Guest Post -- NCAA Academic Requirements: A Lesson for Antitrust Analysis of Amateurism

The following is a guest post by Sherman Clark, Kirkland & Ellis Professor of Law at the University of Michigan:

NCAA Academic Requirements: A Lesson for Antitrust Analysis of Amateurism 

Sherman J. Clark 

Here is hypothetical but I think illuminating question. If courts determine that it violates antitrust law for NCAA schools to collude in refusing to pay players, might it also violate antitrust law for schools to collude in requiring players to be full-time students? It  might seem obvious that academic eligibility and academic progress requirements do not implicate antitrust law; but it seemed equally obvious a generation ago that amateurism requirements do not implicate antitrust law.  It seemed obvious; but it was wrong.  The logic from Board of Regents to Law to O’Bannon was inexorable. And it does not stop there.

Let me be clear. Courts are not likely to hold that NCAA academic eligibility and academic progress regulations violate the Sherman Act—not any time soon, at least. Rather, my point is that such a ruling would actually make some sense—and would in some sense follow logically from a conclusion that collusive amateurism requirements are illegal. In this light, thinking about why the courts would probably not find eligibility requirements illegal can help us think about the amateurism cases.

One might be tempted to dismiss this comparison out of hand on the grounds that eligibility rules are fundamentally different from amateurism requirements; and that such rules do not amount to price fixing. But price fixing is not the only thing that violates the Sherman Act.  Any restraint of trade that has a substantial impact on competition is illegal if its anti-competitive effects outweigh its pro-competitive benefits.

So, next one might  assert that academic eligibility requirements do not have any substantial anticompetitive effect. But they do. They exclude completely from that labor market anyone is not able to be a full-time student. If all the coffee shops in the United States were to agree to hire only full-time college students, that would be anticompetitive, and thus a violation of the Sherman Act.

Here one might say that college sports are different. Exactly. Being a college student has nothing inherently to do with working as a barista, but it has everything to do with playing college sports. What makes college sports what they are is that they are played by student athletes. And that is the point. Colleges are allowed to collude in this market in a way that would be illegal in other labor markets because the nature of the labor is essential to the nature of the product in a way that is not true in other markets.  Where a restraint is necessary to define a product, it is not illegal.

But is it necessary that players be full-time students? Bear with me here. Would it really alter the nature of the product to let part-time night students play. Granted, if teams were made up of players who are not students at all, even in name, that might well alter the nature and appeal of the game. But it would probably not make a measurable difference to the character or appeal of college sports if the current academic progress requirements were relaxed a bit.

So does that make it illegal for the NCAA to refuse to relax these restraints? Of course not. Courts are not going to get in the business of drawing lines about how much relaxation of the academic progress requirements would ultimately alter the nature of the game too much. There would be no principled place to draw the line.  And besides, such regulations must be seen not in isolation, but in conjunction with other rules, which together define the endeavor—and thus the product. 

In the same way, it will probably make little difference to the nature and appeal of college basketball or football if players are paid a $3,500 stipend, or even $20,000.  But at some point it might.  And how are the courts to draw the line? Of course, courts could simply draw a line by fiat; but the line will be arbitrary and the cases unpredictable. There is no coherent stopping point short of a full free market.  In such a market, stars would be paid large amounts and most other players much less—perhaps less even than what their scholarships are now worth.  And that might well alter the nature and appeal of the game.

Or it might not.  I am trying to highlight a problem here, not solve it. The essential problem is that it will be difficult or impossible for the NCAA ever to show that any one particular thing about who plays college sports is by itself essential.  The risk, therefore, is that the courts will declare aspects of NCAA regulation—one by one—to be inessential in defining the product, and thus illegal restraints of trade.

It is helpful to remind ourselves that there is no law of nature that says people will pay billions to watch semi-pro level sports. No one watches the NBDL. There is some combination of tradition and mystique that makes college football and basketball different and appealing. We should try figure out what that is—and what if any role amateurism plays in it—before we dismantle it one seemingly-inessential element at a time.

If we continue to proceed step by step, asking whether this or that particular restraint is necessary, we may well end reminiscing about the old days when college sports were a big deal—and wondering which was the straw that broke the camel’s back.  And those who started out trying to make sure players get a piece of the pie may find that there is a much smaller pie to divide up. 

Sherman J. Clark is the Kirkland and Ellis Professor of Law at the University of Michigan Law School.

New Article: Navigating the Legal Risks of Daily Fantasy Sports

It's my pleasure to announce the online publication of sections 1-4 of my newest law review article "Navigating the Legal Risks of Daily Fantasy Sports: A Detailed Primer in Federal and State Gambling Law."   This article explores the legal status of "daily fantasy sports" in light of both federal and state gambling laws.  The full version of this article will be published in the January 2016 edition of University of Illinois Law Review.

The NCAA Business Enterprise: Crumbling Under its Own Success?

We just enjoyed perhaps the most exciting college sports weekend of the year: the Regional Finals of the NCAA's March Madness Tournament. Four men's basketball games are played, in sold out arenas (or domes), in front of a staggering number of television viewers. The demand for this event is so large that the broadcast rights of the March Madness tournament were contracted to CBS/Turner for $10.8 billion over 14 years. And therein lies the rub: is the NCAA about to crumble under its own success?

This weekend, three articles were published that addressed this very issue. First, Mark Alesia, an outstanding reporter for the Indianapolis Star, dug into the financials of the NCAA and wrote that the NCAA is "poised to top the eye-popping mark of $1 billion in annual revenue." As the NCAA's annual revenue has increased each year since 2001, legal claims have arisen on behalf of college athletes looking to share in this economic growth.

Our own Michael McCann spoke with Alesia for this article, and aptly stated "This is a transformative era for the NCAA, and at the end, the student-athlete will have a different role. There will be changes to amateurism." But what about defining this seemingly simple concept of 'amateurism?' Allen Sack, professor at the University of New Haven, states that "amateurism is whatever the NCAA arbitrarily decides to call it."

