Markowitz Herbold PC

Was a conflict of interest at the heart of the Court of Arbitration for Sport's ruling in favor of Romanian gymnasts that stripped Team USA's Jordan Chiles of the bronze medal in floor exercise? The International Institute for Conflict Prevention and Resolution (CPR) says yes. According to CPR, the principal CAS arbitrator, Hamid Gharavi, is currently representing Romania in international disputes at the World Bank’s International Centre for the Settlement of Investment Disputes and that he has represented Romania for nearly a decade. The International Bar Association's IBA Guidelines on Conflicts of Interest in International Arbitration (the “2024 IBA Guidelines”), widely used in international arbitrations of all kinds, include a list of non-waivable conflicts requiring an arbitrator's automatic disqualification to hear an international arbitration called the "Non-Waivable Red List," which provides: 1.1 There is an identity between a party and the arbitrator, or the arbitrator is a legal representative in the arbitration, or employee of a person or entity that is a party in the arbitration. 1.2 The arbitrator is a manager, director, or member of the supervisory board, or has a controlling influence on one of the parties or an entity that has a direct economic interest in the award to be rendered in the arbitration. 1.3 The arbitrator has a significant financial or personal interest in one of the parties, or the outcome of the case. 1.4 The arbitrator currently or regularly advises a party, or an affiliate of a party, and the arbitrator or the arbitrator’s firm or employer derives significant financial income therefrom. [footnote omitted] Did Gharavi have a Non-Waivable Red List conflict? Can an Olympic arbitrator who currently represents a country on the global stage decide a case involving a gymnast of that country in an impartial manner? Lawyer friends, what do you think?

The Ninth Circuit issued an interesting opinion today that both extends Section 230 immunity, but also cabins that immunity. You can read about it in my newest blog post. I’m curious to see just how far the Ninth Circuit is willing to go in denying immunity for representations about content moderation. #MarkowitzHerbold #appeals #NinthCircuit

It's always cool to see cases I work on in the news. This one involved helping our clients, Terry Aarnio and Bob Wise, sell their half of the Gunderson Marine shipyard to their business partner. This case had some special meaning to me because when I first moved to Portland, before I even started working, I took my (then) 2 year old to the Gunderson shipyard to watch a barge launch. I was blown away by the scale of the shipyard and the operation. I never would have guessed that 10+ years later I would have some (very small) part in Gunderson. A lot of folks worked hard and fast to get this deal done in record time, including Chad Colton, Josephine Kovacs, Ernest G. Bootsma, and Michelle Robles. Looking forward to celebrating with the clients for getting this one done! 🥂 #MarkowitzHerbold

What do a one-minute deadline, evidentiary issues, and arbitration have to do with the Olympics? Those are what will determine whether USA artistic gymnast Jordan Chiles receives a bronze medal or a fifth place finish in floor exercise at the 2024 Paris Olympics. Lawyers know that missing a deadline can have drastic consequences. But most lawyers have days, weeks, or months to meet deadlines. Chiles's coach, Cecile Landi, had just one minute to submit an inquiry into Chiles's floor exercise score at the Olympics under the applicable rules of the international gymnastics federation, Fédération Internationale de Gymnastique (FIG). One minute. And whether she met that deadline will determine whether Chiles receives a medal for her floor exercise performance. Many are unaware that a legal framework exists for athletes to challenge decisions concerning aspects of competition in arbitration. U.S. athletes can even challenge decisions by national governing bodies relating to pre-Olympics competitions under U.S. Olympic & Paralympic Committee Bylaws. An arbitration currently proceeding in the Court of Arbitration for Sport (CAS) concerns whether Coach Landi met the one-minute deadline to make an inquiry into Chiles's score. On Saturday, the CAS reversed the Olympic artistic gymnastics judges' decision to allow Coach Landi's inquiry. During competition, judges allowed the inquiry and increased Chiles's total score by one tenth of a point. As a result, Chiles was awarded the bronze medal in floor exercise behind Brazil's Rebecca Andrade and USA's Simone Biles. Romania, which had two athletes bumped down to fourth and fifth place after Chiles's score adjustment moved her into third place, appealed the decision. Romania argued that Coach Landi's inquiry came in four seconds after the one-minute deadline. The CAS decision announced Saturday agreed that Landi's inquiry was untimely. As a result, the International Olympic Committee has announced that the bronze medal will be "reallocated" to Ana Maria Barbosa of Romania. But, wait--there's more. USA Gymnastics reports that previously-unavailable time-stamped video evidence conclusively establishes that Coach Landi made the inquiry 47 seconds after Chiles's score was posted, within the one-minute deadline. News reports indicate that based on this evidence, the U.S. Olympic & Paralympic Committee (USOPC) intends to seek reconsideration of the panel’s decision and reinstate Chiles as the bronze medalist in floor exercise. If CAS refuses to reconsider its decision, Chiles will be required to appeal to the Swiss Federal Courts, which rarely considers appeals from the CAS.

