Sports Law Blog
All things legal relating
to the sports world...
Friday, May 24, 2013
"Sport as Speech" and Non-Sport as Speech
I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.
Two further thoughts on the paper.
1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is yet another reason for figuring out what qualifies as sport.
2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?
Wednesday, May 22, 2013
New sports law scholarship -- Pt. 1
I'm finally getting caught up with recently published scholarship, and since it's been a while since I've posted these updates, I'm breaking up the list into parts over the next few days:
Tara M. Allport, Comment, This is hardcore: why the court should have granted a writ of mandamus compelling mandatory condom use to decrease transmission of HIV and STDs in the adult film industry, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 655 (2012)
Phoebe A. Amberg, Comment, Protecting kids’ melons: potential liability and enforcement issues with youth concussion laws, 23 MARQUETTE SPORTS LAW REVIEW171 (2012)
Brenda L. Ambrosius, Note, Title IX: creating unequal equality through application of the proportionality standard in collegiate athletics, 46 VALPARAISO UNIVERSITY LAW REVIEW 557 (2012)
Trisha Ananiades, Penalty on the field: creating a NCAA sexual assault policy, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 463 (2012)
Paul M. Anderson, Title IX at Forty: an introduction and historical review of forty legal developments that shaped gender equity law, 22 MARQUETTE SPORTS LAW REVIEW 325 (2012)
Hart v. Electronic Arts: First Amendment Does Not Trump the Right of Publicity
In adopting and applying the transformative use test for balancing the First Amendment against the right of publicity, yesterday the Third Circuit ruled in Hart v. Electronic Arts that the First Amendment does NOT trump college players' right of publicity in the context of video game use of their likenesses. The court's 62-page opinion is here and it is a fascinating read for those of you who, like me, have an interest in right of publicity law.
Courts that have rejected professional athletes' right of publicity claims in various contexts (such as fantasy league use and parody trading card use) have sometimes highlighted the fact that "they are already handsomely compensated." While in my view this has no relevance in evaluating a professional athlete's right of publicity claim, the Third Circuit in a footnote (pg. 23 of the opinion) points out that it is obviously inapplicable to right of publicity cases involving amateur athletes:
We reject as inapplicable in this case the suggestion that those who play organized sports are not significantly damaged by appropriation of their likeness because "players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsement and sponsorship arrangements." (citations omitted) If anything, the policy considerations in this case weigh in favor of [the athletes]. As we have already noted, intercollegiate athletes are forbidden from capitalizing on their fame while in school.
The right of publicity claim in the O'Bannon/Keller consolidated case is pending appeal on the opposite side of the country in the Ninth Circuit. The district court in that case has already ruled that the First Amendment does not trump the players' right of publicity in the context of video game use. It would surprise me if the Ninth Circuit does not ultimately uphold the district court's ruling. But even if the Ninth Circuit were to reverse the district court, it would result in a split of circuits on this question. The bottom line, therefore, is that this is a highly significant and ground-breaking decision by the Third Circuit in favor of college players.
Monday, May 20, 2013
Warren Zola article in Boston Globe Magazine
Warren Zola has an outstanding and provocative piece in this past Sunday's Boston Globe Magazine arguing that college athletes should be paid. Be sure to check it out.
Saturday, May 18, 2013
"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part V
Sports Law Blog is publishing a 5-part series on the practice of sports law. The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington. These posts will appear on Saturdays. These posts appear on Saturdays. First post can be read at this link, the second at this link, the third at this link, and the fourth at this link. Here is the fifth:
"Pros or Cons" Thoughts For The Modern "Sports Attorney"
Authored by Jason A. Davis, Esq. and Peter R. Jarvis, Esq. (all rights reserved)
Tuesday, May 14, 2013
Sports Illustrated: The 15 Most Influential Sports Agents
15 Most Influential Sports Agents.
Here's my entry for Scott Boras, #2:
2. Scott Boras
Boras Corporation President