By David Gabor
It’s not exactly a decision in the intellectual property sphere, but a recent ruling by a judge in Oklahoma City, Oklahoma related to a botched call in a high school football game deserves to be called-out for praise.
That case involved a quarterfinal footballgame of a high school league tournament in Oklahoma City. Frederick A. Douglass High School scored on a 58-yard touchdown pass at the last minute to take the lead over its rival, Locust Grove High School.
For some reason, one of the Douglas coaches made physical contact (whether purposely or inadvertently is not known) with a referee on the sideline. That contact resulted in a penalty flag. The rules for this infraction calls for a 5-yard penalty on the extra point attempt or the next kick off. Instead of applying this relatively minor penalty, the officials “went nuclear” and nullified the touchdown. As a result, Locust Grove was declared the winner of the game.
Maybe it was a bad call, maybe it wasn’t. I am certainly not an expert in the niceties of high school football. Although Frederick Douglass High School protested the call, the local association in charge of such things said that its rules did not permit such protest. In light of that, the Association neither permitted Douglass’ request to resume the game with a 1:04 on the game clock or restore the negated touchdown (giving the win to Frederick Douglass).
Although one would think that that is where it would end (in controversy and chaos), the Oklahoma City public school district sought relief in court. It argued that Frederick Douglass High School players had endured “irreparable harm” as a result of what it viewed as a blown call.
Because of its novelty and absurdity, and, perhaps because of what it says about American sporting culture and litigiousness, the story was picked up by news media ranging from the Oklahoma papers to the Wall Street Journal and New York Times.
Fortunately, both for the local sports market and common sense, a judge in Oklahoma City decided on December 11, 2014 that it would essentially take no action. District judge Bernard M. Jones II wrote in an opinion that while the referee’s call “could be considered by many as a tragedy,” the courts should not intervene because both teams agreed to be bound by the rules of the local sporting Association. In other words, since the Association did not have a protocol for the review of officiating calls, there was no such review available.
More to the point, though, Judge Jones expressed concern regarding a “slippery slope of solving athletic contests in court instead of on campus.” He sagely noticed that such a practice would “inevitably usher in a new era of robed referees and meritless litigation due to disagreement with or disdain for decisions of gaming officials.”
Well, of course. One could imagine a parade of infamous past and present tantrum-throwers like John (“are you blind!”) McEnroe, bringing federal or state suits to enforce bad officiating, blown calls, and missed infractions. As Judge Jones noted, without coming right out and saying it, it’s absurd. This is true even though in some instances in sports, gigantic sums of money depend on the right line call,
Why is this seemingly trivial issue of a local Oklahoma City case raised to a position of importance in this article and in others? It’s because in our legal practice we strive to couch our advice both in terms of the practicalities of law and also in terms of common sense. All too often in intellectual property litigation, the initial instinct instinct is to sue for breach of some kind of perceived right. As counselors, it is our obligation to zealously protect the rights of our clients, and litigate aggressively for them, while at the same time counseling them in instances where a dose of perspective and a sprinkling restraint might be best. If only the Oklahoma City public school district had the same advice . . . .