Royal Play Penalty: No Standing in the End (Zone)
The US Court of Appeals for the Federal Circuit dismissed an appeal from the Trademark Trial & Appeal Board, finding that the appellant lacked standing because it failed to allege any actual and particularized injury. Michael J. Messier v. New Orleans Louisiana Saints, LLC, Case No. 24-2271 (Fed. Cir. Apr. 14, 2025) (per curiam) (Moore, C.J.; Prost, Stark, JJ.) (nonprecedential)
Michael J. Messier claimed that he is a direct descendent of the kings of France, and that he and his family own intellectual property rights to the Fleur-de-Lis mark used by the NFL’s New Orleans Saints. Messier filed a petition with the Board for cancellation of the Saints’ Fleur-de-Lis mark. Messier’s petition contained no claim that he or his family currently use any fleur-de-lis marks in commerce or any other avenues for revenue, such as licensing. The Board dismissed the petition.
The Board held that pursuant to Sections 13 and 14 of the Lanham Act, 15 U.S.C. §§ 1063 and 1064, to maintain a cancellation action, Messier had to “allege a commercial interest in the registered mark or a reasonable belief in damage from the mark’s continued registration.” Messier’s original and amended petitions failed to do so. The Board noted that Messier did not own or conduct “any business under the mark, and thus he cannot allege entitlement.” Messier appealed.
The Federal Circuit determined that Messier lacked standing to bring the appeal. The Court explained that to demonstrate Article III standing for his appeal, Messier had to demonstrate actual or imminent injury that was concrete and particularized, a causal connection between the alleged conduct and the injury, and potential redressability by a favorable decision. Messier failed to meet his burden, primarily because he failed to demonstrate injury by the Saints’ use of the Fleur-de-Lis mark that went beyond “a general grievance or abstract harm.” Messier did not allege that he used a fleur-de-lis design in commerce whatsoever and thus failed to demonstrate any injury.
Case Spotlight – Exclusive Surrey Golf Club Forced to “Take a Mulligan” Over Treatment of Allegedly Cheating Member
Being a keen club golfer (although not one with any actual skill), a case that caught my eye in the last few weeks was the case of Rohilla v The Members of Royal Mid Surrey Golf Course (whose members listed in the Judgment included the perfectly named Michael Hole). As well as being a very detailed insight into the workings of an exclusive Surrey golf club, the case provides a few useful lessons on how, and more importantly how not to, remove someone from a membership who (allegedly) broke the rules and/or was quite unpopular.
The Allegation of Cheating
The Royal Mid Surrey Golf Club is a deeply traditional golf club, formed at the close of the Victorian era and granted the distinction of Royal by George V. Ms Rohilla had been a member of the club since 2003 and was described by the Judge as “not a popular member”. The judgment reports that the captains kept a file on her, she was overly competitive, engaged in gamesmanship and there were rumours that she kept her handicap at a deliberately inflated level (3 of the 7 deadly sins of golf club membership).
Golf is a sport that, perhaps more than any other, is based around a detailed set of rules. On top of that there is a code of conduct and rules of etiquette that anyone playing the sport is expected to adhere to. It is perhaps the only sport where every serious participant has a handicap (a number of shots they are given) based on their ability, which allows them to compete with better and worse players on a supposedly level footing. Golf therefore requires a large degree of honesty and self-policing to ensure fairness. Rule breaches are generally taken extremely seriously (particularly at the better known clubs) and professionals who are deemed to regularly break rules are routinely vilified (those that know, yes I’m looking at you…).
On 12 September 2019, Ms Rohilla played in a club competition called the Harare 125 Bowl which was open to the whole of the 1,400 strong membership. Her playing partners on the day were 2 other female members and Ms Rohilla’s scorecard was marked by a member who was described by the Judge as having a reputation for “not being the most accurate of markers”. After a dazzlingly average round of golf, the ladies reviewed their scorecards prior to submission, to be included in the tournament. It turned out there were numerous mistakes on Ms Rohilla’s card who in any event was a long way off winning any of the prizes in the tournament.
The ladies eventually agreed and signed off Ms Rohilla’s scorecard. However, prior to submitting the card it is common ground that two further alterations were made by someone to make the score two better than it had been when it was agreed by the players. The head of the Pro Shop (somehow) immediately spotted the discrepancy and told Ms Rohilla that the incident was extremely serious. She was disqualified from the tournament and told to expect to hear further from the management in due course.
It is almost certainly fair to say that if this was the first incident on Ms Rohilla’s roster, the matter probably would not have been taken any further. However, it is clear that Ms Rohilla was already under scrutiny and this was seen as a final straw. What followed was an investigation and process, but not one that was necessarily appropriate or lawful. Statements were taken from the playing partners and the offending scorecard was very closely examined. Ms Rohilla attended a meeting of the management committee on 25 September and put forward her version of events. However, the management committee met again on 30 September and voted unanimously that Ms Rohilla had cheated and would be expelled from the club.
The Injunction Hearing
Ms Rohilla thought that she had not been given a fair hearing and rather than start afresh at a different golf club or put her skillset to better use by applying for the next series of The Traitors, she embarked upon a long legal battle to seek an injunction against the club to reinstate her membership. Some five and a half years later, the matter was heard over 3 days at Central London County Court, with his Honour Judge Holmes taking it upon himself to, as asked by the parties, play detective and deliver an engaging 72-page Judgment.
Despite expressly stating that the Court was not deciding whether or not Ms Rohilla had cheated, the Judgment examined the facts (particularly the offending scorecard) in minute detail for 48 pages before seemingly reaching the conclusion that she probably had cheated. However, the Judgment found that the matter actually turned on natural justice and good faith – had Ms Rohilla been afforded a reasonable opportunity to be heard and was the decision free from bias?
Ultimately the Judge found that the management committee had not considered Ms Rohilla’s version of events and that effectively their decision (to expel her) was predetermined. It was also based upon members’ personal dislike of her more so than this particular incident and there was a clear bias against her. There had been a breach of natural justice and the club had acted in bad faith in various aspects.
In light of the breaches of duty in the process undertaken by the management committee to expel Ms Rohilla, the Judge awarded nominal damages in the sum of £1,000 for her inconvenience and injury to feelings and granted the injunction to reinstate her to the club. How she will be received on returning having gone through this process and after the passage of five and a half years is an intriguing question.