The second article over the weekend was an opinion piece written by Smith College economist Andrew Zimbalist titled "Paying College Athletes: Take Two." While everyone tries to frame the debate as 'should we pay college athletes?', Zimbalist accurately reminds us that "college athletes have been paid since the 19th century."

Perhaps the heart of his article can be summarized in the following quote:

"If we want to preserve the educational model of intercollegiate athletics, here's a more attractive option: Take the definition of amateurism away from its current arbitrary, hypocritical and morphing state imposed by the NCAA and follow the lead of the AAU and other amateur organizations. The working definition should be simple: an amateur athlete is one who is not paid a salary for playing his or her sport."

This definition, under Zimbalist's concept, would allows institutions the ability to: 1) provide full cost of attendance; 2) year-round health insurance; 3) lifetime health insurance for athletically related injuries; 4) disability insurance and; 5) due process. YES PLEASE!

The third article demanding your attention is the wonderfully written piece "A March Madness Underdog: Free Enterprise" by Allysia Finley in the Wall Street Journal. In her article, Finley interviews none other than noted NCAA critic Jay Bilas who explains why players should be paid, and how to overhaul the 'exploitive' NCAA.

Using eloquence and humor, Bilas argues for a system that allows college athletes to be paid what the market deems them to be worth. Note the term 'allows' as he states "I'm not advocating and never have that some athletes should be paid. It might be a distinction without a difference to some, but what I'm saying is that it shouldn't be disallowed."

Last month at the MIT Sloan Sports Analytics Conference, I was lucky enough to moderate a panel titled "Amateurs or Industry: NCAA Reform." Joining me on the panel was the NCAA's Oliver Luck, Northwestern AD Jim Phillips, the NBA's Rod Thorn, and some sports lawyer named Michael McCann. MIT has just released the conversation and, while I'm biased, I think it's well worth your time to watch.

As you get ready for this coming weekend's Final Four in Indianapolis (note: that's where the NCAA is headquartered) I encourage you to read these three articles and watch this video. Think. And then debate with others. What's right and where does college athletics go from here?

The First Amendment and the Redskins Tradement, part I: Government speech

The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is the first several guest posts on the Washington Professional Football Team trademark case. It is cross-posted at PrawfsBlawg.

The ACLU recently filed an amicus brief in the Washington Redskins trademark case, arguing that the Patent and Trademark Office’s (PTO) cancellation of Redskins registrations constitutes viewpoint discrimination contrary to the First Amendment, and urging the federal court to strike down those portions of Section 2(a) of the Lanham Act that prohibit the registration of “immoral,” “scandalous,” or “disparage[ing]” marks.  We are deeply concerned with the ACLU’s position.  Its proposal to thrust First Amendment law into an area of commercial regulation in unprecedented ways would wreak havoc with trademark law’s careful balance of concerns for property rights, economic exchange, and consumer protection.  We believe that the ACLU’s fundamental misunderstanding of trademark law has caused it to misapply First Amendment doctrine.

In this first post, we wish to focus on the ACLU’s invocation of two First Amendment doctrines: viewpoint discrimination and unconstitutional conditions (we leave for a separate post whether the commercial speech doctrine might be appropriate).  The ACLU’s position erroneously elides the various forms of government regulation and their contexts, treating trademark law like criminal law, municipal ordinances dealing with protests, laws creating public fora, and public subsidies.  But the strongest First Amendment doctrines designed to ensure robust public debate simply don’t map on to trademark regulation without creating a major upheaval in trademark law.  First Amendment doctrine requires strict scrutiny whenever there is a direct, content-based regulation of private speech.  The federal trademark registry, however, does not operate like a direct regulation of private speech, nor does it create a forum for the expression of private speech.



Congress’s power to regulate trademarks flows from, and is constrained by its constitutional authority over interstate commerce.  Federal registration of a mark confers certain benefits (e.g., registration is treated as prima facie evidence of validity and ownership of a mark, gives a nationwide priority over subsequent users, and offers access to certain remedies), but it does not create rights. These advantages are more procedural in nature than substantive, closer to internal court rules than criminal laws, permit ordinances, or public subsidies.  Trademark rights are instead established by common law from the actual commercial use of the mark; these rights can be asserted in federal court without a registration.  It is in this crucial sense that the Lanham Act does not directly regulate expression as such—certainly not in the same way that a criminal law preventing offensive speech, a regulation banning parades without a permit, or even laws that subsidize private speech do.  Section 2(a) does not prohibit the utterance of the word “Redskins” or attach any conditions on anyone’s use of that term.

This provision simply refuses to confer the benefits of registration on the Washington football team.  The team would still retain the right to assert itself as the first and exclusive user of the term for commercial purposes under federal law.  Consequently, the provision offers the Native American challengers in this case only the possibility of a symbolic victory—there would be no need for the team to change its name as it may still use and enforce the mark.  Section 2(a) neither chills the free expression of ideas nor inhibits robust public debate.

Unable to point to a public forum or a direct inhibition of expression, the ACLU contends that the PTO registry imposes an unconstitutional condition on speech.  In support of this proposition, the ACLU cites Legal Services Corporation v. Velazquez, where the Supreme Court struck down a federal law that prevented publicly-funded legal services lawyers from challenging “existing law.”  As Robert has discussed elsewhere, this restriction of subsidized advocacy was tantamount to a ban on anti-government speech.  But there is nowhere near the same threat to freedom of expression entailed by Section 2(a) of the Lanham Act—it is not even in the same ballpark.  After cancellation of its registration, the Washington football team remains just as free to use the Redskins marks, in commerce or political discourse.  Moreover, the fact that registration is cancelled in no way inhibits the mark user’s legally-oriented expression or distorts the normal operations of the legal system, two findings central to the Velazquez ruling.  Section 2(a) does not restrict what lawyers can say in court and does not even prevent the mark’s owner from relying on statutory and common law trademark doctrines.  It imposes no condition whatsoever on non-commercial expression.  As Adam Cox and Adam Samaha have shown, truly unconstitutional conditions are rare, and virtually every constitutional issue can be reframed as an allegedly unconstitutional condition (as the ACLU has done).  It is a mistake to do that here.

