The Sports Lawyer February 2015

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1 THE SPORTS LAWYER In This Issue February 2015 Benson Family Suit Over Saints Rooftop Property Owners Sue to Protect Visibility into Wrigley Field San Jose Loses Appeal Over Oakland Athletics Relocation Attempt Photographer Sues Nike Over Jumpman Logo Also Faculty Editors Gary Roberts Indiana University Robert H. McKinney School of Law Gabe Feldman Tulane University Law School Student Editors Joseph Nguyen Senior Managing Editor Jeff D. Karas Senior Articles Editor Victoria Acuff Junior Articles Editor Spencer Low Tate Martin Caroline Carmer Alex Heath Breard Snellings Fritz Metzinger Ruben Garcia Deniz Koray Staff Suit Filed Against Lou Lamoriello for Laughing at Fired Employees ESPN Sues Notre Dame over Public Access Records Regarding Athletes Spurs Forward Tim Duncan Sues Financial Advisor for $1M Two Former WWE Wrestlers File Suit Over Concussions National Football Table of Contents National Football League 2, Major League Baseball 3, National Hockey League 5, National Collegiate Athletic Association 6, National Basketball League 7, Other News 8 1

2 National Football League Benson Family Suit Over Saints On January 22, 2015, Renee Benson, Rita Leblanc and Ryan Leblanc sued New Orleans Saints owner Thomas Milton Benson, Jr. in the Civil District Court for the Parish of Orleans in New Orleans for interdiction. Renee Benson alleges that Tom Benson s mental capacity has diminished and that he has fallen under the influence of another person, which puts his estate and legacy in jeopardy. On May 31, 1985, Tom Benson purchased the New Orleans Saints after earning his fortune through car dealerships and the banking industry. Tom Benson has been critical in keeping the Saints in New Orleans, bringing Super Bowls to the city, and helping the team recover from Hurricane Katrina. Furthermore, in 2004 Benson brought the Voodoo, an Arena Football League team, to New Orleans, and in 2012 Benson purchased the New Orleans Pelicans, an NBA Franchise. The operation of these teams has always been a family business, and thus Renee Benson (daughter), Rita Leblanc (grandchild), and Ryan Leblanc (grandchild) have all played key roles in the management of the Saints, Voodoo, and Pelicans. However, since Tom Benson married his third wife, Gayle Marie LaJaunie Bird, the family dynamic has changed. In recent years, Tom Benson s mental capacity has declined, which was demonstrated when Benson purportedly said that the current President of the United States was Ronald Reagan. Due to these health issues, Renee, Rita, and Ryan have felt left out of the loop and believe that Gayle has taken steps to limit their access to Tom Benson. The divide in the family was further evidenced by Tom Benson skipping Thanksgiving in Texas to attend an event at the Fairgrounds Race Course and Slots with Gayle. Finally, on December 27, 2014, Renee, Rita, and Ryan received a letter banning them from all facilities, and on December 29, 2014, Rita was fired from her position with the New Orleans Saints. Around this time, Tom Benson also failed to perform duties for the Shirley Benson s Testamentary Trust and authorized the transfer of significant sums of money from the trust. In the complaint, Renee Benson, Rita Leblanc, and Ryan Leblanc allege that Tom Benson is suffering from infirmity, which makes him unable to make and communicate reasoned decisions. They also allege that Gayle Marie LaJaunie Bird is influencing and manipulating Tom Benson. Renee Benson seeks a full interdiction of Tom Benson as well as an appointment as the curatrix of Tom Benson s property and person. Furthermore, Renee Benson wants the court to appoint Rita Leblanc as undercuratrix of Tom Benson s property and person. Sadly, the Benson family was forced to take this action in the best interests of Tom Benson and his legacy, the customers of Benson family automobile dealerships, the employees of all of the family enterprises and the multitude of Pelicans and Saints fans, said Randall A. Smith, the attorney for the plaintiffs. Renee Benson, Rita Leblanc, and Ryan Leblanc are represented by Smith and Stephen M. Gele of the firm Smith & Fawer, L.L.C. in New Orleans. Allegations regarding my mental health are completely meritless and their allegations against my wife equally unfounded, said Tom Benson. Tom Benson is represented by Phillip A. Wittmann of Stone Pigman Walther Wittman, L.L.C. in New Orleans. On Tuesday January 27, 2015, Tom Benson and his lawyers responded by asking the court to dismiss the lawsuit. On January 28, 2015, Renee Benson s lawyers responded by asking the court to have Tom Benson examined by a psychiatrist, which the court later ordered. -- Alex Heath 2

