shift in spending priorities due to a challenging economic environment. Ek took full responsibility for the cutback in spending, stating that he was “too ambitious in investing ahead of our revenue growth.” Although no one likes to see people lose their jobs, the layoffs are a silver lining from an investor’s perspective. Cost-cutting measures are a positive sign, representing a company’s manifestation of a more profitable state. And it may be working––Spotify’s stock price increased 4.5% after the announcement.  

From a legal perspective, Spotify has likely covered its bases, at least where its United States employees are concerned. Six hundred former Spotify workers may be without jobs, but they are not going home empty-handed. All affected employees receive five months of severance pay, healthcare benefits, and career counseling services. However, The Times reported that Spotify potentially breached United Kingdom employment law. Unlike the United States, where the default employment relationship is “at will,” employees in the United Kingdom enjoy contractual and statutory protections. Among these protections include a minimum statutory notice of termination of one week for every year of service (up to a maximum of twelve weeks’ notice). Whereas United States employers can terminate employment relationships for any reason—or no reason at all— dismissals in the United Kingdom are considered unfair if they are without reason and a fair procedure. United Kingdom employees at Twitter already took the company to the employment tribunal over how their layoffs were handled, and Spotify may be next.   

 

Works Cited:  

https://www.nytimes.com/2023/01/23/business/spotify-layoffs.html 

https://www.forbes.com/sites/qai/2023/01/26/spotify-announces-layoffs-to-6-of-its-workforcestock-price-jumps-in-response/?sh=41e5b4d71b38 

https://qz.com/spotify-tech-layoffs-2023-follow-larger-pattern-1850020423 

https://www.cm-murray.com/wp-content/uploads/2019/02/LITTLE-BOOK-OF-UK-EMPLOYMENT-LAW-FOR-US-EMPLOYERS-2019.pdf 

https://www.nationalworld.com/culture/music/spotify-layoffs-tech-redundancies-uk-ceo-daniel-ek-job-cuts-3997968 

https://www.thetimes.co.uk/article/spotify-not-following-uk-employment-law-nqzkrdl3j 

By: Shelby Harding, Senior Editor 

On August 18th, 2022, news dropped that Cleveland Browns suspended quarterback, Deshaun Watson for 11 games after civil and criminal lawsuits were brought against Watson alleging sexual misconduct. Two Texas grand juries declined to indict Watson on the criminal complaints, and Watson reached confidential settlements in 23 of the 24 civil lawsuits filed against him. Despite both the criminal and civil charges being resolved, many people questioned the NFL’s decision to proceed with Watson’s suspension and $5 million fine for violating the NFL’s personal conduct policy.  

However, the August 18th agreement between the NFL and the NFL Players Association (“NFLPA”) was not Watson’s initial discipline. The NFL and the NFLPA jointly appointed  former U.S. District Judge Sue Robinson to be the disciplinary officer in Watson’s case. At the end of June, Watson had a three-day hearing in front of Robinson, where the NFL was responsible for establishing the burden of proof that Watson violated the personal conduct policy. Following the hearing, Robinson ruled to suspend Watson for six games with no additional fine. It is worth noting the NFL recommended to suspend Watson for the entire 2022 season, but Robinson stated that she was “bound by standards of fairness and consistency of treatment among players similarly situated”. 

The NFL officially appealed Watson’s six game suspension, and NFL Commissioner Roger Goodell designated former New Jersey Attorney General Peter C. Harvey to rule on the appeal. The Collective Bargaining Agreement between the NFL and the NFLPA outlines each party’s right to appeal the decision. Prior to Harvey ruling on the appeal, the NFL and NFLPA reached a settlement for an eleven-game suspension and $5 million dollar fine. Watson will be eligible for reinstatement on November 28th to play in the Brown’s Week 13 matchup against the Houston Texans.  

