Three Point Shot - December 2011

by Proskauer Rose LLP

Are San Francisco Golfers Being Toads to California Frogs?

At least for the moment, public course golfers in San Francisco can croak a sigh of relief.  On November 29, District Court Judge Susan Illston refused to grant an injunction to limit water pumping on the Sharp Point golf course. The injunction was sought by the Center for Biological Diversity (which includes the Sierra Club and the National Parks Conservation Association) which charged the City of San Francisco with inadequate conservation plans for the red-legged frog and the San Francisco garter snake.

We checked and yes, there is indeed a San Francisco garter snake; it’s actually quite pretty.  However, though we admit that beauty is in the eye of the beholder, we found the red-legged frog to be a bit harder on the eyes.

Sharp Point is a unique golf course. It was designed in 1931 by Alister MacKenzie, an internationally renowned golf course architect who also designed Augusta National.  Unlike Augusta, however, Sharp Point is a public course and, accordingly, the San Francisco Public Golf Alliance moved to intervene in the suit in May 2011.

The plaintiffs argue that the golf course operations are ruining the habitat of the threatened frog and endangered snake.  The red-legged frog is protected under the federal Endangered Species Act and the plaintiffs claim that hundreds of frog egg sacs have been stranded and left to wither as a result of the San Francisco Recreation and Park Department draining storm water from the low-lying parts of Sharp Point. 

The injunction would have halted pumping from a pond where frogs deposit their eggs.  According to the defendants, without such pumping, 10 of the 18 holes on the golf course could flood during winter rains and, though the plaintiffs argued that the shutdown of the pumps would be partial and temporary, the City and the San Francisco Golf Alliance said an injunction might force the permanent closure of the course. 

City officials also contended that they had already taken steps to protect the frog and snake population by limiting mowing and golf cart use and by suspending golf play when threatened species are spotted nearby. The plaintiffs argued that the only such improvements were undertaken at nearby Mori Point and that the Sharp Point habitat is still threatened. 

In denying the preliminary injunction, Judge Illston noted that a temporary injunction is “extraordinary relief,” and found that there was undisputed evidence that the park’s red-legged frog population has increased over the past 20 years. Judge Illston further explained that the conservation groups did not show that irreparable harm would occur before the case is resolved at trial. Trial is scheduled for July 2012, which leaves us wondering who will prevail: The multi-colored garter snake and the red-legged frog, or the yellow-bagged, striped-sock duffer?

NCAA Bids Aloha to the Seattle Bowl Organizer

A decade ago, football fans could celebrate Christmas by watching the Aloha Bowl and the Oahu Bowl as the games were being played in the Aloha State, Hawaii. But when Aloha Sports Inc., the former sponsoring entity of both games, decided to move the events to the mainland, Mele Kalikimaka became Aloha Oe. The Aloha Bowl failed to gain the necessary certification from the National Collegiate Athletic Association (the “NCAA”) to continue the game in San Francisco. And after the Oahu Bowl succeeded in obtaining certification to move to rainy, frigid Seattle, it experienced financial difficulties that ultimately resulted in a lengthy legal battle between Aloha Sports and the NCAA.

College bowl games exist in a delicate ecosystem and, as its steward; the NCAA balances factors like each game's conference affiliation and broadcast partner to maximize profits and enjoyment for all constituents. Although the NCAA does not own any of the bowl games, the association is so involved in every aspect of the process that it has even published guidelines for the proper way to offer and accept bowl invitations. Before the scheduling of each game is finalized, the list of the year’s bowl games for the Division I Football Bowl Subdivision is crafted by the NCAA through a bowl certification process that takes into account everything from the level of involvement of the community hosting the bowl to the historical attendance figures associated with the game.

