Amending the NHL Collective Bargaining Agreement to Limit (Brain) Damages: A Proposed Solution to the NHL Concussion Class Action Litigation
John Marshall Law School
$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.
Tension in Intention: Competing Goals of Intellectual Property Law Inherent in Statutory Copyright Law for Interactive Digital Music Distribution Platforms
Georgetown University Law Center
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.
You Never Give Me Your Money: The Need for a Transnational Approach for More Equity in the Music Streaming Industry
Chicago-Kent College of Law
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.