Global Impact of Sports and the Role Lawyers Play Date: April 1, 2017 Time: 2:15-3:30 Moderator

Title: Global Impact of Sports and The Role Lawyers Play Date: April 1, 2017 Time: 2:15-3:30 Moderator

Christina Guerola Sarchio, Partner, Orrick, Herrington & Sutcliffe, LLP

Panelists

David Foster Legal Counsel, National Basketball Players Association

Terri Jackson, Director of Operations, Women's National Basketball Players Association

DeMaurice Smith Executive Director, National Football Players Association Tab 1 – Biographies or CVs David Foster | LinkedIn Page 1 of 3

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David Foster 3rd Deputy General Counsel, National Basketball Players Association Greater New York City Area Law Practice

Current National Basketball Players Association (NBPA), United States Attorney's Office, District of New Jersey Previous Fordham Law School, Queens County District Attorneys Office Education Fordham University School of Law 500+ connections

https://www.linkedin.com/in/david-foster-a05a63

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Deputy General Counsel Could not process this client request HTTP method request for URL. Please double-check the URL (address) you used, or contact us if you feel you have reached this page in error. National Basketball Players Association (NBPA) December 2015 – Present (1 year 2 months) | Greater New York City Area Click the “Back” button on your browser or

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Assistant District Attorney Ramya Ravindran Queens County District Attorneys Office Deputy General Counsel at National August 2004 – August 2009 (5 years 1 month) Basketball Players Association (NBPA)

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NFL Players Association (/)

About NFLPA

DEMAURICE SMITH

DeMaurice Fitzgerald Smith is the Executive Director of the National Football League Players' Association (http://en.wikipedia.org/wiki/National_Football_League_Players% 27_Association) (NFLPA). He was elected unanimously by a board of active player representatives on March 16, 2009 and re-elected unanimously to a second term on March 29, 2012. ESPN opined that Smith had assumed the toughest job in sports by succeeding the late Gene Upshaw and heading into the most contentious and public labor/management battle in sports history.

On August 4, 2011, Smith signed a 10-year Collective Bargaining Agreement with NFL management, leading the Players through the owners’ 132-day lockout. Smith and his team employed a novel multi-faceted strategy that combined a successful legal attack on the NFL’s lockout funds, a federal and local legislative agenda, creative use of social media and the unprecedented securing of the first employee anti-lockout insurance policy. The new CBA codifies new health and safety protocols for Players, achieved longer off-seasons, significantly reduces the amount of contact during practices, provides for unannounced inspections of training camps, creates the first compliance and accountability structure for NFL medical personnel, and provides the Players’ with their highest share of TV contract revenues in history.

Prior to his post at the NFLPA, Smith was an Assistant United States Attorney in the District of Columbia and was Counsel to then Deputy Attorney General Eric H. Holder, Jr. He was awarded the US Attorney’s Office highest honor for courtroom advocacy and the Department of Justice’s highest honor by US Attorney General Janet W. Reno. Smith served as a Partner in firms of Latham & Watkins, LLP and Patton Boggs, LLP, in Washington, D.C. where he represented corporations, boards of directors and senior executives in civil and criminal matters.

Smith has been awarded the Eleanor Roosevelt Human Rights Award, the Keeper of the Dream Award, by the Action Network Alliance, the City of Justice Award by the Los Angeles Alliance for a New Economy and was inducted into the Ohio Foundation of Independent Colleges’ Hall of Excellence. He serves on the Board of Directors for ULLICO; The Board of Directors for the US Congressional Award; and The Board of Advisors for the Office for Access and Advancement for Public Black Universities. Smith Chairs the Annual Georgetown University Lombardi Comprehensive Cancer Center Fundraising Dinner and has been named one of the top 10 most influential executives in sports.

He is a 1989 graduate of the University of Virginia School of Law and a 1985 graduate of Cedarville University. Smith is on the Faculty of the National Trial Advocacy College in Charlottesville, Virginia; Executive in Residence and the Darden Business School at the University of Virginia, and is a guest lecturer at Georgetown University, Columbia University, Harvard University, George Washington University, and the University of Virginia School of Law. He has also been a guest speaker at the New York Stock Exchange, Commencement speaker for the University of Maryland and for the Howard University School of Law (2012).

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"We, The National Football League Players Association … Pay homage to our predecessors for their courage, sacrifice, and vision; … Pledge to preserve and enhance the democratic involvement of our members; … Confirm our willingness to do whatever is necessary for the betterment of our membership — To preserve our gains and achieve those goals not yet attained." AFFILIATES: Hall of Fame (http://www.profootballhof.com/) My Goalline (https://www.mygoalline.com/) NFL.com (http://www.nfl.com/) NFL Auction (http://www.nflauction.nfl.com/) Off the Field (http://www.offthefieldpwa.com/) NFLPA Collegiate Bowl (http://collegiate.nflpa.com/) PARTNERS:

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https://www.nflpa.com/about/nflpa-officers/executive-director 1/19/2017 Christina Guerola Sarchio Partner Washington, D.C., New York T +1 202 339 8687 E [email protected] ...... Christina Guerola Sarchio, a member of Orrick's Board of Directors and chair of the Class Action Strike Team, has received Practice Areas ● Complex Litigation & national recognition for both her legal skills Dispute Resolution and business acumen. Christina, a former ● Class Action Defense prosecutor, concentrates her practice on ● White Collar general business litigation, class actions, ● Cybersecurity & Data Privacy and white collar criminal defense matters.

● Antitrust & Competition Christina’s representation spans several industries, including oil and gas, financial, pharmaceutical, transportation, consumer Honors products, and sports.

● 2016 Benchmark Described as "charming in person, deadly in the courtroom," Litigation Local Litigation Christina has successfully tried more than a dozen jury trials in Star - District of federal and state courts, and has negotiated with a number of Columbia agencies, including the SEC, FDA, DOJ, and various U.S. Attorney Offices. Her cases have received widespread media attention in ● 2015 Military Spouse JD The Wall Street Journal, The New York Times and FOX News, Network Professional among others. Excellence Award Recently named one of the Top 50 Women Lawyers in D.C., ● 2015 Benchmark Christina has received a number of awards, been profiled by Litigation, Local Law360, Powerful Latinas and the Minority Corporate Counsel Litigation Star - District Association, and has been recognized by numerous publications. Christina has been named as one of "20 Elite Women" by Hispanic of Columbia Business Magazine, a "Top Washington Lawyer" by the ● 2015 Washington, D.C. Washington Business Journal, and one of the "100 Most Influential Hispanics" by Hispanic Business Magazine. SuperLawyers, Business Litigation Christina serves as an arbitrator for the American Arbitration Association. She has taught as an adjunct professor at The George ● 2014 Top 50 Women Washington University Law School, and frequently provides on-air Lawyers, Washington legal commentary. D.C. Christina served as a prosecutor with the Manhattan District ● 2014 Washington, D.C., Attorney’s office. Prior to joining Orrick, Christina co-chaired the SuperLawyers, Business Government Investigations and Litigation practice group for Patton Litigation Boggs. Christina clerked for the U.S. Attorney’s Office for D.C. (Public Integrity) and DOJ (Civil Division). ● 2013 Washington, D.C., SuperLawyers, Business Representative Engagements

Orrick Biography: Christina Guerola Sarchio 1 Litigation Christina acted as lead trial counsel in the following recent ● Named one of "20 Elite engagements. Women" by Hispanic Business Advice and Litigation Business Magazine

● Hispanic National Bar  Secured order dismissing class action pursuant to mandatory arbitration provision for Solar City in Nevada state court (2016). Association, 2012 Pro  Secured order dismissing action pursuant to mandatory Bono Award arbitration provision for Ooma in consumer suit in New Jersey ● The George Washington state court (2016). University's Belva  Advising various bondholders on litigation options against the Commonwealth of Puerto Rico in light of its financial challenges Lockwood 2008 Woman (2014-present). of the Year  Advising the Women's National Basketball Association on legal ● Selected as one of and business strategy (2014-present).  Secured dismissal of D.C. Attorney General consumer protection 2006's "100 Most complaint against ExxonMobil (2014). Influential" Hispanics by  Defending the National Basketball Players Association in Hispanic Business litigation against its former Executive Director, Billy Hunter, and Magazine advising on legal and business matters (2012-present).  Prevailed on motion to dismiss in antitrust suit against ● Hispanic Bar Association ExxonMobil as lead trial counsel (Diaz Aviation Corp v. Esso et of D.C., 2008 Hugh al, 2011 US Dist. LEXIS 4651, D Pr 2011). Johnson Community  Favorably resolved breach of contract litigation dispute for U- Service Award Haul (2010).  Counseled the National Football League Players Association on ● Chosen as "Young Gun" legal strategy (2010-present). in Washington Business  Lead trial counsel for ExxonMobil in five consolidated cases Journal's 2007 Top brought by more than 100 dealers to enjoin sale and divestiture Washington Lawyers of gas station business in Puerto Rico and won after bench trial (Santiago-Sepulveda v. Esso, 582 F.Supp. 2d 154, D Pr 2008). Education Class Actions ● J.D., The George Washington University  Representing Apple in class action lawsuit alleging violations of New Jersey statute (ND Cal 2016). Law School, 1995  Won dismissal with prejudice of TCPA class action lawsuit on ● B.A., Cornell University, behalf of Life360 (ND Cal 2016). 1991  Won jury trial for the defense in false advertising and consumer fraud class action against OTC drug manufacturer after one Memberships week trial (CD Cal 2016).  Ninth Circuit affirmed dismissal of false advertisting class action ● Fellow, Litigation lawsuit against Joe Theismann, while remanding case against Counsel of America co-defendant (2016). (2014-present)  Secured dismissal of TCPA class action for Ooma (ND Cal 2016). ● American Bar  Secured dismissal with prejudice of class action alleging Association, 1998- violations of computer and wiretapping laws for Johnson present Controls (DDC 2015).  Secured dismissal for Whole Foods of nationwide class action ● Hispanic National Bar lawsuit alleging consumer fraud (SD Fla 2015). Association, 2000-  Successfully defended on appeal nationwide class action present settlement over objector's claim of collusion and overbroad release (Gallucci v. Gonzales et al, No.12-57081, 9th Cir 2015). ● The District of Columbia  Prevailed on motion to dismiss class action complaint against Bar Board of Governors, former Washington Redskins quarterback Joe Theismann

Orrick Biography: Christina Guerola Sarchio 2 2007-2010 alleging false advertising of his celebrity endorsement of OTC supplement (Luman v. Theismann et al, No.13-cv-00656, ED Cal ● Stuyvesant High School 2014). National Advisory Board  Defeated motion to certify class against OTC drug (CD Cal 2014). ● Military Spouse JD  Secured Rule 68 judgment against class action representative Network and dismissal of complaint (ND Ill 2013). ● Virginia Hispanic  Precedent-setting summary judgment victory precluding ability of Chamber of Commerce consumer class to seek injunctive relief, cited in over 50 decisions (Delarosa v. Boiron, Inc., 275 F.R.D. 582, CD Cal ● Women's White Collar 2011). Defense Association  Negotiated favorable settlement terms on behalf of opt-out plaintiffs in antitrust class action (ND Ill 2010). ● National Association of  Early resolution of various class action demands, including for Women Judges TCPA, UCL, CLRA, and other state and federal claims. Resource Board White Collar

 Representing financial institution in SEC investigation (2016).  Conducted investigation for company subject to extortion, referred matter for federal prosecution resulting in indictments (2014-16).  Conducted internal investigation of cybercrime, referred matter for federal prosecution.  Led internal investigation and favorably resolved FCPA matter in Mexico for Fortune 250 company.  Successfully defended two members of Congress investigated by the Office of Congressional Ethics.  Negotiated favorable resolution with the FDA resulting in no enforcement action brought against a university hospital for using non FDA-approved medical devices.  Represented a foreign company and its U.S. subsidiary in several international antitrust price-fixing investigations and negotiated plea agreements with DOJ.  Defended company against liability for insider trading by company officer.  Advised Allen Stanford in SEC and DOJ actions and argued at his detention hearing (US v. Stanford, EDVA (Richmond) 2009).  Lead trial counsel in an “infomercial fraud” case for individual facing conspiracy, mail and wire fraud charges and won dismissal after four-week jury trial (US v. Woolf/ Gengler, 2009 US Dist. Lexis 98857, EDVA 2009). Publications ● "Orrick, Weil, Winston & Strawn Score for NBA Players," The American Lawyer (Sept. 29, 2015)

● "NBA Union Can't Block Former Exec's $10.5M Contract Suit," Law360 (Aug. 11, 2015)

● "High Court Will Clarify Standing Issues in Class Actions," Law360 (Apr. 28, 2015)

● “Taking Control in Class Actions,” New York Law Journal (February 2013)

● "US Antitrust Law: Extraterritorial Reach," Practical Law

Orrick Biography: Christina Guerola Sarchio 3 Institute (November 2008)

● "Overview of US Antitrust Law," Practical Law Institute (Fall 2007)

● "Evidentiary Requirements under the Americans with Disabilities Act," Science on the Witness Stand (2001)

Speeches and Programs ● "Don't Say That! Defending High Profile Cases and Managing the Media," HNBA Annual Convention, September 2016

● "Is It Rougher on the Field or in the Courtroom?," Lawyers for Civil Justice Membership Meeting, December 3, 2015.

● "Homeopathic Medicine & Advertising: An FTC Workshop," Panelist, September 21, 2015

● "The Trial of Lysistrata," Presented by the Shakespeare Theatre Company Bard Association, November 24, 2014

● "Class Action Strategies," Speaker, Bridgeport 2014 Class Action Litigation & Management Conference, April 11, 2014

● DC Bar Program, "Lean In, Lean Out: Managing A Successful Legal Career in Your Own Way," April 1, 2014

● "Women as Rainmakers," Panelist, HNBA Corporate Counsel Conference, March 20, 2014

● “Focus on the Future,” Panelist, Panel discussion presented by Northrop Grumman, in collaboration with The George Washington University Law School, March 11, 2014

● “Class Action Settlements: Rule 68 Offers of Judgment and Other Strategic Tools,” Speaker, Strafford CLE Webinar, October 16, 2013

● “Class Actions,” Speaker, Association of Corporate Counsel (ACC): 9th Annual Nutrition Law Symposium, September 18, 2013

● "Federal Judicial Clerkship Panel For Law Students & Junior Attorneys of Color," Moderator, PALS, July 13, 2013.

● “Novel Strategies for Dealing with Class Objectors,” Speaker, Bridgeport Continuing Education: Consumer Class Actions 2013, January 10, 2013

● "Oh, the places you'll go; and how to get there!," Moderator, HNBA Corporate Counsel Conference, March 29, 2012

● “Wrongful Mortgage Foreclosure: Lender and Loan Servicer Strategies in Responding to Recent Litigation Trends, State AG Enforcement and Emerging Regulatory Initiatives,” Strafford Webinar, July 19, 2011

● "Whistleblowers: The Government's Not So Secret Weapon,"

Orrick Biography: Christina Guerola Sarchio 4 National Association of Criminal Defense Lawyers (NACDL) 7th Annual White Collar Conference, September 2011

● "Using Advanced Analytics to Govern Better," Personal Democracy Forum, June 6, 2011

● "Government Investigations: Navigating the Waters from the Investigation Stage Through Trial," 6th Annual Leadership Institute for Women of Color Attorneys, March 30, 2011

● “Lender Liability for Wrongful Mortgage Foreclosure,” Strafford Webinar, November 30, 2010

● "Legal Ethics," National Association of Criminal Defense Lawyers Conference, November 2010

● "The Challenges and Opportunities of Acquiring and Selling Companies in Emerging Countries," HNBA Annual Conference, September 2010

● "Breaking Through the Glass Ceiling: Solutions to Women's Attrition in the Legal Profession," New England School of Law, March 30, 2009

● "Have You Seen the Attorney-Client Privilege?" Moderator, MCCA, March 2009

● "Detecting Illegal Behavior within the Company," ABA Antitrust Spring Conference, March 2009

● "Whistleblowers in International Investigations," ABA Antitrust Webinar, June 2008

● "Legal Ethics in the Wake of Akzo-Nobel," Moderator, ABA Antitrust Spring Conference, March 2008

● "In-House Counsel: Is there a bull's eye on your briefcase?" MCCA CLE Conference, March 2007

● "Technology in the Courtroom," HNBA CLE Conference, September 2006

Languages ● Spanish

Admissions ● District of Columbia

● New Jersey

● New York

● Virginia

Court Admissions ● Supreme Court of the United States

● United States Courts of Appeals | Fourth Circuit

Orrick Biography: Christina Guerola Sarchio 5 ● United States Courts of Appeals | Seventh Circuit

● United States Courts of Appeals | Ninth Circuit

● United States Courts of Appeals | Eleventh Circuit

● United States District Courts | Northern District of New York

● United States District Courts | District of Columbia

● United States District Courts | District of New Jersey

● United States District Courts | Southern District of New York

● United States District Courts | Eastern District of Virginia

Orrick Biography: Christina Guerola Sarchio 6 TERRI CARMICHAEL JACKSON NAMED DIRECTOR OF OPERATIONS OF THE WNBPA

MAY 06, 2016

The Women’s National Basketball Players Association Executive Committee announced today that Terri Carmichael Jackson has been named Director of Operations. In her new role, Jackson will be responsible for WNBPA board relations, executive leadership and management, financial governance, and stakeholder outreach.

“We are excited to welcome Terri to the WNBPA team,” said Executive Committee President Tamika Catchings. “She brings extraordinary leadership skills and a wealth of knowledge that will be essential in continuing the growth of the WNBPA.”

Jackson comes to the WNBPA after spending the last four years with the National Collegiate Athletic Association (NCAA) in Indianapolis, most recently serving as the Director of Law, Policy and Governance. In this role, she was the primary contact and staff support to university chancellors, presidents and athletics administrators who comprised the Association’s highest governing body, the NCAA Board of Governors. Jackson also worked with all divisions of governance (Divisions I, II, III) and association-wide committees to ensure consistency of process and strategic coordination in legislative and policy matters.

Jackson also served as the Associate Director for the NCAA’s Office of the Committees on Infractions (COI), where she led the training for members of the Division I and II Committees on Infractions on NCAA enforcement reform. In addition, she was responsible for spearheading the Division I COI membership expansion and outreach initiatives during the first phase of expansion.

Prior to her time at the NCAA, Jackson served as Legal Counsel for Athletics and, later, Assistant General Counsel and FOIA Officer for the University of the District of Columbia (UDC). At UDC, she worked closely with NCAA Athletic Department senior staff on Title IX Compliance, student-athlete welfare, NCAA rules education and corporate sponsorship agreements.

Jackson has also taught courses on Women in Sport at American University, Trinity University, University of the Incarnate Word and Tulane University.

A native of Metuchen, New Jersey, Jackson earned her Juris Doctor from Georgetown University Law Center and her Bachelor of Arts from Georgetown University. Jackson and her husband, Jaren, have one son, Jaren Jr.

Terri Jackson Experienced and Passionate Professional in Education, Sports and Law Washington D.C. Metro Area

Background Summary

I am the former Assistant General Counsel for Athletics, Student Affairs, and Business Services at the University of the District of Columbia. I served in this capacity for four years.

Specific Skills and Accomplishments ♣ Work on daily operations, strategies and objectives of the University with particular emphasis on the Athletic Department, the Office of Student Affairs, and the Office of Facilities & Real Estate. ♣ Assemble key stakeholders and develop project managing plans and corrective actions to address areas of concern. Served as project manager to address NCAA infractions. Monitored University’s progress during initial penalty period and authored University’s probationary report and peer review. ♣ Interactions with staff at all levels of the University, to include dotted line reports, has helped me grow and develop as a future manager. With my teaching skill set I am able to mobilize others toward action and I take the time to help problem solve in all areas (academic or administration). ♣ Negotiate and draft contracts, provide input, and help evaluate deals in the best interests of the University. Co- authored University’s contract review guidelines. Advise senior staff on DC contracting and procurement rules; preparation of general business and sole source justification; and ratification procedures. ♣ Report and present updates to University President, General Counsel, Executive Cabinet and Members of the Board of Trustees, upon request. ♣ Work closely with the VP of Communications to coordinate responses to media requests. Respond to email/phone requests for information from press/media personnel. ♣ Work effectively in crisis or quick turn-around situations; paying close attention to detail.

Specialties: Student Affairs NCAA Intercollegiate Athletics Government Contracts & Procurement Experience

Assistant General Counsel University of the District of Columbia November 2007 – November 2011 (4 years 1 month)Washington, DC

• Provide legal advice and counsel to University department personnel relating to Intercollegiate Athletics, Contracts & Business Services, Facilities & Real Estate and Student Affairs. • Write guidance memoranda, advisory opinions and University policies. Offer presentations and training opportunities for University faculty, students and staff. • Review and revise contracts, leases and academic agreements for legal sufficiency and to address risk management concerns. • Conduct probative investigations and reporting. • Extensive research and writing on topics around issues concerning: privacy, intercollegiate athletics, corporate and student governance, government contracts, student discipline and code of conduct matters. Adjunct Professor American University, Univ of the Incarnate Word, Trinity University (TX), Tulane University 1999 – 2005 (6 years)Various Cities: DC, San Antonio, New Orleans

• Created and taught course on Women In Sport which explores the history and culture of sport with a particular emphasis on matters of law and equity, modern literature, surveys and statistical data, and current pop culture. • Researched and designed undergraduate/graduate level seminar curriculum; coordinated celebrity/experts in the field as guest speakers. Associate Attorney Adams and Reese Law Firm 1996 – 1997 (1 year)New Orleans, LA and Washington, DC

• Managed and litigated extensive civil docket in areas of labor/employment law and insurance defense. • Provided clients with analysis and solutions in the area of civil rights and contract disputes. Education

Georgetown University (Undergrad & Law) BA and JD, Government, Law 1985 – 1992 Georgetown University 1985 – 1989 Metuchen High School HS Diploma, College Prepatory 1981 – 1985 Tab 2 – Course Materials (articles, publications, other materials) Page 1 17 U. Denv. Sports & Ent. Law J. 11, *

4 of 100 DOCUMENTS

Spring, 2015

University of Denver Sports & Entertainment Law Journal

17 U. Denv. Sports & Ent. Law J. 11

LENGTH: 10533 words

ARTICLE: A RACE TO THE BOTTOM? INTERNATIONAL INCOME TAX REGIMES' IMPACT ON THE MOVEMENT OF ATHLETIC TALENT

NAME: Matthew Akers *

BIO:

* J.D. 2015, Michigan State University College of Law; B.A. 2012, Washington State University.