Lessons Learnt
Whilst I would not necessarily direct you to read the whole Judgment (which can be found here), it does provide a useful reminder that even if an institution has the power to remove someone from their position (in this case as a member of a golf club), it cannot act as judge and jury without complying with the principles of natural justice and acting fairly in a procedural sense and in good faith. It appears that the club in this instance saw the clear rule breach by Ms Rohilla as the ideal opportunity to remove an unpopular member, but it allowed this bias to override appropriate procedures and failed to consider Ms Rohilla’s side of the story.
The principles of natural justice and procedural fairness are well known. As per McInnes v Onslow Fane [1978] 1 WLR 1520 the extent of the application of the principles varies in the light of all the circumstances and, in particular, whether the case can be described as an “application” case, an “expectation” case or, as here, a “forfeiture” case, i.e. where a subsisting right was to be taken away. The Judge found that, in relation to the application of the principles in this forfeiture case: “First, what will be required is context specific. That includes the size and resources of the organisation. Secondly, what amounts to natural justice changes with the passage of time. Thirdly, it will often require that a person who may be adversely affected by the decision will have an opportunity to make representations on her own behalf before the decision is taken. Fourthly, the person must know what factors may weigh against her interest, such that she must know the gist of the case she has to answer. Whilst the contents of natural justice change with time, that is really a word of caution against taking every word and circumstance from the earlier cases as being the applicable modern standard for all purposes. Haque was a recent case on these points and I gratefully adopt the analysis and standard identified by Choudhury, J. in that case”
In Haque v. Faradhi [2023] EWHC 1135 (KB) Choudhury, J held that the power to terminate: “(i) Must be exercised in good faith and not for any improper purpose; (ii) Must not be exercised capriciously, arbitrarily or irrationally; (iii) Must be exercised with regard to the rules of natural justice, including: a) giving notice of the gist of any allegations against a member b) giving that member a fair opportunity to respond to them; c) the right to an unbiased decision maker; d) the right to a brief explanation as to the reason for termination.”
The judgement reads therefore as a cautionary tale. Any institution, sporting or otherwise, where executive powers are granted to management or to a committee to take away a right granted to a member must ensure that they have strict procedures in place to ensure that members receive a fair hearing even in relation to the most egregious of rule breaches or misconduct. Otherwise, perhaps sooner than five years later, they may find themselves welcoming the unwanted member back into the clubhouse, one assumes through gritted teeth.
CAA Taps Julie Zorn to Build a Family Office Powerhouse
Why is one of the world’s most influential talent agencies expanding from managing fame to managing wealth?
Creative Artists Agency (CAA) is entering the Family Office space with a new advisory division focused on ultra-high-net-worth clients. This is more than a service expansion-It reflects a shift in how CAA supports individuals at the center of culture and capital.
With the launch of its Global Family Office Advisory division, led by veteran adviser Julie Zorn, CAA is becoming a partner in long-term planning, legacy building, and wealth strategy.
A Generational Wealth Transfer Creates a Timely Opening
Cerulli reports that $124 trillion will pass from one generation to the next by 2048. Much of that wealth belongs to individuals who built fortunes through entrepreneurship and entertainment.
These clients are not just seeking investment results. They are focused on structure, values, and impact. CAA already plays a key role in their public lives. Now, it is helping them build systems to preserve wealth across generations.
An Experienced Leader Behind the Strategy
Julie Zorn brings over two decades of experience advising families on establishing and managing Family Offices. Her background includes senior roles at Citi and BMO Harris, where she designed governance frameworks, recruited leadership, and built long-range plans.
Her work helps clients create systems aligned with their goals to support long-term wealth. This includes governance, operations, team development, and leadership planning.
A Strategic Path Toward a Multi-Family Office Model
Most celebrity clients are not looking to build a Family Office from scratch. It is costly and complex. Yet, they want privacy, control, and tailored advice. A shared platform offers those benefits without the burden.
CAA is positioned to deliver this. With a trusted network and strong client insight, the firm could build a multi-family office model that is both efficient and personal.
A Natural Evolution of CAA’s Role
If successful, CAA will move beyond representation to become a long-term partner in how clients approach legacy and continuity.
This expansion raises the bar for advisors who have struggled to serve public wealth creators. CAA understands the balance between visibility and privacy, and the mindset of clients navigating influence and affluence.
A Broader Shift in How Wealth Is Managed
This reflects a broader change in how modern wealth holders want to be supported. Today’s clients seek partners who understand their goals and offer integrated solutions.
CAA is entering a space that has long lacked clarity. If it succeeds, it may reshape how the next generation of wealth creators approaches legacy.
CAA is making a long-term investment in its clients’ futures. No longer just guiding careers, the firm now helps build structures that last. For those managing wealth and visibility, that may be the most valuable role of all.
U.S. Federal Court Permanently Enjoins Ohio Social Media Age Verification Law From Taking Effect
On April 16, 2025, the U.S. District Court for the Southern District of Ohio Eastern Division issued a ruling permanently enjoining the Ohio Attorney General from enforcing the Parental Notification by Social Media Operators Act, Ohio Rev. Code § 1349.09(B)(1) (the “Act”). The decision follows a preliminary injunction issued in February 2024 by the same court.
The Act was signed into law in July 2023, and was set to take effect on January 15, 2024. The Act would have required social media platforms to verify whether users are at least 16 years old and obtain parental consent before allowing children under 16 to create an account on their platforms. The court held that the Act implicated the First Amendment because it restricted children’s ability to engage in and access speech, and that the Act’s application to certain websites but not others amounted to a content-based restriction because it favored certain forms of engagement with speech over others. In its ruling, the court stated that the Act “resides at the intersection of two unquestionable rights: the rights of children to ‘a significant measure of’ freedom of speech and expression under the First Amendment, and the rights of parents to direct the upbringing of their children free from unnecessary governmental intrusion.” The court held that the government did not satisfy the satisfy the First Amendment’s strict scrutiny standard, which is applied to content-based restrictions. “Generally, First Amendment protections ‘are no less applicable when government seeks to control the flow of information to minors,’” the court said.
The ruling is the latest in a string of lawsuits brought by NetChoice, a tech industry trade association, against similar state laws. It also represents the second permanent injunction NetChoice has secured, following a recent permanent injunction blocking a similar law in Arkansas.
