The Work

July 24, 2009 2:53 PM

The Erin Andrews Chronicles: A (Semi) Regular Look at Sports and the Law

Posted by Brian Baxter

UPDATE: July 24, 6:45 p.m. The second section of this story was updated with the news that the four major North American professional sports leagues and the NCAA have sued Delaware over the state's plan to legalize sports betting.

As much as we tried to steer clear of yet another Internet scandal, the involvement of a high-powered Bingham McCutchen litigator lured us back in.

If you haven't heard about the misfortune to befall popular ESPN sideline reporter Erin Andrews, we're not going to regurgitate all of the unseemly details here. (That's what the New York Post is for.)

But shortly after the video of Andrews being secretly videotaped nude through a hotel peephole was picked up by sports blogs, ESPN's in-house lawyers sprang into action. General counsel David Pahl sent  sternly worded take down notices.

Then Bingham got the call.

Marshall Grossman

"One of Andrews' representatives made contact with Nathan Hochman, who recently joined us from the Justice Department's tax division," says Marshall Grossman (pictured right), a prominent litigation partner in the firm's Los Angeles office. "And since Nathan is relatively new to this area of voyeurism, he asked if I would step in and handle it."

When not battling John Keker to a stalemate, Grossman has a long history of helping celebrities and television personalities in crises, including the likes of Steven Spielberg, Clint Eastwood, Mariah Carey, Olivia Newton John, and Liberace.

Grossman agreed to represent Andrews the night of July 16, just before the media firestorm gathered strength. Grossman spoke with Andrews and her representatives to determine an appropriate "legal and crisis management" course of action. A statement was issued the next day.

Grossman, who represents Andrews but not her employer, says he's proceeding on three tracks. The first step: get all videos and pictures of Andrews off the Internet.

"It's like a virus, and they keep popping up, so we're continuing to issue cease-and-desist orders," he says. "We've been generally successful in getting things removed once they surface."

It turns out that the Andrews video making its way around the Internet isn't just like a virus, in some cases it is a virus that will infect a viewer's computer with crippling malware.

Grossman says his second step is uncovering the perpetrator for the initial video and finding out who the collaborators are distributing content in order to file criminal and civil charges.

The third step: protect Andrews's privacy by declining press interviews. Almost every national television program has contacted both Andrews and Grossman for appearances, he says, but the litigator isn't taking their calls because he wants to focus on the investigation and not "fuel speculation or play into the frenzy that has enveloped this."

Grossman declined to comment on whether law enforcement officials had contacted him. He says he is in constant communication with ESPN.

"The issues here are far reaching," he says. "We don't think Erin Andrews was an accidental tourist. We think this was precalculated, premeditated, and executed by somebody with significant sophistication."

Delaware Sued Over Sports Betting

Early Friday evening news broke that the four major professional North American sports leagues and the NCAA had filed suit in U.S. district court in Wilmington against Delaware over the state's plans to legalize sports betting.

The National Football League has been at the forefront in opposing Delaware plan to legalize sports betting this fall, which the state hopes will raise $50-$100 million in revenue to help close an $800 million budget deficit. Along with Montana, Nevada, and Oregon, Delaware is one of four states exempt from the Professional and Amateur Sports Protection Act (PASPA) of 1992 that banned sports betting in the remaining 46 states.

The close proximity of Delaware to sports Mecca's like Washington, D.C., Philadelphia, and New York have the leagues and the NCAA concerned about the integrity of their sport. According to the complaint, the leagues claim that Delaware's plan to allow single game and parlay betting--picking winners in at least three different games--was explicitly designed to draw in gamblers and money from neighboring states.

The state sought an advisory opinion from the Delaware Supreme Court in May, which unanimously ruled that sports betting constituted a legal "lottery" under the state constitution. But the court did not offer an opinion on the legality of single-game betting.

