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Business Law Today

February 2022

Recent Developments in Sports-Related Disputes 2022

Walter F Metzinger III

Recent Developments in Sports-Related Disputes 2022

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In many ways, 2021 marked a return to a semblance of normalcy in the sporting world. The proliferation of vaccines enabled crowds to return to sporting events, and tent-pole events postponed from 2020 (most notably the Summer Olympics) were able to proceed. In terms of sports-related commercial litigation and disputes, however, the year was anything but "normal." From a landmark Supreme Court decision regarding amateurism to a stunning (and quickly foiled) European soccer conspiracy to lingering litigation resulting from the COVID-19 pandemic and resultant shutdowns, the year featured a bevy of sports-related suits and incidents that could shape the business of sports for years and decades to come. Below is a brief summary of a few of the cases that occurred or were resolved in 2021.

Part I – NCAA

§ 1.1 NCAA v. Alston, 141 S. Ct. 2141 (June 21, 2021)

Directly addressing the antitrust legality of the NCAA's student-athlete compensation limits for the first time, the Supreme Court unanimously affirmed the lower courts' holding that the NCAA's restrictions on "education-related" compensation to Division I athletes were unlawful.

The plaintiffs in Alston were current and former student-athletes in men's Division I FBS football and men's and women's Division I basketball players. Their initial suit challenged, on antitrust grounds, the NCAA rules capping the amount of "grant-in-aid" scholarship a Division I college or university can offer to a scholarship athlete at roughly the "cost of attendance" of the institution. The players argued that, by conspiring to arbitrarily "fix" the compensation student-athletes could otherwise earn in a free market for their services, NCAA member schools violate Section 1 of the Sherman Act under a "Rule of Reason" analysis. In response, the NCAA argued that its interest in preserving "amateurism" justified its grant-in-aid rules and that the Supreme Court recognized that its compensation rules were presumptively legal in its 1984 decision in NCAA v. Board of Regents.

Applying the full "Rule of Reason" analysis, the district court found that the NCAA's restrictions on grant-in-aid were anticompetitive and not justified by the NCAA's ever-shifting concept of "amateurism." However, the court did find that the NCAA had a procompetitive interest in restricting payments to athletes that were "unrelated to education," so as to distinguish student-athletes from their professional counterparts. The district court thus enjoined the NCAA from enforcing rules that limited athletes' "educational" compensation, such as laptops and lab equipment for studies, payments for tutoring, and post-eligibility internships. In addition, the court increased the limit of cash award for athletic achievement to $5,980, the maximum a high-achieving football player could earn in additional cash benefits. The Ninth Circuit affirmed the district court in full, prompting the NCAA to petition for certiorari. The plaintiffs opted against appealing the portion of the judgment preserving the NCAA's ability to limit compensation "unrelated to education."

Writing for a unanimous court, Justice Gorsuch first addressed whether the NCAA's rules were subject to a full Rule of Reason antitrust analysis or were afforded a deferential "quick look" standard. Justice Gorsuch explained that while a "quick look" will often be enough to approve the restraints “necessary to produce a game”—such as rules about the length of a game, the frequency of games, and the number of players on the field or court—a fuller review may be appropriate for other restraints. The Court found that the NCAA's compensation rules fell on the "far side of this line," emphasizing that "Division I basketball and FBS football can proceed (and have proceeded) without the education-related compensation restrictions the district court enjoined; the games go on." The court also clarified that language in dicta from the Board of Regents decision indicating that student-athletes "must not be paid" did not make the NCAA's compensation restrictions presumptively legal, particularly given the explosion of NCAA athletic revenues in the past 37 years. Finally, the court rejected the notion that the NCAA deserves more deference because it is not a "commercial enterprise," highlighting the many commercial aspects of top-level NCAA competition.

Justice Gorsuch then turned to the district court's application of the facts under the Rule of Reason. Spurning the "parade of horribles" that the NCAA warned would arise from allowing "in-kind" academic compensation and limited cash awards, the Supreme Court held that the lower courts' remedy of enjoining certain limits on "education-related" compensation was both judicious and reasonable under the facts.

A concurrence from Justice Kavanaugh also garnered considerable media interest. After lambasting the NCAA during oral arguments, Justice Kavanaugh used his concurrence to take the NCAA to task for its "business model of using unpaid student athletes to generate billions of dollars in revenue for the colleges raises serious questions under the antitrust laws." Justice Kavanaugh indicated that he would be open to striking all of the NCAA's compensation rules as illegal under the Sherman Act.

