Sports Law: Contemporary Cases (Litigator Series)
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Important legal issues come with these developments, including consumer privacy and data security, and intellectual property ownership, among others. Technology will also continue to revolutionize the relationships between sports teams, leagues and players, sponsors and advertisers, and content providers through new forms of partnerships, licensing agreements, sponsorship and endorsement deals, and media, streaming and broadcasting agreements, to name a few. NCAA cases, which deal with two of the most hotly-debated topics in sports law: Amateurism and sports betting.
The Christie case finally reached the U. Supreme Court on December 4th after a protracted road through the lower courts. The case has its genesis in the Professional and Amateur Sports Protection Act PASPA , a federal law passed in prohibiting states from sponsoring, operating, advertising, promoting, licensing, or authorizing by law or compact various forms of sports wagering.
Concerned about the integrity of their contests, the NCAA and the four major North American professional sports leagues sued New Jersey, seeking to invalidate the law. Many U. As with any sea change, there will be opportunity e. A decision on Christie is not expected to be handed down until spring reports from the oral argument indicate the Justices may vote in favor of New Jersey. The other sports law matter expected to dominate headlines in is the Jenkins v. NCAA antitrust case, which will likely go to trial at some point during the next 12 months.
Lead by prominent sports attorney Jeffrey Kessler, the players argue that schools should determine for themselves if and how much to compensate athletes above their cost of attendance. They cite the numerous benefits that are not educationally-related college players are allowed to receive under current rules as evidence that consumer demand for college sports will not erode if pay levels rise.
NCAA , where a federal appeals court found the antitrust laws required only that players receive scholarships covering their full cost of attendance — and no more. Discovery in the case was completed late this summer, with motions for summary judgment filed in the fall. A status conference is set for early January, and a trial date could be set at that time.
A key sports law issue to watch in is whether the U. In July , the USPTO issued Examination Guide explaining when and how Examining Attorneys must reject marks that consumers would view as merely communicating information other than source. Sports-related slogans and taglines are particularly susceptible because they are often born out of highly-publicized situations that immediately thrust them into the public lexicon. Now that the USPTO has shifted course, there exists the possibility that many in the sports industry will choose not to incur the time and expense necessary to overcome such a challenge.
Depending on the number of refusals, some may even be discouraged from filing altogether.
About The Costs and Funding of Civil Litigation
It will be interesting to see whether and how many other sports-related slogans and taglines are subjected to a similar fate in The criminalization of NCAA rules violations will continue to rock the world of college sports. Again, it took the involvement of the U.
Government to do what the NCAA was unwilling or unable to do. In September of , The FBI and the Office of the US Attorney for the Southern District of New York announced the arrest of 10 individuals, including college basketball coaching staff, financial advisors, and an Adidas executive on various corruption and fraud charges including bribery, money laundering, and wire fraud.
The biggest issue to watch in is the impact of the MeToo movement on sport.
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We have known for years that the sport world in the U. In recent years we have seen scandals at many major colleges including Baylor, Minnesota, Florida State, Penn State, and Auburn, and scandals within gymnastics and skating. At the same time, Division I basketball will continue to be the subject of criminal proceedings relating to how money flows in that sport in a world where the NCAA prevents the players from being compensated in a fair and transparent system. Without question the answer is the same with respect to the key sports law issue in and what to watch in sports gambling.
In , the state of New Jersey failed in its attempt to convince the lower federal courts to allow it to permit betting on sports at its casinos and race tracks.
Forensic Examination of Digital Devices in Civil Litigation: The Legal, Ethical and Technical Traps
The United States Supreme Court surprised everyone in agreeing to hear the appeal. Argument was held on December 4, , and the Justices seemed certain to invalidate PASPA as unconstitutional Commandeering, meaning Congress impermissibly enacted a statute requiring the states to enforce certain criminal statutes at its own expense without a federal regulatory scheme. Professor, David B. Instead of only being able to legally bet on sporting events in Nevada. In , a critical issue is whether international and U.
