The Journal on Sports and Entertainment Law recently sat down with attorney Rachel Barnett, General Counsel of Travelzoo Inc. (NASDAQ: TZOO), a global Internet media company and trusted publisher of travel, entertainment and local deals. Ms. Barnett runs the legal department and is responsible for all aspects of Travelzoo’s domestic and international legal affairs. As General Counsel, Ms. Barnett manages a wide-range of legal matters for the company, including, among other things, corporate governance, employment, intellectual property, corporate transactions, securities compliance and general litigation. Prior to joining Travelzoo in 2013, Ms. Barnett was a member of the Litigation department at Skadden, Arps, Slate, Meagher and Flom, LLP, where she specialized in representing corporations and their officers and directors in a variety of litigation matters including merger and acquisition litigation, shareholder derivative lawsuits and securities fraud class actions at both the trial court and appellate levels. She earned her juris doctor degree from Columbia Law School and a Bachelor of Science degree from Cornell University. Ms. Barnett clerked for the Honorable Vice Chancellor Stephen P. Lamb of the Delaware Court of Chancery.
In the Spring, Ms. Barnett co-teaches the course “Exploring the Role of the General Counsel” at Columbia Law School along with the General Counsel of LVMH Moët Hennessy Louis Vuitton Inc., Louise Firestone.
The interview was conducted by Loren Shokes (Class of 2017), the Executive Editor of Online Content and the Online Interview Editor for the Harvard Journal of Sports and Entertainment Law. The interview is part of JSEL’s interview series with lawyers in the entertainment and sports field that will be featured on JSEL’s website. It has been edited for clarity.
**Please note that, throughout this interview, Ms. Barnett was speaking in her capacity as an individual and a scholar, and not as a representative of Travelzoo or any of Travelzoo’s affiliates**
Loren Shokes, Journal of Sports & Entertainment Law (JSEL): I read that as General Counsel you are responsible for all aspects of Travelzoo’s domestic and international legal affairs, which includes managing the company’s corporate governance, intellectual property, corporate transactions, securities compliance and general litigation. With such a wide range of responsibilities, do you ever use outside counsel, and if so, how do you decide when to do so?
Rachel Barnett (RB): As General Counsel of a global company, there are a variety of legal matters that surface in any given day. For example, I could be drafting an SEC filling one hour and then advising our Human Resources team on an employment matter the next. It is the range of responsibilities that makes the role of a global General Counsel both challenging and exciting. While I strive for efficiency and handle most matters in-house, there are times when the company needs advice from outside counsel who has expertise in a particular area. To that point, one important responsibility of the General Counsel is using good judgment in deciding when to retain outside counsel and when to handle the matter internally to save on costs. For example, if the legal question regards a matter that could expose the company to $2,500 in liability, it probably would not make sense to seek the assistance of outside counsel and be charged more than the matter is worth. However, if you are faced with a larger issue such as a bet-the-company litigation or an acquisition opportunity, it is prudent to seek outside legal assistance.
JSEL: While there is no “typical day,” can you describe the kinds of tasks, duties, and responsibilities you have in a typical day or week?
RB: I agree with you that there is no typical day for an in-house lawyer. With that said, there are a number of tasks that an in-house lawyer faces on a daily basis, which often include such things as negotiating commercial arrangements, working with Human Resources on employment matters, advising on corporate governance issues, reviewing marketing materials, and overseeing intellectual property matters. When I speak with other in-house colleagues, we discuss our similarities in how the role requires us to maintain an ongoing checklist of tasks that are prioritized and then managed. Ultimately, I strive to provide advice that is practical, that fits within the business objectives of the company, and that can advance the business forward.
JSEL: I understand that you are Travelzoo’s first in-house counsel. What were some of the challenges and surprises of being able to establish Travelzoo’s in-house department?
RB: When I started at Travelzoo a little more than three years ago, there was a lot to learn about the Company’s history, culture and operations. The Company was relying exclusively on outside counsel and legal expenses where higher than they needed to be. I believe it was good timing to have a General Counsel join the Company because, at that time, Travelzoo was in the process of expanding and developing new products, syndicating its travel content through multiple media platforms, developing a hotel booking platform, and broadening its operations globally. This provided me the opportunity to dive right in and provide legal assistance for these growing areas of the business. The initial challenges that I faced as the first in-house counsel revolved around building confidence and trust with employees so that they knew they could rely on me for advice. I wanted to establish myself as a business partner to my colleagues rather than a legal road block. I also made an effort to build a reputation of responsiveness so that the business could count on the legal department to respond timely when urgent matters arose.
JSEL: Prior to joining Travelzoo, you first clerked for the Honorable Vice Chancellor Stephen P. Lamb of the Delaware Court of Chancery and then worked as an associate in Skadden, Arps, Slate, Meagher and Flom, LLP New York office. Can you discuss the transition from being a clerk to an associate at a top big law firm to in-house counsel?
RB: I have been fortunate to sit side-by-side with some of the foremost legal experts and attorneys in the world. My experiences and the associated mentorship I received from these top legal professionals early in my career provided me a solid technical foundation to grow from. As a law clerk, I saw first-hand how corporate issues were litigated and resolved in the courts. A clerkship gives you a behind the scenes look at the judicial process. Vice Chancellor Lamb refined my critical thinking and pushed me to strive for writing perfection. Through the clerkship, I was able to develop a deep understanding of the practice of law in the Delaware courts. When I transitioned to Skadden, the first thing I had to learn was to become more of an advocate. I spent the year of my clerkship listening to both sides of the argument and approaching cases objectively. At Skadden and as a litigator, the focus was shifted to advocating for your clients and writing more persuasively. I became skilled in defending companies against shareholder lawsuits and counseling boards of directors on corporate governance matters. My move in-house allowed me to expand my legal knowledge, become more of a generalist, and dive deeper into the commercial aspects of a company. I was no longer advising on a technical legal issue or a one-time litigation exposure for a particular client as was often the case at Skadden. Rather, as General Counsel, I learned to think in a different, and more practical, way. I became strategic, studied the inner workings of the company and considered the overall business strategy and associated company objectives when providing legal advice.
JSEL: Along with Louise Firestone, the GC of LVMH, you taught the course Navigating the Challenges Faced By In-House Counsel during the Spring 2016 semester at Columbia Law School. What is the most important lesson you want students to take away from the course?
RB: I think many of the classic law school classes teach students about legal theory and how to spot issues and apply the appropriate law. The classes don’t necessarily teach you the practical side of commercial law such as how to write an email to the CEO, how to make sure the CFO is properly reserving in the company’s budget for legal matters or what in-house counsel (the client to the law firms) are thinking when deciding whether to retain outside counsel. The class that Louise and I designed at Columbia is meant to educate students on the practicalities that go on in the business world. The lessons we teach are based on real-life simulations that expose students to actual matters faced by in-house legal departments in Corporate America. The premise of the class is for students to run the legal department of a technology company as it successfully grows from a VC-funded enterprise and ultimately decides whether to IPO. By asking the students to envision themselves in the role of in-house counsel, we intend for the course to teach students how to exercise commercial judgment and to act decisively, all the while navigating a complex corporate environment.