Closer examination of the idea of viewpoint discrimination shows that it doesn’t really capture how Section 2(a) of the Lanham Act actually works.  That concept has been invoked in cases where there is a serious fear of chilling of political speech, i.e., when one side in a debate has to fight with an arm tied behind her back.  But there’s no serious concern that anyone’s ideological message is hampered or distorted by the Lanham Act.

Section 2(a) does not turn on a speaker’s actual perspective on an issue.  It instead permits an objective determination that a mark, regardless of the owner’s viewpoint, will be perceived as disparaging by the referenced group when used in commerce.  Someone who wishes to coopt a disparaging term for positive ends may be barred from registry just as someone whose intended use is to disparage.  Thus, Section 2(a) operates without regard to the ideological intention of a speaker.  For example, the PTO refused the registration of the mark “The Slants” finding it was disparaging to Asian Americans despite the fact that the applicant was a band whose members are Asian and who intended to take on stereotypes about Asians.  The applicant’s viewpoint was irrelevant.
Moreover, enforcement of Section 2(a) does not prevent the utterance of noncommercial pro-Redskins speech, just as it does not prohibit the utterance of non-commercial anti-Redskins speech.  Decisions like Rosenberger v. Rectors of Virginia, and R.A.V. v. City of St. Paul are simply inapposite.

We think that the best analogue for this type of government regulation is government speech.  Under that body of caselaw, the PTO registry constitutes “government speech” rather than regulation of private speech.  The doctrine permits government-wide latitude to design its own programs and express its own views, consistent with Congress’s mix of commercial and ideological goals.  Reliance on this doctrine would recognize that the PTO registry simply is not a forum created for the exchange of private ideas; rather, it is a tool to facilitate Congress’s goals of regulating interstate commerce and protecting a diverse population of consumers from business practices that foster racial discrimination and stereotyping.  These core programmatic goals place Section 2(a) well within the reasoning of two government-speech rulings by the Supreme Court: Rust v. Sullivan, where Congress barred government-funded doctors from advising about the availability of abortion, and FCC v. Pacifica Foundation, which permitted Congress to protect listeners from “obscene, indecent, or profane” broadcasts.

Accepting the ACLU’s invitation to apply First Amendment law maximally to the PTO registry would improperly convert the registry into a free speech forum.  It would force the PTO to register all manner of marks, interfering with the government’s delicate balance of regulatory objectives.
A ruling in this case against the football team does express the government’s belief, after careful fact finding, that the term “Redskins,” as used by the Washington football team in commerce, is disparaging to an entire group of people.  Under the government speech doctrine, Congress is free to express the view that racially-inflected commerce is wrong, that certain ideas harm consumers in a pluralistic marketplace, and that government sanction of the trademark’s usage might inhibit commercial activity.  The PTO, relying on Section 2(a), has expressed that view here, leaving private actors at liberty to agree or disagree.

Finally, consider what actually happens when the PTO refuses to register a mark on the ground that it is “disparaging.”  It means that the mark owner cannot claim that the federal government has endorsed or supported that expression for commercial reasons.  But he or she can continue to use it in public debate.  Moreover, to the extent that the benefits of registration hinder the mark owner from excluding others from using the term in commercial activity, the absence of a registration guarantees a more robust public debate.  That result seems far more consistent with ensuring wide-open conversation on matters of public importance than a federal court ruling invalidating this portion of Section 2(a).

Tomorrow: "New Era in Gaming Law" Symposium

The Northern Kentucky Law Review and the W. Bruce Lunsford Academy for Law, Business and Technology will host "The New Era in Gaming Law" Symposium on Friday, March 20, 2015, at Northern Kentucky Law School. Featuring some of the country's leading gaming law experts, including Sports Law Blog Contributors Ryan Rodenberg and Marc Edelman, this symposium will explore emerging regulatory and legalization issues regarding sports betting, fantasy sports, and online gambling. I will be speaking about the latest developments in the New Jersey sports betting controversy and how the path to legalized sports betting has taken a unpredictable due to the emergence and popularity of daily fantasy sports and the "partial repeal" strategy employed by New Jersey (with the apparent blessing of the Third Circuit and the federal government). The symposium will also include a student scholarship showcase of law review students presenting their student notes on gaming law issues.

The symposium has been approved for 5.5 hours of general CLE credits in Ohio, and is anticipated to e approved for 5.5 hours of general CLE credits in Kentucky and Indiana. Registration is complimentary and includes the anticipated CLE credits, breakfast, lunch, reception, and all published materials.

To register and to learn more about this symposium, click here. You can also register by contacting the symposium administrator, Jeannine Abukhater Lambert, at centers-institutes@nku.edu or by calling her (859) 572-6403. Hope to see you there!

Schedule of Events

George and Ellen Rieveschl Digitorium

9:00 a.m.  WelcomeDean Jeffrey A. Standen, Northern Kentucky University Salmon P. Chase College of Law
Editor-in-Chief Brian Morris, Northern Kentucky Law Review

9:15 a.m. – REGULATING FANTASY SPORTSProfessor Marc Edelman, Zicklin School of Business, Baruch College, City University of New York

Attorney Kate Lowenhar-Fisher, Dickinson Wright PLLC, Las Vegas, Nevada

Dean Jeffrey A. Standen, Northern Kentucky University Salmon P. Chase College of Law

10:55 a.m. BREAK

11:15 a.m. THE FUTURE AND PROLIFERATION OF GAMINGProfessor I. Nelson Rose, Whittier Law School, Costa Mesa, California

Attorney Daniel Wallach, Becker & Poliakoff, Fort Lauderdale, Florida

Attorney Kate Lowenhar-Fisher, Dickinson Wright PLLC, Las Vegas, Nevada

The remainder of the symposium will be in the Student Union Ballroom

1:00 p.m. STUDENT SCHOLARSHIP SHOWCASE LUNCHEONJay Wampler, Northern Kentucky Law Review, “Every Time I Call It a Game, You Say It’s a Business. Every Time I Say It’s a Business, You Call It a Game”