TEXT: [*11] Introduction As the world has become increasingly global, so too have sports expanded on the international stage. While in the past, athletes may have rarely competed outside of their home countries with the exception of events such as the Olym- pic Games and world championships, athletes today routinely compete in a number of different countries throughout a single season. n1 In 2013, ninety-two foreign-born players, representing thirty-nine countries, were featured on Na- tional Basketball Association (NBA) opening night rosters, breaking the previous league record of eighty-four, set in 2010. n2 Meanwhile, English Premier League (EPL) rosters for the [*12] 2013-14 season included 347 players from sixty-four different foreign nations. n3 One result of the globalization of professional athletics is an increasing number of high-earning, transient taxpayers who must navigate the tax regimes of each of the countries in which they compete. Income is generally taxed where it is earned, and as each country fights to receive its fair share of an athlete's income, the risk of double taxation increases. In addition, because athletes' income is not limited to salary or prize money, and often includes large amounts of compensation from endorsement deals, conflicts regarding the characterization and apportionment of such income are a key concern for many athletes. n4 The United Kingdom's taxation of Phil Mickelson, an American golfer and the 2013 British Open Champion, provides an excellent example of the enormous tax liability to which international athletes are often exposed. In addition to tax rates of 40% on income over £ 32,010 and 45% on income over £ 150,000 applied to Mickelson's tournament winnings, the U.K. also collects income tax on endorsement income from nonresident athletes based on the amount of time the athlete spends competing in the country. n5 As a result of these taxes, Mickelson paid 61% of the nearly $ 2.2 million he earned over the course of his stay for the British Open to the U.K. n6 [*13] Every country taxes nonresident athletes differently, and there is often a general lack of understanding among athletes as to their tax liability in the individual countries in which they compete. n7 Although international income tax treaties, such as that between the United States and the United Kingdom, n8 protect the majority of nonresident taxpayers from double tax liability, athletes are generally exempted from these protections, and must rely on their country of residency to eliminate double taxation through the provision of foreign tax credits or a statutory exemp- Page 2 17 U. Denv. Sports & Ent. Law J. 11, * tion. n9 As a result of the differences in countries' tax regimes, lack of treaty protection from double taxation, and a general lack of understanding of the international tax system by athletes, certain countries -- specifically the U.S. and the U.K., have been labeled by many international athletes as unfavorable. n10 Considering the sizable incomes earned by professional athletes, the impact of a country's tax regime on its teams' ability to recruit athletic talent becomes apparent. For example, a Spanish soccer club, operating under Spain's favorable tax system that taxes nonresidents, as well as new Spanish residents, at a flat rate of 24%, n11 can provide a player with $ 5 million in after-tax income [*14] with a $ 6.7 million contract. n12 At the same time, an English club attempting to sign the same player would have to offer an $ 8.3 million contract to provide the same post-tax benefit. n13 As demonstrated by this example, income tax regimes have the potential to act as a driving force behind the movement of athletic talent around the world. As up-and-coming sporting nations seek to challenge the established leaders, boost their reputations within the international sporting community, and encourage elite athletes to compete in leagues and events hosted within their country, favorable tax treatment of foreign athletes may be used as a valuable recruiting tool. This Article begins in Part I by introducing the general framework under which countries collect income taxes from foreign athletes, while presenting in greater depth the tax systems of established sporting powers -- the United States and United Kingdom, and several up-and-coming sporting nations -- Spain, Brazil, and Russia. Part II outlines the current place of athletics in the global economic and social landscapes. Part III discusses issues presented by the U.S. and the U.K.'s tax treatment of international athletes, as well as those nations' recognition of those issues. Part IV examines tax treatment of athletes by up-and-coming nations as a tool to recruit talent away from the U.S. and the U.K. Finally, Parts V and VI discuss the future of the taxation of international athletes, and provide recommendations for nations seeking to more effectively use their tax regimes to attract international athletic talent. [*15] I. Legal Background: Overview of the Taxation of International Athletes Professional athletes are highly mobile taxpayers, and often earn income in multiple countries over the course of a tax year. n14 Therefore, the calculation of an athlete's tax liability in a particular country begins with a determination of the athlete's residency status. n15 If the athlete is determined to be a resident of the country in which the income in question was earned, the taxation of that income will simply be decided by an application of the country's tax code. n16 However, if the athlete is determined to be a nonresident, the applicability of any income tax treaties between the athlete's country of residence and the country in which the income was earned must be established. n17 If an applicable income tax treaty is not in place, or if an income tax treaty is in place but is inapplicable to the athlete, the taxation of the income earned in the source country will be based on that country's tax code as it relates to the taxation of nonresident aliens. n18 A. Treatment Under a Tax Code Tax codes are the primary method by which countries govern the assessment and collection of income tax from individuals earning income sourced to the country. Tax residents of a country, along with nonresidents from countries with which the taxing country does not have an income tax treaty, will be taxed exclusively under the provisions of the source-country's tax code. n19 Meanwhile, the tax treatment of nonresidents from treaty countries, [*16] while generally established by the relevant treaty, may also defer to the source-country's tax code in some situations. n20 One such situation, a treaty's inclusion of an "Artiste and Athlete" provision, has a major impact on athletes, who are exempted from coverage under most treaties by such a provision. n21 Because athletes are generally exempted from coverage under income tax treaties, an understanding of the varying tax treatment of athletes by individual countries' tax regimes is foundational for assessing income taxation as a driver behind the movement of athletic talent around the world. If the calculation of an athlete's tax liability in a particular country falls under the country's tax code, key considerations will include the respective tax treatment of residents and nonresidents, any applicable withholding requirements, and the characterization of the income earned by the athlete. n22 1. The United States The United States is a world hub for professional athletics. Home to the National Basketball Association National, the Football League (NFL), the National Hockey League (NHL), Major League Baseball (MLB), the Ultimate Fighting Championship (UFC), and the Professional Golf Association (PGA) Tour, American professional sporting leagues and events attract premier athletic talent from around the world. Page 3 17 U. Denv. Sports & Ent. Law J. 11, *

The United States taxes citizens and resident aliens on their income earned both within the U.S. and abroad. n23 However, a system of foreign tax credits gives citizens and resident aliens who earn income abroad credits to offset their domestic tax liability and [*17] eliminate double taxation. n24 In contrast, nonresident aliens are generally taxed only on their U.S.-source income, n25 although a distinction is made between the treatment of income effectively connected with a U.S. trade or business, and income not effectively connected with a U.S. trade or business. n26 Under the Internal Revenue Code (I.R.C.), an athlete's tax liability is thus primarily determined by residency status, and if the athlete is determined to be a nonresident, the characterization of the income earned. a. Residency Status The first step in calculating a foreign athlete's U.S. tax liability is a determination of residency status. Resident aliens are generally taxed in the same manner as U.S. citizens, n27 while nonresident aliens are subject to different treatment under I.R.C. § 871. The determination of whether a foreign athlete is a nonresident or resident alien is governed by I.R.C. § 7701(b). An the athlete who satisfies either the "Permanent Residency Test" (also known as the Green Card test) or the "Substantial Presence Test" will generally qualify as a resident alien, n28 whereas an athlete who fails to satisfy [*18] either of these tests will be classified as a nonresident alien. n29 Under the "Permanent Residency Test," an individual who is at any time lawfully admitted for permanent residence in the United States will be considered a resident alien for tax purposes. n30 To satisfy the "Substantial Presence Test," an individual must be "present in the United States on at least 183 days during a three year period that includes the current year. [E]ach day of presence in the current year is counted as a full day. Each day of presence in the first preceding year is counted as one-third of a day and each day of presence in the second preceding year is counted as onesixth of a day." n31 b. Taxation of Nonresident Athletes Under the I.R.C., taxation of nonresident alien athletes is limited to income received from sources within the United States. n32 U.S. source income that is not effectively connected with a U.S. trade or business is subject to a 30% flat rate tax, n33 while income that is effectively connected with a U.S. trade or business is taxed using the same graduated rates as applied to income earned by citizens and resident aliens. n34 The performance of personal services within the United States is included under the I.R.C.'s definition of "trade or business within the United States." n35 As a result, salaries, bonuses and prize money will be treated as "effectively connected income." n36 [*19] c. Characterization of Income Because U.S.-source income earned by nonresident alien athletes is taxed differently depending upon whether or not it is effectively connected with a U.S. trade or business, n37 the characterization of a nonresident alien's U.S. source income is of key importance in determining the individual's U.S. income tax liability. Income earned by athletes generally falls into one of three categories: athletic performance income, n38 endorsement and sponsorship income, and signing bonus income. n39 The characterization of athletic performance and signing bonus income is generally straightforward. Athletic performance income, including salaries and prize money, is paid to the athlete in return for the performance of personal services conducted in the United States, and therefore is treated as being effectively connected to a U.S. trade or business under I.R.C. § 864(b). n40 In regards to signing bonus income, IRS Revenue Ruling 2004-109 treats signing bonuses as wages. n41 Therefore, income earned in the U.S. by a nonresident athlete that is properly characterized as a salary, prize, or signing bonus will be taxed at the same graduated rates applied to U.S. citizens, n42 barring more favorable treatment under an applicable treaty provision. The greatest challenge regarding the calculation of U.S. tax liability on athletic performance and signing bonus income is the allocation of the income between United States and any foreign sources. n43 In the case of an athlete earning income allocable to multiple countries, the allocation will generally [*20] be based on the number of days during the tax year the athlete performed personal services in the U.S. in relation to the total number of days the athlete spent performing personal services. n44 The characterization of endorsement and sponsorship income is more challenging. Income attributable to an athlete's endorsement and sponsorship deals, depending on the facts, can be characterized as either royalty or personal service income. n45 Income will be characterized as a royalty if it is the result of the use of the athlete's name or likeness. n46 Alternatively, if the athlete is required to perform personal services in connection with the receipt of the income, such as playing in tournaments or using the sponsor's equipment, the income will likely be considered, at least in part, personal service income. n47 In many cases, an endorsement contract will include compensation for both royalties and personal services, and an allocation between the two is required. n48 In light of two recent U.S. Tax Court cases involving professional golfers, the IRS's treatment of the allocation of endorsement income between royalty and personal Page 4 17 U. Denv. Sports & Ent. Law J. 11, * service income remains somewhat of a gray area. n49 This lack of clarity represents one of the many challenges faced by nonresident athletes obligated to pay taxes in the [*21] U.S. Like athletic performance income, endorsement and sponsorship income sourced to both the U.S. and foreign countries must also be properly allocated between the U.S and those other foreign sources. Personal service income will be allocated in the manner discussed above, n50 while royalties are allocated between the U.S. and foreign sources based on where the royalties are used. n51 2. The United Kingdom Like the United States, the United Kingdom is one of the most established sporting nations in the world. Based on revenues, the EPL is the most successful soccer league in the world, bringing in [euro] 1 billion more than its nearest competitor during the 2011-12 season. n52 The U.K. also plays host to golf and tennis majors, is home to elite professional cricket and rugby leagues, and showcased a number of new athletic facilities during the 2012 Summer Olympic Games in London. As in the U.S., U.K. residents are generally taxed on their worldwide income, while nonresidents are taxed on their U.K.- source income. n53 To address an alleged annual loss of £ 75 million resulting from the failure to tax foreign athletes and entertainers making appearances in the U.K., a withholding regime was implemented as part of the Income Tax (Sportsman and Entertainers) [*22] Regulations of 1987. n54 As a result of this amendment, nonresident athletes and entertainers are subject to a withholding tax that is not applied to other nonresidents. n55 a. Residency Status Established by the 2013 Finance Act, the Statutory Residency Test (SRT) is used to determine U.K. tax residency. n56 Under the SRT, an individual will be considered a resident of the U.K. if he/she (1) spent 183 days in the U.K. during the tax year; n57 (2) meets the requirements of one of two additional "U.K. tests;" n58 or (3) meets the "sufficient ties test." n59 Additionally, if an individual satisfies any of three "automatic overseas tests," he/she will not be considered a U.K. resident, and the "U.K. tests" and "sufficient ties test" will not be considered. n60 Although the SRT is more complex [*23] than many other countries' residency tests, Her Majesty's Revenue and Customs (HMRC), the U.K.'s tax authority, has provided taxpayers with substantial guidance in applying the test. n61 b. Taxation of Nonresident Athletes The United Kingdom employs a schedular income tax system. n62 Under this system, income paid to team sport athletes will generally be classified as employment income, whereas income earned by individual athletes will be classified as self-employed "trade or profession" income. n63 While both employment income and "trade or profession" income are taxed at the same progressive rates, "[t]rade or profession income is generally subject to lower social security taxes and more generous business expense deductions." n64 For the 2013-14 and 2014-15 tax years, the U.K.'s progressive tax rates include a top rate of 45% for income over £ 150,000. n65 Employment income is withheld under a "Pay as You Earn" system, which is applied to both resident and non-resident employees. n66 However, the U.K. generally does not withhold tax on trade or profession income, n67 and prior to the 1987 Income Tax (Sportsman and Entertainers) Regulations, tax avoidance by nonresident athletes was common. n68 The 1987 Regulations address tax avoidance through a withholding regime that applies to entertainers [*24] and sportsmen in any kind of entertainment or sport, n69 and covers any appearance in the U.K. for which a payment is made. n70 Under this withholding regime, payments to nonresident athletes are subject to a 20% withholding tax, n71 thus limiting the athlete's ability to wholly avoid U.K. taxation. c. Characterization of Income For team sport athletes in the U.K., characterization of personal service income is unnecessary as a result of the "Pay as You Earn" system because an athlete's employer (the team) will be responsible for deducting the appropriate income tax from the athlete's pay. n72 For individual athletes, the key issue relating to the characterization of income is whether the income falls under the previously discussed withholding regime. The regime has broad reach. The term "athlete" is interpreted very broadly, n73 and any appearance within the U.K. made for pay n74 qualifies for withholding. Furthermore, a direct link between the appearance and payment is not required; n75 for example, "[endorsement fees paid to a tennis player using sports equipment in a UK tournament would be linked [to the U.K. appearance]." n76 In terms of characterizing endorsement and sponsorship income, the U.K. system is significantly more straightforward than that of the U.S. In the U.K., royalties are not considered separate [*25] intellectual property, but instead Page 5 17 U. Denv. Sports & Ent. Law J. 11, * are categorized as personal service income along with all other endorsement income. n77 As in the U.S., a nonresident athlete is only subject to U.K. taxation on endorsement income sourced to the U.K. n78 However, as a result of the House of Lords' holding a 2006 case involving American tennis star Andre Agassi, even sponsorship payments from nonresident companies to nonresident taxpayers are considered to be sourced to the U.K., n79 making avoidance of U.K. taxation on sponsorship income very difficult. n80 This treatment of endorsement income has been, and continues to be, a major point of contention between nonresident athletes and the U.K. n81 3. Spain Spain is quickly rising as one of the global leaders in professional athletics. In addition to being home to La Liga, one of the largest and most successful professional soccer leagues in the world, Spain is the world's top importer of professional basketball players, n82 and has produced many professional golfers and tennis players. Spain's growth in the ranks of professional athletics serves as a premier example of the potential benefits available to a country that implements a tax regime favorable to foreign athletes. Spanish law is unique in that it law allows certain new Spanish residents to elect between resident and nonresident income tax [*26] treatment --providing Spanish teams a comparative advantage in recruiting foreign athletes. n83 a. Residency Status An individual is a resident of Spain for tax purposes as determined by the satisfaction of one of three tests. If "(1) . . . [the individual] spends more than 183 days in Spain in the calendar year; (2) [t]he center of [the individual's] economic interests is located in Spain; or (3) . . . [the] center of [the individual's] vital interests is in Spain," n84 the individual will be considered a Spanish resident. b. Taxation of Nonresident Athletes Spain applies a final flat rate tax of 24% to nonresidents' Spanish-source income under a gross withholding regime. n85 This flat rate is applied to both employment and personal service income, as well as to royalty and endorsement income. n86 Spanish residents are subject to progressive tax rates on net income of up to 52%. n87 One of the most preferential aspects of the Spanish tax system from the perspective of a professional athlete competing in Spain is Royal Decree 687/2005 -- more commonly known as the [*27] Beckham Law. n88 The Beckham Law allows new Spanish residents who have recently moved to Spain in the course of their employment to elect between resident and nonresident tax treatment for the year of their move and the following five years. n89 To be eligible for the election, a new Spanish resident must, "(1) not have been a Spanish resident in the ten years prior to the move; (2) have moved to Spain as a consequence of employment; (3) effectively perform work in Spain, for a Spanish resident; and (4) not be exempt from income tax." n90 In 2010, the Spanish Parliament amended the Beckham Law, and a [euro] 600,000 income cap for favorable tax treatment was initiated. n91 c. Characterization of Income For nonresident athletes, the characterization of income is only necessary when determining tax liability under a treaty because, under Spanish tax law, all of a nonresident's Spanish-source income is subject to the 24% flat withholding tax. n92 When determining the tax liability of nonresident athletes under a treaty, characterization of image rights income is significant. However, Spanish courts have been inconsistent in their characterization of such income. n93 This unpredictable treatment by Spanish courts has created uncertainty and difficulty in tax planning for nonresident athletes. n94 For athletes who are Spanish residents, endorsement income is characterized as either personal service or royalty income. n95 [*28] Regardless of its characterization, endorsement income is subject to the athlete's marginal tax rate, however, deductions are allowed in connection with personal service income, but not in connection with royalty income. n96 4. Brazil Brazil is the fifth-largest country in the world in geographical area, and home to the eighth-largest economy in terms of GDP. n97 During the 2012 Summer Olympics, Brazilian athletes won seventeen medals, including gold in women's volleyball and men's soccer. n98 The Brazilian men's national soccer team is currently ranked tenth by the Federation Internationale de Football Association (FIFA), n99 and features star players such as Kaka, Neymar, and Ronaldinho. In addition, Brazil's top professional soccer league, Série A, is among the world's elite. n100 In the coming years, Brazil will find itself at the forefront of the international sporting stage as it prepares to host the 2014 World Page 6 17 U. Denv. Sports & Ent. Law J. 11, *

Cup n101 and the 2016 Summer Olympic Games. n102 In terms of the taxation of nonresident athletes earning income in Brazil, Brazil utilizes a final withholding tax regime similar to that of Spain. [*29] a. Residency Status Brazil employs a straightforward method of determining an individual's residency status. Individuals who live permanently in Brazil or have a permanent or temporary visa n103 are considered Brazilian residents for income tax purposes, n104 while all other individuals are deemed nonresident aliens. b. Taxation of Nonresident Athletes Brazilian residents' income, regardless of characterization, is withheld at progressive rates of up to 27.5%. n105 Nonresidents are taxed at flat rates of 25% on gross personal service income, and 15% on sponsorship and image rights income. n106 It is interesting to note that Brazilian residents who make royalty payments to nonresidents are subject to a 10% contribution tax, n107 causing the royalty payment to be taxed at the same effective rate as personal service income, but providing a benefit to the nonresident taxpayer. An understanding of the taxation of nonresident athletes under the Brazilian tax code is especially important to American athletes competing in Brazil, as there currently is no income tax treaty between the countries. [*30] c. Other Sports Related Taxes While not directly related to the taxation of foreign athletes, Brazil has an interesting history of tax laws passed to benefit sport-related employers, and to facilitate the growth of athletic infrastructure. In 2006, Brazil implemented the "Club Mania Law," which exempted soccer clubs from taxation through 2011 to assist the clubs in recovering from massive tax debts. n108 In 2007, in preparation for the upcoming World Cup and Olympic Games, Brazil implemented the Growth Acceleration Program, which provides tax relief to infrastructure projects. n109 Also in preparation for the 2014 World Cup, the Brazilian legislature implemented several federal tax exemptions applicable to, among others, FIFA (the organizer of the World Cup) and nonresidents hired to work the World Cup events. n110 Brazil's historical willingness to pass tax laws designed to benefit its sporting leagues and events suggests the potential for further tax related legislation as a tool for recruiting international athletes. 5. Russia Russia presents an interesting case study on the taxation of nonresident athletes when considering the migration of international athletes to compete in the 2014 Winter Olympic Games and 2018 World Cup, as well as the recent growth of its professional [*31] hockey league, the Kontinental Hockey League (KHL). n111 Furthermore, Russia is unique in its taxation of nonresidents athletes, who are taxed at a 17% higher rate than residents, unlike the other nations highlighted in this Article, which generally tax residents at higher rates than nonresidents. n112 a. Residency Status The determination of whether an individual is a Russian resident for income tax purposes is straightforward under the Russian tax code. An individual will be considered a resident "if he/she is physically present in Russia for 183 or more days during the consecutive 12 month period." n113 According to the Russian Ministry of Finance, "the 183-day check should be made in relation to the particular calendar year." n114 Individuals who do not reach the 183-day threshold are deemed nonresidents for the purpose of calculating their Russian income tax liability. b. Taxation of Nonresident Athletes Russian residents are generally subject to a 13% flat rate tax on their worldwide income. n115 In contrast, nonresidents are generally subject to a 30% flat rate tax on Russian-source income. n116 All tax on personal service income must be withheld by a [*32] taxpayer's employer, and remitted to the Russian finance authorities. n117 Be- cause Russia taxes both residents and nonresidents at flat rates on both personal service and royalty income, n118 income characterization is not a major concern when determining an athlete's Russian tax liability. If not made clear by the tax code, the determination of what income is attributable to sources in the Russian Federa- tion and what income is attributable to sources outside the Russian Federation will be determined by the Ministry of Finance of the Russian Federation. n119 For nonresidents with income that is attributable in part to both Russian and other foreign sources, if there is no provision for an unequivocal attribution of the income set forth in the code the determination will also be left up to the Ministry of Finance. n120 Page 7 17 U. Denv. Sports & Ent. Law J. 11, *

Of particular significance to American athletes competing in Russia is the fact that unlike most income tax treaties, the income tax treaty between the United States and the Russian Federation does not include an Artiste and Athlete provision. n121 As a result, American athletes competing in Russia and Russian athletes competing in the U.S. will receive preferential treaty treatment not provided to athletes under most other income tax treaties. n122 An American athlete who is in Russia for 153 days or less during the tax year and is paid by a non-Russian employer will not be subject to Russian tax on employment income under Article 14 of the treaty. n123 Furthermore, provided that certain requirements are met, [*33] Article 12 provides that royalty income will only be taxed in the athlete's country of residence, and Article 13 provides similar treatment for independent personal services income. n124 B. Treatment Under an Income Tax Treaty When considering that most countries tax residents on worldwide income, and tax nonresidents on income sourced to the country, the risk of double taxation for individuals earning income in multiple countries becomes significant. To address the issue of double taxation, income tax treaties have been adopted between many nations. n125 However, the use of income tax treaties to address double taxation is an imperfect solution. The present regime of income tax treaties lacks uniformity, and features primarily bilateral treaties between individual countries. n126 In contrast to bilateral treaties, multilateral treaties offer a potential uniform solution to double taxation. While multilateral treaties have not been successfully implemented on a broad scale, n127 some commentators have argued that such a treaty is the ideal solution to double taxation of international athletes because it would provide uniform treatment of this unique group of taxpayers and simplify allocation determinations. n128 1. Bilateral Treaties Although bilateral income tax treaties are the generally accepted method of addressing double taxation, there is not a single model for their formation. n129 In addition, the treaty network is not [*34] comprehensive, n130 and in the absence of a treaty, the determination of income tax liability will defer to the involved countries' tax codes -- increasing the uncertainty caused by the current system. Due to the inconsistencies in tax treaties currently in use, the Organization for Economic Co-operation and Devel- opment (OECD) Model Convention (hereinafter Model Convention) provides an ideal starting point for the discussion of bilateral treaties. n131 The Model Convention is used as a guide for negotiating tax treaties by member countries, is used as a reference in negotiations between both member n132 and non-member n133 countries, and has provisions that "are globally recognized and are incorporated into a majority of bilateral tax treaties." n134 Taxation of international athletes is governed by several key provisions of the Model Convention; Article 7: "Busi- ness Profits," Article 15: "Income From Employment," and most significantly, Article 17: "Artistes and Sportsmen." n135 Articles 7 and 15 provide for favorable treatment of nonresidents earning income in a Contracting State. Article 7 provides that business profits of a Contracting State resident will only be taxable in the country in which the individual is a resident, unless the individual has a [*35] "permanent establishment" in the source country, n136 while under Article 15, employment income is not taxable in the source country if (1) the employee is in the country for 183 days or fewer in any twelve month period "commencing or ending in the fiscal year concerned;" (2) the employee is paid by a nonresident employer; and (3) the payment "is not borne by a permanent establishment which the employer has in the [source country]." n137 Article 17, "Artistes and Sportsmen," specifically addresses the taxation of athletes, and eliminates the beneficial treatment provided for by Articles 7 and 15, stating that "[n]otwithstanding the provisions of Articles 7 and 15, income derived by a resident of a Contracting State as . . . a sportsman, from his personal activities as such exercised in the [source country], may be taxed in that [country]." n138 As drafted by the OECD, the Artistes and Sportsmen provision has a broad reach. "Sportsman" is defined broadly to include participants in traditional athletic events, as well as individuals engaged in other sporting activities, such as racing drivers, and billiards players. n139 Additionally, the Arti- cle's application is extended to advertising and sponsorship income both directly and indirectly related to an athlete's performance or appearance in a Contracting State. n140