Many fans were confused about the NFL’s authority to discipline Watson after the criminal charges were not pursued by the Texas courts. The answer is fairly simple. The Collective Bargaining Agreement between the NFL and the NFLPA outlines the NFL’s disciplinary discretion and procedure which both parties must approve. The Collective Bargaining Agreement includes all the rules and procedures the teams, players, and employees must follow. Deshaun Watson’s story with the NFL and the NFLPA’s disciplinary procedures continues as an additional civil lawsuit was filed against him in October. The NFL stated that they will be monitoring the newly filed litigation and will address the possibility of additional sanctions based on developments in the new case.  

Works Cited 

https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf 

https://www.nfl.com/news/browns-qb-deshaun-watson-suspended-11-games-fined-5-million-following-settlement 

https://www.npr.org/2022/08/19/1118350437/deshaun-watson-suspension-nfl 

https://www.nfl.com/news/nfl-commissioner-roger-goodell-explains-league-s-decision-to-pursue-one-year-sus 

https://www.nfl.com/news/new-civil-lawsuit-filed-against-browns-qb-deshaun-watson 

By: Melissa Bergmann, Senior Editor   

In recent years, the “docudrama” genre has grown in popularity. A docudrama is a television series or film featuring dramatized depictions of real events. This genre includes series such as “Dahmer,” “Inventing Anna,” and “The Act.” Coupled with the recent growth in popularity in this genre is growth in defamation lawsuits filed by the real-life individuals depicted in these movies and television shows.  

A defamation suit threatens HBO’s 2022 docudrama “Winning Time: The Rise of the Lakers Dynasty.” The series received rave reviews from audiences and critics, but actual members of the 1980’s Los Angeles Lakers basketball team, nicknamed the “Showtime Lakers,” are less than impressed. In a letter sent to HBO by his attorney, Jerry West (former Lakers basketball player, coach, and general manager) called his depiction in “Winning Time” a “baseless and malicious assault on [his] character.” While West has yet to file suit against HBO, the letter alludes to possible false light and defamation claims, which West has threatened to take “all the way to the Supreme Court.”  

However, “Winning Time” contains a disclaimer at the beginning of the first episode that reads, “This series is a dramatization of certain facts and events. Some of the names have been changed and some of the events and characters have been fictionalized, modified or composited for dramatic purposes.” A disclaimer such as this is on par with disclaimers in other docudramas. This leaves many wondering: does a disclaimer protect the creator of a docudrama from liability in potential defamation suits? 

The use of disclaimers in media works dates back to 1932 when Irina Yusupov sued MGM Studios for defamation over her depiction in “Rasputin and the Empress.” This lawsuit resulted in Yusupov winning approximately $125,000 (around $2.4 million today), followed by Hollywood filmmakers trying to prevent a similar fate by including “all person and events fictious” disclaimers in films. 

To prevail on a defamation claim, public figures, such as those who are commonly depicted in docudramas, are subject to the heightened defamation standard of proving actual malice, along with the traditional elements of defamation. Accordingly, a public figure depicted in a media work must prove the depiction was (1) an assertion of fact; (2) actually false or created a false impression about him; (3) highly offensive to a reasonable person or defamatory, and (4) the show creator knew the representation was not true or made it with reckless disregard for the truth. 

Therefore, a disclaimer, such as that in “Winning Time”, can be used by media creators as a defense against the “assertion of fact” element, arguing that no reasonable viewer would believe that the depictions were assertions of fact.   

Recent case law favors the assertion that disclaimers cannot absolutely absolve the producers of a docudrama from liability. In Gaprindashvili v. Netflix, Inc. (C.D. Cal 2022), the United States District Court for the Central District of California denied Netflix’s motion to dismiss, concluding that Netflix acted with a “reckless disregard” for the truth, in a case where Nona Gapringashvili brought a defamation claim against Netflix for her depiction in “The Queen’s Gambit.” The court held that the presence of a disclaimer at the beginning of the show, stating that the series is a work of fiction, is a factor in the defamation analysis but is not dispositive. The court noted that Netflix, by “purport[ing] to be set in a historical setting and…referenc[ing] real people and facts,” created “the impression that [it] was asserting objective facts.” 