Jonah Ottley, Northern Kentucky Law Review, “Fantasy Sports and Gambling: Drawing a Line in the Sand Between Pete Rose’s Gambling and Daily-Play Fantasy Sports” 

2:10 p.m. THE LANDSCAPE OF GAMING REGULATIONS
Professor Walter Champion, Texas Southern University Thurgood Marshall School of Law, Houston, Texas

Professor Ryan Rodenberg, The Florida State University, Tallahassee, Florida

3:30 p.m. ROUNDTABLE

4:30 p.m.  RECEPTION

Testing the NBA Draft Waters in 2015

As you fill out your brackets for the 2015 NCAA March Madness tournament, it's time for my yearly rant on the preposterous rules that the NCAA imposes on men's basketball players and their ability to properly evaluate their option in leaving early for the NBA. Want to know how absurd the NCAA's rule regarding their deadline for early-entry into the NBA draft is?  It has been called "one of the silliest, most cynical and least student-athlete-friendly decisions ever." [And there is a significant amount of competition by the NCAA for this award.]

Consider the following:

1. To set the framework, the NBA's draft eligibility rules, found in Article X, Section 1 of the CBA, require that a player be 19 years old, thus the concept of "one and done";
2. In a rare moment of logic, the NCAA allows prospects to "test the waters" by working out with teams and getting an appraisal from the NBA's Undergraduate Advisory Committee on their draft potential. However, this value of this opportunity is greatly reduced when taking into account NBA and NCAA deadlines;
3. The NBA has several events and deadlines regarding entry into the 2015 Draft, they are: 
• April 8-11th: Portsmouth Invitational Tournament (seniors only)
• April 26th: Early-entry candidate deadline to declare for the NBA draft
• April 29th: NBA teams can conduct or attend workouts with early-entry players
• May 12-17th: NBA draft combine
• May 19th: NBA draft lottery
• June 15th: Deadline to withdraw from the NBA draft
• June 25th: 2015 NBA Draft
4. The NCAA also has a deadline by which players must declare their intention to return to college. The kicker? The NCAA requires that college athletes announce by April 12th.  A full 65 days before the NBA requires they do so.

Thus, the obvious incongruity of these deadlines: the NCAA requires a decision before ANY of the NBA dates kick in. It is no coincidence that the NCAA deadline of April 12th is early; it's so that college coaches are able to know who is returning to their rosters before the April 17th men's basketball signing period. This imposed deadline was created with the direct purpose of assisting in recruiting; yet another example of the scales tipping in favor of coaches rather than their players.

The NCAA program which allowed prospects the ability to work out and get an unbiased and informed perspective on their pro potential is nearly moot. Why?  Because NBA teams won't work out players until their deadline (April 26th) has passed and someone has declared for the draft. And despite NBA Commissioner Adam Silver's intent on having the NBA, NBPA, and NCAA all in a room agreeing upon dates, age eligibility requirements, and other issues (as reported here at a 2014 Boston College's Chief Executives Club event) there is the legal barrier to this conversation ever taking place: collusion. The NCAA is not a legally recognized bargaining entity.

The bottom line is that in order to allow college coaches the ability to evaluate their roster needs for the fall, college students are handcuffed in their ability to get an unbiased evaluation of their NBA prospects. Yet somehow in the sports of baseball, football and hockey, league draft rules and NCAA bylaws enable players to take their time in weighing this career choice. If the mission of higher education is to educate and allow for career development, why does the NCAA choose college basketball recruiting needs over the best interests of the students?

There has been plenty written about the absurdity of these rules:

1. In 2011 I wrote a law review article outlining the history of the NBA draft and arguing for change;
2. This past week, noted agent Arn Tellem wrote this important article in Grantland titled "D-League Reconstruction: The Necessary Plan to Fix the NBA's Farm System." The proposals are sound, with many industry leaders applauding Tellem's vision. Among the recommendations, Tellem argues for greater investment in the D-League, changes in the draft system, and an ability for undrafted college players to return to the NCAA. All I can say is "hope springs eternal...."
3. One wrinkle in 2015 to this debate is the role that Michele Roberts, newly appointed Executive Director of the National Basketball Players Association (NBPA) will play. Given the strength of the union, her public positions on a variety of hot topics, and the increased engagement of NBA stars such as Chris Paul and LeBron James in the strategic direction of this organization, one can only assume greater advocacy on behalf of the players than has been seen in recent years.
   
4. In recent years, several others have weighed in: Darren Heitner wrote this piece. Marc Isenberg penned this article. Andy Katz here and here, Eamonn Brennan here.
5. There was, of course, the great and path-breaking law review article written in 2004 by our own Michael McCann titled "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft."  McCann was the first person to show through empirical analysis of both on and off the court performance that players skipping college were the best players in the NBA and that an age restriction is irrational. McCann followed up Illegal Defense in 2005 with an empirical study on NBA players who have been arrested and their education level.
6. The best news is that there is on-going dialogue to address the draft withdrawal date. ESPN's Andy Katz does a great job here, in outlining the parameters of these discussions which includes pushing back the NCAA's date to withdraw from the draft and an underclassman invite-only combine.

Again, very little new in this post, just a reminder of the asinine nature of the NCAA restricting college students from making an informed choice about their future careers.

Harvard Law School Sports Law Symposium 2015 #CSELsymposium

I'm honored to be speaking at Harvard Law School on Thursday, March 26, 2015 at their annual sports and entertainment law symposium. I'll be moderating a panel that will feature Ben Block (NFL attorney at Covington and Burling); Peter Ginsberg (attorney to Ray Rice and other players) and Heather McPhee (NFLPA attorney). Should be a great event - info on speakers is below (for info on logistics, click here).

2015 Sports and Entertainment Law Symposium

Hosted by the Harvard Law School Committee on Sports & Entertainment Law

Thursday, March 26, 2015

Milstein East, Harvard Law School

12:00 - 5:00 PM

#CSELsymposium

Weiler Awards—12:00-12:20—Professor Peter Carfagna presents the 2014-2015 Weiler Awards to Joshua Lee and Jaimie McFarlin for excellence in legal writing for sports and entertainment. Lunch provided.