For example, on September 26, , the U. In addition, a seminal U. Supreme Court case brought by the State of New Jersey will determine the legal validity of the Professional and Amateur Sports Protection Act PASPA , a federal law prohibiting states from authorizing sports betting in their respective jurisdictions. If this law is struck down, in an effort to generate additional substantial tax revenues, New Jersey and likely that many states will permit and regulate sports betting, as Nevada and three other states currently do pursuant to their grandfathered rights under PASPA.
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Litigators must be knowledgeable about the potential evidentiary value of smartphones, tablets and other digital devices. This means knowing what information is carried on them, and potentially retrieved from them, as well as being versed in the legal and ethical limitations on extracting digital data from such devices through forensic examination.
The limiting principles that lawyers and forensic examiners must appreciate are found in laws that prohibit wiretapping, computer abuse, and eavesdropping, and protect privacy rights, as well as in the ethical first principle that lawyers may not engage in, or enable clients to engage in, criminal or fraudulent activity. Lawyers are responsible for determining the legally permissible boundaries for conducting forensic examinations of digital devices, and in so doing must carefully consider the quality and scope of the consent given, i.
We also will point out grey areas where the law is not altogether clear, and offer some suggestions to keep legal and ethical risks at a manageable level.
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The urge to spy—and the perils of doing so—play out frequently in cases of suspected marital infidelity where one spouse goes looking for evidence of the illicit relationship. These imploding marital cases, involving sometimes extraordinary efforts at espionage, help to define the contours of permissible snooping in other contexts. Such trickery is not limited to people embroiled in failing personal relationships.
Corporate espionage occurred between major league baseball teams after a staff member of the Houston Astros moved to a rival club, the St. Louis Cardinals. Ethical and legal problems can arise even without intentional acts of marital or industrial espionage. In one case pulled from our files, a generous husband and father—Dad—gave two iPads as Christmas presents—one to his Wife and the other to his teenaged Daughter. He did so in order to allow Wife to see all text messages sent and received by Daughter on her iPad. Unintended and embarrassing communications can occur even after a digital device is turned back to its owner following a period of authorized use by a third party.
In one such case, a middle school student was loaned the use of a laptop by the school he attended. When the time came to return the computer to the school, the father arranged for the memory of the laptop to be wiped clean but did not realize the eBlaster program remained despite the scrubbing. The agent was extremely surprised to receive, several days later, eBlaster email reports indicating the laptop was being used to access child pornography sites. Needless to say, the school principal was even more surprised to get a visit from the FBI.
The same kind of continuing, unintended communication can happen when an employee is terminated and hands in an employer-issued and owned smartphone or tablet. But what can a litigant or lawyer do with any of these overseen or overheard communications? Can the eavesdropper keep monitoring surreptitiously those communications? Can the attorney or a staff member record the leaking private text messages or emails and use them as evidence? Does the lawyer have ethical responsibilities to avoid exploiting this accidental eavesdropping?
What if a lawyer or investigator poses as a third party and communicates with the cheating spouse or fired employee to extract admissions? What if the lawyer sees the former spouse or employee sending a text message or email to his or her lawyer? Does that waive the privilege? We drop the bomb on the court and get them sanctioned! Ninety percent of American adults own a cell phone. Forty-two percent of American adults own a tablet computer such as an iPad or Android-based tablet. Through the use of all digital devices in the world, humans create more than 2.
Smartphones and tablets produce a wide range of digital files that may be relevant to a civil lawsuit. The value of the evidence may run the gamut from modest to smoking gun. The evidence may come in the form of candid statements in emails and attachments , Short Message System SMS text messages, voice messages, and even instant messenger IM networked communications, as well as social media sites. Call histories can plot communications among pertinent actors against critical dates. Who called whom and when, as well as what websites were visited and when, and what applications were downloaded and when, can either tend to incriminate or exonerate.
