Sports Report

Broadcast Rights/Choice of Forum

The U.S. District Court for the Western District of Kentucky found that its district was the proper forum to hear a dispute over the international broadcast rights to a fight in Louisville, KY, between English heavyweight boxer Danny Williams and former-heavyweight-champion Mike Tyson. Straight-Out Promotions LLC v. Brearly (International) Ltd., 3:04CV-473-H. Negotiations between Straight-Out and foreign broadcast distributor Brearly included several distribution agreements, e-mails and a letter of modification from Brearly. The district court noted: “The parties never mutually executed or mutually accepted a written agreement containing a forum selection clause [which Brearly claimed stipulated Gilbraltar]. Indeed, it is not clear whether relations between the parties is governed by any one written agreement or whether an e-mail contains the only known agreed-upon terms. That cannot be known until a trial of this case. … [T]he weight of the evidence in the record supports the conclusion that there was no meeting of the minds on any of the written distribution agreements much less a forum selection clause. … Venue is proper in this district both because a substantial part of the events giving rise to the dispute occurred in Louisville and because Brearly was subject to personal jurisdiction at the time the action was commenced.”

Right of Publicity/Photo Release Form

The U.S. District Court for the Southern District of New York ruled against international tennis star Anastasia Myskina in her suit alleging unauthorized use of revealing photographs of the athlete in the Russian magazine Medved that were originally taken for the magazine Gentleman's Quarterly (GQ). Myskina v. The Conde Nast Publications Inc., 04 Civ. 6094 (MBM). Myskina, who is Russian, had signed a release that stated she “hereby irrevocably consent[s] to the use of [her] name and the pictures taken of [her] on [a specified date] by [Conde Nast], … and others it may authorize, for editorial purposes.” Myskina contended that she didn't remember signing the release and in any case she didn't speak fluent English when the photos were taken. Myskina's suit included right of publicity claims under N.Y. Civil Rights Law Secs. 50 and 51 as well as claims for breach of contact, misappropriation and unjust enrichment. Granting summary judgment for the defendants, the district court found: “Absent allegations of fraud, duress, or some other wrongdoing, Myskina's claimed misunderstanding of the Release's terms does not excuse her from being bound on the contract. … Nor can she avoid her obligations under the Release because of her purported failure to read its contents.” Myskina also argued that the defendants had orally agreed to publish the photos only in GQ, but the court explained that “the Release and the oral agreement are inconsistent in that the Release does not single out or otherwise limit which photographs taken during the July 16, 2002 photo shoot could be used for editorial purposes. Hence, the oral agreement is not admissible.”

Sponsorship Contracts/Essential Terms

The U.S. District Court for the Eastern District of Louisiana decided that a sponsorship contract between racecar driver Kasey Kahne and the Ford Motor Co. was unenforceable. Ford Motor Co. v. Kahne, 04-CV-72525-DT. In 2002, Ford and Kahne had signed their second agreement for Kahne to drive Ford vehicles in one or more racing series. But in 2003, Kahne signed an agreement with the Dodge-affiliated Evernham Motorsports. Ford then sued Kahne for breach of contract, claiming his agreement with Evernham was a “nefarious plan.” Kahne argued that Ford had failed to find him a “full-time opportunity to race in NASCAR's premier stock car racing series [the Nextel Cup Series] for 2004.” The district court granted summary judgment for Kahne, noting: “No reasonable jury could conclude [under Michigan law], based on the record evidence presented, that the parties had reached agreement on all material or essential terms. First, the clear and unambiguous language of the contract shows that the parties intentionally left the material terms of the racing 'series' and 'team' for future negotiation and mutual agreement or joint determination. … [The contract] language makes the selection of Kahne's racing 'series' and his racing 'team' subject to mutual agreement or joint determination … Second, the sworn testimony of Ford's own representative establishes that these contract terms were intentionally left open for future joint agreement by the parties and that these terms were 'very important.' … In addition, no reasonable jury could conclude that the selection of the 'series' or Kahne's racing 'team' was non-essential term in the parties' agreement.”

Sponsorship Contracts/ Statute of Frauds

The Supreme Court of Colorado decided that an oral agreement that called for 2 years of event sponsorship — but allowed the sponsor to terminate after 1 year — wasn't voided by the statute of frauds. In re: Professional Bull Riders Inc (PBR), 05SA30. PBR had presented Autozone Inc., the sponsor, with a written agreement containing the 2-year term and 1-year termination right, though Autozone didn't sign the contract. PBR sued Autozone for breach of contract after Autozone told PBR that it wouldn't sponsor PBR events in 2002. The U.S. Court of Appeals for the Tenth Circuit certified to the Colorado Supreme Court the question of whether Colo. Rev. Stat. Sec. 38-10-112(1)(a), the state's statute of fraud, barred enforcement of the agreement. Such statutes generally void agreements that can't be completed in a year. But the state supreme court explained: “Where the terms of an agreement can fairly and reasonably be interpreted to define alternate obligations, one or more of which can be performed within one year, the agreement in question may be fairly and reasonably interpreted such that it may be performed within one year. … Because exercise of the option to terminate could reasonably be construed, by the terms of the agreement, to constitute complete performance of AutoZone's sponsorship obligation, whether or not it effectively exercised that option, nothing in Sec. 38-10-112(1)(a), C.R.S. (2004), renders the agreement void.”

