Message From the Chair
Hello committee members -
I hope everyone’s year has gotten off to a good start. The ACC Sports & Entertainment (S&E) Committee’s initiatives sure are and our membership and social media engagement continues to grow.
The Programming and Resources subcommittee, along with our committee sponsor, Ogletree Deakins, have been working hard to gather resources to aid you in your practices. Keep an eye out for a number of new resources that have been posted to the S&E committee webpage. Additionally, please check out the Sponsor’s Corner below for another quarterly article.
The committee’s outreach to the global sports and entertainment community is continuing and we have established quarterly calls for the EMEA region, having hosted two in the last quarter. Our first APAC call is scheduled for March (see details below). We have hosted two legal quick hits that focused on international issues and are continuing our efforts to seek out resources to aid the global community. We are still looking for one attorney working in each region who would like to serve as a liaison to the committee. This would not entail much time commitment but it would provide the committee invaluable insight into regional needs. If you are interested, please reach out to me.
We are also continuing our efforts to develop local networking events so you can meet your local colleagues and build your networks. If you are interested in working on those programs, particularly outside the Los Angeles/Orange County metro and New York tri-state areas, please reach out to me or Roxanne Khazarian, chair of the Committee & Organization Relations subcommittee.
Also, if you are interested in contributing to the committee’s quarterly newsletter please reach out to Shameeka Quallo, chair of the Communications subcommittee.
As always, thanks to our sponsor, Ogletree Deakins, for its continuing commitment to the committee.
If you are interested in getting more involved in the committee, please join our monthly call which occurs the third Tuesday of each month at 3pm ET (12pm PT), or feel free to reach out to me or our subcommittee chairs directly. Ifyou are on Twitter, please be sure to follow the committee at @ACCSELC.
Danielle Van Lier
Senior Counsel, Intellectual Property & Contracts, SAG-AFTRA
ACC Sports & Entertainment Committee Chair
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Your Sports & Entertainment Committee Leadership Team (2016-17)
Danielle Van Lier
Motion Picture Licensing Corporation
Chapter, Committee & Organization Relations Chair
Gerald Holdings LLC
Annual Meeting Programming Co-Chairs
Tampa Bay Buccaneers
Programming & Resources Chair
Membership – Sports Chair
|Membership – Entertainment Chair
Wasserman Media Group
|Communications – Chair
|International Outreach – EMEA Co-Chair
|International Outreach – APAC Co-Chair
** Please contact the Committe Chair, Danielle Van Lier (firstname.lastname@example.org), for more information.
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Upcoming Legal Quick Hits
We hope you will join us at upcoming Sports & Entertainment Legal Quick Hit monthly calls. The Committee meets the third Tuesday of each month at 3pm EST.
Mar. 21, 2017
Data Licensing: Legal and Practical Issues In Innovative Data Monetization
Sponsoring Firm: Loeb & Loeb
Data is enormously valuable to sports organizations and other industries. Teams and leagues are collecting vast quantities of data using new – and not so new – technologies, and looking at innovative ways to monetize this data and maximize revenue streams. Developing innovative data licensing requires that organizations grapple with the fact deal with unanticipated practical and legal issues involved with the data, all within a legal framework that hasn’t yet caught up with technology.
Join Brian Socolow, partner and Co-chair of the Sports practice at Loeb & Loeb LLP, for this ACC Quick Hits exploring some of the issues sports organizations and industries other face, including:
- Data ownership -- who owns or controls the data and what can they do with it?
- Access and use – who should have access to the data, in what form and when?
- Privacy and data security – how to maintain privacy and restrict unauthorized access to the data.
