Volume 12, Number 2 Spring 2021 Contents ARTICLES Chopped & Screwed: Hip Hop from Cultural Expression to a Means of Criminal Enforcement Taifha Natalee Alexander............................................ 211 It’s Worth a Shot: Can Sports Combat Racism in the United States? David A. Grenardo ................................................ 237 A Defense of Public Financing in a Time of Economic Hardship, Social Unrest, and Athlete Advocacy Ryan Gribbin-Burket ............................................... 319 #IAMAROBOT: Is it Time for the Federal Trade Commission to Rethink its Approach to Virtual Influencers in Sports, Entertainment, and the Broader Market? Jim Masteralexis, Steve McKelvey, and Keevan Statz ...................... 353 Harvard Journal of Sports & Entertainment Law Student Journals Office, Harvard Law School 1541 Massachusetts Avenue Cambridge, MA 02138 (617) 495-3146; [email protected] www.harvardjsel.com U.S. ISSN 2153-1323 The Harvard Journal of Sports & Entertainment Law is published semiannually by Harvard Law School students. Submissions: The Harvard Journal of Sports and Entertainment Law welcomes articles from professors, practitioners, and students of the sports and entertainment industries, as well as other related disciplines. Submissions should not exceed 25,000 words, including footnotes. All manuscripts should be submitted in English with both text and footnotes typed and double-spaced. Footnotes must conform with The Bluebook: A Uniform System of Citation (21st ed.), and authors should be prepared to supply any cited sources upon request. All manu- scripts submitted become the property of the JSEL and will not be returned to the author. The JSEL strongly prefers electronic submissions through the Scholastica online submission system. Submissions may also be sent via email to [email protected] or in hard copy to the address above. In addition to the manuscript, authors must include an abstract of not more than 250 words, as well as a cover letter and resume or CV. Authors also must ensure that their submissions include a direct e-mail address and phone number at which they can be reached throughout the review period. Permission to Copy: The articles in this issue may be reproduced and distributed, in whole or in part, by nonprofit institutions for educational purposes including distribution to stu- dents, provided that the copies are distributed at or below cost and identify the author, the Harvard Journal of Sports & Entertainment Law, the volume, the number of the first page, and the year of the article’s publication. Volume 12 of the Harvard Journal of Sports and Entertainment Law is generously spon- sored by: Premium Partners General Partners Volume 12, Number 2 Spring 2021 EDITORIAL BOARD Editors in Chief Madison Martin Will Lindsey Senior Managing Editor Ryan Gribbin-Burket Managing Editor - Print Managing Editor – Online Eli Nachmany Alex Blutman Executive Editor, Executive Editor, Executive Editor, Submissions Production Online Content Dixie Morrison Erin Savoie Larson Ishii Senior Articles Editors Logan Duffy Marc Francis Becky Hval Kit Metoyer Cara Mund Chris Zheng Submissions Chair Online Content Chairs John Ellis Buddy Bardenwerper Marvellous Iheukwumere Ali Nayfeh Will Walker Submissions Committee Ethan Borrasso Elizabeth Duncan Zachary Tauscher Editors Alexander Amir Amanda Bello Jhanelle Bisasor Ethan Borrasso Elana Confino-Pinzon David Dapaah-Afriyie Robb Dehney Brian Dezurick Elizabeth Duncan Sebastian Edin Kimberly Everett Ethan Harper Landon Harris Randon Herrera Jordan Hittesdorf Mina Kim Jiha Min Harley Moyer Max Novak Connor Oniki Niko Paladino Tim Pierret Anastasia Pyrinis Alexander Rabinowitz Andrew Rodriguez Emma Scott John Sedarous Lauren Spiwak Asiya Jaffer Zach Tascher Kitty Lan Juliana Stone Online Content Contributors Anastasia Pyrinis Alex Blutman Marvellous Iheukwumere Eli Nachmany Ali Nayfeh Connor Oniki Hayes Rule Alexander Amir Will Walker Copyright © 2021 by the President and Fellows of Harvard College. Dear Readers, I am Professor Peter Carfagna ’79, the Harvard Law School Faculty Advisor to the Harvard Journal of Sports and Entertainment Law (JSEL). JSEL had another tremendous year, and I am incredibly proud to write the preface to Volume 12. In the Special Issue published in August, JSEL published twelve essays on the issue of name, image, and likeness in college sports. The legal landscape for rights of publicity in college sports is rapidly evolving as many states have passed and introduced NIL laws and the federal government has made efforts to develop the structure for what national NIL legislation will look like, and these essays house welcome insights into potential issues and solutions. A special thank you goes to all the authors