The Alston decision headlined a watershed year in the law pertaining to collegiate athlete compensation. In addition to the passage of laws in several states authorizing student-athletes to earn "Name, Image and Likeness" (NIL) compensation (and the NCAA's temporary suspension of its rules prohibiting such compensation), a federal court in Pennsylvania cited Alston in denying a motion to dismiss labor-related claims against NCAA members. The National Labor Relations Board's general counsel, Jennifer Abruzzo, later released a memorandum opining that student-athletes qualified as employees under the Fair Labor Standards Act.

§ 1.2 Oklahoma, Texas Bolt for SEC, Spark Wave of Conference Realignment

On July 30, 2021, the Universities of Oklahoma and Texas announced that their respective boards of regents had unanimously voted to accept invitations to join the Southeastern Conference. The move followed weeks of speculation that the two longtime Big 12 stalwarts would join the SEC and came a day after the SEC's 14 current members unanimously voted to extend invitations to the universities.

The Big 12 has neither initiated nor threatened any legal action against Oklahoma or Texas. However, Big 12 Commissioner Bob Bowlsby did send a cease and desist letter to ESPN, in which it accused the sports network of inducing Big 12 members to leave the conference. Bowlsby alleged that, in addition to aiding Oklahoma and Texas's efforts to leave for the SEC, ESPN was "actively engaged in discussions with at least one other conference" to which to funnel other Big 12 members. ESPN characterized the allegations as "unsubstantiated speculation," and neither the ESPN nor the Big 12 have taken further action.

Both Oklahoma and Texas pledged to remain in the Big 12 through June 30, 2025, when the Big 12's current media rights contract ends. Should either or both attempt to leave the conference sooner, the universities would be potentially subject to a penalty of at least $75 million apiece.

The defection of Oklahoma and Texas from the Big 12 triggered an onslaught of conference realignment. On September 10, 2021, the Big 12 formally announced that Brigham Young University, the University of Central Florida, the University of Cincinnati, and the University of Houston would become members no later than the 2024-25 season. The American Athletic Conference responded by swiping six member schools from Conference USA, with the Mid-American Conference and Sun Belt Conference also adding new members. The fluctuating state of Division I conference membership is likely to stoke additional legal conflict between institutions and conferences. The Colonial Athletic Association, for instance, has already banned James Madison University from postseason participation until its departure for the Sun Belt Conference.

§ 1.3 Case No. D2021-2418, WIPO Arbitration and Mediation Center, National Collegiate Athletic Association v. Jules Richard IV, Bachi Graphics LLC

An arbitrator with the World Intellectual Property Organization (WIPO) ordered the owner of domain name "" to the NCAA, months before the organization was slated to host its 2022 Men's Basketball Tournament Final Four in New Orleans.

Between 1981 and 2005, the NCAA registered several trademarks related to the Final Four, including "FINAL FOUR," "THE FINAL FOUR," "FINAL 4" and others. In 2008, Jules Richard IV registered the domain name "" Go Daddy, but did not use the domain name to host an active website.

Under the Uniform Domain Name Dispute Resolution Policy, a party seeking to obtain a disputed domain name from another must establish three elements: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name was registered and is being used in bad faith.

The NCAA filed its complaint with WIPO's Arbitration and Mediation Center on July 23, 2021, asserting that it enjoys "strong rights in the FINAL FOUR" mark given its longtime use of the phrase and the various registered trademarks. The NCAA further maintained that the domain name was "identical and confusingly similar" to its mark, since it incorporated the non-distinctive geographic location (New Orleans) where the NCAA happens to be hosting the 2022 national semifinals and finals of its men's tournament. According to the NCAA's complaint, Richard had no legitimate interest in holding the domain, as he had no affiliation with the NCAA and had never made use of the domain name. The NCAA further accused Richard of acting in bad faith by "squatting" on the domain name while knowing of the NCAA's interest in the Final Four mark. Richard did not respond to the NCAA's complaint.

Arbitrator Georges Nahitchevansky accepted the NCAA's arguments. First, Nahitchevansky held, the domain was "confusingly similar" to the NCAA's final four mark, even with the addition of the geographic name "New Orleans." Second, Nahitchevansky found that the evidence indicated that Richard, who appeared to be based in New Orleans, "registered the disputed domain name on the basis that the FINAL FOUR tournament might again be played in New Orleans and did so for [his own] benefit." As a result, the arbitrator concluded that Richard lacked a right or legitimate interest in the domain name. Finally, relying on similar reasoning, Nahitchevansky found that Richard "opportunistically registered the disputed domain name to somehow profit from its association with Complainant" and thus was acting in bad faith.

§ 1.4 Westwood One Radio Networks, LLC v. National Collegiate Athletic Association, 172 N.E.3d 293 (Ct. App. Ind. May 26, 2021)

The Court of Appeals of Indiana affirmed the dismissal of an action brought by Westwood One Radio Networks against the NCAA that, if successful, would have prevented the NCAA from voiding its agreement with Westwood One.