3 Major League Baseball Rooftop Property Owners Sue to Protect Visibility into Wrigley Field On January 8, 2015, owners of multiple rooftop properties across Wrigley Field sued the Commission on Chicago Landmarks (the Commission) in the Circuit Court of Cook County in Chicago seeking review of the Commission s decisions permitting renovations to the stadium. The plaintiffs also allege that the Commission violated their constitutional rights in the process of approving the proposals. The Commission deemed Wrigley Field a historical landmark in Since the first games in 1914, fans have viewed Cubs games from rooftops across the field. Over the years, the rooftop owners recognized the potential for profit and began charging hefty entry fees, providing plush seating, and serving fancy food and cocktails, much to the Cubs dismay. In 2004, the rooftop owners collectively signed a contract giving the Cubs seventeen percent of their profits in exchange for unobstructed views of the stadium. The same year, the Commission, the rooftop owners, and the Cubs negotiated the terms of Chicago s Landmark Ordinance. The ordinance prohibits alterations to the perimeter exterior elevations and substantially altering historical appeal of Wrigley s open-air atmosphere. However, the Ricketts family purchased the Cubs in 2009 and began negotiating stadium renovation plans with the city in The rooftop owners were actively consulted in previous negations, but the city and the Cubs excluded them from these proceedings. In July and December of 2014, the Commission approved construction plans for billboards and Jumbotrons blocking visibility of the field for some rooftop owners. In their complaint, the rooftop owners allege that the Commission violated their constitutional rights of due process and equal protection while acting under color of state law by excluding them from negotiations. They also seek review of the Commission s decisions claiming they violate the terms of the city s Landmark Ordinance. The rooftop owners request an injunction on the construction plans, unspecified monetary damages, and attorney s fees. The Rooftops possess a legally protected interest in their views of Wrigley Field and a legally cognizable stake in any landmark decision which diminishes their views, states the complaint. The Commission and its members will seek to dismiss the case, according to a spokesperson for the city. The rooftop owners are represented by Thomas S. Moore and Jane F. Anderson of Anderson & Moore, P.C. in Chicago. A hearing is set before to Judge Neil H. Cohen on May 8, Caroline Carmer

4 San Jose Loses Appeal Over Oakland Athletics Relocation Attempt On January 15, 2015, a panel of three judges from the 9th Circuit Court of Appeals unanimously upheld a lower court s decision to dismiss the City of San Jose s antitrust lawsuit against Major League Baseball ( MLB ). Judge Alex Kozinski said that only Congress or the Supreme Court were in a position to challenge MLB s exclusion from antitrust laws, which has existed for almost a century. San Jose is attempting to attract a baseball team to its city and has reached an agreement with the Oakland Athletics ( A s ) to build the team a new stadium. However, the A s geographic rival, the San Francisco Giants, have opposed the move based on MLB territorial rights, and MLB has refused to allow the move. The city initially filed a suit against MLB in June 2013 in the U.S. District Court for the Northern District of California. Most of the claims were dismissed by U.S. District Judge Ronald M. Whyte in October of that year. However, Judge Whyte allowed the city to move forward with a claim that MLB illegally blocked a land agreement between San Jose and the A s. In a 12-page opinion, Judge Kozinski agreed with the lower court s decision to dismiss the city s suit against MLB. Kozinski and the panel held that MLB s exemption from antitrust suits, which was upheld in Flood v. Kuhn, precluded the city s attempts to seek relief under antitrust laws. The city of San Jose steps up to the plate to challenge the baseball industry's 92-year old exemption from the antitrust laws, he wrote, in reference to the famous children s poem Casey at the Bat. Like Casey, San Jose has struck out here, Kozinski added. The only recourse left for the city is to appeal to the Supreme Court. Philip L. Gregory, an attorney for the city, indicated this was a possibility. The Ninth Circuit appears here to be inviting the Supreme Court to take up this issue," Gregory told the San Francisco Chronicle. San Jose Mayor Sam Liccardo added that the city has nothing but upside to continue to pursue this to the Supreme Court. The city was represented by Gregory, Joseph W. Cotchett, Frank C. Damrell, Jr., Anne Marie Murphy, and Camilo Artiga-Purcell of Cotchett, Pitre, and McCarthy, LLP of Burlingame, California, as well as Richard Doyle and Nora Frimann of the San Jose City Attorney s Office. Incoming MLB Commissioner Rob Manfred hoped the Circuit Court s decision would end the suit and that Oakland could seek a new stadium. The real issue for us going forward is that Oakland needs a new ballpark, and we need to get focused on making sure that we get that done as fast as we can. MLB was represented by John W. Keker, Paula L. Blizzard, R. Adam Lauridsen, and Thomas E. Gorman of Keker & Van Nest LLP in San Francisco, and Bradley I. Ruskin of Proskauer Rose LLP, New York, and Scott P. Cooper, Sarah Kroll-Rosenbaum, Jennifer L. Roche, and Shawn S. Ledingham, Jr. of Proskauer Rose LLP in Los Angeles. -- Deniz Koray 4

