Past its Prime: Cracks in the College Football Foundation


In 1935, Jay Berwanger of the University of Chicago was awarded the first of what would become the Heisman Trophy by the Downtown Athletic Club for the country’s most outstanding college football player. Four years later, the university quit playing football, and voluntarily dropped out of the Big Ten conference. The Maroons and its quotable President Robert Maynard Hutchins (who said, “when I feel like exercising I just lie down until the feeling goes away.”) was (way) ahead of his time.

Fast forward several decades and the business of college football is bigger than ever. USA Today reported in July that the “Power Five” conferences, the ACC, Big 12, Big Ten, Pac-12 and SEC, will almost double the revenue from last year’s Bowl Championship Series.  But college sports, especially football, has been a big business for a long time. As early as 1929, the Carnegie Foundation published a 350-page report, after a 3 year study of more than 100 programs, and concluded that the two fundamental problems with college athletics were commercialism and what it described as a negligent attitude toward the education for which colleges and universities exist. (5 years ago Duke University economist and professor Charles Clotfelter wrote a nice op-ed post on the report and how much remains the same – which I assume is only amplified in his 2011 book Big-Time Sports in American Universities).

But while the commercialism of college football continues to climb, there are cracks appearing in its foundation. It remains to be seen what effect the College Football Playoff will have on the non-Power Five conference programs. If the financial stakes were not high enough already, the playoff system guarantees they will rise in the short-term.

The studies of head injuries from football, and the lawsuits sure to follow, are only just beginning.  The issue of paying players, either as employees, contractors, or allowing them to receive compensation for their own likenesses or marketability will not go away.  Performance enhancing drugs, disciplining athletes engaged in illegal conduct, recruiting violations, etc. will continue as the largest athletic departments overshadow the universities they represent.

Not only was Jay Berwanger the first Heisman Trophy winner, he was also the first player ever selected by in the NFL draft, but maybe more interestingly, refused an NFL contract. When the Chicago Bears’ owner and coach George Halas rejected Berwanger’s demand for $25,000 over two years, he took his college degree, and after a stint in the service during World War II, went onto become a successful business man.

And the University of Chicago, despite missing out on Big Ten football fame and fortune, has somehow managed to survive.


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Steve Martin’s Nashville Shows of the 1970s – Vandy, Exit/In and Krystals


I just finished reading Born Standing Up, Steve Martin’s memoir of his career as a stand-up comedian. Although he quit stand-up more than 30 years ago, many of the performances that launched his movie and writing career stand out as memorable still. (I think) I vaguely recall my brother telling me of Martin’s performances in Nashville in the mid-1970s and I specifically remember my brother’s impressions of “Let’s Get Small.” But in Born Standing Up, Martin recalls two Nashville gigs that he cites as remarkable in the development of his act.

The first was at Vanderbilt, where he says he played “in a classroom with a stage at one end.” According to Martin, the show went fine, but when it was over the crowd, of about 100, didn’t leave.
“Then I realized there were no exits from the stage and the only way out was to go through the audience. So I kept talking. I passed among them, ad-libbing comments along the way. I walked out into the hallway, trying to finish the show, but they followed me there, too. A reluctant pied piper. I went outside onto the campus, and they stayed right behind me. I came across a drained swimming pool. I asked the audience to get into it – “Everybody into the pool!” – and they did. Then I said I was going to swim across the top of them, and the crowd knew exactly what to do: I was passed hand over hand as I did the crawl. That night I went to bed feeling I had entered new comic territory.”

The second episode was at the Exit/In which he describes “as a low-ceiling box, painted black inside, with two noisy smoke eaters hanging from the ceiling, to no avail.” Martin said during this tour stop, he realized that he was selling tickets without hit records as the Exit/In shows were “oversold, riotous and packed tight.” He again took to the streets at the end of the shows, one time taking the crowd to McDonalds, another to a club across the street to watch another act. As he remembered, “Even though I had done the act hundreds of times, it became new to me this hot, muggy week in Nashville. The disparate elements I’d begun with ten years before had become unified, my road experience had made me tough as steel, and I had total command of my material. But most important, I felt really, really funny.”