In 2011, Westwood One entered an agreement to serve as the exclusive radio broadcaster of NCAA championship events. The contract obligated Westwood One to pay the NCAA an "annual rights fee" in two installments to preserve Westwood One's exclusive broadcast rights. When the COVID-19 pandemic forced the NCAA to cancel the remainder of its competitions for the 2019-20 athletic season, including the 2020 men's basketball tournament, Westwood One forewent payment of its second installment for 2020, relying on the contract's "Force Majeure" provision to relieve Westwood One of its financial obligation. In response, the NCAA terminated the agreement. Westwood One thereafter filed suit to enjoin the NCAA from terminating the contract, arguing that "it would be virtually impossible to determine or accurately estimate the losses Westwood One would incur over the next four years if the NCAA were to terminate the Radio Agreement." The trial court denied Westwood One's request for preliminary injunction, holding that Westwood One had failed to demonstrate the requisite "irreparable harm."

On appeal, Westwood One argued that it required an injunction because the termination of the contract would damage its future goodwill in a manner that was impossible to ascertain. For instance, Westwood One argued, the end of its relationship with the NCAA could impair Westwood One's relationships with organizations such as the NFL, with which Westwood One also has a broadcasting agreement. The court, to the contrary, found that the trial court had not erred in finding that Westwood One's damages due to loss of goodwill and reputation were readily quantifiable. Accordingly, the court affirmed the trial court's denial of the preliminary injunction. The parties later settled Westwood One's remaining claims for damages.

§ 1.5 Bielema v. The Razorback Foundation, Inc., No. 5:20-CV-05104 (W.D. Ark.)

The Razorback Foundation agreed to pay former University of Arkansas coach Bret Bielema a portion of the amount owed on his buyout, effectively settling the parties' claims against each other stemming from Bielema's efforts to obtain other employment after Arkansas had fired him at the end of the 2017 season.

The Razorback Foundation initially agreed to pay Bielema to $11.94 million to buy out his contract. As part of the buyout agreement, however, Bielema agreed to use his "best efforts" to obtain new employment and earn a reasonable salary. Bielema agreed to become an outside consultant for the New England Patriots in 2018 in exchange for a $125,000 salary. Taking the position that the Patriots position did not constitute Bielema's "best efforts" to find employment at a "reasonable salary," the Foundation ceased making payments to Bielema in January 2019, with Bielema still owed about $7 million of the buyout amount. Bielema sued to collect the remainder of his buyout, and the Foundation filed a counterclaim. In answer to the Foundation's counterclaim, Bielema alleged that Patriots coach Bill Belichick had significantly overpaid Bielema.

The Foundation ultimately agreed to pay Bielema $3.53 million to resolve the dispute between the parties.

§ 1.6 Hobart-Mayfield, Inc. v. National Operating Committee on Standards for Athletic Equipment, --- F. Supp. 3d ----, 2021 WL 1575297 (E.D. Mich. April 22, 2021)

A federal court in Michigan dismissed an antitrust suit alleging that the National Operating Committee on Standards for Athletic Equipment (NOCSAE) illegally conspires with football helmet manufactures to control the market for football helmets and helmet accessories.

Plaintiff Hobart-Mayfield, Inc. markets and sells football helmet shock absorbers called "S.A.F.E. Clips." The NOCSAE, meanwhile, a nonprofit that develops and establishes test and performance standards for athletic equipment, including helmets at the high school, collegiate, and professional levels. NOCSAE has also entered licensing agreements with football helmet manufacturers such as Riddell, Schutt Sports, and Zenith, whom Hobart-Mayfield alleged comprised nearly 100 percent of the football helmet and helmet "add-on" market. Per NOCSAE's policy, the addition of an add-on product such as the S.A.F.E. Clip to a previously-approved helmet "creates a new untested model" and allows the helmet manufacturer to declare the certification of the helmet with the add-on "void. As a result, Hobart-Mayfield contended, NOCSAE and the helmet manufacturers had effectively colluded to exclude add-on manufacturers such as Hobart-Mayfield from the market, in violation of the Sherman Act and Michigan antitrust law.

The court disagreed. Because NOCSAE's did not require that add-on manufacturers such as Hobart-Mayfield be excluded from the market, the plaintiff failed to demonstrate “either an explicit agreement to restrain trade, or ‘sufficient circumstantial evidence tending to exclude the possibility of independent conduct.’” The court similarly held that Hobart-Mayfield had failed to allege a conspiracy between NOCSAE and the manufacturers or intentionally interfered with the plaintiff's business. Accordingly, the court dismissed the suit for failure to state a claim.

Hobart-Mayfield appealed the ruling to the U.S. Court of Appeals for the Sixth Circuit.