As a result of the Artistes and Sportsmen provision, an athlete earning income in a Contracting State will be taxed in accordance with that country's tax code, and the treaty will not restrict taxation. n141 This treatment highlights both the important role of tax codes in the calculation of a nonresident athlete's tax liability, as [*36] well as the perceived failure of bilateral tax treaties in regulating the taxation of international athletes. n142 The elimination of double taxation is left up to the country of residence, generally through either the exemption or credit method. n143 For example, Page 8 17 U. Denv. Sports & Ent. Law J. 11, * the U.S.-U.K. Income Tax Treaty provides specifically in Article 24 for application of the credit method to eliminate double taxation. n144 2. Multilateral Treaties Multilateral treaties, as the name suggests, are generally formed among a number of nations. While not the prevalent approach, multilateral income tax treaties serve as an alternative means to address double taxation. The OECD has recognized that while the implementation of a multilateral tax convention would be very difficult, it may be possible for certain groups of member countries to consider a multilateral tax convention to suit their particular purposes. n145 From an athlete's perspective, a multilateral treaty represents an ideal alternative to the current network of bilateral treaties -- a multilateral treaty would provide for the elimination of uncertainty caused by the current inconsistent tax treatment of athletes around the world, better information sharing between countries, efficient allocations of athletes' income, and a platform for the elimination of double taxation. n146 However, the [*37] creation and adoption of a multilateral treaty to address the taxation of international athletes would require a significant amount of cooperation between nations around the world. Because of the competing interests of many of these nations, including the collection of revenue through the taxation of high-income athletes and the recruitment of foreign athletes away from rivals, the successful implementation of such a treaty in the near future appears unlikely. II. Factual Background: The Current Place of Sports in the Global Economic and Social Landscapes Sports undoubtedly play a major role in modern society. Professional sports are a multi-billion dollar industry, n147 and while game attendance and television revenue figures serve as quantitative evidence of sports' place in society, sports' social and political impact should not be discounted. Especially in the context of events such as the World Cup and the Olympic Games, sports serve as an outlet for nationalism, n148 and countries expend great [*38] amounts of resources to maintain and grow competitive leagues and national teams. n149 The United States and the United Kingdom are currently positioned as global leaders in professional sports. These two nations are home to many of the world's premier professional leagues, and some of the most recognized and re- spected events in all of sports -- attracting elite athletes from around the world. n150 However, the United States and the United Kingdom are certainly not alone, for in recent years, nations such as Spain, Brazil, and Russia have experienced considerable growth in their professional leagues and great success in international competition. n151 A. The Place of the United States and the United Kingdom as Global Leaders in Professional Sports The United States is the pinnacle of professional sports. The U.S. "big four," consisting of the NFL, NBA, NHL, and MLB, are the premier leagues in the world in each of their respective sports, and draw athletes from around the world. In 2012, the NFL had revenues of $ 9.5 billion, n152 MLB revenues reached $ 7.5 billion, [*39] n153 and NBA revenues totaled $ 5 billion. n154 In addition to its leagues, the United States also plays host to many preeminent events; including golf's U.S. Open and Masters tournaments, tennis' U.S. Open, and many mixed martial arts and boxing matches, as well as international events in a variety of sports, including beach volleyball, n155 track and field, n156 and skiing and snowboarding. n157 The United Kingdom, like the United States, is home to many highly successful leagues and events. From a revenue standpoint, the EPL is the most successful professional soccer league in the world, recording revenues of [euro] 2.9 billion, or approximately $ 4 billion, in 2011-12. n158 The United Kindom also features some of the best cricket and rugby leagues in the world, and plays host to golf and tennis majors -- the British Open, n159 and Wimbledon. In 2012, the United Kindom was at the center of the international athletic stage as London hosted the Summer Olympic Games. While the United States and the United Kindom each have had significant success in recent international competitions, what has established these countries as global leaders in professional sports is the combined financial success of their respective leagues [*40] and events, and their ability to attract athletes from around the world to compete in these leagues and events. The attraction of international athletic talent to the United States and the United Kingdom has in many cases allowed the rich to get richer, and has enabled the countries' leagues and events to continue to grow with minimal competition for the world's top-level talent in their respective sports. B. Up-and-Coming Countries in the Landscape of Professional Sports Highly successful leagues and sporting events are not exclusive to the United States and the United Kingdom. While the United States and the United Kingdom may be considered established leaders as a result of the sustained suc- Page 9 17 U. Denv. Sports & Ent. Law J. 11, * cess and economic prosperity of their leagues and events, a shift is taking place, beginning with countries such as Spain, Brazil, and Russia. During the 2011-12 season, the top Spanish soccer league, La Liga, recorded revenues of [euro] 1.8 billion, third highest among European soccer leagues. n160 In addition, Spain's top professional basketball league, Liga ACB, is among the most competitive in the world. n161 In 2012, Spanish basketball leagues imported 428 foreign players, the most of any country. n162 Brazil and Russia present interesting examples of up-and-coming nations in the professional sporting landscape. Together they will host the next Winter Olympic Games (Sochi 2014), the next Summer Olympic Games (Rio 2016), and the next two World Cups (2014 and 2018). These major international events will contribute to the development of facilities and venues, and bring Russia and Brazil to the forefront of the world sporting stage. Considering the ability of leagues and events in Brazil and Russia to compete for talent with leagues and events located in more established sporting nations, Brazil's top soccer league, Série A, is [*41] currently ranked by the International Federation of Football History & Statistics as the fifth strongest league in the world, and is home to five of the world's top clubs. n163 Meanwhile, the upstart Russian KHL serves as an intriguing example of a league that has successfully attracted talent away from an established American league such as the NHL. n164 C. The Race to the Bottom Theory Professional athletes are highly paid, n165 and generally fall in the top tax brackets of the countries in which they earn income. As a result, the income tax implications of professional athletes' decisions about where to compete can be significant. Based on the comparable economic size of leagues such as the NHL and KHL, or the EPL and La Liga, n166 it is unlikely that professional teams from countries outside of the United States and the United Kingdom will be able to offer salaries comparable to those offered by teams in more established nations to more than perhaps a handful of players. However, the income tax regimes of these up-andcoming countries represent a potential tool for leveling the playing field to some extent. The use of tax laws as a recruiting tool to support the import of athletic talent creates the potential for what can be described as a "race to the bottom." n167 In the context of taxing nonresident athletes, a race to the bottom theory would suggest that if one country implements favorable income tax provisions that [*42] allow its teams to provide nonresident athletes with effectively greater compensation, other countries will follow suit in an effort to remain competitive in the global market for athletic talent. The potential impact of a particularly favorable tax scheme on teams' ability to recruit and sign talent in a competitive international market may be best illustrated through an analogy to the competition for free agents in American professional leagues involving teams located in states without a state income tax. n168 For example, in 2010, despite the NBA's salary cap, the Miami Heat were able to sign three of the top players in the league; Lebron James, Dwayne Wade, and Chris Bosh. n169 Florida does not have a state income tax, and as a result the Heat were essentially able to offer James, Wade, and Bosh greater compensation than other teams, such as Los Angeles and Chicago, who were competing for the players' services, while still remaining under the league's salary cap. n170 The contracts offered by the Heat to James, Wade, and Bosh were comparatively more valuable to the players than identical or even higher offers from teams in states with state income taxes, providing the Heat with a significant advantage in the recruitment of these premier players. n171 III. Issues Presented by the Tax Treatment of Nonresident Athletes in the United States and the United Kingdom The tax regimes of the United States and the United Kingdom have been the recent subject of criticism by several high-profile [*43] athletes. Jamaican sprinter Usain Bolt has been critical of the United Kingdom's taxation of nonresident athletes, specifically its treatment of endorsement income, and has gone so far as to boycott competitions held in the United Kingdom. n172 Spanish tennis star Rafael Nadal has also skipped events in the United Kingdom for tax reasons. n173 In November 2013, Filipino boxer Manny Pacquiao fought in Macau, China, his first fight outside of the United States since 2006. n174 Tax implications played a large role in Pacquiao's decision to fight in China, n175 where nonresident athletes are subject to significantly lower tax rates on athletic performance income. n176 These examples highlight athletes' awareness of the income tax implications of their decisions regarding where to compete, as well as their willingness to avoid countries they feel do not provide them with favorable tax treatment. Furthermore, the Pacquiao example emphasizes the role of emerging markets, such as China, in the international movement of athletic talent, and the role those markets play in providing alterative venues for athletes who have traditionally competed in the United States and the United Kingdom. Page 10 17 U. Denv. Sports & Ent. Law J. 11, *

The criticisms of athletes such as Bolt, Nadal, and Pacquiao are not without merit. The Unites States and the United Kingdom generally tax nonresident athletes at higher rates than other countries. n177 Other aspects of the U.S. and the U.K. tax systems that [*44] may create challenges for foreign athletes include comparatively complicated residency status determinations, n178 and in the United States, a lack of clarity in the characterization of endorsement income and the sourcing of royalty payments. n179 Additionally, tax authorities in both countries have specifically targeted nonresident athletes as part of strategies to increase tax revenue. n180 In 2006, in an effort to close the federal tax gap created by taxpayer noncompliance, n181 the U.S. Department of Treasury issued a Comprehensive Strategy for Reducing the Tax Gap, n182 which sought greater compliance through improved collection efficiency, and the sharing of information with foreign tax authorities to reduce international tax avoidance. n183 As part of this strategy, the IRS specifically targeted foreign athletes and entertainers through the Project on Foreign Athletes and Entertainers. n184 The IRS has continued to target foreign athletes through 2013, and has not indicated an intention to relax its efforts. n185 While the IRS has a justifiable interest in obtaining tax compliance from nonresident athletes, n186 the perception among many athletes is that the IRS unfairly singles them out to make examples of them. n187 In the [*45] United Kingdom, athletes have similarly been singled out for differential treatment under the 1987 Amendment, which subjects nonresident athletes and entertainers to a 20% withholding tax not applied to other nonresidents. n188 Similarly to the IRS's targeting of nonresident athletes through the Project on Foreign Athletes and Entertainers, the United Kingdom similarly targets nonresident athletes through the HMRC For- eign Entertainers Unit (FEU), a unit that tracks and manages the taxation of athletes and entertainers. n189 As a result of their treatment of nonresident athletes, a major issue facing the United States and the United King- dom is athletes' recognition of this potentially unfavorable tax treatment, and willingness to consider competing in alternative locations. In turn, this willingness has created room for up-and-coming nations to recruit athletic talent away from the established leaders. However, the risk presented by athletes choosing to avoid competing in the United States and the United Kingdom is still largely speculative. No mass exodus of athletes has occurred, and the strength and reputation of the leagues and events in the United States and the United Kingdom, along with the size of the available salaries and purses, will continue to draw elite athletes, regardless of the income tax implications. A. The Established Leaders' Recognition of Issues Presented by Their Current Tax Systems In recent years, both the United States and the United Kingdom have taken actions that suggest recognition of nonresident athletes' negative perception of their respective tax systems. In the United States, the U.S. Tax Court has begun to provide some clarity as to the process under which endorsement income will be characterized, n190 and has repeatedly denied the IRS's attempts to [*46] characterize nonresident athletes' U.S.-source endorsement income as entirely attributable to personal services. n191 Meanwhile, in 2012, during the Summer Olympic Games in London, the United Kingdom amended its tax code to exempt nonresident athletes from U.K. taxation while competing in the Games. n192 Although not comprehensive solutions to the issues discussed above, these actions taken by the United States and the United Kingdom serve as indicators of how issues regarding the taxation of nonresident athletes may be addressed in the future by both countries. 1. The U.S. Tax Court's Treatment of Endorsement Income in Garcia v. Commissioner Two major criticisms of the U.S. tax system as it is applied to nonresident athletes, the IRS's targeting of foreign athletes, and the lack of clarity provided in regards to the characterization of endorsement income, have been addressed in recent cases before the U.S. Tax Court. In 2011, and 2013 respectively, professional golfers Retief Goosen (a South African resident) and Sergio Garcia (a Swiss resident), petitioned the Tax Court for redeterminations of income tax de- ficiencies arising from income received through endorsement deals with the equipment company TaylorMade. n193 In both cases, the IRS took the position that the taxpayers' endorsement income should be characterized as entirely personal service income n194 subject to the applicable progressive rates established by I.R.C. § 1, n195 as opposed to royalty income, which is [*47] subject to a 30% flat rate tax. n196 In Goosen, the Tax Court held Goosen's endorsement income should be characterized as 50% personal service income and 50% royalty income, n197 while in Garcia, the Tax Court held Garcia's endorsement income should be characterized as 35% personal service income and 65% royalty income. n198 Although some confusion regarding the characterization of endorsement income still exists as a result of the Tax Court's differing allocations in Goosen and Garcia, n199 nonresident athletes earning endorsement income in the United States won a substantial victory, as the IRS's position that endorsement income should be characterized entirely as personal service income was rejected by the Tax Court in both cases. n200 Page 11 17 U. Denv. Sports & Ent. Law J. 11, *

In regards to the characterization of endorsement income, the Tax Court distinguished Garcia from Goosen, focusing on Garcia's position as a "Global Icon" for TaylorMade, whereas Goosen was considered only a "brand ambassa- dor." n201 While commentators have suggested that the Tax Court's characterization of Garcia's endorsement income represents an increasing willingness to characterize endorsement income as royalty income, n202 based on the differ- entiation of Goosen and Garcia's endorsement contracts, such favorable characterization may only be extended to the most elite, recognizable athletes in the future. However, based on the Garcia Court's analysis of Goosen in its decision, nonresident athletes should have significantly more guidance in the future regarding to the characterization of their endorsement income. [*48] 2. The U.K. Olympic Tax Amendment As the 2012 Summer Games came to London, the United Kingdom addressed the concerns of athletes such as Usain Bolt by exempting nonresident athletes competing in the Games from paying U.K. income tax. n203 The exemption provided by the Amendment, promulgated under the authority of the 2006 Finance Act, n204 extended to all competitors in both the Olympic and Para-lympic Games, and covered "any financial or other rewards received . . . as a result of . . . performance at the Games . . .," as well as certain endorsement income. n205 Although temporary, n206 the United Kingdom's specific tax exemption of nonresident athletes suggests an awareness of the strong criticisms of athletes such as Bolt, and an understanding of the impact of its tax code on such individuals, as well as a willingness to amend its tax system to promote the flow of elite athletic talent into the United Kingdom for major sporting events. Some commentators have questioned the actual impact of the Olympic Tax Amendment because it would seem unlikely that an athlete would miss an event like the Olympics over a disagreement on tax policy. n207 However, the purpose of the Amendment went well beyond the appeasement of individual foreign athletes. n208 The tax exemptions implemented by the Amendment [*49] extended to the Game's organizers and sponsors as well. n209 Furthermore, the United Kingdom has a history of sports related income tax exemptions, including an exemption for soccer players competing in the 2011 UEFA Champions League Final -- a concession to UEFA, the game's organizer, in order to have the game played in London's Wembley Stadium. n210 This may suggest that even more so than the athletes themselves, organizers of international sporting events serve as a catalyst for the amendment of countries' tax laws. In the future, if a country like the United Kingdom wants to host events such as the Olympic Games or the World Cup it will have to be willing to concede to more favorable tax treatment of athletes, or lose the opportunity to a nation that will. IV. Tax Treatment of Athletes by Up-and-Coming Sporting Nations - A Tool for Recruiting Athletic Talent As previously discussed, the unfavorable tax treatment of athletes by the United States and the United Kingdom, both actual and perceived, has provided an opportunity for up-and-coming nations to establish a competitive advantage in the recruitment of international athletic talent. n211 As illustrated by superstar athletes such as Manny Pacquiao, Usain Bolt, and Rafael Nadal, athletes are aware of the income tax implications of their competition schedules, and are willing to take action to avoid unfavorable jurisdictions. While countries' tax regimes serve a far broader purpose than the recruitment of athletes, that recognition should not downplay the potential significance the regimes have on the movement of athletic talent around the world. [*50] Spain's Beckham Law serves as the principal example of a country using its tax laws to assist its sporting leagues in recruiting athletes. n212 This amendment to the Spanish tax code has directly improved the ability of Span- ish teams to recruit foreign players by providing certain new Spanish residents the opportunity to elect the 24% flat rate tax applied to nonresidents, as opposed to the graduated rates of up to 52% generally applied to residents. n213 Re- search conducted by the National Bureau of Economic Research (NBER) indicates that after passing the Beckham Law, Spanish soccer clubs experienced a sharp influx of "top-quality" foreign players. n214 A second example of a country's tax reform encouraging the movement of athletic talent into the country is Den- mark's 1992 "Tax Scheme for Foreign Researchers and Key Employees." n215 Under this tax scheme, "foreign researchers and high-income foreigners in all other professions" are taxed at a flat rate of 25% as opposed to Denmark's progressive tax system with a top rate of over 60%. n216 NBER research established that like in Spain after the passing of the Beckham Law, migration of top-quality soccer players into Denmark also increased following the implementation of this reform -- further quantitative evidence of tax reform's [*51] potential as a driver behind the international movement of athletic talent. n217 Even absent specific tax reform, tax regimes that provide favorable treatment to international athletes may similarly impact athletes' decisions regarding where to compete. Given the mobility and earning capacity of many athletes it is logical that, if provided with a choice, such athletes will choose to compete in countries that apply lower tax rates. The Page 12 17 U. Denv. Sports & Ent. Law J. 11, * fact that athletes in many sports have relatively short careers supports the theory that athletes are motivated to maximize their earnings, and will be sensitive to the tax implications of their travel schedules. Furthermore, the growth of professional sports in up-and-coming countries such as Brazil, China, Spain, and Russia has provided athletes with a greater number of alternatives when planning their competition schedules. When comparing the rates applied to nonresidents by these countries with the rates applied by the United States and the United Kingdom, the potential for savings becomes clear. For example, Brazil applies a flat rate of 25% to nonresidents, n218 compared to the top progressive rates in the United States and the United Kingdom of 39.6% and 45% respectively. n219 As athletes continue to receive greater levels of compensation the impact of this difference in tax rates will be multiplied, improving the ability of countries such as Brazil to recruit elite athletes away from the established leaders. V. The Future of Taxation of International Athletes The creation of a system for the taxation of international athletes represents a balancing of interests between the athletes and the countries in which the athletes are competing and earning income. From the countries' perspectives, athletes represent a [*52] significant source of tax revenue, and a failure to maintain athlete compliance with the countries' tax laws may result in tax evasion among these high-earning individuals. n220 Athletes enjoy benefits, services, and significant economic opportunities from the countries in which they compete; and from the countries' perspectives it is only right that athletes pay for their fair share of those benefits and opportunities. n221 On the other hand, athletes have a limited window of high earning potential, and want to take home as much of their earnings as possible, as well as to avoid any potential double taxation or differential tax treatment. Taxation of international athletes presents a unique challenge because of the highly transitive nature of many athletes, n222 and the differences in the income tax regimes and treaties employed by countries around the world. n223 Generally speaking, income tax is collected primarily for the creation of revenue, and encouraging the flow of athletic talent into a country is not a key function of any nation's tax system. Based on this Article's review of the income tax systems of both established leaders and up-and-coming nations in the international sporting landscape, countries are seemingly more likely to target athletes to ensure tax compliance because of their position as high-income earners than to provide favorable treatment to attract athletes to the countries' leagues and events. n224 As a result, an all-out race to the bottom among countries in terms of providing foreign athletes with favorable [*53] income tax treatment as a recruiting tool is unlikely. However, because of international athletes' awareness of the income tax implications of their decisions about where to compete, specific amendments to a country's tax code and income tax treaties with foreign nations that provide favorable treatment to nonresident athletes will still serve as a valuable and effective recruiting tool for countries, such as Spain and Denmark, n225 who are willing to forego some tax revenue. Even absent specific amendments designed to benefit nonresident athletes, the existing tax treatment of international athletes by both the established leaders and up-and-coming nations will continue to serve as a key driver behind the international movement of athletic talent. Looking to the future, income tax treatment will likely impact the international movement of athletes in a number of specific ways. While much of this Article has discussed countries' tax treatment of nonresident athletes, team sport athletes such as hockey and soccer players may, depending on the length of their season, qualify as residents of the country in which they compete. n226 As a result, a league like the KHL will have a comparative advantage over the more established NHL in recruiting players when considering Russia's 13% flat rate tax on the income of Russian tax residents n227 in comparison to the United States' top progressive rate of 39.6%. n228 For example, in 2013, hockey star Ilya Kovalchuk stood to earn $ 46 million over the next four years of his contract with the NHL's New Jersey Dev- ils. Instead, Kovalchuk [*54] opted to retire from the NHL, and sign with the KHL's SKA St. Petersburg, where to match his after-tax earnings on the foregone remainder of his NHL contract he would have to sign a four-year contract at only $ 6.6 million per year with the Russian club. n229 Conversely, as much of this Article has discussed, non-team-sport athletes, such as golfers and tennis players, when considering the income tax implications of their competition schedules, will be drawn to those countries that provide the most favorable tax treatment to nonresidents. Non-team-sport athletes have significantly more say over their schedules, and are not tied to a league in a single country for an entire season; as a result, they are likely to compete in multiple countries throughout the course of a tax year, and will likely be classified as nonresidents by those countries. Boxer Manny Pacquiao's decision to fight in China instead of the United States suggests that boxers and mixed martial arts (MMA) fighters are some of the athletes most likely to consider taxes when scheduling their events. n230 A trend moving forward may be for these fights to be scheduled outside of the traditional venues of Las Vegas and Atlantic City. The Ultimate Fighting Championship (UFC), the world's top MMA organization, has already scheduled 2014 events in Jaragua, Brazil, and Macao, China. n231 Page 13 17 U. Denv. Sports & Ent. Law J. 11, *

