Wednesday, October 31, 2012

TSN Article: Could NHLers Be Fired If They Get Hurt Playing?

I wrote an article for TSN.ca entitled, Legal Look: Could NHLers Be Fired If They Get Hurt Playing?.

Here's an excerpt:
To date during the lockout, about 200 NHL players have gone abroad to play hockey. Players like Claude Giroux (German Elite league), Evgeni Malkin (KHL) and Matt Duchene (Finnish Elite league) have gone overseas.
We are, however, also seeing players get hurt. Guys like New Jersey Devils defenceman Anton Volchenkov, Boston Bruins goalie Tuukka Rask and Philadelphia Flyers forward Jakub Voracek have suffered injuries. 
So here's the question: is there a risk that players could effectively be fired by a team if they get seriously hurt?

Tuesday, October 30, 2012

Thursday, October 25, 2012

TSN: Legal Look: Was It Unlawful For Owners To Speak To Players?

I wrote an article for TSN.ca entitled, Legal Look: Was It Unlawful For Owners To Speak To Players?.

This follows the NHL giving teams a 48 hour window to talk to players and answer their questions. The question that arose was this - was that lawful?

Here is an excerpt:
During a lockout, there is an obligation on the employer to bargain in good faith with the Union. Part of that includes not going around the Union and bargaining directly with the employees.
Efforts to bypass the recognized bargaining agent of the players, namely, the Union, and negotiate directly with the employees/players may be seen as violating labor law and could give rise to an unfair labor practice charge being filed by the Union.
The key here, though, is the word "bargain." 

Click here to read the article.




Wednesday, October 24, 2012

Tuesday, October 23, 2012

NHLPA Knew On Friday That NHL Owners Were Contacting Players


On Tuesday, the news broke that NHL owners were given a 48 hour window to talk to players about the CBA proposal.

"Players were contacting club personnel to inquire about our proposal," said deputy commissioner Bill Daly. "We gave them a limited window in which to respond to those inquiries."

The NHLPA was aware Friday - not Tuesday - that players were being contacted by owners.

That day, Mathieu Schneider issued an email to players entitled “Club Officials Contacting Players & Agents”. This is what he wrote:
In the last few hours we have heard about calls today from various club officials to players and agents to discuss the NHL proposal and bargaining.  This is interesting, since our understanding has been that the League had banned club officials from talking to players since the beginning of the lockout.  


If you get a call, or if there is anything you would like to discuss, please contact me. And, as always, please feel free to contact Don about anything, anytime.

Mathieu Schneider
The fact that the NHLPA was aware that something was going on Friday doesn't suggest it was concealing anything. The Union probably just wanted to get its ducks in a row. As well, it doesn't mean that they knew ahead of time it was going to happen.

Finally, Schneider's statement that players can contact Fehr "about anything, anytime" continues to speak to the inclusive and transparent approach Fehr takes to leadership. He's really changed the culture of the NHLPA.

Monday, October 22, 2012

Organic nature of CBA negotiations: A Process That Is Cause For Optimism

I wrote an article for CBS entitled "Organic nature of CBA negotiations: A Process That Is Cause For Optimism". Here's an excerpt:
Legal negotiations are a process. They are complete with ebbs and flows. Emotions run high and missives are launched. That same process, however, includes the sides becoming more comfortable with possible areas of compromise and looking to continue to resolve differences with a view to settling on terms that are ultimately equitable for both sides. This is the organic nature of negotiations.
We have seen significant movement by both sides. The NHL has modified its revenue share proposals for the players from 43% to 46% to 49% and now 50%. The NHLPA initially offered a 54% share for the players with that share never dropping below 52%. Now, Fehr is open to dropping the player share to 50% in the last year of a 6 year CBA.

Sunday, October 21, 2012

Clearing It Up: Tebow Does NOT Have A Trademark for TEBOWING


There have been a lot of reports that Jets Quarterback/Fullback/Running Back Tim Tebow has registered the trademarks TEBOWING and TIM TEBOW.