Part II – Professional Soccer

§ 2.1 Rise, Collapse of European Super League Sparks Legal Disputes

Following the announcement and immediate, backlash-fueled collapse of plans for a so-called European "Super League" ("ESL") in April, the three clubs who have thus far refused to abandon the Super League project—FC Barcelona, Real Madrid, and Juventus—look set to challenge UEFA and FIFA's legal authority to block or otherwise impair the institution of a competing league.

In April, citing a desire to "improv[e] the quality and intensity of existing European competitions throughout each season," 12 of European football's biggest clubs announced plans to form a new Super League that would consist of 15 permanent members and five rotating spots for other high-achieving European clubs. The 12 ESL founders included six teams from England (Arsenal, Chelsea, Liverpool, Manchester City, Manchester United, and Tottenham Hotspur); three teams from Spain (Barcelona, Real Madrid, and Atletico Madrid); and three teams from Italy (Juventus, AC Milan and Inter Milan). The announcement triggered an uproar among UEFA, national football associations, and fans, particularly in England. In response, nine of the 12 "founding" clubs abandoned their plans to join the ESL.

The remaining three ESL clubs, by contrast, are continuing to mount legal challenges they hope will pave the way for a Super League to come to fruition. In essence, Barcelona, Real Madrid, and Juventus argue that governing bodies such as UEFA and FIFA participate as both regulators who can sanction clubs and commercial competitors, in violation of European competition law. Rather than protecting the game or the sanctity of European competition, these clubs argued, UEFA and FIFA were seeking to protect their own financial interests by using their regulatory power to snuff out a potential competing league. The ESL clubs earned an early victory on this front, with a court in Madrid ordering that UEFA could not discipline or levy "fines" against the ESL clubs for their roles in planning the league, prompting UEFA to suspend its disciplinary actions against the clubs. That court referred the matter to the European Court of Justice ("ECJ"), which may ultimately decide whether UEFA and FIFA can continue to act as regulators in accordance with European competition law, given their status as competitors.

§ 2.2 Spanish Clubs Challenge CVC Investment in La Liga

Although a majority of the league's members have already approved the transaction, FC Barcelona, Real Madrid, and Athletic Bilbao are challenging a venture capitalist's investment in La Liga's media rights under Spanish law.

In August, a majority of La Liga's teams approved CVC Capital's $117.3 million investment in the league's media rights. Under the agreement, CVC is entitled to 11 percent of La Liga's media revenue for the next 50 years. The deal also obligates CVC to provide $2.9 billion in interest-free loans to league clubs. However, according to Barcelona, Real Madrid, and Athletic Bilbao, the agreement violates a number of Spanish laws. The teams claim that the deal was "adopted as part of an highly irregular and disrespectful process toward with the minimum guarantees required."

§ 2.3 Major League Soccer, L.L.C. v. F.C. Internazionale Milano S.p.A (U.S. Trademark Trial and Appeal Board, Dec. 9, 2020)

The U.S. Trademark Trial and Appeal Board ("TTAB") recently issued a ruling favorable to FC Internazionale Milano ("Inter Milan"), dismissing a claim brought by Major League Soccer ("MLS") that Inter Milan's registration of the trademark "INTER" would cause a likelihood of confusion with Club Internacional de Fútbol Miami ("Inter Miami") and other third-party soccer organizations with "inter" in their names.

Inter Milan first applied for a trademark registration in the United States in 2014. The MLS opposed the registration, arguing that the mark was merely "descriptive" in violation of Section 12(e)(1) of the Trademark Act (15 U.S.C. § 1052(e)(1)); and at risk of causing confusion with Inter Miami's alleged mark in violation of Section 12(d) (15 U.S.C. § 1052(d)). Inter Milan moved to dismiss the Section 12(d) claim.

At first, the MLS cited its "intent-to-use" application for a registration on behalf of Inter Miami in asserting that the Milanese club's registration posed a likelihood of confusion. Eventually, the MLS pivoted its argument to focus on the use of "inter" by other soccer clubs and organizations in the United States, including a number of youth clubs. The MLS stressed that it was "deeply involved" in youth leagues and lower tiers professional leagues and thus had an interest in averting confusion between Inter Milan and youth and lower tier organizations that used the word "Inter" in their title. In turn, Inter Milan denied that MLS had established the requisite "direct and substantive connection" with these third parties to state a Section 12(d) claim.

A three-judge panel of the TTAB agreed with Inter Milan that the MLS had "not sufficiently pleaded a 'legitimate interest' in avoiding a likelihood of confusion between Applicant’s mark and the pleaded third-party marks." Characterizing the MLS's relationship to the various organizations and leagues with Inter in their names as "at best, tangential," the TTAB held that even if the MLS's allegations were accepted as true, MLS could not show it would be detrimentally affected by any "likelihood of confusion" between the marks.