What surprised me after we taught the class last Spring was how quickly the students absorbed the practical elements and were able to apply them in a simulation-based learning environment. I think more law classes should be developed that provide similar hands-on experiences since they are directly relevant to the actual practice of law and prepare students for real life experiences.
JSEL: From your own personal observations, what are some of the similarities and differences between your position as General Counsel of a travel company compared to Ms. Firestone, the General Counsel of LVMH?
RB: When Louise and I met for lunch to brainstorm ideas for our course, we noticed that we shared similar experiences even though I worked at a travel company and she at a luxury goods company. You start to realize that there are categories of legal issues that arise no matter which industry you operate within. For the most part, legal departments in Corporate America advise on employment matters, handle IP matters, negotiate agreements, counsel the Board of Directors on corporate governance matters, work with regulators (although may be different regulators depending on the industry), oversee litigation and assist in mergers and acquisitions. It really comes down to the fact that a General Counsel is a legal generalist and acquires knowledge about the many different areas of law. I believe the skills you acquire as a General Counsel are transferable to other industries. You can learn a lot by comparing notes with other in-house counsel.
JSEL What drew you to join Travelzoo?
RB: The people. Travelzoo has an entrepreneurial culture that brings together a diverse group of global professionals who are excited, passionate, smart, creative and have a thirst for travel. While at Skadden, I worked on a variety of legal issues for Travelzoo and had first-hand experience with the company’s executive team and culture. I was confident when I joined Travelzoo that I would have the support from the leadership team, be empowered to develop the legal department, and be surrounded by a positive and challenging working environment. I also believe in the Travelzoo product and its mission to recommend the best travel deals to its members.
JSEL: What advice would you give law students interested in pursuing in-house careers?
RB: I would recommend that law students who want to pursue in-house careers to first get deep, technical experience at a law firm. A firm will teach you the skills you need to analyze legal problems and advise the client. However, when you are at the law firm, make sure to get out from behind your desk and form relationships with others. Try not to spend every day in front of a computer during lunchtime. The work will get done – it always does, and the meeting or event you missed could have led to a life-changing relationship.
The Journal on Sports and Entertainment Law recently sat down with attorney Louise Firestone, Senior Vice President and General Counsel at LVMH Moët Hennessy Louis Vuitton Inc., to discuss current issues in fashion law and life as an in-house attorney. Ms. Firestone joined LVMH in August 1999 after working in-house for Citibank and Credit Suisse.
The interview was conducted by Loren Shokes (Class of 2017), the Executive Editor of Online Content and the Online Interview Editor for the Harvard Journal of Sports and Entertainment Law. The interview is part of JSEL’s interview series with lawyers in the entertainment and sports field that will be featured on JSEL’s website. It has been edited for clarity.
**Please note that, throughout this interview, Ms. Firestone was speaking in her capacity as an individual and a scholar, and not as a representative of LVMH or any of LVMH’s affiliates**
Loren Shokes, Journal on Sports & Entertainment Law (JSEL): In an earlier interview you conducted with A Lawyer’s Life, you explained that many of the issues you deal with at LVMH would be exactly the same if you were working for a toilet paper company. With that in mind, how much of your work specifically deals with fashion and other things that a toilet paper company would not do?
Louise Firestone (LF): What I meant by that comment was that the tools of the law, for example contracts, litigation, dealing with employment issues, etc., are things that pertain to any industry; they do not specifically relate to fashion, beauty, or anything else in particular. It could well be that the contract is for a license, which could be for a fashion house, or it could be an employment contract for a designer for a fashion house. But the tools that I use in terms of the actual work that I do are unrelated to the industry. It’s law. I am not the one who designs the clothes or creates the perfume. I am the one who protects the company. And that is what I meant when I said that many of the issues are exactly the same at LVMH and a toilet paper company. People sometimes have the mistaken idea that I have a very glamorous life, that I am hobnobbing with Marc Jacobs or jetting off to Paris all the time. As a matter of fact, I am jetting off to Paris this weekend but I am going there for a conference. I am not going to a runway show!
JSEL: I read that you began your legal career at the law firm Cole & Dietz, now the New York office of Winston & Strawn, and you then transitioned to work as in-house counsel for Citibank and Credit Suisse before moving to LVMH. Can you describe the most surprising differences between working as an associate at a large law firm and working as in-house counsel.
LF: I think the biggest difference is that when you are inside you really have to understand the business if you want to be successful. And that is something lawyers in firms tend not to understand. To be successful in-house, you have to be very curious about all aspects of the business and how they all work. When you are outside, you are given a particular problem to research, and may not even understand the entire problem is that your client is facing; you are told one little piece of it and your job is to exhaustively research the answer to the one or two questions that have been framed to you. Chances are most junior associates do not get to visit the client and do not fully understand their business. You might understand in general what the business of a bank, or an oil company, or fashion house means. But when I talk about really knowing the business, I am talking about understanding financial constraints, understanding how your clients budget, understanding their pressures on head count, understanding timing issues. For example, if you are in a fashion company, everything revolves around the runway show. Things have to be produced before you can actually walk them down the runway so timing of deliverables is key. To me, the number one difference being in-house counsel as compared to an associate is being much more involved in the business, and the second is that you are a partner with everyone else in the company. Law firms are all about the lawyers; they are the most important people. In a company, lawyers are support staff; and you have to be a little humble about that.
JSEL: How does working as in-house counsel for a bank compare to working as in-house counsel for a multinational luxury goods conglomerate?
LF: A lot of things are similar, which is why going from one to the other did not totally floor me. I would say that one of the things that I really enjoy is that the people here take their work seriously but they do not take themselves seriously. When you are in the luxury goods business, you are in the business of making people happy. That is what you want; you want people to buy your products because it makes them happy. Banking does not have that kind of end product. I think bankers are excited about coming up with complicated ways of saving, moving, or making money for their clients but at the end of the day, unless they come from the private banking world, their clients are big corporations. Here, our clients are individuals. It is a happier place, quite honestly, to work.
JSEL: From wine and spirit companies such as Krug and Moët & Chandon, to fashion and leather goods houses such as Givenchy and Céline, to perfumes and cosmetics including Marc Jacobs Beauty, to watches and jewelry including TAG Heuer, LVMH has a mass of numerous and diverse subsidiaries. As LVMH’s Senior Vice President and General Counsel, what are the challenges you face managing the various types of companies?
LF: I do not manage all the companies. Some of our companies have their own legal teams. A good example of that is the Moët Hennessy business, which is wines and spirits. That is a very heavily regulated industry and we have lawyers who know the industry who work in Moët Hennessy USA. On the beauty, fashion, and in some other areas where the companies do not have their own legal counsel, my team really operates as the day-to-day counsel. So some of the work we do can be relatively mundane. But we also have the ability to do work that is very strategic on behalf of all the brands or sometimes on behalf of just one brand, like the M&A transactions we handle in the department. You would be surprised at how similar the work is across the divisions. We have a real estate attorney working on leases; working on a lease for a fashion company is the same as working on a lease for a beauty company.
JSEL: When LVMH is considering expanding its already extensive list of subsidiaries, what aspects of a corporation makes it attractive to be acquired by the LVMH conglomerate?
