Just this week I returned from the annual world congress of
the Union Internationale des Avocats, which did not disappoint. Lawyers from around the world gathered in Toronto to exchange
experiences and ideas on a range of cutting-edge themes.
Highlights of this year’s UIA for me included the media law
and sports law panels. The media law
panel was coordinated by Emmanuel Pierrat, of Cabinet Pierrat, and Jean-Yves
Dupeux, of Lussan & Associés, both in Paris.
The sports law panels were coordinated by Fernando Veiga Gomes, Abreu
Advogados, Lisbon; Robert J. Caldwell, Kolesar and Leatham, Las Vegas; and Emanuel
Macedo de Medeiros of the International Centre for Sport Security, an NGO based
in Doha.
Liability for Journalism
The media law program asked panelists to examine how "irresponsible" and "responsible" journalism are faring in today's legal systems. Thierry Bontinck of Daldewolf SCRL in Brussels
ran through recent developments in the European Court of Human Rights.
We’ve always known that the European approach
to freedom of expression is characterized more by balance than the
presumption-rebuttal approach of the U.S. First Amendment. That tension goes a long way to explain U.S.
reluctance to enforce foreign libel judgments over the decades, a reluctance
codified in the SPEECH Act during the Obama Administration. But Bontinck’s analysis shows a recent trend
in the ECtHR to further downplay the primacy of free speech, putting it on par
with competing interests, such as privacy, fair trial, and
law enforcement.
It is not clear to me whether this trend will further
alienate Europe from fundamental rights analysis in U.S. constitutional law, or
might be running in parallel to a trending subordination of free speech in our
own courts. Frankly I would welcome the
change here were rights of reputation and privacy to elbow a little more room
for themselves in our First Amendment law.
But I would be less eager to embrace a free speech trade-off with more
abrupt implications of state power, such as surveillance by law enforcement.
Litigation against Saudi Arabia and the FBI
Also on the media law panel was Thomas Julin of Gunster
Yoakley & Stewart, P.A., Miami.
Julin gave an expert overview of developments in American media
law. Yet most captivating was his update
on the efforts of families to sue Saudi Arabia in S.D.N.Y. for
September 11 losses, more than US$100bn in damages, under Congress’s remarkable
waiver of the Saudis’ foreign sovereign immunity.
Julin represents the award-winning Florida
journalist Dan Christensen in FOIA litigation against the FBI, now going to the
Court of Appeals, for records related to 9-11 investigation of the Saudis. Needless to say, plaintiffs in the New York
litigation are carefully watching the collateral FOIA litigation, which could
unlock a vault of evidence.
Julin
pointed out that Saudi moves toward commercial and political liberalization, such as a planned IPO
of the oil industry in New York and even the recent announcement that Saudi
women would be allowed to drive cars, might be a function of U.S. liability
exposure.
Whither Goes Sullivan?
In running down U.S. legal developments, Julin talked of course
about the Hulk Hogan case, Bollea v. Gawker ($140m
verdict, $31m settlement) and the Pink
Slime settlement (Beef Products, Inc.
v. ABC, Inc.). Although the Pink Slime settlement was confidential,
Julin said that SEC filings disclosed a $177m pay-out from ABC News parent
Disney to the beef industry (on its $1.9bn claim), and that doesn’t include
losses covered by insurance. That might
be the biggest defamation settlement in the world, ever, Julin noted.
From the audience, Jim Robinson of Best Hooper
Lawyers, Melbourne, Australia, added to the mix Rebel Wilson’s record-setting
A$4.57m win in Victoria. All this led
Julin to express some concern about whether New
York Times v. Sullivan today carries waning cachet (a mixed blessing in
my opinion).
Arbitration in Sport
In sports law, a first panel compared case outcomes across
international dispute resolution systems.
Moderated by Caldwell, the panel comprised David Casserly of Kellerhals
Carrard in Lausanne, Switzerland; Paul J. Greene of Global Sports Advocates, LLC, in Portland,
Maine; Roman E. Stoykewych, senior counsel for the National Hockey League
Players Association in Toronto; and Clifford J. Hendel of Araoz & Rueda in Madrid.