As of December 2021, the parties were in settlement discussions regarding the MLS's remaining claim under Section 12(e)(1).

§ 2.4 O.M. by and through Moultrie v. National Women's Soccer League, LLC, No. 3:21-cv-00683-IM, 2021 WL 2478439 (D. Ore. June 17, 2021)

Teenage star Olivia Moultrie won a preliminary injunction against the National Women's Soccer League ("NWSL") that prohibited the league from enforcing its minimum age rule, leading to a settlement that cleared the way for Moultrie to continue playing for the Portland Thorns.

In May 2021, 15-year old phenom Moultrie filed suit against the NWSL seeking a temporary restraining order and injunction precluding the NWSL from enforcing a requirement that players be at least 18 years of age before participating. Moultrie argued that, while she would have to abide by a collectively bargained age limit, the NWSL's rule—which the league's teams had unilaterally implemented—violated the Sherman Act. Moultrie emphasized both that the NWSL was the "only option for women to play professional soccer in the United States" and that there were no comparable age limits in male professional soccer leagues. Enforcement of the age rule, Moultrie maintained, would "continually slow her development, delay her improvement, and more generally impede her career as a soccer player."

After granting the temporary restraining order and holding an evidentiary hearing, District Judge Karin Immergut held that Moultrie had satisfied the requirements for a preliminary injunction. Judge Immergut determined that Moultrie was likely to succeed on the merits of her ultimate claim. The court specifically found that the NWSL teams wielded market power and had engaged in a concerted action to prohibit players under 18 from participating, thereby having an anticompetitive effect on Moultrie's ability to participate in the market for professional women's soccer. The court rejected the NWSL's arguments that the age rule's alleged effect on cost reduction amounted to a procompetitive justification, or that the non-statutory labor exception to the Sherman Act applied, since the age rule had not been collectively bargained. In addition, Judge Immergut found that Moultrie would suffer irreparable harm if she were prohibited from plying her trade in the NWSL for up to three more years. Finally, the court held that the balance of equities and public interest favored Moultrie, particularly given the lack of an age limit or rule in the MLS or other men's professional leagues.

The parties settled soon after, allowing Moultrie to continue her professional career.

Part III – NFL

§ 3.1 St. Louis Regional Conv. et al. v. National Football League et al., 1722-CC00976 (Mo. 22nd Jud. Ct.)

The NFL and Los Angeles Rams owner Stan Kroenke agreed to pay $790 million in settlement of a years-long lawsuit stemming from the relocation of the Rams franchise from St. Louis to Los Angeles.

In 2016, a majority of the NFL's 32 owners approved Kroenke's bid to move the Rams to Inglewood, California. The City of St. Louis, St. Louis County, and St. Louis Regional Convention and Sports Complex Authority filed suit a year later, alleging that Kroenke and others had fraudulently concealed their intention to move the team for years before the relocation; that the league had violated its own relocation policy in approving the deal; and the Kroenke and the NFL had cost St. Louis millions.

The court had denied the defendants' for motion for summary judgment dismissal in September 2021. The NFL and Kroenke argued that the NFL's relocation policy did not constitute a binding contract and that, regardless of whether it did, the St. Louis plaintiffs were not third-party beneficiaries with standing to enforce the policy. Citing evidence that NFL owners considered it "their duty to enforce the Relocation Policy," the court held that the relocation policy was enforceable. The court further found that "many provisions of the Relocation Policy were intended for the benefit of a club's home territory," rendering the St. Louis plaintiffs intended third-party beneficiaries. The court also held that questions of material fact as to whether the NFL and Kroenke knew that they would be moving the team but represented the contrary to the plaintiffs precluded summary judgment on the plaintiffs' fraud claims.

The litigation engendered strife among the league's 32 owners. Much to their consternation, several owners have had to turn over extensive phone records and documents during the discovery process. In October 2021, Kroenke reportedly signaled to his fellow owners that he was planning to challenge an indemnification agreement that Kroenke had signed prior to the relocation and pursuant to which Kroenke had previously been paying legal costs for the league's defense.

§ 3.2 Snyder v. Moag & Co., LLC, No. ELH-20-2705, 2021 WL 3190493 (D. Md. July 28, 2021)

In Snyder v. Moag & Co., LLC, the U.S. District Court for the District of Maryland tossed out a claim by Washington Football Team ("WFT") owner Daniel Snyder alleging that John Moag, whose company had helped Snyder sell minority interests in the team, had spoliated evidence relating to a separate defamation claim brought by Snyder against an Indian publication.

