Monthly Archives: April 2013

Abraham Lincoln, the Morrill Act and the National Academy of Sciences

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I heard a speech by new University of Minnesota President Eric Kaler on Saturday, April, 20. He is an impressive person, a chemical engineer by training, who now runs one of America’s largest, and best universities. He began his speech by telling us, the Men’s Club of the Westminster Presbyterian Church, that Abraham Lincoln, in the midst of the North’s worst year in the Civil War, signed the Morrill Act (http://www.loc.gov/rr/program/bib/ourdocs/Morrill.html) in 1862. The act created the land grant colleges, of which, the University of Minnesota is one, by granting 30,000 acres per congressman to each state “not in rebellion against the United States.” The act was extended to Southern states after the war.
 
The Morrill Act was sponsored by Justin Smith Morrill, a Vermont congressman, (later Senator),  Its purpose was to “promote education in agriculture and engineering.” It is the main building block of the rapid expansion of public higher education in the late 19th century.
I thought the comment about Lincoln was very interesting as he was dealing with defeats on the battle field, and difficult generals, and yet had time to plan the nation’s future. He also signed an act in 1863 that created the National Academy of Sciences, whose members “were to promote science, medicine and engineering.” That is leadership.

Kaler then spoke of education today. He pointed out that the cost of education today is less than an inflation adjusted cost in 1967. He urged government to get with it and increase its support for education.
 
Kaler then spoke of the “achievement gap” or the academic performance gap between racially diverse student populations. He surprised the group by saying that Minnesota had the third highest, trailing only Michigan and Wisconsin. This prompted later conversation on possible reasons, but Kaler did not suggest any. He did mention that in early childhood education, the first three years are the most critical and that it is important to engage the very young in conversation. This can be reading to the child, but I think it is equally important to engage in conversation. We should be able to do this.

The mornings talk covered Lincoln’s focus on education, government’s decline in support for education and the importance of early engagement in the educational process.
I found this discussion to be most important as it indicated that Eric Kaler is continuing the work begun by Justin Morrill and Abraham Lincoln. We should all hope he succeeds, and I think he will.

“42,” the Movie and Its Times

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The movie “42” is a magnificent movie on its own; That it tells a tale about baseball makes it that much grander. It is a tale of strong men who were willing to challenge an established social code and change the world. The two major collaborators in this tale are Branch Rickey, Brooklyn Dodger general manager and owner, and Jackie Robinson, an extraordinary athlete as a four sport star at UCLA, Army Officer in WWII, and a gifted, talented baseball player.  The story of how Robinson got to the big leagues is a great tale in itself, but the background is even more amazing.

  In an early scene, Rickey is meeting with his staff and says he is going to bring a black man into major league baseball. He comments, that “there are a lot of black baseball fans in Brooklyn,” so Rickey’s motivation was economic. This fact has been born out by contemporary accounts and interviews. With this economic incentive, Rickey goes on a search for the right sort of man. Robinson is that man in every way.

How did Rickey know there were a lot of black baseball fans in New York? He was reflecting on the Negro League teams, the Newark Eagles, the New York Cubans and the New York Black Yankees who played in New York in 1946. The Eagles had Larry Doby (HOF 1998), Monte Irvin (HOF 1973) and Ray Dandridge on its pennant winning team.  These three teams had enthusiastic fans and Rickey said he wanted them. The movie is true to this history and this adds to its historical accuracy. (The Eagles were operated by Effa Manley the first and still leading female team operator, more on her later.)

Robinson was playing for the Negro League Kansas City Monarchs when Rickey approached him. He then went to Spring Training trying to make the Montreal Royals, a Dodger affiliate, Baseball culture surrounding the play of the game is depicted with perfection, The tensions among players, the struggle to play well enough, is overlain by the tension of Robinson’s ethnicity. He was the first black player, or was he? 

