Los Angeles partner Maurice Suh, of counsel Daniel Weiss and associate Zathrina Perez are the authors of "Supreme Court needs to rethink NCAA 'amateurism'" [PDF] published by the Daily Journal on January 5, 2021.
Los Angeles partner Maurice Suh, Washington, D.C. partner Andrew Tulumello and Los Angeles associate Zathrina Perez are the authors of "Ruling in NCAA case has the potential to remake the amateurism system," [PDF] published by the Daily Journal on May 26, 2020.
Click for PDF In a decision that directly addresses an issue of critical importance for the daily fantasy sports industry, on April 16, 2020, the Illinois Supreme Court held that head-to-head daily fantasy sports matches do not constitute “gambling” as contemplated by the state’s criminal statutes. Dew-Becker v. Wu, 2020 IL 124472. In this alert, we summarize (1) the current landscape of sports betting regulation in the United States, as well as treatment of daily fantasy sports vis-à-vis sports betting, (2) the analysis of the Illinois Supreme Court in the Dew-Becker case, and (3) the potential impact of the Dew-Becker ruling, and rulings by other state courts on the issue decided in the Dew-Becker case, on the daily fantasy sports industry.
Click for PDF On March 11, 2020, the massive and worldwide business of professional sports began to shut down because of the COVID-19 pandemic. First it was the National Basketball Association shutting down “until further notice.” The next day it was the Professional Golf Association Tour and Formula 1, and by months-end, March Madness, Major League Baseball, the Premier League, Champions League, the 2020 Tokyo Olympic Games, the National Hockey League, and every other prominent sporting event was suspended, postponed, or canceled. That has sent ripples through the entire inter-connected business of sport:
The express language of the contract provision will govern. Review your force majeure clause to determine (1) whether the COVID-19 pandemic may trigger the clause; (2) what the force majeure clause excuses; (3) what the contract requires when giving notice; and (4) whether the contract requires a specific form of notice. A more detailed discussion of force majeure provisions and a helpful flowchart are available at https://www.gibsondunn.com/force-majeure-clauses-a-4-step-checklist-and-flowchart/.
Law360 named Gibson Dunn one of its five Sports & Betting Groups of the Year for 2019. The profile was published on February 7, 2020. The Sports Law Practice Group advises clients on the most complex sports industry matters, from the purchase and sale of U.S. and non-U.S. professional teams to precedent-setting litigation. Gibson Dunn’s global sports practice represents a wide range of clients in matters relating to professional and amateur sports, including individual teams, sports facilities, athletic associations, athletes, financial institutions, television networks, sponsors and municipalities. The Betting and Gaming Practice Group is one of the most preeminent betting and gaming legal practices worldwide, representing the most prestigious and influential clients in the industry across Europe, Asia and the Americas.
Law360 named Gibson Dunn a Firm of the Year for 2019 in its article, “The Firms That Dominated in 2019,” featuring seven firms that received the most Practice Group of the Year awards. Of the seven, Gibson Dunn is one of two firms with the most winning Practice Groups of the Year, noting that the firm “scored big wins across several practice groups for major technology companies such as Facebook and Uber in lawsuits that tackled hot-button issues like internet privacy and the gig economy.” Law360 also noted Gibson Dunn “dominated the competition again this year” in announcing its Practice Groups of the Year, which “honor the law firms behind the litigation wins and major deals that resonated throughout the legal industry in the past year.” The firm was named a Practice Group of the Year in the following categories:
Law360 named nine Gibson Dunn partners among its 2019 MVPs and noted that Gibson Dunn was one of two law firms with the most MVPs this year. Law360 MVPs feature lawyers who have “distinguished themselves from their peers by securing hard-earned successes in high-stakes litigation, complex global matters and record-breaking deals.” The list was published on November 12, 2019. Gibson Dunn’s MVPs are:
Seven Gibson Dunn lawyers were named among Law360’s Rising Stars for 2019 [PDF], featuring “attorneys under 40 whose legal accomplishments transcend their age.” The following lawyers were recognized: Washington D.C. partner Chantale Fiebig in Transportation, San Francisco partner Allison Kidd in Real Estate, Washington D.C. associate Andrew Kilberg in Telecommunications, New York associate Sean McFarlane in Sports, New York partner Laura O’Boyle in Securities, Los Angeles partner Katherine Smith in Employment and Century City partner Daniela Stolman in Private Equity. Gibson Dunn was one of three firms with the second most Rising Stars. The list of Rising Stars was published on September 8, 2019.
The Best Lawyers in America® 2020 has recognized 158 Gibson Dunn attorneys in 54 practice areas. Additionally, 48 lawyers were recognized in Best Lawyers International in Belgium, Brazil, France, Germany, Singapore, United Arab Emirates and United Kingdom.