The reports are saying that Tebow has secured trademark registrations or that his trademarks have been “approved”.

However, this is not right. Tebow has not secured a trademark registration for TEBOWING or TIM TEBOW.

He’s only filed trademark applications for the marks and those applications haven’t matured to registration. Once he gets a trademark registration for the mark, he will have TEBOWING  and TIM TEBOW trademarked in the traditional sense.

Side note – you can actually have a trademark even if you don’t have a trademark registration. How? You get trademark rights simply by using a mark in the marketplace. Those special rights are called common law trademark rights. Problem with those rights is that they are limited. The goal is always to get a trademark registration. Once you get it, your mark is a heck of a lot stronger. Ok let’s move on.

But His Marks Were “Approved”

Yes his applications have been approved. But that is just one step in the registration process – and is by no means the end. The next step in the application process is called opposition, where any third party can object to his applications.

After that – and most importantly – the next step will be Tebow showing he’s used his marks in the trademark sense. That means using it in association with the sale of stuff. Until he has sales, he won’t get trademark registrations. That could be a while.

Wait – Hasn’t Tebow Used The Marks?

His trademark applications were all filed on intent to use in the U.S. What does that mean? At the time the applications were filed, Tebow did not have use of the marks TEBOWING and TIM TEBOW.

And it looks like he hasn’t started to use TEBOWING and TIM TEBOW as marks.

You’re right that both TEBOWING and TIM TEBOW have been used a lot. But here’s the thing:  there is a difference between using something generally and using it as a trademark. Trademark use means that Tebow is, for example, slapping the marks on goods and selling them. So you need 2 things to have trademark use: (1) Tebow selling the stuff, and (2) an economic component to the use.

So when you see “Tebowing” in headlines or Tebow talking about Tebowing that’s not going to be trademark use. To get elevated to trademark use, you need to have that economic component.

Why does that matter? In order to acquire enforceable trademark rights, you need to use the mark as a mark. If you don’t use the mark generally you can’t get the mark or enforce it against people trying to rip you off. So even though we’ve heard TEBOWING used a lot, that doesn’t give Tebow any trademark rights.

What Are Tebow’s Trademarks

Tebow has applied for a bunch of trademarks. Well, technically it’s not him but a company called XV Enterprises LLC. In all, Tebow has applied for 13 trademarks: six for TIM TEBOW and 7 for TEBOWING.

Here’s a snapshot from the U.S. trademark office called the USPTO:


So Tebow has filed trademark applications for the marks TEBOW and TEBOWING (at trademark law trademarks are put in upper caps – so I’m not screaming these marks at you). There are multiple applications for the same mark because they cover different good and services. For example, one application covers clothing and another application for the same mark covers watches.

So How Does Tebow Get His Trademark Registrations

His 13 trademark applications as still pending and haven’t hit registration. In order to get them to registration, he will need to show that he has used the marks in a commercial sense; that he’s selling stuff with the mark on it. Until then, he won’t get his trademark registrations.

It’s Ripoff Time

There have been a lot of people that have tried to capitalize on Tebow’s fame by way of filing trademark applications. Here are some of the marks that have been filed by people that are not Tebow: IT’S TEBOW TIME, TEBOW TOWEL, TEBOW NATION, THERE IS NO I IN TEBOW, WHAT WOULD TEBOW DO, LORD & TEBOW and TEBOW TIME.

Some of these applications have gone abandoned. No doubt that Tebow’s legal team has issued cease and desist letters. The U.S. trademarks office has also said no to some of these applications on the basis that they falsely suggest a connection to Tim Tebow. Since Tebow didn’t file those applications, they were blocked.

Personality Righs: Another Way To Stop

Apart from his trademark rights, Tebow can also protect his name by way of personality rights. People have the right to control the commercial use of their name, image, likeness, etc. So Tebow doesn’t just have to rely on trademark rights to stop people from using his name.

