Three Point Shot - January 2013

by Proskauer Rose LLP

Take Me Out To the Ball Game, But Keep Me Away From the Flying Hotdogs!

When we last wrote about hot dog litigation a few years ago, baseball fan John Coomer had just filed a personal injury lawsuit against the Kansas City Royals, seeking recovery for injuries he sustained when he was hit in the eye by a flying hot dog. The offending food item wasn't flung by just anybody; it was launched into the stands by the Royals' mascot, Sluggerr the Lion. Sluggerr was distributing the hot dogs, both by hand and via air cannon, as part of a promotional event.

As we suggested in our original write-up, one of the issues later raised in the case was whether the so-called Baseball Rule would be applicable. The idea behind the rule is that things do tend to fly around in ball parks, and thus there are certain risks that are inherent in attending a ball game. Baseball park operators are thereby insulated from liability for injuries from flying bats and balls under certain circumstances.

But could the baseball rule apply to flying edibles?

The trial court in Mr. Coomer's case said yes. The court instructed the jury that they could consider as a defense whether the risk of being hit by a promotional item thrown by a team mascot is one which inheres in the game of baseball. The jury thought that it was, and came back with a verdict of no liability for the Kansas City Royals Baseball Corporation.

Mr. Coomer appealed, however, and on January 15, 2013, the Missouri Court of Appeals reversed. Quite simply, the court said, "the risk of being hit in the face by a hot dog is not a well-known incidental risk of attending a baseball game." The Royals argued that the promotional toss has become a customary part of the game, and that Mr. Coomer, a veteran of some 175 home games, was well aware of the activity. But hot dog throwing is not a part of the sport, the court countered, regardless of how long it has been taking place, or on how many occasions.

So it's back to the courtroom for the parties, as the court found that Mr. Coomer is entitled to a new trial. Whether Mr. Coomer has been back to the ball park, however, is not a part of the record. As for us, we relish the prospect of writing about this case again, when it is finally concluded.

Full Court Press Gets Young Women the Right to Play AND Be Cheered

In a number of school districts in Franklin County, Indiana, during high school basketball season, most of the Friday and Saturday night lights in the gymnasium were customarily reserved for the boys' basketball teams. The girls' teams were given some of the so-called "primetime" weekend spots, but only for half the number of games as the boys' teams. The girls were relegated for the most part to the much less desirable Monday through Thursday slots, where game play had to be balanced against math homework and, perhaps for potential attendees, Monday Night Football or Comedy Thursday. Amber Parker, the coach of the girls' team, tried to get more of the desirable primetime slots for the girls' team, but when she failed, she brought suit under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a).

Title IX was enacted in 1972, and provides in part: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." Although the statute does not expressly mention athletics, the U.S. Department of Education regulations implementing Title IX directly target gender disparity in athletics programs. The statute and those implementing regulations have been brought to bear many times since by female athletes seeking equal treatment in the allocation of school resources for athletics. As a result, school athletics programs for women have come a long way (baby).

Courts have sung Title IX's praises, including the U.S. Court of Appeals for the Ninth Circuit in Neal v. The Board of Trustees of the California State Universities, 198 F.3d 763, 773 (9th Cir. 1999), which had the following comment: "Title IX has enhanced, and will continue to enhance, women's opportunities to enjoy the thrill of victory, the agony of defeat, and the many tangible benefits that flow from just being given a chance to participate in . . . athletics."

But Amber Parker didn't claim that the girls' team wasn't given a chance to participate in basketball, or even that they played fewer games tham the boys' teams. She alleged in her complaint that: "Friday and Saturday evenings are optimal game days and times because, among other reasons, the crowd potential is the largest; there is no school the following day, and thus study is not interrupted; college recruiters can more easily attend; and cheerleaders and band members are more likely to participate."

The district court rejected this claim on the ground that the scheduling disparity was not "so substantial that it denies the Plaintiffs equality of athletic opportunity." Parker v. Indiana High School Athletic Association, 2010 U.S. Dist. LEXIS 107497 (S.D. Ind. 2010). But on appeal, the Seventh Circuit Court of Appeals reversed. The court found "these harms are not insignificant and may have the effect of discouraging girls from participating in sports in contravention of the purposes of Title IX." Parker v. Franklin County Community School Corp., 667 F.3d 910 (7th Cir. 2012). Among other things, the court concluded that "this disparate scheduling creates a cyclical effect that stifles community support, prevents the development of a fan base, and discourages females from participating in a traditionally male-dominated sport."

The case was remanded to the district court to allow the plaintiffs the opportunity to prove their claims at trial, but in October 2012, with a trial date looming, a settlement was reached. Under the resulting consent decree, the number of primetime slots in the schedule for the girls' teams will increase by two in each of the next three years, and thereafter, no more than a two-game differential will be permitted.

So pretty soon, if you're in Franklin County, Indiana on a weekend night and you drop by a school gym, there should be an even chance that you'll be watching a girls' basketball team play. Make sure you give a nice loud rah rah rah, sis boom bah!

Will Dorsett be able to "Heisman" SER Media?

Anthony D. Dorsett, Sr., the former Dallas Cowboy running back ("Tony Dorsett"), was known for dodging tacklers throughout his Hall of Fame career. He is now dealing with a different kind of pursuit, this time on the legal field. In October 2012, SER Media, LLC, filed a petition in the Tarrant County, Texas District Court against Dorsett and several other defendants with respect to the production of a video program entitled "Dorsett Super Bowl Roundtable."

SER Media claims that it was approached by Tausha Johnson on behalf of Tony Dorsett and his son Anthony D. Dorsett, Jr. ("Anthony Dorsett"), also a former NFL player, to produce a twenty-four episode television program entitled Dorsett Roundtable. The petition asserts that, based on certain representations by and on behalf of the Dorsetts by Tausha Johnson and others regarding the financial and operational viability of the proposed series, SER Media provided certain production services to the project. Those services included, among other things, the production of a pilot program for the series.

Specifically, SER Media alleges that misrepresentations were made to the effect that a studio and certain sponsors had agreed to provide funding for the pilot and the proposed series, and that the Dorsett's limited liability company had the financial resources to pay for the production of the series. The petition also references a written letter agreement between SER Media and the Dorsett LLC which describes certain obligations and services to be rendered by both entities with respect to the production and distribution of the pilot and the series.

Essentially, what SER Media is alleging, is that in addition to misrepresentations concerning the existence of financing and distribution agreements at the time of the agreement, the Dorsetts dropped the ball and failed to meet their obligations to obtain such financing and distribution.

SER Media claims that it took actions such as securing a distribution "to minimize its potential loses" after learning that the Dorsett parties had not done so. Furthermore, SER Media alleges that it continued to provide certain services after being advised that that the Dorsett LLC lacked the funds to pay for SER Media's services, based on additional representations that funding would be coming from sponsors and investors.

According to the petition, the pilot was subsequently broadcast during the 2011 and 2012 Super Bowls but SER Media claims that it has received no payment for its services despite repeated requests and negotiations to reach a resolution regarding the matter. In connection with its business relationship with the Dorsett parties, SER Media has set forth several causes of action ranging from breach of contract to civil conspiracy.

SER Media is seeking compensatory damages in excess of $122,865.00 in addition to exemplary and punitive damages.

After this opening drive by SER Media, the Dorsetts and their fellow defendants now have possession of the ball and will have their chance to respond.



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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