CEQA Exemption Can Play Critical Factor In Success of Sports Stadium Development in California

The LA Rams are about to break ground on a privately financed stadium in Inglewood, California, in which Cal-Berkeley alum and #1 pick Jared Goff will star at quarterback.  Up north in San Francisco, meanwhile, the Golden State Warriors are hunkering down to defend environmental lawsuits by opponents to their planned development in Mission Bay.  The team just announced they will be delaying the opening of their anticipated project until 2019, at the earliest.

The difference in trajectory of these two projects results largely from the California Environmental Quality Act – CEQA.  The Inglewood project took advantage of a CEQA exemption and did not have to circulate an EIR and deal with legal appeals.  The Warriors, by contrast, had no such luxury.

CEQA generally requires a public entity, before approving any significant construction project, to take a hard look at the environmental consequences of the project by way of an environmental impact report (EIR).  The public entity circulates a draft EIR to concerned groups and citizens, and must assess any arguments that concerned citizens and groups make.   If feasible, the public entity must mitigate adverse environmental effects, which can include noise, air quality, water quality, traffic, among other items.  If the adverse effects cannot be mitigated, the approving entity must make a finding that the benefits of the project outweigh the environmental consequences.

Sounds great – except CEQA is nightmare for developers.  Putting together the studies, data, etc., for the EIR is expensive.  But more importantly, it adds many months and often years to the development cycle of the project.  The project proponent often must make concessions and revise the project to make it smaller, opposition groups come out of the woodwork to demand changes.  And of court there are the legal challenges to EIR after they are approved.  There is always a risk that even if the city approves the EIR, the courts can reverse it.

Hence, a CEQA exemption is like manna from heaven for developers.  And the developers of the Inglewood project took advantage of the CEQA exemption for voter-sponsored ballot initiatives.  It works like this.  In California, the right of the “people” to make changes in the law through the initiative process is considered sacrosanct, on par with the legislature.   Land use decisions are subject to this initiative process. Because voter initiatives do not require the approval of a public entity, they are not considered to be “projects” for purposes of CEQA even if the initiative affects land use issues.   This is true even at the city/county level, where the ballot initiative process involves a procedure where the local public entity can approve the initiative before even submitting it to a vote of the people.

This is what happened in Inglewood.  Project sponsors gathered signatures from 15% in order to qualify the approval of the stadium project for a special election. Instead of placing the initiative on the ballot, the Inglewood City Council approved the measure unanimously at a City council meeting that was dominated by Rams fans.  No EIR required.  No litigation. No mess.  Without the City of Inglewood’s direct approval of the project before full environmental review, the project might have been in limbo at the time the NFL met to decide where the Rams franchise would move.

Inglewood’s “what, me worry?” approach to environmental impacts contrasts starkly to San Francisco.  Never in a million years would the San Francisco Board of Supervisors approve of a voter initiative to build a project without CEQA review.

Thus far the Warriors have been successful in the CEQA process.  In December, 2015, the Board of Supervisors certified the EIR unanimously.  However, the stadium opponents have appealed, and their efforts have delayed the stadium by at least one year.  This delay could give opponents more time to develop momentum and spread their arguments regarding the adverse effects of the stadium.

While the LA Rams dig, the Warriors will be fighting legal battles – all because one team was able to utilize a CEQA loophole, while the other must navigate the unavoidable tribulations associated with this controversial law.

NFL’s tax exempt status – much ado about nothing?

We have noticed some fuss recently regarding the NFL’s tax exempt status. Some have decried how the NFL rakes in billions of dollars in revenue annually yet pays no income tax. They complain of Roger Goodell’s $30 million dollar salary as evidence of misplaced tax policy – even a US Senator has taken up the issue. Is there anything to this argument that the NFL is taking taxpayers for a ride?

It appears not. The NFL is a tax exempt business entity organized under IRC 501(c)(6) (26 U.S.C. § 501(c)(6)), dating back to legislation passed in 1966. That statute provides for an exemption of “business leagues, chambers of commerce, real estate boards, boards of trade, and professional football leagues . . . , which are not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.” Continue reading NFL’s tax exempt status – much ado about nothing?

Workplace Madness: Important HR Lessons from NCAA Basketball

The 2013 NCAA basketball tournament is over, and in many ways it was a classic, with great games, great upsets and great storylines. March Madness, indeed.

However, this year, much of the madness occurred off the court.

It started with the videotape of the unprofessional ranting of now-former Rutgers basketball coach Mike Rice, who called his players every offensive name in the book, berated them, question their very being and flung basketballs at their heads. Rice’s trail of carnage includes former Athletic Director Tim Pernetti and former University general Counsel John Wolf. It included the “resignation” of Pac-12 Director of Officials Ed Rush, who suggested to his direct reports – the referees – that they punish one of the coaches in the league that Rush doesn’t like. And it included controversy over whether Baylor University women’s superstar Britney Griner is worthy of a tryout in the all-male NBA.

