Monday, April 25, 2011

NFL players are employees of their particular teams

In the course of determining that Minnesota's drug-testing statute (providing substantive and procedural rights to employees) was not preempted under LMRA §301 (29 U.S.C. §185) by the NFL-NFLPA* collective bargaining agreement, the Eighth Circuit gathered cases in an aside about who is an NFL player's employer. The answer — the team —is not surprising. What is surprising is that the issue appears to have been directly addressed by the federal courts only in a workers comp context.
We note that the matter of who is the employer of an NFL player was addressed in Brown v. Nat’l Football League, 219 F. Supp. 2d 372 (S.D.N.Y. 2002). There, a former NFL player brought a personal injury action in state court against the NFL, seeking damages for a career-ending eye injury he sustained during a game when a referee threw a penalty flag that struck the player in the eye. Id. at 375. The district court observed, “At the time of his injury, Brown worked not for the NFL, but for the Cleveland Browns Football Company, a Delaware limited partnership and an entirely separate entity which happens to be a member of the NFL.” Id. at 383. The owners of NFL teams “own franchises in the NFL and employ the [U]nion members as football players.” Id.; see also Clarett v. Nat’l Football League, 369 F.3d 124, 138 (2d Cir. 2004) (“Because the NFL players have unionized and have selected the NFLPA as its exclusive bargaining representative, labor law prohibits Clarett from negotiating directly the terms and conditions of his employment with any NFL club[.]”); White v. Nat’l Football League, 41 F.3d 402, 406 (8th Cir. 1994), abrogated on other grounds by Amchem Prods. v. Windsor, 521 U.S. 591 (1997) (“The settlement agreement [at issue] purports to end a six-year dispute between the NFL member teams and their player-employees.”); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1269 (3d Cir. 1979) (“This appeal presents several interesting questions growing out of the employment by the Philadelphia Eagles Football Club (‘the Eagles’) of a former professional player, Don Chuy (‘Chuy’).”). We do not address the impact of this on the Players’ ability to prevail on their DATWA claim against the NFL.
Williams v. NFL, Nos. 09-2247/2462/2249 (8th Cir. Sep. 11, 2009), slip op. at 18-19 n.12, cert. denied, No. 09-1380 (U.S. Dec. 14, 2009).

*The NFLPA's website,, is appropriately blank (given the decertification decision) and redirects the viewer to, where — among other delights — there is a clock showing to the second the length of the lockout.

Friday, September 24, 2010

Victory for Justice

Today (9/24/10), Chief Judge Coffman of the U.S. District Court for the Eastern District of Kentucky issued an order granting over 98% of a petition for attorney’s fees and costs on behalf of one of our consumer clients, Madeania Justice.  This is a solid victory for consumers because it encourages litigators to take on important cases that may not feature large damage awards or settlements but still allow for the opportunity for the attorneys to cover their time and expenses:

 “Justice’s small recovery does not render her case a nuisance or disqualify her as a prevailing party.  Justice need only show that her settlement provides some benefit to her, or some vindication of her rights, and that the settlement furthers the legislative intent of encouraging private enforcement of the respective statutes. ….  Monetary settlements often are small in consumer-protection cases, so the nuisance hurdle must be set low to avoid discouraging private enforcement.”  Order p. 4.

"Congress intended to bring an entire action that includes a Truth in Lending Act claim within the fee-shifting provision of the statute. .... Many attorneys would turn down consumer-protection cases if they were faced with the prospect of prosecuting such cases only to prevail on non-fee-shifting claims." Order pp. 6-7

 “Brother’s Auto argues that any time Justice’s attorneys spent conferring with one another should be excluded. ....  It would be extremely difficult, if not impossible, for a team of attorneys to effectively represent a client without conferring with one another.” Order p. 9.

Madeania Justice v. Nasser, Inc., dba Brothers Auto Sales, Il, Case No. 5:08-cv-00255-JBC-REW (E.D. Ky. Sep. 23, 2010).  The full opinion and order is available through the PACER service or here.

Tuesday, September 21, 2010

The World Equestrian Game are coming

It's an exciting time to live and work in Lexington, KY with the World Equestrian Games only three days away. Similar to the Olympics, the World Equestrian Games (or WEG) occur once every four years (opposite the Summer Games) and feature the world championship for eight different equestrian events: dressage, driving, endurance, eventing, jumping, para-dressage, reining, and vaulting. Hosting WEG would be an honor for any city, but Lexington has the unique privilege of being the first non-European city chosen.

Lexington is taking advantage of the international attention with Spotlight Lexington, a free entertainment event running through the Games in downtown Lexington. Though it is likely to add to the anticipated traffic problems associated with the extra tourists, media and athletes, Spotlight Lexington is a great opportunity to connect the community with WEG.