- Employment, player contract and collective bargaining issues involving the collection and use of data
- Data licensing agreements
Apr. 18, 2017
War Stories: Insurance Coverage Disputes From the World of Sports & Entertainment
Sponsoring Firm: Buchalter Nemer
Presenter: Steven Brower, Shareholder
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Other Upcoming Events & Announcements
Quarterly APAC & EMEA Regional Webcasts
Title: The E-Sports Phenomenon
Sponsor: Bird & Bird
Description: eSports - competitive video gaming - is having a transformative effect on both the sports and video gaming industries. This webcast will give an overview of how eSports works, as well as covering some of the key commercial and legal considerations for those looking to get into the industry, including sponsorship, media rights, team ownership and gambling.
APAC Mar 22, 2017 6pm- 7pm PST/9pm –10pm EST/12pm on Mar 23 HKT
(Presented by Bird & Bird’s Hong Kong office)
EMEA Apr 4, 2017 8am-9am PST/11am-12pm EST/4pm GMT
(Presented by Bird & Bird’s London office)
University of Southern California Gould School of Property Law 2017 Intellectual Institute
Date: March 21, 2017
Location: Fairmont Miramar Hotel in Santa Monica, California
Details: Focusing on copyright, patent and trademark law, the Institute features morning plenary sessions, a luncheon keynote address, afternoon tracked breakout sessions, and six networking opportunities, including a special networking breakfast for women in IP and a hosted cocktail reception at the end of the day. 8.25 hours of MCLE credit and 7 hours of CPE credit available.
For additional information and registration details, please click here.
University of South Florida Sport & Entertainment Analytics Conference
Date: March 29-30, 2017
Location: USF Alumni Center
Details: The Sport & Entertainment Management Program at the
University of South Florida is proud to host the 2017 SEAC Analytics Conference powered by Ticketmaster. The conference will provide attendees the opportunity to hear from leaders from the sport and entertainment industry.
For additional information and registration details, please click here.
PLEASE SAVE THE DATE: ACC Southern California Sports and Entertainment Conference
Date: June 8, 2017 (to be confirmed)
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Member Spotlight – 10 Questions With Nicole Nakagawa
David Cohen, General Counsel of the Tampa Bay Buccaneers
Nicole Nakagawa, Deputy General Counsel of SAG-AFTRA
In her role as Deputy General Counsel, Nicole manages the legal department of over 20 attorneys and support staff. She oversees and manages contract enforcement, membership disciplinary proceedings and provides general legal support to the organization. She also serves as Executive Counsel for the Screen Actors Guild Awards, providing legal advice and counsel to its Executive Producer and production team.
1. What enticed you to work in the entertainment law industry?
As a law student, I did not see myself working in the entertainment law industry. I guess you could say I fell into it because of my background in labor law. During law school [at Santa Clara University] I was focused on employment law having volunteered at a workers’ rights clinic. So I was on that track and clerked for a labor & employment firm during school and began my legal career working for that same firm (Wylie, McBride, Platten & Renner), which primarily represented a broad range of public and private sector labor unions. I was with them for 3 great years but ultimately decided to move back to Southern California, where I’m originally from.
That’s when I learned that then legacy Screen Actors Guild had an open counsel position that matched up with my labor law experience, so I applied. It was an opportunity to continue to fight for workers right but within a very specific industry, which happened to be entertainment. It was a great introduction to the industry and now 9 ½ years later I’m still here and continuing to learn, which I love.
2. Describe one of your proudest moments since you’ve been in the entertainment law industry?
One of my proudest moments is being able to share my experience and journey with law students who are interested in the field. Each year, I host a group of students from my alma mater who express an interest in the area. The day is fulfilling as I’m able to provide guidance to students who may otherwise not know how to break into this area, what to expect, or what the actual practice experience is like.
3. When you are not working, what is your favorite thing to do?
Outside of work, I love spending quality time with my husband and daughter, Morgan. Morgan is 3 ½ years old, always full of energy and is at the stage where her personality is developing, which has been beyond words. Family time is certainly my favorite thing to do outside of work.
4. If you could do anything and knew you wouldn't fail, what would you do and why?
This is such a tough question because so many things come to mind! But I’ll have a little fun with it and think indulgently, in which case I’d have to say head straight to Las Vegas or purchase a lotto ticket.
