by Mike Masnick
Mon, Sep 8th 2014 3:48pm
Thu, Jul 3rd 2014 4:11pm
from the the-poorest-saint dept
We've had a great many discussions about how employers react to the social media content of their employees. There have been questions over whether employers should be able to fire staff for Facebook content, whether staff can be perma-banned from using social media sites at all, or even whether or not employees should be required to cough up social media passwords to their employers. These stories tend to focus on an employer doing something that makes the employee uncomfortable.
You want to know what's really an uncomfortable result of an employer looking into an employee's social media account? How about losing five million dollars? That's exactly what happened to New Orleans Saints receiving tight end Jimmy Graham.
Unable to negotiate a deal, the Saints slapped Jimmy Graham with a franchise tag as a tight end. Graham disagreed, declaring himself a receiver, in order that he be paid like one. The dispute went to arbitration, and today arbitrator Stephen Burbank came down on the Saints' side. The difference is significant. A franchise tag pays a player the average of the five highest-paid players at that position, and WRs—especially the top tier—are paid better than their TE counterparts. A ruling favorable to Graham would have seen him make $12.312 million this season; instead, he'll make $7.035 million.For you non-sports fans out there, the reason for the average price difference is due to the fact that a team's wide receivers are generally more skilled players compared with tight ends. Typically, receivers primarily, you know, receive, as in the ball, typically on pass plays. Tight ends traditionally occasionally catch passes, but are often used as on-the-line blockers as well and aren't considered to have the catching, jumping, and speed skills of a receiver. For you non-Jimmy Graham fans out there, Graham breaks the stereotype completely, having led his team in receptions, caught yards, and receiving touchdowns. His argument that he wasn't really a tight end had a ton of merit. Unfortunately for Jimmy Graham, the arbiter took to the opinion of Jimmy Graham in part when rendering his decision.
The arbitrator's decision isn't public, but dribs and drabs of Burbank's reasoning have come out. (Ian Rapaport and Albert Breer are your best sources.) Among Burbank's justifications:Oops. Kind of hard to argue that you're not a tight end when your own Twitter bio calls you a tight end. Now, the article notes that the Twitter bio probably wasn't the key factor in the decision, stating that the arbiter likely instead focused on how close to the offensive linemen Graham started most plays (which is stupid, by the way), but it did serve as a sort of catchy "If it doesn't fit, you must acquit" moment against his claim.
-Graham attends TE position meetings.
-Graham was drafted by the Saints as a TE.
-Graham lists himself as a TE in his Twitter bio. (Yes, the Saints argued this.) Burbank, via Rapaport: "Mr. Graham refers to himself as a tight end in social media that he controls and his agents do so as well."
-Graham lined up within four yards of the offensive line on a majority of his snaps last season.
Either way, before you go telling your bosses what role you play in a company, probably best that you get your story straight with your social media accounts first.
Tue, Dec 24th 2013 5:06pm
from the about-time dept
Forty years ago, there was a theory going around that if a professional sports team didn't sell enough tickets to their games, it would be a good idea to punish the viewers of their television product, also known as their other revenue stream, in some kind of ham-fisted attempt to get them to purchase tickets instead. While this was stupid even then, this was back when ticket sales and in-stadium sales represented a massive percentage of an athletic team's revenue. It was also back when the style of the television broadcast meant that poor attendance was hugely reflected on the home screen, which could have a negative impact on the perception of the team, the entertainment product, and the sport in general. Still, anyone with even an iota of thought that any of this was a good idea only had to look at the Chicago Blackhawks' popularity (or lack of it) during their blackout period to know how misguided this all was.
Yet this practice has gone on in the NFL for the past four decades. And, while league officials love to point out how few blackouts have occurred since implementing the policy, they're conveniently forgetting to tell you about how teams are gaming the system by buying up remaining tickets or altering their stadiums to avoid the blackouts. Less known is that the FCC has been a partner in these NFL blackouts for all these many years, but now that looks to be changing. They recently voted to lift the blackout restrictions entirely, recognizing that they were at best a strategy for a different time.