The same court, in Mossack Fonseca & Co., S.A. v. Netflix (C.D. Call 2020), found that the disclaimers at the beginning and end of “The Laundromat” aided in dismissing the plaintiff’s libel case against Netflix. The court held that “no reasonable viewer…would interpret the film as conveying ‘assertions of objective fact.’” The court distinguished Mossack from Gaprindashvili by finding that the defamatory line in “The Queen’s Gambit” was one of “factual detail incorporated into the [s]eries for believability,” while the defamatory depictions in “The Laundromat” were “main plot devices…which are clearly fictional or at least dramatized.” 

Will the disclaimer at the beginning of “Winning Time” save the producers from liability for defamation? Legal experts point to one scene in particular that may prove that HBO producers were attempting to make assertions of fact. In this scene, West’s character throws an MVP trophy through an office window and Jerry Buss’s, character “breaks the fourth wall” by looking directly into the camera, saying “Jerry West, head coach of the Lakers, basketball legend, considered a true gentleman of the sport to everyone who doesn’t know him.” Media lawyer, Daniel Novack, believes that by speaking directly to the audience, the show is “basically [telling the audience] ‘trust us, this is real.’” Similarly, Alexander Rufus-Isaacs, the attorney who represented Nona Gapringashvili, said that this scene proves the show’s creators are “vouching for their portrayal of West.” 

Given that a disclaimer may be viewed as one element in the defamation analysis, instead of a dispositive factor, docudrama creators should not rely on a disclaimer to absolve them from defamation liability. Instead, as entertainment attorney David Halberstadter suggests, docudrama creators should engage in thorough review when script writing, including a citation to source material supporting any factual statements made. 

 

Works Cited 

https://www.latimes.com/sports/lakers/story/2022-04-28/jerry-west-winning-time-hbo-supreme-court-legal-experts 

https://www.hollywoodreporter.com/tv/tv-news/if-jerry-west-sued-winning-time-legal-case-may-face-uphill-battle-1235134802/ 

https://www.jdsupra.com/legalnews/is-jerry-west-s-potential-lawsuit-4797801/ 

https://www.cbr.com/movie-disclaimer-fiction-mgm-lawsuit-rasputin-empress/ 

Mossack Fonesca & Co., S.A. v. Netflix Inc., No. CV 19-9330-CBM-AS(x), 2020 U.S. Dist. LEXIS 250113 (C.D. Cal 2020). 

Gaprindashvili v. Netflix, Inc., No. 2:21-cv-07408-VAP-SKx, 2022 U.S. Dist. LEXIS 23304 (C.D. Cal. 2022). 

https://www.law360.com/articles/1539508/minimizing-the-rising-risk-of-biopic-defamation-suits 

By: Dani Bhadare-Valente, 3L Member 

This year, a Fairfax County, Virginia jury awarded Johnny Depp a defamation victory against his ex-wife, Amber Heard. The trial not only captivated the American public, but the verdict may potentially change the trajectory of defamation cases involving public figures in the future.  

To win his defamation case, Depp first had to prove that: (1) Heard made or published statements about Depp; (2) those statements were false; (3) those statements had a defamatory implication about Depp; (4) Heard intended to defame Depp; and (5) those statements were published to someone other than Depp.  

Because Depp is a public figure, he also had to prove that Heard had actual malice behind the statements at issue. The actual malice standard required that Depp prove, by clear and convincing evidence, that: (1) Heard made the statements knowing they were false; or (2) Heard made the statements so recklessly that it amounted to a willful disregard for the truth. If Depp failed to prove any of these elements, the jury was required to return a verdict against him.  Depp sued Heard for defamation about three alleged statements in a Washington Post op-ed:  

1. “I spoke up against sexual violence—and faced our culture’s wrath. That has to change.” 
2. “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” 
3. “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.” 