This week two Senate Republicans asked the Justice Department to act against sports betting initiatives in Delaware and New Jersey. There have been questions as to whether U.S. Attorney General Eric Holder, Jr., would recuse himself from sports betting matters given the fact that is former firm, Covington & Burling, is long-time outside counsel the the NFL. (Covington litigation chair Gregg Levy is the league's go-to outside litigator and former NFL commissioner Paul Tagliabue is senior of counsel with the firm.)

The suit on Friday was filed by business litigation partner Megan Ward Cascio and special counsel Susan Waesco from Delaware firm Morris, Nichols, Arsht & Tunnell. We'll update this post when we have more information.

From NBA Draft Bust to Class Action Star

A classic "tweener," former UCLA basketball star Ed O'Bannon was one of the worst draft picks in the history of the New Jersey Nets (they may not be moving to Brooklyn after all).

But O'Bannon just might restore his good name in the courtroom. Represented by Hausfeld and Boies, Schiller & Flexner, O'Bannon filed a class action suit on July 21 in San Francisco against the NCAA and its licensing partner. According to O'Bannon's class action complaint, the NCAA illegally profits from current and former college athletes by having them sign away their right to the commercial use of their images.

O'Bannon claims that his image appears in an NCAA Basketball 09 video game for which he was not compensated. At issue is the right of O'Bannon and other college players to profit from the sales of merchandise based on their images. The suit seeks an unspecified amount in damages and an injunction on behalf of current student athletes barring the NCAA from licensing the rights to their images.

A similar suit was filed earlier this year by former Arizona State and Nebraska quarterback Sam Keller, who is being represented by Robert Carey plaintiffs firm Hagens Berman Sobol Shapiro.

Vermont Law School professor Michael McCann, who helps run the must-read Sports Law Blog, has a nice analysis of O'Bannon's suit in this column for

Michael Hausfeld, who went out on his own after leaving plaintiffs firm Cohen Milstein last November, is handling the case along with partners Jon King, Megan Jones, and Michael Lehmann. Boies Schiller partners Jack Simms, Jr., Tanya Chutkan, and William Isaacson are also representing O'Bannon.

Around The Horn

-- Less than a week after a team of Dewey & LeBoeuf criminal defense lawyers helped get SEC charges dropped against him, Dallas Mavericks owner Mark Cuban is once again mired in litigation. This time he's being sued by a company controlled by the son of Ross Perot, a former Mavs owner, who accuses Cuban of diverting millions in arena profits to make up for shortfalls incurred by the team. Dallas firm Figari & Davenport is representing the plaintiffs; Fish & Richardson has represented the Mavs on various litigation matters (partner Steven Stodghill served as team counsel between 2000 and 2002).

-- In other basketball-related legal news, a former Proskauer Rose lawyer is trying to secure the release of Spanish sensation Ricky Rubio so he can play for the Minnesota Timberwolves this season.

-- In January, Covington helped the NFL settle its involvement in a civil suit filed by the family of former Minnesota Vikings offensive lineman Korey Stringer, who died of complications brought about by heat stroke in August 2001. But the Stringer family, represented by Cincinnati's Waite, Schneider, Bayless & Chesley (the firm of torts king Stanley Chesley), received good news recently when U.S. district court judge John Holschuh ordered that a November jury trial be held for its case against equipment manufacturer Riddell. Holschuh ruled that Riddell had a duty to warn Stringer that its helmets and shoulder pads could contribute to heat stroke. A jury will now hear whether Riddell's failure to warn Stringer was a contributing factor to the All-Pro's death. Riddell is represented by Tucker Ellis & West.

-- And if you just can't get enough of Lenny Dykstra's bankruptcy issues, The Wall Street Journal has this interesting item on how "Nails" plans to use Chapter 11 to seek his revenge. "Chapter 11 is like putting a sniper on top of the roof to gun down all those people that are piling on," he told radio host Dan Patrick. "It's the last man standing that wins."

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