5 National Hockey League Suit Filed Against Lou Lamoriello for Laughing at Fired Employees On January 20, 2015, Richard Krezwick, former president of the New Jersey Devils Arena Entertainment (DAE), filed suit against Lou Lamoriello, president and general manager of the New Jersey Devils, in the United States District Court District of New Jersey, for tortuous interference with a prospective contract. Krezwick s compliant claims that but for Lamoriello s malicious misconduct, Krezwick would have received at least a two-year contract upon the sale of the DAE organization. The complaint claims that Lamoriello harbored ill will towards former Prudential Center president Krezwick because he had taken over control of the team s business operations and responsibilities that had been Lamoriello s until Krezwick s hiring. The complaint lays out a series of contentious events and examples of behind the scenes politicking on Lamoriello s part, including walking out of a meeting and refusing to return as long as Krezwick was present. Additionally, when the team was being sold Lamoriello aggressively urged the new owners not to employ Krezwick, impugning his professional competency and character and casting aspirations on his integrity. Krezwick claims he was treated as a nemesis throughout his tenure, and was only informed of his dismissal when another individual was introduced with his title during a staff meeting that included 100 employees. Krezwick is seeking compensatory damages of at least $2,329, less mitigation, pre-judgment and post-judgment interest, costs and expenses incurred through the case, and the granting of such further relief as the court deems just and proper. Furthermore, the plaintiff seeks the enjoiner and permanent restraint of Lamoriello from impugning Krezwick s professional reputation and interfering in present and prospective contractual relationships. At one point, according to NJ.com, Lamoriello physically positioned himself at the base of the employee elevator so that he could watch (former senior managers who had been aligned with Krezwick) pass by with their boxes as to take credit for their firing. Krezwick is represented by Robert Mellman of the Law Offices of Robert B. Mellman. The New Jersey Devils general counsel is Brad Shron. A date has not yet been set for hearing. -- Breard Snellings 5

6 National Collegiate Athletic Association ESPN Sues Notre Dame over Public Access Records Regarding Athletes On January 15, 2015, television network ESPN sued Notre Dame University in St. Joseph County Superior Court for the university s denial of multiple public access requests made by ESPN regarding athletes. The lawsuit does not say what incident reports are being sought or which athletes they pertain to. On September 16, 2014, ESPN reporter Paula Lavigne submitted a public records report to the Notre Dame Security Police Department (NDSPD) related to student-athletes. The NDSPD denied that request, claiming it was not subject to Indiana Public Access laws because it was not a public law enforcement agency. State Public Access Counselor Luke Britt issued an advisory opinion on October 31, 2014 in which he stated that the NDSPD should be subject to public access laws because it enforces the Indiana criminal code and has the power to police the surrounding community as well. Although previous opinions from previous Public Access Counselors stated otherwise, Britt wrote that it should be subject to the law although his opinion was not compulsory. Lavigne then made requests on November 4, and November 20, 2014 to the NDSPD, both of which were denied. Britt issued another opinion on January 5, 2015, which stated that Lavigne s request from November 4 likely contained investigatory record information that could legally be withheld, but her second request was for a daily log, which he stated must be turned over or the NDSPD would be in violation of the Access to Public Records Act. As a result of the repeated denials, ESPN filed its lawsuit in mid-january. Our practices are in full accord with the Access to Public Records Act and consistent with multiple advisory opinions that have addressed this matter over the past 12 years, Notre Dame spokesman Dennis Brown said in a statement on January 21, We are confident that our position will be affirmed in court. There was no statement from ESPN, but Britt wrote in his opinion on January 5, The police force is established by the governing body of a private institution, but their powers come from the state of Indiana. I am not comfortable saying an organization can hide behind the cloak of secrecy when they have the power to arrest and create criminal records and exercise the state's police powers. No date has been set for hearing. -- Spencer Low 6