Born Standing Up, published in 2007, is a very enjoyable read, providing glimpses of what resulted in a hugely successful comedic quest, and ending with an unexpected and emotional story of reconciliation. The book and the stand-up career, like humor, builds tension as it rolls along, and then the tension is released somewhat, but not completely. It’s not anticlimactic; it’s not unresolved. He just walks away and lets it go.

As a footnote, after finishing the book, I found this post and recording of Steve Martin on WRVU in the early morning hours, sometime in 1973. The events described don’t exactly match the episodes above (he took the crowd to Krystal’s, not McDonald’s, after this particular show), but listening to this impromptu radio session, including a live one banjo version of “Dueling Banjos” and inviting phone calls from Vandy co-ed fans, is entertaining on its own.

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Court of Appeals Sends Campfield Defamation Case Back to Trial Court


The Tennessee Court of Appeals ruled earlier this week that the defamation lawsuit filed against state Sen. Stacey Campfield may proceed to trial, reversing the trial court’s earlier decision dismissing the case. Roger Byrge, an unsuccessful candidate for state representative in 2008, sued Sen. Campfield for posts placed on Campfield’s blog, “camp4u,” during the campaign.

On October 14, 2008, the blog contained allegations that Byrge had a drug-related arrest record. A post entitled “A tale of two races,” in part said: “How bout where Roger Byrge is running against police officer Chad Faulkner? Word is a similar mail piece has gone out exposing Byrges multiple separate drug arrests. Including arrests for possession and drug dealing. (I hear the mug shots are gold).”

The problem is that this Roger Byrge had no such arrest record. It was later confirmed that Byrge’s son had an arrest record.

The Court of Appeal’s opinion provided a concise summary of defamation law in Tennessee. “A libel action involves written defamation and a slander action involves spoken defamation. The basis for an action for defamation, whether it be slander or libel, is that the defamation has resulted in an injury to the person’s character and reputation. . . . To establish a prima facie case of defamation in Tennessee, the plaintiff must establish that: 1) a party published a statement; 2) with knowledge that the statement is false and defaming to the other; or 3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.”

Defamation cases, especially against public figures, are hard to win. Many cases fail because even if the plaintiff can prove the above elements, they are unable to establish damages connected to the defamatory statements. However, the case against Campfield was dismissed by the trial court before the issue of potential damages arose.

Campfield’s defense is that he had no knowledge that the statement was false. In his affidavit submitted to the trial court, he testifed: ”The Post was based on a conversation I had with Glenn (sic) Casada (“Casada”) some time shortly before the Post was published on October 14, 2008. Casada is a Representative in the Tennessee House of Representatives for the 63rd District. …. I only reported what Casada told me during our conversation.”

The plaintiff, Mr. Bryge, concedes that he is a public figure for the purposes of this case. This is important because in addition to the above elements, if the subject of the defamatory statements is a public figure, then he or she must also prove, by clear and convincing evidence, that the statements were made with “actual malice” or at least “reckless disregard” of the falsity of the statements.” In order to get past a motion for summary judgment, Byrge must make some showing of facts from which malice (or recklessness) may be inferred.

The Court of Appeals stated the issue as follows: “The standard is whether the record before us contains clear and convincing evidence from which the trier of fact (a jury) could find actual malice.”

The Court of Appeals appeared to rely heavily on Rep. Casada’s testimony. “According to Casada, the information he conveyed to Campfield merely was preliminary. Contrary to Campfield’s affidavit, Casada stated that he impressed upon Campfield the preliminary nature of the information and that he did not intend for it to be disseminated without verification.” The court also made particular note of the fact that Campfield admitted he did not do any independent investigating to verify the information about Byrge.

Based on the record at this stage of the case, the court found that reasonable minds could consider it “at least reckless” to publish information tending to tarnish someone’s reputation on the basis of “may have.” To underscore its point, the court went on to say, “A public figure, even a politician, is neither totally immune from nor totally unprotected by the law of defamation.”

Byrge v. Campfield, Tenn. Ct. App., No. E2013-01223-COA-R3-CV-FILED-SEPTEMBER 8, 2014

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Southern Land’s Hillsboro Tower in Green Hills is a Long Time Coming


Although a group of area residents recently filed suit hoping to slow the construction of Southern Land’s now 16-story office, retail and residential development at 4000 Hillsboro Pike, the legal foundation for the plan was laid over a decade ago.


