Class of 3/8 (forgot there is Spring Break this week)

We will discuss the following:

- Text , Chp. 15 (pg. 711-775)
- The inner workings of the Clownfest that I attended this past Friday Indy otherwise known as the NFL Contract Advisors meeting
- Did my client really drop 100 grand at the wedding of his that I attended Saturday night in DC (and more importantly is at least part of it tax deductible?)
- The cost and value of NASCAR team sponsorships .... see this link
- In-class case study on your new Speed Racer client

Scheduled Speaker to be rescheduled at a later time ... he decided to go to Florida instead. 

NFL favors blood-testing players for HGH

As we discussed in class last week look what issue pops up:  click the link.

Your Client Has ADD? Make sure he doesn't flunk the drug test...

From The NFLPA today

The following information is needed in order for a player to be granted a Therapeutic Use Exemption (TUE) for the use of a stimulant to treat ADD in the NFL (this includes players at the Combine).

Letter from prescribing physician which includes:

Diagnosis
Medication
Criteria for diagnosis
Reports of testing used to make diagnosis

They must have all of these elements to be granted a TUE. They don't have to bring it to the Combine but the sooner that they send all of this information to Dr. Brown and Dr. Lombardo, this will be taken care of.

Memo I received today on status of NFL CBA negotiations

To: NFL Players and Contract Advisors
From: DeMaurice Smith
Date: February 23, 2010
Subject: CBA Negotiations/Restricted Free Agency

As we quickly approach the beginning of the uncapped year, I wanted to take this opportunity to update you on the NFLPA’s efforts to reach agreement on an extension of the CBA before the beginning of the uncapped year on March 5, 2010. It is our view that obtaining an extension to the CBA prior to the uncapped year is in the best interest of both the players and the owners. However, the terms of any CBA extension must allow for players to get their fair share of NFL revenues while at the same time address the owner’s issues in such a way as to allow them to continue to grow the game of football. All of the NFLPA’s proposals have been crafted with that in mind. The Player Representatives have also been advised of the NFL’s request that players take a pay cut that would move players back to the 1980’s in terms of their share of NFL revenues.

CBA Bargaining There have been 12 general bargaining sessions with the NFL discussing issues relating to the proposed terms of a new CBA. Comprehensive written proposals and counter proposals have been presented to meaningfully address issues such as the overall player cost/free agency system, revenue sharing, rookie salaries, forfeiture clauses in player contracts, and off-season/pre-season work rules. In addition to NFLPA staff and outside counsel, NFLPA player leadership has been present at all of the sessions. Players attending at least one session include NFLPA President Kevin Mawae, Mark Bruener, Kevin Carter, Tony Richardson, Domonique Foxworth, Chester Pitts, Sean O’Hara, Jay Feely, Pete Kendall and Donovin Darius. These players have contributed valuable insight and perspective in support of NFLPA positions at the bargaining table. On the NFL side, owner representatives in attendance have included John Mara (New York Giants), Mark Murphy (Green Bay Packers), Robert Kraft (New England Patriots), and Ozzie Newsome (Baltimore Ravens). The most recent session was held on February 6, 2010, just prior the Super Bowl, and was attended by the NFL Management Council’s Executive Committee, which is comprised of 10 owners, and chaired by Carolina Panthers owner Jerry Richardson. In addition to the general bargaining sessions, six sub-committees were created to address very specific areas of the CBA. Those sub-committees are as follows: Benefits, Drug Policies, Grievance Procedures, Working Conditions, Injury Data and Licensing/Intellectual Property Rights. The NFLPA has prepared detailed written proposals for each of the areas addressed by these sub-committees and each committee has held no less than three meetings to discuss their respective proposals. In total, we have held more than 30 overall bargaining sessions with the NFL in the past six months. And while we have made progress in some areas, we continue to have significant disagreement with the NFL over their desire to have players take an 18% reduction in their share of revenues given the NFL’s failure to provide meaningful financial data to support the assertion that their costs have increased significantly since the capped system was put into place in 1993. Their demand that the players take such an historic pay cut is even more disturbing given the NFL’s continuing economic growth despite the worst recession in recent history. The NFL has made it clear that the league and its clubs remain profitable. There has not been any statement, affirmative or suggested, by the NFL that any team is losing money. Moreover, the league has rejected any offer to discuss their profit margins, team profitability or any of their teams’ individual financial statements. Players have always been willing to create incentives for NFL owners to develop new revenue streams for their clubs. The G-3 program contained in the existing CBA which provides salary cap credits for new stadiums provides a good example of our commitment to this philosophy. Our current proposal would allow NFL clubs to obtain substantially increased deductions for costs incurred to generate new revenue streams. Another general bargaining session is scheduled for Thursday, February 25, 2010, at the NFL Combine in Indianapolis.