7 National Basketball League Spurs Forward Tim Duncan Sues Financial Advisor for $1M On January 29, 2015, San Antonio Spurs forward Tim Duncan sued Atlanta financial advisor and winery magnate Charles Banks in Texas District Court in San Antonio for breaching his fiduciary duty to Duncan as a financial advisor and investment manager. The complaint asserts that Banks withheld 20 percent of Duncan s return on the loan to the sports merchandising company for which Banks served as chairman. Duncan also claims that Banks forged Duncan s signature on a bank loan and encouraged him to invest in a series of wineries and funds that benefited Banks alone. Shortly after the two met in 1998, Duncan began to regard Banks, then a financial advisor for professional athletes at CSI Capital Management, as a personal and financial advisor. Banks eventually convinced Duncan to invest $7.5 million in his fledgling sports merchandising company, Gameday Entertainment, LLC. Although the written loan agreement provided for no deductions, Banks allegedly directed Gameday to reserve 20 percent of the return owed to Duncan as a fee for Banks. The complaint contends that Banks never informed Duncan he was withholding the 20 percent and that Duncan is entitled to all funds Banks siphoned from his return payments. Additionally, Comerica Bank claims that it possesses a guaranty signed by Duncan assuring the bank that Gameday would repay more than $6 million in loans, as well as a subordination and intercreditor agreement indicating that Duncan s Gameday loan agreement was subordinate to the company s debt to Comerica. The complaint asserts that both signatures are forgeries. Duncan lastly claims that Banks cajoled him into investing in several wineries and investment funds. Banks, per the complaint, has reaped substantial financial benefits from these investments while Duncan has earned negligible returns. The complaint alleges that Banks breached his fiduciary duty to Duncan as a trusted financial advisor and seeks at least $1 million in compensatory damages, as well as a possible injunction against the enforcement of the forged guaranty and subordination agreements. Banks exploited my good intentions and our relationship for his personal gain and my substantial loss, Duncan said in a statement. Duncan is represented by Richard C. Danysh, J. Tullos Wells, and Michael D. Bernard of San Antonio firm Bracewell & Giuliani LLP. It's completely false, Banks said. He has been paid. It's been a good investment for him. He's made over $2 million since October It is not yet known who will represent Banks in this matter. -- Fritz Metzinger 7

8 Other News Photographer Sues Nike Over Jumpman Logo On January 23, 2015, photographer Jacobus Rentmeester sued Nike, Inc. in the U.S. District Court for the District of Oregon in Portland for copyright infringement. Rentmeester claims that Nike used a photograph he had taken of basketball legend Michael Jordan without permission to create the Jordan Brand Jumpman logo. In 1984, Rentmeester staged and shot the photograph of Jordan for Life Magazine for a special section dedicated to the upcoming Olympic Games. As a freelancer, Rentmeester retained the copyright of the photograph but allowed Nike to use two transparencies of it for $50. Rentmeester also says that he nearly filed suit against Nike after they copied the image of Jordan and placed it on their billboards, but was then paid $15,000 by the Oregon company to have limited usage of the image for the next two years. In his complaint, Rentmeester alleges that Nike continued its use of the photograph after this time period and used it as inspiration for the Jumpman logo of Jordan s silhouette. Rentmeester registered his photo with the U.S. Copyright Office in December 2014 and is now seeking unspecified monetary damages and an injunction against Nike from using the image. Mr. Rentmeester created the pose, the lawsuit says. [He was] inspired by a ballet technique known as a 'grand jete,' a long horizontal jump during which a dancer performs splits in mid-air. The pose, while conceived to make it appear that Mr. Jordan was in the process of a dunk, was not reflective of Mr. Jordan's natural jump or dunking style. Rentmeester is represented by attorneys Eric B. Fastiff, Dean M. Harvey, and Katherine C. Lubin of the San Francisco firm Lieff Cabraser Heimann & Bernstein LLP, along with Cody Hoesly of the Portland-based firm Larkins Vacura LLP. spokesperson Greg Rossiter said that the company will not be issuing any comment on the matter. Nike -- Ruben Garcia 8

