The Cleveland Indians are back in the World Series for the first time in nineteen years, and with it have come renewed protests over the team’s name and Chief Wahoo logo, a depiction some consider a highly offensive caricature.  This puts the team into the middle of a sustained and often emotional debate. Many people vigorously oppose the use of Native North American names and images as mascots and logos, saying they are demeaning and worse. The Chief Wahoo logo in particular stands out because it is a caricature.

It’s no secret that brands are big business and that most established businesses, large or small, make great effort to create brand awareness through consistent use of logos with their name. The names and logos are usually legally protected with a registered trademark. Creating brand recognition takes time, so it is not something that should be changed often.  When Tropicana tried to rebrand their orange juice packaging, sales plummeted and it was “a customer-relations fiasco” according to Advertising Age.  A SmartPlanet article analyzed some failed attempts at rebranding. The Gap’s brief logo change is one for the history books. All these brands ended up returning to logos that were tried and true.

All of this may soon be coming to a head.

Last December, the United States Court of Appeals for the Federal Circuit decided a case called In re Tam, in which it overruled the Trademark Office’s refusal to register “The Slants” as a trademark for a music group, finding that the term was disparaging to individuals of Japanese extraction. In a 9-3 decision, the Federal Circuit ruled that by barring registration of such trademarks, the disparagement provisions of Section 2(a) violates the First Amendment’s protection of freedom of speech. Tacitly acknowledging that their ruling would likely unleash a torrent of trademarks that many consider offensive, the court concluded:

Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others. Even when speech “inflict[s] great pain,” our Constitution protects it “to ensure that we do not stifle public debate.”

The Trademark Office was widely expected to, and last month did, ask the Supreme Court to review the Federal Circuit’s decision in In re Tam. In a related move, Pro-Football, Inc. took the unusual step of asking the Supreme Court to hear its appeal of the federal district court decision cancelling six registrations for the Washington Redskins trademarks – which has not been ruled upon yet by the Court of Appeals – as part of the Slants appeal.

The Slants and Redskins cases both turn on the “disparaging” clause of Section 2(a). But if the Supreme Court decides to take on one or both of these cases, the statute’s bar on “immoral” and “scandalous” marks could easily be addressed at the same time: the constitutional issues are pretty much identical.  In the meantime, the Trademark Office – presumably seeking to avoid getting itself into any more controversy – has announced that action on applications that raise any of these Section 2(a) issues will be indefinitely suspended pending further court action.

Former UCLA basketball star and NCAA champion Ed O’Bannon was the lead plaintiff in a 2009 class action lawsuit that was the first serious challenge to the lifeblood of the NCAA’s very existence: all of its players are unpaid amateurs.  The case – forever called the “O’Bannon” case – claimed Division I men’s basketball and football players ought to be compensated for the commercial use of their names and likenesses.  Both sides appealed the Ninth Circuit Court of Appeals’ 2015 ruling, but on Monday the U.S. Supreme Court denied both petitions, preserving the NCAA’s coveted system of amateurism . . . for now.

The denial leaves in place the lower court’s ruling favor of O’Bannon, where a three-judge Ninth Circuit panel found that NCAA Rules constitute an unlawful, anti-competitive conspiracy between the NCAA and its 1,000-plus schools.  Before the Ninth Circuit heard the case, the District Court ruled that colleges must reward men’s basketball and football players up to $5,000 per year while they are in school for the use of their names, images and likenesses, but two of the three Ninth Circuit judges overturned the payment portion of the ruling.

Continue Reading Supreme Court Declines to Hear the O’Bannon Case, Holding in Place the NCAA’s System of Amateurism

In 2014, a group of minor league players sued Major League Baseball, the Office of the Commissioner, former commissioner Bud Selig, and three MLB franchises alleging numerous violations of the federal minimum-wage law. Some minor league players reportedly received $3,000 to $7,000 over a five-month season, even though they claimed to spend 50 to 70 hours a week in baseball-related activities. The case was amended to include all 30 MLB franchises, though eight teams were later dismissed. Central to the players’ strategy was obtaining standing to pursue a class action to defray individual costs and maximize recovery.  However, a recent ruling by a California federal court dealt a blow to the players by rejecting their request for class certification.

Although the players were conditionally granted class status in 2015, Chief Magistrate Judge Spero reversed this temporary status and ruled the players could not proceed as a class in part because of the individualized inquiries needed to determine which class members were owed compensation.

Continue Reading Minor League Baseball Players Strike Out in Attempt to Certify Class for Wage Claims

No, the First Monday in October is not when the first poll for the College Football Playoffs is released.  And it is not the day of an important college football match-up.  However, it still might be an important day for college athletes—and the NCAA.

As many know, the First Monday in October is when the Supreme Court reconvenes.  It is also likely to be when we will find out whether the Supreme Court will hear the O’Bannon case, the Court having the pending petitions for a writ of certiorari teed up for decision at their September 26th conference.  O’Bannon v. NCAA, 802 F.3rd 1049 (9th Cir. 2015). Continue Reading First Monday in October Might be Big Day for College Athletes

The New York State Gaming Commission issued temporary permits to five major daily fantasy sports operators on August 22, 2016, allowing DraftKings, FanDuel, Yahoo, FantasyDraft, and Draft to resume operations in the state of New York.  The timing is key as this occurs before NFL season kickoff and the Major League Baseball playoffs.  This development constitutes a huge win for these operators as well as the professional sports leagues holding an equity interest in DraftKings or FanDuel and the franchises holding sponsorship deals with those operators.

The permits are the final step in a lengthy and contentious process to establish rules for daily fantasy operators in the state of New York.  Last October, New York Attorney General Eric Schneiderman began an inquiry into daily fantasy, which concluded with the AG’s Office issuing cease and desist letters to DraftKings and FanDuel.  Shortly thereafter, the issue was taken to the courts where the AG’s Office sought an injunction prohibiting DraftKings and FanDuel from operating in New York. Continue Reading Welcome Back: New York State Gaming Commission Issues Temporary Permits to Five Daily Fantasy Operators