LF: I cannot really answer that because I am not part of the strategizing at that level. What I can say is that when you look at brands we currently own, it is fair to say that they all have a particular role within their industry. Guerlain is an iconic French fragrance house. Louis Vuitton, in fashion and leather goods, was an incredible innovator in terms of how you create luggage for travel. I would say that the brands we end up acquiring are iconic and represent something very specific about quality, creativity, and innovation in their field.
JSEL: Was there anything in particular that enticed you to work for LVMH?
LF: Yes and no. I am not a fashionista, at least I did not start out that way, though I have certainly become more interested in fashion since I began working here. The idea of working for a French multinational was appealing to me. I have a Masters Degree in international affairs. My interest originally was not in going to law school at all; my interest was working in the field of international relations, such as diplomacy. I have always enjoyed foreign cultures and languages so working for LVMH appealed to me on that level. It was a French multinational that gave me the opportunity to use my French and connect with our beautiful brands.
JSEL: Did you ever envision yourself working for a fashion company?
LF: No. Never.
JSEL: Along with Rachel Barnett, the General Counsel of TravelZoo, you taught the course Navigating the Challenges Faced By In-House Counsel during the Spring 2016 semester at Columbia Law School. How did you create the course and in drafting the curriculum how much did you pull from your personal experiences.
LF: The course came about after Rachel and I met at a women’s GC event here in New York and we began talking about how when you are outside counsel you do not always understand the needs of your in-house clients. Sometime after that, Rachel approached me saying that she had been thinking about teaching a course and would I consider co-teaching with her. It was intriguing to me. I had never really thought about it. We sat down, brainstormed, and after a couple hours talking about it, I said yes. After that we created the syllabus and brought it to Columbia. A lot of law schools are interested in courses that are more practical, especially for their upper level classes. Columbia asked for a few changes based on what they had heard students wanted. So that is how it happened. We are going to teach again in Spring 2017.
JSEL: What is the predominant message that you want your students to take away from the course?
LF: I think the predominant message is that the role of in-house counsel has changed over the years. Some people think the in-house lifestyle allows you to work fewer hours. That is not necessarily true. Some people think it is a better place to practice law because you do not have partners breathing down your neck. Frankly I do not think that everyone should go in-house. There are a lot of reasons people are not successful when they leave a firm to go in-house. If we can help students understand what it is really like, we are doing them a service. Most importantly though, since most students go to law firms, what we are trying to show them is that if you are an associate at a law firm but you understand your clients’ needs, you are going to be a better lawyer for them. And that is ultimately what we want. When you are in-house you are in a partnership with your outside counsel.
JSEL: You received your Masters Degree in International Affairs from Columbia University School of International and Public Affairs and you speak both French and Italian. I read one of your previous interviews where you stated that you were enticed to move from Cole & Dietz to Citibank when you learned more about the international aspects of the job. As General Counsel of LVMH in the US, do you have the opportunity to work with your international counterparts at the various LVMH branches?
LF: Yes, and it is wonderful. I have colleagues from Italy, France, China, Japan, Brazil and Mexico, and I have been able to meet with my colleagues all over the world, including Shanghai. I get to practice my French and Italian but I speak more French than Italian nowadays. It is one of the things I like best about the culture.
JSEL: While there is no typical day in your line of work, can you describe the range of matters that you work on and how much of your job involves you acting as an attorney and how much deals with the business and management aspects of LVMH.
LF: That is a very good question and it is rather hard to answer because I think many issues, whether they are legal or not strictly legal, involve management and good judgment. But you are right, I do not have a typical day. During a typical week, I probably range from writing up corporate minutes from board meetings for our subsidiaries (I am also the corporate secretary), sending out email blasts regarding OFAC and giving guidance on what our subsidiaries can and cannot do, non-disclosure agreements for possible due diligence on the M&A side, to drafting engagement letters for outside counsel, and attending litigation status meetings and budget presentations. I also administer the department so I deal with fires that my team are facing and try to give them advice on things that come up based on my experience. I am part of the management team and at meetings the discussion is not often legal but I always bring a legal perspective to the way that I look at a problem, and I think that that is usually beneficial to the non-lawyers in the group.
JSEL: What advice would you give to law students who are interested in pursuing a career as an in-house lawyer, and specifically within a fashion company?
LF: The first thing I would say is get your training either at a law firm or possibly the government. The reason that I say that is because those of us in-house tend to prefer to hire people who have already had that kind of training elsewhere; we do not have the resources to do the training ourselves. If you have not had any fashion background or have not worked for any fashion clients before, then I would recommend doing some volunteer work, such as with Volunteer Lawyer for the Arts (VLA), the CFDA Fashion Incubator program, or reach out to a design school and see if you can offer to do pro bono work. Otherwise, attend CLE’s, conferences, and be out there so that when jobs come up (and by the way they are few and far between) you are top of mind. If you are someone who has expressed good interest, followed up, and have not been obnoxious about it, I think that is a way to be remembered when jobs come up. But it is also true that jobs do not come up that often. I am always happy to speak to law students and law firm associates about possible career opportunities; it is a way to give back in gratitude for all those who helped me along the way.
The Journal of Sports and Entertainment Law recently sat down with Josh Berman, the co-creator and show runner of the new ABC show Notorious, to discuss current issues in entertainment law. Prior to his work on Notorious, Mr. Berman was an executive producer on CSI: Crime Scene Investigation, a consulting producer on the Fox television crime drama Bones, and was the creator and show runner for the Lifetime series Drop Dead Diva. Mr. Berman holds a degree in Public Policy from Princeton University, Law and Business graduate degrees from Stanford University, and a Masters in History from Sydney University where he was a Fulbright Scholar.
A preview of Notorious is available here
The interview was conducted by Loren Shokes (Class of 2017), the Executive Editor of Online Content and the Online Interview Editor for the Harvard Journal of Sports and Entertainment Law. The interview is part of JSEL’s interview series with lawyers in the entertainment and sports field that will be featured on JSEL’s website. It has been edited for clarity.
**Please note that, throughout this interview, Mr. Berman was speaking in his capacity as an individual and a scholar, and not as a representative of ABC or any of ABC’s affiliates.**
Loren Shokes, Journal of Sports & Entertainment Law (JSEL): The dramatic wage gap faced by women in entertainment has become an increasingly discussed topic. After discovering that she was paid significantly less than her male co-stars, actress Jennifer Lawrence stated that she was not angry with Sony but rather was “mad at myself…I failed as a negotiator because I gave up early.” As a male who has had a successful career producing and creating shows with strong female leads, why do you think that this is so and what changes do you think will have to be made to spur greater equality for women?
Josh Berman (JB): I think the entertainment industry just reflects a greater problem as a whole in our country, which is that it is not a surprise. Look now or in years before, although the wage gap is decreasing, it still exists. And it’s actually something that we take on in the second episode of Notorious that airs next week when you find out why Ryan admires Julia George so much and has to do with that exact issue that you’re talking about. We actually find out that Julia George has been a crusader for equal wages. So it’s a perfect question and next week I think the show itself gives the perfect answer. It airs September 29th on ABC.