There was no secret that the major leagues would be integrated at some point. There is significant evidence that black players had played before Robinson. My candidate for the first black was Bobby Estalella, thought to be part black, who played for the Washington Senators, but Estalella was a Cuban and Cubans got a pass. Recall Charlie Pryor who played Charles Snow, “Carlos Nevada,” in the movie “Bingo Long and the Traveling All Stars.” Snow studied Spanish so he could pass for a Cuban to make the Majors. These efforts at using Cubans was simply a prelude to hiring African American players. It seems that when Robinson played in Brooklyn it was only a matter of time before other African American players would arrive. A scene in the press box with a writer predicting that blacks would supplant whites in the Major Leagues because “they had a longer heel bone,” was one of the humorous moments but illustrated the myth that blacks had some physical advantage over whites. When Robinson hit it out of the park, the other writers ask “did he hit that with his heel bone?”
Robinson as played by Chadwick Boseman who learned to hit and play like Robinson. It is his deft imitation of Robinson’s batting stance that I liked the most, followed by the base running. The movie shows Robinson as a hitter of note and an aggressive base runner. The movie shows the pitcher pitching out of the stretch rather than a windup every time Robinson gets to third base and has Robinson steal home in such a situation. This is just a director’s error but is one that is caught by every baseball fan in the audience, as is the umpire’s use of the outside, or American league, chest protector in National League games.
This movie uses special effects better than any baseball film ever. The speed of the pitched ball is shown at its lethal best.(See: ‘Baseball’s Timeless Appeal’ on this blog) I have never seen this before in a movie and it is done perfectly.
It is the graphic description of the grand old parks that I enjoyed most, as all baseball games were shown in the appropriate parks like Ebbets Field, Crosley Field, Forbes Field, Wrigley Field, Sportsman’s Park, and the Polo Grounds, where you can see that deep center field where Mays made that wonderful catch in 1954.
The relationship between Jackie and wife, Rachel, is magical. and played wonderfully by Nicole Baharie. As the anchor-to-windward for Robinson, she is perfect, even to the point of giving batting instructions, “you’re lunging, Jack.”
Harrison Ford spent a lot of time studying Branch Rickey, a lawyer turned baseball executive. that was the masterful performance. Ford catches the stance, style, bluster, and bravado perfectly. I spent time with Rickey when I was a kid and I could smell the cigar again.
I discussed Rickey’s motivation above. He wanted to make money. Rickey was a lawyer and Robinson was under contract to the Monarchs when Rickey signed him to a Montreal contract. Usually when this happens, the former team would have been compensated for the loss, absent this, it must sue to recover. Rickey never compensated Negro League teams for players he took and there is no evidence he was ever sued. On the other hand, Bill Veeck, who had been watching Larry Doby for years, paid Effa Manley of the Eagles (see above) $11,000 as compensation for the lost player. Rickey said the Negro League owner were a bunch of petty crooks and hustlers, one team being financed by a gambler; Veeck saw them as baseball colleagues (Veeck told me he should have paid $100,000 for Doby.)
Doby followed Robinson by six weeks into the American League, so they share trail-blazer credit, joined in July by Hank Thompson with the St. Louis Browns. It was the American League that had the most black players in 1947. That there were three black players in the Majors in 1947 is not well known. The Boston Red Sox were the last team to integrate, doing so in 1959.
This movie is important for a number of reasons. First, it tells a story of great men confronting a great evil and overcoming that barrier and changing a nation. Second, for younger viewers it will be a shocking view of segregated America. I don’t know how that will be dealt with, but for me, it was a sad memory of a disturbing time. This is a movie that transcends the theme of baseball to teach America an important moment, as important as any in our social history, and teaches a lesson for all to absorb and wonder how they would have acted if in the same position at that time.

Boston Marathon Bombing and its Potential Impact on the Nation.

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The bomb in Boston took me back to thoughts I had after September 11, 2001 when America shut down. I was particularly struck by news that a small airport in Kansas closed out of fear of terrorism. I did not think Kansas was an Al Qaeda target, but recognized that terrorism aimed at small targets could shut down the country. That is the danger of the Boston event.

