Entertainment Friday: Football Stories

In anticipation for Super Bowl Sunday, today's theme covers football related legal news.

Why Roger Goodell Might Be Glad The Super Bowl Is Not Competing With An eSports Event … Yet by Kevin Braig

In a recent column, Sports Business Journal media reporter John Ourand predicted the Super Bowl 51 audience will decline 5 percent from the 111.9 million people who watched Denver upset Carolina in Super Bowl 50.  If his prediction is accurate, it will be consistent with the trends that NFL broadcaster endured during the regular season and playoffs.  NFL ratings tumbled about 14 percent during the first half of the 2016 NFL regular season and reportedly finished down 8 percent from 2015.  In addition, seven of the 10 playoff games played to date have drawn fewer viewers than they did in 2015.

On the other hand, more and more viewers have been tuning in to watch eSports competitors battle for prize money in games like League of Legends and Counter-Strike: Global Offensive.  In late January, more than 1 million viewers tuned in on Twitch to watch the CS:GO ELEAGUE major grand finals in which Astralis defeated Virtus Pro.  According to Twitch, the audience broke the Twitch’s previous record of concurrent live viewers on a single channel.  In addition, the grand finals were contested in front of a packed house at Atlanta’s Fox Theatre.

With ratings for eSports programming growing, the ESL Gaming Network announced on February 1, 2017 that it had hired television executive and innovator David Hill to launch a premium eSports production service that will be called Esports by Hill.  Hill is best known for spearheading the launch of FOX Sports.  Hill’s noteworthy digital achievements include developing the game scores and time remaining box (Fox Box), the NFL first down graphic line, and the NHL’s glowing hockey puck.

There may be some connection between the growing audience for eSports programming and the declining NFL audience.  On October 16, 2016, Fox Business reported that a survey conducted by market research company Newzoo found that 76% of eSports enthusiasts claim their interest in professional gaming interferes with the time they would have spent watching sports on television.

Houston is a “No Drone Zone” for Super Bowl LI by J.G. Harrington, Anne Swanson

As has been the case the last several years, the FAA has announced that flights by drones will again be prohibited in a wide area around NRG Stadium in Houston, the site of Super Bowl LI on February 5.  The “no drone zone” extends for 34.5 miles around the stadium.  The “no drone zone” goes live at 4:00 pm and ends at 11:59 pm CT.  The FAA also has produced a YouTube video on the restrictions.

NLRB General Counsel Concludes Division I Scholarship Football Players are Employees under Labor Law by Michael Bertoncini, Howard Bloom, Gregg Clifton, Patrick Egan, Paul Kelly, Monica Khetarpal, Robert Morsilli, Philip Rosen, Jonathan Spitz

Scholarship football players in Division I FBS private sector colleges and universities are employees under the National Labor Relations Act, National Labor Relations Board General Counsel Richard F. Griffin has concluded. Accordingly, he explained, the players have all of the rights and protections available to employees under the Act.

The determination is contained in “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context,” Memorandum GC 17-01, to NLRB Regional Directors and others describing the office’s “prosecutorial position” when unfair labor practice charges are filed by or on behalf of certain college and university students, including the scholarship football players.

...Section 7 of the NLRA protects the rights of employees:

• “to form, join or assist labor organizations,”
• “to bargain collectively through representatives of their own choosing,” and
• “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The first two rights generally are familiar to managers, but the third right is not commonly known, although can be and, in recent years, has been broadly interpreted by the NLRB. It is a violation of the Act for an employer to take adverse action against an employee for engaging in Section 7 activity.

Protected concerted activity usually involves two or more employees banding together to improve their working conditions, or one employee acting as the spokesperson for other employees while seeking a common workplace improvement, or even one employee acting alone to achieve a change that would benefit other employees. For example, a player advocating for more water breaks for the team during a hot August practice can constitute protected concerted activity. It might be unlawful retaliation, in violation of the NLRA, for a coach to direct the player to run laps in response to the player’s request.

The General Counsel Memorandum casts a wide net, discussing more than student- athletes. According to the Memorandum, “students performing non-academic work who meet the common law test of performing services for and under the control of universities, in exchange for compensation, fall within the broad ambit of [NLRA’s definition of employee under] Section 2(3).” Thus, any student who receives compensation from the institution and performs services under the direction of an agent of the institution likely will find a receptive ear in this General Counsel when alleging that he or she engaged in protected concerted activity and was treated adversely as a consequence.

Universities and colleges should be mindful that any student performing service for the institution potentially may file an unfair labor practice charge over perceived retaliation for engaging in protected concerted activity. Training coaching staffs and managers in all departments about the scope of student rights under the NLRA, as well as reviewing student-athlete handbooks and employee handbooks for NLRA compliance, could help reduce an institution’s exposure in an unfair labor practice proceeding.

Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success.  I am available for a free consultation if you call me at 917.388.3574 or 929.322.3546 or email me at danny@djimlaw.com.