Snyder had filed suit against an "obscure website" in India that had published a story about a rumored connection between Snyder and Jeffrey Epstein. According to Snyder, Moag deliberately deleted text messages and emails from his phone relevant to the India litigation.

Although the court recognized that Moag had a duty to preserve potential evidence, the court held that Snyder had failed to meet the remaining two elements of a spoliation claim: a "culpable state of mind" and the relevance of the alleged information. Snyder, per the court, "presented no real evidence" that Moag had deleted text messages or emails from his phone "with the express purpose of depriving [Snyder] of the evidence in this litigation." Further, finding the record devoid of evidence that Moag intentionally deleted materials relevant to the India litigation or had even been aware of it, the court found that Moag had not deleted relevant evidence. Snyder, the court concluded, had merely been "fishing" for relevant evidence from Moag.

§ 3.3 PSSI Stadium LLC v. City of Pittsburgh Zoning Board of Adjustment, No. 600 C.D. 2020, 2021 WL 3355011 (Pa. Comm. Ct. Aug. 3, 2021)

The Commonwealth Court of Pennsylvania determined that the proposal to spell out "HEINZ FIELD" in section of seating in Heinz Field does not violate a Pittsburgh zoning ordinance prohibiting "exterior" advertising signage, finding instead that the painted seats would constitute permitted interior signage.

Heinz Field is a nearly 70,000 seat stadium the primary home of the Pittsburgh Steelers and the University of Pittsburgh football team. PSSI Stadium LLC, the stadium's main tenant, applied for approval from the Pittsburgh Zoning Board of Adjustment ("ZBA") to paint a section of Heinz Field's seats. The proposed signage, PSSI argued, would be a "permitted interior sign under Section 919.03.A of the City of Pittsburgh's Zoning Code." The ZBA rejected the request, however, reasoning that because the "HEINZ FIELD" seat painting would be visible from above the stadium and from a number of buildings and locations in downtown Pittsburgh, the proposed signage was "analogous to a roof sign."

The trial court reversed the ZBA's decision, and the Commonwealth Court affirmed the trial court. As an initial matter, the court held, the ZBA had erred in diverging from a prior decision in which a soccer stadium was allowed to paint its seats to spell out "HOUNDS" on the basis that the seats comprised an "interior" sign. As in that case, the court held, the proposed Heinz Field painting was "plainly not an exterior sign." Instead, the seat signage was "tantamount to a logo on or near the playing field" and thus qualified as permitted interior signage under Section 919.03.A.

Part IV – Major League Baseball

§ 4.1 Chattanooga Professional Baseball LLC v. National Casualty Company, No. 20-17422, 2021 WL 4493920 (9th Cir. Oct. 1, 2021)

The U.S. Circuit Court of Appeals for the Ninth Circuit affirmed the dismissal of a claim brought by several minor league baseball teams against their insurers for rejecting their claims for business interruption losses arising from the COVID-19 shutdown.

Each of the teams' insurance policies contained an exclusion for coverage from "loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease." However, the teams argued that "other causes," including "the attendant disease, resulting pandemic, governmental responses to the pandemic, and Major League Baseball (MLB) not supplying players," were responsible for the interruption of business and resultant losses. Accordingly, the Ninth Circuit's analysis hinged on the determination of "causation" in each of the ten states in which the teams resided.

Eight of the ten states (California, Oregon, West Virginia, Idaho, Indiana, Maryland, Tennessee, and South Carolina) employ the "efficient proximate cause" analysis, under which the legal cause is that which "sets the other causes in motion" without being too remote. Because the Ninth Circuit identified the COVID-19 virus as the domino that set the other causes in motion, the court held that the teams in these states properly had their claims dismissed. The court also rejected the claims brought under Texas law, which requires the claimant to establish that a concurrent, covered "peril" caused the alleged loss. The Texas teams could not establish a cause "concurrent" to the spread of the virus. The Ninth Circuit also held that the teams had not established a "efficient intervening cause" that "broke the causal chain" from the COVID-19 virus, as required to recover under Virginia law. Finally, the court rejected the teams' equitable arguments for deeming the insurance policies' virus exclusions unenforceable.

§ 4.2 Sports Technology Applications, Inc. v. MLB Advanced Media, L.P., No. 0652609/2014 (Sup. Ct. N.Y.)

Sports Technology Applications, Inc. ("STA") won a $2 million verdict against MLB Advanced Media, L.P. ("MLBAM") from a Supreme Court of New York jury in New York City.

STA, an app developer and software company, entered a licensing deal with MLBAM in 2012 in which STA agreed to develop an app, which would allow users to predict plays in-game and challenge fellow users for the chance to win "virtual" prizes. In exchange for the MLBAM's promotion of the app, STA agreed to make a series of payments to MLBAM totaling millions. The parties' relationship quickly soured, however, and STA sued MLBAM in 2014.