5. What is your favorite quote?
Get it done!
6. In between handling your job responsibilities, how do you develop and maintain professional relationships?
I try to stay active and involved in various professional organizations, such as ACC, and my local bar association, the LA County Bar Association. Remaining active with these organizations and participating on committees allow me the opportunity to work with others within the industry, and to foster relationships.
7. Name one resource (book, article, website) that changed your life?
The most invaluable resource that has helped me in my practice has been my colleagues at SAG-AFTRA. I am fortunate to work with a dynamic group of professionals with tremendous amounts of institutional and industry knowledge. We have such a collaborative work environment, which allows us to gain insight and learn from each other every single day.
8. What webpages are currently open on your computer?
Gmail and Google News.
9. What is one thing you wish you knew about the entertainment law industry before you started?
I wish I knew that intellectual property would be such an important component of my practice area now. As mentioned, I did not intend to practice in entertainment. So in law school I was taking “Employment Discrimination II” rather than “Intro to Copyright.” Fortunately I’m a quick study and have worked with some great colleagues with an IP background who have served as great resources including [committee chair Danielle Van Lier.]
10. What is one piece of advice you would offer to someone looking for ways to excel within their career?
Find balance between your professional and personal pursuits so that you don’t find yourself burning out on one end or the other, or both. That way you can stay hungry, focused and feel ready for the next challenge whatever that may be.
We would like to thank Nicole for her time and wonderful insight. You can connect with Nicole on LinkedIn at www.linkedin.com/NicoleENakagawa.
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Sponsor’s Corner – Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Must Your Stadium, Theater, or Museum Offer Complimentary Admission to Personal Care Providers?
Author: David Raizman and Amber L. Roller, Ogletree Deakins
Are public accommodations required to admit personal care providers for free? That’s the question that the lawyers in our Disability Access Practice Group have been hearing with increasing frequency since the U.S. District Court for the Eastern District of Pennsylvania issued a decision in May of 2016 holding that The Franklin Institute, a nonprofit museum, was required to offer complimentary admission to the personal care attendant of a severely disabled individual. Below we provide a brief overview of the case and its currently narrow reach, an even shorter critique of the decision, and finally a summary of what your public accommodation may want to consider in the wake of the decision. Anderson v. The Franklin Institute, No. 13-5374 (May 6, 2016)
Overview of the Court’s Decision
Michael Anderson is a severely disabled individual who requires an around-the-clock personal care attendant (PCA) to assist him in eating, bathing, and performing other activities of daily living. Anderson and a nonprofit disability rights organization sued The Franklin Institute (TFI) under Title III of the Americans with Disabilities Act (ADA) (http://ogletree.com/shared-content/content/blog/2016/february/are-hidden-title-iii-claims-lurking-in-your-business) on the grounds that the institute discriminated on the basis of disability by charging an admission fee to PCAs whose sole purpose was to assist severely disabled individuals while they enjoyed the museum. The plaintiffs contended that complimentary admission for PCAs would constitute a “reasonable modification” of TFI’s policy of charging each visitor that would permit the disabled to access and enjoy the museum.
In opposition, TFI argued that complimentary admission for PCAs would result in lost revenue, especially for those special exhibits that have a limited number of tickets or limited capacity. TFI further argued that providing complimentary admission for PCAs would also constitute a “fundamental alteration” to its current operations by compelling it to eliminate services to prevent sizable financial deficits.
The court rejected TFI’s arguments, holding that the plaintiffs’ requests were “manifestly reasonable,” especially in light of the de minimis costs imposed on TFI. In its holding, the court noted:
The ADA sometimes requires substantial investment in elevators, ramps, or special seating. These modifications result in real costs. If the ADA can require such affirmative expenditures, then certainly it can require an entity simply to forego charging a fee. In a cruel irony, the crux of [TFI’s] objection is that it cannot profit from the entrance of one who is there only because of another’s disability. To credit such a theory would not only render the ADA meaningless, but endorse a result inimical to its purposes.