Another important consideration moving into the future is the impact of third parties such as event sponsors, event organizers, and international sporting federations on countries' tax treatment of foreign athletes. These third parties serve as an independent [*55] source of pressure on countries to provide favorable tax treatment to athletes beyond the existing competition between nations for athletic talent. The trickle down economic benefits available to a country hosting a major sporting event are often significant, n232 and established leaders such as the United Kingdom have already conceded to the pressures placed on potential host nations by event organizers, as seen by the 2012 Olympic Tax Amendment n233 and the exemption from income taxation of soccer players competing in the 2011 UEFA Champions League Final. n234 Brazil's "World Cup Law" n235 provides further evidence of the impact of event organizers and sporting federations on countries' policy making, and suggests that even if countries will not amend their tax codes to compete directly with each other, they will amend their tax codes or provide tax exemptions to satisfy these third parties who will serve a significant role in shaping the international taxation of athletes in the future. Finally, while outside the scope of this Article, income tax treatment of both resident and nonresident athletes may play a significant role in the potential expansion of the "big four" American leagues outside of the United States and Canada. n236 Depending on the income tax regimes of the countries selected for expansion, the expanding leagues could be forced to adjust the [*56] salary caps of foreign-based teams, or take other preventive measures to avoid the creation of a competitive advantage or disadvantage for new foreign based teams. n237 American leagues expanding abroad may also play a role similar to major event organizers and use their economic power to dictate changes to the tax systems of the countries in which they choose to expand. VI. Recommendations As highlighted by this Article, individual countries take very different approaches to the taxation of international athletes -- a highly transient, highly compensated group of taxpayers. As a result of the differences in countries' tax regimes and the objectives of those regimes, recommendations for an improved system of taxing foreign athletes are highly dependent on the perspective of the country being considered. A. Relaxed Tax Treatment of Nonresident Athletes For up-and-coming sporting nations, amended tax laws providing for relaxed or preferential treatment of nonresident athletes represent one strategy for attracting international athletic talent away from the established leaders. Howev- er, the implementation of such a system requires a balancing of interests, and potential consequences include foregone tax revenue, and unrest among other taxpayers who may consider the amendments discriminatory. n238 Additionally, countries such as Brazil and Russia that already have comparably low tax rates may receive little to no benefit by amending their tax regimes to provide even more favorable treatment to certain individuals. Furthermore, although taxation of nonresident athletes serves as a driver behind the international movement of athletic talent, even the most favorable tax regime [*57] may not be enough to encourage many athletes to leave the established leaders in the professional sporting landscape. Conversely, as illustrated by Spain and Denmark, amendments to a country's tax regime that provide favorable treatment to nonresident athletes and other high-earning individuals are statistically proven to be an effective tool for recruiting athletes to a countries' leagues and events. n239 In the case of both Spain and Denmark, empirical evidence indicated an increase in top-level foreign athletes competing in the countries leagues following the passage of such amendments. n240 In recent years, athletes who object to the tax systems employed by the United States and the United Kingdom have begun to turn to other nations; creating a window of opportunity for countries such as Spain who are willing amend their treatment of foreign athletes. While such amendments may result in forfeited revenue, favorable tax treatment of athletes may represent the best way for up-and-coming nations to gain a competitive advantage over the established leaders in the arena of professional sports. From the perspective of the established leaders, the United States and the United Kingdom, there is minimal incentive to provide nonresident athletes with preferred tax treatment. The reputation of these countries' leagues and events, along with the substantial salaries and prize money available to athletes competing in them, will continue to attract the world's best athletes regardless of the applicable tax treatment. The large number of foreign athletes currently competing in leagues such as the NBA, NHL, and EPL serve as evidence that the current tax regimes of the United States and the United Kingdom generally do not cause athletes to compete elsewhere. However, perhaps more so among individual sport athletes, the negative perception of the tax systems in the United States and the United Kingdom have in certain situations caused high profile athletes to compete in other countries. n241 [*58] While currently only a small minority of athletes seem to have specifically avoided the United States and the United Kingdom, the ability of athletes such as Manny Pacquiao and Usain Bolt to find alternative countries in which to compete, while reducing their exposure Page 14 17 U. Denv. Sports & Ent. Law J. 11, * to tax liability, may represent a growing trend that should concern these established nations. Because much of the negative perception of the established leaders' income tax systems is based on athletes' belief that they are being singled out for particularly unfavorable treatment, the United States and the United Kingdom may consider moving away from the specific targeting of athletes for tax compliance through the U.S. Treasury's Project on Foreign Athletes and Entertain- ers and the HMRC's Foreign Entertainers Unit in an effort to avoid reducing the flow of elite level talent into the countries. n242 B. Greater Transparency As previously established, reform of the tax systems in the United States and the United Kingdom to provide athletes with tax treatment comparable to other, less economically-established countries is highly unlikely. However, because much of the negative sentiment athletes have towards the tax systems of these established nations is based on perception, n243 education of athletes and greater transparency in the tax systems of both the United States and the United Kingdom as they apply to foreign athletes represent potential solutions that may diminish the impact tax treatment has on athletes' decisions about where to compete. [*59] In the United Kingdom, the new Statutory Residency Test used to determine a taxpayer's residency status is significantly more complex than its predecessor. If clear guidance is not provided, athletes who are unclear as to their residency status will be more likely to avoid competition in the United Kingdom all together. Meanwhile, in the United States, one of the greatest areas of confusion caused by the current tax system is the characterization of endorsement income. Replacing the conflicting positions of the IRS and the U.S. Tax Court with a clear statement regarding the characterization of endorsement income will reduce the concerns of nonresident athletes competing in the United States and lead to greater compliance. n244 Finally, some of international athletes' greatest concerns stem from the fear of double taxation. Artiste and Athlete provisions in most income tax treaties do not eliminate double taxation, but instead place the burden on the athlete's country of residence to provide either an exemption or foreign tax credit. n245 Because this method of double taxation elimination is often provided for within the treaty itself, n246 better publication of these provisions could serve to eliminate a significant amount of athletes' tax related concerns. Increased transparency and better education of foreign athlete taxpayers with regards the tax regimes of the United States and the United Kingdom will benefit both countries by reducing athletes' negative perceptions and apprehension towards competing within the countries, as well as increasing athlete tax compliance. [*60] Furthermore, this increased transparency will reduce some of the competitive advantage held by nations with tax regimes that provide more favorable treatment to athletes. C. Recommendations for Athletes and Their Representation The complexity of the international income tax system highlights the need for athletes to hire tax experts to help them navigate the various regimes they may be liable under during the course of a season or career. Taxes will have a major impact on athletes' ability to maximize their earning potential, and given the high profile nature of many athletes, being labeled a "tax cheat" may be especially damaging. n247 For athletes competing internationally, a tax attorney may be more important than the athlete's agent; and as sports are becoming increasingly global, the ability to offer tax related services will differentiate firms seeking to represent athletes. Conclusion As professional sports continue to expand on the international stage, the income tax implications of athletes' decisions regarding where to compete will be increasingly significant. Although in most cases, leagues and events in up-and-coming sporting nations cannot compete directly with those from the established nations for the services of elite athletes, favorable income tax treatment of foreign athletes represents a valuable tool for closing the current gap in recruiting power. Because of the revenue available through the taxation of high-income earning individuals such as professional athletes, a race to the bottom in relation to the tax treatment of foreign athletes is unlikely. However, given the increasingly global nature of professional sports, the tax treatment of [*61] foreign athletes around the world will serve as an important driver behind the international movement of athletic talent in the future.

Legal Topics:

For related research and practice materials, see the following legal topics: Page 15 17 U. Denv. Sports & Ent. Law J. 11, *

International Trade LawTrade AgreementsIntellectual Property ProvisionsTax LawInternational TaxesForeign Persons' Activities in the United StatesNonresident & Resident Aliens (IRC secs. 864, 871-880)Nonresident AliensTax LawState & Local TaxesIncome TaxGeneral Overview

FOOTNOTES:

n1 For example, in 2013, American golfer Tiger Woods competed in five different countries including Turkey, China, and the United Kingdom. 2013 Schedule &$ Results, TIGERWOODS.COM, http://www.tigerwoods.com/onTour/scheduleAndResults?year=2013 (last visited Jan. 28, 2014). Serbian tennis pro Novak Djokovic's 2013 schedule included stops in twelve countries including the United States, China, France, and Italy. Tour, NOVAKDJOKOVIC.COM, http://novakdjokovic.com/en/results/2013/ (last visited Jan. 28, 2014).

n2 NBA Tips Off 2013-14 Season With Record International Player Presence, NBA GLOBAL (Oct. 29, 2013), http://www.nba.com/global/nba_tips_off_201314_season_with_record_international_presence_2013_10_29.htm l.

n3 Premier League Foreign Player 2013/2014, TRANSFERMARKT.COM, http://www.transfermarkt.com/en/premierleague/gastarbeiter/wettbewerb_GB1.html (last visited Jan. 28, 2014).

n4 See, e.g., Goosen v. Commissioner, 136 T.C. 547, 547 (2011); Garcia v. Commissioner, 140 T.C. No. 6, at *1 (2013) (regarding the allocation of endorsement earnings between royalty and personal service income).

n5 Kurt Badenhausen, Phil Mickelson Wins Historic British Open and Incurs 61% Tax Rate, FORBES (July 22, 2013, 11:14 AM), http://www.forbes.com/sites/kurtbadenhausen/2013/07/22/phil-mickelson-winshistoric-british-open-and-incurs- 61-tax-rate/.

n6 Id.

n7 See Andrew D. Appleby, Leveling the Playing Field: A Separate Tax Regime For International Athletes, 36 BROOK. J. INT'L L. 605, 639 (2011) (suggesting that even for tax attorneys navigating "the various withholding and characterization traps" utilized by different countries can prove to be extremely challenging).

n8 Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital Gains, U.S.-U.K., July 24, 2001 [hereinafter U.S.-U.K. Income Tax Treaty].

Page 16 17 U. Denv. Sports & Ent. Law J. 11, * n9 Stephanie Evans, U.S. Taxation of International Athletes: A Reexamination of the Artistes and Athletes Arti- cle in Tax Treaties, 29 GEO. WASH. J. INT'L L. & ECON. 297, 309 (1995); see discussion infra Part I.B.1.

n10 Jamaican track star Usain Bolt has been particularly vocal regarding his disagreement with the United Kingdom's tax treatment of nonresident athletes, and has gone as far as boycotting U.K. competitions. Usain Bolt Tax Bill: Why Sports Stars Won't Compete in Britain, THE WEEK (Aug. 14, 2012), http://www.theweek.co.uk/olympics/london-2012/48467/usain-bolt-tax-billwhy-sports-stars-wont-compete-brita in.

n11 Appleby, supra note 7, at 630-31.

n12 Gabriele Marcotti, Taxes Reign in Spain, WALL ST. J. (Nov. 8, 2009, 7:42 PM), http://online.wsj.com/news/articles/SB125769766022636765. However, some of this favorable treatment may be limited by a recent amendment to Spanish tax law. See discussion infra Part I.A.3.b.

n13 Marcotti, supra note 12.

n14 See supra note 1 (discussing the competition schedules of Tiger Woods and Novak Djokovic).

n15 Stephen Taylor, "Are You Not Entertained? Is This Not Why You Are Here?" U.S. Taxation of Foreign Ath- letes and Entertainers, 16 VILL. SPORTS & ENT. L.J. 375, 379 (2009).

n16 See, e.g., I.R.C. § 861(b) (2013).

n17 Taylor, supra note 15, at 389 (treatment under the tax treaty, including provisions for residency status determination, will generally be controlling).

n18 Appleby, supra note 7, at 616.

n19 Evans, supra note 9, at 308-09.

n20 Id. (in some instances an income tax treaty may specifically call for tax liability to be calculated in accordance with the source country's tax code). Page 17 17 U. Denv. Sports & Ent. Law J. 11, *

n21 Id.; see also discussion infra Part I.B.1.

n22 See Appleby, supra note 7, at 615-622 (discussing the United States' tax treatment of residents and nonresidents, as well as the characterization and withholding of income earned by such individuals).

n23 See I.R.C. §§ 861, 862.

n24 See I.R.C. §§ 901, 904. Citizens are allowed a foreign tax credit in "the amount of any income . . . accrued during the taxable year to any foreign country. . . ." I.R.C. § 901(b)(1) (2013). Resident aliens are allowed a foreign tax credit in "the amount of any such taxes paid or accrued during the taxable year to any foreign country . . . ." I.R.C. § 901(b)(3).

n25 See I.R.C. § 871

n26 I.R.C. § 871(a)-(b).

n27 Taxation of U.S. Resident Aliens, IRS, http://www.irs.gov/Individuals/International-Taxpayers/Taxation-of-Resident-Aliens (last updated Dec. 6, 2013). However, a U.S. resident alien from a treaty country who satisfies the tiebreaker rule provided by the treaty will be taxed in the foreign country. I.R.S. PUB. 519 (Jan. 21, 2014) at 6, available at http://www.irs.gov/pub/irs-pdf/p519.pdf.

n28 I.R.C. § 7701(b)(3)(B) provides an important exception to the "Substantial Presence Test," under this exception an individual who is present in the U.S. for less than 183 days in the current year and establishes a closer connection to a foreign country is a nonresident alien for purposes of U.S. income tax liability. I.R.C. § 7701(b)(3)(B).

n29 I.R.C. § 7701(b)(1)(A)(i), (b)(3).

n30 I.R.C. § 7701(b)(1)(A)(i).

n31 Treas. Reg., 26 C.F.R. § 301.7701(b)-1(b) (2008). Page 18 17 U. Denv. Sports & Ent. Law J. 11, *

n32 See I.R.C. § 871.

n33 I.R.C. § 871(a).

n34 I.R.C. § 871(b) (such income is subject to deductions, and the graduated tax rates established by I.R.C. § 1).

n35 I.R.C. § 864(b).

n36 Taylor, supra note 15, at 384.

n37 I.R.C. § 871(a)-(b).

n38 Athletic performance income may include salaries, bonuses, and prize money.

n39 Athletic performance income may include salaries, bonuses, and prize money. See Appleby, supra note 7, at 619-22.

n40 I.R.C. § 864(b).

n41 Rev. Rul. 2004-109, 2004-2 C.B. 958 (2004), available at http://www.irs.gov/irb/2004-50_IRB/ar07.html ("Amounts an employer pays as bonuses for signing or ratifying a contract in connection with the establishment of the employer-employee relationship are wages . . . .").

n42 See I.R.C. § 871(b), supra note 34.

n43 Appleby, supra note 7, at 619.

Page 19 17 U. Denv. Sports & Ent. Law J. 11, * n44 Treas. Reg., 26 C.F.R. § 1.861-4(b) (2005). "The amount of compensation for labor or personal services performed within the United States determined on a time basis is the amount that bears the same relation to the individual's total compensation as the number of days of performance of the labor or personal services by the individual within the United States bears to his or her total number of days of performance of labor or personal services." Treas. Reg., 26 C.F.R. § 1.861-4(b)(2)(E) (2005).

n45 Appleby, supra note 7, at 619. Royalty income is not considered to be effectively connected with a U.S. trade or business, and thus subject to the final 30% gross withholding tax.

n46 Goosen v. Comm'r, 136 T.C. 547, 559 (2011).

n47 See id. at 559-60.

n48 See id. at 562.

n49 See id. at 562-63; Garcia v. Comm'r, 140 T.C. No. 6, 10-11 (2013); see also discussion infra Part III.A.1 (highlighting the U.S. Tax Court's treatment of endorsement income in Garcia as evidence of recognition of some of the key issues caused by the U.S.'s taxation of nonresident athletes).

n50 See 26 C.F.R. § 1.861-4(b), supra note 44.

n51 Goosen, 136 T.C. at 563 (citing I.R.C. §§ 861(a)(4), 862(a)(4)). While an endorsement contract may specify how royalty income should be sourced, courts are free to make their own determination if the allocation is determined to be unreasonable. Id. at 563-64. Sales of the endorsed product and the comparative sizes of the markets for the endorsed product are factors that may be used by the court in determining the appropriate apportionment of royalty income. Id. at 565-66.

n52 Annual Review of Football Finance 2013- Highlights, SPORTS BUSINESS GROUP (Deloitte, U.K.), June, 2013, at 6 [hereinafter Review of Football Finance], available at http://www.deloitte.com/view/en_GB/uk/industries/sportsbusinessgroup/sports/football/annual-review-of-footba ll-finance/.

n53 Appleby, supra note 7, at 623.

Page 20 17 U. Denv. Sports & Ent. Law J. 11, * n54 DANIEL SANDLER, THE TAXATION OF INTERNATIONAL ENTERTAINERS AND ATHLETES: ALL THE WORLD'S STAGE 121-22 (1995).

n55 Id. at 122.

n56 Guidance Note: Residence, Domicile and Remittance Basis, HM REVENUE & CUSTOMS, Oct. 2013, at 12 (U.K.), available at http://www.hmrc.gov.uk/cnr/rdr1.pdf.

n57 Guidance Note: Statutory Residency Test (SRT), HM REVENUE & CUSTOMS, Dec. 2013, at 8 (U.K.), available at http://www.hmrc.gov.uk/international/rdr3.pdf.

n58 Id. at 18, 23. The first of these additional tests applies only to individuals who own a home in the U.K., while the second requires an individual to have worked full-time in the U.K. during a 365 day period. Id. at 23.

n59 Id. at 28. The sufficient ties test is applied to individuals who do not meet the requirements of the U.K. tests or automatic overseas tests; the test considers both the number of days an individual spent in the U.K. during the tax year, and the individual's number of U.K. connections. Id. U.K. connections may include family ties, ac- commodation ties, work ties, 90-day ties, and country ties. Id.

n60 Id. at 8-10. An individual will satisfy an "automatic overseas test" if (1) the individual was a U.K. resident for one or more of the three preceding years and spends fewer than 16 days in the U.K. during the tax year; (2) was not a U.K. resident for any of the three preceding years and spends fewer than 46 days in the U.K. during the tax year; or (3) the individual works full-time overseas during the tax year without any significant breaks, spends fewer than 91 days in the U.K. during the tax year, and the number of days in the tax year on which the individual works for more than three hours in the U.K. is less than 31. Id.

n61 Id. at 6.

n62 Appleby, supra note 7, at 624. As a result of the scheduler system, "all income must be traced to a specific type of source to determine the extent of taxation." Id.

n63 Id. at 624.

n64 Id.

Page 21 17 U. Denv. Sports & Ent. Law J. 11, *

n65 Income Tax Rates and Allowances, HM REVENUE & CUSTOMS, http://www.hmrc.gov.uk/rates/it.htm (last visited Feb. 1, 2014).

n66 SANDLER, supra note 54, at 132.

n67 Appleby, supra note 7, at 624.

n68 Id.

n69 The Income Tax (Entertainers and Sportsmen) Regulations, 1987, S.I. 530, art. 2, P 1 (U.K.).

n70 A Guide to Paying Foreign Entertainers, HM REVENUE & CUSTOMS, http://www.hmrc.gov.uk/leaflets/feu50_0300.htm (last visited Feb. 1, 2014).

n71 Id.

n72 Id.

n73 Id. ("The following list is not exhaustive. [Athletes], golfers, cricketers, footballers, tennis players, boxers, snooker players, darts players, motor racing drivers, jockeys, ice skaters, contestants in chess tournaments . . . .").

n74 "Payment" is interpreted broadly, and may include appearance fees, TV rights, tournament winnings, prize money, advertising income, and endorsement fees. See id.

n75 Id.

n76 Id.

Page 22 17 U. Denv. Sports & Ent. Law J. 11, * n77 Appleby, supra note 7, at 626.

n78 Id.

n79 Agassi v. Robinson, [2006] UKHL 23 (appeal taken from EWCA) (U.K.).

n80 Appleby, supra note 7, at 626.

n81 See discussion of Usain Bolt's criticism of the U.K. tax system, infra Part III.

n82 INTERNATIONAL BASKETBALL FEDERATION, INTERNATIONAL BASKETBALL MIGRATION REPORT 6 (2012), [hereinafter FIBA MIGRATION REPORT] available at http://www.cies.ch/fileadmin/documents/Research/2012_FIBA_IBMR_light.pdf.

n83 See Appleby, supra note 7, at 631; Henrik Klevin et al., Taxation and the International Migration of Super- stars: Evidence from the European Football Market 17 (Nat'l Bureau of Econ. Research, Working Paper No. 16545, 2010) available at http://www.nber.org/papers/w16545.

n84 Appleby, supra note 7, at 631 (quoting ROMERO, FELIX P., GUIDE ON SPORTSPERSON TAXATION IN CERTAIN RELEVANT JURISDICTIONS 144 (2008)).

n85 Id. at 630-31.

n86 Id. at 632.

n87 Spanish Income Tax Rates 2012 to 2014, ADVOCO, http://www.advoco.es/hot-topics/102-spanish-income-tax-rates.html (last visited Feb. 19, 2014) (the 52% rate applies to income earned over [euro] 300,000). Significant "temporary" increases in tax rates applicable to Spanish residents are in effect for the 2012 to 2014 tax years. Id. Prior to these increases the top marginal rate applied to residents was 43%. Appleby, supra note 7, at 631.

n88 Klevin, supra note 83, at 17.

Page 23 17 U. Denv. Sports & Ent. Law J. 11, *

n89 Appleby, supra note 7, at 631.

n90 Id.

n91 Beckham's Law Survives, ADVOCO, http://www.advoco.es/advice/8-personal-tax/70-beckhams-law.html (last visited Feb. 8, 2014).

n92 Appleby, supra note 7, at 632.

n93 See id. at 633. In recent cases Spanish courts have held nonresidents' image rights income to be a general royalty subject to a 15% withholding tax, analogous to a copyright and subject to a "preferential withholding-rate of 0-5% under most treaties," and finally a business tax subject to no withholding tax. Id.

n94 Id.

n95 Id. at 632.

n96 Id.

n97 Brazil, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/the-world-factbook/geos/br.html (last updated Jan. 28, 2014).

n98 Official Olympic Games Results, OLYMPIC.ORG, http://www.olympic.org/olympic-results/ (search "Search For Medalist" for "Brazil" and "London 2012") (last visited Feb. 8, 2014).

n99 FIFA/Coca-Cola World Ranking, FIFA, http://www.fifa.com/worldranking/rankingtable/ (last updated Jan. 16, 2014).

n100 The Strongest National League of the World, IFFHS (Jan. 29, 2014), http://www.iffhs.de/the-strongest-national-league-of-the-world/#more-187.

Page 24 17 U. Denv. Sports & Ent. Law J. 11, *

n101 FIFA World Cup, FIFA, http://www.fifa.com/worldcup/ (last visited Feb. 8, 2014).

n102 RIO 2016, http://www.rio2016.org/en (last visited Feb. 8, 2014).

n103 "If the individual has a temporary visa, they will not become a resident until: (1) arrival date if visa is for employment, (2) after 184 days in Brazil, or (3) the date they obtain a permanent visa or employment." Appleby, supra note 7, at n. 226 (citing ROMERO, FELIX P., GUIDE ON SPORTSPERSON TAXATION IN CERTAIN RELEVANT JURISDICTIONS 24 (2008)).

n104 Id. at 635 (citing Instruç[#xE3]o Normativa No. 208, de 27 de Setembro de 2002, D.O.U. de 11.3.2004. (Braz.)).

n105 Id.

n106 Id. The 15% flat rate tax on sponsorship and image rights is not dependent on the characterization of the income as either royalty payments or personal service income as it is in countries such as the United States. Id.; see discussion supra Part I.A.1.a.

n107 Appleby, supra note 7, at 635 (it is unclear whether this contribution tax is applied to image rights payments, or just those payments characterized as royalty payments).

n108 Appleby, supra note 7, at 634.

n109 Investing in the Country of Soccer, THE WORLD LAW GROUP, http://www.theworldlawgroup.com/files/file/docs/BRAZIL-WORLD_CUP_IN_BRAZIL_MAY_BRING_INVE STMENT.pdf (last visited Feb. 8, 2014) (infrastructure projects include the construction of airports and toll roads).

n110 Brazil Corporate- Tax Credits and Incentives, PRICEWATERHOUSECOOPERS, http://taxsummaries.pwc.com/uk/taxsummaries/wwts.nsf/ID/JDCN-89HRSD (last updated June 6, 2013. The "World Cup Law" as it is known, has been challenged on constitutional grounds in a case currently sitting before the Brazilian Supreme Court. Poonam Majithia, Does Brazil's World Cup Law violate its constitution?, LAW IN SPORT (Oct. 28, 2013), http://www.lawinsport.com/blog/poonam-majithia/item/does-brazil-s-world-cup-law-violate-its-constitution.

Page 25 17 U. Denv. Sports & Ent. Law J. 11, *

n111 Many former NHL players have left the NHL to play in the KHL, most notably former all-star Ilya Koval- chuk. Jameson Sempey, Rankign Former NHL Players Who Left for the KHL in 2013-14, BLEACHER RE- PORT (Sep. 8, 2013) http://bleacherreport.com/articles/1753504-ranking-former-nhl-players-who-left-for-the-khl-in-2013-14/page/1.

n112 For example, as discussed supra, Spain taxes Spanish residents up to a 28% higher rate than nonresidents. See supra note 87 and accompanying text.

n113 Tax Ties: Russia, KPMG (June 1, 2013), http://www.kpmg.com/global/en/issuesandinsights/articlespublications/taxation-international-executives/russia/p ages/income-tax.aspx.

n114 Id.

n115 Id. Several exceptions exist; however, none relate directly to the compensation generally collected by athletes. Id.

n116 Id. Again, there are several exceptions that would be unlikely to impact the taxation of income received by an athlete. See id.

n117 Id.

n118 See id.

n119 Id.

n120 NALOGOVYI KODEKS ROSSIISKOI FEDERATSII [NK RF] [Tax Code] art. 208 P 4 (Russ.), trans- lated in Tax Code of the Russian Federation, http://www.russian-tax-code.com/PartII/Section8/Chapter23.html (last vistited Feb. 11, 2014).

n121 Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital, U.S.-Russ., Jan. 1, 1994 [hereinafter U.S-Russ. Income Tax Treaty].

Page 26 17 U. Denv. Sports & Ent. Law J. 11, *

n122 See discussion infra Part I.B.1.

n123 U.S-Russ. Income Tax Treaty, supra note 117, at art. 14.

n124 Id. at arts. 12-13.

n125 Evans, supra note 9, at 304.

n126 Id. The result is an incomplete treaty network. See discussion supra Part I.A.4.b (highlighting the lack of an income tax treaty between the U.S. and Brazil).

n127 See id. at 318.

n128 See Appleby, supra note 7, at 643-46.

n129 Evans, supra note 9, at 305 (this contributes to the lack of uniformity in the current treaty network).

n130 Appleby, supra note 7, at 607-08.

n131 See Evans, supra note 9, at 305. Other model income tax treaties include the U.S. Model Treaty and the United Nations Model Double Taxation Convention between Developed and Developing Countries. United States Model Income Tax Convention, U.S., Nov. 15, 2006; U.N. DEP'T OF INT'L ECON. & SOC. AFFAIRS, U.N. MODEL DOUBLE TAXATION CONVENTION BETWEEN DEVELOPED AND DEVELOPING COUNTRIES, U.N. Doc. ST/ESA/PAD/SER.E/21 (2001).

n132 Members of the OECD include the U.S., the U.K., and Spain. Members and Partners, OECD, http://www.oecd.org/about/membersandpartners/ (last visited Feb. 1, 2014).

n133 Non-member countries include Brazil and Russia. See id.