JSEL: The digital age has spurred a “transformation of access” – no longer are people confined to traditional television to watch their favorite shows and programs. In this era of smart phones, tablets, and smart TV’s, an ever increasing number of Americans are cord cutters or cord nevers, people who have never subscribed to a traditional pay-TV service. When you were in the process of finding a “home” for your show, did you ever consider having it exclusively available on Internet platforms such as Netflix, Hulu, or Amazon Prime Instant Video?
JB: I think every show finds its right home and I think Notorious is a big budget, network, juicy, fun, salacious show, and I am thrilled that it gets its first home on network television. But for my other show, Drop Dead Diva, which was once a cable show and is now living on Netflix, a lot of people think that it is a Netflix original show. I think that you have to be prepared to be on any kind of platform. And I think Notorious is well suited for its life and its afterlife.
JSEL: Throughout her numerous shows, Shonda Rhimes has fearlessly portrayed serious and controversial subjects traditionally considered “off limits” or “taboo” for prime time including abortion, police shootings, and torture, to just name a few. Notorious focuses on the intersection of law and the media and how they interact with one another. In light of current events including the Black Lives Matter movement, the untraditional upcoming 2016 presidential campaign election, and the Orlando nightclub shooting, given that you have been provided with a platform in which tens of millions of Americans will watch and internalize what you present to them, do you feel that you have a responsibility to write about such issues and help spur a national dialogue?
JB: I don’t necessarily think that I’m responsible to do it, but I think that taking on issues that are in the zeitgeist makes for good entertainment. I like to think while I’m watching a show and if I’m challenged to think, the more exciting it is. On my last show, Drop Dead Diva, we were nominated for three GLAAD awards and won two. We had an episode about transgender bathrooms before it was even an issue in the media. So I absolutely think good TV drama that deals with law and media needs to be cutting edge and needs to address cutting edge issues.
JSEL: What inspired you and blogger Allie Hagan to create Notorious and how did you decided upon the title “Notorious?”
JB: Easy question. I met Wendy Walker, the real life producer of Larry King Live, and Mark Geragos, the defense attorney, and the show is based on their lives. I sat in a room with them and they began to tell me the stories behind the story. Of all of the stuff that I thought I knew about some of the biggest cases in the last decade, I realized I knew nothing. There was so much behind the scenes that I couldn’t as a writer even imagine it. I’ve spent six years writing on CSI, four years writing on Bones, so I knew a lot about crime writing but I realized that what I thought I knew was nothing compared to the real stories that are out there and that’s why I decided to write this show.
The title Notorious just seemed perfectly suited for the subject matter we’re covering – juicy, exciting, scandalous cases.
JSEL: Can you discuss the difference between your role as a co-creator and show runner on Notorious.
JB: I’m responsible for everything. I like to say if I’m on the set, it’s making sure the lines are read correctly, they’re picking up litter on the floor, and making sure each of the props are right. If I’m in editing, it’s to make sure that the cut is the way I want it to be, that the color correction is done properly, and that the graphics are correct. A show runner’s job is to make sure everyone else’s job functions smoothly.
JSEL: I watched the pilot for Notorious and thought that it was fantastic – a fast paced, on the edge of your seat, fun-filled experience. In a short forty-three minutes, the show touched on everything from murder, to prostitution, to drugs, to adulterous affairs, and more. When creating a show that plunges head first into issues such as these, do you, and if so to what extent, remain mindful of broadcasting standards and that this show is being broadcasted on a network owned by the Walt Disney Company?
JB: We don’t ever write with standards in mind. We write the best show. Yes, there are sometimes compromises to be made, but I never start from a place of compromise. I start from delivering the best show I know how to write and produce.
JSEL: You have an extensive background outside the realm of television and entertainment – to simply list your educational achievements, I read that you hold a degree in Public Policy from Princeton University, Law and Business graduate degrees from Stanford University, and that you were a Fulbright Scholar and earned a Masters in History from Sydney University. How do you feel that your studies impact the way you write, create, and produce television shows?
JB: I think being a lawyer and being trained as a lawyer has made me a much more solid screenwriter in the sense that I hope my logic is airtight. I almost think writing a legal brief is similar to writing a script in terms of not wanting people to be able to poke holes in your story that you’re telling. Certainly, being a lawyer has made me a better writer for sure. In terms of public policy, so much of public policy is debate and good story lines have two points of view or multiple points of view and I think my education absolutely informs who I am as a writer and I believe makes me a better writer. When I talk to kids today who say that they want to be a writer when they grow up, I always advise them to get as much education as possible. None of it will be a waste.
JSEL: I read that you began your career in television during the first season of CSI: Crime Scene Investigations, which premiered in 2000. Over the past 16 years, how have you seen the television industry evolve and are there any new legal issues that you find yourself considering today when working on Notorious that you did not contemplate during your time on CSI?
JB: I started on CSI as a junior writer and I think at that time in my career I was trying to figure out what people wanted to watch versus starting from the place of what makes the best story. So I think the issues or the topics I talk about in writing today is less dictated by what I think people like versus what I think will make better stories.
JSEL: Prior to working on Notorious, you served as an executive producer of CSI: Crime Scene Investigations, a consulting producer on the hit television criminal procedural drama Bones, and you created and were the show runner for the GLAAD winning series Drop Dead Diva. Can you discuss the similarities and differences between your roles on these series and how it compares to you work on Notorious.
JB: Sure. On CSI I started as junior writer and I left as an executive producer. So in a sense I like to say ‘I made my bones on CSI.’ On Bones I came in as a consulting producer. I was only supposed to be there for six weeks but I stayed for four years; it was a fantastic experience and I ran the writers room, meaning that my primary job was to come up with great stories. And then I created Drop Dead Diva and I co-created Notorious. On both of those shows, I actually serve as the show runner, meaning that the buck stops with me, for better or for worse.
JSEL: What are some of the legal issues that arise when writing, producing, advertising, and otherwise promoting television shows that will be nationally broadcasted.
JB: I don’t really approach story that way. We do have a Standards and Practices Department and occasionally they’ll say that this is too close to a real life person or a real life story, but I never think about it that way when I’m sitting down to write.
JSEL: Throughout your career in television, you have worked on a wide array of shows including CSI: Crime Scene Investigation, Drop Dead Diva, Notorious, Bones, Killer Instinct, and Vanished, each being extremely different from the others. With such a diverse portfolio, can you describe what draws you to work on a particular show?
JB: It’s always about the characters. At the end of the day, I need to feel drawn to the characters at the center of the show. I need to want to tell their stories. If the characters are compelling, I will enjoy writing their journey.
JSEL: The LGBT community is one of the most underrepresented groups in the film and television industry. During his acceptance speech for Outstanding Lead Actor in a Comedy Series for playing a transgender woman on the show Transparent, at the 2016 Primetime Emmys, actor Jeffrey Tambor called for producers, network owners, agents, and creative sparks to “please give transgender talent a chance.” As a producer, “creative spark,” and as an openly gay man yourself, do you feel that members of the LGBT community are unfairly discriminated against in the film and television industry and what do you think needs to be done to ensure that LGBT members have a greater representation both in front of the camera and behind the scenes?
JB: I’ve been a big advocate of LGBT characters on television. Obviously, Drop Dead Diva ran for six years and in three of those years we were nominated for GLAAD awards. We won twice, both times for transgender story lines. We hired a transgender actress for the episode that featured a transgender woman. So I feel like I’ve done a really good job and want to continue to do so. There will be gay characters and characters that represent all areas of society and all areas of sexuality on Notorious. I will continue to write to what I find is real.