As Heard’s attorney correctly stated in his closing argument, she only needed to prove one instance of physical, sexual, emotional, or psychological abuse by Depp—by a preponderance of the evidence—to win against him. Why? Because truth is an absolute defense to claims of defamation. Even if the jury found that Heard exaggerated the abuse, she would still prevail if they found she had proven at least one instance of abuse. 

Heard carried that burden of proof. This case was not, as many try to characterize it, a game of “he said, she said.” Throughout the trial, Heard testified to fourteen incidents of domestic violence throughout her relationship with Depp, all of which were corroborated with the evidence she provided in their U.K. libel suit in 2018. Heard introduced recorded conversations with Depp and photographs depicting her injuries after several violent interactions with him.  Depp himself testified to becoming “a different person” when drunk or high and admitted that there were several times during their relationship where he blacked out and did not remember what he did, said, or acted.  

Despite the overwhelming evidence, however, the jury found that there were no instances of abuse. So, how do we reconcile these apparently contradicting realities? Is it a failure by the Heard’s legal counsel? Is it a complacent jury? Maybe. But perhaps it was simply because the court of public opinion carried more weight than the court of law.  

Johnny Depp is a critically acclaimed Hollywood actor and has been since he stepped foot on the scene in 1984, starring in A Nightmare on Elm Street. He was, and continues to be, a heartthrob for women around the world. In fact, adoring fans camped outside the Fairfax County, Virginia courthouse for days, hoping to catch a glimpse of the A-list actor. Fans grew up with, adored, and fantasized about Depp. Though the attorneys for both parties worked hard to fill the box with impartial jurors, it was nearly impossible to find someone who had never even heard about Depp or liked one of his films. People don’t want to believe that a person they grew up admiring was anything other than the idol they built them up to be in their heads. 

On the other hand, Heard had no such advantage. While she has been in the public eye since 2004, she has not reached the level of fame or adoration as her ex-husband. In fact, most people know her as “Aquaman’s girlfriend.” People did not have the same level of familiarity or adoration for her as they did Depp. Think of it as the “home-court advantage” in a basketball game: sometimes you root for someone solely because of the color of their jersey.   

Of course, Heard carried fault as well. Depp also alleged and testified that Heard was abusive in their relationship as an affirmative defense to her claims of defamation. However, two wrongs do not make a lie. The merits of the case rested upon whether each party lied about domestic abuse with actual malice. It’s plausible that Heard and Depp proved truth as an absolute defense in their both cases, because it seemed clear that they were both active in the domestic violence claims. In that case, neither party should have received a verdict for defamation. However, the court of public opinion ruled, and it ruled early on. Amber Heard lost the case before she stepped into the courtroom. 

Works Cited:

https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/high-profile/depp%20v%20heard/cl-2019-2911-jury-instructions.pdf  

https://www.nbcnews.com/think/opinion/johnny-depp-verdict-amber-heard-defamation-case-wrong-rcna31510 

https://slate.com/culture/2022/06/johnny-depp-amber-heard-trial-verdict-evidence-truth.html 

https://www.imdb.com/name/nm0000136/ 

https://www.imdb.com/name/nm1720028/ 

By: Elizabeth Tirrill,  Digital Editor 

French designer Jean Paul Gaultier recently unveiled a new ready-to-wear capsule collection titled “Le Musée,” featuring depictions of famous art on Gaultier’s clothing designs. The pieces in the collection include clothing that features the likeness of Botticelli’s famous “The Birth of Venus” painting, along with other renowned works. This collection comes a few years after the luxury fashion house Louis Vuitton collaborated with artist Jeffrey Koonz to create leather goods that featured the works of Van Gogh and Da Vinci. However, the legendary Uffizi Gallery in Florence, Italy may potentially sue “Le Musée,” and Jean Paul Gaultier for the use of Botticelli’s work. 

