UIA Congress studies global legal issues: irresponsible journalism, anti-corruption in sport, and intellectual freedom in fashion

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.").

Documentary film critically examines 'Deflategate,' exposes science-for-hire industry, Big Sport marketing machine

At UMass Law School, from left to right: yours truly, sporting a Brady kit gifted by my Torts students, night class of 2018; author, commentator, and comedian Jerry Thornton, former NFL employee Scott Miller; Lemon Martini producer and UMass Law alumna Ami Clifford; and Julie Marron, acclaimed director of Happygram and Four Games in Fall.

The UMass Law School community had a special treat of an event last week: an invitation-only, friends-and-family pre-screening of the director’s cut of the forthcoming documentary, Four Games in Fall, from director Julie Marron and Lemon Martini Productions.  See the film’s home page and trailer here, or the trailer below.  The film is in essence a documentary about “Deflategate,” the 2015 scandal in the National Football League in which New England Patriots Quarterback Tom Brady was accused of orchestrating the under-inflation of footballs to rig games in his favor in the Patriots charge to Superbowl victory.

UMass Law alumna Ami Clifford is a producer of Four Games in Fall, putting her legal education to creative use making—as the tagline for Lemon Martini puts it—“social justice documentaries with a twist.”  Marron is an acclaimed Massachusetts director fresh off the roaring success of her 2015 documentary about mammograms and breast cancer, Happygram.  For a Q&A after the screening, Marron and Clifford were joined by documentary interviewees: Scott Miller, a New Yorker and former NFL employee; Jerry Thornton, WEEI radio personality and author of From Darkness to Dynasty: The First 40 Years of the New England Patriots; and Andrew E. Wilson, a marketing and management professor at St. Mary’s College of California.

Four Games in Fall did not disappoint.  Marron and Clifford explained in the Q&A that neither one of them had more than a passing interest in the NFL and the Patriots when they set out to make the documentary.  But they were attracted to exactly that aspect of the Deflategate scandal: that so many people without a vested interest in Patriots football, with nothing to gain by sticking their necks out, seemed to be taking an interest in the case.  Roughly as Clifford said it, when a lot of very smart people in the sciences, with at best ordinary interest in American football, started looking at the Deflategate case and the penalties exacted against Brady, and saying “something smells here,” she and Marron started paying attention.  They had no agenda, but Four Games in Fall definitely raises red flags—or, I guess, throws yellow ones—on what seems to be NFL commissioner Roger Goodell’s hell-bent persecution of star-athlete and national celebrity Brady and football’s Superbowl-winningest team.

Therein lies the subtle brilliance of Four Games in Fall, which takes full advantage of the documentary format not only to examine Deflategate on its facts and merits, but to place the affair in a critical context from social, commercial, scientific, and legal perspectives.  Reminiscent of Morgan Spurlock’s classic Super Size Me, Four Games features Professor Wilson to explain marketing phenomena such as “anchoring” and “confirmation bias.”  Those concepts help to explain why the conventional wisdom about what actually happened in Deflategate runs so contrary to the facts.  Following the dollar, Marron furthermore examines the enormous market power of the NFL, which amplifies its messaging and suppresses contrary views from the audience and the players’ union.  In this vein, the film brings in the NFL’s reluctant engagement with the mounting evidence of CTE injury and critically exposes the "science for hire" industry.  Meanwhile, science--the real stuff--reveals the startling imprecision behind NFL rules such as ball-inflation standards.  Those standards are so faulty as not to account for on-field temperature in a sport played in late autumn and early winter.

Against this backdrop, Brady’s case winds through the courts, where yet another story unfolds: the un-level playing field of pervasive arbitration agreements, affecting even NFL players, and the Second Circuit’s judicial-typical capitulation to boilerplate contract at the arguable expense of fundamental fairness.  Brady dropped his case before trying to press on to the U.S. Supreme Court, disappointing many observers, including, at that time, he confessed, Thornton.   But the film and the panelists explained a number of reasons why it made no sense to continue.  Brady’s mother was diagnosed with cancer, which did not bolster the QB’s will to litigate.  Yet just as importantly, Brady’s legal team must have realized that its case, implicating NFL players and their union in opposition to the enormous power of the NFL, was sui generis.  It did not make for the kind of broad-implication inquiry that the Supreme Court would likely want to see before exercising discretionary review.  In truth, the many NFL players who are not stars do face physical hardships out of proportion to their remuneration and job security, just like an average factory Joe.  At the same time, NFL players are not Willy Loman, and the NFL is not--quite--E Corp.

Nevertheless, Deflategate, informed by Four Games in Fall, leaves a bad taste in the mouth.  We do, as Americans, seek to identify personally with our sporting heroes, however aspirational the comparison.  Tom Brady’s retiring temperament (supermodel spouse notwithstanding) and boyish charm have the feel of an underdog American David who took on the NFL corporate Goliath and lost.  Whether one agrees or not with the physical and social scientists who populate the frames of Four Games in Fall, it’s hard to conclude on the legal end that Brady and the Patriots got a fair shake.  And with so many of us worker bees—tied up in arbitration contracts we did not meaningfully agree to and don’t really want, beholden to the disproportionate and opaque oligopolistic power of mammoth corporations for just about everything we do, including our employment and especially lately our healthcare—Brady’s loss unexpectedly hits home with all the punch of a 300-pound offensive tackle.