Page 27 17 U. Denv. Sports & Ent. Law J. 11, *

n134 Evans, supra note 9, at 306.

n135 See Comm. on Fiscal Affairs, Org. for Econ. Co-Operation & Dev., Model Tax Convention on Income and on Capital, (Mar. 1, 1994) [hereinafter OECD Model Convention]. See also, Evans, supra note 9, at 307-11.

n136 OECD Model Convention, supra note 135, at M-22. Permanent establishment is defined by Article 5 as, "a fixed place of business through which the business of an enterprise is wholly or partly carried on." Id. at M-16.

n137 Id. at M-39.

n138 Id. at M-42.

n139 Id. at C(17)-2.

n140 Id. at C(17)-3.

n141 Evans, supra note 9, at 309. One reason for the singling out of athletes for different treatment by the Model Convention is athletes' ability to earn large amounts of income during a short visit to foreign country. Id. at 311.

n142 See id. at 320-26.

n143 Id. at 309 ("[Under] the exemption method- income that is taxable in the source country is exempted in the country of residence . . . [while under] the credit method- income that is taxable in the source country is subject to tax in the country of residence, but the tax levied by the source country is credited against the tax levied by the country of residence on such income.").

n144 U.S.-U.K. Income Tax Treaty, supra note 8, at art. 24.

n145 OECD Model Convention, supra note 135, at I-11. Examples of successfully implemented multilateral treaties include the Nordic Convention on Income and Capital, and the Multilateral Convention on Mutual Ad- ministrative Assistance in Tax Matters (MAAT). Evans, supra note 9, at 318. MAAT, of which the U.S. is a Page 28 17 U. Denv. Sports & Ent. Law J. 11, * signatory, provides for the exchange of information and administrative assistance in recovering tax claims between member countries. Id.

n146 See Appleby, supra note 7, at 639-43; Evans supra note 8, 320-22, 327-29. Some commentators have suggested that although a multilateral treaty could facilitate the elimination of double taxation, the current prevalence of Artiste and Athlete provisions in bilateral treaties indicates countries are more concerned with retaining their share of foreign athletes income. Evans, supra note 9, at 327.

n147 In 2009, the global professional sports industry was estimated to be worth between $ 480 and $ 620 billion. Patrice Zygband & Hervé Collignon, The Sports Market, A.T. KEARNEY (May 2011), http://www.atkearney.com/paper/-/asset_publisher/dVxv4Hz2h8bS/content/the-sports-market/10192#.

n148 See Sheela Lal, Nationalism, Competition, and Diplomacy: Asia at the 2012 London Olympics: An Inter- view with Victor Cha, THE NAT'L BUREAU OF ASIAN RESEARCH (July 24, 2012), http://www.nbr.org/research/activity.aspx?id=264#.UwElLnl0FnE ("Nationalism is intense in China, and I believe that if the Chinese are pitted against the Americans in any event, there will be special attention paid to every victory as yet another sign of China's rise.").

n149 For example, the United States Olympic Committee had expenses of $ 249 million in 2012, including $ 101 million attributable to sports programming. USOC, ANNUAL REPORT (2012).

n150 See, e.g., supra notes 2-3 and accompanying text.

n151 Spain and Brazil are international soccer powers, winning the 2010 and 2002 World Cups respectively. World Cup Previous Winners, TOP END SPORTS, http://www.topendsports.com/events/worldcupsoccer/winners.htm (last visited Feb. 4, 2014). Russia took home 15 medals at the 2010 Winter Olympic Games and 30 at the 2012 Summer Olympic Games. Official Olympic Games Results, OLYMPIC.ORG, http://www.olympic.org/olympic-results (last visited Feb. 4, 2014).

n152 Daniel Kaplan, The Road to $ 25 Billion, SPORTS BUSINESS DAILY, Jan. 28, 2013, at 20, available at http://www.sportsbusinessdaily.com/Journal/Issues/2013/01/28/In-Depth/NFLrevenue-streams.aspx.

n153 Matt Snyder, Report: MLB revenues in 2012 were $ 7.5 billion, CBS SPORTS (Dec. 9, 2012, 3:42 PM), http://www.cbssports.com/mlb/eye-onbaseball/21335810/report-mlb-revenues-in-2012-were-75-billion.

n154 Stern Estimates Revenue Up 20 Percent to $ 5B, NBA.COM (Nov. 13, 2012, 6:48 PM), http://www.nba.com/2012/news/11/13/stern-nba-revenue.ap/. Page 29 17 U. Denv. Sports & Ent. Law J. 11, *

n155 Competition Calendar, FIVB.ORG, http://www.fivb.org/EN/BeachVolleyball/calendar.asp (last visited Feb. 4, 2014).

n156 Competitions, IAAF.ORG, http://www.iaaf.org/competition (last visited Feb. 4, 2014).

n157 Calendar, FIS.COM, http://data.fis-ski.com/global-links/calendar.html (last visited Feb. 4, 2014).

n158 Review of Football Finance, supra note 52, at 6.

n159 The 2013 British Open, like the 2013 U.S. Open, featured an $ 8 million purse- among the largest in professional golf. British Open Prize Money, GOLF AND COURSE (July 21, 2013) http://www.golfandcourse.com/news/british-openprize-money.

n160 Review of Football Finance, supra note 52, at 6.

n161 FIBA MIGRATION REPORT, supra note 82, at 16.

n162 Id. at 6.

n163 The Strongest National League of the World, supra note 100; Club World Ranking, IFFHS (Jan. 8, 2014) http://www.iffhs.de/club-world-ranking/.

n164 Sempey, supra note 111.

n165 In 2013, the average yearly salary of athletes competing in U.S. leagues and tours ranged from $ 5.2 million for NBA players, to $ 162,000 for women's golf (LPGA). Professional Sport Average Salary, STATISTIC BRAIN, http://www.statisticbrain.com/professional-sports-average-salary-revenuesalary-cap/ (last updated July 28, 2013).

Page 30 17 U. Denv. Sports & Ent. Law J. 11, * n166 For example, the EPL had revenues EUR 1 billion greater than La Liga in 2011-12. Review of Football Finance, supra note 52, at 6.

n167 Appleby, supra note 7, at 641.

n168 See generally, Mitchell L. Engler, The Untaxed King of South Beach: Lebron James and the NBA Salary Cap 48 San Diego L. Rev. 601 (2011) (discussing the competitive impact of salary caps on professional sports leagues).

n169 Heat Stars Sign 6-Year Deals, ESPN (July 10, 2010), http://sports.espn.go.com/nba/news/story?id=5368003.

n170 See Engler, supra note 168, at 602-03.

n171 This concept is not exclusive to team sports, and can also be applied to individual sports where individual events compete to add elite athletes to their fields.

n172 See Usain Bolt Tax Bill: Why Sports Stars Won't Compete in Britain, supra note 10.

n173 Id.

n174 Matt Blumenfeld, Pacquiao Takes Fight in Macau, U.S. Federal Income Tax Rate Proves Too High, AMERICANS FOR TAX REFORM (May 7, 2013, 11:01 AM) http://www.atr.org/pacquiao-takes-fight-macau-u-s-a7603.

n175 Id.

n176 See id. See also, Appleby, supra note 7, at 638.

n177 Nonresident athletes' U.S.-source income that is effectively connected to a U.S. trade or business is subject to a maximum progressive tax rate of 39.6%. I.R.C. § 1 (2013); see discussion supra Part I.A.1.b. The U.K. taxes nonresident athletes' U.K.-source income at a maximum progressive rate of 45%. See discussion supra Part Page 31 17 U. Denv. Sports & Ent. Law J. 11, *

I.A.2.b. Meanwhile, Spain taxes nonresident athletes at a flat rate of 30%, Brazil at progressive rates of up to 27.5%, and Russia at a flat rate of 30%. See discussion supra Parts I.A.3.b, I.A.4.b, I.A.5.b.

n178 See discussion supra Parts I.A.1.a, I.A.2.a.

n179 See discussion supra Part I.A.1.c.

n180 See Taylor, supra note 15, at 391-95; The Income Tax (Entertainers and Sportsmen) Regulations, supra note 69.

n181 See Taylor, supra note 15, at 391-92.

n182 U.S. DEP'T OF TREASURY, A COMPREHENSIVE STRATEGY FOR REDUCING THE TAX GAP (2006).

n183 See id.

n184 See Taylor, supra note 15, at 396.

n185 IRS Focus on Foreign Athletes and Entertainers, IRS.GOV, http://www.irs.gov/Individuals/International-Taxpayers/IRS-Focus-on-Foreign-Athletes-and-Entertainers (last updated Sep. 3, 2013).

n186 See Taylor, supra note 15, at 398 (suggesting the IRS targets athletes "because they get the most bang for their buck in terms of publicity," and furthermore that nonresident athletes enjoy benefits and services from the countries in which they compete, and as a result should pay their fair share of taxes).

n187 See id. at 401.

n188 The Income Tax (Entertainers and Sportsmen) Regulations, supra note 69.

Page 32 17 U. Denv. Sports & Ent. Law J. 11, * n189 Foreign Entertainers Unit, HM REVENUE & CUSTOMS, http://www.hmrc.gov.uk/feu/feu.htm (last visited Feb. 10, 2014).

n190 See Garcia v. Commissioner, 140 T.C. No. 6, at *8-11 (2013).

n191 Seth W. Stern, The IRS' Double Bogey: Goosen v. Commissioner Remains a Fairway to Characterize En- dorsement Income for Nonresident Athletes in Garcia v. Commissioner, 20 Jeffrey S. Moorad Sports L.J. 605, 628 (2013).

n192 See London 2012 Accredited Individuals: Income Tax Exemptions, HM REVENUE & CUSTOMS, http://www.hmrc.gov.uk/2012games/tax-exemptions/accredited-individuals.htm (last visited Jan. 14, 2014).

n193 See Goosen v. Commissioner, 136 T.C. 547, 547 (2011); Garcia, 140 T.C. at *1.

n194 Goosen, 136 T.C. at 563, Garcia, 140 T.C. at *11.

n195 I.R.C. § 1 (2013) (the top rate is 39.6% for income over $ 250,000).

n196 See I.R.C. § 871(a) (2013); see also supra note 45.

n197 Goosen, 136 T.C. at 563.

n198 Garcia, 140 T.C. at *11

n199 Goosen, 136 T.C. at 563-64; Garcia, 140 T.C. at 151-52.

n200 See Goosen, 136 T.C. at 563-64; Garcia, 140 T.C. at 151-52; see also Stern, supra note 191, at 628.

n201 Garcia, 140 T.C. at 154.

Page 33 17 U. Denv. Sports & Ent. Law J. 11, *

n202 Stern, supra note 191, at 628.

n203 London 2012 Accredited Individuals: Income Tax Exemptions, supra note 192.

n204 Finance Act, 2006, c. 6 (U.K.).

n205 Additional Information For Non-UK Resident Competitors at the 2012 Games, HM REVENUE & CUS- TOMS, http://www.hmrc.gov.uk/2012games/tax-exemptions/competitors.htm (last visited Feb. 17, 2014).

n206 The exemption period ran from March 30, 2012 to November 8, 2012. London 2012 Accredited Individu- als: Income Tax Exemptions, supra note 192.

n207 See Stern, supra note 191, at 628.

n208 See Accredited Individuals and 2012 Partner Workers: Business Profits Exemption, HM REVENUE & CUSTOMS, http://www.hmrc.gov.uk/2012games/tax-exemptions/bus-profits-exemption.htm (last visited Feb. 18, 2014) (providing a tax exemption for certain non-resident companies that engage in Games-related activities).

n209 See Finance Act, 2006, c. 6 (U.K.).

n210 Lee Boyce, Olympic Stars Face Tax Sting in the Tail from London 2012, MAIL ONLINE (June 28, 2011), http://www.thisismoney.co.uk/money/news/article-2009104/Olympics-stars-face-taxed-promotional-work-Lond on-2012.html.

n211 See discussion supra Part III.

n212 See Klevin, supra note 83, at 17.

n213 Appleby, supra note 7, at 631 (the favorable treatment provided by the Beckham Law is applied the year of the taxpayer's move and the following five years).

Page 34 17 U. Denv. Sports & Ent. Law J. 11, *

n214 Klevin, supra note 83, at 17-18, fig. 2 (top-quality players are defined as players having played at least once over the career in the national team of [their] home country); see Spanish Income Tax Rates 2012 to 2014, supra note 87 (with the increases in the graduated rates applied to Spanish residents for the 2012-2014 tax years the favorable treatment of the Beckham Law will be magnified).

n215 See Klevin, supra note 83, at 19.

n216 Id. To qualify for the preferential treatment an individual must not have been tax liable for the three years prior, and earn over 765,600 Danish kroner ([euro] 103,000) annually. Id. Preferential treatment is limited to a period of 36 months. Id.

n217 See id. at 19-21.

n218 Appleby, supra note 7, at 635.

n219 I.R.C. § 1(a)-(d) (2013); Income Tax Rates and Allowances, HM REVENUE & CUSTOMS, http://www.hmrc.gov.uk/rates/it.htm (last visited Feb. 1, 2014).

n220 See Taylor, supra note 15, at 397. In 2008, race car driver Helio Castroneves was indicted on charges relating to tax evasion in the U.S., "IRS Commissioner Doug Shulman commented on the Castroneves situation, stating, '[t]his case sends a clear message that the IRS is committed to vigorously enforcing the tax laws and stopping offshore tax evasion.'" Id.

n221 Id. at 398.

n222 See supra note 1 (discussing the countries in which golfer Tiger Woods, and tennis star Novak Djokovic competed in during 2013).

n223 See discussion supra Part I.A.

n224 Spain's Beckham Law appears to be the major exception to this general trend. However, this law has been amended, and the beneficial treatment scaled back, in recent years. See Klevin, supra note 83, at 17; discussion supra Part I.A.3.b. Page 35 17 U. Denv. Sports & Ent. Law J. 11, *

n225 See discussion supra Part IV (highlighting Spain's Beckham Law and Denmark's Tax Scheme for Foreign Researchers and Key Employees).

n226 For example, the NHL season runs from October through April, and the KHL season runs from September to March. 2013-2014 Regular Season, NHL.COM, http://www.nhl.com/ice/schedulebyseason.htm?navid=nav-sch-sea (last visited Feb. 12, 2014); Scores and Schedules, KONTINENTAL HOCKEY LEAGUE, http://en.khl.ru/calendar/244/00/ (last visited Feb. 12, 2014). As a result, players in both leagues would be deemed residents of the U.S. and Russia respectively for income tax purposes.

n227 Tax Ties: Russia, supra note 113.

n228 26 U.S.C.A. § 1 (2014).

n229 Mike Sielski, For Kovalchuk, a Tax Break Leaving New Jersey for Russia, WALL ST. J. (July 15, 2013 6:54 PM), http://online.wsj.com/news/articles/SB10001424127887323394504578607984088103500.

n230 The fact that boxing and MMA matches require a smaller number of athletes than many other sports makes them highly mobile, increasing the athlete's ability to be selective of the countries in which the compete.

n231 Events, UFC.COM, http://www.ufc.com/schedule/event (last visited Feb. 12, 2014).

n232 Andrew K. Rose & Mark M. Spiegel, The Olympic Effect, 121 THE ECON. J. 652, 675 (2011) (suggesting that countries that host the Olympic Games experience a significant permanent increase in trade).

n233 Finance Act, 2006, c. 6 (U.K.); London 2012 Accredited Individuals: Income Tax Exemptions, supra note 192.

n234 Boyce, supra note 210.

n235 See supra note 110 and accompanying text. Page 36 17 U. Denv. Sports & Ent. Law J. 11, *

n236 Both NFL commissioner Roger Goodell, and NBA commissioner David Stern have expressed optimism that their respective leagues will expand into Europe in the future. Will Brinson, Roger Goodell on LA or Lon- don team first: 'I want both', CBS SPORTS (Oct. 26, 2013), http://www.cbssports.com/nfl/eye-on-football/24142624/roger-goodell-on-la-or-london-nfl-team-first-i-want-bot h; Eric Freeman, David Stern says there will be NBA teams in Europe in 20 years, 'for sure', YAHOO! SPORTS (Jan. 14, 2013), http://sports.yahoo.com/blogs/nba-ball-dont-lie/david-stern-says-nba-teams-europe-20-years-160341699--nba.ht ml.

n237 See generally Engler, supra note 168.

n238 See Majithia, supra note 110 (discussing the challenge of Brazil's "World Cup Law" on constitutional grounds).

n239 See discussion supra Part IV.

n240 Kleven, supra note 83, at 17-19, fig. 2.

n241 See discussion of Manny Pacquiao and Usain Bolt supra Part III.

n242 See discussion supra Part III; Taylor, supra note 15, at 401 ("[T]he concept of focusing on artists and athletes seems to go against earlier Treasury sentiment of wanting to promote - or at least not hinder-the flow of talent into the United States.")

n243 Taylor, supra note 15, at 402 (suggesting foreign athletes may perceive an additional tax burden when competing in the U.S. based on their lack of understanding of the foreign tax credits provided to them through their country's tax treaty with the United States).

n244 An analogy can be drawn to the U.S.'s treatment of signing bonuses. After thirty years of unclear treatment of signing bonuses, resulting in significant confusion among athletes, the IRS's clearly communicated position on signing bonus income in Revenue Ruling 2004-109 has eliminated almost all athlete concerns regarding the taxation of such income. See Appleby, supra note 7, at 621-22.

n245 Evans, supra note 9, at 309.

Page 37 17 U. Denv. Sports & Ent. Law J. 11, *

n246 See U.S.-U.K. Income Tax Treaty, supra note 8, at art. 24 (providing for the elimination of double taxation through the credit method).

n247 See Appleby, supra note 7, at 641 (explaining athletes are their own brand, and bad publicity can cost them millions of dollars in endorsements).

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Washington University Global Studies Law Review

Volume 13 | Issue 4

2014 The oS cial Cost of Baseball: Addressing the Effects 0f Major League Baseball Recruitment in Latin America and the Caribbean Emily B. Ottenson

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Recommended Citation Emily B. Ottenson, The Social Cost of Baseball: Addressing the Effects 0f Major League Baseball Recruitment in Latin America and the Caribbean, 13 Wash. U. Global Stud. L. Rev. 767 (2014), http://openscholarship.wustl.edu/law_globalstudies/vol13/iss4/8

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THE SOCIAL COST OF BASEBALL: ADDRESSING THE EFFECTS OF MAJOR LEAGUE BASEBALL RECRUITMENT IN LATIN AMERICA AND THE CARIBBEAN

Baseball is the U.S.-American pastime.1 Even endless debates over the significance of gradually declining ticket sales2 and television ratings3 have not altered the game’s special place in the hearts of many North Americans. Its revered place in the social fabric of the United States is evident: from its historic ties to cultural ideals of “Americanism,”4 to the government’s fervent attempts to protect it from the tarnish of scandal,5 to

1. When baseball’s popularity began to rise in the early 1900s and it became a more commercial enterprise, “some promoters and former amateur players called for a return to the pre-commercial era when money was not associated with the game . . . help[ing] create the myth of baseball’s history as one defined by a pre-industrial pastoral heritage that was uncorrupted by the marketplace. This hearkening back to a “golden age” demonstrated the ambivalence felt toward associating baseball with the marketplace.” Robin F. Bachin, At the Nexus of Labor and Leisure: Baseball, Nativism, and the 1919 Black Sox Scandal, 36 J. OF SOC. HIST. 941, 945 (2003). As a result, different groups called for baseball to be formally crowned the American pastime. Baseball’s owners, promoters, and fans embraced the idea of a pastoral heritage, separate and distinct from the capitalist marketplace. Id. 2. See, e.g., Patrick Rishe, Reality Check Regarding Downward Trends For 2013 MLB Attendance, FORBES, June 1, 2013, http://www.forbes.com/sites/prishe/2013/06/01/reality-check- regarding-downward-trends-for-2013-mlb-attendance/; Ira Boudway, Why Are Baseball Fans Staying Home?, BLOOMBERG BUSINESSWEEK, May 9, 2013, http://www.businessweek.com/articles/2013-05- 09/why-are-baseball-fans-staying-home. 3. See, e.g., Andy Benoit, Football, Baseball, and the Evolving Taste of Fans, THE FIFTH DOWN: THE NEW YORK TIMES N.F.L. BLOG, Apr. 17, 2012, http://fifthdown.blogs.nytimes.com/ 2012/ 04/17/football-baseball-and-the-evolving-tastes-of-fans/?_php=true&_type=blogs&_r=0; Joey Spitz, Is America’s Pastime Dying a Slow Death?, HUFFINGTON POST SPORTS, Aug. 1, 2013, http://www. huffingtonpost.com/joey-spitz/is-americas-pastime-dying_b_3686366.html; Craig Calcaterra, Doomsayers Be Damned: Baseball is Healthy and Ratings Are Strong, NBC SPORTS HARDBALLTALK, Oct. 28, 2013, http://hardballtalk.nbcsports.com/2013/10/28/doomsayers-be-damned-baseball-is-healthy-and- ratings-are-strong/. 4. Play and recreation became central elements in the fight to promote Americanism at home, both during and after World War I. Civic leaders looked to the organized play movement as a source for instilling patriotic values in working class ethnic youth in the cities. . . . The most effective game for promoting team spirit, according to play promoters and reformers, was baseball. They looked to baseball and its rules promoting discipline, order, and self-sacrifice as a means of instilling nationalism and loyalty in the urban working-class. Bachin, supra note 1, at 943–44. 5. In the 1920s, following allegations of illegal fixing of baseball games, then-Illinois State’s Attorney Maclay Hoyne began an investigation into the sport. Id. at 950. What resulted was the discovery of the infamous 1919 “Black Sox” scandal, in which eight White Sox players were revealed to have fixed the results of the 1919 World Series. They were charged with “conspiracy to defraud the public, . . . conspiracy to commit a confidence game. . . and conspiracy to injure the business of [White Sox owner] Charles A. Comiskey.” Id. at 952. The scandal is still well-known and has been memorialized in both print and cinema. See also Eliot Asinof, EIGHT MEN OUT: THE BLACK SOX AND THE 1919 WORLD SERIES (1963); EIGHT MEN OUT (MGM 1988). More familiar to many Americans will be the Congressional investigation into baseball’s steroids scandal during the early 2000s. In 2005, the United States Congress opened an investigation into the