JSEL: Can you tell me more about your career path and what drew you to work in television.
JB: I started as a lawyer. I thought I was going to be a lawyer but I found myself in law school always turning cases into stories. There was some very dry material and the way I would remember it would be creating characters in the law suits in the cases that were memorable to me and I thought it would be a lot more fun to tell stories about them than to argue about them.
JSEL: What advice would you give those who do not have a background in film or television but are interested in breaking into the industry, and specifically with respect to the legal side of film and television?
JB: If people are looking to break into the creative business like writing and producing, then they need to write and produce. People say that they want to be a writer all the time and you ask them what they’ve written and maybe they have one and a half scripts tucked into their drawer. You’re not a writer until you’ve written five, or ten, or twenty scripts. Every script you write will get better and better. You’ll learn the craft by doing. So don’t tell people that you want to be a writer until you already are a writer. People say they’re too busy – I wrote my first scripts while I was getting a JD/MBA at Stanford. If you’re passionate about it, just do it. It’s never a good thing to say you’re something when you’re not. Don’t represent yourself as a writer if you’re not willing to put in the time.
The Journal on Sports and Entertainment Law recently sat down with Dave Prouty, who serves as General Counsel for the Major League Baseball Players Association, to discuss current issues involving baseball. Dave graduated from Harvard Law School in 1986, and received his BA from Bowdoin College in 1980.
The interview was conducted by Loren Shokes, the Executive Editor of Online Content and the Online Interview Editor for the Harvard Journal of Sports and Entertainment Law and a current third year student at Harvard Law School (Class of 2017). The interview is part of JSEL’s interview series with lawyers in the sports and entertainment field that will be featured on JSEL’s website. It has been edited for clarity.
**Please note that, throughout this interview, Mr. Prouty was speaking in his capacity as an individual, and not as a representative of Major League Baseball Players Association (MLBPA).**
Loren Shokes, Journal on Sports & Entertainment Law (JSEL): As compared to the 300+ college football games ESPN showed across its various platforms in 2009 alone, the only national television program for college baseball is the College World Series. This has created somewhat of a marketing issue for baseball as fans rarely get to view their favorite college baseball players and many fail to make it to the pros. In what ways do you think baseball can do a better job marketing young talent and keeping fans interested in college baseball?
Dave Prouty (DP): In the course of my job I don’t deal directly with college baseball, so the perspective I can give you is only based on what I know from observation. College baseball clearly doesn’t get the same attention as basketball or football, and that’s a shame. There are many fewer scholarships that are given out and allowed for baseball by the NCAA, as compared to football and basketball. Major League Baseball and the MLBPA have a big joint youth initiative now to promote more youth involvement in the game, and that’s taking place on several levels. Part of that is a push by both parties to increase minority involvement in the game. There’s a general recognition that the number of African Americans participating in baseball has declined because more people are attracted to football and basketball and the opportunities are perceived to be greater and more immediate.
The last thing I’ll say is that there’s kind of a sense in which there are cross-purposes here because you have college baseball and minor league baseball and they overlap somewhat. I think there’s a question of which you emphasize and for what reason and that’s something baseball should be thinking about. As a union, we always encourage players to go to college and I would like to see a system that did more to promote those opportunities and that choice. But at the end of the day, the choice has to be the player’s and we completely respect that.
JSEL: With Major League Baseball’s CBA set to expire December 1st, 2016, what advice would you give to players, and more generally free agents, who are concerned about a potential lockout?
DP: I would say that they should stay very involved and in touch with us and they should inform themselves about all the issues that are likely to come up during the negotiations. Players are in fact doing this. We make a huge effort through various means, including lots of face-to-face meetings and various forms of social media communication, to keep our members informed. So my advice to players who are worried about a lockout is to educate yourself, stay involved, and make your opinions known because as a Union that’s what we are, the representatives of the players. Everything we do and every decision we make is based 100% on the input of players, and the strength of the union is the solidarity of its membership. I’m a lawyer for the union, I’m not a baseball player, so my “client” is the union that represents the Major League baseball players as an organization and my job is to help them get, and then help them to enforce the best contracts and the best collective bargaining agreement we can.
JSEL: Baseball is one of the most popular sports worldwide and more than a quarter of all MLB players are foreign born (e.g. David Ortiz, Didi Gregorious, Miguel Cabrera). With the CBA set to expire later this year, do you think both MLB and the MLBPA will negotiate to try to make baseball a more international sport, for example by having an International Draft Day or expanding the World Series so that the top US baseball team would play other countries top teams to truly become a World, and not just National, Series?
DP: Along with MLB, we sponsor the World Baseball Classic, which has expanded every time it has been played and, starting in a couple weeks, there will be the first round of elimination games for the 2017 WBC. It’s now expanded to 30 countries who field teams. So in a very real sense it’s the World Cup of Baseball and players from lots of Major League clubs participate for their country and they love it. The WBC gets a lot of exposure here and even more so in other countries. So it’s a huge deal.
There’s a lot that baseball’s doing and that we’re doing with baseball to expand the reach of the game internationally and I’ll give you a few examples. First in the works, there’s an exhibition game in Cuba during spring training. There’s some talk of having actual games in London. We’ve played real games in Australia and Japan and China and there are also exhibition tours to Asia. There will also be a Major League exhibition game in Mexico City this year as well, and we have had real games in Mexico and also in Puerto Rico. So there’s a huge push to expand the game internationally that is supported by both union and management.
Lastly, it would help for visibility and the popularity of the game if the Olympics would agree to put baseball and softball back into the mix as an Olympic sport, as they were taken away a few years ago. There’s some effort by the International Baseball Federation to have that happen and we obviously support that. (Note: Baseball and Softball were added by the IOC for the 2020 Tokyo Summer Games in 2016).
JSEL: From numerous headline cases of professional players using performance enhancing drugs (PED’s) to the questionable legality of fantasy baseball sites, fairness in the game as a whole has become an increasingly talked about subject. My question is in what ways has the MLBPA tried to regain fan’s trust in the integrity of America’s Pastime?
DP: First, we’ve negotiated with MLB what is generally considered to be the toughest drug testing in sports. On PED’s, our players voluntarily agreed to a program where, all told, they get tested over 6,000 times a year in the aggregate and the number of performance-enhancing substances that they get tested for is added to all the time; the penalties for testing positive have been ratcheted up over the years. All of that has happened at the Players’ insistence and/or with their cooperation. All of that is a strong signal from the players to the fans and to the public that they understand that PED’s should not be part of the game and that they’re willing to help police themselves to get PED’s out of the game.
With regards to fantasy gambling, there’s already, and again the Union agreed to this as part of an overall attempt to reinforce the integrity of the game, a rule that is in place that neither players nor anyone connected with baseball can participate in fantasy games for money that involve baseball. The reason obviously is to make everyone understand that there is no potential or incentive for cheating in baseball and, as we’ve seen with the example of Pete Rose, baseball deals quite harshly with people who are found to have done that.