Our hero should have vanquished Goliath and failed.  If Tom Brady can’t beat the monster, what hope is there for the rest of us?

Four Games in Fall is setting off soon for the festival circuit and will come to consumers through one media channel or another shortly thereafter.  See it.  You don’t have to be a fan of American football; I’m not.  This film is about so much more.

 Four Games in Fall trailer.

Villanova symposium seeks to rejuvenate 50-year-old U.S. FOIA

Panel 5 on global and comparative perspectives: moderater Fran Burns, professor of practice in the Department of Public Administration at Villanova University; Anamarija Musa, commissioner of information for the Republic of Croatia; Suzanne J. Piotrowski, associate professor in the School of Public Affairs and Administration, Rutgers University-Newark; and the smiling village idiot.  Photo graciously provided by Catherine E. Wilson, associate professor and chair of the Department of Public Administration at Villanova University.

The week before last, the Villanova Law Review at the Villanova University Charles Widger School of Law hosted the Norman J. Shachoy Symposium on Fifty Years Under the Freedom of Information Act, 1967-2017.  I was privileged to participate and owe a debt of gratitude to Villanova for extraordinary hospitality, especially Law Review coordinators Jourdan Simko and Valerie Caras (current masthead); faculty coordinator Professor Tuan Samahon, himself an accomplished teacher and scholar in constitutional law and government transparency and accountability; and Arthur J. Kania Dean and Professor of Law Mark C. Alexander.

Persons with a broad range and wealth of experience and perspective on the federal FOIA participated in the symposium, offering a mind-boggling array of insights into the state of our 50-year-old transparency regime and its prospects for reform.  Professor Samahon aptly opened the conference by asking participants to think about how the course of history might have been different had transparency been the rule of the day before 1967, say, at the time of the Bay of Pigs or the Gulf of Tonkin.  What far-reaching impact would there be of transformed American involvement in those events?  The question points to historic mistakes and lives that might have been saved, yes; but also to unknown alternatives and dangers unwittingly averted.

The U.S. FOIA was among the first of its kind in the modern world and ground-breaking in its scope.  Professor Samahon later in the afternoon, asking a question of my own panel, pointed to the startling success of the FOIA, lest we take it for granted: a beacon of transparency and accountability in the world, the operationalization of an essential condition for a successful democracy, and a feature of government that is sorely wanting in so many countries today, with real human suffering as the price of opacity and corruption.

At the same time, program participants seemed in universal agreement:  Our FOIA is showing its age.  More dynamic transparency instruments in foreign and international law—incubated in the so-called “second-generation” constitutional and human rights systems of Western Europe and emerging democracies around the world—have made vast strides in government transparency and accountability, leaving our FOIA looking, to put it mildly, rather tired and worn around the edges.  Speaking a cutting truth, Judicial Watch attorney Michael Bekesha said in an afternoon panel that to really make FOIA work, the current statute, 5 U.S.C. § 552, needs to be “blown up,” and a new law constructed in its place.  My own talk looked to innovations in FOI, or "access to information" (ATI) in Africa for inspiration.

Villanova video-recorded the day-long program, and the Law Review plans a symposium issue with contributions from the panelists, to be published later next year.  So stay tuned for more on this important subject.  Meanwhile, I will paste below the program, to whet the appetite.

The Villanova Law Review Norman J. Shachoy Symposium:

Fifty Years Under the Freedom of Information Act, 1967-2017

Friday, October 20, 2017, 9 a.m. to 4:30 p.m.

Welcome

• Mark C. Alexander, Arthur J. Kania Dean and Professor of Law, Villanova University Charles Widger School of Law
• Tuan Samahon, Professor of Law, Villanova University Charles Widger School of Law

Panel 1: The “On the Ground” Operation of FOIA

• Susan Long, Associate Professor of Managerial Statistics and Director of the TRAC Research Center, Whitman School of Management, Syracuse University
• Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law
• Moderated by Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark

Panel 2: The Press, the Academy, and FOIA

• David McGraw, Deputy General Counsel, The New York Times
• Jason Leopold, Senior Investigative Reporter, BuzzFeed News
• David M. Barrett, Professor of Political Science, Villanova University
• Moderated by Terry Mutchler, Mutchler Lyons

Panel 3: Congressional Oversight of the Executive Branch

• Katy Rother, Senior Counsel, Committee on Oversight and Government Reform, U.S. House of Representatives
• Aram A. Gavoor, Visiting Associate Professor of Law, The George Washington University Law School
• Moderated by Catherine J. Lanctot, Professor of Law, Villanova University Charles Widger School of Law

Panel 4: Resolving FOIA Disputes

• Alina Semo, Director, Office of Government Information Services, National Archives and Records Administration
• Marcia Berman, Assistant Branch Director, Civil Division, Federal Programs Branch, U.S. Department of Justice
• Michael Bekesha, Attorney, Judicial Watch, Inc.
• Moderated by Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law

Panel 5: State and Global Comparative Perspectives

• Anamarija Musa, Commissioner of Information, Republic of Croatia
• Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark
• Richard J. Peltz-Steele, Professor of Law, University of Massachusetts School of Law
• Moderated by Fran Burns, Professor of Practice, Villanova University