"The sports blackout rules were originally adopted nearly 40 years ago when game ticket sales were the main source of revenue for sports leagues...," the FCC said. "Changes in the sports industry in the last four decades have called into question whether the sports blackout rules remain necessary to ensure the overall availability of sports programming to the general public."So, what are these changes that the FCC is recognizing? Well, for starters, ticket sales and stadium sales aren't the mass revenue generator they once were. They're still important, of course, just not as important as the insane television and advertising deals now in place.
The networks pay a combined total of about $3 billion a year to broadcast NFL games based on a nine-year deal signed in 2011 worth almost $28 billion. Neither Fox Sports nor CBS Sports, the main carriers of the NFL, had any comment on the FCC's proposal.No, I suspect the networks were too busy keeping their heads from nodding in vigorous fashion at the FCC ruling to comment on much of anything at the moment. Because, while there have indeed been few blackouts, even the threat of a blackout is a stick in the eye of the advertising cow that is the NFL. More stability in the availability of the product is of course a great thing for them, particularly given that NFL teams tend to be in larger markets and local blackouts effect massive amounts of people. So we're all happy happy here, yes?
No, of course not, because the NFL appears to be run by people who have spent too much time hitting one another with their heads.
The NFL said in a statement that it will "strongly oppose any change in the rule. We are on pace for a historic low number of blackouts since the policy was implemented 40 years ago. While affecting very few games the past decade, the blackout rule is very important in supporting NFL stadiums and the ability of NFL clubs to sell tickets and keeping our games attractive as television programming with large crowds."Nothing the FCC votes on prevents the league and/or teams from implementing their own blackout rules, so the NFL is free to continue down that path out of a fear of the television product showing less people at the stadiums. But that, dear friends, is stupid. It's stupid for several reasons. First, wider television audiences build up the fanbase and bring in greater crowds to the stadium. That was the lesson the Blackhawks should have taught everyone. Second, the NFL has never been more popular than it is today. Given that, if there are less people at the stadium, guess where they're watching? Yup, on their televisions, which we already know are now the major cash cow of the teams and the league. So you're going to cut that highly-paid nose off just to spite your stadium face?
Still, more television access, more streaming, and less restrictions are a trend that cannot be fought. It may take a change in leadership, but eventually the NFL blackout rules will go the way of the no-forward-pass rules, and they'll be all the better for it.
Fri, Sep 13th 2013 3:20pm
from the what-are-you-inking? dept
You'd think with all the threats facing the NFL and American football, such as Twitter-spoliers on draft picks and the impending SkyNET takeover, the powers that be in America's most-watched game wouldn't have time to deal with more minor threats from non-sentient-destructo-machines, but here's the stupidity of copyright on tattoos to prove me wrong yet again. You may recall that former athlete/tattoo issues have included Mike Tyson's face being visible in The Hangover 2, as well as UFC fighter Carlos Condit being depicted accurately in a THQ game.
Well, this nonsense hasn't gone unnoticed, and the NFL Players Association has taken a firm stance that it will run the hell away from any licensing issues that arise from their members' tattoos being depicted in any form of media. Featured prominently in Forbes' analysis of the issue is Colin Kaepernick, quarterback of the 49ers and a man that has done more to combine ink and flesh than an all-squid orgy.