Lastly, several years ago the MLBPA established the Players Trust, a 501(c)(3) charitable organization that is the first of its kind in professional sports. Through the Players Trust, Major Leaguers contribute their time, money and celebrity to call attention to important issues affecting the needy and to help encourage others to get involved in their own communities.
JSEL: Between 1976 and today, inflation has increased 400%, Major Leaguers’ salaries have skyrocketed 2,000%, and Minor Leaguers’ salaries have increased a meager 75%. While many Major League players often share similar stories of how they had to scrimp and save while they played in the minors, rarely, if ever, do they protest to create a minor league baseball players association as MLBPA only represents those players in the Majors. Can you speak more about why you think such a union has yet to be formed and if you predict that we will ever see a Minor League Players Association.
DP: I don’t know whether we will ever see it, but I hope so. I will say that as a trade unionist I think that anyone who’s employed by anyone else should have the opportunity to join a union and if they’re smart they would join a union. So I think it should happen. However, there are a lot of obstacles to a successful union drive for minor league players. They move around a lot and they have their eyes focused on the prize of getting to the Majors, so they don’t personally identify as permanent minor league baseball players. There’s also a certain amount of intimidation, I’m sure, that players don’t want to step forward, and we have this all the time in the labor movement, that employees take a risk being known as a union activist for fear that it will hurt their career. So there are a lot of hurdles to overcome. Based on what I know about the conditions of life in the minor leagues and what I hear from our members who are now major league players, there’s a lot of room for improvement and I applaud the efforts minor leaguers are making to improve their lot.
JSEL: Approximately 8.6% of NCAA college baseball players successfully matriculate to the Major League and virtually all Major League players play for a minor league team at the start of their career. Because the minor leagues are notorious for their paltry pay and, in combination with the diminutive number of players who are able to successfully transition to the pros, do you think that college players should be paid to play for their universities?
DP: Yes. By way of background, not only our union but also all the major sport unions in the country filed an amicus brief on behalf of the Northwestern University football players when they tried to organize a union of their own. In one of the rare NLRB decisions under the Obama Board that I disagreed with, I was disappointed to see that they were not given that opportunity. So I think that people who work and perform services for the university, whether they play football, baseball, or do anything else, should have the right to organize a union and negotiate with their employer.
JSEL: Have you noticed a difference in how players interact with fans with the increasing prevalence of social media? Additionally, do you view such interactions as beneficial to help players establish a stronger rapport with the public and, alternatively, have you seen any downsides or negative unintended consequences with players directly communicating with fans on sites such as Facebook, Twitter, and Instagram?
DP: The answer to the first set of questions is yes—we’ve seen an increase and I think it’s a good thing. I think players like it and so much of the public is on Facebook and Twitter so it’s a great thing to promote interaction with fans on social media where fans are located. The MLBPA has its own social media platform called Infield Chatter, which is designed exactly to do that—to promote that kind of increased interaction between fans and players on general or specific issues they happen to share in common. So I encourage people to go look at that site [www.InfieldChatter.com].
As to the detrimental effect, like any social media, there are things that happen when you say things that, in retrospect, you wish you hadn’t said. I don’t know if that’s the case necessarily but that’s the nature of the free market of information—it’s out there. So there could be individual detrimental incidents, but on the whole we think it’s a very positive thing that helps connect fans to the game and that makes fans more interested and hopefully gets more of them to come watch our games.
JSEL: Can you tell our readers more about your day-to-day tasks and the wide range of issues you encounter working for the Player’s Association.
DP: Every day is different. We’ve obviously got a lot of work we’re doing now to prepare for collective bargaining (our agreement expires in December 2016) so we’ve been spending a lot of time speaking with Players and getting their views and we’re now in the process of putting together proposals for MLB over the next several months. We’ve also got a number of individual grievances that we’re always handling for players on a wide range of issues such as injury assignment and missing money for things like meals, hotels, or moving expenses. We’ve had some cases involving alleged incidents of domestic violence and from time to time we have players test positive for performance enhancing drugs and we represent them in those cases as well.
We’re also in the middle of salary arbitration right now for players who have roughly 3-6 years of experience. We’re designing a curriculum for players so that we can present education sessions for them on domestic violence during spring training. We’re working on our spring training presentation to the players about bargaining. We’ve spent a lot of time recently talking to Major League Baseball about rule changes, and tinkering with the system on issues like pace of game, instant replay, and various other minor rules changes. I work with a great bunch of lawyers and they all have specializations in each of these areas and so part of my job is to keep track of what they do and give them advice.
JSEL: I read that you worked for Unite Here, a union representing clothing, textile, laundry, hotel and restaurant workers for 22 years prior to joining MLBPA. Can you speak to some of the similarities and differences between the two positions.
DP: I think most fundamentally unions represent workers and whether you’re a hotel worker, a clothing worker, or a baseball player, if you live and work under a collective bargaining agreement, the job of a lawyer is to protect the rights of your members and make sure the employer follows that agreement. So that’s a lot of what is similar between what I used to do and what I do now. I’m still a union lawyer.
Obviously there are some differences. A lot of what our members do is much more in the public eye than the jobs of the average hotel or clothing worker so we have to be conscious of that. I did not have very many reporters calling me when I worked at my old job, whereas I certainly do now. We didn’t have to do a lot with drug testing and issues like that when I was with Unite Here. Once I got here I had to learn a lot about the business of baseball and the baseball industry, but once you do it becomes in many ways like any union lawyer job. You file grievances, you negotiate a collective bargaining agreement with management, you deal day to day with management, settle cases if you can and if you can’t then you take the cases to arbitration and let an arbitrator sort it out for you. Working for Unite Here, I went to lots of union meetings, I talked to members of the union a lot, and I helped educate them and explain things to them. I still do the same things here.
One other thing I’ll say about baseball players is that they are very involved. They’re very committed to the union and I’ve been very impressed by level of interest that baseball players show in their careers and in their fellow Players. The MLBPA has a pretty long and solid history of being one of the strongest unions in the country. You can see how that commitment is passed down from generation to generation, from the veterans to the younger players. There’s a saying that Dave Winfield, who’s on our staff, often repeats: today’s baseball players need to remember and honor the sacrifices the players before them made so that they would get what they have now, and in turn today’s players have to make sure that they act in a way that protects all of those benefits for the players who will follow them.
JSEL: Can you tell our readers more about your career and how you became MLBPA’s General Counsel.
DP: Sure. I came from a union family. My father started out as a machinist in an aircraft engine plant and ended up helping organize his factory into the UAW. He then went on to work as a staff person for a number of unions. So I grew up around the labor movement. When I finished college, I wanted to try to get involved in the labor movement. I worked as a researcher and then as an organizer for another union called AFSCME (American Federation of State, County, and Municipal Employees). After three years, I went to law school with the idea that I could make a solid contribution to the labor movement with a law degree and as a union lawyer. And the law – both labor law and law in general – was interesting to me. So I did that, went to law school, and ever since I graduated I’ve worked for various unions, including ACTWU, UNITE, UNITE HERE, and the MLBPA.