Southern Land Company’s Hillsboro Tower project rendering

The tower component of the project was originally proposed for 14 stories, was revised to 22, and is now apparently finalized at 16.

Planning discussions involving the site gained momentum in the late 1990s, resulting in the adoption of the Green Hills Urban Village Plan in 1999. The Metro Council then adopted the Green Hills Urban Design Overlay (UDO) in 2002 with the objective creating an “urban village” in and around the existing Green Hills Mall. Metro-Nashville’s interpretation of an urban village is a compact and pedestrian-friendly mixed use developments. (more…)

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Todd Moore PLC Delivers Winning Defense for Chapel Hill in Utility Tap Lawsuit


NASHVILLE, Tenn.—April 21, 2014—Franklin-based law firm Todd Moore PLC has successfully defended the Town of Chapel Hill in a developer-brought lawsuit over the reallocation of water and sewer taps.

In an opinion handed down April 15, 2014, the Tennessee Court of Appeals upheld an earlier ruling by the Marshall County Circuit Court in the case of Ronald Lampley, et al v. Town of Chapel Hill, Tennessee, et al.

Real estate developer Lampley purchased taps for public water and sewer utilities from Chapel Hill and, per the same agreement, the town extended the sewer line to the project site. However, Lampley lost the property to foreclosure before any development occurred. When the land was later purchased by a third party, the town transferred the associated taps to the new owners. Lampley sued for $250,000 in damages—the full amount he had initially paid—claiming the taps were still his to use elsewhere.

Attorneys Todd Moore and Matthew Crigger effectively argued the municipality’s position that the water and sewer taps allocated for a certain project were tied to the land—not to the developer.

The higher court affirmed that position, finding that the initial agreement between the town and the developer sufficiently “evidences the parties’ intention that the sewer and water taps were to be used in connection with the development of the property the developer owned when the agreement was executed.”

The opinion further states: “When the developer lost the property through foreclosure, the developer had no more interest in the taps.”

Lampley has 60 days to file an appeal to the Tennessee Supreme Court.

The win for Chapel Hill means thousands of taxpayer dollars saved.

Moore, who serves as Town Attorney, said he appreciates the opportunity to represent the municipality’s interest. “We are very pleased to have achieved a favorable outcome in this case, which amounts to a significant savings of public resources.”

About Todd Moore PLC Attorneys at Law:

Established in 1999, Todd Moore PLC is a full-service law firm offering legal services and expertise for individuals, businesses and governments. Areas of practice include contract law, family law, land use and zoning, estate planning, and criminal defense. Offices are located in Cool Springs, at 3326 Aspen Grove Drive, Suite #310 in Franklin. The firm serves clients throughout the state of Tennessee. For more information or to schedule a consultation, call (615) 290-5354 or visit

For more legal and community news, insights and commentary, follow the firm blog at

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A Legal Minefield: Guilty Pleas and Immigration Consequences


ICE-seal (2)

By U.S. Immigration and Customs Enforcement (USICE) [Public domain], via Wikimedia Commons

For non-citizen residents of the United States and undocumented persons, entering a plea of guilty to even a minor criminal offense can have very harsh immigration consequences, including loss of the ability to obtain a favorable immigration status or citizenship—and even deportation. The law requires attorneys to advise their clients regarding any such possible immigration consequences of a plea bargain agreement; those who may face immigration consequences as a result of a guilty plea should consult with an immigration attorney. (more…)

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RC and MoonPie Boy Model’s Claims Must be a Federal (Copyright) Case


In 2011, Bradley Wells noticed that a photo he had modeled for–34 years prior–was being used in advertisements for RCs and MoonPies. Mr. Wells, then in his mid-40s, filed suit in state court alleging violations of the Tennessee Personal Rights Protection Act, the Tennessee Consumer Protection Act and additional common law claims for unjust enrichment, accounting and conversion.

moonpieadThe original black and white photo featured a puppy “gazing at a MoonPie” held by an unidentified boy, a young Bradley Wells. A later version of the picture included an RC Cola that had been digitally added. The ad agent who took the original photo was a family friend of the Wells and took the shot with the parents’ permission. There was no written contract and no restrictions placed upon use of the photo.

The defendant, Chattanooga Bakery, Inc., moved to dismissed the case on the basis that the state trial court did not have subject matter jurisdiction because the federal Copyright Act superseded all of Wells’s state law claims. The trial court agreed with the defendants, ruling that all of the claims asserted by Mr. Wells are equivalent to rights under the Copyright Act.