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its prominent and highly sentimentalized role in first the preservation then the dismantling of racial segregation.6 But baseball also embodies a more controversial reputation of U.S.-American culture: globalization, the neo- colonialism.7 Overseas, the game is very much alive and thriving. For baseball, the concerns surrounding its expanding global influence are as troubling and significant as for any corporation calling the United States its home.8

use of steroids in baseball, citing as one motivation for its attempts to redeem the purity of the game the negative influence that steroid use by baseball’s superstars would have on young athletes in the United States. Maria Newman, Congress Opens Hearings on Steroid Use in Baseball, N.Y. TIMES, Mar. 18, 2005, http://www.nytimes.com/learning/teachers/featured_articles/20050318friday.html. See also Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball (“The Mitchell Report”), Dec. 13, 2007, available at http://files.mlb.com/mitchrpt.pdf. 6. Although baseball was somewhat integrated in the late 1800s, the game gradually became increasingly subject to racial prejudices, becoming completely segregated by the early 1900s. Daniel A. Nathan, Bearing Witness to Blackball: Buck O’Neil, the Negro Leagues, and the Politics of the Past, 35 J. OF AM. STUD. 453, 456 (2001). As the fight for racial equality rose to the forefront of social consciousness following World War II, baseball resisted change, despite mounting pressure. Id. In the words of author Robert Peterson, “Organized baseball was steeped—perhaps a better word would be pickled—in tradition. [S]ince there had not been a Negro in the organized leagues in the memory of most baseball men, it must be part of God’s plan that there should be none.” ROBERT PETERSON, ONLY THE BALL WAS WHITE: A HISTORY OF LEGENDARY BLACK PLAYERS AND ALL-BLACK PROFESSIONAL TEAMS 175 (1970); see also Bill L. Weaver, The Black Press and the Assault on Professional Baseball’s “Color Line,” October, 1945–April, 1947, 40 PHYLON 303, 304 (1979). Branch Rickey, the owner of the Brooklyn Dodgers, unexpectedly announced Jackie Robinson’s signing on October 29, 1945. Robinson played his historic first game in the Major Leagues on April 15, 1947, tolling the bell for the segregation era in Major League Baseball. Id. at 305; See also PETERSON, ONLY THE BALL WAS WHITE at 198. For a thorough history of Jackie Robinson’s role in the integration of baseball, see TYGIEL, JULES, BASEBALL’S GREAT EXPERIMENT: JACKIE ROBINSON AND HIS LEGACY, expanded ed., (1997). 7. “A. G. Spalding, one of the game’s first great stars and its first significant entrepreneur, boldly proclaimed in 1910 that the function of baseball was to ‘follow the flag around the world.’” Alan M. Klein, Culture, Politics, and Baseball in the Dominican Republic, 22 LATIN AMERICAN PERSPECTIVES 111, 113 (1995) [hereinafter Klein, Culture, Politics, and Baseball]. Author Alan M. Klein explains the theory of neo-colonialism as it applies to baseball: Andre Gunder Frank was among the first to explore the impact of colonialism in Latin America from a perspective focusing on dependency. In his view the relationship between colonialist nation (core) and colony (periphery) is one of simultaneous development and underdevelopment. The core nation expropriates the colony’s resources and imports them for processing and manufacture. Finished products are consumed in the home market as well as reexported to the colony. This dynamic results in the enrichment of the core and the impoverishment of the periphery. The system is often guaranteed at first by a direct military presence; in a neocolonial setting it can usually be sustained simply by the threat of force and the political and economic power of the multinational. . . . The same principles can be seen operating in the world of baseball. ALAN KLEIN, SUGARBALL: THE AMERICAN GAME, THE DOMINICAN DREAM 55 (1991); see also Klein, Culture, Politics, and Baseball, at 151 (discussing the colonial roots of baseball in the Caribbean). 8. As is the case for many major U.S. corporations, MLB teams are increasingly outsourcing to meet their needs. While overseas recruitment of players has notably increased over the past several decades, baseball can also thank Costa Rica for its baseballs (previously manufactured in Haiti) and

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In the late 1800s, the emerging pastime of the United States was introduced in Cuba, where it quickly took root before spreading south and west, making its way onto fields throughout Central America and the Caribbean.9 In the United States, baseball’s expansion was similarly rapid. The first professional league, the National Association of Professional Baseball Players, started in 1871 and was closely followed by the National League in 1876.10 The American League began in 1901 and quickly became the National League’s most successful competitor at the ticket window. In 1903, the National League and American League played the first World Series.11 Major League Baseball never looked back. Professional baseball is firmly entrenched as a sporting institution in the United States. In 2000, the National and American Leagues officially disbanded, and were re-organized collectively as Major League Baseball (“MLB”), the corporate entity that serves as the collective nerve center of thirty teams operating in the United States and Canada.12 The Office of the Commissioner of Baseball in New York City manages the MLB.13 Today, baseball’s popularity in Latin America and the Caribbean is obvious. With each passing MLB season, more and more Latin American and Caribbean baseball players compete on Major League teams.14

Taiwan for its baseball gloves. KLEIN, SUGARBALL, supra note 7, at 57; Leslie Josephs, Made in Costa Rica: U.S. Major League Baseballs, REUTERS, Mar. 9, 2010, http://www.reuters.com/article/2010/ 03/09/us-costarica-baseballs-idUSTRE62831Z20100309. 9. Baseball was first introduced to Latin America in the 1860s. See ROB RUCK, THE TROPIC OF BASEBALL: BASEBALL IN THE DOMINICAN REPUBLIC 1–2 (1991) [hereinafter RUCK, THE TROPIC OF BASEBALL]. Cubans, who learned to play the game while visiting the United States, along with Americans traveling to the island country, helped to popularize the sport in Cuba. Id. Cuban players traveling in Latin America then spread the game throughout the Caribbean. Jose M. Alamillo, Peloteros in Paradise: Mexican American Baseball and Oppositional Politics in Southern California, 1930–1950, 34 W. HIST. Q. 191, 192 (2003). See also Rob Ruck, Baseball’s Recruitment Abuses, AMERICAS QUARTERLY (2011), http://americasquarterly.org/node/2745 [hereinafter Ruck, Baseball’s Recruitment Abuses]. 10. MLB.com, The Commissionership: A Historical Perspective, MLB, http://mlb.mlb.com/mlb/ history/mlb_history_people.jsp?story=com (last visited Mar. 28, 2014). 11. Id. 12. Company Overview of Major League Baseball Enterprises, Inc., BLOOMBERG BUSINESSWEEK (July 12, 2014), http://www.bloomberg.com/research/common/symbollookup/ symbollookup.asp?lookuptype=private®ion=all (in search box, type “Major League Baseball Enterprises” and press “go,” then under search results, select “Major League Baseball Enterprises, Inc.”); see also MLB.com (July 12, 2014), http://mlb.mlb.com/home. 13. See MLB.com, MLB Official Info, MLB, http://mlb.mlb.com/mlb/official_info/ about_mlb/ (last visited Mar. 28, 2014). 14. Latin American ballplayers: [N]ow comprise more than a quarter of all major leaguers, about half of all minor leaguers, and . . . dominate the ranks of the game’s best players. Latinos won half the Silver Slugger Awards—given to the best offensive players at each position in the National and American

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Coinciding with this shift in demographics is a new challenge, as Major League teams increasingly look beyond North America to recruit future superstars. MLB must balance international recruitment with rising concerns regarding the potential exploitation of foreign players and their governments. Unfortunately (but perhaps predictably), MLB has focused almost exclusively on the end result—the quality and marketability of talent on the Major League playing field—to the detriment of those players whose names will never be seen on an official box score, and to the places where they learned to play the game. As Caribbean nations develop and become more politically and economically independent, MLB’s international recruitment methods face increasing levels of scrutiny and criticism.15 The teams comprising the world’s premier baseball empire16 have discovered a wealth of talent in Latin American and Caribbean nations, where baseball is often revered and feverishly popular.17 In their collective bid to win games and bring

Leagues—[in the 2010 season] and represent a staggering 40 percent of the players nominated for the 2011 All-Star game. Ruck, Baseball’s Recruitment Abuses, supra note 9. 15. See, e.g., id.; Neil Genzlinger, ‘Ballplayer: Pelotero,’ Baseball Scouting in the Dominican Republic, N.Y. TIMES, July 12, 2012, http://www.nytimes.com/2012/07/13/movies/ballplayer- pelotero-baseball-scouting-in-the-dominican-republic.html; Jeffrey S. Storms, El Montículo (“The Mound”): The Disparate Treatment of Latin American Baseball Players in Major League Baseball, 2 U. ST. THOMAS J.L. & PUB. POL’Y 81 (2008); ARTURO J. MARCANO GUEVARA & DAVID P. FIDLER, STEALING LIVES: THE GLOBALIZATION OF BASEBALL AND THE TRAGIC STORY OF ALEXIS QUIROZ (2002). 16. “While numerous countries have baseball, basketball, and hockey, the champions of North American leagues are widely regarded as the best teams. In addition, MLB, the National Basketball Association (NBA), and the National Hockey League (NHL) are the most visible and leading organizers and promoters of these sports.” Mark S. Rosentraub, Governing Sports in the Global Era: A Political Economy of Major League Baseball and Its Stakeholders, 8 IND. J. GLOBAL LEGAL STUD. 121, 122 (2000). 17. In Cuba, for example, baseball has long stood as a symbol for independence and national identity. Louis A. Perez, Jr., Between Baseball and Bullfighting: The Quest for Nationality in Cuba, 1868–1898, J. OF AM. HIST. 493 (1994). The game was popularized there as Cuba sought independence from Spain, which outlawed the game in an attempt to quell the influence of U.S.- American culture on the country. Id. at 494. The attempt was unsuccessful: today, baseball is still a major sport in Cuba. Id. at 493. Two other Western Hemisphere countries where baseball is thriving are the Dominican Republic and Venezuela. The Dominican Republic has been playing baseball since the 1870s, when Cubans exiled during the Ten Years’ War brought the game to Hispaniola. See RUCK, THE TROPIC OF BASEBALL, supra note 9, at 4. Today, Dominican baseball is a complex, multilayered symbol of independence and national power in a country that still has strong colonial ties to the United States (ironically, baseball’s birthplace). See KLEIN, SUGARBALL, supra note 7, at 1–4, 34–37, 104–36. The Dominican Republic’s relationship with baseball, and with the United States, is complicated and fascinating, and deserving of much more attention than can be dedicated here. For a look at Dominican Baseball, see generally id. A brief except from Klein provides some background on the influx of Dominican players into MLB: [T]he number of Dominicans playing [in the Major Leagues] in North America began as a trickle in the late 1950s and early 1960s, then grew to forty-nine between 1955 and 1980 and

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fans through the gates, these MLB teams aggressively recruit Latin American and Caribbean players, hoping to find the superstars of tomorrow. Unfortunately this process provides little reward for the players’ countries or themselves, short of the lucrative contracts that less than one percent of these players can hope to secure in the United States.18 The goal of the MLB’s international recruitment should extend beyond the mere financial and competitive advantages it provides by developing ways to recruit Latin American and Caribbean players without disadvantaging the players, as well as their countries, in the long run.19 Latin American and Caribbean countries should be financially compensated for the loss of native baseball players to MLB teams. Players recruited from Latin America and the Caribbean should be afforded the same rights and privileges as U.S., Puerto Rican, and Canadian players, and MLB should not be permitted to recruit them without some acceptable level of restraint or oversight.20 This Note offers one possible solution to

to hundreds in the 1980s. Two factors were responsible for this rapid growth: the forging of “working relationships” between North American and Dominican teams, and a change in the scheduling of the Dominican baseball season from summer to winter. . . . The scheduling change made Dominican baseball a complement to major league baseball rather than a competitor with it. Id. at 35. This scheduling change has made baseball a year-round cultural presence in the country. Dominicans playing on MLB teams are followed by the press during the MLB season; attention turns to the Dominican Leagues during the winter. Baseball came to Venezuela sometime around the 1890s. See Jason Turbow, World Series Gives Venezuela Much to Root For, N.Y. TIMES, Oct. 25, 2012, http://www.nytimes.com/2012/10/26/sports/baseball/world-series-gives-venezuela-much-to-root-for. html?_r=0. The first professional leagues formed there between 1910 and 1920. Id. 18. While there are many Latin American baseball players in the Major Leagues (as of Opening Day 2013, there were 89 Dominicans, 63 Venezuelans, 15 Cubans, 14 Mexicans, 13 Puerto Ricans, 4 Columbians, and 4 Panamanians on Major League Rosters representing 24.2% of players (see Opening Day: Over 28 Percent of MLB Players Are Foreign-Born, FOX NEWS LATINO (Apr. 3, 2013), http://latino.foxnews.com/latino/sports/2013/04/03/over-28-percent-players-were-foreign-born-in-mlb- opening-day/), they represent a very small percentage of the actual number of young ballplayers hoping to crack a Major League roster. See, e.g., Angel Vargas, The Globalization of Baseball: A Latin American Perspective, 8 IND. J. GLOBAL LEGAL STUD. 21，24 (“The well-known baseball writer Milton Jamail accurately observed that ‘[t]here’s not a kid in the Caribbean who reaches his 14th birthday without being seen by the major-league teams’”). 19. Nonetheless, MLB does have certain obligations towards its recruits and the international community as a whole. See Arturo J. Marcano & David P. Fidler, Ballplayer: Pelotero—Major League Baseball, Human Rights, and the Globalization of Baseball, AM. SOC’Y OF INT’L LAW (Aug. 22, 2012), http://www.asil.org/insights/volume/16/issue/26/ballplayer-pelotero%E2%80%94major-league- baseball-human-rights-and-globalization (“MLB has human rights responsibilities, including demonstrating awareness of human rights issues connected with the location of its operations (e.g., developing countries), understanding how its business activities might raise human rights concerns (e.g., targeting children as sources of labor), and taking responsibility to prevent and protect against human rights problems connected with such activities”). 20. The primary reason that this is a problem is that MLB recruitment practices are by nature exploitative, of both Latin American countries and their nationals, including paying Latin American players much lower signing bonuses than comparably talented draft-eligible players receive. See, e.g.,

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MLB’s recruitment problems while taking into account both the interests of the recruited players, as well as the effect MLB’s talent recruitment efforts have on Latin American and Caribbean countries. The solution this Note proposes is a Coase Theorem21—based compensation system, in which MLB teams cooperate with Latin American and Caribbean countries to support the fair and responsible development of baseball players. Under this system, MLB teams will financially compensate these countries for the right to negotiate contracts with players and bring them into the Major League system.22 This system

Ruck, Baseball’s Recruitment Abuses, supra note 9 (“MLB has long benefited from the supply of talented players coming from the Caribbean, profiting immensely by signing players for tiny bonuses and discarding all but the few who make it professionally”); see also Vargas, supra note 18, at 27: Over-signing players is part of MLB team strategy to get Latino talent as cheaply as possible. Dick Balderson, formerly of the Colorado Rockies, refered [sic] to this strategy as the ‘boatload mentality:’ ‘The boatload mentality means that instead of signing 4 American guys at $25,000 each, you sign 20 Dominicans for $5,000 each.’ Balderson’s statement communicates that he and other MLB executives see Latino children and young men as commodities-a boatload of cheap Dominicans, as if these human beings were pieces of exported fruit. Id. This is also a concern in Venezuela, where baseball scouts tend “to recruit underage players and to crush their baseball dreams through exploitation and false promises. In the worst cases, the officials say, scouts promise boys lucrative major league contracts, then take them out of local play to hide them from other scouts.” Id. at 25. 21. “The proposition is: That in a world of perfect competition, perfect information, and zero transaction costs, the allocation of resources in the economy will be efficient and will be unaffected by legal rules regarding the initial impact of costs resulting from externalities.” Donald H. Regan, The Problem of Social Cost Revisited, 15 J.L. & ECON. 427 (1972). One of Coase’s famous examples of this proposition is the problem of a cattle rancher whose cattle destroy crops on a neighboring farmer’s land. R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 2 (1960). If it is inevitable that some cattle will stray, an increase in the supply of meat can only be obtained at the expense of a decrease in the supply of crops. The nature of the choice is clear: meat or crops. What answer should be given is, of course, not clear unless we know the value of what is obtained as well as the value of what is sacrificed to obtain it. Id. The damage to the crops (i.e., the effect of the cattle ranching) is an externality under the Coase Theorem. In economics, an externality is defined as the cost or benefit that affects a party who did not choose to incur that cost or benefit (here, the effect on the neighboring farmer, who did not choose for the rancher to raise cattle that would harm his crops). In a system where the cattle rancher must pay for the damage to the crops, See id. at 2–6 (“III. The Pricing System with Liability for Damage”), the rancher will consider the increased cost of repairing the damage if he considers increasing his number of cattle he owns. Id. at 3. The compensation amount will be the market value of the damaged crop. Id. For example, if each additional steer causes one additional ton of loss to the crop farmer, the cattle rancher “will not increase the size of the herd unless the value of the additional meat produced (assuming that the cattle-raiser slaughters the cattle), is greater than the additional costs that this will entail, including the value of the additional crops destroyed.” Id. Two parties in an arrangement (cattle-related or otherwise) would agree to bargain for this type of arrangement so long as the worst- case alternative would be more costly. That is, the cattle rancher would compensate the farmer so long as he still earned a greater profit than he would if a court granted an injunction in the famer’s favor. 22. This Note adopts Coase’s first solution to the problem of social cost: where the party creating the externality (here, the cattle rancher whose cattle harms the farmland) must compensate the party

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will in effect allow MLB teams to purchase a country’s interest in its player’s talent, so that a team can sign and develop the player as a major league prospect.23 Implementing and enforcing this compensation system will require the involvement of the governments of all participating countries or an international organization designed to oversee the process. It will encourage positive political relationships between the United States and Latin American and Caribbean countries by incentivizing governments to work with MLB teams in the development of young players. Because the supply and demand for talented baseball players is virtually unlimited, countries that are regularly financially compensated for the recruitment of their ballplayers will have a strong incentive to maintain positive relations with the United States.24 Part I of this Note will

who suffers the damage (the farmer). Id. at 2–6. Coase also proposes a second solution, wherein the party who experiences the externality must bear the costs. Id. at 6–8. In this scenario, the party facing injury pays the injuring party to refrain from all or a portion of its activity, thus reducing the damage and the costs the injured party must bear. This note proposes a solution to baseball’s recruitment abuses by adopting the first scenario, for several reasons. First, the colonial history between the United States and many Latin American and Caribbean countries is significant, and a system that requires the colony to compensate MLB teams, which represent the colonial power (the United States), would only reinforce such a relationship. Second, the economic power of MLB teams is significant, and increasing that power through compensation by impoverished countries would be ethically questionable. Third, because MLB teams have access to significant revenue and will likely be willing to pay a superstar talent millions of dollars should he reach the major leagues, the sheer cost that these countries would have to bear to compensate teams at a sufficient level to reduce recruitment activities would be unworkable. 23. An explanation of MLB players’ contractual rights may be necessary for the reader unfamiliar with the sport. In the late 1800s, baseball owners developed an agreement intended to promote the stability of an owner’s roster and to prevent excessive offseason costs. Martin B. Schmidt, Institutional Change and Factor Movement in Major League Baseball: An Examination of the Coase Theorem’s Invariance Principle, 37 REV. INDUS. ORG. 187, 202 (2011). An owner would circulate a list of five “reserved” players that he planned to keep on the team during the following season. Id. The other owners would not attempt to sign any of these players. Id. This agreement was later extended to include all players on a team’s roster. Id. at 203. In a player’s contract, it was worded so as to give owners the unilateral option to renew a player’s contract—meaning that players, once signed, no longer had to right to choose which team they would play for (unless the owner decided not to renew his contract). Id. Although this system was clearly collusive on its face, the Supreme Court upheld the so-called reserve system in Federal Baseball Club v. National League, 259 U.S. 200 (1922). Id. This system was maintained until the adoption of the 1976 collective bargaining agreement. Id. That agreement created the modern-day free agency system. Under today’s rules, a player is subject to the reserve system until he accumulates six years of major league service. After those six years, a player’s rights are re-assigned to the player himself. He is then free to negotiate a new contract with any one of the 30 major league teams. Id. For a more detailed discussion of the history of players’ rights in major league baseball, see William B. Gould, IV, Baseball and Globalization: The Game Played and Heard and Watched ‘Round the World (with Apologies to Soccer and Bobby Thomson), 8 IND. J. GLOBAL LEGAL STUD. 85 (2000). 24. A rental system may relieve open or underlying tension between the United States and Latin American countries in at least two ways. First, by empowering the role Latin American countries play in MLB’s recruitment process, and second, by recognizing the financial stake Latin American countries have in the value of player talent. For example, in the Dominican Republic, a more regulated

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discuss how MLB teams currently recruit talent in Latin America and the Caribbean. It will also introduce the recruitment systems in other countries for comparison purposes. Part II will discuss current issues surrounding MLB teams’ recruitment in Latin America and the Caribbean. This includes discussion of the possibility of an international draft, difficulties with expanding the jurisdiction of the Major League Baseball Players Association (“MLBPA”) internationally, and the lack of a regulatory body to govern how MLB teams recruit in Latin America and the Caribbean. It will also discuss Japan’s system for regulating MLB teams’ recruitment of Japanese players for comparative purposes. Part III will propose a Coase Theorem-based approach to international player recruitment. This approach suggests the implementation of a compensation system, wherein countries are paid by MLB teams for the right to recruit talent as a remedy for the social cost of baseball. It will also propose a “public-private” partnership to regulate this system. Under a public-private system, MLB teams will negotiate directly with both Latin American and Caribbean countries and the players themselves in a process that will allow MLB teams to purchase the right to recruit the players they hope to bring to the United States. Part IV will discuss some of the problems, benefits, and complications that may result from a player-rental system. For example: general resistance to a change in the recruitment model, concerns with incentivizing countries to embrace the new system, concerns with enforcement of the system, MLB’s possible responses to the concept of player value, and the system’s possible effect on international political relations.

and mutually beneficial international recruitment system may help alleviate tension over the fact that young players are often illegally recruited before the minimum signing age of seventeen. See, e.g., Vanessa Marie Zimmer, Dragging Their Devotion: The Role of International Law in Major League Baseball’s Dominican Affairs, 4 NW. U.J. INT’L HUM. RTS. 418, 422 (2005) (“While deception regarding one’s age is recognized as a survival tactic for impoverished Dominican players anxious to make a living, it is also a clear violation of United States immigration law and persistent violations by Dominican citizens could cause strife between the two nations”). Moreover, the overall social importance of baseball in Latin American countries may empower it to serve as common ground for discussions between countries that are in political tension or conflict. For example, a negotiation between the United States and Cuba regarding baseball player recruitment (currently restricted by the embargo) could be a relatively low-key starting point for more high-stakes political negotiations. In 2013, a bill was introduced in Congress endorsing the exemption of Cuban ballplayers from the embargo. H.R. 215: Baseball Diplomacy Act, 113th Cong. (2013). A non-profit organization that advocates this theory is Baseball Without Borders, an exchange organization for youth that, “fosters international relations through baseball.” See Baseball Without Borders, BASEBALL WITHOUT BORDERS, http://www.baseballwithoutborders.org/ (last accessed Mar. 9, 2014).

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I. AN INTRODUCTION TO PLAYER RECRUITMENT IN LATIN AMERICA AND THE CARIBBEAN

International25 recruitment of baseball players is not subject to any of the restrictions or requirements governing recruitment of players in the United States, Canada, and Puerto Rico (which all operate under the same system).26 In the United States, Canada, and Puerto Rico, baseball players join MLB teams through a draft system.27 After players are drafted, they join the MLBPA28 and are protected as members of the union.29 The MLBPA has jurisdiction only over those players who are subject to the draft.30 MLB teams are barred from signing high school players in draft- eligible countries, and the effective minimum signing age for those players is eighteen years old.31

25. Hereinafter, “international” will refer only to countries that are not in the draft system and do not have their own model to address MLB recruitment; thus, Puerto Rico, Canada, Japan, and Mexico are excluded for the purposes of this discussion. 26. The Rule 4 Draft (the first-year player draft, which takes place in June) is one of two MLB drafts. The other draft, the Rule 5 Draft, takes place during MLB’s annual Winter Meetings, and is a draft for non-first-year players. See Major League Rules 36–47, available at http://www.bizofbaseball. com/docs/MajorLeagueRules-2008.pdf (last accessed Aug. 19, 2014). It is the only one designed for amateur players, and is available only to players who are residents of the United States, Puerto Rico, or Canada, and who have never signed a Major or Minor League contract. Id. A person is considered a resident of the United States if he has enrolled in high school or college in the United States. Id.; see also First Year Player Draft Official Rules, MLB, http://mlb.mlb.com/ mlb/draftday/rules.jsp (last visited Mar. 9, 2014). The Rule 5 draft, for professional ballplayers, is also only available to players in the United States, Canada, and Puerto Rico (Roberto Clemente, a famous Puerto Rican baseball player and member of MLB’s Hall of Fame, is perhaps the most famous Rule 5 draft selectee). See About the Rule 5 Draft, MLB, http://mlb.mlb.com/mlb/minorleagues/ rule_5.jsp?mc=faq (last accessed Mar. 9, 2014). 27. See Major League Rules 36–47, supra note 26. 28. The Major League Baseball Players Association (MLBPA) is the union representing professional baseball players in the United States. William B. Gould IV, Globalization in Collective Bargaining, Baseball, and Matsuzaka: Labor and Antitrust Law on the Diamond, 28 COMP. LAB. L. & POL’Y J. 283, 286 (2007). The MLBPA, “was formed in 1954 in response to widespread player dissatisfaction with the operation of [MLB’s] pension fund . . . At this point, comprehensive bargaining agreements were first negotiated between the players and the owners.” Id. 29. When a player decides to enter the baseball draft after graduating high school, he can request to have his name placed on the Draft List. Zimmer, supra note 24, at 418. Once he is on the Draft List, the player then becomes “protected by the provisions of the current MLB Collective Bargaining Agreement.” Id. The agreement guarantees the player a minimum salary if he should be drafted by a team. Id. It also binds the drafted player to the franchise he signs with for six years. Id. 30. For more information on MLB regulation in the United States, see MLB-MLBPA Collective Bargaining Agreement, MLPBA, available at http://mlb.mlb.com/pa/pdf/cba_english.pdf (last accessed Mar. 9, 2014). 31. Id.