The question is no longer whether the tattoos that cover Kaepernick's body will detract from his brand; the fear is that it could lead to future liability not only for the signal-caller, but for all other NFL players who are inked up. The ink issue is over who owns the copyright to the images depicted by the tattoos emblazoned on athletes' bodies. According to sources speaking to FORBES on condition of anonymity, the issue of copyright ownership concerning tattoos on football players has very recently been labeled as a pressing issue by the NFL Players Association. One source said, “I don't blame [the NFLPA], but they should have been on top of it earlier. It was something that was mentioned at the NFL Combine — that was the first I had ever heard them mention anything on the issue of tattoos. They advised agents to tell their players that when they get tattoos going forward they should get a release from the tattoo artist and if they can track down their former artists, they should get a release.”And if they don't, or can't, get said release? Well, the NFLPA is then going to require that players agree to release the NFLPA from all litigation claims. Not only that, but likewise the NFLPA will seek to “indemnify and hold harmless” any of its licensees as well, such as EA Sports' Madden NFL franchise.
And that's really the shame of the story, because there's a potentially really interesting legal case to be fought here, and if anyone had the financial resources to push things along that far, it'd be the large group of millionaires that make up the NFL Players Association. Instead of pressing the issue, NFL players are instead left holding the liability bag, wondering whether or not they can make money off of their own freaking image, which is the kind of question that would convince me personally that I must be trapped in some 7th circle of the stupidest Hell imaginable. It's especially silly since, as Forbes notes, it's not remotely clear that gaming and media companies wouldn't be in the clear to use these depictions anyway.
Defenses based on fair use and that the tattoo has become a part of the recipient's persona for the purpose of the recipient being able to effectively license his likeness may be applicable. It is difficult to fathom that those responsible for drafting the Copyright Act intended to legally prohibit individuals adorned with tattoos from making public appearances or endorsing products without covering up their ink. But nobody wants to take the risk of appealing to the spirit of the law.On top of that, you'd think that the players themselves, and the organization that represents them, would be interested in fighting back against any copyright claim, not just because of the monetary liability but because of Section 503, which notes that one of the remedies for infringement is that the court can order that the infringing product may be "destroyed." And while fans of, say, the Seattle Seahawks, might like the idea that Colin Kaepernick's arms may need to be "destroyed," that seems like something that the Players' Association might want to take a stand on.
Stated more honestly, this is yet another example of how copyright has gone so far and above its intent as to be unrecognizable by those that put it in place. And nobody wants to fight the fight, which means we'll likely either get a tidal wave of stupid lawsuits over tattoos or less-accurately depicted athletes in games and media. Way to go, copyright.
Fri, Aug 23rd 2013 11:27am
from the personal-foul,-silencing-critics dept
It never ceases to amaze me how businesses just can’t seem to understand the Streisand Effect, or its sister phenomenon, the cover up is always worse than the crime. Whether it’s small groups like a bunch of straight pride people that seek to silence what was essentially their own strange words, hugely famous celebrities, members of Congress, or even major television networks, the hits keep on coming.
But my ears perk up particularly when an otherwise massively successful company who should know better feels the Streisand slap down. Take the NFL for instance, which is currently suffering under reports that it pressured ESPN to pull out of a partnership in a PBS Frontline documentary on how the NFL has turned a blind eye to players suffering concussions, dementia, and chronic traumatic encephalopathy. According to all parties, it started out so well.
“[PBS’s] Aronson-Rath said that until last Friday, there had been no hint of trouble between “Frontline” and ESPN. She said that “Frontline” had worked “in lock step” with Vince Doria, ESPN’s senior vice president and director of news, and Dwayne Bray, senior coordinating producer in ESPN’s news-gathering unit.”So, what happened on that Friday that caused ESPN to suddenly pull out of the partnership, which would have resulted in shared profits from the documentary? Well, during the previous week, the NFL hosted a meeting with ESPN’s President John Skipper that has been described as “combative.” The NFL, which is currently facing a class-action lawsuit from thousands of former players over the way it dealt with head-trauma and related injuries, is obviously not pleased about the documentary. Roger Goodell, league commissioner, was reportedly particularly upset that ESPN was working on the film in conjunction with its filmmakers. While Greg Aiello, NFL spokesman, insists that they did not ask ESPN to pull out of the project, it’s rather easy to connect the dots when ESPN did just that almost immediately after the meeting and without any discernible business reason.