Keynote Address—12:20-1:20—Shawn Holley delivers the keynote address on her experience as Hollywood’s preeminent defense attorney. Ms. Holley, who rose to prominence as a member of O.J. Simpson’s defense team, has represented a long list of celebrities including Kanye West, Justin Bieber, Lindsay Lohan, Paris Hilton, the Kardashian sisters, Amanda Bynes, Michael Jackson, Tupac Shakur, Snoop Dogg, and Mike Tyson. She has also served as a legal correspondent for a various channels and NBC is said to be developing a television show about her career.

The Digital Distribution Revolution—1:30-2:30

Panelists:Rebecca Borden, SVP of IP for CBS; Kevan Choset, Legal Counsel for Spotify;Julian Petty of Nixon Peabody; Bradley Silver, an Assistant GC for Time Warner; and Bryan Tallevi, Senior Counsel for NBC Universal

Moderator:Chris Bavitz, Managing Director for Harvard Law School’s Cyberlaw Clinic at the Berkman Center for Internet and Society

Leaders in the entertainment industry will explore how the recent expansion of media distribution has changed their jobs. Specific issues to be discussed include protecting IP in digital distribution deals, piracy, challenges in creating live content, and predictions about where the industry is headed and what that means for lawyers.

Afternoon Break—2:30-2:45

Life After Law: Making the Switch, Tackling the Transition and Climbing the Ladder—2:45-3:45

Panelists:Jody Mooradian, Senior Athletic Director for Women's Sports at Boston College;Rob Simmelkjaer, SVP for NBC Sports; and Mike Zarren, Assistant General Manager and Team Counsel for the Boston Celtics

Moderator: Steve McKelvey, MS Program Director & Associate Professor Sport Management at University of Massachusetts, Amherst

Lawyers discuss life in the sports and entertainment industry outside of law. Specific topics include factors to consider regarding the switch, how to make the transition, the differences between the two roles, and how helpful a law degree is in their current job.

Changing the Game: Player Discipline and the Future of the NFL—4:00-5:00

Panelists:Ben Block, Partner at Covington where he regularly advises the NFL; Peter Ginsberg, the managing partner at Peter R. Ginsberg Law where he often represents players, recently including Ray Rice, in player discipline disputes; and Heather McPhee, Associate General Counsel for the NFL Players Association

Moderator:Mike McCann, Director of the Sports and Entertainment Law Institute at University of New Hampshire Law and legal contributor to Sports Illustrated

Lawyers from all sides will gather to discuss all things player discipline in the National Football League. Specific topics will include the new NFL personal conduct policy, the role of the Commissioner in determining punishments, the Collective Bargaining Agreement, and prior disciplinary cases.

Fantasy Sports Legislation by States May Run Afoul of PASPA

The emerging popularity of daily fantasy sports has focused increased attention on whether such activity--which many equate to sports betting--is legal. The question is unsettled under federal law, despite the enactment of the Unlawful Internet Gaming Enforcement Act. To date, no federal or state court has answered the question of whether a daily fantasy sports league is contest of "skill" or a game of "chance," which is central to the UIGEA exemption. The issue has been addressed only in the context of "season-long" leagues, with one federal court acknowledging that such leagues are "skill-based." But even the resolution of that issue under federal law does not necessarily lead to a similar result under state law. For example, five states--Iowa, Louisiana, Montana, Washington, and Kansas--expressly prohibit fantasy sports (either through an express statutory prohibition, as in the case of Montana, or through an advisory opinion from the state's attorney general, as in the case of Iowa and Louisiana, or because of an adverse interpretation by state gaming regulators, as with Washington and Kansas). Additionally, the legality of fantasy sports (of all types) is especially murky in those states (such as Arizona, Illinois and Arkansas) in which even a modicum of "chance" would transform the contest into an illegal lottery, and, thus, run afoul of that state's gambling prohibitions.

As a consequence, many fantasy sports operators do not accept entries from residents of Iowa, Louisiana, Montana, Washington and Kansas (where there are express prohibitions in place). Some fantasy sports sites, such as Star Fantasy Leagues, take it one step further and do not accept entries from residents of the so-called "any chance" states. In response, legislators in several of these states (Iowa, Washington and Kansas) have proposed legislation that would explicitly legalize fantasy sports. Previously, Maryland was the only state that had passed such legislation. While bills in Arizona and Montana failed last year largely due to opposition from segments of the gaming industry, the Iowa legislation has cleared one significant hurdle--approval by the Iowa Senate.

But are such state legislative efforts in direct and express conflict with the Professional and Amateur Sports Protection Act of 1992 ("PASPA")? While PASPA is commonly understood to prohibit state-regulated sports betting on the outcomes of professional and amateur sporting events, it also contains language that is arguably (and perhaps inarguably) directed at fantasy sports. Section 3702 of PASPA states in pertinent part:

It shall be unlawful for -- 

(1) a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact, or

(2) a person to sponsor, operate, advertise, or promote, pursuant to the law or compact of a governmental entity, 

a lottery, sweepstakes, or other betting, gambling, or wagering scheme based, directly or indirectly (through the use of geographic reference or otherwise) on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one or more performances of such athletes in such games.

Focusing on the above-bolded language, PASPA plainly prohibits a "governmental entity" (defined to include a state) or a "person" acting pursuant to state law from sponsoring, operating or promoting any betting or wagering scheme based directly or indirectly on "one or more performances of . . . athletes" in games in which amateur or professional athletes participate. Fantasy sports are inherently tied to the individual performances of athletes in a game rather than on the final score of the game itself.

Thus, a state which expressly legalizes fantasy sports (such as Maryland, and, soon, Iowa) would arguably be doing so in direct violation of PASPA's express prohibition against state sponsorship of sports wagering schemes that are based on the individual performance (e.g., statistics) of athletes participating in an amateur or professional sporting event. Likewise, "persons" that promote or advertise fantasy sports contests to residents of those states would also arguably be violating PASPA. Who might potentially fall into this latter category? Fantasy sports operators are the obvious one. What about professional sports leagues (such as the NBA) and teams that have lucrative sponsorship arrangements with daily fantasy sports operators? How about media outlets? An argument could be made that each of these entities would be violating PASPA by promoting fantasy sports contests in states that have expressly legalized such activity.