Broadcast Rights/Choice of Forum

The U.S. District Court for the Western District of Kentucky found that its district was the proper forum to hear a dispute over the international broadcast rights to a fight in Louisville, KY, between English heavyweight boxer Danny Williams and former-heavyweight-champion Mike Tyson. Straight-Out Promotions LLC v. Brearly (International) Ltd., 3:04CV-473-H. Negotiations between Straight-Out and foreign broadcast distributor Brearly included several distribution agreements, e-mails and a letter of modification from Brearly. The district court noted: “The parties never mutually executed or mutually accepted a written agreement containing a forum selection clause [which Brearly claimed stipulated Gilbraltar]. Indeed, it is not clear whether relations between the parties is governed by any one written agreement or whether an e-mail contains the only known agreed-upon terms. That cannot be known until a trial of this case. … [T]he weight of the evidence in the record supports the conclusion that there was no meeting of the minds on any of the written distribution agreements much less a forum selection clause. … Venue is proper in this district both because a substantial part of the events giving rise to the dispute occurred in Louisville and because Brearly was subject to personal jurisdiction at the time the action was commenced.”

Right of Publicity/Photo Release Form

The U.S. District Court for the Southern District of New York ruled against international tennis star Anastasia Myskina in her suit alleging unauthorized use of revealing photographs of the athlete in the Russian magazine Medved that were originally taken for the magazine Gentleman's Quarterly (GQ). Myskina v. The Conde Nast Publications Inc., 04 Civ. 6094 (MBM). Myskina, who is Russian, had signed a release that stated she “hereby irrevocably consent[s] to the use of [her] name and the pictures taken of [her] on [a specified date] by [Conde Nast], … and others it may authorize, for editorial purposes.” Myskina contended that she didn't remember signing the release and in any case she didn't speak fluent English when the photos were taken. Myskina's suit included right of publicity claims under N.Y. Civil Rights Law Secs. 50 and 51 as well as claims for breach of contact, misappropriation and unjust enrichment. Granting summary judgment for the defendants, the district court found: “Absent allegations of fraud, duress, or some other wrongdoing, Myskina's claimed misunderstanding of the Release's terms does not excuse her from being bound on the contract. … Nor can she avoid her obligations under the Release because of her purported failure to read its contents.” Myskina also argued that the defendants had orally agreed to publish the photos only in GQ, but the court explained that “the Release and the oral agreement are inconsistent in that the Release does not single out or otherwise limit which photographs taken during the July 16, 2002 photo shoot could be used for editorial purposes. Hence, the oral agreement is not admissible.”

Sponsorship Contracts/Essential Terms

The U.S. District Court for the Eastern District of Louisiana decided that a sponsorship contract between racecar driver Kasey Kahne and the Ford Motor Co. was unenforceable. Ford Motor Co. v. Kahne, 04-CV-72525-DT. In 2002, Ford and Kahne had signed their second agreement for Kahne to drive Ford vehicles in one or more racing series. But in 2003, Kahne signed an agreement with the Dodge-affiliated Evernham Motorsports. Ford then sued Kahne for breach of contract, claiming his agreement with Evernham was a “nefarious plan.” Kahne argued that Ford had failed to find him a “full-time opportunity to race in NASCAR's premier stock car racing series [the Nextel Cup Series] for 2004.” The district court granted summary judgment for Kahne, noting: “No reasonable jury could conclude [under Michigan law], based on the record evidence presented, that the parties had reached agreement on all material or essential terms. First, the clear and unambiguous language of the contract shows that the parties intentionally left the material terms of the racing 'series' and 'team' for future negotiation and mutual agreement or joint determination. … [The contract] language makes the selection of Kahne's racing 'series' and his racing 'team' subject to mutual agreement or joint determination … Second, the sworn testimony of Ford's own representative establishes that these contract terms were intentionally left open for future joint agreement by the parties and that these terms were 'very important.' … In addition, no reasonable jury could conclude that the selection of the 'series' or Kahne's racing 'team' was non-essential term in the parties' agreement.”

Sponsorship Contracts/ Statute of Frauds

The Supreme Court of Colorado decided that an oral agreement that called for 2 years of event sponsorship — but allowed the sponsor to terminate after 1 year — wasn't voided by the statute of frauds. In re: Professional Bull Riders Inc (PBR), 05SA30. PBR had presented Autozone Inc., the sponsor, with a written agreement containing the 2-year term and 1-year termination right, though Autozone didn't sign the contract. PBR sued Autozone for breach of contract after Autozone told PBR that it wouldn't sponsor PBR events in 2002. The U.S. Court of Appeals for the Tenth Circuit certified to the Colorado Supreme Court the question of whether Colo. Rev. Stat. Sec. 38-10-112(1)(a), the state's statute of fraud, barred enforcement of the agreement. Such statutes generally void agreements that can't be completed in a year. But the state supreme court explained: “Where the terms of an agreement can fairly and reasonably be interpreted to define alternate obligations, one or more of which can be performed within one year, the agreement in question may be fairly and reasonably interpreted such that it may be performed within one year. … Because exercise of the option to terminate could reasonably be construed, by the terms of the agreement, to constitute complete performance of AutoZone's sponsorship obligation, whether or not it effectively exercised that option, nothing in Sec. 38-10-112(1)(a), C.R.S. (2004), renders the agreement void.”