Uncapped Year While we are doing all that we can to reach a fair agreement with the NFL before the start of the 2010 league year, it appears likely that no new CBA will be reached and the 2010 season will be uncapped. For some players this means that they will be Restricted Free Agents instead of Unrestricted Free Agents since unrestricted free agency in the uncapped year increases from four (4) to six (6) Accrued Seasons. We are sensitive to the impact that this change in the free agency rules will have on these players. Because of this, our most recent proposal to the NFL contains an offer to continue the current capped system for an additional year which would allow the parties ample time to complete work on a long-term CBA.

The NFLPA just recently won a Special Master decision against the NFL and its clubs which will force the high revenue clubs to share millions of additional dollars with the low revenue, small market clubs during the 2010 season. The decision to pursue this action was based upon our belief that we had to make more money available to sign players in the uncapped year.

Remember also that the uncapped year provides just that -- no cap or limit on the amount of money a club may spend on player salaries. The last time there was an uncapped season in the NFL was in 1993, and in that season clubs spent collectively over 70% of league revenue on player costs. While we cannot predict what will happen in 2010, we suspect that it will be dependent on the individual player and team. Given the projected increases in NFL revenues for 2010, more money should be available for player salaries than ever before. In addition, keep in mind that each NFL club will be saving approximately $10 million in benefit costs as a result of their not having to fund certain benefits in the uncapped year. That money can and should be used for player salaries. For those players negotiating new contracts in 2010, please keep the NFLPA updated on the status of your negotiations as it will allow us to be informed of the trends in the market for player services. With that information, we can then help all players maximize their ability to get the best contracts possible. In the meantime, the NFLPA will continue its efforts to reach agreement with the league on a new CBA.

Class For 2/15

There will be a heavy emphasis on the reading (Chp 14, pgs 649-711...Chp 15, pgs 711-775). Make sure that your read the assigned text. We will also discuss Article VIII of the NFL Collective Bargaining Agreement ... the link to the CBA is here (scroll thru to Article VIII).

Free Agency: If You Don't Play The Game Right You May Become "Free" From Your Client

New on Del Duca Sports Blog...click here. Class stuff up Thursday.

Exercises for Monday Class

1. You represent a company that is the title sponsor for a sporting event. What protection will you have in the contract with the venue so that your client's marketing dollars will be well spent and/or protected?

2. Your client Del Duca University is about to hire Dangerous Dan The Felony Man as its new head coach (he's a really good coach) -- how do you draft the contract on behalf of your client the school so that the school is protected from future 'acts' by Dan? You represent Dan -- how can you maximize what he can walk away with if he is fired?

3. You're asked by the world's best cricket player to negotiate his new contract. You don't know poop about him or cricket. What do you do? (saying the tired phrase "Show me the Money!" is not an option)

4. In the ongoing CBA talks between the NFL Players Association and management the players want more contracts to be guranteed and the owners do not. Develop a position for both sides supporting their views. What's a compromise?

5. Your client Michael Vick decides that he wants to start a kennel to house dogs overnight ('Mike's Happy Home for Hounds'). What are the issues that must be addressed both in terms of formation of the new business and his future income as it relates to NFL contracts and endorsement contracts? 

All of the above will be discussed in class by the splitting-off of groups. Be prepared to discuss all.

Termination Clause

We will discuss the below in class:

7. Termination. If REPRESENTATIVE or PLAYER shall fail to observe or perform any of the obligations created in this Agreement, the non-defaulting party shall have the right to elect to terminate the Agreement if such default is not cured within thirty (30) days after the non-defaulting party shall have given the defaulting party written notice specifying such default. Notice shall be per the provisions of Paragraph Nine (9) herein.
 In terms of an Athletic Contract or Marketing Services contract governed by the terms of Paragraph Five (5) herein if termination occurs prior to the completion of the negotiations for the particular contract, REPRESENTATIVE shall be entitled to compensation equal to the reasonable value of the services performed in the negotiation of such contract. If termination occurs after PLAYER has signed an Athletic Contract and/or Marketing Services contract negotiated by REPRESENTATIVE, the REPRESENTATIVE shall be entitled to his Fee for negotiation of such contract.