Despite the issues associated with the Oahu Bowl, Aloha Sports Inc. claimed to have negotiated the sale of the bowl game to a new sponsoring entity, Pro Sports Entertainment, in 2003. The deal was reported to be near completion but was contingent on the outcome of the NCAA’s upcoming certification process. After the NCAA released its list of bowl games for the coming year without including the Seattle Bowl, Aloha Sports was unable to execute the deal and soon after filed a federal antitrust suit against the NCAA in response. Aloha Sports claimed that (i) several requirements of the bowl certification process were anti-competitive because they hindered the profitability of conducting a bowl game, (ii) the NCAA was guilty of breach of contract because the association did not follow its own rules during the decertification process and (iii) the NCAA engaged in tortious interference by causing the sale of the bowl game to fail. Subsequently, Aloha Sports and the NCAA became embroiled in a seven-year legal battle that spanned both federal and state courts. As the case reached the Hawaii state court, Aloha Sports voluntarily dismissed the state antitrust and breach of contract claims. However, the tortious interference claim was still left to be decided. Finally, on September 19, 2011, a jury in the 1st Circuit Court for the State of Hawaii found in favor of the NCAA by dismissing the only remaining charge.

This legal victory has fortified the NCAA's position as the gatekeeper for the bowl system by ruling in favor of the NCAA's ability to license post-season football bowl games. The bottom line is that after a long period of time and great expense by all parties nothing has changed. If a sponsoring entity wants to continue conducting a bowl game or start a new game they will have to follow the rules set by the NCAA and they will have to do so successfully.

So, if you enjoyed the Famous Idaho Potato Bowl between Ohio and Utah State this year, and want to make sure that it is played again next year, you better hope that  the players had a fun and enriching experience in Boise leading up to the December 17th game and, more importantly, you might want to pray that enough tickets to the game were sold to satisfy the NCAA.

U.S. Soccer Federation Wins on Kick-Off in Dispute with Sports Drink Company

As we all know, sometimes a game is won before play really gets started.  This is exactly what appears to have happened in a dispute between The United States Soccer Federation (U.S. Soccer) and sports drink manufacturer The FRS Co. LLP (FRS) over player endorsements.

On July 27, U.S. Soccer filed a complaint against FRS in the Northern District of Illinois.  The complaint alleged that FRS’s advertisements featuring popular U.S. Soccer player  Christie Rampone violated the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a), and that FRS tortiously interfered with U.S. Soccer’s contractual relationship with sports drink company Gatorade.

Gatorade, developed and founded in 1965, is a leader in the highly competitive market of sports drinks. The company offers differently formulated sports drinks used by many athletes to combat fatigue and dehydration on the field.  Gatorade is an official sponsor for U.S. Soccer and has the right to use U.S. Soccer trademarks and likenesses for national advertising campaigns and on its official website

FRS was founded in 2004 and, like Gatorade, has a line of sports performance drinks and tablets. Rampone is widely known by soccer fans as the current captain of the U.S. Soccer Women’s Team and a 2004 and 2008 Olympic gold medalist for soccer. She is the winner of numerous awards and recognitions, including 2009 Sportswoman of the Year, and has been featured as a Sports Illustrated “Famous Athlete Mom.”

According to the complaint, certain FRS advertisements featured Rampone in both on and off the field poses in her official U.S. Soccer uniform.  U.S. Soccer alleged that under agreement with players, official team uniforms are only to be worn during officially sanctioned U.S. Soccer events and games, or with its express permission. Specifically, U.S. Soccer’s complaint alleged that a player cannot use the name or logos of the U.S. Women’s Team for any purpose, appear in commercials, or engage in marketing efforts without the express consent of U.S. Soccer, and that permission was not given to Rampone.

According to U.S. Soccer, FRS’s use of the images of Rampone in her official soccer gear could confuse soccer fans and give the false impression that FRS has an authorized relationship with U.S. Soccer. Because U.S. Soccer protects its branding via sponsorship deals and permissions, any alleged infringement could be seen as a threat to the authenticity of the brand.

A settlement quickly followed the filing of the complaint. While the details of the settlement remain undisclosed, Rampone continues to be listed on the FRS site under their “athletes” section and images similar to those included in U.S. Soccer’s complaint are displayed in an altered state. It appears that FRS has used skillful photo editing to salvage its ads featuring Rampone by changing details on her clothing and other items to eliminate U.S. Soccer logos and other references. 

For those of you who may find it necessary to photoshop your way out of an advertising lawsuit (as it appears FRS did), there’s even an app for that.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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