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Amending the NHL Collective Bargaining Agreement to Limit (Brain) Damages: A Proposed Solution to the NHL Concussion Class Action Litigation

Aaron Schwartz

John Marshall Law School

Abstract

$1 bil­lion dol­lars — the approx­i­mate amount set­tled upon by “The Nation­al Foot­ball League (NFL) and its rough­ly 5,000 retired play­ers in a 2011 class action Mul­ti Dis­trict Lit­i­ga­tion (MDL) suit, here­in after (NFL Con­cus­sion Lit­i­ga­tion). The suit, brought by retired NFL play­ers suf­fer­ing from the long-term effects of con­cus­sions, alleged that the NFL failed to dis­close the dan­gers and long-term effects of con­cus­sions. Just short of two years lat­er, The Nation­al Hock­ey League (NHL) for­mer play­ers fol­lowed suit, by fil­ing suit. On Novem­ber 25, 2013, over two dozen for­mer NHL play­ers filed a class action law­suit against the NHL, here­in after (NHL Con­cus­sion Lit­i­ga­tion). Alle­ga­tions includ­ed the fail­ure of the NHL to warn and pro­tect the play­ers from the long-term effects of con­cus­sions includ­ing neu­rode­gen­er­a­tive dis­eases, fail­ure to pro­vide ade­quate med­ical care fol­low­ing con­cus­sions, and “glorif[ying]” vio­lence and fight­ing in the game. On August 19, 2014, the NHL con­cus­sion class action suits, like the NFL class action suits, were con­sol­i­dat­ed and brought with­in the juris­dic­tion of the Unit­ed States Dis­trict of Min­neso­ta by the Judi­cial Pan­el on Mul­ti­dis­trict Lit­i­ga­tion. Cur­rent­ly, the par­ties remain in lit­i­ga­tion after Judge Susan Nel­son denied the NHL’s Motion to Dis­miss, pred­i­cat­ed upon labor law pre­emp­tion.

Set­tle­ment, dis­missal, or judg­ment of the NHL Con­cus­sion Lit­i­ga­tion will not address the 2012 NHL Col­lec­tive Bar­gain­ing Agreement’s (CBA) fail­ure to explic­it­ly del­e­gate duties to the NHL to research and imple­ment a cura­tive con­cus­sion pro­gram . Fur­ther­more, the cur­rent NHL Col­lec­tive Bar­gain­ing Agreement’s door remains open for law­suits out­side the agree­ment because of its nar­row, arguably absent, scope on con­cus­sions.
The pur­pose of this com­ment is to pro­pose a solu­tion by amend­ing the NHL Col­lec­tive Bar­gain­ing Agree­ment to address, with speci­fici­ty, the issues of con­cus­sions prospec­tive­ly for cur­rent NHL play­ers, and to pro­pose a rem­e­dy, sim­i­lar to that of the NFL’s con­cus­sion lit­i­ga­tion set­tle­ment, that will pro­vide relief for retired NHL play­ers not cur­rent­ly sub­ject to the cur­rent CBA.

This Note will dis­cuss the his­to­ry of con­cus­sion lit­i­ga­tion with­in the NFL and NHL, focus­ing more nar­row­ly on the NHL and its CBA. It will define exact­ly what a con­cus­sion is and, more specif­i­cal­ly, the long-term effects, includ­ing Chron­ic trau­mat­ic encephalopa­thy (“CTE”). It will then dis­cuss how and why NHL play­ers have been able to file suit, cir­cum­vent­ing their respec­tive CBA, and ana­lyze each party’s argu­ments. It will then pro­pose a solu­tion, irre­spec­tive of the class action suits, that will be found sole­ly with­in the NHL’s CBA. The end goals of this pro­pos­al being: (1) to keep con­cus­sion suits out of the courts and with­in the scope of the CBA and (2) to pro­vide a rem­e­dy for cur­rent and retired play­ers who, cur­rent­ly or mov­ing for­ward, will qual­i­fy for relief based upon the incur­rence of the long-term effects of con­cus­sions.