GPS location tracking records may do the same. Photographs and videos may be probative. Pertinent information also may lie beyond the digital devices themselves in cloud-based accounts social media sites accessed through the smartphone think Craigslist, Facebook and Twitter. Notably, the digital device may contain the passwords needed to access remotely stored information. The ability of a smartphone to broadcast its location, and inferentially the location of its owner, is of great interest to prosecutors and regularly used to build a case against a criminal defendant, including defeating an alibi defense.
That evidence may be found not just in the GPS data recorded on the phone but also in network communications that register the phone or ping it when it is within the network and connecting to cell towers. Between GPS data on the phone and CSLI data potentially available from the carrier, the data can place a phone and its owner in specific physical locations at specific times. A competent lawyer needs to recognize the potential treasure trove of relevant information that mobile digital devices contain and to take steps to specifically request discovery of mobile devices and to preserve the digital information that is stored on them.
Early requests for such information—and directives to preserve such evidence—are essential given the risk of files being overwritten or deleted or altered by normal operation of the device as discussed below , not to mention the risk that users will upgrade their device to catch the latest technology improvements with the result that the old phone goes back to the carrier and is wiped clean or destroyed.
The lifespan of a smartphone may end before a lawsuit starts. In addition to the widespread personal ownership of mobile digital devices, many employers provide cell phones and tablets to their employees. With decreasing frequency—see the epic decline of the BlackBerry—. But that condition of employment must be unambiguous and evenly applied to be enforceable.
What is digital forensics? Digital forensics is the process of uncovering and interpreting electronic data. The goal of the process is to preserve any evidence in its most original form while performing a structured investigation by collecting, identifying, and validating the digital information for the purpose of reconstructing past events.
This is typically undertaken in connection with matters in litigation, where the results will be used in a court of law, though digital forensics can be used for other purposes as well. The examination of digital devices has evolved significantly over the past decade. Historically, forensic examiners would image and forensically review the contents of a single hard drive contained within a laptop or desktop computer. Today the data subject to forensic review can span multiple fixed devices, corporate networks, applications, and mobile devices.
Coupled with the frequent use of personal devices at work including through BYOD policies these compact handheld devices often contain a large volume of potentially relevant business and personal information including call and calendar items, memos, address books, passwords, and credit card numbers. The value of a forensic examination typically lies in its ability to recreate what a user was doing on a digital device for the weeks or months leading up to a particular event. Given how regularly people use their digital devices, it goes without saying that they inevitably leave electronic trails.
The first step is to make an exact image of the digital information extant on the device—a virtual snapshot that leaves intact on the device the original data and metadata. A variety of forensic software is available to help extract digital files. This includes programs specifically designed to recover and analyze deleted Internet search histories. A skilled forensic examiner, following careful, evidence-preserving protocols and employing the right data extraction tools, offers the best chance to recover digital files that can be used later in court.
Smartphones have different operating systems e. But all smartphones share a basic design limitation, namely, space. They may contain exceptionally probative information notwithstanding their unstable format. A Spotlight search may reference deleted data. In other circumstances, only text fragments are recoverable with no identification of the phone number or the date and time of transmission. In one of our cases, the Spotlight search produced a mixed bag of complete and incomplete text messages on the same device, involving the same sender and receiver as judged by the content of the messages themselves.
That effort was only partially successful. Other sources of digital information include back-up files, synched folders linked to computers and other linked mobile devices, synched folders to cloud-based sources like Dropbox, and files synched to Enterprise BES systems like SharePoint. It is necessary to understand how a given digital device fits into the larger network of digital devices and services to appreciate where stored data may reside.
Many mobile digital devices are protected by passwords. If the password is not available, the extraction of digital data from such a password-protected device may not be technologically feasible. It depends on the operating systems and the type of passwords used. Manufacturers of mobile devices employ sophisticated encryption programs and other software to prevent or at least deter unauthorized access to digital files on those devices.
These programs erect potentially insurmountable barriers to forensic examination. Starting with the iPhone 5 model, Apple began using a program designed to automatically erase certain data after ten unsuccessful passcode attempts. Whether Apple can be forced by court order to unlock one of its devices was partially litigated in a criminal investigation involving the San Bernardino terrorists. A variety of ethics rules may be implicated by the forensic examination of a mobile device.
Attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery. Depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain matters involving e-discovery, absent curative assistance …, even where the attorney may otherwise be highly experienced.
It also may result in a violation of a duty of confidentiality, notwithstanding a lack of bad faith conduct. In other words, for a slew of reasons, every litigator must be sufficiently equipped to know what information is contained on, or accessed through, mobile devices, and be able to evaluate whether those digital files may have evidentiary value. Counsel must be attuned to preserve or request such evidence as part of actual or anticipated litigation.
Preservation issues are especially pressing in the context of mobile devices. They not only have volatile data that may be overwritten in short order, 44 but also are routinely upgraded with new models—with the older phones often turned in to the carrier and wiped clean. Lawyers, as well as investigators under the direction of counsel, may find themselves engaging in ethically dubious actions in intercepting wire or oral communications transmitted by mobile devices, or extracting digital files from or through a digital device.
Such conduct could constitute a violation of Rule 4. Employing software and other technology to surreptitiously capture and record digital information, or extracting digital files from a device, could potentially violate Rule 4. Other potential ethical violations include Rule 8. In each case, counsel should ask what legal authority exists to 1 support the collection of the evidence from, or through, a given digital device, and 2 to thereafter make use of the harvested information. No matter how great the temptation, counsel should not act first to see what is there and then think later what to do with it if the evidence was properly obtained.
The prudent lawyer will want to consider whether the contemplated harvesting activity itself crosses any ethical lines. People can find themselves in grey areas even as the innocent unintended recipient of a misdirected communication. Given the many ways in which digital information may be inadvertently sent—and monitored 45 —Rule 4.
That rule defines the applicable ethical standards in responding to inadvertent disclosures, to the extent the lawyer knows or reasonably should know the digital information was inadvertently sent. The common phenomenon that law firms delegate responsibility for e-discovery to junior lawyers, and lawyers may delegate responsibility to forensic investigators, raises the specter of ethical violations in the form of failed oversight. Rule 5. These duties are non-delegable and present another way in which lawyers can find themselves in violation of the ethics rules. As a practical matter, a single ethical lapse in harvesting information from digital sources will rarely give rise to a formal grievance proceeding because those disciplinary bodies typically look for a series of mistakes or a pattern of misconduct before bringing disciplinary charges.
Instead, the most likely penalty for ethically misstepping in relation to discovery concerning mobile devices will come in the form of court sanctions, especially those associated with spoliation of evidence. The deliberate deletion of files from a digital device, done expressly to deprive another party from accessing those files, would not only constitute an ethical breach in violation of the rules of professional conduct 46 but could also constitute a federal criminal offense.
Spoliation can also occur in the cloud. As noted above, the examination of a digital device may reveal passwords and identifying information about web-based accounts, and lead a lawyer and investigator to view the web-based accounts. Those accounts may contain valuable information but the digital files stored there also may be altered or deleted just as digital files on any device. Whether hoping to find or avoid incriminating evidence, lawyers should be keenly aware of how easily digital files can be altered or destroyed and should consider forensic examination in appropriate cases.
The Act applies to the interception of telephone and other wire communications in transit, i. The Act makes it a crime to disclose or use the contents of an intercepted communication. The lawyer in turn would separately violate the law by submitting the communication as an exhibit in court. Disclosing the intercepted communication in a publicly filed document is strategically pointless because the Act includes an express evidentiary bar that makes the intercepted communication inadmissible in either civil or criminal proceedings.
One illustration of how a civil party violated the federal wiretap law and analogous state law is found in Klumb v. Goan , 50 which involved a spectacularly imploding marriage. The wife, a practicing attorney, fabricated digital evidence against her husband that created the appearance he was having an extramarital affair. The SCA also authorizes criminal prosecution with the punishment up to one year for a first offense that does not involve commercial advantage or gain.
Where such financial benefit is involved, the offense is punishable by up to five years.