Law360 named Gibson Dunn one of its four Sports Groups of the Year [PDF] for 2018. The practice group was recognized for “locking down two multimillion-dollar stadium deals, helping NFL players fight back against various league decisions and clearing the way for legal sports betting.” The firm’s Sports practice was profiled on February 20, 2019. Gibson Dunn’s Sports Law Practice Group advises clients on the most complex sports industry matters, from the purchase and sale of U.S. and non-U.S. professional teams to precedent-setting litigation. The firm’s global sports practice represents a wide range of clients in matters relating to professional and amateur sports, including individual teams, sports facilities, athletic associations, athletes, financial institutions, television networks, sponsors and municipalities. The Gibson Dunn global betting and gaming practice is one of the most preeminent betting and gaming legal practices worldwide, representing the most prestigious and influential clients in the industry across Europe, Asia and the Americas. We believe that the Gibson Dunn global betting and gaming practice provides our clients with a unique offering – no other global law firm can offer an award-winning regulatory and compliance capability alongside a market-leading transactional practice in the betting and gaming sector in the United Kingdom, the United States, Europe and the Asia-Pacific Region.
Gibson, Dunn & Crutcher LLP is pleased to announce its selection by Law360 as a Law Firm of the Year for 2018, featuring the four firms that received the most Practice Group of the Year awards in its profile, “The Firms That Dominated in 2018.” [PDF] Of the four, Gibson Dunn “led the pack with 11 winning practice areas” for “successfully securing wins in bet-the-company matters and closing high-profile, big-ticket deals for clients throughout 2018.” The awards were published on January 13, 2019. Law360 previously noted that Gibson Dunn “dominated the competition this year” for its Practice Groups of the Year, which were selected “with an eye toward landmark matters and general excellence.” Gibson Dunn is proud to have been honored in the following categories:
Law360 named eight Gibson Dunn partners among its 2018 MVPs and noted that the firm had the most MVPs of any law firms this year. Law360 MVPs feature lawyers who have “distinguished themselves from their peers by securing hard-earned successes in high-stakes litigation, complex global matters and record-breaking deals.” Gibson Dunn’s MVPs are:
Law360 named Gibson Dunn one of its five Sports Practice Groups of the Year [PDF] for 2017. The practice group “set itself apart from the pack in 2017 by taking on some of the biggest sports cases, including a challenge to the federal sports wagering law, while simultaneously helping clients secure a major broadcasting deal and an Olympic bid.” The firm’s profile was published on February 6, 2018.
On June 19, 2017, the Supreme Court unanimously held in Matal v. Tam that a decades-old statute prohibiting the registration of disparaging trademarks violates the First Amendment to the U.S. Constitution. The Court concluded that, because trademark registration is a mere administrative recognition of private speech rather than government speech, the registration process must be viewpoint-neutral. Gibson Dunn filed a brief in the case on behalf of the United States Chamber of Commerce as amicus curiae, urging the conclusion that the Court reached.
* * *The Tam case arose from a decision of the United States Patent and Trademark Office ("PTO") to refuse registration of a trademark for "THE SLANTS," the name of an Asian-American rock band. The PTO relied on a provision of the Lanham Act prohibiting the registration of trademarks that "may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." 15 U.S.C. § 1052(a). Applying the PTO's framework for disparagement, the examining attorney concluded that "THE SLANTS" was likely to disparage a significant number of Asian Americans. On appeal, the U.S. Court of Appeals for the Federal Circuit found that the Lanham Act's disparagement clause was facially unconstitutional under the Free Speech Clause of the First Amendment. The Supreme Court agreed, though several Justices expressed a difference of opinion as to the reasoning. Justice Alito announced the judgment of the Court, which was unanimous with respect to the conclusion that, despite the role of government in the registration process, trademarks constitute private rather than government speech. The Court reasoned that the government merely registers the contents of others' trademarks; it "does not dream up these marks," "it does not edit marks submitted for registration," and the PTO has made clear in the past that registration does not constitute government approval of a particular mark. It also found that prior Supreme Court precedents fail to support trademark registration as a form of government speech. Trademarks are vastly different from, for example, speech used to convey a government message—as was the case with selected monuments placed on governmental property in Pleasant Grove City v. Summum—and there is no evidence the public associates trademarks with the government itself—as was the case with specialty license plates in Walker v. Texas Division, Sons of Confederate Veterans. Further backing away from Walker, which the Court noted "likely marks the outer bounds of the government-speech doctrine," the Court emphasized that government registrations in other, related contexts like copyright registration do not constitute government speech. Justice Alito went on to reject the remainder of the government's arguments, writing only for himself, Chief Justice Roberts, Justice Thomas, and Justice Breyer. First, Justice Alito explained that trademark registration is not a form of government subsidy, which would permit the government to subsidize speech expressing a particular viewpoint while refusing to subsidize activities it does not wish to promote. He also refused to create a new "government-program" doctrine for trademarks that would allow for some content- and speaker-based restrictions. Finally, Justice Alito explained that it is unnecessary to decide whether the relaxed-scrutiny afforded commercial speech under the First Amendment applies here, because the disparagement clause is too broad to withstand even that lesser standard of review. Justice Kennedy, in a separate opinion joined by Justices Ginsburg, Sotomayor and Kagan, emphasized in greater detail why the First Amendment protects "THE SLANTS" trademark from governmental disapproval of a viewpoint the government finds unacceptable. He reasoned that the case involved viewpoint discrimination that warranted heightened scrutiny, without undertaking a commercial speech analysis as in Justice Alito's opinion. Justice Thomas filed a short concurrence in part and in the judgment, reiterating his view that whenever the government seeks to restrict truthful speech in order to suppress the ideas conveyed, strict scrutiny applies. Justice Gorsuch took no part in the consideration or the decision.