I am surprised by how little attention has been paid to this last sentence of PASPA. The sports legalization debate has focused largely (if not entirely) on the language pertaining to state-sponsored wagering schemes that are based on "one or more competitive games." In other words, single-game sports wagering. But as states move to expressly legalize fantasy sports, increased attention should be paid to PASPA's prohibition against wagering on an athlete's individual performance, which is at the core of fantasy sports. To date, no one in the fantasy sports or sports betting legalization space has raised this issue (not even the opponents of state legalization efforts). Time will tell whether this arcane provision of PASPA will hamper ongoing state legalization efforts. So far it hasn't.

Surprisingly, this issue has yet to emerge in the ongoing federal litigation between New Jersey and the professional sports leagues (and the NCAA) over New Jersey's latest attempt to legalize sports wagering. The leagues have argued that New Jersey's partial repeal of its state-law prohibition against sports wagering violates PASPA because it leaves state-regulated casinos and racetracks free to offer sports wagering to its patrons. The leagues maintain that anything short of a complete repeal of the state law ban on sports wagering contravenes PASPA. New Jersey has countered by arguing, among other things, that the leagues have "unclean hands" because they are embracing (and, indeed, investing in) daily fantasy sports, while using federal law as a "hammer" to block states from decriminalizing sports betting. But perhaps the better argument is that the leagues are "selectively enforcing" PASPA because they are fighting New Jersey's decriminalization efforts (which do not explicitly "authorize" sports betting), while giving a pass to those states that seek to expressly authorize activity that is plainly prohibited under the last sentence of PASPA. New Jersey could argue that the leagues are "estopped" from invoking PASPA against New Jersey because they are not enforcing PASPA against those states (such as Maryland) that have expressly legalized wagering based on the individual performance of athletes, activity which is plainly prohibited by PASPA. While this specific argument has not been made in the New Jersey sports betting case (which is set for oral argument before the Third Circuit on Tuesday), it may be viewed through the lens of "unclean hands," and, perhaps, may yet play a critical role in the outcome of the case.

Cleveland Marshall Brain Injury Symposium / CLE

The Cleveland Marshall College of Law hosts a symposium on Friday, March 20, 1-5pm, on "The Social, Ethical, and Legal Consequences of Sports-Related Brain Injuries" with four free C.L.E. hours.  I'm excited to be a participant.  More info here and here.

Latest developments in the Aaron Hernandez Trial

More key developments in the trial of former New England Patriots tight end Aaron Hernandez for the murder of Odin Lloyd. I have legal analyses of the trial for Sports Illustrated, including these recent pieces:

• Friday March 6: Aaron Hernandez murder trial could hinge on cigarette butt, bubblegum on Day 22 

• Wednesday March 4: Aaron Hernandez trial: Prosecution hurt by evidentiary ruling on Day 20 

• Tuesday March 3: Texts between Odin Lloyd, Aaron Hernandez the focus on Day 19 of trial  

• Monday March 2: Aaron Hernandez trial: Testimony of Lloyd's sister is key point of Day 18 

• Friday February 27: Hernandez trial: Text messages, phone records focus of Day 17  

4th Annual NYU Law Sports Law Colloquium

NYU Law will be hosting what looks to be a great sports law event on April 3, 2015. NBA commissioner Adam Silver will be the keynote speaker and our own Marc Edelman will be one of many top panelists. Check it out if you can.

New Sports Law Scholarship

Recently published scholarship includes:

Michael Atkinson, Note, Let them play: why Kentucky should enact a “Tebow bill” allowing homeschoolers to participate in public school sports, 43 JOURNAL OF LAW & EDUCATION 433 (2014)

Charles Bahlert, College football, electronic arts, sand the right of publicity: reality-mimicking run amok, 18 INTELLECTUAL PROPERTY LAW BULLETIN 149 (2014)

Mary Meghan Balkin, “Take me out to the ball game” — the contractual implications of Wrigley Field renovations on the Chicago Cubs’ contracts with rooftop seat holders, 15 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 211 (2014)

Michael S. Beck, Note, Fair or foul? Major League Baseball’s use of a tortious interference lawsuit as a means of investigation, 32 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 927 (2014)

Jonathan Becker, Comment, Stepping up to the plate: can the city of San Jose overcome baseball’s antitrust exemption?,  21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 431 (2014)

Brett E. Beter, Mann v. Louisiana High School Athletic Ass’n: the game plan for eluding high school eligibility rules, 21 SPORTS LAWYERS JOURNAL 297 (2014)

Kevin W. Brooks, “Physically ready to compete”: can players’ unions ban potential draftees based on their age?,  21 SPORTS LAWYERS JOURNAL 89 (2014)

Timothy F. Brown, Comment, Historic districts and the imagined community: a study of the impact of the Old Georgetown Act, 24 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 81(2014)

M. Tyler Brown, Comment, College athletics internships: the case for academic credit in college athletics, 63 AMERICAN UNIVERSITY LAW REVIEW 1855 (2014)

Nicholas Burkhart & Dylan Welsh, The legalization of sports gambling: an irreparable harm or the beginning of unprecedented growth?,  21 SPORTS LAWYERS JOURNAL 145 (2014)

@ErinBuzuvis, Title IX feminism, social justice, and NCAA reform, 2014 FREEDOM CENTER JOURNAL 101 

Clay Calvert et al., Gruesome images, shocking speech & harm to minors: judicial pushback against the First Amendment after Brown v. Entertainment Merchants Association?,  13 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL  127 (2014)

Kyle Cassidy, Comment, Reining in the use of performance enhancing drugs in horseracing: why a federal regulation is needed, 24 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 121 (2014)

Kelli Rodriguez Currie, National Collegiate Sports Counseling Center: providing student athletes with comprehensive advocacy throughout their collegiate career, 12 SEATTLE JOURNAL FOR SOCIAL JUSTICE 1129 (2014)