And discernible business reason other than ESPN pays the NFL roughly $1 billion to broadcast the wildly successful Monday Night Football, an absolute cash cow for the Disney-owned station. In other words, the NFL told ESPN to bail on the project and they complied. Why? Because ESPN isn’t in the journalism business. Despite what they’d like you to think, they’re a marketing company, with any faux journalism done strictly to build up their televised sports products. That’s fine for them, but there’s a problem for the NFL.
That problem is that this story is now everywhere. Deadspin, the NY Times, all over the place. What was once a PBS documentary that might have been lightly covered by ESPN (though not too much, since it doesn’t hurt its own programming that way) has now been driven into the public discourse in typical Streisand-fashion. And, as always seems the case, everyone gets smeared except the actual documentary they want to silence. The NFL looks both meddlesome and as if it has something to hide, ESPN is all the more revealed to be a non-journalistic enterprise, rather than the journalistic one it pretends to be, and the Frontline documentary is getting a ton of attention.
Bang up job of keeping quiet how violent football is, NFL guys!
Thu, May 30th 2013 1:03pm
from the it-was-just-a-joke,-guys dept
And now we can add to that list the case of Joshua Barber and Nicholas Kaiser, who are looking at up to 5 years in prison and/or a half-a-milliion dollar fine for the crime of getting two NFL general managers to talk to each other on the phone and recording the conversation. Their prank consisted of calling the office of Buffalo Bills GM Buddy Nix, claiming to be Tampa Bay GM Mark Dominik, hanging up, then dialing Dominik. The confused Nix called back using the redial function on his phone (many, many times), and the pranksters finally called Dominik as well, just as Nix called them back, hit the conference button, joined both GMs on the line and recorded the ensuing conversation. It's worth noting that conversation was about as innocuous as it gets. No real embarrassment was to be had from the recording, which was then sold to Deadspin. The result of the prank is far less innocuous.
[The] two Plymouth, Mass. men were charged Wednesday with intentionally intercepting a wire communication and with making a telephone call without disclosing their identity with the intent to annoy or harass the person at the called number. The complaint further states that after the conversation was recorded, Barber and Kaiser sold the unauthorized recording to the website deadspin.com. If convicted, Barber and Kaiser face a maximum penalty of five years in prison, a $500,000 fine or both.And yes, here are your tax dollars at work, with the FBI/DOJ gloating about taking those darn prank callers off the street and ruining their lives with extended jail time and fines. Half a million and half a decade in jail for a prank phone call? Shall I assume The Jerky Boys are currently dropping soap in barred showers, or is the safer assumption that someone in the legal system sees this high-profile prank as a way to further their career?
Mon, Apr 29th 2013 12:03pm
from the mega-fail dept
Professional sports leagues in general tend to have some degree of desire in controlling information. Some attempts at control are more sensible than others, however. For instance, taking down streams of the Super Bowl? I get it. It's still stupid, and I don't agree with their logic, but I understand the basis for their logic. Forcing any non-broadcast partners and advertisers to euphamize the biggest spectacle in sports? Well that's just dumb. There's no logic behind that at all. So you see, there's something of a degree or scale to which these control attempts fall.
Well, there was anyway, until the NFL broke the scale with a move so myopic and full of fail that it's difficult to imagine it was made by anyone other than a collection of rocks with a history of rock-head trauma. I'm talking about the NFL clamping down for this year's NFL draft on journalists tweeting out the draft picks before they are announced by Commissioner Roger Goodell on stage. For the majority of you who probably didn't watch the first round of the draft on Thursday, the NFL went as far as to purposefully not show live footage they had of draftees talking on the phone with the team picking them, so as not to tip anyone off that they'd been drafted. Even more fun, the on-screen talent went out of their way to remind you over and over and over again that they were withholding information so that you wouldn't know until the moment they wanted you to know. The gentlemen's agreement the NFL has with ESPN, and obviously their edict to NFL Network reporters, meant you also wouldn't find out any tipped draft information on Twitter.
