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I think, by now, most people have heard about Colin Kaepernick’s protest, which he manifested by his refusal to stand for the national anthem before the 49ers’ August 26 preseason game against the Green Bay Packers.  Kaepernick explained his actions as follows: 

I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.

Many were offended by his decision; others have applauded it.  What is it that makes people (particularly white people) so upset about someone choosing not to stand for the national anthem? I thought the anthem and flag were supposed to stand for freedom, which includes the freedom to dissent and disagree. It fascinates me that one football player could get this much press for deciding not to do something he was under no obligation to do (as his employer made clear). But it certainly explains why he did it. If nothing else, Colin Kaepernick reminded of us both of our ability…

There has been a lot of debate online about Ryan Lochte (#LochteGate or #LochMess) and whether he and his swimming friends were actually robbed in Rio after their Olympic events had finished. See here, here, and here for some of the commentary. 

Lawyer Dan Eaton opines that Ryan Lochte is unlikely to go to jail, even if he lied.

While I agree that jail time is unlikely based on the facts available at this time, Lochte’s endorsements could be at risk. Earlier this year, I blogged about morals clauses in endorsement contracts. If Lochte’s contracts include morals clauses (as many do), and if he lied about the robbery, it is possible that he may lose some lucrative endorsements deals. It is still not clear what the motive for lying was (if they did lie). I assume we will learn more in the next few days.   

Update: Speedo and Ralph Lauren dropped (or are not renewing) sponsorship of Ryan Lochte. Spokespeople for both companies cited Lochte’s statements about the occurrence in Rio. My wife let me know that some are now calling Lochte “Swim Shaddy.”

As loyal readers may have noticed, I am excited about the upcoming Summer Olympic Games in Rio.

While the Olympics is sure to be heavily watched, the Games are not that lucrative for many of the participants. The average Olympian supposedly only makes around $20,000 a year from sponsorships and has significant travel, medical, and coaching costs.

On the GoFundMe website alone, there are over 140 campaigns in their “Athletes Competing in Rio” category. Collectively, the campaigns have raised over $680,000.

Here are a few stories about Olympic athletes using crowdfunding. (Inc., Forbes, USA Today).

For those who will be attending the SEALS Conference and are interested in crowdfunding, my co-blogger Joan Heminway is moderating a discussion group on “The Legal Aspects of Small Business Finance in the Crowdfunding Era” on Tuesday, August 9 from 9am-12pm, which promises to be interesting. Most of the Olympic athletes appear to be using gift-based crowdfunding, but in the SEALS discussion group, I will present on a proposal for firms to use equity crowdfunding in connection with building athletic communities that could include Olympic athletes.

Today a number of athletes will compete in various track & field events in the Olympic Trials.

One of those events is the qualifying round of the 800m, and one of the 800m runners, Boris Berian, was recently caught in a legal dispute with his old shoe sponsor (Nike) because of his attempt to sign with a new shoe sponsor (New Balance). The story of the dispute even made The Wall Street Journal. 

You can read the details of the case here, here, and here, but I will attempt to summarize briefly.

As I understand the timeline from the reporting and legal filings:

  • After the 2012 season, Boris dropped out of his division II college (Adams State) to pursue pro-running.
  • For a couple of years, Boris struggled to find world class success, and he worked at McDonald’s.
  • Boris didn’t have a real breakthrough until mid-2015, when he ran the fastest time for an American that year.
  • On June 17, 2015, shortly after his breakthrough race, Boris signed a short-term exclusive sponsorship deal with Nike (chosen from among many suitors).
  • On December 31, 2015, the Nike-Boris contract expired, though the contract gave Nike the right to match any competitor’s bona fide offer within

…

Last week the SEC announced insider trading charges against former-Dean Foods Company board member Thomas C. Davis and professional sports gambler, William “Billy” Walters of Las Vegas.  Involved in the case is professional golfer, Phil Mickelson, named as a relief defendant in the case. Davis owed money to Walters and began passing along confidential information first about Dean Foods, and later about Darden Restaurants.  Walters passed along his insider knowledge of Dean Foods to Mickelson, who also owed Walters money.  

For those unfamiliar, 

“the SEC may seek disgorgement from “nominal” or “relief” defendants who are not themselves accused of wrongdoing in a securities enforcement action where those persons or entities (1) have received ill-gotten funds, and (2) do not have a legitimate claim to those funds.”  S.E.C. v. DCI Telecommunications, Inc., 122 F. Supp. 2d 495, 502 (S.D.N.Y. 2000).
 

