Sports Law: July 2008 Archives
The Third Circuit has rightly thrown out the $550,000 fine against CBS for the Janet Jackson “costume malfunction” lasting 9/16th of a second during the 2004 Super Bowl Halftime show. The Court concluded that the FCC's actions in imposing a fine for a fleeting incident were arbitrary and capricious. In its Opinion, authored by Judge Sirica, the Court made it clear that the FCC under the Bush Administration was far more out of line and out of touch than Justin Timberlake and his costar.
The FCC had relied on a single sentence in a 2001 policy statement to justify the single, isolated event as an “indecent standard.” The FCC had written: "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness.” Judge Sirica found that the term "relatively fleeting" is not the same as one isolated incident to trigger indecency fines, adding: "While an agency’s interpretation of its own precedent is entitled to deference,” . . . deference is inappropriate where the agency’s proffered interpretation is capricious. Until its Golden Globes decision in March of 2004, the FCC’s policy was to exempt fleeting or isolated material from the scope of actionable indecency. Because CBS broadcasted the Halftime Show prior to [the introduction of the fleeting expletive standard] this was the policy in effect when the incident with Jackson and Timberlake occurred."
The Court also refused to hold CBS liable for the independent actions of the performers. The FCC had argued that CBS was vicariously liable under the doctrine of respondeat superior,. The Court would have none of it, holding: "CBS’s actual control over the Halftime Show performances did not extend to all aspects of the performers’ work. The performers, not CBS, provided their own choreography and retained substantial latitude to develop the visual performances that would accompany their songs. . . . [and] but the performers retained discretion to make those choices in the first instance. . "
Alan Milstein
The connection between Mirapex and compulsive gambling first came to light in July 2005 when doctors at the Mayo Clinic reported the results of a study suggesting a link between dopamine agonist drugs like Mirapex and compulsive gambling.
Researchers have long known that certain drugs can cause adverse reactions that can change a person's behavior by initiating destructive thoughts which lead to destructive behavior. It will be interesting to see if a court and jury will accept the theory that a prescription drug is responsible for behavior such as a gambling addiction.
Alan Milstein
Here is the Opinion of the Court of Arbitration for Sport upholding the decision to disqualify Floyd Landis and strip him of his Tour de France Title. The panel concedes that the initial testing by the French which found traces of synthetic testosterone in Landis’s urine was seriously flawed and departed from the standards by which such tests are governed. Still, three arbitrators found against Landis who had reportedly spent 4 million dollars fighting for his vindication. The panel also ordered Landis to pay $100,000 in legal fees and costs because it said the defense team raised “barely arguable” issues of bias and fraud. In fact, Landis had presented credible evidence that the lab personnel failed to maintain the proper chain of custody of his samples under questionable motives.
The hearings were held behind closed doors despite the attempts by Landis and others to hold them where the media and the public could attend.
Landis, whose endurance has always served him well, responded: "They will never get to the end of how much I can take. I'm not happy that I'm the person who has to take this, but I would never allow myself to be treated this way and ever give up."
Alan Milstein