That is, of course, unless you follow any sports journalist not affiliated with those two entities. What the NFL seems to have forgotten is that the NFL Network and ESPN aren't the only people reporting on the draft and that their desires are meaningless to reporters over which they have no leverage. One example of such a reporter, and in my opinion he's one of the best follows for NFL news, is CBS's Jason La Canfora. He wasn't having anything to do with the lockdown.
He intends to tweet as much as possible. Beware: that includes upcoming picks before they are revealed on TV (if he gets them) to his nearly 300,000 followers. He also will be contributing updates to CBSSports.com.
"We're not a broadcast partner for the draft," La Canfora said. "I will be trying to get the information out as quickly and accurately as possible. What event is made more for Twitter than the NFL draft? If the teams have the information; if the guys in the production truck have the information; if the commissioner has the information; why wouldn't passionate football fans want it as well?"In round 1 of the draft, La Canfora did exactly as he promised. If you were watching the NFL draft to find out who picked who, you got that information somewhere between 10 and 15 minutes later than La Canfora's 300k followers. No, that time difference isn't a big deal. No, I'm not saying the NFL can't run their business however they choose. But if you're going to force certain broadcasters to lock up information that is available elsewhere, and brag about it no less, all you're telling me is that the place I should be going to for NFL news isn't the NFL or ESPN.
Mon, Feb 11th 2013 8:14pm
from the seriously? dept
In the case of the NFL, the rule is that teams have to have 85% of their capacity sold by the Thursday before a game to keep the TV blackout rule from being triggered. Well, the Oakland Raiders, one team who has more trouble than most getting fans into the stands (because they're horrible), has a plan to get around the NFL blackout rules. This amazing plan is...covering up a bunch of the seats in O.co Coliseum to reduce capacity and thereby increase the percentage of filled seats for their games.
CEO Amy Trask announced yesterday that the Raiders will be eliminating nearly 10,000 seats for next season, mostly by covering up Mount Davis with a tarp. Mount Davis is the nickname given to the tier of seats installed in a 1996 renovation, ruining the backdrop view of the Oakland hills that were a staple at A's games. They're steep (nearly to the point of being unsafe) and the upper reaches are comically distant from the action. And they've gone mostly empty, being tarped off for baseball since 2006.For those of you who haven't followed much in the way of sports business in the past, this is certifiably insane. That said, the insanity is on the part of the NFL, not the Raiders, who are only trying to get creative in routing around the restrictive blackout policy. They clearly understand that getting their games on TV is the best way to build their fanbase, which will result in more attendance at the stadium. The NFL, however, appears to think that nixing the broadcast a few days before the game will drive more attendance at the gates. This logic fails what I like to call "The Blackhawk Effect" (See, Mike? I can coin terms too!), where once the local blackouts of Chicago Blackhawks games was lifted, the previously unattended games were suddenly filled to capacity.
What the NFL should be encouraging teams to do is go the other direction and open up even more ways for fans to view the games, whether by attending, watching on TV, or streaming. Instead, they're forcing their member teams like the Raiders to tarp over part of their seating capacity just to avoid arbitrary blackout restrictions. How less fan-friendly could a league get?
by Mike Masnick
Thu, Jan 31st 2013 12:53pm
from the government-overreach dept
Of course, this is all for show. Waiting until just a couple days before the Super Bowl is pretty ridiculous, since if people were going to buy merch, they already did so. This is just ICE, once again, generating headlines for the corporations it seems to think it represents. As is his usual MO, ICE boss John Morton talked up just how "successful" this operation was, based on his own metrics, claiming "This just takes good old-fashioned police work, people getting out on the streets."
