Friday, June 13, 2014



Yesterday I had the honor of conducting a one-on-one interview with New England Patriots president and New England Revolution owner Jonathan Kraft for over one hour at the State of Innovation, held at the Westin Boston Waterfront Hotel.

There were several hundred people in attendance, including the intrepid Warren K. Zola, who kindly took some photos and also had great insight for the discussion.


Jonathan and I discussed a wide-range of legal and business topics, including how technology will impact broadcasting for the Patriots and NFL, lessons for the NFL from the Donald Sterling story and the pioneering work by Kraft Group/Patriots VP Jessica Gelman on analytics.

A video of the panel will hopefully be made available soon, and this article on Bostino is now available.  Here is an excerpt:

Kraft cited one of the team's most famous examples of Gillette innovation: Stadium Wi-Fi. He relayed the point by using an experience that he had with Mark Cuban, who he noted was a friend, but had disagreed with him on the possibility of Wi-Fi for 70,000 people at a stadium. The two had discussed it "at the MIT Sports Analytics Conference half a dozen years ago."

"At the time," Kraft explained, "he basically just looked at  me and said 'Jonathan you're crazy, and you're not going to be able to do it, it doesn't exist." Yet the Patriots have managed to accomplish it with years to spare. Now fans can use the official Patriots app to get a more complete fan experience while attending the game.

New insights on NBA legal strategy on Donald Sterling

Through reporting and analysis, I have a new Sports Illustrated | SI.com article that details how the NBA will likely respond to Donald Sterling's latest moves. Hope you can check it out.

New Trademark Infringement Suit Filed by the Big Four Sports Leagues & Various Major Colleges

The NBA, NFL, NHL, and MLB, along with Louisiana State University and the Collegiate Licensing Company (a trademark licensing entity representing 13 major universities) all jointly filed a potentially significant new trademark infringement lawsuit in federal court in the Northern District of Illinois on Wednesday.  The complaint (available here) alleges that various unnamed foreign companies are infringing the plaintiffs' trademarks by selling unauthorized products over the Internet.

In addition to requesting that the court enjoin the foreign companies from engaging in further trademark infringement, the complaint also requests another interesting form of relief: control of the defendants' offending websites.  Specifically, the leagues and universities are asking the court to issue an order instructing the various Internet domain name registration companies to assign control the offending websites to the plaintiffs, and to further order the major Internet search firms to cease advertising and linking to websites affiliated with the foreign defendants in the future.

The leagues and colleges' request for the court to order that the offending URLs be transferred from the defendants to the plaintiffs is not unprecedented.  Miami Heat forward Chris Bosh received this very type of relief from a federal court in California in a 2009 suit over unauthorized domain name registrations.  If the leagues and colleges can similarly prevail, this legal strategy could provide a valuable precedent for trademark holders to attack infringement by foreign firms in the future. 

Pro Sports Teams and the Fair Labor Standards Act

The professional sports industry has recently seen a wave of minimum wage and overtime lawsuits filed under the Fair Labor Standards Act (FLSA).  Michael McCann previously discussed one of these cases, Senne v. Office of the Commissioner of Baseball, a class action suit alleging that minor league baseball players are effectively paid below the minimum wage when the total number of hours most players work per year are taken into account.  Similarly, various groups of NFL cheerleaders have filed lawsuits against their teams (including theBuffalo Bills, Cincinnati Bengals, New York Jets, Oakland Raiders, and most recently, the Tampa Bay Buccaneers), also alleging that they are effectively paid less than the federally guaranteed minimum wage of $7.25 per hour.  Meanwhile, a separate class action lawsuit was filed last year against MLB on behalf of unpaid volunteers at the annual FanFest convention held in conjunction with the All-Star Game each year.  Fear of a similar lawsuit reportedly motivated the NFL to begin paying what had in previous years been unpaid volunteers at this year's Super Bowl.

One legal issue that will need to be resolved in these lawsuits is whether the professional sports industry is exempt from the FLSA's minimum wage and maximum hour requirements under Section 213(a)(3), a provision covering seasonal amusement and recreational establishments.  Under the exception, any business providing amusement or recreational services to the public may pay its employees a sub-minimum wage (without overtime) should one of the following two conditions exist: either (a) the business does not operate for more than seven months in any calendar year, or (b) the business's receipts from its six lowest revenue months in the previous year were less than 33 1/3% of its receipts in its six highest revenue months (e.g., the business's receipts from April-September were at least three times greater than its receipts from October-March).