Ashton Daley, Comment, The fourth quarter of Title IX: forty years of misrepresentation and how to get back to equal, 5 FEDERAL COURTS LAW REVIEW 247 (2012)

Timothy Davis &  Christopher T, Hairston, Majoring in infractions: the evolution of the National Collegiate Athletic Association’s enforcement structure, 92 OREGON LAW REVIEW 979(2014)

William A. Drennan, Should organizations promoting dangerous sports enjoy maximum tax benefits?,  51 SANDIEGO LAW REVIEW 509 (2014)

@MarcEdelman, The NCAA’s “death penalty” sanction—reasonable self-governance or an illegal group boycott in disguise?, 18 LEWIS & CLARK LAW REVIEW 385 (2014)

@MarcEdelman, The future of amateurism after antitrust scrutiny: why a win for the plaintiffs in the NCAA Student-Athlete Name & Likeness Licensing Litigation will not lead to the demise of college sports, 92 OREGON LAW REVIEW 1019 (2014)

Hymie Elhai et al., Lockouts: Past, Present and Future (Panel), 24 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 7 (2014)

Brett McClain Epstein, Should the crime determine the extent of due process?: the National Collegiate Athletic Association followed such logic during the Penn State scandal, 21 SPORTS LAWYERS JOURNAL 169 (2014)

Elizabeth Etherton, Systematic negligence: the NCAA Concussion Management Plan and its limitations, 21 SPORTS LAWYERS JOURNAL 1 (2014)

Timothy Galáz, Comment, Bargaining for the next gay player: how can Jason Collins help to develop the National Basketball Association into a more inclusive workplace?, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 461 (2014)

Courtney Gesualdi, Note, Sports stadiums as public works projects: how to stop professional teams from exploiting taxpayers, 13 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL  281 (2014)

Stuart C. Gillespie, When the clock starts for pursuing past doping violations, 15 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 123 (2014)

Samantha Goewey, Comment, Taxing the gold: the tax treatment of Olympians, 24 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 179 (2014)

Margaret Greer, Note, Concussion crisis: regulating the NFL’s concussion policy under the Commerce Clause, 42 HASTINGS CONSTITUTIONAL LAW QUARTERLY 187 (2014) 

James Gross, Note, A delayed blitz on the NFL's blackout policy: a new approach to eliminating blackouts in publicly funded NFL stadiums, 82 GEORGE WASHINGTON LAW REVIEW 1194 (2014)

@NathanielGrow, Insolvent professional sports teams: a historical case study, 18 LEWIS & CLARK LAW REVIEW 345 (2014)

John Guccione, Note, Moving past a “pocket change” settlement: the threat of preemption and how the loss of chance doctrine can help NFL concussion plaintiffs prove causation, 22 JOURNAL OF LAW & POLICY 907 (2014)

Hosea H. Harvey, Refereeing the public health, 14 YALE JOURNAL OF HEALTH POLICY, LAW & ETHICS 66 (2014)

Yifei He, American Needle upon remand, 24 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 43 (2014)

@DarrenHeitner & Alan Wilmot, Score a touchdown, kiss your tattoo, and get sued for copyright infringement?, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 299 (2014)

Bill Heller, Conflicts of interest in the professional sports context: the ethical obligations of an in-house counsel,  24 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 29 (2014)

Roberto Hernandez & Kimberly Rios, Chicago Prize Hoops: guiding at-risk youth to build stronger communities, 7 DEPAUL JOURNAL FOR SOCIAL JUSTICE 271 (2014)

Samuel D. Hodge, Jr. & Shilpa Kadoo, A heads-up on traumatic brain injuries in sports, 17 JOURNAL OF HEALTH CARE LAW & POLICY 155 (2014)

Steffi Jose, Note, From Sport’s kangaroo court to Supreme Court: how the Court of Arbitration for Sport can legitimize anti-doping law, 20 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW 401 (2014)

Matt Kalthoff, Note, Out of sight, out of mind: confronting the legal, economic and social issues raised by Major League Baseball’s peculiar treatment of foreign talent, 29 CONNECTICUT JOURNAL OF INTERNATIONAL LAW 353 (2014)

Scott Kestenbaum, Note, Uniform alternative dispute resolution: the answer to preventing unscrupulous agent activity, 14 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 55 (2014)

Ryan M. Knight, Note, A football monopoly: the lack of parity and financial responsibility in today’s game, 20 ILSA JOURNAL OF INTERNATIONAL &COMPARATIVE LAW 107 (2013)

Lewis Kurlantzick & B.J. Pivonka, League ownership of teams, conflicts of interest, and personnel exchanges, 24 FORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT LAW JOURNAL 997 (2014)

Genevieve Lakier, Sport as speech, 16 UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW 1109 (2014)

Tara E. Langvardt, Reinforcing the commercial-noncommercial distinction: a framework for accommodating First Amendment interests in the right of publicity, 13 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 167 (2014)

Brandon Leibsohn, Road to recovery: the NCAA’s new enforcement process creates more legal headaches, 21 SPORTS LAWYERS JOURNAL 123 (2014)

Tom C.W. Lin, National pastime(s), reviewing John Sexton, Baseball as a Road to God: Seeing Beyond the Game, 55 BOSTON COLLEGE LAW REVIEW 1197 (2014)

Edan Lisovicz, Comment, Protecting home: are MLB’s television market protections reasonable under antitrust law?, 24 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 203 (2014)

Sarah Longhofer, Note, Contracting away sovereignty: the case of Brazil, FIFA, and the agreement for the right to host the 2014 World Cup, 23 TRANSATIONAL LAW & CONTEMPORARY PROBLEMS 147 (2014)

Paul M. Lopez et al., Valuation of the professional sports franchise in bankruptcy: it’s a whole differentball game, 18 LEWIS & CLARK LAW REVIEW 299 (2014)

Heather MacGillivray, Comment, Where is the awareness in concussion awareness: can concussed players really assume the risk in a concussed state?,  21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 529 (2014)

Nolan McCready, Former student-athletes' property and due process rights: the NCAA as state actor in the wake of the Penn State sanctions, 19 NEXUS 111 (2013-2014)