Wells’s claims were primarily based upon the alleged unauthorized and unlawful use of his “picture, image and likeness,” or his personal identity, which is not subject to copyright protection. However, both the trial court and Court of Appeals exposed this argument based largely on the fact that Wells was not identified as the boy in the photo, and in fact no one could recognize him as the model. His claims for damages arise out the reproduction and derivation (copies, reproductions, etc.) of the photo itself (and not his identity), both exclusively rights under the Copyright Act.

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“Office Space” Legal “Flair-up” Dismissed by Judge (*not Mike)


Office Space Box of FlairBetter known as the overachieving, hyper-enthusiastic Chotchkie’s waiter “Brian” from the iconic Mike Judge comedy “Office Space,” actor Todd Duffey has lost a lawsuit he filed over the use of his image in merchandise for the film—namely, the Office Space “Box of Flair” published by Perseus Book Group, which includes a book about the movie and 15 buttons.

Duffey alleged a violation of the Landham (Trademark) Act for the use of photos of him (in character) on the products and the packaging, seeking damages as well as a permanent injunction.

However, U.S. District Court Judge J. Paul Oetken “expressed himself” last week in an opinion that found the flair legitimate per the Day Player Agreement between Duffey and production company Cubicle, Inc. By signing the contract, Duffey had granted Cubicle “all rights throughout the universe” to his performance, including the rights to use images of him from the movie for promotional purposes. (Those rights were ultimately transferred to Twentieth Century Fox Film Corporation, the defendant in this case.) The suit was thusly dismissed.

When it comes to contract legalese, granting another party “all rights throughout the universe” is about as sweeping and comprehensive as it gets (albeit relatively standard).

Something closer to the “bare minimum” may have served Brian better in this case.

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Camp DUI: A Jail Alternative for Those Who Can Afford It


A first-time DUI offender in Tennessee must serve a minimum of 48 hours in jail. However, Rutherford County convicts can opt to serve their jail time at “camp DUI,” more formally known as the “DUI Education Center.” Your stay at this “jail alternative” comes with a cost of around $100 per night. Accommodations include flat-screen TVs, lunch and dinner on Saturday (if you book a weekend stay), your own bed and linens, and complimentary Wi-Fi; cellphones and laptops are welcome. The facility’s website recommends that you “pack as if you’re going camping.” You can even bring your own food and place it in the provided refrigerator or freezer. The facility is smoke-free, as smoking is permitted only in the designated outside areas.

Proponents of the facility cite its alcohol treatment programs. After all, a primary goal of sentencing should be to rehabilitate the offender. Critics argue that “jail time” loses its deterrent effect if it is more like summer camp than being under lock and key. For example, if an inmate misbehaves in jail, he or she is disciplined per the jail’s procedures, which may include additional criminal charges, depending on the nature and severity of the misconduct. If a “guest” misbehaves at the DUI Education Center, he or she is simply shown the door, in much the same way as an out-of-sorts hotel patron.

The DUI center accepts those sentenced to jail in other counties if the local judge signs off on it. Camp DUI also offers a “legacy program” of sorts: extended stay options for those facing enhanced DUI sentences as second or third-time offenders.

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Politicians Say the Darndest Things: Legislators Afforded Immunity


Defamation is the communication of a false statement that harms someone’s reputation, and a victim of defamation may be entitled to monetary damages. However, when an allegedly defamatory statement is made by a legislator in the course of their duties, the lawmaker is almost always immune from suit.

council meeting

Mummelgrummel [CC-BY-SA-3.0 (], via Wikimedia Commons

In the recent Tennessee Court of Appeals case of Miller v. Wyatt, the defendant, a City of Crossville councilman, stated that the plaintiff “was discharged from City Manager up here because of misappropriating funds and not following procedure.” Maybe appropriately, this comment was made during a discussion involving an agenda item titled “Matters Relative to Political Ads.” Although the court indulges the readers’ curiosity by providing a short political history of the city—including the plaintiff’s own description of the mayor as “the most ethically challenged, ego-mani[a]cal, narcissistic election official” he had ever known—the issue in this case was whether Wyatt’s statement arose from the conduct of the governing body. (more…)

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