Summer Concert (Seizure) Season
The summer concert season is almost here. As the weather warms, artists and fans alike are gearing up for highly anticipated tours, like the Oasis reunion, as well as annual festivals, such as Lollapalooza in Chicago, IL, both of which sold out in under an hour. Undoubtedly, John Doe, bootleg merchandiser, is gearing up too, ready to sell counterfeit summer tour t-shirts outside venues. A recent case out of the Central District of California suggests that if artists want to crack down on John Doe’s sales this summer, it may be wise to wait until the tour is underway and the knock-off sales have begun.
On March 24, 2025, rock band AC/DC filed a complaint and ex parte application for a temporary restraining order (“TRO”), seeking nationwide relief against anticipated but yet-to-be-identified Doe defendants. See Leidseplein Presse, B.V. v. Various John Does, Jane Does, and XYZ Companies, No. 2:25-cv-02585 (C.D. Cal. Filed 03/24/2025). The band sought to seize counterfeit merchandise at the opening date of its upcoming tour and to restrain bootleggers from engaging in further sales across the country. However, on April 4, the federal district court in Los Angeles denied AC/DC’s TRO application on the basis that any injury to plaintiff was hypothetical at this point as the complaint and TRO application did not identify particular individuals or repeat offenders, even though the identities of bootleggers are almost never known, and difficult to ascertain.
To counteract the proclivity of bootlegging, touring artists and promoters employ a creative combination of Federal Rule of Civil Procedure 65 and the Trademark Counterfeiting Act of 1984 to seize and restrain ongoing sales of counterfeit merchandise. This mechanism combines five unusual, often disfavored, litigation tactics: 1) emergency proceedings; 2) ex parte seizure orders; 3) seizure without deprivation hearings; 4) Doe defendants; and 5) nationwide restraining orders. Courts are often uncomfortable with the mechanism, consistently expressing due process concerns, even when granting such orders.
Touring artists and promoters see this strategy as one of the only ways to effectively stem the flood of illegal, bootleg merchandise by sellers who are not easily identifiable and who may not be susceptible to normal service of process and litigation practices. However, with increasing judicial skepticism of the practice, artists are put in a precarious position, especially when faced with lost revenue in the early legs of tours, before hard evidence of actual damages can be shown to a court.
The court declined to issue the TRO AC/DC requested because, in its view, while likely plausible, the potential abuse was not enough to persuade the court to grant the application as it read the complaint as making conclusory allegations based on past experience; i.e., that bootleggers would present themselves at the opening date of the tour. The court expressed concerns about granting nationwide seizure and restraining orders, echoing the due process concerns of other courts around the country.
By contrast, jam band Phish adopted a different strategy with a similar goal, making a motion in the District Court of Massachusetts in summer 2024. See Phish, Inc. v. Various John Does, Jane Does, and ABC Companies, No. 1:24-cv-11749 (D. Mass. Filed 07/08/2024). Phish succeeded in obtaining both a seizure order and a restraining order for the remainder of its tour, stretching from New York to Colorado. Phish made its motion after the tour had begun, once bootleggers were present and the injury was concrete and ongoing. Further, Phish specifically identified the remaining tour dates and cities in which it sought a restraining order, limiting the often-sweeping nature of the nationwide restraining order requests, and apparently alleviating courts’ common discomfort with the perceived lack of due process.
For artists and promoters embarking on summer tours who want to shut down merchandisers of counterfeit concert memorabilia, specificity and certainty are key, even if the offenders are unidentified John Does. The recent court decisions suggest that knowing an injury might occur—even if almost certain—may not be enough to persuade some courts of the need for immediate, temporary relief. Artists and promoters should be specific in the scope of their request, limiting the restraining order to the remaining dates and cities on the tour schedule. By working with courts’ sympathies for mark owners, while simultaneously alleviating courts’ common procedural and due process concerns, artists may be able to rid themselves of bootleggers this summer, and fans can be sure to be offered only the genuine article.
Kansas City Federal Reserve Bank Explores Regulatory Risks in Gaming Ecosystems
On April 9, the Federal Reserve Bank of Kansas City published a research briefing examining how video game platforms are reshaping the digital payments landscape. As in-game purchases and platform-based transactions grow in volume and complexity, these developments are raising new regulatory concerns for both federal and state banking regulators.
The global video game industry generated nearly $190 billion in revenue in 2024, largely fueled by the increase in popularity of free-to-play models, in-game purchases, and subscription offerings. These approaches have fundamentally changed how the video game industry is monetized. Rather than relying on one-time game sales, many platforms are now relying on ongoing microtransactions, charging users small amounts for in-game content, upgrades, or access on a recurring basis. This shift has caught the attention of regulators, evidenced by the CFPB issuing an Issue Spotlight in April 2024, titled “Banking in Video Games and Virtual Worlds”, which analyzed the increased commercial activity within online video games and virtual worlds and the apparent risks to consumers—in this case, to online gamers (previously discussed here).
Overview of the Research Briefing
To support these business models, platforms have expanded the types of payments they accept, layering in credit and debit cards, digital wallets, and prepaid in-game currency. Many platforms also offer installment options at checkout. Most recently, some are exploring instant payments as a way to improve efficiency and reduce costs, especially for small-dollar transactions.
Unlike traditional card payments, instant payments settle in real time and often come with lower processing fees. That pricing difference could give platforms more flexibility in how they price in-game content. Instead of requiring players to buy a $10 bundle of in-game currency to access a $2 item, platforms could offer direct purchases—making prices more transparent and lowering the barrier for occasional or budget-conscious users. Faster payments may also help with subscription billing by reducing failed payments tied to expired cards or insufficient funds.
Adoption of instant payments in the U.S. still lags behind other countries, where some platforms already support local real-time payment systems. As the use of instant payments grows, regulators may also take a closer look at whether existing consumer protection frameworks are keeping up.
Regulatory Concerns
The report notes that the CFPB has identified several risks tied to gaming payments, including lack of transparency around pricing, unauthorized charges, and aggressive use of consumer data. Some platforms personalize offers or pricing based on player behavior, raising concerns about fairness and consent. As the use of virtual currencies and recurring charges becomes more common, regulators are questioning whether existing consumer protections adequately apply to these models.
The report also highlights security as another area of concern. Platforms now use behavioral analytics, tokenization, two-factor authentication, and other tools to prevent fraud and protect payment data. While these measures reduce friction and improve user experience, they also raise questions about how personal data is collected, stored, and used—particularly as the line between gaming and financial services continues to blur.
