February 05, 2012 8:00am PT by Eriq Gardner
Super Bowl Madness: 7 Big Legal Questions (and Answers)
On Sunday, in the biggest television event of the year, the New York Giants and New England Patriots face off in Super Bowl XLVI. The biggest fight will be on the field at Lucas Oil Stadium in Indianapolis, but there's always a chance of skirmishes breaking out beyond the 60 minutes of game action and four corners of the football field. Here are some answers to silly legal questions surrounding the game:
1. I own a bar and plan on throwing the best "Super Bowl" party ever. Can I advertise this without getting into trouble?
In recent years, the NFL has proudly waived its trademark flag. The league owns eight trademark registrations on the words "Super Bowl." This is mostly done to protect the league against ambush marketers who would attempt to leverage the spotlight for commercial gain. For years, advertisers have been advised to not use "Super Bowl" in commercials without a proper license, but intead make use of the words, "Big Game," instead. At the Broadcast Law Blog, attorney David Silverman notes that "the NFL apparently no longer tries to stop Super Bowl parties unless the proprietor charges admission to see the game," but also cautions that the NFL could take action against anyone whose advertising "could imply a false sponsorship or affiliation with the NFL."
Not everyone agrees that the NFL's trademark rights are as strong as the league purports them to be. Last year, Greenberg Glusker attorney Ken Basin made the case that using "Super Bowl" in advertising would be "nominative fair use." For those who believe the NFL talks big game but might wish to challenge it, Basin writes, "The law doesn’t require you to go out of your way to make some oblique reference to something that is principally readily identifiable only by its trademarked name."
2. OK, I won't throw a "Super Bowl" party. How about just holding a Madden video game contest in the parking lot of Lucas Oil Stadium?
Every year, as a condition for having the priviledge of hosting the game, the NFL makes the host city pass ordinances that give the league some control over all commercial activity within proximity of the stadium. These are famously called "clean zones," whereby anyone who wants to do business relating to the Super Bowl in any way must first get permission from the NFL and pay a license fee of around $75.
Last year, a man named Eric Williams joined up with Best Buy to attempt a Madden video game contest in a parking lot near the Super Bowl that would collect money and teach kids about the dangers of bullying. He was arrested for not having a proper permit, and now he's battling the NFL and the city of Arlington, Texas, in court for violating his civil rights. The NFL is disputing that he was targeted because of his African-American race and says it is immune from liability for its petitioning of the city ordinance. Michael McCann, a law professor at Vermont Law School, recently wrote about the case now headed to trial, which he says, "could provide a landmark test case on the legality of clean zone ordinances."
3. I not only like to win money by betting on the Super Bowl, I also derive enjoyment from boasting about my winnings to law enforcement officers. Dumb or very dumb?
Placing wagers on the Super Bowl is, of course, illegal, outside of certain sanctioned establishments such as casinos in Las Vegas. But that doesn't stop millions of people from holding office betting pools. Still, if people were arrested for this sort of thing, there would certainly be blaring headlines in the media. "The chances of any law enforcement being interested in this are very small,” attorney Brian Finucane told the Kansas City Business Journal. “They probably have their own pools.”
Finucane presents some alternative options to stay on safe legal ground, including having employers finance a pool so employees don't have to place wagers, or setting up a raffle with a portion of the proceeds going to charity.
With a low risk of being prosecuted, boasting to cops about winnings is probably dumb, rather than very dumb. But just in case the law enforcement officer doesn't take too kindly to bravado, it's probably best to make sure that taxes on gambling winnings are paid.
4. Can advertisers who run TV commercials during the Super Bowl pay or give anything of value to bloggers to blog, post or tweet about their commercials?
In 2009, the FTC crafted endorsement guidelines for up-front disclosures about business relationships between companies and bloggers. Ever since then, marketing lawyers have been eagerly following the agency to see if there's really any teeth in the enforcement.
Last year, Hyundai offered bloggers gift certificates as an incentive for them to link to the auto company's Super Bowl commercials. Some of the bloggers failed to disclose any "material connection" they had with the company, leading the FTC to open an investigation. Subsequently, last November, the FTC let Hyundai off the hook because the company had a social media policy in place and because the campaign was evidently started by a rogue employee of its marketing agency.
Reading the decision, attorney Venkat Balasubramani says that the FTC's enforcement protocol is hard to decipher. "It seems that entities that haplessly dole out gifts with the unarticulated expectation of reciprocation in the form of an endorsement have yet to come under the FTC's knife," he wrote.
5. So when the winning quarterback, confetti raining down upon him, looks into the camera and says, "I'm going to Disneyland!" does he have to also say, "I hereby disclose that I am a paid endorser for the Walt Disney Company" because of the FTC's crackdown on endorsements and testimonials?
Balasubramani also notes that celebrities who shill for products have been given a free pass. But how much longer?
Gregory Sater, an advertising attorney at Venable, believes that Giants QB Eli Manning -- should he win on Sunday -- better think about this.
"The FTC's view, and they do sue companies for this, is that if an endorser is being paid and it's not otherwise completely obvious to all concerned, then it has to be disclosed clearly and conspicuously," he says.
6. We know it's illegal to stream the Super Bowl telecast, but how about to watch an illegal stream?
That's right. Federal law enforcment just cracked down on 16 unauthorized sports streaming sites ahead of the Super Bowl, merely leaving dozens more out there. For the first time this year, the NFL is streaming the Super Bowl live on its website, but what if someone wants to watch the action with play-by-play announcers speaking Mandaran Chinese?
Tom Brady, from the law firm of Benjarvus Green-Ellis, handles this one.
"Last year, I was rehabbing my foot in Costa Rica watching the game on an illegal Super Bowl website and now I'm actually playing in the game, so it's pretty cool," said Brady.
Needless to say, Brady wasn't seized as part of "Operation Fake Sweep."
7. If I get fired on Monday for bragging to my boss that my Giants crushed his Patriots, can I sue for discrimination?
Certain classes of people are protected by law. Typically, plaintiffs in discrimination lawsuits have challenged prejudicial treatment on the basis of race, gender, religion, age, disabilities or sexual orientation. We're not aware of anyone who has attempted to make a legal beef premised on sports fandom.
"Assuming the employee is at will and is terminated on the basis of something that does not fall within such a protected class, an employer basically is pretty much free to fire an employee for any reason or no reason at all," says attorney Glen Rothstein at Blank Rome. "Rubbing a Super Bowl victory in the boss' face might be a petty but nevertheless legally permissible basis to fire an employee."
Of course, there's always a first for everything. Who wants to make the case that more than 100 million people watching Sunday's spectacle is proof that sports is a national religion?