Clip of Clark ballboy slur triggers rights dispute

• by Ridge Mahoney  @ridgemax, Mar 28, 2012

[MLS SPOTLIGHT] A three-game suspension and undisclosed fine has been meted out to Houston midfielder Colin Clark, whose cursing of a ballboy in a match Friday with Seattle triggered outrage as well as a legal dispute between the league and a fan who posted a video clip of the incident on YouTube.

Clark has apologized for using a gay slur, “f------ f----tt,” while trying to retrieve a ball for a throw-in. In a statement announcing the punishment, league commissioner Don Garber said, “Major League Soccer will not tolerate this type of behavior from its players or staff at any time, under any circumstances. Colin Clark has expressed sincere remorse for his actions and I believe that he will learn from this incident.”

Garber has also mandated that Clark attend additional diversity and sensitivity training. Such sessions are mandated for all teams and usually held at the start of the season.

The fan who posted the clip, Joshua Vega, was contacted by Public Citizen Litigation Group, which sent a letter to MLS protesting the Digital Millennium Takedown Act (DMCA) notice sent by the league to YouTube. MLS cited copyright protection of its game telecasts as justification for the takedown notice; that contention was refuted by senior litigator Paul Levy.

A statement sent by Public Citizen to the league included a statement from Levy, which read, in part, “It was disheartening to say the least to hear a Major League Soccer (MLS) team player use abusive language with a ball boy in the middle of a game, but it’s positively shameful that the MLS decided to go after a fan who later posted a small clip of the game on YouTube to further discussion of the widely publicized incident.

“There’s no question that the clip was taken from the copyrighted telecast, but there can also be no doubt that the fan is protected by fair use in posting a 20-second clip from a 90-minute game. MLS responded with an abusive DMCA takedown notice that caused the YouTube clip to be removed – an overreaction that boils down to attempting to deny the fan his right to free speech.

“Even though Clark issued an apology, the video prompted a widespread discussion among soccer fans, who compared the incident to recent controversies in Europe over racist comments there.

“Just because Clark’s behavior reflects poorly on MLS is no reason to stifle speech about it, let alone take a drastic measure against a fan.”

MLS president Mark Abbott said the decision to allow the clip to be re-posted wasn’t prompted by legal concerns. As a former associate to league founder Alan Rothenberg at law firm Latham & Watkins, one of his areas of specialties was commercial law.

“The initial decision was just that; an initial decision,” said Abbott, the first person hired by MLS in 1993 and the creator of its business plan. “Somebody took a look at the clip and thought, ‘There’s some offensive language, let’s take it down.’ Once we had an opportunity to review the clip and have a further discussion internally, [and] take note of the fact the clip was widely distributed, we determined from a policy perspective that it made sense and was appropriate to put the clip back up.

“It had nothing to do with any concerns over any legal challenges. We believe we have the right to take the clip down if we wanted to, but after we had an internal discussion about it, we determined it was appropriate – in this case – to re-post the clip.”

Abbott says if similar situations arise they will be examined individually. “Those are the judgments people make every day, that news organizations and we make every day,” he said. “I think we have a good approach to this and in the end the system worked here.”

Levy isn’t convinced MLS has adequately addressed its policies regarding copyright issues.

In an e-mail to Soccer America, he stated, “It is good to see this individual takedown fixed, but the problem still needs to be solved. We will be ready to take the next fan who gets taken down, and the next; and assuming we conclude that they are not changing their procedures, MLS cannot count on getting notice every time before we seek class relief.

[MLS SPOTLIGHT] A three-game suspension and undisclosed fine has been meted out to Houston midfielder Colin Clark, whose cursing of a ballboy in a match Friday with Seattle triggered outrage as well as a legal dispute between the league and a fan who posted a video clip of the incident on YouTube.

Clark has apologized for using a gay slur, “f------ f----tt,” while trying to retrieve a ball for a throw-in. In a statement announcing the punishment, league commissioner Don Garber said, “Major League Soccer will not tolerate this type of behavior from its players or staff at any time, under any circumstances. Colin Clark has expressed sincere remorse for his actions and I believe that he will learn from this incident.”

Garber has also mandated that Clark attend additional diversity and sensitivity training. Such sessions are mandated for all teams and usually held at the start of the season.

The fan who posted the clip, Joshua Vega, was contacted by Public Citizen Litigation Group, which sent a letter to MLS protesting the Digital Millennium Takedown Act (DMCA) notice sent by the league to YouTube. MLS cited copyright protection of its game telecasts as justification for the takedown notice; that contention was refuted by senior litigator Paul Levy.

A statement sent by Public Citizen to the league included a statement from Levy, which read, in part, “It was disheartening to say the least to hear a Major League Soccer (MLS) team player use abusive language with a ball boy in the middle of a game, but it’s positively shameful that the MLS decided to go after a fan who later posted a small clip of the game on YouTube to further discussion of the widely publicized incident.

“There’s no question that the clip was taken from the copyrighted telecast, but there can also be no doubt that the fan is protected by fair use in posting a 20-second clip from a 90-minute game. MLS responded with an abusive DMCA takedown notice that caused the YouTube clip to be removed – an overreaction that boils down to attempting to deny the fan his right to free speech.

“Even though Clark issued an apology, the video prompted a widespread discussion among soccer fans, who compared the incident to recent controversies in Europe over racist comments there.

“Just because Clark’s behavior reflects poorly on MLS is no reason to stifle speech about it, let alone take a drastic measure against a fan.”

MLS president Mark Abbott said the decision to allow the clip to be re-posted wasn’t prompted by legal concerns. As a former associate to league founder Alan Rothenberg at law firm Latham & Watkins, one of his areas of specialties was commercial law.

“The initial decision was just that; an initial decision,” said Abbott, the first person hired by MLS in 1993 and the creator of its business plan. “Somebody took a look at the clip and thought, ‘There’s some offensive language, let’s take it down.’ Once we had an opportunity to review the clip and have a further discussion internally, [and] take note of the fact the clip was widely distributed, we determined from a policy perspective that it made sense and was appropriate to put the clip back up.

“It had nothing to do with any concerns over any legal challenges. We believe we have the right to take the clip down if we wanted to, but after we had an internal discussion about it, we determined it was appropriate – in this case – to re-post the clip.”

Abbott says if similar situations arise they will be examined individually. “Those are the judgments people make every day, that news organizations and we make every day,” he said. “I think we have a good approach to this and in the end the system worked here.”

Levy isn’t convinced MLS has adequately addressed its policies regarding copyright issues.

In an e-mail to Soccer America, he stated, “It is good to see this individual takedown fixed, but the problem still needs to be solved. We will be ready to take the next fan who gets taken down, and the next; and assuming we conclude that they are not changing their procedures, MLS cannot count on getting notice every time before we seek class relief."

(Click here to view the video clip in question.)