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Tension in Intention: Competing Goals of Intellectual Property Law Inherent in Statutory Copyright Law for Interactive Digital Music Distribution Platforms

Sydney Reade

Georgetown University Law Center

Abstract

Spo­ti­fy is the most pop­u­lar inter­ac­tive dig­i­tal music stream­ing ser­vice in the indus­try today with over 100 mil­lion active users and fifty mil­lion pay­ing sub­scribers. Yet, Spo­ti­fy faced ear­ly bar­ri­ers to its entry into the U.S. music mar­ket­place, bar­ri­ers large­ly in place due to a ten­sion between the Constitution’s intel­lec­tu­al prop­er­ty clause and statu­to­ry copy­right law.

As an inter­ac­tive dig­i­tal music stream­ing ser­vice, Spo­ti­fy is not sub­ject to a com­pul­so­ry license under § 114 of the 1976 Copy­right Act. Spo­ti­fy was there­fore forced into pri­vate and exor­bi­tant­ly expen­sive licens­ing deals in order to acquire its cat­a­logue. These deals have fore­closed Spotify’s prof­itabil­i­ty to date.

Stream­ing ser­vices are the only music access plat­forms to see increas­es in rev­enue over the past few years in a music econ­o­my whose rev­enue is wan­ing over­all. Con­sumers clear­ly enjoy Spotify’s ser­vice. How­ev­er, giv­en Spotify’s dif­fi­cul­ties enter­ing and remain­ing in the stream­ing music mar­ket­place, what incen­tive is there for like ser­vices to come to exist?

The Constitution’s intel­lec­tu­al prop­er­ty clause has always been read as sep­a­rat­ing intel­lec­tu­al prop­er­ty law into dis­parate copy­right and patent law regimes. This dis­trib­u­tive read­ing of the clause has caused copy­right law to be enact­ed that achieves the access and incen­tiviza­tion of cre­ation goals for copy­right­ed works like the sound record­ings acces­si­ble on stream­ing plat­forms, but that dis­in­cen­tivizes cre­ation of use­ful arts like Spo­ti­fy.

Intel­lec­tu­al prop­er­ty law should not be cre­at­ed that is inap­po­site to its own goals, and the goals of the intel­lec­tu­al prop­er­ty clause as a whole. A more uni­fied read­ing of the clause should guide law­mak­ers to cre­ate laws that pro­mote access and incen­tivize cre­ation of both the sci­ences and use­ful arts. The U.S. Copy­right Office should be empow­ered as an admin­is­tra­tive agency to pro­mul­gate copy­right reg­u­la­tions pur­suant to a more uni­fied read­ing of the clause, so that copy­right law pro­motes the progress of both the sci­ences and use­ful arts.

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You Never Give Me Your Money: The Need for a Transnational Approach for More Equity in the Music Streaming Industry

Benjamin Mankut

Chicago-Kent College of Law

Excerpt

This Note pro­pos­es a renewed approach to song­writ­ers’ com­pen­sa­tion for the online exploita­tion of their works. The pro­pos­al empha­sizes good­will and free nego­ti­a­tion, in order to reach a peren­ni­al and bal­anced mon­ey sys­tem in the music stream­ing indus­try. Part II illus­trates the lack of fair com­pen­sa­tion pro­vid­ed to authors through­out dif­fer­ent legal sys­tems, and stress­es that an inter­na­tion­al fram­ing of this issue should be imple­ment­ed. Part III pro­pos­es an inter­na­tion­al approach to the music stream­ing rev­enues split. This pro­vi­sion con­sists of an inter­na­tion­al com­pul­so­ry license sys­tem that lets the dif­fer­ent stake­hold­ers freely nego­ti­ate the re-par­ti­tion­ing of stream­ing rev­enues under a fair remu­ner­a­tion require­ment. The pro­pos­al empha­sizes bal­ance, equi­ty, and free nego­ti­a­tion. Final­ly, Part IV antic­i­pates poten­tial crit­i­cism of the pro­posed approach and, in light of those crit­i­cisms, pro­vides fur­ther sup­port for the argu­ments being made.

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