According to STA, MLBAM failed to adequately promote the app or disclose that it was a significant shareholder of PrePlay, a competitor to STA. While admitting that it did not promote the app to the extent required by the parties' agreement, MLBAM blamed the lack of promotion on the app's delayed launch and alleged myriad technological problems. MLBAM further denied that it had any obligation to disclose its relationship with PrePlay to STA.

The jury sided with STA after a trial in 2021. The court later denied MLBAM's motion for judgment as a matter of law or new trial.

§ 4.3 Landis v. Washington State Major League Baseball Stadium Public Facilities District, 11 F.4th 1101 (9th Cir. Sep. 1, 2021)

In Landis v. Washington State Major League Baseball Stadium Public Facilities District, the Ninth Circuit remanded a suit to the trial to the trial court for a determination of whether T-Mobile Park, home of the Seattle Mariners, provides adequate sightlines of the playing field for its handicap-accessible seating in accordance with the Americans with Disabilities Act ("ADA").

The ADA requires "full and equal enjoyment of places of public accommodation by individuals with disabilities." In 1996, the U.S. Department of Justice ("DOJ") published its Accessible Stadiums guidelines, in which the DOJ interpreted the ADA to mandate that "all or substantially all of the wheelchair seating locations must provide a line of sight over standing spectators." The guidance requires that wheelchair users be able to see the field "between the heads and over the shoulders of the persons standing in the row immediately in front and over the heads of the persons standing two rows in front."

Plaintiffs, all of whom use wheelchairs, alleged that the sightlines did not comply with the Accessible Stadiums requirements. According to plaintiffs' expert, "the sightlines of spectators using wheelchairs were nearly always more obstructed than the sightlines of spectators not using wheelchairs." Defendants' expert disagreed, concluding that wheelchair-using spectators could see over the shoulders and between the heads of people in both of the first two rows in front of the seating. The trial court sided with the defendants in finding that the wheelchair-accessible seats had "comparable," if not greater, visibility than non-accessible seating.

On appeal, the Ninth Circuit held that while the trial court analyzed the "first requirement" of the Accessible Stadiums standard—that wheelchair-using spectators be able to see over the shoulders of the row in front of them—the lower court had failed to assess whether spectators could see over the second row in front of them. In the Ninth Circuit's view, the trial court had failed to address evidence and testimony submitted by the plaintiffs regarding spectators two rows in front of wheelchair-accessible seats. Accordingly, "not satisfied that the district court analyzed the second Accessible Stadiums requirement" but not expressing any opinion as to whether T-Mobile Court was in compliance with the ADA, the Ninth Circuit remanded the case to the trial court for a proper application of Accessible Stadiums.

Judge Patrick Bumatay concurred in the result, but disagreed with the majority's application of the Accessible Stadiums guidance as an "authoritative" document.

§ 4.4 In Re: Houston Astros, LLC, No. 14-20-00769-CV, 2021 WL 2965268 (Ct. App. Tx. July 15, 2021)

On a writ of mandamus, the Court of Appeals of Texas in Houston dismissed a class action brought by a class of Houston Astros season ticket holders arising out of the revelation that Astros illegally stole signs from 2016 to 2019.

In January 2020, MLB Commissioner Rob Manfred issued a report in which he concluded that the Astros had illicitly stole opposing teams' pitching signs, including during their World Series-winning 2017 season and American League-winning 2019 season. The plaintiffs alleged that the Astros "knowingly, intentionally, and deceptively selling season tickets with full knowledge that Astros employees and representatives were surreptitiously engaged in a sign stealing scheme in violation of MLB rules." If they had known the Astros were cheating, these season ticket holders averred, they would have never purchased season tickets. The Astros moved to dismiss the complaint, asserting that the plaintiffs' "disappointment" over the team's indiscretions. The trial court denied the motion, prompting the Astros to petition for a writ of mandamus.

In reviewing whether the plaintiffs had stated legally cognizable causes of action, the Court of Appeals analyzed Mayer v. Belichick, 605 F.3d 223 (3d Cir. 2020). The plaintiff in Mayer was a New York Jets season ticket holder who sued the New England Patriots and Bill Belichick for their alleged role in the "Spygate" videotaping scandal. The Third Circuit held that the plaintiff did not have a legally protected right "to see an ‘honest’ game played in compliance with the fundamental rules of the NFL" and thus had not suffered a cognizable injury. The Texas court determined that the Astros' ticketholders claim likewise stemmed from the "embarrassment, disappointment, shame, and disgrace" of the sign-stealing scandal, rather than any misrepresentation by the Astros or their representatives. The ticket itself merely guaranteed entry to the game – not that the home team would play the game honestly or fairly. The court thus dismissed the suit.