The report also flags concerns surrounding money laundering. In-game items and currency can often be exchanged for real money, sometimes outside official channels. That has created openings for illicit finance, even though most gaming companies aren’t subject to AML or KYC requirements. As the flow of real funds through these platforms increases, regulators may revisit whether additional oversight is warranted.
Putting It Into Practice: The CFPB and state financial regulators are signaling a growing interest of the gaming industry, particularly where in-game economies begin to resemble consumer financial products. Gaming providers would be wise to proactively assess how their business models could create compliance risk.
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Mississippi Gaming Commission Meeting Report (April 2025)
The Mississippi Gaming Commission held its regular monthly meeting on Thursday, April 17, 2025, at 9:00 a.m. at the Jackson office. Executive Director Jay McDaniel and Chairman Franc Lee, Commissioner Kent Nicaud and Commissioner Jeremy Felder were all in attendance. The following matters were considered:
LICENSING
The Commission approved the issuance of a license to the following:
Tour Trader Pro, Inc., as a Manufacturer and Distributor
FINDINGS OF SUITABILITY
The Commission approved findings of suitability for the following persons:
James Lindsey Inman – Gulfside Casino Partnership d/b/a Island View Casino Resort
Robert Cresson Ritterhoff – American Gaming & Electronics, Inc.
Adan Castaneda-Cortez – American Gaming & Electronics, Inc.
Todd William Francis – American Gaming & Electronics, Inc.
Lisa Marie Whiteley – American Gaming & Electronics, Inc.
Michael Skura – Tour Trader Pro, Inc.
Timothy Allen Legendre – Tour Trader Pro, Inc.
Skating on Thin Ice: The CAS Re-affirms the Field of Play Doctrine in the ‘Kyiv Capitals’ Case
What is the Field of Play Doctrine?
Regardless of the sport or the level of competition, refereeing decisions are inevitably the subject of question and complaint. Players, managers, clubs, fans, commentators, pundits and casual observers may all criticise the merits of officiating decisions – something undoubtedly made all the more prevalent by the multitude of camera angles, slow-motion replays and technology that define modern broadcast sport.
The “Field of Play” doctrine, a concept enshrined in the so-called lex sportiva and consistently applied by the Court of Arbitration for Sport (“CAS”), is based on the belief that the rules of the game, in the strict sense of the term, are not subject to judicial control. The rationale behind this “qualified immunity”[1] is twofold: (1) to ensure that match officials have the requisite authority and autonomy to make decisions, and (2) that sporting contests will be completed and thus deliver a result.
As per the 2017 CAS case of Japan Triathlon Union v International Triathlon Union[2], for the doctrine to apply, the following two conditions are needed:
“that a decision at stake was made on the playing field by judges, referees, umpires and other officials, who are responsible for applying the rules of a particular game” and
“that the effects of the decision are limited to the field of play.”[3]
Nonetheless, the doctrine is not absolute, meaning that field of play decisions may be disputed in narrow circumstances relating to integrity. These include instances where there is evidence of bad faith, malicious intent, fraud, bias, prejudice, arbitrariness and corruption.[4]
Hockey Club Kyiv Capitals v Ice Hockey Federation of Ukraine[5]
(i) Introduction
In an Award handed down by the CAS on 20 February 2025, the Ice Hockey Federation of Ukraine (the “Federation”) successfully argued that the CAS had no authority to review officiating decisions. The appeal to the CAS had been brought by Hockey Club Kyiv Capitals (the “Club”) in connection with a match during the 2023/2024 Ukrainian Men’s Ice Hockey Championship season.
(ii) Factual Background
The case concerns an incident that occurred on 3 February 2024 during a match between the Club and the Hockey Club of Dnipro (“Dnipro”).
Throughout the match, several incidents occurred which resulted in both teams receiving penalties. The Club received a total of 13 penalties for unsportsmanlike conduct (including kneeing, tripping, elbowing, and roughing) which were committed by several players and their Head Coach, Vadym Shahraichuk. By contrast, Dnipro received three penalties.
With 50 minutes and 48 seconds of the match played, the Club refused to continue and instead left the ice hockey rink, the score being tied a 2-2 at the time. This decision was, according to their Head Coach, due to “unfair and one-sided refereeing.”[6]
(iii) Procedural Background
Following the match, the Club appealed to the Federation Refereeing Quality Assessment Committee (the “RQAC”), citing twelve occasions during the match where the referees failed to impose a sanction. Although the RQAC subsequently ruled that the majority of the refereeing decisions were correct, they did identify several which had been overlooked.[7]
The Disciplinary Committee of the Federation consequently initiated proceedings to determine the application of sanctions against the Club, later opting to impose disciplinary and monetary sanctions on 5 February 2024.[8]
The Club responded by filing an appeal against the Disciplinary Committee’s decision to the Appeals Committee. However, this was unanimously dismissed on 26 February 2024.
Finally, having received confirmation that they could appeal the Appeals Committee ruling to the CAS, the Club consequently filed a Statement of Appeal requesting that the CAS set aside the decision.
Arguments advanced before the CAS
(i) The Club
In seeking relief, the Appellant Club advanced five core arguments:
That the technical defeat should not have been awarded. In supporting this argument, the Club maintained that the game had begun and so the referees had exclusive authority to determine the outcome. The Federation’s competence only extended to matches that did not take place and the referees could therefore not delegate to the Federation. The Club further submitted that the game had been stopped too soon (i.e. after only two minutes rather than 5 minutes) due to an error in the translation of the Official Rule Book on the Federation’s website.
The violation of the principles of publicity and openness, namely that the Club had not been furnished with sufficient information about the proceedings, the receipt of statements from third parties, the hearing (including the time, place and composition of the authority), and the opportunity to renew statements and provide objections.
The violation of the right to an effective remedy, with the Club alleging that the Federation conducted a secret proceeding which deprived the Club of an effective defence.
The violation of ethical norms due to conflicts of interest, with the Club alleging a “direct connection between the Referee and the Chairperson and Deputy Chairperson of the Appeals Committee.”[9]
The violation of the right to a fair trial, namely as a result of the aforementioned arguments.
(ii) The Federation
In response, the Federation advanced nine core arguments:
The inadmissibility of the Appeal. In advancing this argument, the Federation submitted that the CAS lacked authority relating to future issues and that the Club failed to identify the point being appealed along with the exact basis of appeal.