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The system for recruiting players in Latin America and the Caribbean is very different.32 In fact, there is no formal system. International players are not subject to the draft, and are not protected by the MLBPA.33 Currently, the only rule in place to protect the interests of international amateur players is one that forbids teams from signing any player before he reaches age seventeen.34 Nonetheless, this rule is not aggressively enforced and teams have developed various strategies to evade the age limitation.35 MLB teams also have considerably fewer financial restrictions when recruiting abroad.36 An element of Latin American and Caribbean recruitment is the prevalence of buscones.37 Buscones are Latin American baseball scouts who recruit ballplayers.38 Buscones either recruit players for MLB teams39

32. For a better understanding of player development and recruitment in the Dominican Republic, see Josh Noel, A Hothouse for Baseball, CHI. TRIB., Jan. 14, 2013, available at http://articles.chicagotribune.com/2013-01-14/travel/sc-trav-0113-dominican-baseball-20130114_1_ dominican-republic-san-pedro-baseball-factory. 33. “These mechanisms are guarantees of rights players and draftees have earned through negotiations with the League and are considered vital in maintaining evenhandedness to both teams and athletes during the process of signing American, Canadian and Puerto Rican players to fill Major League rosters.” Zimmer, supra note 24, at 420. 34. The rule provides that a player who is not subject to the draft and who is not under contract with a MLB team can be signed by any team if (l) he is seventeen years old at the time of signing, or (2) he is sixteen years old at the time of signing and he will turn seventeen prior to the later of (i) the conclusion of the baseball season in which he signed and (ii) September 1 of the year he signs. MLB teams act, however, as if this rule allows them to sign players immediately when they turn sixteen, but this is not what the rule provides. Thus, many signings that MLB teams trumpet to the world as legal are in fact violations of the MLB rule. Vargas, supra note 18, at 26; see also Major League Rule 3(a)(1)(B). 35. Baseball academies are essentially training camps where MLB teams hoard and develop talented ballplayers without the risk of losing any potential Major League-caliber player to another team. Vargas, supra note 18, at 27.” at 27. “Over-signing players is part of MLB team strategy to get Latino talent as cheaply as possible.” Id. At a young age, players are recruited into these academies, either by teams or by private individuals. For more on baseball academies, see id. at 28–32. 36. “[T]here is no floor on what a team may offer, and signing bonuses for Dominican and Latin players are small in comparison to those draftees receive.” Zimmer, supra note 24, at 423. 37. Tyler M. Simpson, Balking at Responsibility: Baseball’s Performance-Enhancing Drug Problem in Latin America, 14 L. & BUS. REV. AM. 369, 382 (2008). Many Latino players who are signed by MLB teams attend so-called “baseball academies” in the Dominican Republic and Venezuela. Most MLB teams have these facilities in these two countries. In Venezuela, twenty-eight of the thirty MLB teams operate academies [as of 2003]. The numbers are similar in the Dominican Republic. The scale of MLB involvement in baseball academies means that for years, hundreds of Latino children and young men have passed through these training facilities. See also Vargas, supra note 18, at 24. 38. Id. 39. Buscones usually work with MLB scouts, who each represent a particular MLB team in recruitment-heavy countries. “If the MLB scout signs the player, the buscon almost always receives a portion of the player’s signing bonus for his role in initiating the relationship between the two parties.

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or operate their own baseball academies, where they develop talent under little to no regulation.40 These buscones often “lure boys as young as [thirteen] to their own training facilities—with the promise of developing their baseball talent—until they are old enough to be peddled to major league teams as free agents.”41 Some of the boys are completely separated from their families while enrolled in the academies.42 These academies operate like farm systems: young men spend their time training intensively for a chance to play in the United States, often forgoing education in exchange for appetizing signing bonuses.43 Many young men are coerced into taking performance-enhancing drugs or lying about their age, and, in some cases, they live in substandard conditions.44 These players are young, vulnerable, and often come from struggling families that are not well-equipped to advocate for their child’s best interests, leaving the young men at the mercy of the buscones who run these “baseball academies.”45 Unfortunately, success for these young men

That amount is negotiated between the player and the buscon, and MLB denies being involved in that process.” Diana L. Spagnuolo, Swinging for the Fence: a Call for Institutional Reform as Dominican Boys Risk Their Futures for a Chance in Major League Baseball, 24 U. PA. J. INT’L ECON. L. 263, 274–75 (2003). 40. Id.; see also Ruck, Baseball’s Recruitment Abuses, supra note 9. The buscón will facilitate player development, create a market for their talents and drive up bonuses. Few buscones, though, see to it that their young charges remain in school; many are more like hustlers than surrogate fathers. They might steal from a boy, enmesh him in career- damaging fraud (several boys have been suspended or had contracts revoked after being caught lying about their age) and even administer performance-enhancing drugs (PEDs) in the guise of B-12 shots to add pop to a player’s bat or speed to his fastball. Id. 41. Id. 42. Former Dominican Commissioner of Baseball Papi Bisono recounts stories of worried parents reporting the disappearance of their sons. “She’d heard that her son had been taken away by a baseball scout. . . . The scouts who ran them kept the kids hidden: That is the real truth. These camps were hideouts because the scouts didn’t want their kids seen by other Scouts. Spagnuolo, supra note 39, at 269. 43. Ruck, Baseball’s Recruitment Abuses, supra note 9. 44. Id. One author notes: The greatest legal concern about how Latino children are contacted is that the actions of scouts, buscones, and agents are unregulated in the two biggest markets: Venezuela and the Dominican Republic. In Venezuela, for example, we do not have laws that adequately regulate the qualifications or activities of scouts and agents. Vargas, supra note 18, at 25. 45. Id. See also Adam Wasch, Children Left Behind: The Effect of Major League Baseball on Education in the Dominican Republic, 11 TEX. REV. ENT. & SPORTS L. 99 (2009). “An estimated ninety-seven percent of these boys” never make it to the United States to play baseball. Id.

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is rare, and those who eventually leave the academies rarely return to school and struggle to find work.46 More recently, professional agents from the United States have also thrown their hats into the recruitment ring by competing with buscones and MLB teams for the chance to be the first to sign a talented ballplayer.47 These agents present similar issues as the buscones, since some of them also exploit young players.48

II. HOW BALLPLAYERS COME TO THE UNITED STATES

Major League Baseball teams bring baseball players to the United States to participate in the Minor Leagues by petitioning on behalf of the player for one of three types of immigrant visas (the O visa, P visa, or H- 2B visa) under the Immigration and Nationality Act of the United States.49 None of these visas are numerically limited, meaning that MLB is not

46. Diana Spagnuolo, in her comment Swinging for the Fence: A Call for Institutional Reform as Dominican Boys Risk Their Futures for a Chance in Major League Baseball, quotes the former Vice President of MLB’s Latin American Operations Lou Melendez: “We are aware of the problem with kids leaving school in the Dominican Republic to go learn and hopefully become baseball players. We are also aware of the fact that once they get released from the academy that they don’t go back to school.” Most of the children under the web cast by MLB are placed back into an impoverished society without an education, which leaves little hope for procuring a respectable job. Wasch, supra note 45, at 104–05. 47. Vargas, supra note 18, at 24. 48. The rise of agents in the process of initial contacts has good and bad aspects. On the positive side, a qualified, professional agent can act in the best interests of a child and balance the power and influence possessed by MLB teams. . . . On the negative side, some agents are just as eager as MLB teams to exploit naive, poor children and their families to get a piece of any signing bonus that may come along. Agents are copying the buscon system by setting up their own network of people to find prospects to contact. Id. at 25. 49. “O” and “P” visa petitions must be filed by the employer (the baseball team) on behalf of the player. The process operates as follows: Applying for the “O” visa requires that this large contingent of foreign baseball players follow two main steps. First, a baseball team must contract with the foreign player and file a petition with one of the four regional Immigration and Naturalization Service (“INS”) Centers that possess jurisdiction in the area where the foreign baseball player will compete. The player’s petition for the O category visa must include the baseball team’s schedule with the specific dates and locations of each game. If the player is traded to another team, the player’s new team must file a separate petition. Second, approval of these “0” visa petitions requires consultation with a peer group in the player’s field. Baseball player peer groups can consist of other players, managers, or baseball officials as long as these individuals possess sufficient baseball expertise and can attest to the exceptional ability of the foreign player. Matthew N. Greller, Give Me Your Tired, Your Poor, Your Fastball Pitchers Yearning for Strike Three: How Baseball Diplomacy Can Revitalize Major League Baseball and United States-Cuba Relations, 14 AM. U. INT’L L. REV. 1647, 1657–58 (1998).

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required to limit the number of international players it brings to the United States.50 The O visa classification is the most restrictive of the three categories and it consists of three visa sub-categories.51 The P Visa covers a broader range of individuals and its eligibility requirements are not as strict as those for the O visa.52 The H-2B visa covers temporary works

50. While in theory each team can bring an unlimited number of players to the United States using the O and P visas, the United States Citizenship and Immigration Services (the administrative body that adjudicates such petitions, operating under the authority of the Department of Homeland Security), see Green Card Through a Job, USCIS.gov, http://www.uscis.gov/green-card/green-card- through-job, is ultimately responsible for approving or denying the petitions based on an individual review of the petition in question. See 8 C.F.R. §§ 100.1, 204.5. 51. Immigration and Nationality Act § 101(a)(15)(O) states: [A]n alien who: (i) has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions a demonstrated record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue work in the area of extraordinary ability; or (ii)(I) seeks to enter the United States temporarily and solely for the purpose of accompanying and assisting in the artistic or athletic performance by an alien who is admitted under clause (i) for a specific event or events, (II) is an integral part of such actual performance, (III)(a) has critical skills and experience with such alien which are not of a general nature and which cannot be performed by other individuals, or (b) in the case of a motion picture or television production, has skills and experience with such alien which are not of a general nature and which are critical either based on a pre-existing long-standing working relationship or, with respect to the specific production, because significant production (including pre- and post-production work) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production, and (IV) has a foreign residence which the alien has no intention of abandoning; or (iii) is the alien spouse or child of an alien described in clause (i) or (ii) and is accompanying, or following to join, the alien[.] Immigration and Nationality Act § 101(a)(15)(O); see also O-1 Visa: Individuals with Extraordinary Ability or Achievement, UNITED STATES CUSTOMS AND IMMIGRATION SERVICES (Mar. 16, 2011), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=b9 930b89284a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=b9930b89284a3210VgnVCM100 000b92ca60aRCRD. 52. INA § 101(a)(15)(P) states: an alien having a foreign residence which the alien has no intention of abandoning who: (i) (a) is described in section 214(c)(4)(A) (relating to athletes), or (b) is described in section 214(c)(4)(B) (relating to entertainment groups); (ii)(I) performs as an artist or entertainer, individually or as part of a group, or is an integral part of the performance of such a group, and (II) seeks to enter the United States temporarily and solely for the purpose of performing as such an artist or entertainer or with such a group under a reciprocal exchange program which is between an organization or organizations in the United States and an organization or organizations in one or more foreign states and which provides for the temporary exchange of artists and entertainers; (iii)(I) performs as an artist or entertainer, individually or as part of a group, or is an integral part of the performance of such a group, and (II) seeks to enter the United States temporarily and solely to perform, teach, or coach as such an artist or entertainer or with such a group under a commercial or noncommercial program that is culturally unique; or (iv) is the spouse or child of an alien described in clause (i), (ii), or (iii) and is accompanying, or following to join, the alien;

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only, and has less restrictive eligibility requirements than both the O and P categories.53 If an MLB team’s visa petition is approved for a player, that player then has permission to apply for a visa to seek admission to the United States.54 While for many recruits outside the United States, Canada, and Puerto Rico, the determination of whether a player is eligible to enter the United States ends once a visa petition is granted, some countries have more strict systems regulating internal recruitment.55 Japanese baseball players, for example, face an additional hurdle if they wish to sign with an MLB team. Japan’s system is designed to aggressively protect Japanese ballplayers from MLB teams looking across the Pacific for superstar talent.56 If an

INA § 101(a)(15)(P); see also P-1A Internationally Recognized Athlete, UNITED STATES CUSTOMS AND IMMIGRATION SERVICES (MAY 4, 2010), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d 4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=19860b89284a3210VgnVCM100000b92ca60aRCRD& vgnextchannel=19860b89284a3210VgnVCM100000b92ca60aRCRD. Generally speaking, the P visa is less difficult for foreign players to obtain than the O visa, and authorizes ballplayers to remain in the United States for longer periods of time. Greller, supra note 49, at 1660. 53. INA § 101(a)(15)(H)(ii)(b): [an alien] having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country. . . INA § 101(a)(15)(H)(ii)(b). The H2-B visa, unlike the O and P visas, is numerically limited; only a set number determined by Congress may be issued globally each year. See Cap Count for H-2B Nonimmigrants, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (Mar. 24, 2014), http:// www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-h- 2b-nonimmigrants. Baseball players playing under a minor league contract are eligible for H-2B visas because they generally come to the United States on a short-term basis each year (thus meeting the H- 2B’s “seasonal basis” requirement). See H-2B Temporary Non-Agricultural Workers, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (Jan. 17, 2014), http://www.uscis.gov/working-united-states/ temporary-workers/h-2b-non-agricultural-workers/h-2b-temporary-non-agricultural-workers# Qualify. H-2B visas do not require a showing of the player’s ability and are therefore easier to obtain than the O or P visas. See id. H-2B visas are seasonal in nature; for minor league players, this means they are usually valid only during the minor league season. See id. 54. See U.S. Visas, U.S. DEPARTMENT OF STATE—BUREAU OF CONSULAR AFFAIRS, http://travel. state.gov/content/visas/english/immigrate/immigrant-process/approved.html. 55. Other Asian countries, as well as Mexico, also have systems in place to regulate MLB recruitment of players. The level of professional development of baseball leagues in these countries, as well as the popularity of their franchise teams, makes a difference in the ability of MLB teams to recruit these players: transactional costs are generally higher for MLB teams because the countries have regulated systems that require MLB to recruit only established professional players. See infra note 56. As such, MLB teams must compensate the teams for the loss of the player and his value to the team, and must pay the player a contract price that reflects his experience and skill level. 56. Japan and other Asian countries, as well as Mexico, also have healthy baseball markets (including successful professional leagues). See Korean Baseball Association, INTERNATIONAL BASEBALL FEDERATION, http://www.ibaf.org/en/nation/5702a4db-3cf1-4429-990b-fa7e106c2648 (last accessed Mar. 28, 2014); see also SITIO OFFICIAL DE LA LIGA MEXICANA DE BEISBOL (The Official Site of The Mexican League), http://www.milb.com/index.jsp?sid=l125 (last accessed Aug. 12, 2014); see also Nippon Professional Baseball, NIPPON PROFESSIONAL BASEBALL ORGANIZATION,

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MLB team wishes to recruit a Japanese player, it must notify MLB’s Office of the Commissioner of Baseball of its interest in that player.57 The Office of the Commissioner then reaches out to Nippon Professional Baseball (the highest level of professional baseball in Japan) to determine whether the specified player is available for recruitment, meaning he has not signed with a Nippon Professional Baseball team, or, if he has signed, he has played for that team for a period of ten years (granting him free- agent status).58 If a player is not available, then his team’s approval is needed before he can sign with an MLB franchise.59 Once approval is granted, the Office of the Commissioner notifies the MLB teams of the Japanese player’s availability.60 All MLB teams then have a limited period of time to bid for the right to negotiate a contract with the player.61 In the absence of similar governmental oversight regarding MLB’s recruitment in Latin American and Caribbean countries, MLB lacks an incentive to address its recruitment process.62 Furthermore, the current

http://www.npb.or.jp/ (last accessed Mar. 28, 2014) (in Japanese); Japan and Nippon Pro Baseball, BASEBALL-REFERENCE.COM, http://www.baseball-reference.com/japan/ (last accessed Mar. 9, 2014); The Official Site of the Australian Baseball League, ABL, http://web.theabl.com.au/index.jsp?sid=l595 (last visited Mar. 9, 2014). 57. Gould, Baseball and Globalization, supra note 23 at 113. 58. Id. “Free agency status,” in the baseball world, means that a player has the right to negotiate and sign a contract with any team he pleases, and no other ball club has any right to limit or otherwise interfere with his freedom of agency. In Coase Theorem terms, property rights are re-assigned from his MLB team to the player once he achieves free agency status. See Schmidt, Institutional Change and Factor Movement in Major League Baseball, supra note 23, at 189. 59. Id. 60. Id. 61. Following this, the winning bidder then has a period of thirty days to negotiate with the player; if negotiation is unsuccessful, the arrangement lapses and the entire process ends. Gould, Baseball and Globalization, supra note 23, at 114. A similar process applies to Japanese teams interested in recruiting MLB baseball players. Id. at 113. For a more detailed discussion of the Japanese recruitment system, see Matt Nichol, Valuing Professional Japanese Baseball Players and the Role of Statistics, Economics, Culture, and Corporate Governance, 33 J. JAPAN. L. 119 (2012); Gould, Globalization in Collective Bargaining, Baseball, and Matsuzaka, supra note 28, at 290–92. 62. Recruitment in Latin America and the Caribbean is heavier and differently regulated than in countries in other parts of the world, or where strong national baseball leagues have emerged. There are a variety of reasons for this. First, these countries are geographically close to the United States, unlike Japan, South Korea, Australia, and other similarly situated countries. Ke Chen, Charles Gunter, & Chunhua Zhang, How Global is U.S. Major League Baseball? A Historical and Geographic Perspective, 77 GEOJOURNAL 429, 437 (2012). Mexico being an exception, as it has developed a strong national league and protects its players from MLB recruitment. See KLEIN, SUGARBALL, supra note 7, at 234–35. Second, these countries have a history of playing baseball that is nearly as long as that of the United States, and is in many ways tied to U.S. baseball “due to the military, economic, and cultural influence from the U.S.” Id. Third, the earning potential for young ballplayers who reach the Major Leagues, combined with the dismal economic opportunities they face in their own countries, strongly incentivizes the drive to sign contracts with MLB teams (even though those contracts are often for comparatively small amounts of money next to the contracts offered to drafted players in North America). Id.; see also ADRIAN BURGOS, JR., PLAYING AMERICA’S GAME: BASEBALL,

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abusive practices in the region, while controversial, are profitable for MLB.63 Some have proposed the adoption of an international draft as a means to increase regulation.64 Similar international drafts are the norm in other major North American sports, for example, the National Hockey League’s Entry Draft.65 While the idea of an international draft, “is supposedly gaining momentum . . . such a ‘reform is likely to encounter resistance from the [MLBPA], which opposes restrictions on movement of players.’”66 While MLB is interested in a draft for the purposes of regulating team spending, negotiations thus far have been unsuccessful, and MLB shows little interest in implementing a draft that prioritizes the welfare of international amateur players.67 It is also questionable whether individual MLB teams would support an international draft, as it is less expensive recruiting unregulated talent overseas than to draft U.S., Canadian, and Puerto Rican players, and it is less time consuming than working through a system like the Japanese model.68 Moreover, for logistical purposes, an international draft would require either the expansion of the MLBPA’s jurisdiction or the creation of

LATINOS, AND THE COLOR LINE 237 (2007) (Noting that in 2001, the Cleveland Indians paid a total of $700,000 to forty Latin American prospects, while paying out nearly $1.7 million to the team’s top draft pick in North America’s amateur draft). 63. This phenomenon is sometimes referred to as the “boatload mentality”—MLB teams can sign significantly more players for less money in Latin American and the Caribbean than they would in the United States. Thus, the teams frequently sign many more players than they will ever have positions for in their franchise. Burgos Jr., PLAYING AMERICA’S GAME at 237. 64. See Jesse Sanchez, Baseball Decides Against Holding International Draft, MLB (May 31, 2013), http://mlb.mlb.com/news/article.jsp?ymd=20130531&content_id=49189442&vkey=news_mlb &c_id=mlb. 65. The NHL’s entry draft covers (1) North American players aged eighteen to twenty years old, and (2) European players of all ages entering the league for the first time. See Hockey Operations Guidelines, NHL, www.nhl.com/ice/page.htm?id=26377 (last accessed Mar. 9, 2014). 66. Jason S. Weiss, The Changing Face of Baseball: In an Age of Globalization, Is Baseball Still as American as Apple Pie and Chevrolet?, 8 U. MIAMI INT’L & COMP. L. REV. 123, 181 (2000), quoting Steve Martinez, Dealing with Defects; Now That Cubans Have Found Their Way Back to the Majors, the Majors Must Find a Better Way to Place Them, SPORTING NEWS, Jan. 22, 1996; see also Zimmer, supra note 24, at 438 (“[T]here has been no action toward an international draft beyond [a] statement of intent . . . . it would require codification in a new Collective Bargaining Agreement, the terms of which are labored over, sometimes with the threat of a player strike by the Players Union”). 67. See Mike Rosenbaum, Why MLB Needs to Create an International Draft, and What it Would Mean, BLEACHER REPORT (Nov. 16, 2013), http://www.bleacherreport.com/articles/1852789-why- mlb-needs-to-create-an-international-draft-and-what-it-would-mean. 68. The cost-effectiveness of recruiting talent in unregulated countries is well-known. One sportswriter explains: “International signings cost a fraction of what teams pay for free agents and, in most cases, what teams spend for bonuses in the Rule 4 draft as currently constructed. They even cost less than the baseball operations budgets of most teams. Meaning executives, coaches, scouts and coordinators’ salaries.” Craig Calcaterra, An international draft could be here sooner than you think. And it’s still a terrible idea, HARDBALLTALK.COM (Mar. 18, 2013), http://hardballtalk.nbcsports.com/ 2013/03/18/an-international-draft-could-be-here-sooner-than-you-think-and-its-still-a-terrible-idea/.

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a similar union for international ballplayers so that drafted players would be subject to the same restrictions and protections as Rule 4 draft-eligible players.69 Finally, an international draft would require the consent of both sovereign nations and their players, who have their own collective and individual motivations in either supporting or resisting the creation of a draft.70 Some governments benefit financially from MLB’s unregulated recruitment,71 which may outweigh concerns over the welfare of native ballplayers. Disparities in negotiating power may also affect a country’s willingness to sign onto a draft system.72 Furthermore, because countries

69. Players under MLBPA’s jurisdiction may resist the expansion of that jurisdiction internationally, as expansion could affect those players’ ability to compete at the major league level. The market would see an influx of talented players representing those countries the MLBPA previously did not cover. MLB would likely also resist such an expansion, since an expansion of union jurisdiction would mean fewer sources of cheap talent with weak negotiating power. Further, foreign countries may resist changes to the existing structure of MLBPA. 70. The Dominican Republic has voiced its concern with an international draft: Felipe Payano, the [Dominican Republic’s] sports minister, has already written a letter to Bud Selig, MLB’s commissioner, expressing his opposition to a draft. He says his office is investigating whether it might violate the DR’s free-trade agreement with America. Another option would be to sue MLB for collusion under Dominican antitrust law. Baseball in Latin America: Draft Dodgers No More, ECONOMIST, Feb. 4, 2012, available at http://www.economist.com/node/21546064?frsc=dg%7Ca. Also, some argue that an international draft might be discouraged by international players. See Jeff Wilson, MLB Insider: Many glad to see plans for international draft put on shelf, Star-Telegram, June 8, 2013, https://web.archive.org/web/ 20131421090500/http://www.star-telegram.com/2013/06/08/4921958/mlb-insider-many-glad-to-see- plans.html (accessed by searching for http://www.star-telegram.com/2013/06/08/4921958/mlb-insider- many-glad-to-see-plans.html?rh=1 in the Internet Archive Index). For context, it is helpful to look to the changes Puerto Rican recruitment has undergone since 1990, when the state became subject to the Rule 4 Draft: [T]he number of Puerto Ricans in the majors has dropped steeply. Many of the game’s greatest players are from Puerto Rico . . . but fewer than 30 were on major league rosters to start the season. One is Geovany Soto, an 11th-round pick in 2001. He said that players in the U.S. territory are scouted, but the baseball infrastructure there is lacking relative to the United States. As such, players don’t play or practice as often and have considerably poorer facilities, and scouts aren’t as likely to commit to a Puerto Rican prospect the way they would an American—with 2012 No. 1 overall pick Carlos Correa a recent exception. No one doubts that baseball there is on the decline, and some point to the draft as a main culprit. Id; see also Storms, supra note 15, at 99: In fact, Puerto Rico recently expressed a desire to be excluded from the . . . draft, as its players are failing to be drafted at all because it is more economically attractive to sign talent from non-draft countries . . . Thus, given the reported problems with the Puerto Rican model, any proposal to expand the draft will likely have opponents on both the supply and demand side. 71. For example, the Dominican Republic. See Klein, supra note 8; Ruck, THE TROPIC OF BASEBALL, supra note 9, at 34–41. 72. One author has argued that, for the creation of an international draft, “the prerequisite will be a negotiated international labor market, like that contained in the U.S.-Japanese agreement, where foreign country organizations will not perceive themselves to be threatened by American baseball imperialism.” Gould, supra note 23, at 120.