Soon after September 11, I was asked to present a paper at a Sports Law conference on stadium security. In researching this paper, I became very aware of the enormous exposure and potential for damage presented by stadiums and arenas. Having 60,000 football fans in a stadium or 19,000 hockey fans in an arena was a tempting target as were shopping malls everywhere. An Oklahoma City style bomb attack would kill thousands as would a chemical/anthrax attack on the air supply of a domed stadium or arena. Such an attack would devastate attendance at such venues and could severely inhibit economic activity at malls or any public forum. A devastating event for the Nation. I was told later by a stadium administrator that the air supply of his building had been moved from the ground level to the roof to increase its security.

The Boston Bomb, located in a trash can, is very scary. If this shows a shift in terrorist strategy, this is the one that really scares me. Let us pray that Boston was an isolated event and not part of a grand scheme. If it is that latter, we are in for hard times.

Climate Change Reconsidered On a Snowy April 13

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Today, I was inundated by emails about climate change, nee Global Warming. I have never been part of the hysteria, and I use that term properly,  and here’s why. My first encounter with the so called evidence in the climate change case was ten years ago at a Dartmouth Alumni Club lunch where one of our members, a lawyer with an environmental law practice, promised to show us the overwhelming evidence of global warming.

His first evidence was the Mann Hockey Stick Graph that has been proven to be total nonsense. As this lawyer explained the slow, straight line, rise in temperature to the 20th century, and then the rapid rise in the last decade (up, maybe, half a degree,) the questions started. Where was the Medieval Warm Period, How about the Little Ice Age? The lawyer was much flummoxed by the questions, but shifted to another piece of evidence. This was another graph, since deleted from alarmist materials, that showed overlaying lines indicating the correlation between CO2 and Temperature. The graph used blue and red lines and they did move together, so it was possible to think that the cause, CO2, preceded the effect, temperature increases. This continued until someone asked which line was the CO2.

The lecturer, now flummoxed again, had to admit that the red line to the right was CO2 and the blue line to the left side of the time scale was temperature. That had never been pointed out before; we just assumed that the alleged cause, CO2, would lead the effect, temperature increase, ergo CO2 was red and temperature blue, When asked how the effect could precede the cause, the lawyer said, “the relationship between CO@ and temperature is very complicated.” I heard Al Gore say the same thing some years later.

Based on this meeting, I have greeted each new piece of evidence such as tree rings and ice cores with great skepticism. I rejoiced when the hysteria diminished. Recently, however, there is a new effort to prove Climate Change, end carbon use, and save a planet that is not in danger.

Today, sitting in Minneapolis with snow on the ground, more on the way and 30 degree temperatures on April 13, I was told that the cold Spring is due to melting Arctic Sea ice that was at its sixth lowest extent ever. EVER. To prove the case, a link was provided and it is here. http://nsidc.org/articseaicenews/2012/daily-image/. So I looked at the image and found a satellite image of the Arctic Sea with an orange line showing what the ice was like when the world was safe. Well, the orange line indicates very little ice loss. So, what’s the big deal.

This is the big deal. Climate Change is a political movement based on false science that is manipulated by government that buys the loyalty of scientists by funding the climate science laboratories around the world. Billions of dollars had been directed to scientists who toe the line. Thousands of mortgages have been paid off by this effort. So, why does government need to do this? It is because this is the path to total economic control. If you can control carbon, you control economic activity. However, the Big Deal is that if carbon control can be achieved, the government or the party in charge can then wait a year and announce that climate change has been solved and temperatures are lowering and that it (the party in charge) has save the world, so you must give us total power over everything, which is what the party in charge seems to want. 

The only barrier to this power grab is the common sense of the people who recognize that there is no warming/change and are just now starting to realize that the party in charge has been lying to them. We’ll see where that goes.