Funny, then, that he completely leaves out the parts where they seized legitimate merchandise and hassled the seller. It appears that, sometimes, ICE just isn't very good at "good old-fashioned police work." And that's especially true when it seems to be taking orders from big companies, rather than the public it is supposed to be protecting.
by Tim Cushing
Fri, Sep 28th 2012 1:33pm
from the a-takedown-that-takes-itself-down dept
A couple of days before the NFL reached an agreement with the real referees, Mike Tanier (writer for Football Outsiders and formerly the only thing worth reading at the New York Times Fifth Down blog) whipped up an idea to shut down the replacement refs before any more damage was done. The scheme relied on crowd participation, the intricacies of public performance rights and a band whose catalog was once referred to (by a b-lister) as being about as approachable as a "badger covered in live hand grenades."
Go to the game. If you are a Chargers, Jaguars or Bengals fan, this involves purchasing a ticket and driving to the stadium. There are websites that teach you how to do these things. Anyway, once there, wait for the replacement officials to make an idiotic call or lapse into one of their marathon delays. When it happens, start singing:Tanier may not be a copyright lawyer, but he does certainly understand the stupidity that often masquerades as "needless complexity" in the copyright system. While the stadium would likely have a blanket license to cover the not-very-spontaneous "performance" of a Beatles' tune, the NFL's broadcast would likely be short a sync license.
Nah nah nah na-na-na-nah, na-na-na-nah, Hey Jude!
Beatles copyrights (held mostly by Paul McCartney and the estate of John Lennon) and publishing rights (held by Paul, Sony/ATV publishing, and possibly by one or two of Michael Jackson’s former chimpanzees) are among the most closely guarded music rights in the world. “Hey Jude” is the most preciously protected song in the Beatles catalogue. Everyone knows it, and it is easy for a huge crowd to sing, as Paul himself proved when he led Olympic fans in a chorus of a song first recorded 15 years before their parents reached puberty.
If the crowd at an NFL game sings “Hey Jude,” television networks will be stuck broadcasting “Hey Jude” without the rights-holders permission. The sound editors are pretty good at obscuring the B.S. chant, but that only takes a little bit of white noise. Try editing away one of the most recognizable melodies in the world on live television. The broadcast will sound like it is coming from Venus. But if the NFL doesn’t drown out the singing, someone big and powerful is going to show up at league headquarters in a suing mood.
Faced with the choice of a battle against Big Music Publishing and the fourth most beloved human on earth (wedged between Ron Howard and … wow … T.J. Lang) or negotiating fairly with the referees, the NFL will be left with no choice. The lockout will end, thanks to you and the Cute Beatle.
I am no copyright lawyer, and there are probably holes in this master plan. But if the NFL can publish a mix of lies and obfuscations and call it an “explanation,” then I can publish this and call it a “solution.”
Those watching the game on broadcast TV would probably be unaffected, but those watching a livestream might find their gridiron action replaced with the soothing images of Heidi doing something Alps-related, or a more familiar message informing them that the stream has been taken down due to copyright claims by Michael Jackson's chimpanzees.
While most of us would find a somewhat spontaneous singalong to fall under "fair use" or at the very least "nothing to get hung about," people singing songs out loud for non-commercial reasons is apparently Very Serious Business. BMG takes down a clip of Obama singing an Al Green song. EMI takes down a clip of a drunk guy singing a Queen song. A Slovak performance rights organization bills a village for singing folk songs about itself. Bourne Music Publishers demands $2,000 from a 10-year-old girl for singing a theme song to a Charlie Chaplin movie for charity.
It's an obviously facetious post but there's enough truth to the farcical situation to make it seem tenable. Expansion of IP protection hasn't resulted in any great declines in infringement and has criminalized several activities that most people feel would fall under "fair use." As Tanier's very humorous hypothetical situation points out, IP maximalist enforcement has a tendency to do more damage to itself that its intended targets. And by all means, read through Tanier's entire post, which also covers such enjoyable oddities as New Jersey legislators insinuating themselves into the replacement ref debacle and the NFL being covered on NPR of all places.