The lack of interest and/or legitimacy of the Appellant. The Federation argued that the Club had neither the direct nor personal interest required to appeal certain aspects of the decisions. As part of this argument, the Federation maintained that the Club’s Head Coach should have appealed the decisions in his personal capacity and that the Club’s final league position was not impacted by the technical defeat awarded.
The binding nature and correct application of the Federation Rules. In invoking the “chain of references”[10] principle, the Federation contended that the Club had, by participating in the championship, consented to and agreed to be bound by the rules of the Federation.
The fair trial objection according to the de novo principle. In invoking the de novo principle[11], the Federation further contended that the Club’s submissions concerning the lack of a fair trial were immaterial and that the CAS would correct “all procedural flaws.”[12]
The field of play doctrine. By relying on the doctrine, the Federation argued that the on-field decisions made by the referees were not reviewable by the CAS.
The absence of any conflict of interest in earlier proceedings. In rebutting the allegation that there was a violation of ethical norms due to conflicts of interest, the Federation asserted that there was no conflict of interest or corruption. They further highlighted that such an argument had only been raised by the Club upon appeal to the CAS and could have been submitted in earlier proceedings.
The respect of the principles of publicity and openness. Far from not being in receipt of information relating to the proceedings, the Federation considered that the Club had been made provided with the first instance decision. They submitted that they were thus “informed of the entire proceeding, including evidence and facts.”[13]
The absence of determination of the outcome of the Match by the Referees. The Federation asserted that the technical defeat finding was a “logical sanction” rather than “an unlawful “determining of outcome””[14] after the Club departed the hockey rink.
The troublesome widespread effect of CAS decision annulling the technical defeat. Finally, and perhaps most persuasively, the Federation highlighted that “annulling the appealed decisions would justify and legalize the abandonment of matches as a means of remedy against field of play decisions and would represent a precedent allowing clubs to abandon games if they are not in their favor.”[15]
Ruling of the CAS
The sole arbitrator, Ms Carine Dupeyron, held that jurisdiction of the CAS had been established in the case and that the Club’s appeal had been filed within the relevant time limits.
Ms Dupeyron further found that the Club’s appeal was both admissible and that the Club had a legal interest in appealing the decisions.
Moreover, Ms Dupeyron concluded that the relevant International Ice Hockey Federation and the Federation rules and regulations applied in the case, with Swiss Law and case law also applying due to the arbitration’s seat in Lausanne, Switzerland.
With regard to the match itself and in applying the Federation Rules, Ms Dupeyron reasoned that the game period had not ended when the Club departed the hockey rink and refused to continue playing. Despite ruling that the referees had applied Rule 73.2 rather than Rule 73.3[16] of the Official Rule Book 2023/24, this did not impact the ability of both the Disciplinary Committee and the Appeals Committee to examine the case.
In considering the disciplinary and financial sanctions imposed on the Club, Ms Dupeyron concluded that the Disciplinary Committee and the Appeals Committee had both the authority to impose such sanctions and to impose a technical defeat on the Club.
Finally, the Club’s submissions regarding the violation of ethical norms due to conflicts of interest did not find favour with Ms Dupeyron. She instead concluded “that the de novo appeal before the CAS cured the potential procedural flaws regarding the appealed decisions”.[17]
Therefore, Ms Dupeyron declined to allow the appeal – thus confirming the decision of the Appeals Committee of the Federation.
Impact of Ruling
The ruling serves as a timely reminder that the Field of Play doctrine will prevent sporting contestants from simply leaving the arena and appealing the decisions of officials, including in situations where appeal boards subsequently find refereeing to have overlooked inappropriate or unfair acts that occurred within matches.
Moving forwards, participants should therefore continue to be mindful of the doctrine and that it will apply save for specific circumstances relating to integrity. If such circumstances are not apparent, then participants are walking on thin ice when choosing to abandon matches prematurely and seeking subsequent judicial relief. As the case demonstrates, the likelihood is that the doctrine will be upheld, certainly before a CAS tribunal, and participants will suffer the regulatory consequences of their abandonment.
The full CAS Award is available here: CAS 2024/A/10449 Hockey Club Kyiv Capitals v. Ice Hockey Federation of Ukraine
[1] CAS OG 02/2007 Korean Olympic Committee v. International Skating Union; 2015/A/4208 Horse Sport Ireland & Cian O’Connor v. FEI.
[2] CAS 2017/A/5373.
[3] Ibid [Paragraph 51].
[4] For example, see the following cases: CAS 2004/A/727 Vanderlei De Lima & Brazilian Olympic Committee (BOC) v. International Association of Athletics Federations (IAAF), CAS 2008/A/1641 Netherlands Antilles Olympic Committee (NAOC) v. International Association of Athletics Federations (IAAF) & United States Olympic Committee (USOC), Aino-Kaisa Saarinen & Finnish Ski Association v. Fédération Internationale de Ski (FIS) CAS 2010/A/2090, CAS 2015/A/4208 Horse Sport Ireland (HSI) & Cian O’Connor v. Fédération Equestre Internationale (FEI).
[5] CAS 2024/A/10449.
[6] [Paragraph 9].
[7] These overlooked instances included “a tripping, a blocking, a player interference, and a hand-checking on behalf of the opponent team” [Paragraph 11].
[8] These included disciplinary and monetary sanctions on the Club; imposing a technical defeat in the match on the Club / awarding a technical victory to Dnipro; warning the Club that repeated refusal to continue upcoming matches will result in automatic exclusion from the Ukrainian Men’s Ice Hockey Championship; imposing two disciplinary sanctions on the Club’s player Pavlo Taran; imposing a disciplinary sanction on the Club’s player Serhii Chernenko; obligating the Club’s Head Coach Vadym Shahraichuk to familiarise himself and the players with the Federation’s golden rules; and warning the Head Coach that he would receive one-match suspensions for each major, disciplinary or game misconduct penalty of the Club’s players.
[9] [Paragraph 85].
[10] [Paragraph 97].
[11]De novo refers to the standard of review employed by an appellate court, with the appellate court reviewing the decision of a lower court as if the lower court had not rendered a decision.
[12] [Paragraph 103].
[13] [Paragraph 112].
[14] [Paragraph 114].
[15] [Paragraph 115].
[16] Rule 73.2 permits the team refusing to play only 15 seconds to resume the match when already on the ice, whereas Rule 73.3 permits 5 minutes for the team to return to the ice.