Jeffrey C. Meehan, Harvard or hardball? An examination of ethical issues faced by lawyer-agents, 21 SPORTS LAWYERS JOURNAL 45 (2014)

Matthew T. Mierswa, Note, Poor man wanna be rich, rich man wanna be king: the battle to legalize sports betting in the Garden State, 38 SETON HALL LEGISLATION JOURNAL 447 (2014) 

Matthew J. Mitten & Aaron Hernandez, The Sports Broadcasting Act of 1961: a comparative analysis of its effects on competitive balance in the NFL and NCAA Division I FBS football, 39 OHIO NORTHERN UNIVERSITY LAW REVIEW 745 (2013)

Matthew Mitten & Stephen F. Ross, A regulatory solution to better promote the educational values and economic sustainability of intercollegiate athletics, 92 OREGON LAW REVIEW 837(2014)

Rick Nolan, Comment, NCAA’s call to the bullpen: bring in Congress to save the college game with an antitrust exemption, 15 FLORIDA COASTAL LAW REVIEW 447 (2014)

Chad Nold, Olympic-sized opportunity: examining the IOC’s past neglect of human rights in host cities and the chance to encourage reform on a global scale, 11 LOYOLA UNIVERSITY CHICAGO INTERNATIONAL LAW REVIEW 161 (2014)

Nicolas A. Novy, “The emperor has no clothes”: the NCAA’s last chance as the middle man in college athletics, 21 SPORTS LAWYERS JOURNAL 227 (2014)

Melanie A. Orphanos, Note, NFL’s litigation skates onto the ice, 20 CONNECTICUT INSURANCE LAW JOURNAL 635(2013-2014) 

Kristine E. Ortiz, National Football Scouting, Inc. v. Rang: copyrightability and fair use of player performance grades, 21 SPORTS LAWYERS JOURNAL 281 (2014)

Joshua M. Peles, Note, The most expensive seats in the house: how sports franchises and sports networks profit at fans’ expense, 13 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL  295 (2014)

Brian L. Porto, What recruiters don’t tell athletes and athletes don’t think to ask: a critique of NCAA’s nonacademic eligibility rules, 13 VIRGINIA SPORTS & ENTERTAINMENT LAWJOURNAL  240 (2014)

Brian L. Porto, New rules for an old game: recent changes to the NCAA enforcement process and some suggestions for the future, 92 OREGON LAW REVIEW 1057 (2014)

Josephine (Jo) R. Potutoet al., What’s in a name? The collegiate mark, the collegiate model, and the treatment of student athletes, 92 OREGON LAW REVIEW 879 (2014)

K. Adam Pretty, Note, Dropping the ball: the failure of the NCAA to address concussions in college football, 89 NOTRE DAME LAW REVIEW 2359 (2014)

Jennifer Pusch, Comment, Urban struggles: an analysis of Title IX and urban high school athletic opportunities for girls, 29 WISCONSIN JOURNAL OF LAW, GENDER & SOCIETY 317 2014)

Brittany K. Puzey, Note, Title IX and baseball: how the contact sports exemption denies women equal opportunity to America’s pastime, 14 NEVADA LAW JOURNAL 1000 (2014)

David Stephen Rivard, Jr., Note, Through the eyes of the spectator: solving personal streaming of live sports under the current copyright regime through federal misappropriation, 13 APPALACHIAN JOURNAL OF LAW 197 (2014)

Christian Schmed, Comment, Official timeout on the field: critics have thrown a red flag and are challenging the NFL’s tax-exempt status, calling for it to be revoked, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 577 (2014)

Arielle Simkins, Comment, Illegal substitution: did the NFL replacement referees create an abnormally dangerous working condition for players under federal law?, 24 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 263 (2014)

Susan L. Smith & Miriam Shuchman, Sickle cell screening of college athletes: legal obligations fulfilled, moral obligations lacking, 92 OREGON LAW REVIEW 1127 (2014)

@jeffstanden, The next labor market in college sports, 92 OREGON LAW REVIEW 1093 (2014)

@jeffstanden, The demise of the African American baseball player, 18 LEWIS & CLARK LAW REVIEW 421 (2014)

Kerri Lynn Stone, Lessons from the Dolphins/Richie Incognito saga, 14 NEVADA LAW JOURNAL 723 (2014)

Charles A. Sullivan, The Buzzer sounds for the Journal of Sports & Entertainment Law, 24 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 1 (2014)

Graham C. Talley, Legislative Note, Hundred-dollar handshakes, million-dollar lawsuits: Act 1324—providing a civil right of action by Arkansas universities for losses resulting from NCAA violations, 67 ARKANSAS LAW REVIEW 481 (2014)

Michael Telis, Note, Playing through the haze: the NFL concussion litigation and Section 301 preemption, 102 GEORGETOWN LAW JOURNAL 1841 (2014)

Jeffrey J. Tiedeman, MLB international player draft: home run or headache?, 21 SPORTS LAWYERS JOURNAL 255 (2014)

Tayler W. Tibbitts, Sports consumers: ticket-holding fans’ rights in light of “Spursgate,”  21 SPORTS LAWYERS JOURNAL 201 (2014)

Katherine D. Tohanczyn, Case Note, Fumble!: how the North Carolina courts dropped the ball in McAdoo v, University of North Carolina at Chapel Hill, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 385 (2014)

J. Russell VerSteeg, A case for a bill recognizing primary assumption of risk as limiting liability for persons and providers who take part in sports & recreational activities, 36 UNIVERSITY OF ARKANSAS LITTLE ROCK LAW REVIEW 57 (2013)

Anne Villella & T.K. Keen, Into the wild: can regulation of wilderness recreational activities improve safety and reduce search and rescue incidents?, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 323 (2014)

Howard M. Wasserman, The economics of the Infield Fly Rule, 2013 UTAH LAW REVIEW 479

Joshua D. Winneker et al., Who let the dogs out: should a stadium owner be held liable for injuries sustained from a mascot’s errant hot dog toss?,  21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 369(2014)