Charles Kramer, The Levison Group
As a lawyer, you gotta love the National Collegiate Athletic Association (“NCAA”). Each year the NCAA sponsors a national basketball championship tournament in which they invite 64-plus teams to play. It’s a round-robin type set up, with teams being pitted against each other in one game, winner takes all, contests. The winners of each round advance to the next round to take on similar winners, leading to an ever-narrowing group of teams until only two stand, who then play for the national championship. The graphical representation of the tournament matchups has become known as “the bracket” and office pools proliferate in which players try to pick the winners of all games, all the way through, before they begin , thus “picking their bracket.” National companies even sponsor tournaments offering large prizes or gobs of cash to anyone who can submit a “perfect bracket”—i.e., one in which they pick every game right. Other pools pick each round at a time, so you can see who is playing against whom in later rounds before picking. One unique pool even offers a pick-the-players pool, a fantasy draft type game that has conquered the question of how to have a pick-the-player game in a limited, elimination-style tournament.
But why is this a situation that lawyers love? The answer is found in the widespread popularity of the contests, and the questionable legality of the pools that it generates. To what degree these office pools are actually legal, may depend upon your state, whether money is wagered, or whether any wagers cross state lines. This year, however, the legal inquiry goes beyond the actual basketball brackets and into other brackets. A fraternity is in trouble for putting out a “girl-on-girl” bracket, in which the women they deemed to be the better looking women on campus were seeded one through 64 and then paired in a bracket similar to that used by the NCAA. The men on campus were then asked to vote on each head-to-head matchup, with winners advancing until the best looking woman on campus would be crowned. (When word got out, the administration put an immediate halt to the process, during the “Sweet 16” round.)
Perhaps the most surprising interplay of the law and the brackets, however, is rumored to have unfolded shortly after the round of the Elite Eight played out on the basketball courts of our nation. Although no publically reported stories have been located to corroborate, inside sources have suggested that one of the nation’s largest law firms, which just may be one of fourteen that periodically represent the NCAA in marketing or other matters, recently received a demand letter from another of the collegiate behemoths advocates demanding that the firm immediately cease and desist using NCAA-style brackets in connection with an intra-firm contest on oral argument. The story is that the multi-office, multi-state firm is engaging in a contest among firm lawyers with one to three years experience, to determine their “rising star” arguer. They have divided their offices into “regions,” and have seeded lawyers one to 64 and distributed a “bracket” firm wide, calling it the NFAA Bracket, and using an NFAA logo where the official NCAA bracket places its logo on its bracket. (“NFAA” apparently stands for National Firm Attorney Arguers). The demand letter purportedly required the firm to cease using the bracket graphic, noting that “Given your firm’s unique relationship with our Association, it is especially distressing that you would so blatantly infringe on our bracket graphic, ignoring our copyright and your obligations.”
Did this actually happen? We don’t claim it did and, frankly, it sounds more like the fodder of an overcreative imagination and most assuredly is intended as satire. However, to the extent it has any apparent credibility it does raise the question of whether the world has gotten a little bit too litigious, and a little bit too serious.
How will all of this eventually play out? I don’t know about you, but I’m a big fan of tradition, so I’m putting my money on the NCAA.
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Under analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St Louis based law firm Riezman Berger, PC. Comments or criticisms about this column can be directed to the Levison group via email to Comments@levisongroup.com or via the newspaper in which this article appears.
© 2015 Under Analysis LLC.