and editors who contributed to this special edition, including Steven Bank, Charles Grantham, Jeff Kessler, David L. Greenspan, Alicia Jessop, Darren Heitner, Nic Mayne, Max Forer, Tom O’Connell, Jeffrey F. Brown, James Bo Pearl, Jeremy Salinger, Annie Alvarado, Michael Feblowitz, Marvellous Iheukwumere, Thaddeus Kennedy, and Eli Nachmany. In the Fall Issue, JSEL published five excellent articles. • Authors Jeffrey F. Brown, James Bo Pearl, Jeremy Salinger, and Annie Alvarado expertly crafted A Proposal for Group Licensing of College Athlete NILs, in which they explore the economic efficiencies of group licensing, and provide a useful licensing entity framework for the NCAA and college-athletes. • Professor Nanci K. Carr’s One, Two, Sort the Shoe; Three, Four, Win Some More: The Rhyme and Reason of Phil Ivey’s Advantage Play at the Borgata an excellent case study on the Phil Ivey and Cheung Yin “Kelly” Sun Borgata saga that ultimately ended in a settlement. Her critical analysis of the casino’s legal argument holds broad implications for what types of play can and cannot be regulated through use of the courts. • Christopher Deubert and Aaron Caputo’s Improving the Game: The Football Players Health Study at Harvard University and the 2020 NFL-NFLPA Collective Bargaining Agreement is a deep dive into the content of the Harvard-led study and how its impact reflected in the 2020 CBA. They carefully highlight the specialist positions and programs created by the NFL and NFLPA and the gradual progression on NFL player health issues, and build upon Deubert’s past monumental contributions to JSEL. • Professor Stacey M. Lantagne’s Building a Better Mousetrap: Blocking Disney’s Imperial Copyright Strategies grapples with Disney’s use of public domain works, potential copyright misuse, and how more generally public domain ought to act as a balance to copyright monopolies. Her detailed account of Disney’s ever-expanding copyright is exciting entertainment scholarship that offers necessary critiques. • Finally, Professor Ray Yasser and Carter Fox’s Third-Party Payments: A Reasonable Solution to the Legal Quandary Surrounding Paying College Athletes explores another potential solution to the NIL controversy, and explores implications for this solution and other proposed alternatives. In the Spring issue, JSEL published four more articles: • Professor David Grenardo’s It’s Worth A Shot: Can Sports Combat Racism in the United States is a timely and thought-provoking piece of scholarship on sports as a reflection of society, racism’s role in society and in the sports industry, and solutions to combat racism. He masterfully translates his analysis to sports, and explicates the legal world’s significant role in both the problem and the potential solutions. • Ryan Gribbin-Burket’s A Defense of Public Financing in a Time of Economic Hardship, Social Unrest, and Athlete Advocacy provides a refreshing new look at public financing through not only an economic, but social and cultural lenses as well. While acknowledging the shortcomings of past public finance deals, it successfully seeks to encourage public officials to continue pursuing such opportunities. Reimagining a sports stadium as something more than just an infrastructure project or place to play games offers a new way to assess all of the benefits and public good of public financing. • Professor Jim Masteralexis, Steve McKelvey, and Keevan Statz’s #IAmARobot: Is it Time for the Federal Trade Commission to Rethink Its Approach to Virtual Influencers in Sports, Entertainment, and the Broader Market is a piece of cutting-edge scholarship on the usage of CGI- generated celebrity influencers and FTC’s efforts to rapidly evolve their regulations to catch up. He further succinctly critiques the regulations as applied and presents interesting questions on whether they should be applicable at all. • Assistant Dean Taifha Alexander’s Chopped & Screwed: Hip Hop from Cultural Expression to a Means of Criminal Enforcement, is a piece centered on criminal law and procedure and its utilization of hip hop and rap music in prosecuting criminal trials. She skillfully intertwines discussion of criminal procedure and cultural forces in what is one of the few criminal law-focused pieces we have received since our inception Moreover, the JSEL Online team worked throughout the academic year to publish a number of highlights and short articles with updates on the latest legal news in sports and entertainment, covering topics such as nonfungible tokens in sports, deepfake celebrity videos and their legal implications, and sports gambling controversies. I thank the students involved in JSEL, who worked tirelessly to ensure its success throughout what was an incredibly difficult year in many ways.