 

Jackie Robinson’s Contribution to America

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This is a speech I gave to a forum of the American Bar Association in 1997, the 50th Anniversary of Jackie Robinson’s entry into the Major Leagues and American History. Baseball had just spent the summer saying “Jackie Robinson had broken the color barrier in baseball” and my speech corrects that idea and shows that he broke the color barrier in America.

Our subject for this seminar is the role of agents and attorneys in promoting civil rights in sports. I am completely convinced that the agent’s or attorney’s role is the vigorous pursuit of client’s interests. However, I also believe that the role of sports in civil rights has often been ignored, although that role, especially baseball’s, has been very significant.

    The singular event in sports civil rights was the breaking of the color barrier in 1947. We celebrated the fiftieth anniversary of that event this year. I attended such celebrations and was struck by the fact that no one dealt with the significance of Jackie Robinson’s debut with the Dodgers in both its contemporary and historic perspective. I will attempt to do that today. To do so, we must go to the beginning.

    The Constitutional Congress left two major issues unresolved. First, was the issue of federalism and states rights, and, second, was the issue of slavery. Eighty years after the passage of the Constitution, the slavery issue was settled, and the federalism issue partially resolved  in a great Civil War.  The emerging issue of civil rights was dealt with by the passage of the post war reconstruction laws that, unfortunately, failed to heal a torn nation. The assassination of Abraham Lincoln is the most tragic event in American history if for no other reason than the fact that he had the ability and foresight to heal the country. I have always been struck by the fact that Lincoln took a trip to Richmond within a week of its capture, and, with only a small group of sailors for protection, took a tour of the still smouldering city. Even at that time, with Southern armies still in the field and the battles still to be fought, Lincoln was pacifying Richmond. His death within a week of his visit to Richmond lead to harsh treatment for the South and resentments still felt today.

    Many of the tensions of the post civil war period were due to the laws passed just after the war ended. These reconstruction laws dealt with civil rights, but from our perspective today, they are most noted for the fact that from the time of their passing there were no civil rights laws  passed until the Eisenhower administration. The nation’s method of dealing with civil rights during that period was inaction as parallel universes based on race evolved under the “separate but equal” doctrine of Plessy v. Ferguson.

    Plessy was decided in 1881, and it was two generations before Jackie Robinson played for the Dodgers and Brown v. Board of Education reversed it. In those years, our nation developed along the Plessy lines in more ways than education. Our society developed into parallel universes based on race. Of course, this situation could not be sustained because it was horribly unjust, economically stifling, and an unabashed violation of the Constitution. There were many events during the interim period that indicated the proper course, however, all steps forward were matched with steps backward. The step forward that stuck and marked the change from Plessy to Brown, was Jackie Robinson’s playing in the Major Leagues.  To understand this, we must look at the world of 1947.

    America was the leading economic nation and the dominate power on earth. Baseball was the king of the sports world. In this pre-TV time, major and minor league attendance was very high. So too was attendance for the teams of the Negro Leagues, many of whose teams played in Major League parks and out-drew their Major League opposites. I don’t believe that there is any greater example of the parallel universes that existed in America than the two separate major baseball leagues.

    In Griffith Stadium, Washington, the Senators would play a home stand and then the Homestead Grays would move in. The Senators’ owner loved to interact with the Grays’ players. He met with Josh Gibson and Buck Leonard in his office and spoke of what magnificent players they were. He talked to them of playing in the Major Leagues, but that he could not do it because one of the effects of that would be to do damage to their league. The system in America was set up to perpetuate the parallel universes. Jackie Robinson’s signing with the Dodgers meant that the old system was over. Such was the pent-up energy for change, that Larry Doby signed with the Indians later in that same season and a nation was changed.