Continue reading Workplace Madness: Important HR Lessons from NCAA Basketball

When Athletes Retire, Is the Next Step Bankruptcy or Paradise?

The “paradise” stories for the post-playing careers of professional athletes are without a doubt under told. The success of Roger Staubach in building a real estate empire, the multiple businesses of NBA all-stars Magic Johnson and Jamal Mashburn, as well as success in politics by the likes of Steve Largent and Bill Bradley, are known to some. Also, consider the Super Bowl’s most valuable player, Joe Flacco, the proud recipient of a $120.6 million contract, alongside option bonuses of $15 million and $7 million, and superstar Ray Lewis, who, in retirement, has recently joined a new team: ESPN. Let’s not leave out baseball, with Alex Rodriguez in the midst of a $275 million contract running through 2017. Then what?

This recent Alert takes a look at what comes next for athletes after their playing days are over, and how they can avoid unhappy endings.

Is Trademarking an Athlete’s Name Before a Big Game a Distraction or Good Karma?

Is it a smart move or premature for a well-known athlete to trademark his name weeks before he actually may (or may not) make the history? When tennis star Maria Sharapova came up with the name “Sugarpova” for her candy business, many thought her trademarking move was cute, original and well-timed. When the 49ers’ Colin Kaepernick filed to trademark his name earlier on this month, some, including this blog’s author, thought such a move may be a little premature. Mr. Kaepernick got a priority filing date and may have beaten others to the punch. But the move could prove distracting. Mr. Kaepernick, please prove us wrong this Sunday.

Continue reading Is Trademarking an Athlete’s Name Before a Big Game a Distraction or Good Karma?

Olympians Strike Back: What’s News–and What’s Advertising–in the Age of Infotainment and Celebrity?

Celebrity is a currency of great value. TMZ, Entertainment Weekly, E!, and innumerable gossip websites and publications prove the point beyond dispute. A group of Olympians including Mark Spitz, Greg Louganis, Jackie Joyner-Kersee, and Amanda Beard have sued Samsung Corporation for using their image to endorse the company without their consent. So, it’s not uncommon that commercial advertisers want to push the edge of the envelope and find ways of using the names, likenesses, and other indicia of celebrities (without obtaining their permission and without paying them) in order to get the attention of us, the consumers.

Partner Mark Fischer explores the often blurry lines between news and commercial endorsement in this blog entry from the New Media and Entertainment Law Blog.

The California Supreme Court Makes Clear Assumption of Risk Applies To More Than Just Sports

On December 31, 2012, the California Supreme Court issued its decision in Nalwa v. Cedar Fair, L.P., __Cal.4th __ (No. S195031 December 31, 2012), previously covered in this blog and this blog. In a 6-1 decision, the Court held that the primary assumption of risk doctrine applies not just to sports, but more broadly to recreational activities. “Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” The Court held that this limited duty of care not to unreasonably increase the risk of injury over and above that inherent in the low-speed collisions essential to bumper car rides, and does not extend to preventing head-on collisions between the cars.

Continue reading The California Supreme Court Makes Clear Assumption of Risk Applies To More Than Just Sports

California Supreme Court Sets Important Assumption of Risk Case For Argument

The California Supreme Court has scheduled oral argument for October 3, 2012 in Nalwa v. Cedar Fair, an important assumption of risk case which we have previously discussed in this blog. The case presents the following issues: (1) Does the existence of a state regulatory scheme for amusement parks preclude application of the doctrine of “primary assumption of risk” with respect to the park’s operation of a bumper car ride? (2) Does the doctrine apply to bar recovery by a rider of a bumper car ride against the owner of an amusement park or is the doctrine limited to “active sports”? (3) Are owners of amusement parks subject to a special version of the doctrine that imposes upon them a duty to take steps to eliminate or decrease any risks inherent in their rides?

Interestingly, the matter is scheduled for argument at the UC Davis law school.

Can You Sue For An Injury From A Bump On A Bumper Car Ride?

Can you sue for injuries caused by bumping on a bumper car ride? That’s the question presently pending before the California Supreme Court in a case involving application of California’s assumption of risk doctrine. The plaintiff, Dr. Smriti Nalwa, was injured at an amusement park while riding as a passenger in a bumper car “driven” by her nine year old son. Nalwa’s wrist was broken when she tried to brace herself as they collided head-on with another bumper car. Dr. Nalwa, a surgeon, sued the ride operator for her injuries. The trial court granted summary judgment against her, finding her claim barred by assumption of risk. On appeal, the Court of Appeal reversed and held that as a matter of public policy the assumption of risk doctrine should not apply to an amusement park ride. (Nalwa v. Cedar Fair, LP (2011) 196 Cal.App.4th 566, 576-578). The California Supreme Court granted review last year and briefing closed last month.

Continue reading Can You Sue For An Injury From A Bump On A Bumper Car Ride?