The last part of the story is how I ended up here at the MLBPA. In law school I was friends with a guy named Mike Weiner and we became good friends as we shared an interest in baseball and we were two of the only people who were interested in unions. When I was in law school, I organized a trip every year to Fenway Park and we watched Opening Day for the Red Sox. Years later, Mike called me, looking first for me or otherwise for a recommendation of senior labor lawyers. At first I hemmed and hawed, and he had to recruit me a little bit, but it was time for me to make a change and I had always had great respect for this union so I came to work for Mike at the Players’ Association. After Mike moved up from General Counsel to be the Executive Director, he eventually appointed me as General Counsel. Sadly, it didn’t last long enough; Mike passed away fifteen months after being diagnosed with a brain tumor, which was a big shock and a big loss to all of us. Nevertheless, we were fortunate to have Tony Clark, who’s a retired Player and now the Executive Director, available to step in and take over and keep the tradition in the Union going and I have stayed on as General Counsel throughout.
JSEL: What is the best piece of advice you can offer law students who have an interest pursuing a career in sports law?
DP: The first thing is shown by the example I just gave you: be nice to the people with whom you go to law school, because years later they can pick up the phone and call and offer you a job. But more seriously, the advice that I usually give people is to find something to be good at and to specialize in, and it doesn’t have to be sports law. For instance, whenever we hire here at the Players Association we look for someone who’s either a really good union lawyer, or occasionally a really good business lawyer because we have a whole licensing arm. So the main recommendation I would give if you’re interested in a career in sports law is to find something to do, hopefully sports related, but really work hard and demonstrate your capabilities. You never really know when or how opportunities will arise or when you’ll be at the right place at the right time. But it never happens without a lot of hard work and a lot of integrity. You have to carry integrity with you through your whole career.
The Journal on Sports and Entertainment Law recently sat down with attorney Dolores DiBella, Counsel to the NFL, to discuss current issues in sports law and career development. Ms. DiBella currently manages intellectual property, commercial litigation, employment matters, and rights enforcement for the League and its member clubs. She received her Bachelors in Government from Georgetown University, and her juris doctor from Columbia Law School. After graduating from Columbia, Ms. DiBella was a litigation associate for several years at Proskauer Rose LLP, where she specialized in intellectual property, false advertising, and entertainment law, and handled a variety of commercial litigation matters. She is a frequent guest lecturer and former adjunct law professor. Ms. DiBella joined the NFL at the beginning of 2012.
The interview was conducted by Loren Shokes, a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current second year student at Harvard Law School (Class of 2017).
**Please note that, throughout this interview, Ms. DiBella was speaking in her capacity as an individual and a scholar, and not as a representative of the NFL or any of the NFL’s affiliates.**
Loren Shokes, Journal on Sports & Entertainment Law (JSEL): With the milestone Super Bowl 50 having recently concluded, as Counsel to the NFL, can you describe the type of legal challenges that are addressed in order to prepare for the Super Bowl?
Dolores DiBella (DD): At the NFL, preparation for Super Bowl events often begins several years ahead of time, and the Legal Department has an integral role in that preparation. For example, at least a year beforehand, I often begin working closely with law enforcement in the host city and surrounding areas to ensure that we offer the proper training and resources for counterfeit product and ticket enforcement leading up to the Super Bowl game. In addition to intellectual property enforcement issues ahead of Super Bowl, there are many other legal matters that are addressed such as creative review, contracts, and staffing preparation– just to name a few out of dozens. Every year there are challenges to address in the planning stages, but Super Bowl week is always a rewarding – and exciting—event for both the fans and the League staff.
JSEL: The NFL has been working to grow its international fan base including by scheduling several regular season games in the UK each year. Can you tell us about your role at the NFL’s International Series games?
DD: As the League continues to expand its international presence and hold regular season games in the UK and Mexico, we want to ensure that fans across the globe enjoy an authentic NFL experience. For the International Series games, for example, I work to coordinate counterfeit enforcement operations on game day with several UK enforcement agencies, such as Trading Standards and the Police Intellectual Property Crime Unit (PIPCU), as well as HSI offices overseas. The NFL also works closely with sports leagues and brands abroad so that we can learn about the landscape ahead of time and remain prepared for issues that arise.
JSEL: For years, the NFL and its official partners and affiliates have tried to create new and innovative ways to curb the production and sale of counterfeit game tickets, jerseys, and other official merchandise. For example, in the recent Operation Team Player results announced this month at Super Bowl, the NFL worked with law enforcement to successfully thwart the shipment of over 450,000 items of counterfeit sports merchandise with a retail value of $39 million. Additionally, during a counterfeit ticket and merchandising conference you gave prior to Super Bowl 50 you showed the latest security features on Super Bowl tickets to counteract knock-offs. What strategies is the NFL taking to protect its fans and its goodwill?
DD: The NFL undertakes a multi-faceted approach to its brand protection strategy to protect its fans and business partners year round. Counterfeiting is a crime, and for that reason the NFL coordinates broadly with a number of law enforcement agencies — local, state, federal, and foreign– to give the support they may need for successful operations. We have seen particular anti-counterfeiting success in recent years through Operation Team Player and our collaboration with Homeland Security Investigations and the National Intellectual Property Rights Coordination Center. The NFL also undertakes its own civil enforcement efforts to disrupt the sale of counterfeit NFL products online, including through litigation and seizure actions. In fact, over the last three years, the NFL has filed a number of federal civil cases in the Southern District of New York resulting in the seizure of over 10,000 sites selling counterfeit NFL and Club merchandise. The public has come to expect high quality NFL merchandise, and protecting consumers and maintaining the NFL’s goodwill is an essential part of our brand protection strategy.
JSEL: Many young attorneys who hope to one day work in house at an organization such as the NFL begin their careers at law firms and I understand that after graduating from Columbia Law School you started your legal career in the litigation department at the law firm Proskauer Rose. Can you tell me more about your career path and how you found your position with the NFL? Can you describe the transition between working for Proskauer and being counsel to the NFL?
DD: After graduating from law school, I spent about five and a half years working in the Litigation Department at Proskauer Rose. These years gave me a fantastic breadth of experience in commercial litigation matters, but I was also able to specialize in various intellectual property practice groups, like Trademarks, False Advertising, Copyright, and Entertainment. Building a well-rounded portfolio at the law firm led me to consider in-house opportunities, and then to apply for a position at the NFL that was a match for those litigation skills. The transition between law firm life and in-house life was smooth but of course involved calibrating to the business side of legal practice. Working inside an organization gives you a deep perspective into your client’s priorities, strategies, and the paths for success for each business department.
JSEL: What advice would you give law students interested in pursuing careers in sports law and going in-house?
DD: Start thinking early about the career you want for yourself, and take concrete steps to develop an area of specialty during your law firm years — including by volunteering for non-billable and pro bono assignments in your favorite subject area. With respect to a sports career, I tend to tell students to remember that you need to develop as a “lawyer first, fan second”. First figure out what area of law you enjoy, and then aim to find a position with a sports organization. Sports leagues and clubs engage a broad variety of lawyers: litigation, transactional, real estate, intellectual property, estate planning, labor and employment, and many more; in other words, there are multiple paths to a successful sports career.
The Journal on Sports and Entertainment Law recently sat down with Professor Marek Krzysztof Kolasiński, Professor at Nicolaus Copernicus University in Toruń, to discuss the application of competition (antitrust) law to European sports leagues. Professor Kolasiński explores this topic in his article, “Influence of the Private enforcement of Competition Law on Sport in the European Union against the United States Law Background” which has been published online by JSEL and can be found here.