In the event of termination, if PLAYER (or his new representative) is subsequently able to renegotiate any Athletic Contract or Marketing Services contract previously negotiated by REPRESENTATIVE prior to expiration of said contract, REPRESENTATIVE shall still be entitled to the Fee he would have been paid pursuant to Paragraph Five (5) herein if the Athletic Contract and/or Marketing Services contract had not been renegotiated.

Comparing U.S. Sports Contracts to European Sports Contracts

Two good articles to look at for this ... here and here. Take a look at them for Monday's upcoming class.

Class Monday 2/8 Is Cancelled

The assignment on the Syllabus will all be pushed back one week.
For 2/15 read Text pp. 111-149 (be sure to review the cases in that reading). Also review the below contract -- we will discuss it next week for formation and interpretation issues (spacing is a bit screwed up). Check back on this blog later in the week for more. Presently I have no power and 26 inches of snow in my yard so updating is a bit slow.

AGREEMENT

THIS AGREEMENT, made and to be effective the 15^th day of September, 20__ by and between _________________(“Company”) and __________________company (“TP”).

WHEREAS, TP has previously acquired the license to organize, operate and promote the _______________________event that is held annually in ____________ (the “Event” or “Events”); 

WHEREAS, Company desires to promote its name and products during the 2003 Event and the 2004 Event); and

WHEREAS, TP has agreed, as hereinafter noted in this Agreement, to provide various marketing and promotional services to Company so that Company may promote its name and products in regard to the 2003 and 2004 Events.

NOW, THEREFORE, both Company and TP, through their designated authorized representatives, each intending to be legally bound, do hereby agree as follows:

1.  Duties.  For the 2003 and 2004 Events (unless otherwise noted hereinafter), TP will             provide the following services for the Company: 

            (a) assistance with the development and organization of a public area site at the                                  Event where a Company vehicle can be displayed, the location of the site to be mutually agreed upon by the Company and TP; 

            (b) one advertising page in the official tournament program of the Event, TP                              providing Company with development and design services in the compiling of the ad; 

                        (c) accessibility to one loge box at __ with six (6) seats, with six (6)                                VIP passes given for each day of the Event, and assistance in making various arrangements for the Company’s guest in regard to ticket distributions and related items; 

                        (d) assistance to Company representatives so they can hand out press information                               to journalists attending Event press conferences during the week of the Event; and  

                        (e) for Event year 2004, assistance in developing and formulating (within __-                   rules and regulations) ads of the Company’s name/logo (the “Mark”) to be displayed (within reasonable television camera range as is practically possible) at  the following locations: 

                                    (i) the net referee’s chair on centre court of the Event’s tennis hall (“Centre                                                                     Court”), 

                                    (ii) the service speed gun used at Centre Court for the Event, and 

                                    (iii) on one sixth of the lateral rotating banners used on Centre Court. 

In addition, other services can be mutually agreed upon between TP and Company. 

            2.  Representations. Incident to the services and responsibilities of TP as noted in             Paragraph One (1) herein, TP also makes the following good faith representations: 

                        (a) the Event will be organized and operated in a first class manner in accordance                               with previous events; and 

                        (b) the Event will receive both national and international television                                  coverage, the actual amount and schedule time of said coverage not being                                        guaranteed by TP. 

3.  Consideration. In consideration of the services to be provided by TP to Company,             Company agrees to transfer to MTP (or its designated assignee), full and unencumbered title to the following: 

                                    Event Year 2003           

                                    Event Year 2004           

Both Company and TP agree that TP is receiving the ________ incident to the services             that it is providing to Company per this Agreement, and that TP shall have full and absolute right to sell either or both of the _____ to a third party.  In addition, Company  agrees that it will ship either or both of the ____________ to the location requested by TP (including the location of TP’s designated assignee of the _____________, if applicable). 

Company agrees that it will be solely responsible and pay for all transportation costs (i.e.,             shipping charges, duty, etc.) relating to the shipping of the ____, and will exclusively handle all paperwork incident thereto.

4.  Promotional Acts of Company. Incident to the marketing and promotional objectives             of Company, it shall be allowed to refer to itself as a sponsor of the “__________ Event”, provided the prior written approval of TP is obtained. 

            5.  Termination; Default; Costs. 

    A.  Termination.  This Agreement can be terminated at any time as follows: 

(a) by mutual written agreement of Company and TP; or 

(b) by the election of a nondefaulting party per the provisions of Paragraph 5.B. herein; or 

(c) if TP no longer has the organizational rights to the Event.           