[17] [Paragraph 179].
Jonathan Mason also contributed to this article.
UK Venues Face New Security Requirements Under ‘Martyn’s Law’
Go-To Guide:
The Terrorism (Protection of Premises) Act 2025, also known as “Martyn’s Law,” requires UK venues and events to implement security measures against terrorist attacks.
The Act introduces a tiered approach based on venue capacity.
The Act defines “responsible persons” who must address compliance.
Penalties for non-compliance include fines up to £18 million or 5% of worldwide revenue for some premises.
On 3 April, the Terrorism (Protection of Premises) Act 2025 received Royal Assent. The Act, also known as “Martyn’s Law” in tribute to Martyn Hett, one of the 22 people killed in the 2017 Manchester Arena attack, is intended to improve protective security and organisational preparedness for terrorist attacks at public venues across the UK.
The Act comes at a time when the Government considers the threat level from terrorism in the UK to be “substantial” as well as “less predictable and harder to detect and investigate.”
Pursuant to the Act, those responsible for certain premises and events will now be legally obliged to consider the risk and take reasonably practicable measures to mitigate the impact of a terrorist attack.
Background
The Act’s provisions were developed following engagement with the Martyn’s Law campaign team, expert security partners, businesses, and local authorities, as well as via learnings from the Manchester Arena Inquiry (a statutory public inquiry to investigate the deaths of the victims of the 2017 Manchester Arena attack) and the London Bridge Inquest (an inquest into the 2017 terror attack at London Bridge and Borough Market), which both recommended introducing legislation to protect the public and clarify venue owners’ duties regarding protective security.
The Act also forms part of the Government’s broader counter-terrorism strategy (CONTEST) 2023. At a time when the nature and threat of a terrorist attack is complex and unpredictable, the Government is aiming to enhance the UK’s readiness and protection by ensuring a wide a range of premises and events are legally obliged to be better equipped and ready to respond to a terrorist attack.
Key Provisions
Those responsible for certain premises or events will now be required to implement reasonably practicable public protection procedures and/or measures, depending on the capacity of the premises or event.
Tiered Approach
The Act establishes a tiered approach, linked to the number of individuals reasonably expected to be present on the premises at the same time. Smaller premises (200-799 individuals) fall within the standard tier and will be required to put in place simple procedures to reduce the risk of physical harm to individuals who may be present. Larger premises and events (800 individuals plus) fall within the enhanced tier, with additional procedural requirements in recognition of the potentially higher impact of a successful terrorist attack.
Types of Premises & Events
Premises include a building, part of a building, a group of buildings, or a building and other land – for example, a hotel plus its grounds where the same are used for dining or events.
Premises must be wholly or mainly used for one or more specified use(s), including shops, bars, pubs, restaurants, hotels, healthcare, education and childcare facilities, entertainment venues such as nightclubs, theatres and cinemas, halls, leisure, sports grounds, libraries, museums, galleries, transport stations, visitor attractions, and places of worship.
Events reasonably expected to have 800-plus individuals in attendance at the same time are also captured and subject to enhanced tier requirements so long as the event is publicly accessible and meets the “express permission” criteria (employees or individuals checking conditions of entry to the event are satisfied by attendees).
Standard v Enhanced Tier Requirements
Persons responsible for standard tier premises (or “standard duty premises”) will be required to implement appropriate and reasonably practicable public protection procedures for staff to follow in the event of a terrorist attack at the premises or in the immediate vicinity, including procedures to (i) provide information to individuals on the premises and (ii) evacuate, invacuate, or lockdown the premises. For these smaller venues there is no expectation to incur costly or implement physical measures.
Enhanced tier premises (or “enhanced duty premises”) will also be required to comply with the requirements above, but appropriate and reasonably practicable public protection procedures must also be documented and provided to the regulator (see below), including procedures that may be expected to reduce the vulnerability of the premises or event to an act of terrorism. This might include the monitoring of premises and their immediate vicinity, controlling the movement of individuals into, out of, and within the premises or event, and physical safety and security. It also includes measures relating to the security of information which may reveal vulnerabilities and assist in the planning, preparation, or execution of acts of terrorism, particularly what is appropriate to share, where, and with whom.
The requirement for procedures to be “reasonably practicable” allows those responsible persons to factor in the nature of the qualifying premises or event, encouraging a tailored approach whilst complying with the Act’s requirements.
Who Is the ‘Responsible Person’?
The responsible person must ensure the legislative requirements are met.
For a qualifying premises, the responsible person is the person who has control of the premises in connection with its use. Where premises are let, this would typically be the tenant. However, if qualifying premises form part of other qualifying premises, for example a department store within a shopping centre, then both the tenant and the property owner would each be responsible persons. In this case, the property owner and tenant would be required, so far as is reasonably practicable, to coordinate to enhance individual and cumulative compliance.
For a qualifying event, the responsible person is the person who has control of the premises at which the event is taking place in connection with its use for that event. For example, if a hotel hosted a public event in its grounds and maintained control of the premises for the purposes of that event, the hotel is the responsible person irrespective of the involvement of any contracting organisations. Responsibility cannot be delegated to contracted services.
For enhanced tier premises or an event, the responsible person is required to appoint a designated senior individual (DSI), i.e., someone with high-level management responsibility such as a director or partner, with responsibility for meeting the relevant requirements.
The responsible person will also be required to notify the regulator when they become and cease to be responsible for the premises (regulations will set out further details of timings and exactly what information must be provided).
Where the responsible person is the tenant, the requirement to comply with the Act is caught by the tenant obligation in most market standard leases where a tenant is typically required to comply with all laws relating to the premises and the occupation and use of the same by the tenant. Where the responsible person is the landlord, for example with a shopping centre, then a landlord may be obliged to meet its obligations via the provision of services.
Co-Operation
There is a requirement for persons with control over enhanced tier premises or events but not being the responsible person (for example, the freeholder where premises are let) to co-operate so far as reasonably practicable with the responsible person to facilitate the responsible person’s compliance with the Act.
The Government gives examples in its additional guidance where a freeholder as landlord would be obliged to consider the above to a reasonably practicable level. One example is when receiving requests from the responsible person to carry out alterations pursuant to the terms of its lease to meet their legal obligations. Where tenant alterations require landlord’s consent not to be unreasonably withheld or delayed, this would simply be part of the landlord’s decision-making process. Another example is where the responsible person has identified certain mitigations required to meet their legal obligations but the lease may state that landlord’s permission is required and the landlord should contribute a certain percentage of costs to ensure premises remain fit for purpose. The freeholder as landlord would be obliged to consider such requests from the tenant to a reasonably practicable level.