The decision of a single judge at the trial court level has no binding effect—even in the Eastern District of Pennsylvania (centered in Philadelphia), let alone in other trial or appellate courts in the rest of the country. However, attorneys for the disabled can and probably will attempt to use this as persuasive authority on this important question. Any judge analyzing a similar question will likely read this decision at some point in his or her own decision-making process.
A (Very Brief) Critique
While the court’s opinion addresses and rejects many of the arguments against complimentary admission for PCAs, it fails to consider some important ones:
- The court does not mention or address 28 CFR Section 36.306, which expressly states that public accommodations are not required to provide “personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; … or services of a personal nature including assistance in eating, toileting, or dressing.” By mandating complimentary admission for PCAs, the court is effectively requiring the public accommodation to subsidize the personal services that the regulation expressly does not require.
- In evaluating the financial burden of the plaintiff’s proposed modification (a potential defense), the court assumed that requests for complimentary admission would be infrequent. However, according to the Centers for Disease Control and Prevention, 53 million adults—or one out of every five—have a disability and, therefore, may have a basis to argue that they require some personal assistance while attending a ticketed event. Public accommodations that provide other accommodations and advantages for disabled guests understand just how wrong it was for the court to assume that the use of PCAs would be infrequent.
- The court did not evaluate the administrative burden in assessing requests from individuals with disabilities. First, Title III regulations in certain areas plainly prohibit public accommodations from making inquiries about even the existence of a guest’s disability, let alone the specific abilities or limitations that a guest may have. Second, making individualized assessments as to whether an individual’s specific limitations are sufficiently severe to merit complimentary admission would likely present a serious risk of inconsistent assessments. Third, many places of public accommodation do not have a large enough staff, or one with adequate expertise, to handle any significant volume of requests for complimentary admission. And for a large venue, the administrative burden to assess requests could be overwhelming.
A more thorough evaluation of one or more of the above factors could have changed the outcome of this case, or a future case.
What Could This Decision Mean for Places of Public Accommodation?
Even though the Philadelphia district court’s decision has no binding effect beyond the single judge’s courtroom, public accommodations should consider the following moving forward:
- Whatever type of business or public accommodation you operate, you may want to have a policy or protocol in place to evaluate, on a case-by-case basis, any requests for complimentary admission for a PCA.
- If the event for which you charge admission has excess capacity, or no practical limits on tickets sold, you may want to seriously consider accommodating requests for complimentary admission or be prepared to justify the financial and/or administrative burdens associated with permitting complimentary admission. On the other hand, if your event regularly sells out, or has limited seating, you will likely find it easier to demonstrate that permitting complimentary admission constitutes an undue burden.
- If a disabled guest has such severe disabilities that a PCA is truly required for the duration of your ticketed event, you may want to give more serious consideration to permitting complimentary admission.
- It is a best practice to keep a complete record of disabled guests’ requests for complimentary admission (and other requests for preferential treatment), whether or not you provide complimentary admission. Being able to document the volume and nature of requests will be critical to defending whatever course of action you take.
- You may want to periodically evaluate the bases for your chosen course of action. A decision to provide (or refuse to provide) complimentary admission for a certain period can be reversed, but only if an adequate record is maintained and careful consideration is given to the reversal of action.
Additional Resources from Ogletree:
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Congratulations to the Sports & Entertainment Committee on receiving the Breakthrough Performance Award at the 2016 ACC Annual Meeting held in San Francisco in October 2016!
Pictured from Left to Right: Peter Hughes (Olgetree Deakins), Emily Roisman (Chair Emeritus 2012-2013), David Cohen (Chair Emeritus 2014-2016), Danielle Van Lier (Current Chair).
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Please follow us on Twitter @ACCSELC for additional announcements from the Committee, as well as news from the world of sports and entertainment law.
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