The interview was conducted by Loren Shokes, an Entertainment and Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current second year student at Harvard Law School (Class of 2017). The interview is part of JSEL’s interview series with lawyers in the sports and entertainment field that will be featured on JSEL’s website. It has been edited for clarity.
**Please note that, throughout this interview, Professor Kolasiński was speaking in his capacity as an individual and a scholar, and not as a representative of Nicolaus Copernicus University or any of their respective affiliates.**
Loren Shokes, Journal on Sports & Entertainment Law (JSEL): In your opinion, is there a series of events, or any event in particular, that helped spur the adoption of Directive 2014/104/EU, which changed certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union?
Professor Marek Kolasiński (MK):The adoption of the Directive is the result of a very long evolution of EU law. In my opinion, the key factor here was the pressure created by the Court of Justice, which has been emphasizing that everyone should have the possibility to seek compensation for losses caused by EU competition law violations. The fact that the European Commission and national competition authorities have limited resources and are unable to deal with all EU competition law violations is important, too.
JSEL: Many US professional leagues, particularly the “Big Three” (NFL, MLB, NBA), have discussed having teams based abroad, and specifically in Europe. How do you think European law will be affected, if at all, by having an American sporting team that is governed under the auspices of US law in its own backyard?
MK: The EU law is basically applied to all economic activities which may have a direct, indirect, actual or potential influence on the trade between member states. This is a very broad concept. As a result, U.S. professional leagues which conduct economic activity in EU are required to follow EU competition law. However, the legal problems in this area should not be overestimated. Plenty of US companies doing business in the EU are in a similar position. If the business model for having European teams represented by the U.S. leagues is attractive, the legal problems will be effectively solved.
JSEL: Is there a particular reason you think EU Sports Leagues are more inclined to follow US sports, as compared to sporting rules employed in South America or Asia sporting leagues?
MK: There are very strong cultural, legal and economical connections between Europe and the United States. As regards sport law, the fact that U.S. antitrust law has been having great influence upon the development of European Union competition law is of particular importance. The European leagues will have to adjust their activity to a new legal reality created by the private enforcement of EU competition law. Private enforcement of competition law, especially in the area of sport, is a relatively new phenomenon in Europe, and the U.S. professional leagues have great experience in struggling with this issue. It would be unreasonable for European leagues not to take advantage of the U.S. experiences.
JSEL: Do you feel that implementing US-style private competition rules are universally applicable to all European sports or do you think they would be more readily applicable to sports that are currently present in the US, such as soccer, than others, such as cricket?
MK:I suppose that private enforcement of EU competition law will have a particularly significant influence upon less popular sports which haven’t attracted European Commission attention so far. The reality of those sports is sometimes very far away from EU competition law standards. As regards the most popular sports and the most significant sports organizations, I would like to draw your attention to the fact that effective private enforcement of EU competition law can diminish the meaning of cooperation between the European Commission and international sport associations.
JSEL: As Professor Peter Carfagna explained, the Sports Broadcasting Act “applies only to television broadcasts, not cable, satellite or internet, or other new media broadcasts.” To further market EU sports to US audiences, do you anticipate EU Leagues strategizing different ways to make their sports more appealing to US audiences?
MK: This is mainly a business issue. In my opinion, only European soccer has the potential to attract a significant Northern American audience. However, there are important limitations to it. “The big three” leagues are deeply rooted in U.S. society and it is impossible for European soccer to effectively compete against them. It seems that it is much easier for European soccer teams to strengthen their position in Asia than in the U.S. Some trivial, but important issues, such as time difference, have an impact here too. Sports events lack the core of their attractiveness if they are not watched live. Legal problems don`t have a significant meaning here.
JSEL: What are some of the potential disadvantages you foresee in increasing private enforcement of competition law?
MK: There are some risks related to private enforcement of EU competition law to sport. The core of them is a result of a lack of experience. It is true that EU competition law has been applied to sport for many years. However, it used to be almost exclusively public enforcement by the European Commission and it was focused upon removing obstacles for European integration. Applying European Union competition law to sport, without the European Commission being involved in the procedure, is a really new phenomenon. The vast majority of EU member states courts, leagues and athletes have never had to deal with the issue. This is the way U.S. experiences should be carefully studied in Europe. I will give you an example. Collective bargained agreements play a vital role in avoiding over-enforcement of antitrust law to sport in the U.S. CBA are almost not used in European sport. To make things worse, athletes unions in Europe are weak and most of them are deprived of the right to collectively bargain. European leagues and athletes can benefit a lot from U.S. experiences.
JSEL: In your opinion, are there any specific inherent or fundamental differences in US sporting rules and regulations that would greatly hinder or impede its integration into European sports?
MK: The structures of European leagues are significantly different than the U.S. ones. Let me give you some examples. The vast majority of European leagues are open – it is possible to get promotion to them from a lower division and to be relegated from a higher to lower division in the case of poor sports results. This is contrary to U.S. leagues standards. Another difference is the fact that the idea of competitive balance in sport leagues is much widely recognized in the U.S. than in Europe. The key issue here is to take into consideration that the differences are deeply rooted in culture and in the fact that the natures of relationships between EU member states and the EU are truly different then relationships between states and the U.S. European fans wouldn’t accept replacing national leagues by one European league. Moreover, a national championship is often more valued than success at a European level. To sum up, the U.S. solutions should not be automatically transferred to Europe, but they must be reasonably adjusted to European realities.
JSEL: Do you see this as the start of a trend to implement a more uniform global set of rules for sports?
MK: Globalization pushes us to greater standardization. U.S. law has a significant influence upon the discussion about the enforcement of EU competition law. The gap between the efficiency of private enforcement of competition (antitrust) law of the U.S. and EU has been diminished. Nevertheless, one should be aware of the fact that very important differences remain. For example, there is no punitive component in the damages for damage resulting from violation of EU competition law. The efficiency of European discovery rules is much smaller than American ones. This is also the case as regards class actions. With the exception of the UK, no EU member state has accepted the opt-out rule. Some European scholars push upon avoiding U.S.-style antitrust cowboy litigation in Europe. The remaining differences in the effectiveness of private enforcement of EU and U.S. competition (antitrust) law will have an influence upon sport.
JSEL: In your article you explain that the fact that the European Commission has approved UEFA Financial Fair Play Regulations is of little importance today and that its importance is increasingly diminishing. If UEFA’s rules were found to not be successful in their implementation, why do you feel that private enforcement of competition law will have a better outcome?
MK: The issue of UEFA Financial Fair Play Regulations is a component of a broader issue of competitive balance in sport. Introducing this idea in Europe must be fair and reasonable. There are significant doubts if UEFA Financial Fair Play Regulations meet those criteria. Some of the European leagues took even much more radical steps to limit a team’s spending. The biggest European speedway league – Polish PGE Ekstraliga – introduced a drastic salary cap. It wasn`t accepted by the athletes and no benefits were provided to them in return. There is also no correlation between league incomes and athletes salaries. This shouldn’t be accepted and private enforcement of EU competition law seems to be a good tool to deal with it.