Enforcement & Sanctions
To support the Act’s enforcement, the regulator function will be delivered as a new function of the Security Industry Authority (SIA).
The SIA will have inspection and information-gathering powers and will be able to issue a range of civil sanctions, including compliance notices and restriction notices for non-compliance resulting in the temporary closure of enhanced tier premises or prohibiting an event from taking place.
The SIA can issue monetary penalties up to a maximum of £10,000 for standard tier premises and £18 million or 5% of worldwide revenue for enhanced tier premises or events. Daily penalties (up to £500 per day for standard tier premises and £50,000 per day for enhanced tier premises or events) may also be imposed where non-compliance continues.
It will be a criminal offence to fail to comply with an information, compliance, or restriction notice, provide false or misleading information, or obstruct the SIA. Further, the offender might be liable to imprisonment and/or a fine.
For enhanced tier premises, senior officers (including the DSI) may be liable to prosecution if the responsible person commits an offence, and it is proven that the offence was committed with their consent or connivance.
Next Steps
The Act received Royal Assent on 3 April; however, its provisions have not yet come into effect and will only require compliance once activated through regulations. Implementation is expected to take approximately two years, allowing time for the SIA to establish itself, for the Home Office and the SIA to develop guidance, and for those responsible for qualifying premises and events to familiarise themselves with their new obligations. Conclusion
The Act delivers on the Government’s manifesto commitment to “bring in Martyn’s Law to strengthen the security of public events and venues,” ensuring they are better prepared and ready to respond to terrorist attacks.
Whilst many owners and occupiers of premises may have already proactively considered the risk that acts of terrorism pose and have plans and procedures in place, this Act mandates for the first time who exactly is responsible for considering the risk and taking appropriately proportionate protection measures, applying a consistent level of security standards across qualifying events and premises. Both owners and occupiers should monitor the Government’s progress on guidance and regulations related to the Act, using the implementation timeframe as an opportunity to plan and prepare for compliance with the upcoming legislative changes.
Institutions’ Title IX Compliance Under the Microscope: DOJ, ED Form Special Investigations Team to Enforce Gender Ideology EOs
Takeaway
The DOJ and ED are allocating resources to increase enforcement of Title IX concerning participation of transgender athletes, the use of intimate spaces, and “gender ideology” generally.
Article
Institutions should carefully review their policies and practices now that the Department of Justice (DOJ) and Department of Education (ED) have recently formed a special investigations team to increase and prioritize enforcement of the administration’s position under Title IX of the Education Amendments of 1972.
In February, President Donald Trump issued two executive orders on the administration’s position on Title IX’s application to gender identity and transgender students: “Keeping Men Out of Women’s Sports” and “Defending Women from Gender Ideology Extremism.”
On April 4, 2025, the DOJ and ED announced the creation of a “Title IX Special Investigations Team” for the purpose of “ensur[ing] timely, consistent resolutions to protect students, and especially female athletes, from the pernicious effects of gender ideology in school programs and activities.”
The Special Investigations Team includes:
ED Office for Civil Rights investigators and attorneys
DOJ Civil Rights Division attorneys
ED Office of General Counsel attorneys
ED Student Privacy Policy staff and an FSA Enforcement investigator
The Team appears to be a reallocation of current government resources rather than any addition of new positions or personnel.
What does this mean for institutions subject to Title IX?
The DOJ and ED are allocating resources to bolster enforcement of Title IX concerning participation of transgender athletes, the use of intimate spaces, and “gender ideology” generally. Complaints about transgender students participating in athletics or using intimate spaces based on their gender identity, as opposed to their biological sex at birth, likely will be prioritized for enforcement action. Policies and practices relating to pronouns and name changes based on gender identity also will be subject to increased scrutiny.
What should institutions do now?
Institutions subject to Title IX should review their policies and practices to ensure compliance with current law, review their Title IX training materials, and consider the benefits of providing employees with additional training.
Face the inMusic: A Corporate Patent Owner Cannot (Yet?) Recover the Lost Profits of a Subsidiary
The Federal Circuit has long held that “the general rule” of patent infringement damages law is “a patentee may not claim, as its own damages, the lost profits of a related company.” More than 15 years ago, one patent owner argued that an exception to this general rule should be when a subsidiary’s profits “flow inexorably” to the parent patent owner. In that case, the Federal Circuit avoided deciding the legal question, concluding that the patent owner had failed to prove that its wholly owned subsidiary’s profits flowed inexorably to it. The same legal question came before the Federal Circuit again in Roland Corp. v. inMusic Brands, Inc. and the result was, well, the same: no dice.
The circumstances were as follows. Roland sued inMusic for infringement of several patents relating to electronic drums and cymbals. Roland, the sole plaintiff, is a Japanese company that does business directly in the U.S. and through its wholly owned U.S. subsidiary, Roland U.S. (Roland U.S. buys product from Roland and then resells it in the U.S.). Roland’s case against inMusic went to trial and the jury returned a verdict in Roland’s favor, awarding $2.7 million in lost profits to Roland (and an additional $1.9 million in reasonable royalties). The jury rendered a single lost profits verdict, i.e., one that that did not separate out Roland’s lost profits from Roland U.S.’s lost profits. inMusic appealed the judgment entered on the verdict.
On appeal, the Federal Circuit vacated the entire damages award and remanded the case to the district court for a new trial on damages. With respect to lost profits, after reciting the “general rule” of lost profits recovery noted above, the court held that Roland had failed to introduce substantial evidence that Roland U.S.’s profits “inexorably flowed” to Roland. The only evidence introduced was testimony from an executive of both Roland and Roland U.S. that Roland U.S. was a wholly owned subsidiary, and the court held this to be conclusory and insufficient. The court noted the absence of any evidence of (1) who controlled Roland’s U.S.’s distribution of profits, (2) corporate controls to ensure that Rolan U.S.’s profits became those of its corporate parent, Roland, or (3) “historical financial information showing an unwavering flow of profits” from Roland U.S. to its parent. Moreover, because the jury did not render a Roland-only lost profits finding, the Federal Circuit vacated the jury’s lost profits award.
