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Washington and Lee Law Review - Student Notes

Student Note

by Mitchell D. Diles

The resurgence in franchise free agency in the National Football League (NFL) potentially implicates the loss of a significant source of local identity and tradition for multiple cities. In January 2016, NFL owners approved the relocation of the Rams franchise from St. Louis, Missouri, to Los Angeles, California, by a vote of thirty-to-two. The owners’ vote also potentially implicates the relocation of the San Diego Chargers and the Oakland Raiders. Though applauded by numerous sports commentators, athletes, and fans, the vote reflects the failure of negotiations between the City of St. Louis and the Rams organization. The approval also sets the stage for a new generation of controversies over valuable team property. This includes disputes over team logos and other trademarks.

Although cities and fans may appear helpless when faced with franchise relocation, one powerful, although rarely invoked, point of leverage for local governments is the threat of exercising eminent domain power. In theory, this action could prevent a team from relocating. During the 1980s and 1990s, efforts to prevent professional sports franchises from moving, which included condemnation proceedings initiated by multiple cities, largely failed. Given the current, broad interpretation of the public use language in the Takings Clause, however, it is unclear whether another eminent domain action could succeed. Moreover, it is unclear whether an eminent domain action could seize a moving franchise’s trademarks given the “propertization” of trademarks and other forms of intellectual property.

This Note examines whether a city could exercise its eminent domain powers to acquire the intangible intellectual property rights associated with a professional sports franchise, specifically a team’s trademarks and associated goodwill. In doing so, it examines the unresolved issue of whether trademarks constitute constitutionally protected private property under the Takings Clause of the Fifth Amendment. If trademarks constitute constitutionally protected private property, the Fifth Amendment provides users of the mark with enhanced protection against government seizures. In the context of professional sports franchises, this would give teams greater protection upon relocation.


by Boris Bindman

We are witnessing a revolution in the way we get around, if only we glance up from our phones. “Techies” and suit-clad professionals alike use their phones to request rides from tuxedo-attired professional chauffeurs in luxury vehicles, as well as from part-time nonprofessionals using their “daily-driver” to make some extra cash. It is indisputable that Transportation Network Companies (TNCs)—like Uber and Lyft—are providing unique alternatives to taxis and conventional charter-car carriers while simultaneously paving the way for a new era in transportation.

“App-based” car-for-hire platforms, said to be the cause of market “disruption,” have met unwavering resistance from industry competitors, advocacy groups, and government regulators arguing that these services are illegal, unsafe, and competing unfairly. Consequently, TNCs have often faced outright bans, anachronistic regulations, and numerous legal hurdles. Whether the rationales for regulations and bans have been pretexts for protectionism and resistance to change, or legitimate expressions of concern for safety and fair business practices, it is clear that they are responses to TNCs supplying a demand for easy, affordable, and reliable transportation.

This Note examines whether the dormant Commerce Clause doctrine bars certain types of bans or regulations of TNC platforms. Though TNCs have not shown an eagerness to litigate challenges to their operations, this avenue of defense—a road once treaded by trucking and railroad companies—remains open to them. TNCs may thus look to revive the dormant Commerce Clause in the context of transportation regulations to challenge local limitations on their operations.

Importantly, this Note does not argue that any and all safety or labor concerns offered in efforts to regulate or limit TNC operations are unfounded or that invalidation of well-intentioned attempts to regulate for these concerns on dormant Commerce Clause grounds will somehow take care of them. Genuine concerns do exist, but the only way to seriously and judiciously confront them is through even-handed and constitutional legislation that recognizes that TNCs are parked and here to stay.