This article will explore this issue by engaging in case studies of the Vick and Peterson scandals to see what would have happened had the two men taken their claims against Nike to court. Part One will discuss the cases in more depth and elaborate on how they might be viewed through the lens of cultural relativity theory and the cultural defense. Part Two will elaborate on what morals clauses are and the legal standards courts use to enforce them. In addition to examining the Mendenhall decision, several other court cases will be discussed, each of which places differing levels of emphasis on how much evidence is needed to meet the public disrepute requirement. Except for the judge in the Mendenhall case, all of the judges in these additional cases were white. This is mentioned because it is possible that the race of the judge may bear some relation to the level of openness they may have to entertaining the cultural defense. Part Three will apply the aforementioned legal standards to the Vick and Peterson cases, with special attention paid to the extent to which courts discussed in Part Two might be open to entertaining the cultural defense in these kinds of disputes.
Part Four will contain my conclusion, which is that most judges will probably not give extra weight to the cultural defense in situations of the type discussed here. There will be a range of approaches to how courts might define public disrepute in these cases, but the overall outcome will be the same. On one side will be a small number of judges, like the judge in Mendenhall, who require both sides to produce detailed evidence to show if expressed minority viewpoints favoring talent outweigh viewpoints that disfavor talent. However, since white football fans outnumber blacks, this will mean that black talent like those discussed here won't benefit from the cultural defense. On the other side will be judges who base their decisions on their own personal take on what the majority of people do (or should) think about the matter. In the main case discussed here where such an approach took place, the judge ruled against talent. Thus, regardless of the rationale for the decision-making expressed in these cases, most talent in these kinds of situations will lose. Nevertheless, there may still be some judges and endorsement company managers who do want to take into account the social dimensions that give rise to the cultural defense in the interests of fairness. My conclusion at the end of the paper will suggest some possible approaches they can adopt to achieve this result.
“Finding the 'Public' in 'Public Disrepute” – Would the Cultural Defense Make a Difference in Celebrity and Sports Endorsement Contract Disputes? - The Case of Michael Vick and Adrian Peterson,
6 Pace. Intell. Prop. Sports & Ent. L.F.
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