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The SCA was enacted in before the advent of mobile digital devices, social networking sites, cloud computing, and other features of modern digital communication. Its application to current digital technology and storage infrastructure presents uncertainties and challenges to both lawyers and courts. Civil litigators need to be attuned to the potential limitations of applying the SCA to contemporary digital devices and storage systems.
For example, in Crispin v. Christian Audigier, Inc. A defendant in a civil lawsuit—alleged to have breached a contract and infringed copyrights—subpoenaed Facebook and MySpace seeking production of certain communications. But the district court overruled both of those findings after a motion to reconsider. In a more recent case, the Second Circuit was called upon to determine if a criminal search warrant directed to a domestic commercial email service provider Microsoft , which is considered an ECS provider under the SCA, could lawfully require Microsoft to produce emails of a Microsoft customer that were exclusively stored in Ireland.
For example, the SCA provides an exception to its rule-against-disclosure in cases where the owner consents. In Konop v. Hawaiian Airlines, Inc. Given the varying ways in which the SCA can be interpreted and applied, litigants need to be especially cautious when dealing with any claim under the SCA, and alert to conflicting authority and the potential uncertainty in how any particular judge will read the statute.
If a civil action is permitted, the CFAA is very broad in its reach. State laws also provide meaningful limitations on invasions of privacy whether through conventional wiretapping statutes or other laws that apply to the use of eBlaster and other spyware programs that have become popular among amateur sleuths. State law violations often are alleged in conjunction with federal offenses, and frequently are modeled on federal law. The prevalence of state law claims may suggest either easier or different elements to satisfy or, more likely, stronger remedies.
The failure to preserve electronically stored information—especially taking affirmative steps to delete such data—can support strong sanctions, including entering a default judgment against the spoliator. In one case where the prejudice had not yet been determined—because it was unknown if the failure to preserve had in fact resulted in a loss of material evidence—the court ordered the culpable party to pay for the innocent party to hire a forensic examiner to analyze the device to determine if any digital files were lost.
Lawful activity may become unlawful, especially when further forensic investigation starts impinging on the privacy interests of third parties. The loss of authority—going beyond the initial lawful scope—is neatly illustrated in Huff v. The colleague in the US the unintended recipient of the pocket dial kept the call open, wrote down what she was hearing, and later used a recorder on her iPhone to record the last few minutes of the conversation.
The district court granted summary judgment against the plaintiffs. The circuit court reasoned that the pocket dialer had no reasonable expectation of privacy having negligently placed a pocket-dial call. Just because a lawful owner of a device consents to its forensic examination does not necessarily mean every digital file stored on the device is fair game to inspect—i. For example, it is possible for a password-protected file to be located on a device that is co-owned requiring consent of the co-owner , or the files themselves may be under the exclusive control of a co-owner or even a third-party who was granted permission to use the device.
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More commonly, issues arise about scope of consent when the forensic examination leads to the identification of web-based accounts. These accounts may or may not be password-protected, and may present distinct considerations relating to the privacy rights of third-parties who communicated with the account holder.
Lawyers and investigators need to be sensitive to how a lawful authorization to search may subsequently implicate the rights of third parties, who may have a reasonable expectation of privacy that could be invaded—just as the international hour-long eavesdropper in Huff found out. In that case the eavesdropping from a pocket-dial started out as lawful, when the conversation involved business matters, but strayed into unlawful eavesdropping as soon as the conversation turned to private matters involving a third party.
Lawyers and investigators need to respect the lines that are foreseeably drawn by courts that are solicitous of third party privacy rights. Being forewarned is to be forearmed. Digital files owned by the decedent are considered part of the estate and subject to any provisions in the will. Many digital files have considerable financial value, including iTunes files, downloaded films, and purchased programs like Adobe Lightroom, Illustrator, and other expensive software. The digital devices on which these files are stored may also be part of the estate and subject to specific disposition by will but more typically fall within the residuary of the estate.
If the owner of a digital device dies without a will, any mobile devices and digital files contained on them will pass by intestate succession. Social media accounts, and information stored in them, could well be deemed an asset of the decedent and be devised by gift or pass by intestate succession.