Monday, August 30, 2010

Nonprofits' IRS filing: Update

In a 6/4/10 post, we discussed the problems for small nonprofits, including §501(c)(3) charities, that were not required to formally register with the IRS and might be unable to submit the e-Postcard (Form 990-N) designed for them to use to fulfill the annual reporting requirement. The post concluded by passing along IRS statements that it was working on a way to resolve the problems — and avoid the catastrophic consequence that many non-profits would automatically lose their tax-exempt status.

That resolution was announced on July 26, 2010; on its website, the IRS provides a detailed overview of the program for allowing small nonprofits to preserve their tax-exempt status. In addition, the IRS provides lists, by state, of "organizations at risk" for automatic revocation of their tax-exempt status for failing to make the required filing for three consecutive years. Not every organization listed may be eligible for the program. More crucially, not every at-risk organization is on the list. Recall that this problem arose in part because many nonprofits quite legitimately had not registered with or been identified by the IRS as nonprofits. So:
Being listed does not itself make a nonprofit eligible for the IRS program.
Not being listed does not immunize a nonprofit from losing its tax exempt status for failing to comply with the annual filing requirement.
Two types of relief are available for small nonprofit organizations: (1) a filing extension for the smallest organizations, that are eligible to file the e-Postcard, and (2) a voluntary compliance program (VCP) for small organizations eligible to file Form 990-EZ, Short Form Return of Organization Exempt From Income Tax. The extension is to October 15, 2010, for filing the e-Postcard; for many organizations the deadline otherwise passed on May 15 of this year. The VCP involves much more paperwork and the payment of a fee (in lieu of late-filing penalties and interest), but is a mechanism for a nonprofit to "erase" any breaks in its tax-exempt status with the IRS.

Saturday, August 14, 2010

I Write Like ...

I read in a Wall Street Journal column about a website that would statistically analyze a text and compare it to statistics for famous writers:

I cast about for something to feed into the analyzer. The more significant things to hand were briefs. So I tried it out with two paragraphs from a recently-written, fact-intensive statement of the case. I was rewarded with:

I write like
Edgar Allan Poe

I Write Like by Mémoires, Mac journal software. Analyze your writing!

Now ... I suspect that my paragraphs were not evocative of The Masque of the Red Death. Only that of the writers whose statistics were in the comparison database, my brief was more like something written by Edgar Allen Poe than, for example, Hemingway or Faulkner. I am, however, thrilled that my cool, dispassionate briefing style may be mysteriously dark at its tell-tale heart.

Friday, June 4, 2010

Tax-exempt, but failing to report to IRS

(researched and drafted by Christopher L. Jackson, UK law student and summer clerk)

Under recent changes in federal law, tax-exempt organizations — with only a few, select exceptions — must annually file information (known as a Form 990) with the IRS. (Note: "tax-exempt" means that the organization itself does not have to pay taxes, not that contributions to the organization may be deducted from the donor's taxable income.) While this “reporting” requirement burdens many tax-exempt organizations, its effect may be most significant among small nonprofits which qualify as charitable organizations under §501(c)(3) of the Internal Revenue Code.

A charitable organization that normally has less than $5000 per year in gross receipts is generally not required to request formal recognition from the IRS of its §501(c)(3) status in order to be tax-exempt. (See 26 U.S.C. §508(c)(1)(B).) Most of these organizations, however, are required to make a Form 990 filing with the IRS; failure to file the requisite report for three (3) consecutive years results in automatic loss of an organization's tax-exempt status — which may result in liability for paying taxes. Organizations that did not request formal recognition of tax-exempt status did not receive individual notice of the Form 990 filing requirement because the IRS did not know that they were (or claimed to be) tax-exempt.

IRS Commissioner Doug Shulman, in an official statement, urges that organizations go ahead and file the report even if they missed the deadline. Any tax-exempt organization whose gross receipts are normally less than $25,000 per year may file an abbreviated report via the web known as an e-postcard (Form 990-N). Before attempting to submit an e-postcard, those organizations which have not requested recognition of their tax-exempt status (like those 501(c)(3) organizations that normally have less than $5000 in annual gross receipts) should call the IRS customer service hotline at 1-877-829-5500 to be set up to allow reporting through the e-postcard system. It appears that because many small organizations did not file on time (and may not have known that they were required to file), the IRS is working on a way to resolve the problem.

Friday, May 21, 2010

Getting our name out there: Business Lexington magazine

The style of this advertisement may look similar to the TILA rescission entry.  This Wordle-like image was created by hand and lists many of Yunker & Park's areas of practice.  It's placed in the current edition of Business Lexington magazine, a news journal distributed in and around Lexington, KY.