One case the panel examined involved the hit of NHL player
Dennis Wideman on linesman Don Henderson in January 2016.
The video (e.g.
SportsNet
Canada) is not pretty, but it turns out there is much more than meets the
eye.
In the video, at first blush,
Wideman seems quite deliberately to hit the linesman from behind.
In context, however, Wideman was coming off
of a concussive blow into the boards himself.
Stoykewych explained that Wideman was woozy, and what looks like a
raising of his stick to strike Henderson can in fact be explained as a
defensive maneuver whilst skating into an unidentifiable obstacle, if not a perceived opponent on the attack.
Casserly moreover
suggested that Wideman’s plight might be likened to the exhausted fighter who
inexplicably starts beating on an intervening referee.
The NHL rule on intentional strikes is all
the more confounding, as it seems to define intent with an objective
reasonableness test.
Ultimately the
players’ union won reduction of Wideman’s heavy sanction to something like time
served.
The case occasioned a vibrant
discussion of evidentiary procedures, decision-making standards, and review
standards in sport arbitration.
In the bigger picture, the case makes for a fascinating study of civil
culpability standards and comparative dispute resolution mechanisms.
Integrity in Sport
Moderated by Macedo de Medeiros, the second sports law panel
comprised Randy Aliment of Lewis Brisbois Bisgaard & Smith LLP in Seattle,
Washington; Matthew Shuber of the Toronto Blue Jays Baseball Club; and Veiga
Gomes.
The panel occasioned introduction
of the
Sport Integrity Global Alliance, a
meta-organization born in 2015 to bolster integrity in global sport
governance.
Not many people need to
persuaded any longer, since the FIFA Sepp Blatter fiasco, of the problem of
corruption in world sport.
Boston's and
Hamburg’s disgruntled withdrawals from Olympic contention spoke volumes about skepticism of sporting mega-events, and I
for one wonder at Eric Garcetti’s embrace of Olympic promise for Los
Angeles.
Yet the corruption problem infects more
than just the highest echelons of sport governance, as money filters through so
many political layers and across so many social sectors.
Veiga Gomes illustrated for example:
Ninety percent of European footballs clubs do not publish their books,
enjoying utter opacity in their accounting.
At the same time, 77% of European clubs are insolvent or “close to
insolvent.”
Meanwhile, FIFA, UEFA, and
the European football associations generate more than US$3bn in annual revenue.
So where is all that money going?
Thus, Veiga Gomes concluded, a “major
transparency problem” renders football vulnerable to corruption and organized
crime.
Strike a Pose
Though I was not able to spend as much time there as I
liked, the UIA commissions on contract law, fashion law, and intellectual
property law put on a fabulous full-day working session on “launching a
fashion label business,” ranging across the areas of law practice implicated by
a fashion-label client.
Sharing the helm
of this ambitious program was an IP lawyer whom I admire, Gavin Llewellyn, of
Stone King LLP, London.
Taking part
in the program was my friend and esteemed colleague from UMass Dartmouth Public
Policy,
Professor Nikolay
Anguelov.
Dr. Anguelov talked
essentially about the thesis of his book,
The Dirty Side of the Garment Industry: Fast
Fashion and Its Negative Impact on Environment and Society.
His talk made a vital and unusual
contribution by making lawyers in the business think about the externalities of
their commercial work in many dimensions, including social, economic, and
environmental.
Credit to Llewellyn
for bringing in Anguelov.
For every snippet of the fashion law program I was able to
catch, I learned something. My favorite
takeaway was a discussion by Renata Beržanskienė, of the Sorainen law firm in
Vilnius, Lithuania, about the “Jesus
Jeans” case. The case involves
clothing and its advertising by the Robert Kalinkin fashion house. Provocative images of a shirtless Jesus
wearing Kalinkin jeans drew a public morals fine from the Lithuanian consumer
protection authorities under national advertising law. Presenting issues in free expression,
commercial speech, and public authority to regulate morality, the case is
pending before the European Court of Human Rights.
Compare Mark 4:14 (ERV) (“‘They will look and look but never really see.’”) with Jordache 1983 (“You’ve got the look.").