Though designated nonprecedential, Roland is yet another example of the Federal Circuit demanding rigor from patent owners and their damages experts in supporting patent damages claims. See my recent post for other examples. The key takeaways from Roland are as follows. First, the Federal Circuit has yet to embrace the legal principle that patent owners can recover lost profits of a non-party subsidiary. (This is to be contrasted with the court’s acceptance of the notion that a subsidiary with an exclusive license under the corporate parent’s patent is eligible to recover its lost profits.) Second, an “inexorable flow” theory of damages is unlikely to succeed in the future unless a patent owner pursuing this theory of recovery proves that it has structured its financial arrangement with its U.S. subsidiary such that, in fact, the subsidiary’s profits from the sale of the patented product systematically flow to the parent patent owner.
Redrawing the NIL Playbook: Key Legal Takeaways from MLB Players Inc. v. DraftKings and Bet365
Introduction
The recent decision by U.S. District Judge Karen Marston in MLB Players Inc. v. DraftKings and Bet365[1] represents a pivotal development in the legal landscape surrounding name, image, and likeness (NIL) rights. The ruling explores critical intersections between publicity rights, commercial speech, First Amendment protections, and the legal boundaries of “news reporting.” The implications extend far beyond baseball, potentially affecting companies using athlete or celebrity NIL in commercial marketing across sports betting, digital advertising, and beyond.
Case Background
MLB Players Inc. (MLBPI), the group licensing subsidiary of the Major League Baseball Players Association, brought this action against DraftKings and Bet365, alleging unauthorized commercial use of player NIL in promotional campaigns. The complaint specifically cited examples where players’ images—including Yankees star Aaron Judge—were used in digital and social media promotions without proper authorization or compensation.[2]
Judge Marston’s ruling denied the defendants’ motion to dismiss claims related to right of publicity violations, misappropriation and unjust enrichment. Only one misappropriation claim was dismissed as duplicative.[3] The case now advances to discovery, where the courts will examine the factual context and intent behind the disputed content.
Defining the “News Reporting” Defense
A central question in this case concerns the scope of the “news reporting” defense under Pennsylvania law.[4] This exemption typically allows use of an individual’s identity without consent when it appears in legitimate news reporting on matters of public interest.
Judge Marston’s ruling made the following critical distinctions:
Content about newsworthy topics differs legally from content that constitutes actual news reporting;
Athlete identities cannot be used in commercial promotions under the guise of “news reporting”—even when discussing newsworthy sporting events; and
Pennsylvania applies a narrower interpretation of this exemption than some other jurisdictions.[5]
The court cited Abdul-Jabbar v. General Motors Corp. (1996)[6], where the Ninth Circuit found that even content comprised of factually accurate information about an athlete’s accomplishments loses protection from right of publicity claims when used primarily for commercial advertising. The decisive factor is not the truthfulness of the content, but whether the use serves a commercial purpose.
The Clear Line: Advertising vs. Journalism
The ruling provided concrete examples illustrating impermissible commercial use. In one instance, a Bet365 social media post featured Aaron Judge alongside betting odds about MLB teams winning 100+ games. Critically, the post made no substantive reference to Judge’s performance or provided any meaningful context—his image simply served to attract attention to the sportsbook’s offerings.[7]
Judge Marston emphasized that content merely resembling editorial or journalistic material, while actually serving an advertising function, cannot claim news exemptions under right of publicity statutes. This creates a clear standard: Content adopting the look and feel of news coverage while fundamentally promoting a product or service remains subject to right of publicity laws and a higher standard for legal clearance than a use of the same content for news or entertainment purposes.
First Amendment Arguments: Limited Protection for Commercial Use
The defendants’ First Amendment arguments referenced cases involving expressive works such as video games and artistic renderings.[8] However, Judge Marston distinguished those precedents, noting they involved transformed or creatively interpreted athlete images—unlike the straightforward use of player photos in this case.
The court found limited grounds for strong First Amendment protection at this stage because the promotional content relied on direct, unaltered use of athlete likenesses primarily for commercial gain. While deferring a complete First Amendment analysis until further factual development, the ruling signals that purely commercial uses face an uphill battle under free speech protections.[9]
Strategic Implications for Industry Stakeholders
This ruling carries significant implications for how NIL is used across industries—particularly in digital marketing, advertising, sports, betting, and branded content. When NIL is used for commercial promotion rather than legitimate reporting, organizations face potential liability without proper licensing.
Key Action Items:
Conduct content audits to identify where athlete or celebrity NIL appears in marketing materials.
Implement more rigorous legal clearances processes for NIL-related promotions.
Review existing licensing agreements to ensure they cover intended uses.
Develop clear internal guidelines distinguishing between news reporting and promotional content.
Consider jurisdictional differences in right of publicity laws when planning national campaigns.
The Evolving NIL Landscape
As NIL continues to grow in commercial value, legal efforts to protect these rights are intensifying. Athletes, celebrities, and their representatives are becoming more assertive in controlling NIL usage—with courts increasingly supporting their position.
Several states are enacting or revising right of publicity laws, expanding individual NIL protections and increasing potential liabilities for unauthorized commercial use. This state-by-state evolution has amplified calls for uniform federal NIL legislation—potentially modeled after copyright protections—to prevent a fragmented legal landscape that encourages forum shopping and inconsistent outcomes.
Conclusion
The MLB Players Inc. ruling marks a significant shift in NIL jurisprudence that affects brands, platforms, advertisers, and content creators across industries. The distinction between legitimate news reporting and commercial promotion is becoming more defined—and legally consequential.
In an environment where “earned media” and “sponsored content” demand different legal approaches, organizations must adapt their NIL practices to this evolving landscape. Those who implement comprehensive compliance strategies will be best positioned to avoid liability while effectively leveraging NIL in their marketing efforts.
Footnotes
[1] MLB Players, Inc. v. DraftKings, Inc., No. 24-4884-KSM, 2025 U.S. Dist. LEXIS 47600 (E.D. Pa. Mar. 14, 2025).
[2] Complaint, MLB Players Inc. v. DraftKings, ¶¶ 23–36.
[3] Memorandum Opinion by Judge Karen Marston, February 2025, at 12–14.
[4] 42 Pa. Cons. Stat. § 8316(e)(2)(ii).
[5] Id., see also Judge Marston’s analysis at p. 10.
[6] Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996).
[7] Judge Marston Opinion, at 16–17.
[8] Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003).
[9] Judge Marston Opinion, at 21.