Under Analysis- Lawyers who define the game they play

Lawyers, by nature, try to be definitional.   Transactional gurus will define certain terms in their agreements.  Litigators will do the same in their Interrogatories and Requests for Production directed to the other side. (Of course, succinct definitions don’t necessarily save any time or space.   For example,  just because the term “Intellectual Property” is defined to  mean “any and all copyright rights, trademark rights, patent rights, rights to or of publicity, trade secrets, moral rights and all other proprietary and intangible property rights anywhere in the world” in one part of the contract,  doesn’t mean that section 7 of that same document won’t talk about “Intellectual Property, including but not limited to trademarks, rights of publicity, and any tangible expressions of ideas or concepts.”)   
   A  Lawyer’s definitional proclivity does not apply only to abstract concepts. Lawyers also like to define ourselves.   Thus, some law firms will draw a distinction between Mergers and Acquisitions Lawyers and Contract Lawyers, even though it’s hard to acquire a company of any size without at least some type of contract.  Others will seek to avoid confusing their “Trial Lawyers,” “Appellate lawyers” and “Alternative Dispute Resolution Lawyers” with their “Litigators,” although it is not clear what’s left for the Litigators to litigate once those other lawyers take their slices of the pie.   Yet, perhaps the most interesting self-classifications of all are the “Sports Lawyer,”  “Entertainment Lawyer” or “Sports & Entertainment Lawyer.” 
   The Sports and Entertainment Law Report website, http://sports-entertainment-law-report.careers.org/, lists over 75 law firms that it classifies as firms with Sports Law practices,  over 50 firms it classifies as practicing in “Entertainment Law”, and over 100 law schools it labels  “Sports and Entertainment Law Schools”, apparently because they have sports and entertainment law societies or teach classes labeled in that “discipline.”   The website presents articles reporting high profile,  headline grabbing, fast-breaking sports and entertainment stories in a fashion designed to appeal to attorneys and others interested in the law.  The site’s articles address the legal merits of  celebrity and sports related stories involving the law or lawsuits, identify the lawyers behind the sports and entertainment celebrities involved, and sometimes even take a stand as to whether a case has merit, or whether a court has gotten a decision right. (The site claims, for example, that Lindsay Lohan may actually have a claim against the E-Trade baby -- a position not shared by the mainstream celebrity tabloid sites who’ve reported on the litigation with E-Trade. It also claims that the Supreme Court “made the right call” in the recent American Needle antitrust case involving the NFL).      Notably, however, despite the prevalence of self-described sports lawyers and even websites looking at sports and entertainment through  legal glasses,  few if any ever consider what actually is required to be considered a  Sports Law or Entertainment Law practitioner    In this regard, a recent decision of the New York courts is somewhat illuminating.
   In the recent case of Mayer v. Belichick, a New York appeals Court agreed with a trial court’s decision that sports issues do not belong in the Courts at all.  In Mayer, a disgruntled lawyer/fan initiated a class action suit on behalf of NY Jets fans that had purchased tickets to see the Jets play the Patriots in an NFL football game.  After the Patriots defeated the Jets, the NFL determined the Patriots had cheated by taping Jets’ coaches and signals in violation of league rules.   The league fined both the team’s coach (Belichick), and the Patriots, and took away a team draft choice as a further penalty.   Mayer, however, claimed that ticket purchasers had been harmed as well as the League and were entitled to their own relief.  Mayer’s class action suit alleged that the tickets which had been purchased promised access to a fair game, and that the Patriots and league violated that agreement and defrauded ticket purchasers by presenting the tainted contest.  The Court ruled, however, that a violation of sports rules is not a judiciable controversy and is merely a matter for punishment within the league -- a ruling that would put any sports lawyer out of business if he or she really practiced in “sports”. 
    Yet,  no sports lawyer has lost any sleep over the Mayer ruling for the simple reason that Sports Lawyers don’t litigate sports at all.   Rather, they are concerned with employment, construction, contract, antitrust, and other business or personal injury issues which happen to involve athletes or companies that own or operate sports teams, leagues or stadia.  The same is true of the Entertainment Lawyer.  Entertainment law focuses on business and other issues in the context of the entertainment industry, but does not attempt to present, establish or litigate entertainment itself.
In short, sports and entertainment lawyers have succeeded where many of the rest of us have failed.  They have successfully self-defined a specialty that ensures they practice their mainstream types of law only for clients they find interesting, and in connection with transactions and cases guaranteed to generate a spotlight.    Not a bad game if you can convince people to let you play.

© 2010 under analysis llc.    under analysis is a nationally syndicated column of the Levison Group.  Charles Kramer is a principal of the St Louis Missouri law firm Riezman Berger, P.C. Comments or criticisms concerning this column may be sent to the Levison Group c/o this paper or direct via email to comments@levisongroup.com.

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