* * *Tam's central holding—that the Lanham Act's disparagement clause is unconstitutional—is likely to have only a limited impact, as most trademarks are not accused of disparagement. One company likely to benefit from the decision, however, is the Washington Redskins professional football team, which had seen several of its trademark registrations invalidated by the PTO under the same Lanham Act provision. The Supreme Court's decision resolves a split on the constitutionality of the statute between the approach of the Federal Circuit in the Tam case and that of the U.S. District Court for the Eastern District of Virginia in the Washington Redskins case, Blackhorse v. Pro-Football, Inc. More broadly, the Supreme Court's unanimous government-speech ruling suggests that it is poised to cabin what is considered to be government speech in the context of government registration and regulation. The Court explicitly warned that courts "must exercise great caution before extending" government-speech rules to messages that originate from private parties. And the Justices' emphasis on viewpoint-neutrality as it relates to the government suggests that the Court is unlikely to extend the government speech doctrine any time in the near future.
Gibson Dunn's lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, or the authors:
Howard S. Hogan - Washington, D.C. (+1 202-887-3640, firstname.lastname@example.org) Michael R. Huston - Washington, D.C. (+1 202-887-3793, email@example.com) Christine Demana - Dallas (+1 214-698-3246, firstname.lastname@example.org) Rachel Y. Wade - Dallas (+1 214-698-3273, email@example.com)
Please also feel free to contact the following practice group leaders:Intellectual Property Group: Josh Krevitt - New York (+1 212-351-4000, firstname.lastname@example.org) Wayne Barsky - Los Angeles (+1 310-552-8500, email@example.com) Mark Reiter - Dallas (+1 214-698-3100, firstname.lastname@example.org) Appellate and Constitutional Law Group: Mark A. Perry - Washington, D.C. (+1 202-887-3667, email@example.com) James C. Ho - Dallas (+1 214-698-3264, firstname.lastname@example.org) Caitlin J. Halligan - New York (+1 212-351-4000, email@example.com) Fashion, Retail and Consumer Products Group: David M. Wilf - New York (+1 212-351-4027, firstname.lastname@example.org) Howard S. Hogan - Washington, D.C. (+1 202-887-3640, email@example.com) Media, Entertainment & Technology Group: Ruth E. Fisher - Los Angeles (+1 310-557-8057, firstname.lastname@example.org) Scott A. Edelman - Los Angeles (+1 310-557-8061, email@example.com) Orin Snyder- New York (+1 212-351-2400, firstname.lastname@example.org) Sports Law Group: Andrew S. Tulumello - Washington, D.C. (+1 202-955-8657, email@example.com) Maurice M. Suh - Los Angeles (+1 213-229-7260, firstname.lastname@example.org) Richard J. Birns - New York (+1 212-351-4032, email@example.com) © 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
New York partner Richard Birns, Los Angeles partner Benyamin Ross and associate Andria Montoya are the authors of "Fiduciary Duties, Reverse Endorsements and Fundraising in 'Jeter'" [PDF] published on August 17, 2016 by Delaware Business Court Insider.
Dallas partner James C. Ho is the author of "Paxton Ruling on Fantasy Sports is Good for Texans" [PDF] published on January 26, 2016 by Austin American-Statesman, and "Let Texans Keep Daily Fantasy Sports" [PDF] published on January 12, 2016 by Dallas Morning News.
Washington, D.C. partner and Co-Chair of the Fashion, Retail and Consumer Products Practice Group, Howard Hogan and Washington, D.C. associate Alexander Mooney are the authors of "Lynch provides a 'Beast Mode' seminar on use of trademarks" [PDF] published in the Sports Business Journal on April 27, 2015.