    The signing of a baseball player in Brooklyn was the pivotal civil rights event of the era. Its significance, great in its own right, was magnified because it was baseball that did it. This event was followed by the integration of the armed forces a year later.  The parallel universes had ended and it was baseball that broke the color barrier in America, not just in the Major Leagues.  The NBA and NFL, both of much less significance then, had been segregated and integrated off and on for years. It was the baseball event that had the social impact. I think this is because baseball is like life. It is undeniably real. It is played by real people, some of which are 5’6″ and weigh 150 lbs and others are 6″10″. It is played in real time, not by the clock. Its over when its over. It starts in the spring, grows all summer and is harvested in the fall with the most magnificent sports event of all, the World Series. Baseball continues to be our most diverse game, with players of European, Asian, African ancestry, and from all of the Americas, Asia, and Europe represented in the Majors today. Baseball responds quickly to changes in American culture. Today we see Asian players from Japan and Korea and tomorrow we will see Asian players from Topeka and San Jose.

    The significance of this diversity on the base paths is seen when viewed through the eyes of the greatest of the century’s civil rights leaders, Martin Luther King, Jr. In his “I Have A Dream Speech, ” Dr. King said it was his dream and vision for America to have a society in which a person is not known for the color of his skin but for his character.”

    In baseball, real people are measured by ability without regard for color, religion or national origin. Let us hope that baseball’s leadership for our country in 1947 is also followed in the next century. The question remains, however, as to what the role of the agent and lawyer is in promoting civil rights in sports. I think it may be that we must maintain a vigil to assure that rights are protected, principles are adhered to, and  raise the issue when they are not.

Redskins’ Name Issue Supported by Federal Courts, Again in the News

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Redskins Trademark Case.

    
    The most interesting trademark case in sports involved the NFL Washington Redskins and that same issue is suddenly on the front page in 2013. In 1995, the Trademark Trial and Appeals Board (“T.T.A.B.”) canceled the six variations of “The Redskins” that had been filed on various occasions up to thirty years before. The basis for the cancellation was that the marks “ may disparage Native Americans or “bring them into contempt, or disrepute.” Harjo v. Pro-Football, Inc, 50 U.S.P.Q.2d 1705, 1749 (T.T.A.B. 1999) (“Harjo II”).  The appeal was heard in the United States District Court for the District of Columbia by Judge Colleen Kollar-Kotelly.  The Judge is careful to indicate that her decision does not settle the issue of whether those trademarks are disparaging but only decides the legal sufficiency of the TTAB’s decision and whether a laches (too much delay) defense is appropriate on the basis of the undisputed material facts.  The Court analyzed the standard to be used in deciding the case and settled upon the “substantial evidence” standard of the Administrative Procedures Act.  This proceeding required the examination of the parties’ motions for summary judgement, oppositions and reply briefs and applied evidentiary standards to the voluminous documentation in this case.  After doing so, the Court concluded that the T.T.A.B.’s decision must be reversed.    

    The decision is one that trademark practitioners should appreciate as the Judge requires that a stripping away of trademark rights is to deny the Plaintiff corporation the benefits of the Trademark Laws.  That this is not to be done lightly is the message sent by Judge Kollar-Kotelly in this case.

    The case that is discussed here is the appeal of a Trademark Trial and Appeal Board (“TTAB”) proceeding that ended trademark protection for the six marks that had been registered by the National Football League team of that name. The case was filed in September 1992 by Susan Shown Harjo and six other Native Americans to cancel the six trademarks because the word Redskins was “scandalous, may disparage Native Americans and may cast Native Americans in contempt or disrepute.” Pro-Football raised several affirmative defenses including First Amendment claims, Fifth Amendment claims, and that the claims, following registration by as much as twenty-seven years, was barred by the equitable doctrine of laches. Each defense was struck by the TTAB.  

    In reversing the TTAB, Judge Kollar-Kotelly methodically analyzed and dismissed each of the TTAB’s positions.  In her eighty-four page decision, she wields the Judicial sword with precision and renders a well hewn, thoughtful, and legally superb decision.
 