After discovering Gaultier’s designs with “The Birth of Venus,” the Gallery sent a cease-and-desist letter, and another letter later demanding that the designer and artist either come to an authorization agreement or all production of the clothing cease. Botticelli’s Renaissance work is undoubtedly within the public domain. Italian copyright protection, much like American copyright protection, extends through the life of the author, plus 70 years. Generally, a work entering the public domain is a defense against an assertion of copyright infringement. Once the copyright term ends, others may use or copy the work without a license or attribution.  

Gaultier is at risk for liability, despite using a work in the public domain. This is because Italy adopted the Code of Cultural Heritage and Landscape in 2004. The code requires that works that have cultural significance cannot be used for commercial benefit without specific authorization and the payment of a fee. Here, “The Birth of Venus” is an iconic work that fits under the law’s description of something that has cultural significance. There are exceptions to this law, such as use for education or scientific purposes. In fact, a legal scholar suggested that Gaultier could fit into an exception under the code if he can successfully argue that his works are “creative re-elaborations” of Botticelli’s work.  

As of October 10, 2022, Uffizi claimed Gaultier “substantially ignored” its demands to cease using the design. Although Gaultier’s website no longer features the collection, there are still some retailers where the pieces may be purchased. Should Gaultier fail to meet Uffizi’s demands, this issue will proceed to court.  

Works Cited: 

13:19. Defenses commonly arising in copyright litigation—Public domain, Copyright Litigation Handbook § 13:19 (2d ed.)

https://www.thefashionlaw.com/uffizi-wages-legal-battle-against-jean-paul-gaultier-over-illicit-use-of-botticelli-art/ 

https://wwd.com/fashion-news/fashion-scoops/jean-paul-gaultier-uffizi-gallery-florence-botticelli-venus-legal-1235383521/?sub_action=logged_in 

https://www.wmagazine.com/story/jeff-koons-louis-vuitton-collaboration-mona-lisa-duffel-bag 

https://www.artnews.com/art-news/news/uffizi-gallery-sues-jean-paul-gaultier-botticelli-image-1234642647/  

https://www.wipo.int/edocs/lexdocs/laws/en/it/it211en.pdf  

By: Lauren Degen, Content Editor

Non-fungible tokens, commonly referred to as NFTs, have rapidly grown in popularity over the past few years. The cryptographic assets exist via blockchain and often represent tangible possessions like artwork or individuals’ identities. Because the current market for NFTs is primarily focused on collectibles, many athletes, musicians, and other celebrities use the digital tokens to release their own collections, purchase exclusive NFT artwork, and promote new creators through endorsements. While it is completely legal for celebrities to engage in the promotion and endorsement of NFTs, the practices may create legal issues of deceptive advertising when relevant information is not properly disclosed.  

For example, many celebrities, including Justin Bieber, have been warned by the consumer watchdog agency Truth in Advertising (“TINA”) for promoting NFTs online via Instagram. In the case of Bieber, he did not properly disclose that the promotional NFT posts were advertisements, nor that he had a material connection to the company which created the NFTs. Similarly, TINA warned Reese Witherspoon after promoting NFTs created by a company that was engaged in partnership with a brand owned by Witherspoon.  

These practices appear to be in direct violation of the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising (“The Guides”). The Guides explicitly state that any material connection in advertising, which includes personal stake in the promoted company or compensation in the form of money or free products, must be clearly disclosed to the public.  

The purpose of such disclosures is to protect the public, and the Federal Trade Commission (“FTC”) has ramped up enforcement as companies continue to seek celebrity endorsement via social media sites like Instagram and TikTok. In recent months, the FTC issued notices to over 700 companies for engaging in potentially deceptive advertising practices. Similarly, TINA has focused directly on reaching out to celebrities, like Jimmy Fallon and Tom Brady, to warn them that their NFT promotion practices may result in regulatory action from the FTC. The FTC also sought public comment on potential amendments to The Guides in order to strengthen advertising guidelines specifically targeting businesses and social media influencers.  

