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All sorts of important cases have been on the docket of the federal court in Alexandria lately. There’s United States v. Moussaoui, in which the life or death of the alleged 20th 9/11 hijacker will be decided. And United States v. Lindh, the American Taliban. And Hamdi v. Rumsfeld, which pondered whether American citizens can be declared “enemy combatants.”
Then there’s WAKA LLC v. DCKickball.
That’s right: a federal case about kickball. Look for all heck to break loose whenever the judge orders a recess.
The litigation was filed on Valentine’s Day on behalf of the four founders of WAKA, the local behemoth also known as the World Adult Kickball Association, and it could decide our city’s future as the adult-kickball capital of the free world. The group, which claims to have “tens of thousands” of members playing in its affiliated divisions, is asking the court to prevent relative munchkin DCKickball (which enrolled 400 players in its inaugural season last year) from rolling any red rubber balls in 2006.
The complaint accuses DCKickball founder Carter Rabasa of copyright infringement for unauthorized use of WAKA’s co-ed kickball rules, including “the clearly unique requirement that there be 4 men AND 4 women at a minimum to play” and for mandating that “players must be at least 21 years old.” No other specific rules or intellectual-property thefts are mentioned, but the suit points out that David Fischer, a volunteer director for DCKickball, was previously a player for the WAKA team “Scoregasm.”
The suit also accuses Rabasa of defamation, based on his calling WAKA “the Microsoft of kickball” in a 2005 Washington City Paper story (“Kickball Wars,” Cheap Seats, 5/13) and his additional comments in a subsequent Wall Street Journal article. Those comments, the suit alleges, incited a kickballer to post “WAKA bites it” on the DCKickball Web site.
Instead of following the “sticks and stones” bromide, WAKA officials want Rabasa, a former WAKA player and volunteer organizer, to pay dearly for his alleged transgressions: The suit asks for no less than $356,000 in compensatory and punitive damages.
Rabasa, perhaps stunned to see “intellectual property” and “kickball” on the same page, postponed registration for DCKickball’s 2006 season shortly after the suit was filed. On Feb. 19, he put an announcement about the WAKA suit on his group’s Web site but took it down shortly thereafter. Rabasa declined to comment for this story.
WAKA attorney Daniel Grubb says that suing DCKickball was “the last resort” after Rabasa ignored a cease-and-desist letter issued by his firm.
“They started to recruit for a new season,” Grubb said about the timing of the suit.
Tiffany Ficklin, WAKA’s public-relations coordinator, says nobody from her group other than its attorneys will comment on the case.
The group’s legal counsel has been busy lately trying to keep folks from playing kickball with anybody but WAKA. The very same week the DCKickball litigation was filed, WAKA lawyers issued a cease-and-desist letter to Joe Paternoster, who very recently began recruiting players for what he hopes will be the city’s next adult kickball league, New Adult Kickballers in D.C. (NAKID), which was set to begin play this spring.
In that letter, WAKA attorney (and partner of Grubb) Thomas Dunlap wrote that he had “significant evidence” that Paternoster, also a former WAKA player and volunteer official, relied on WAKA’s “intellectual property and trade secrets” to start NAKID. Playing kickball in any group other than WAKA, the letter said, violated the noncompetition clause that Paternoster and all WAKA volunteers were forced to sign last year. If Paternoster didn’t give up his plan for a new confederation on his own, the letter insinuated, he’d be hauled into court and forced to give it up.
“For five years, I was a volunteer for WAKA, and I worked an incredible number of hours for that group and made them a whole lot of money,” Paternoster says. “But I still paid my own money to play kickball with WAKA. For all my time and work, I was never paid a dime. All I ever got in return was two jackets with a WAKA logo, a hat with a WAKA logo, and a shirt with a WAKA logo. And a cease-and-desist letter.”
Playground legend holds that if you stand up to a bully, he’ll back down. Paternoster, who counts among his anti-WAKA chants “No more WAKAopoly!” and “We’re taking the playground back from the bully!” says he’s aching to find out if that’ll hold true: Cease and desist? Bah—NAKID is open for business.
“WAKA is out of control,” he says. “They’re actually going to try to enforce a noncompete clause on a volunteer? They’ve gone crazy. But if they wanna play like that, I say, ‘Bring it on! Bring it on!’ They openly brag about being a multimillion-dollar organization. I’d hate to see DCKickball or NAKID or any independent group knuckle under to some corporate entity like WAKA.”
WAKA’s pressure tactics apparently extend beyond its backyard. Larry Betz, who founded and runs the Little Rock Kickball Association (LRKA) in Arkansas, says he got a “threatening” e-mail from WAKA in the summer of 2004.