SO PROUD of the accomplishments of my client Rylan Kissell on behalf of #TeamUSA in his first Olympics! He has a long list of athletic accomplishments already, including becoming the first NCAA athlete to score a perfect score in air rifle an NCAA championship, and added to those by outperforming his world ranking and some of his teammates at the Paris Olympics. I cannot wait to see what he accomplishes in the future, which looks very bright, both as an elite athlete and the newest coach at United States Military Academy at West Point. Congratulations, Rylan! #Paris2024 #Olympics #USAShooting

It’s time for Season 2 of my When You Need to Win video series! This episode is about an issue that was on my mind during my trial last month between Odell Beckham Jr. and Nike: - Ditching the arguments you don’t believe in. Unless you’re a sociopath or a highly skilled actor, you can’t hide it when you don’t believe the words that are coming out of your mouth. Research shows that when you don’t believe what you’re saying (or you’re just lying), it’s written all over your facial expressions, gestures, tone, and body language. And people pick up on it on a subconscious level, killing your credibility. Not to reinforce the stereotype, but lawyers do this in court all the time. They make arguments they think they need to make or to see what sticks. During trial last month, there was a component of my case that, as the evidence came in, I just didn’t feel we were right about. But I still didn’t think there was liability for it. For closing argument, I decided to just level with the jury about my concern. I told them flat out that this was the hardest part of my case and that it made me feel uncomfortable. But then I explained why it didn’t really matter. We won on the claim. Was that the difference maker? Maybe not. But it kept my credibility in check and I knew I’d maintained my integrity. So leave the arguments you don’t really believe on the cutting room floor, and find the ones you think are right.  They’re always there. #whenyouneedtowin #litigation #commerciallitigation #triallawyers

Thanks so much to Stefanie Marrone for interviewing me and putting it on her blog Stefanie Marrone Marketing | The Social Media Butterfly! Stefanie’s blog and overall tips are fantastic and I was excited to talk to her about my videos and overall trial philosophies. I hope you’ll take a few minutes to read. https://lnkd.in/gpRMjMty

What personal information does Roblox share with the complaining party when you submit a DMCA counter notice to Roblox?   Spoiler: a lot! 📑 This is Roblox’s Terms of Use. It says: “We may send a copy of the counternotice, including any contact information you provide, to the original complaining party.” 👉 That means Roblox may forward your name, address, telephone number, email address to the original complaining party. I recently sent a DMCA notice to Roblox on behalf of a client. 📩 Here is the email that I received in response from Roblox. 👀 You can see that they’ve shared the name and address of the original complaining party with me. They only withheld the original complaining party’s phone number. 🔦 So when you send a counternotice to Roblox, Roblox has the discretion to send all of your personal information to the original complaining party. And it seems that with the exception of your phone number, that’s what they’re doing. This is in contrast to what we’ve seen Roblox share when you send a DMCA notice, which is what I covered in my last video. #roblox #robloxdev #robloxlaw #videogamelaw #markowitzherbold