§ 4.5 Guardians Roller Derby v. Cleveland Guardians Baseball Company, LLC, No. 1:21CV02035 (N.D. Ohio)

The Cleveland Guardians (of the MLB) settled a trademark infringement suit brought by the Cleveland Guardians (roller derby team), allowing both teams to continue using the name.

Cleveland's baseball team changed its name from "Indians" to "Guardians" in July 2021. The Guardians roller derby team, however, had formed in 2013 and registered the "Cleveland Guardians" name with the Ohio Secretary of State in 2017. The roller derby filed suit in October, alleging "There cannot be two 'Cleveland Guardians' teams in Cleveland, and, to be blunt, Plaintiff was here first.'"

The settlement clears the way for the baseball team to begin the 2022 season as the Cleveland Guardians.

Part V – NBA

§ 5.1 Easter Unlimited, Inc. v. Rozier, No. 18-CV-06637 (KAM), 2021 WL 4409729 (E.D.N.Y. Sept. 27, 2021)

Charlotte Hornets guard Terry Rozier successfully moved for summary judgment dismissal of several claims arising out of his "Scary Terry" line of clothing and merchandise and its alleged similarity to the "Ghost Face" mask popularized in the Scream horror film series.

Plaintiff Easter Unlimited (d/b/a Fun World) is a costumer and novelty item business that has held copyright and trademark registrations for the "Ghost Face" mask since the early 1990's. Fun World granted Dimension Films a license to use the mask for Scream. Din 2018, while Rozier was playing for and excelling with the Boston Celtics, fans and media began referring to him endearingly as "Scary Terry." Hoping to capitalize on this new moniker, Rozier began selling "Scary Terry" clothing that featured a cartoon caricature of Rozier wearing what he referred to as the "Scream mask." Plaintiff thereafter filed a variety of claims for copyright and trademark infringement.

The court found that Rozier's use of the "Ghost Face" copyright constituted fair use. Among other things, the court determined that Rozier's use of the mask in his merchandise: (1) was, to some extent, transformative; (2) parodic to the extent it constituted a "humorous and whimsical reimagination of the Ghost Face Mask"; and (3) satirical insofar as it was "a means of satirizing and ridiculing the perception of ruthless, high-scoring athletes in the NBA, as well as underscoring the humor in the Scary Terry moniker." In the court's view, the risk of the "Scary Terry" moniker "usurping" the Ghost Face mask's position in the market for novelty wear was low.

The court similarly rejected the plaintiff's trademark related claims. In addition to deeming the "Ghost Face" mark descriptive and therefore "weak", the court found that a dearth of evidence that the Scary Terry designs were similar or would cause consumer confusion.

§ 5.2 Bertuccelli v. Universal City Studios LLC, No. 19-1304 (E.D. La.)

After several years of litigation and having already had a summary judgment motion denied, Universal Studios and other defendants settled a suit brought by the creators of the New Orleans Pelicans' "King Cake Baby" mascot asserting that the movie studio stole his idea to create a character for the Happy Death Day film series.

A mask featuring a "cartoonish baby face" figures prominently in both 2017's Happy Death Day and 2019's Happy Death Day 2 U. Plaintiffs alleged that the mask infringes the copyright of the King Cake Baby, which plaintiffs created in 2009. In support of their motion for summary judgment, the defendants argued that the plaintiffs could not establish "substantial similarity" between the masks. But the court disagreed, concluding that a fact finder could find that the masks were "substantially similar."

The original mezzanine UCC foreclosure sale that was scheduled for May 1, 2020, was temporarily enjoined by the New York Supreme Court on April 30, 2020 on the grounds that the terms of the foreclosure sale were not commercially reasonable in light of the coronavirus pandemic and that Executive Order 202.8’s prohibition on foreclosures extends to UCC foreclosures of mezzanine debt. The court then issued a final decision in 1248 Assoc Mezz II LLC on May 18, 2020, vacating its prior temporary restraining order and ruling that the scheduled UCC foreclosure could move forward, as it was not prohibited by Executive Order 202.8. The court reached this conclusion by noting that, “had the Executive Order intended to prohibit sales of collateralized assets…governed by the UCC, such prohibition would have been explicitly provided for within that Executive Order.” The court then went on to concur with the mezzanine lender’s argument that the foreclosure of a mortgage is “a judicial proceeding, whereas the proposed (and Noticed) sale addresses a disposition of collateral pursuant to Article 9 of the UCC, a non-judicial proceeding,” ultimately concluding that Executive Order 202.8 “addresses enforcement of a judicially ordered foreclosure,” which does not cover foreclosures conducted under the UCC.