Did Tebow Patent TEBOWING?

No. A patent is not a trademark. Completely different. A patent refers to protecting an invention and not the name of the invention.

Can People Still Say TEBOWING?

Yes. Trademark rights prevent commercial use like selling shirts and hats. However, people can still use it in a non-commercial way like in headlines or as part of stories. As well, Chris Berman and Company can still use it on NFL Countdown.

Was It A Good Idea To Try And Get Trademark Registrations For TEBOW

Yes – very good idea. First it sends a message that there will be consequences for anyone trying to profit off Tebow’s name.

Second, assuming he gets his trademark registrations, he will be able to stop anyone from using his marks or confusing marks. That’s going to be a real effective tool.

The trademarks though won’t help him get more playing time with the Jets. On that front, he’ll just need to wait - or become a tight end.

Friday, October 19, 2012

Team 1200 Radio Clip: We Talk NHL CBA and Where We Are

I join Dave Gross and Shawn Simpson of the Team 1200 to chat NHL CBA talks. 

Is this really the end of the world?

I don't think so. 

Thursday, October 18, 2012

Wednesday, October 17, 2012

Podcast: Key Points on the NHL's Most Recent Offer

Last night on Offside, co-host Lee Versage and I highlighted the key points of the NHL"s most recent CBA proposal. What does it all mean and what is next.

We also interviewed Greg Gilhooly, a Princeton grad and lawyer. He was also sexually assaulted by convicted pedophile Graham James. Greg talks about the Sandusky sentencing, Graham James' imminent release from prison and jail time in Canada for pedophiles.

Click here to listen to the show.

Tuesday, October 16, 2012

NBCSports.com: Part 2 - Ask a Lawyer: Would the NHLPA ever try to decertify to end the lockout?

In Part 2 of my Ask A Lawyer Series with NBCSports.com, I address whether the NHLPA would ever do what the NFL Union did and the NBA Union thought of doing - dissolving the Union and then launching lawsuits to block a lockout.

Click here to read the article, which also includes a quick primer on what antitrust law means.

NBCSports.com Ask A Lawyer Series: If a player has a contract, how can the owners cut his salary?

I've been working with NBCSports.com on a series entitled "Ask A Lawyer" (without the excessive billing part that comes along with it).

Part 1 is entitled "Ask A Lawyer:  If a player has a contract, how can the owners cut his salary?"

In it, I explain why rollbacks are in fact not unlawful - even in the face of a signed contract. I also address why escrow can look a lot like a rollback under the right circumstances.

Click here to read the article.

Friday, October 12, 2012

Team 1200 Radio Clip: We Break Down Jerry Sandusky's Sentencing

I join Steve Lloyd and Jason York on the Team 1200. We chat about Jerry Sandusky's sentencing and what's next.

Team 1260 Radio Clip: Coffee Makers in Hotel Bathrooms, Star Trek Pajamas and Lance Armstrong

I join Dusty Nielson and Wil Fraser on the Team 1260. We covered many many topics, including coffee makers in hotel bathrooms, Jurassic Park and Star Trek Pajamas. At the end of the call, we finally get to Lance Armstrong and the USADA's report.

Seriously, what is the deal with hotels putting coffee makers in bathrooms. There's a reason why I don't have my fridge and pantry in the bathroom. It's the bathroom. It may well be the dirtiest place in the world. Pretty sure we never had a family dinner huddled around the toilet.

Click here to listen.

Wednesday, October 10, 2012

Interview: Jerry Sandusky's Criminal Attorney Karl Rominger

Last night on Offside, Lee Versage and I interviewed Karl Rominger, Jerry Sandusky's criminal defence attorney. This interview was conducted the same day Sandusky was sentenced to 30 to 60 years in prison.

Karl was quite candid in addressing a number of issues, including Sandusky's state of mind, his prison experience, his proclaimed innocence and the likelihood of success on appeal.

If you have been following this case, you will want to listen to this interview.