Many of the celebrities promoting NFTs use their platforms to reach consumers as influencers. Since the Guides were last amended in 2009, technological advancements and growth of social media advertising have created an appetite for updated endorsement regulation. However, a more beneficial approach may be to invest in educating brand marketers and influencers about the requirements they must follow when endorsing products like NFTs. Digital asset investment can sometimes be volatile, so celebrities should take caution to follow all endorsement guidelines issued by the FTC on future NFT collaborations to avoid reprimands and fines.  

 

Works Cited: 

https://www.investopedia.com/non-fungible-tokens-nft-5115211 

https://www.aeaweb.org/forum/2620/endorsements-testimonials-advertising-comments-invited 

https://www.law360.com/articles/1527194/celebrity-nfts-may-raise-deceptive-advertising-issues 

By: Noah Zedeck, Symposium Director

The Miami Dolphins are currently under fire for the organization’s apparent mishandling of its star quarterback’s head injuries. The National Football League and its concussion protocols are taking heat as well.   

In week three of the NFL season, the Miami Dolphins faced their division rivals, the Buffalo Bills. Just before halftime, a Bills lineman sacked Miami’s quarterback, Tua Tagovailoa.. As Tua tried to get back on his feet after the hit, viewers watched as he stumbled around the field and had to be held up by some of his teammates. Most people reached a fair conclusion after witnessing this scene unfold: Tua had suffered a head injury and would be unable to finish the game. However, after halftime, Tua shockingly returned to the field and finished the game. TheDolphins announced a minor back injury caused Tua’s apparent stumbling. 

Four days later, Tua and the Dolphins once again took the field for the team’s matchup against the Cincinnati Bengals. During this game, Tua was sacked once again, only this time he didn’t get up.  Dolphin’s personnel carted Tua off the field and took him to the hospital. Doctors determined he had suffered a severe concussion. Now, the NFL Player’s Association (NFLPA) began an investigation into Miami’s handling of the Tua situation and has vowed to “pursue every legal option.”  

It is the job of the NFLPA to protect and advocate for the players. This includes ensuring that teams follow the various injury protocols in place. The Dolphins insist that they followed the concussion protocols to a tee, and that, per League rules, Tua was evaluated by both team doctors as well as an Unaffiliated Neurotrauma Consultant (“UNC”). The NFLPA, however, isn’t buying it. The UNC that evaluated Tua’s apparent head injury in week three has already been fired, and the investigation is still ongoing. Many people are calling for the League to enhance its concussion protocols.  

If the NFLPA does find that the protocols were not properly followed, it can file a grievance with the NFL. Such filings are resolved via arbitration, and this is not the first time the NFLPA has had to intervene. In the past, the NFLPA has found that protocols were not properly filed. Those filings proceeded to arbitration, where penalties were imposed as fines, staff terminations, and protocol changes.  

This time, however, it appears that the NFL and NFLPA have already reached a settlement of sorts. Both organizations released a joint statement in which the NFL acknowledged that changes needed to, and would, be made to the Leagues concussion protocols. The NFL and NFLPA will have to agree on the changes, and the situation could still proceed to arbitration depending on the results of the NFLPA’s investigation into the matter.  

This situation serves as a reminder of the importance of the Player’s Association to hold teams legally accountable for the safety of their players. It imposes necessary costs upon teams that would otherwise look to win at all costs. 

Works Cited:

https://profootballtalk.nbcsports.com/2022/09/26/investigation-regarding-tua-tagovailoas-return-to-play-could-take-1-2-weeks/ 

https://www.si.com/nfl/2022/09/30/tua-tagovailoa-injury-nflpa-demaurice-smith-pursue-every-legal-option 

https://www.washingtonpost.com/sports/2022/10/01/nflpa-fires-independent-doctor-involved-clearing-tua-tagovailoa/