The SEC issued a statement on Friday detailing the alleged wrong doing by all parties and announcing that “Mickelson will repay the money he made from his trading in Dean Foods because he should not be allowed to profit from Walters’s illegal conduct.”  

As most insider trading cases are, the facts

…

I usually look forward to the Olympics for months, if not years, before they start.

This year, however, all of the doping news, and buzz around Rule 40 has left me less enthusiastic.

For now, I am going to leave the doping news to one side, and focus on Rule 40.

From July 27 to August 24, 2016, Rule 40, prohibits Non-Olympic Commercial Partners from using the word “Olympics” and (depending on context) “Olympic-related terms,” including:

  • 2016
  • Rio/Rio de Janeiro
  • Gold
  • Silver
  • Bronze
  • Medal
  • Effort
  • Performance
  • Challenge
  • Summer
  • Games
  • Sponsors
  • Victory
  • Olympian

Now, I understand why the International Olympic Committee (“IOC”) and the U.S. Olympic Committee (“USOC”) might want these restrictions (given the large sums of money official sponsors pay), and from what I understand from experts in this specific area, the IOC & USOC may have a defensible legal stance.

This, however, seems one of the many areas where (1) the law has not kept up with advances in technology, namely social media, and (2) even if the IOC & USOC are right on the law, they may lose in the court of public opinion. Here, it seems, there is a good bit of difference between a company running a detailed TV-ad noting that it sponsors…

If you follow sports related news, you know that tennis star Maria Sharapova recently tested positive for a banned performance enhancing drug called Meldonium. Details here and here and here.  According to one source, over 60 athletes have tested positive for Meldonium this year; the drug was just recently added the banned substances list. Sharapova claims she was unaware that she was taking a banned substance. 

A number of Sharapova’s biggest sponsors have suspended or ended their relationship with her and/or delayed planned events. These sponsors include, Nike, Porsche, and TAG Heuer. Head and Evian appear to be sticking with her. Head chairman Johan Eliasch claimed that Sharapova simply made an “honest mistake.”

The companies that have cut ties with Sharapova have likely been able to do so through what is often called a morals clause or a morality clause in the endorsement contract. Some background on morals clauses can be found here and here and here. And here is an interesting contract law question from Eric Goldman that involves morals clauses. 

Following is a guest post from by J. Scott Colesanti and Madeline Rasmussen. Scott is a former contributing editor to this Blog, and I am happy to share the post post below.  This is sports and labor law post, to be sure, but employment issues, especially big time sports-related ones, are business law, too.  

Why NFL Players Might Want the NFL to Win Its Appeal of Brady v. NFL

by J. Scott Colesanti and Madeline Rasmussen

It feels like weeks since we saw a meaningful NFL contest (well, actually it has been a little over a week).  But it is nonetheless still weeks until the Brady appeal before the Second Circuit in March.  Should the vacatur of the superstar’s 4-game suspension in “Deflategate” be upheld, alternative means of both implementing and reviewing NFL punishment seem likely, alternatives none too comforting for future disciplined football players.

I have been on the road a good bit over the past few months. Like Stephen Bainbridge, I greatly prefer driving to flying. On these road trips, I have noticed an increasing number of billboard advertisements for universities (my university included).

When I was in high school, I cannot remember any respectable 4-year universities or graduate schools using billboards to advertise. Maybe they did, and I just did not notice; but I do remember for-profit and community colleges using them. Today, however, I have seen billboard advertisements for schools ranked as high as the top-25 universities in the country, not to mention many solid public (including state flagship) and private universities. The Ivy League schools and their chief competitors seem to still be avoiding billboards, though even some them resort to billboards for their executive programs. (The for-profit schools still use billboards, but have also moved on to things like buying stadium naming rights).

I do wonder what accounts for the shift towards university billboard advertising, if there has been a shift. I also wonder about the costs and benefits of billboard advertising for universities. And I wonder about the comparative costs and benefits of alternative marketing.

Super…

Sports have had some well-publicized legal and ethical problems over the past few months.

I hope to look into these scandals more deeply in coming months, but it seems unchecked power and/or loose oversight are at least part of the problem.

As with many of the recent business scandals, I wonder if punishments need to be more severe to curb these problems, or if there is another, more effective, solution waiting to be uncovered.