                 B.   Default.  Either Company or TP shall commit an act of default (“Default”) if                             Company or TP (the “Defaulting Party”) does not satisfy an obligation that it has per the terms of this Agreement and the Defaulting Party does not rectify said Default  within thirty (30) business days (the “Cure Period”) after written notice of said Default is provided by the nondefaulting party.

    C.             Legal Fees and Costs.  In the event a party to this Agreement defaults as to any of its             obligations, all legal fees and court costs of the other party should be paid by the defaulting party except for fees of the each party’s “in-house” legal counsel. 

6. Indemnity.  Unless otherwise noted in this Agreement, Both Company and TP agree to protect, indemnify, and save harmless the other and the other’s respective employees,  agents, consultants, and representatives, from and against any and all expenses, damages,  claims, suits, actions, judgments, and costs whatsoever, including attorney’s fees, arising   out of, or in any way connected with, any claim or action, including but not limited to,  personal injury, property damage, or death resulting from any act or omission pertaining to the obligations of either the Company or TP in regard to this Agreement.  

7.  Assignment.  Neither party to this Agreement shall be able to assign and/or sublicense any or all of its respective rights and obligations herein without prior written consent of the other, an authorized assignee being subject to all the rights and obligations noted in  this Agreement.  Notwithstanding the previous sentence, however, and as noted in  Paragraph Three (3) herein, TP shall have the exclusive authority to designate a third     party as the recipient of the consideration it receives per this Agreement. 

8.  Notice.  All notices and other communications from either party to the other hereunder             shall be given in writing at the respective address of the Company and TP as provided in  this Paragraph Eight (8), unless either party at any time or times designates another address for itself by notifying the other party thereof by express mail courier, in which case all notices to such party shall thereafter be given at its most recently so designated address.  Notice shall be deemed satisfied and effective on (a) the date of receipt when sent by express commercial courier, or (b) on the day of sending by facsimile machine if sent to the hereinafter noted facsimile numbers (or provided successor) and transmission is confirmed. 

Notice shall be sent to the following addresses: 

To Company:    

To TP:           

9.  Waiver.  The failure of TP and/or Company at any time to demand strict performance by the other of any of the terms, covenants or conditions set forth herein,  including the termination provisions of Paragraph Five (5) herein, shall not be construed as a continuing waiver of relinquishment thereof, and either party may, at any time,  demand strict and complete performance by the other of said terms, covenants and               conditions.

10.  Confidentiality.  All provisions of this Agreement shall be kept strictly confidential and not be released by either TP or Company for public knowledge, whether directly   or indirectly, unless to either party’s legal representative or as required by law. 

11.  Governing Law; Jurisdiction.  The interpretation, construction, validity and  performance of this Agreement shall be governed in all respects in accordance with the laws of ______. The parties hereto agree to submit to the exclusive jurisdiction of the courts of  ______.

12. ______Approval.  Notwithstanding any other provisions of this Agreement, the rights of the Company to promote its Mark as noted in this Agreement shall be subject to the rules and regulations of the _____, the relevant broadcasting authorities and the advertising standards and laws of the country of _______.

            13.  Miscellaneous.  

    A.  Except as otherwise provided herein, all costs and expenses incurred by both parties in      performing their particular activities shall be borne by said particular party. 

    B.  Nothing in this Agreement shall constitute or shall be constructed as constituting a            partnership or joint venture between Company and TP.

    C.  This Agreement contains the full and complete understanding of the parties hereto,            supersedes all prior agreements and understandings, whether written or oral.  This                  Agreement cannot be modified except by a written instrument signed by each party hereto. 

                  D.  Both Company and TP confirm and covenant that at the time of the signing of this Agreement they are each duly formed entities in existence in compliance with the laws of  their jurisdiction.  

    E. The descriptive headings of the paragraphs of this Agreement are inserted for                     convenience only and do not constitute a part of this Agreement. 

      F.  Provisions contained in the preamble (i.e. “WHEREAS”) shall be given full legal effect. 

    G. This Agreement may be executed in multiple counterparts, all documents to be                  considered one (1) legally binding document. 

     H. The Company shall have the first right to extend the term of this Agreement for the year     2005 if notice of said option exercise is given to TP in writing on or before the last day ____  of the 2004 Event.

Made the date first noted herein. 

            Company:                                                              

           

            ____________________                                          

             By:

            its ________________                                        

                                                        



            TP
           

             ____________________

             By: ______________, , its Director

New Article on Del Duca Sports Blog

Naming Rights Deals: Is Your Product Associated with a Sucky Team?