    The history of the Redskins as a team and as a trademark is very interesting.  The history is that the team began life in Boston as the Braves  and played in Braves Field where baseball’s Boston Braves played.  The name was changed in 1933 to Boston Redskins by the owner, George Preston Marshall, who had recently become sole owner as his partners dropped out. (How times have changed!) The name was in honor of the team’s coach, William “Lone Star” Dietz, a Native American.

    The team was moved to Washington in 1937 and began using the name “Washington Redskins” and other marks including “Redskinettes,” for its cheerleaders, in 1962.  The team then filed for trademark protection beginning in 1966 and acquired trademark protection for its marks over several years. All trademarks were renewed when appropriate, and, most significant to our purposes here, there were no objections filed at the time of the applications.  

    The first objection came in the form of the instant petition for cancellation. In granting the petition, the TTAB, after lengthy testimony, made two findings of fact.   First, there was the testimony of expert linguists and, second, survey evidence.  The documentation in both areas was voluminous, The most telling evidence from the experts was that “from at least the mid 1960s to the present, the word “redskins”has dropped out of written and most spoken language as a reference to Native Americans.” Morever, “since the mid 1960’s on, the word “Redskins” appeared only as a reference to Plaintiff’s football team.”  

    In discussing the rationale for its decision, the court carefully analyzes the standard to be used for its decision. It concludes that the findings of disparagement shall be reviewed de novo (from the beginning).
Having done so, the court then turns to the TTAB decision and the “ TTAB’s sporadic attempts at findings of fact.”  To make it easy for the reader, the decision discusses the evidence that convinced the TTAB to cancel the registration for thirty pages.  In reversing the TTAB,  Judge Kollar-Kotelly simply exposes the evidence to light and it disintegrates. For example, the linguistic testimony, as mentioned before, showed that Redskins was used only in reference to a football team and the survey results showed mixed evidence that was inconclusive, inadequate statistically, and indicated attitudes in the 1990’s, not the relevant period when the trademarks were first registered.  It is attitudes at the time of registration that are relevant, not attitudes in the late 1990’s. . The evidence used was inadequate for the result reported by the TTAB, but the Judge goes further by allowing the Pro-Football laches defense that the TTAB had dismissed.

     Laches is a very obvious equitable solution to this case. The defense was asserted by Pro-Football but was dismissed by the TTAB on the basis that a laches defense is unavailable in the context of a (Lanham Act) Section 2(a) petition for cancellation; particularly where “a public interest” is vindicated .

    The test for a laches defense was set out in the Courts Memorandum Decision of Dec. 11, 2000.” The doctrine of laches bars relief to “those who delay the assertion of their claims for an unreasonable time.”
  Laches is founded on the notion that “equity aids the vigilant and not those who slumber on their rights.” NAACP v. NAACP Legal Defense Fund, 753 F.2d. 131, 137 (D.C. Cir. 1985) There are three affirmative requirements. under the common law that are modified to fit the procedural posture of this case: (1)The Native Americans delayed substantially before commencing their challenge to the Redskins trademarks;  (2) The Native Americans were aware of the trademarks during the period of delay; and (3) Pro-Football’s ongoing development of goodwill during the period of delay engendered a reliance interest in the preservation of the trademarks.

    The Court characterized the case as “undoubtedly a ‘test case’ that seeks to use federal trademark litigation to obtain social goals.”Trademark Trial and The problem, however, with this case is evidentiary. The Lanham Act has been on the books for many years and was in effect n 1967 when the trademarks were registered. By waiting so long to exercise their rights, Defendants made it difficult for any fact-finder to affirmatively state that in 1967 the trademarks were disparaging.”   

    In this remarkable case, the rule of law has been applied to an important trademark case. We can rest assured that future decisions will be made according to the well established rules that govern the adjudication of intellectual property disputes, which should provide relief for the IP practitioner. .

Article Originally Published in the Trademark Journal.