“They were saying I was infringing on their intellectual property, that I was basically stealing their property by using their rules,” Betz says. “I immediately wrote back informing them that I had never heard of their group or their rules when I wrote my rules. I lifted my rules from Little League [baseball], to tell you the truth. I mean, it’s a child’s game we’re talking about!”
Betz has been offering moral support to Rabasa since last season and sent the DCKickball founder a copy of LRKA’s rules last year in hopes of keeping WAKA off its neighborhood rival’s back. (The complaint in WAKA v. DCKickball acknowledges that DCKickball received rules help from LRKA but alleges that “DCKickball rules are more copied from WAKA than they are from LRKA.”)
Even so, Betz says that he’s not surprised that WAKA has gone all the way to a federal courthouse to try to crush DCKickball. But he thinks the move will ultimately backfire.
“There’s no way WAKA won’t look like a bunch of bullies and thugs by what they’re doing now,” says Betz. “I hope Carter doesn’t fold up his tent because of this. Getting lawyers involved…is the worst move WAKA could have made. It’s stupid, and it’s hilarious, that something as trivial and meaningless as kickball is occupying some serious people’s time. It really sheds light on WAKA’s organization and the way they run things. I don’t think there’s any way WAKA can win this. I mean, who would want to be seen standing with this bully when this is done?”
WAKA attorneys would not acknowledge sending out cease-and-desist letters to rival groups other than DCKickball. “We will talk about what is in the public record,” says Dunlap.
In a 1998 interview with the City Paper, back when WAKA consisted of a few teams of yuppie 20-somethings gathering on the mall for irony-laden games, co-founder Johnny LeHane told me that he’d cobbled together the rules for his then-fledgling league from softball and his childhood memories of playing kickball (“Like a Red Rubber Ball,” Cheap Seats, 5/29/98).
But LeHane and his cohorts have since realized that having “tens of thousands” of people pay you $60 and up per person per season to play kickball—while unpaid volunteers do almost all the work of assembling the leagues and putting on the actual games—can cause an irony deficiency. Recent legal activities leave the impression that WAKA, which was founded as a nonprofit organization before switching to a for-profit limited-liability company, now seems to believe it has reinvented the ball.
Alas, there is plenty of evidence that kickball, even the adult version played by the group, existed in the days before WAKA: The Washington Post archives, for example, hold a story about an adult-kickball event held at Sargent Shriver’s estate in 1967. And the University of Nebraska at Omaha had started up annual tournaments before WAKA was conceived. The school’s Zeta Tau Alpha sorority will sponsor its 10th-anniversary co-ed adult-kickball championship this month.
To the nonlegal mind, it also appears that only a heaping dose of irrationality—or a couple of hours at the flip-cup table that the WAKA faithful so adore—could have led to the contention that a rule requiring a minimum of four men and four women is unique to WAKA. That’s a staple of co-ed softball, soccer, and volleyball leagues everywhere.
As for the legal uniqueness of a requirement that players in an adult league be of legal age, well, please.
“They love to talk about ‘trade secrets,’” says Paternoster. “Well, I’m no lawyer, but my understanding is, four men and four women ain’t a trade secret.”
But WAKA attorney Dunlap advises that the strength of his client’s case shouldn’t be gauged only by the infractions alleged in the complaint. “We could have put 10 or more counts in there,” he says. “There’s other things that are going to come out that aren’t in the complaint. We didn’t have to show much.”
WAKA apparently knows that the legal bender the group is now on, righteous or not, ain’t gonna play well with its players, many of whom have been grumbling about the costs of playing WAKA kickball for some time. (Rabasa made a reduced sign-up fee one of the main selling points of DCKickball.) Neither the litigation against Rabasa nor any cease-and-desist mailings are mentioned specifically on the group’s Web site. Instead, this cryptic announcement recently appeared on the site: “WAKA is obligated to protect the Association from anyone or anything that seeks to malign, misrepresent or otherwise take advantage of the hard work and dedication of the combined WAKA elements (the players, employees and organization). WAKA is ensuring that the WAKA Kickball experience players love today will survive and thrive tomorrow and beyond.”
Earlier this week, DCKickball again began to accept player registrations for the 2006 season.
Dunlap says that no firm trial date has been set for WAKA LLC v. DCKickball.
Paternoster says he can’t believe the kickball suit will ever reach the trial stage. But a man can dream, can’t he?
“I really hope Carter doesn’t cave here. I think he’d have to try hard to lose this one,” Paternoster says with a laugh. “But this could be a disaster for WAKA. I want them to have their day in court.”