9 Two Former WWE Wrestlers File Suit Over Concussions On January 16, 2015, Evan Singleton and Vito LoGrasso, two former professional wrestlers, filed suit against World Wrestling Entertainment (WWE) in the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia seeking to be compensated for injuries they sustained during and after their wrestling careers. In the suit, they allege that WWE has directly caused long term injuries to current and former wrestlers both through their acknowledged promotion of violence, and negligence on their part to prevent potential injuries during performances. One of the main injuries caused by the WWE in neglecting their duties to protect fighters, according to the lawsuit, is brain injuries. LoGrasso claims to suffer from serious neurological injury including memory loss, depression, and anxiety; Singleton has an array of serious symptoms of mental illness ranging from tremors and convulsions to an impaired ability to reason. Both wrestlers suffer from memory loss, which the complaint alleges could have been caused by any number of instances while performing, including the highly dangerous moves they perform on other wrestlers, using dangerous props to attack other fighters, and even the inherently dangerous matches such as cage matches in which they participate. In the lawsuit, the former wrestlers state that it is not simply that the WWE has failed to protect their wrestlers from these hazardous conditions, but that they deliberately create and glorify the violence of the matches in order to create more excitement for the audience and drive up their own profits. The former wrestlers seek relief in the form of a declaration of liability from the WWE, injunctive relief, medical monitoring, and financial compensation for the long-term chronic injuries, financial losses, expenses, and intangible losses suffered as a result of the WWE s willful, wanton, reckless, and grossly negligent conduct. Jerry McDevitt, representing the WWE in this matter, stated that the WWE has never concealed any known medical information from its wrestlers. WWE was well ahead of sports organizations in implementing concussion management procedures and policies as a precautionary measure as the science and research on this issue emerged, said McDevitt of the firm K&L Gates LLP. Konstantine Kyros, the Hingham, Massachusetts-based attorney for the wrestlers in the case, likened this lawsuit to another professional organization s litigation, stating The NFL lawsuit articulates a lot of issues that are present in the WWE, namely ignorance and the downplaying of risks of repetitive concussions. The plaintiffs have demanded a jury trial on all issues that are deemed to be worthy of such trial. -- Tate Martin 9

10 3rd Annual Sports Lawyers Association Law Student Writing Competition Deadline Quickly Approaching Theme: Current Issues in Sports Law Deadline for submission: March 2, 2015 Submit papers to: Winning Authors to Receive: $5,000 will be awarded for first place selection and submission will be published in the Sports Lawyers Journal (subject to SLA's editorial standards) $3,000 awarded for second place selection $2,000 awarded for third place selection All three finalists will receive a complimentary registration for the 2015 SLA Annual Meeting in Baltimore, May 14-16, at the Baltimore Marriott Waterfront (recipients recognized and order of awards presented at the SLA Annual Meeting in Baltimore). Winners need not be present at the announcement. Winners are solely responsible for taxes on their prize winnings and must provide a social security number for tax reporting purposes. For more information, click here 10

11 The Sports Lawyers Association Officers President: Glenn M. Wong Secretary: Vered Yakovee Treasurer: Ash Narayan Director of Publications: Gabe Feldman President Elect: Matthew J. Mitten Staff Executive Director: Richard A. Guggolz Deputy Executive Director: William M. Drohan, CAE Program Manager: Melissa Pomerene Administrative Assistant: Colleen MacCutcheon Board of Directors For a full list and biographies of all board members, please visit: You can follow the Sports Lawyers Association on: Facebook Twitter LinkedIn 11

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