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are not directly involved in the recruitment, signing, or transportation of baseball players, they may not be in an ideal position to identify problems or develop and implement solutions to those problems. Moreover, the United States itself does not regulate MLB’s international recruitment strategies outside of practices beyond the umbrella of immigration law.73 Another issue is that the MLB teams are not strongly incentivized to self-regulate their recruitment based on moral or human rights arguments, due to the significant financial upside that can result from unregulated recruitment.74 In fact, the competition between its teams contributes to this problem, as any team which might decide to self-regulate its own international recruitment would be at a competitive disadvantage to those teams that recruit internationally without restraint.75 This would only exacerbate competitive imbalances between teams, something that would likely impact MLB’s ability to compete with other professional sports and keep fans engaged in its annual pennant and wild card races. An alternative option for Caribbean and Latin American countries might be the adoption of a system similar to that of Japan; however, it is unlikely that a recruitment system similar to the Japanese model would be effective in Latin America. First, the political relationships between the U.S. and Japan and the U.S. and Latin America are worlds apart. Japan is a developed country that has minimal geographic or historical ties to Latin America and the Caribbean. With the increase of baseball’s popularity in Japan, the country has affirmatively chosen to protect its own baseball leagues from the reach of MLB.76 Many Caribbean and Latin American countries have a more complicated history with the United States

73. An MLB team need only successfully petition for an MLB player. If a petition is approved, the player can then seek admission to the United States. Once a player is admitted, he may enter for the duration of time granted by the U.S. government. See U.S. Visas, supra notes 49–54. 74. Support for this view comes from an analysis of the Coase Theorem in the MLB context. In terms of contractual agreements with players, the Coase Theorem assumes that a team’s goal is the maximization of profit. See Schmidt, Institutional Change and Factor Movement in Major League Baseball, supra note 23, at 201 (2011). Alternatively, the player’s goal is maximizing income. Id. Interestingly, some argue that the current recruitment system is in some sense beneficial on the level of the individual player because it offers the player an opportunity to sign for amounts of money that, in the absence of MLB recruitment, would in all likelihood never be available to him. See KLEIN, SUGARBALL, supra note 7, at 59. However, the benefits to the individual at the time he is under contract with an MLB team does not outweigh or otherwise diminish the effects the recruitment process has on a country on institutional and cultural levels. Id. at 57–61. 75. Something similar happened when Latin American and Caribbean recruitment began in Major League Baseball. When MLB teams realized that talented young Latin American and Caribbean ballplayers could be had for significantly less financial outlay than North American players, they began to compete with one another in earnest to find and sign talent in the region. See KLEIN, SUGARBALL, supra note 7, at 42, 53–55. 76. See Gould, supra note 23, at 113–14.

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stemming from as far back as the years of United States’ founding fathers.77 As the United States grew in economic power and political influence, its leaders saw Caribbean and Latin countries as nations in need of guidance and control.78 As a result, professional baseball clubs in the United States maintained close ties to their Caribbean and Latin American counterparts, in many ways mirroring the colonial relationship between the U.S. and parts of the Western Hemisphere.79 Reflecting these closer geographic, social, and political ties, Latin American baseball leagues and players have been involved with United States professional baseball since the early 1900s,80 whereas Japanese players have grown up in an economically stable country free from the historical colonial influence of the United States.81 Second, international countries attempting to mirror the Japanese model would face the challenge of creating their own regulatory systems for player recruitment. As a result, MLB teams would need to familiarize themselves with these systems individually as they are adopted and comply with each country’s specific rules and regulations, something that would be time-consuming and costly. Moreover, Latin American and Caribbean countries would need to independently decide to organize and adopt such systems. Recruitment systems as restrictive as the Japanese model might be counterintuitive in many Caribbean and Latin American countries where leagues are much less financially stable than the Nippon

77. See Ruck, THE TROPIC OF BASEBALL, supra note 9, at 22–23 (“‘History,’ Thomas Jefferson wrote “furnishes no example of a priest-ridden people maintaining a free civil government”). The United States’ intervention in Western Hemisphere affairs continued well past its own declaration of independence from colonial power. Id. The Spanish-American War (1898), a result of the United States’ intervention in Cuba’s war for independence from Spain, is one such example. Id. As a result of its victory against Spain, the United States was awarded control over Cuba and Puerto Rico, Spain’s sole remaining territories in the Caribbean basin. Id. Although liberated from Spanish influence, Cuba and Puerto Rico were essentially trading one occupation for another—the result of two global super powers exchanging the final colonial assets of the once-extensive Spanish new world empire. Id. 78. Id. 79. “The academy is the baseball counterpart of the colonial outpost, the physical embodiment overseas of the parent franchise. It operates more or less like the subsidiary of any other foreign company: it finds raw materials (talented athletes), refines them (trains the athletes), and ships abroad finished products (baseball players).” See KLEIN, SUGARBALL, supra note 7, at 42. 80. Id. at 35; see also Adrian Burgos, Playing Ball in a Black and White “Field of Dreams”: Afro-Caribbean Ballplayers in the Negro Leagues, 1910–1950, 82 J. OF NEGRO HIST. 67, 75 (1997) (“In the Dominican Republic, the United States’ military occupation (1915–1924) led to new political connotations being bestowed onto baseball . . . Numerous games were played between the Marines and the Dominicans; yet those who lived through the occupation still debate the meaning attached to these games”). 81. CENTRAL INTELLIGENCE AGENCY, THE WORLD FACTBOOK: JAPAN (Introduction and Economy subheadings), available at https://www.cia.gov/library/publications/the-world-factbook/ geos/ja.html.

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Professional League, cannot compete with MLB salaries, and depend in part on the national popularity of their players who reach the Major Leagues.82 Considering these factors alongside the relative complexity of the Japanese system, individual and independently-created recruitment systems are not a desirable or workable solution for Latin America and the Caribbean. Ultimately, baseball’s cultural role in many Latin American and Caribbean countries creates independent challenges to the implementation of a new system. For example, in countries like the Dominican Republic, baseball is as much a patriotic enterprise as a source of entertainment.83 Many young men who lack substantial educational opportunities at home view it as an ideal career path because of the potential (however slim) for great financial success in the United States.84 As a result of the large contracts that the most talented Latin American ballplayers are awarded by MLB teams, playing ball in the United States has attained a romanticized status-for lucky young players, fame, fortune, and the promise of a better life can be won through hard work and dedication on the baseball diamond.85 While a perpetuation of the current system means that the supply of hopeful ballplayers will likely never disappear, it also means that young players will continue to sacrifice their futures at home in the hopes of being one of the few who make it in the big leagues.

82. See RUCK, THE TROPICS OF BASEBALL, supra note 9, at xviii–xx. 83. See KLEIN, SUGARBALL, supra note 7, at 1–2. In the Domincan Republic, baseball has become much more than a game, even more than a national pastime; it is a crucial arena of intercultural relations, in which significance attaches to everything about the game, its symbols, and its players. In the Dominican Republic baseball has a place all out of proportion to the normal one of sport in society. . . . [C]utting [sugar] cane continues to be the most easily obtained employment in the country. It is also the future many men fear for themselves if baseball should fail them, all of which further elevates the status of baseball in the Dominican Republic. 84. See, e.g., Zimmer, supra note 24, at 425: Dominican dependence on Major League Baseball for economic revenue has assured the League a favorable position with the Dominican Government. The economic crutch Major League Baseball supplies cannot be understated: a study conducted by Major League Baseball in June of 2003 showed that it injects $76 million annually into the Dominican economy through payments to players, scouting trips and donations. $14.7 million of the sum is paid directly to the Dominican Republic by thirty baseball academies that are run by Major League teams in conjunction with baseball’s Dominican office. The same study shows the League has created 1,200 jobs in the Caribbean nation. 85. Id.

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III. A COASE THEOREM-BASED ANALYSIS

This Note looks to the Coase Theorem86 for a solution to the social cost of Major League Baseball recruitment in Latin America and the Caribbean.87 It first proposes that a ballplayer’s country should have a voice in how its players are recruited and developed by MLB teams.88 It theorizes that regardless of whether solely the player himself, or both the player and his country of origin possess property rights (i.e., his right to contract with an MLB team) in a player’s baseball talent, MLB teams will ultimately be able to secure the rights to negotiate a contract with the player because recruiting players in the Latin American and Caribbean market will remain beneficial for MLB teams under a cost-benefit

86. One author summarizes how the Coase Theorem applies to Major League Baseball: Coase stated that with zero transaction costs and neutral wealth effects, the allocation of resources is independent of the initial assignment of property rights. In the case of baseball contracts, we have observed that the allocation of risk bearing is dependent on the initial assignment of the right to players’ services. Since the transaction costs associated with the allocation of risk bearing between players and club owners are presumably low, this observed relationship suggests the following: the value which players place on insuring their stream of income, relative to the value which clubs place on the option to renew the players’ contracts annually, is dependent on the assignment of the right to the players’ services. Kenneth Lehn, Property Rights, Risk Sharing, and Player Disability in Major League Baseball, 25 J.L. & ECON. 343, 353 (1982). 87. For further reading on the application of the Coase Theorem to Major League Baseball, see Timothy R. Hylan, The Coase Theorem, Free Agency, and Major League Baseball: A Panel Study of Pitcher Mobility from 1961 to 1992, 62 S. ECON. J. 1029 (1996); see also Donald Cymrot et al., ‘Who’s on first’: an empirical test of the Coase Theorem in baseball, 33 APPLIED ECONOMICS 593 (2001); David G. Surdam, The Coase Theorem and Player Movement in Major League Baseball, 7 J. OF SPORTS ECON. 201, 202 (2006). 88. This proposal is intended to reflect the systems that exist in countries like Japan and Mexico. In those countries, players do not have the option to enter the MLB until they have attained a certain level of professional sophistication: meaning that these players have already been drafted and have played a certain number of years for teams in their countries. BURGOS JR., PLAYING AMERICA’S GAME at 238. Because these players have already been signed to contracts with professional teams, those teams have some control over an MLB team’s ability to sign the player, and are financially compensated by the MLB team. Id. Moreover, because these leagues are financially successful and have a strong fan base, the government has typically established some legal recruitment regime that prohibits MLB teams from recruiting players without approval (such approval, when granted, usually extends only to a particular player who has already expressed an interest in playing in the United States). As a benefit in these situations, recruited players themselves have some degree of bargaining power due to (1) their elevated skill level, (2) experience in contract negotiation, and (3) likely representation by a professional agent. This note attempts to replicate this type of systems in countries where a strong national league is not the norm (and thus, players are usually recruited at an amateur level), by replacing the league/individual team’s role with the government, whose participation is required by an independent body governing the compensation system. That is, when MLB teams recruit Latin American and Caribbean players, they must also include the government of the country in negotiations, and financially compensate the country for the recruitment of those players. This will effectively compensate the country for the negative impacts that will result from the player’s departure to the United States.

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analysis.89 The proposed Coase Theorem-based recruitment model begins with the assumption that a country has an interest in the economic value of its citizen baseball player’s talent. This allows the country to serve as a stand-in for a local professional baseball team that might sign and develop the player if he is not recruited by MLB. An MLB team that signs that baseball player is thus required to compensate his country for the loss of its interest in the economic value of the player’s abilities; in essence, buying out the country’s interest. This is analogous to MLB purchasing negotiation rights to an international player from the club he has signed with.90 After a pre-determined period of time, an MLB team will have

89. When compared to signing players in North America or more regulated markets (such as Japan or Mexico). Lehn, supra note 86, at 353. Consider, for example, the case of famous ballplayer Alex Rodriguez, a U.S. citizen. Rodriguez was selected by the Seattle Mariners in the 1993 amateur draft. His signing bonus was $1.3 million. See PLAYING AMERICA’S GAME, supra note 62, at 233. Had he been an undrafted free agent from the Dominican Republic, Rodriguez may have drawn only five or ten thousand dollars. Id. Klein goes on to note that protecting Latino players has not been a priority, largely because MLB teams seek these players because they can be signed so inexpensively. Id. As such, increasing the transactional costs to MLB teams for these players relative to numbers comparable to North American draftees would defeat the purposes behind their recruitment. The transactional costs are also significantly lower in Latin American and Caribbean countries than for countries with systems in place to protect their players from recruitment. For example, Yu Darvish, a talented Japanese pitcher, was made available to MLB teams before the 2012 season. Bob Elliott, Jays lose Davish bidding war to Rangers, TORONTO SUN (Dec. 19, 2011) http://www.toronto sun.com/2011/12/19/will-cost-of-darvish-be-too-high. As required by the Japanese system, interested MLB teams submitted bids for the right to negotiate with Darvish. The Texas Rangers were the lucky winners at $51.7 million. Id. The Rangers then were able to negotiate a contract with Darvish for $60 million over six years. Id. Thus, in total, the Rangers spent upwards of $110 million for a pitcher whose ability to transition to North American baseball (which requires different skills and abilities than Japanese ball) was yet to be known. The transactional costs to MLB for a player like Darvish are astronomically higher than for Latin American and Caribbean free agents. In fact, an MLB team could likely sign several dozen players for less than the total cost of negotiating with and signing Darvish, significantly narrowing the risk, statistically speaking, that the financial investment will be a failure. 90. One possible concern with granting countries property rights in the talent of their ballplayers is whether countries should be compensated for this type of loss at all. This note argues that they should be, as a method to prevent MLB teams from unregulated recruitment in Latin America and the Caribbean. In this way, players end up with more bargaining power when negotiating with MLB teams, because a rights-bearing third party with more legal and economic power than the player will take an interest in whether he is signed and whether the process is legally proper. In the region the recruitment of baseball players has risen to the level of a social, economic, and ethical problem. See, e.g., Rosentraub, supra note 16, at 126. The economic and cultural impact of MLB on Latin American countries, such as the Dominican Republic and Venezuela, is extensive. . . . Underprivileged Latin American boys and their families often see MLB as the way to escape poverty. As a result, the reach of MLB into these countries extends to children and affects childhood education and the operation of youth baseball leagues. MLB dominance also is evident in how MLB regulates aspects of the Latin American professional league operations. Id. MLB teams are able to take advantage of the poverty of these children and their lack of contractual sophistication to recruit them in ways that are not only harmful to the children, but are also socially and culturally damaging within the countries themselves. See generally KLEIN, SUGARBALL, supra

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effectively compensated the country for its interest in the player talent. At that point, compensation for the player will end, and full property rights in the talent will transfer to the ballplayer. As such, when a player has met existing service requirements in the Major Leagues to achieve free agency status, he alone will have the right to determine where, when, and if he signs another contract in the Major Leagues.91 In a compensation system, each country will be directly financially compensated for MLB recruitment of native-born talent.92 Recruitment will be defined as the point when an MLB team seeks to sign a player and bring him within the umbrella of the organization. This payment will be in addition to the money the player himself will receive for agreeing to sign a contract with the team. A player will be paid what any other similarly talented player would earn, and the country will be paid a monetary value that is determined at the time that the player contracts with the MLB team. Because players will be signed for a salary that reflects their abilities as a ballplayer, the country will be compensated in an amount that is proportional to the value of the player’s contract. This payment will serve as compensation for the social costs of MLB recruitment in the country.93 It is proposed that receiving compensation for the recruitment of these baseball players will offset the damages caused by MLB recruitment (i.e., Coase’s “social costs”)94 by providing financial resources that can be used

note 7, at 34–103. These countries have experienced such negative consequences from MLB’s profit- driven recruitment that some action must be taken to offset the damage. 91. The overall goal here is to keep the country involved in the player’s development in the Major Leagues. The purpose for this is to keep an economically and politically sophisticated party involved in the player’s contractual relationship until such a time that he is able to fully and independently exercise his own rights under existing MLB contractual customs and U.S. contract and antitrust law. This note assumes that that point occurs when the player becomes a free agent. 92. After a country is compensated for a player’s decision to sign with an MLB team, the payment can be used for a variety of purposes. The payments can be general funds collected by the country for varied use, or they can be set aside for specific purposes, designated either by legal agreements between countries or in negotiations with the individual player. For example, payment may be directed to education in countries where access to quality education is a concern for baseball recruits; alternatively, all or part of the payment could be set aside to finance the recruited player’s future education expenses should he fail to succeed in the Major Leagues. While this solution is certainly unusual and would take some effort to organize and effectuate, it is not out of the realm of possibility. It would also provide a safety net for a player who, unfamiliar with the likelihood of success in the major leagues, and uncertain of what his future would look like if his baseball career ends prematurely, might otherwise take significant risks in signing with an MLB team. 93. The athletic equivalent of the “brain drain” phenomenon, so to speak. This comes directly from Coase’s first solution, in which he proposes that the entity that creates the social costs should compensate the entity that bears those costs, in essence paying damages for its activity. See Coase, The Problem of Social Cost, supra note 21, at 2–6. This type of system may also help to repress the staggering quantity of young ballplayers entering baseball academies by increasing the total cost to MLB teams of each player’s recruitment. 94. Id.

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for educational programs, job training, or other social benefits.95 Involving the country itself in the negotiation process will also increase the likelihood that it will retain some degree of control over the operation of baseball within its borders. This will help to disentangle local baseball operations from the neocolonial aspects of MLB recruitment in the region by shifting control over local baseball operations from MLB teams back towards the countries themselves.96 Moreover, receiving funds to aid future generations of hopeful young ballplayers would be a step towards remedying many of the negative social and economic effects of unregulated recruitment. Logistical issues a compensation system must address are: (1) how and when the value of the player’s talent is assessed; (2) when and how the compensation is paid; (3) when and how compensation payments can be terminated for each individual player; and (4) how such a system should be regulated.97 These issues will be addressed in turn. The first issue is creating a system for determining the value of each player’s talent, and thus the contractual payment that an MLB team will make to the country, as well as the salary the team will pay to the player. It is important to either determine these amounts through the same

95. At least one researcher suggests that MLB should be required to provide education and other life skills training to ballplayers in Latin American and Caribbean academies. See Storms, supra note 15, at 95, 101. However, it may not be feasible or logical to set up, regulate, and finance these social services, especially considering the vast number of players in Latin American countries that find themselves in baseball academies. A player talent rental system would create a mandatory, enforceable, and straightforward transactional financial benefit that could then be used by the government of the player’s country to finance social benefits and in some ways ideally remedy the detriment caused by MLB’s recruitment. While implementation and regulation would still be a challenge, MLB would not be involved in the system beyond making payments, which would make it easier for MLB to comply. It could also lessen concerns over how involved MLB should be in designing solutions to the problems its actions exacerbate. 96. Because currently, MLB operations in these countries serve as lingering reminders of U.S. colonialism in the region. See KLEIN, SUGARBALL, supra note 7, at 48. Klein also elaborates on this relationship in terms of Dominican baseball, explaining that MLB teams have in many ways “hinder[ed] the Dominican game.” Id. at 49. 97. In evaluating the possible solutions to these types of issues, it should be considered that: [P]roperty rules and the moral rules that support them must be simple and general, at least as to the core of property. If the rules for determining access to and use of resources [here, baseball players’ talent] required the gathering of detailed information-for example, information about the attributes of rival claimants that might otherwise have moral relevance- this would not produce the stability of expectation needed for widespread coordination. Thomas W. Merrill, The Morality of Property, 48 WM. & MARY L. REV. 1849, 1857 (2007). That is to say that a system wherein countries are financially compensated for their players should be relatively uncomplicated and should have universal rules that pertain to all participants. For example, only MLB, the player, and his country of origin are permitted to negotiate over rental of the player’s talent. If the system becomes too complicated, not only do transaction costs skyrocket, but the process can easily become unwieldy and prohibitively time consuming.

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proceeding, or determine the amount of money the player will earn first. This will ensure that the country, which will have greater bargaining power than the player, is involved until the contract negotiation process ends. To enforce the compensation process consistently, the system should be as uniform and fair as possible. In this regard, it should be consistent throughout all participating countries. The system will also need to determine the salary of the individual players consistently. A goal of the system should be subjecting all players to the same legal standards and protections so that all players are treated equitably. The process by which the player’s salary and the country’s compensation are determined should be through an arbitration process similar to that used for players in the major leagues.98 However, unlike in the major leagues, the system should not be “final-offer.” A final-offer system functions well in the United States, where players are already under contract with MLB and thus subject to the protections of the MLBPA. A MLBPA player also would retain an agent who is familiar with the process and can represent the player’s rights. This gives the player significant bargaining power when arbitrating his salary with a team. Before they are signed and immigrate to the United States, Latin American and Caribbean players are not subject to MLBPA jurisdiction.

98. MLB uses a form of arbitration called “Final-Offer Arbitration.” Josh Chetwynd, Play Ball? An Analysis of Final-Offer Arbitration, Its Use in Major League Baseball and Its Potential Applicability to European Football Wage and Transfer Disputes, 20 MARQ. SPORTS L. REV. 109, 110 (2009). It functions as follows: In [the MLB arbitration system], players with over 2 years of major league system could file for salary arbitration, if they were not under long-term contract. If the sides could not come to a contract agreement within a period of time, the club would submit a salary figure for the coming season that they felt the player was worth, while the player would do like wise [sic]. If the sides could not reach agreement with the figures submitted, the parties could go before arbitors [sic] from the National Labor Relations Board and present their case. The arbitors [sic] would then rule on one figure or the other. There would be no middle ground. The system remains much the same, with a panel of three arbitrators ruling on salary cases. Id. Maury Brown, Breaking Down How Salary Arbitration Functions in MLB, THE BIZ OF BASEBALL, http://www.bizofbaseball.com/index.php?option=com_content&view=article&id=2916:breaking-down- how-salary-arbitration-functions-in-mlb&catid=26:editorials&Itemid=39. This system, wherein one figure is chosen over the other without any middle ground, is said to encourage negotiation and settlement in baseball because each side faces a complete loss if the arbitrator decides against it. Thomas Gorman, The Arbitration Process, BASEBALL PROSPECTUS, http://www.baseballprospectus. com/article.php?articleid=3732. It is said to limit the negotiation “chilling effect” of traditional arbitration, wherein each side submits a bid and the arbitrator tends to choose a figure in the middle ground. See Chetwynd, Play Ball?, at 111. In the Final-Offer system, even if the parties do not settle the end result will still be fair. Id. This is the case because the offer they submit to the arbitrator tends to be a conservative one in light of the risk of complete loss should the other side’s number be the winning bid. Id.

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They also may not be able to afford legal assistance. Allowing the arbitrator increased discretion in selecting the amount of money the player will earn will help to ensure that the player’s contract is fair. This type of arbitration system could take one of two forms: (1) a subjective, adjudicative arbitration system, wherein arbiters are permitted to make wholly subjective determinations of the player’s salary and country’s compensation, or (2) a more rigid, objective system that requires an arbiter to select both figures based on pre-calculated figures that take into account the average salaries of players in similar situations and at similar levels of playing ability. In an arbitration model, a player’s playing ability would be determined by independent arbiters analyzing evidence of the player’s performance, much like how the arbitration system works for players drafted by MLB who have not attained free agency status.99 Under this framework, countries and teams would submit their estimate of the player’s talent value to an independent arbitral body, which would evaluate various factors and assess the compensation rate owed to the country either at one of the figures or somewhere between the two.100 A similar process would determine the salary paid to the player, wherein all three parties (country, MLB team, and player) have the opportunity to submit suggested salaries. Countries would likely be incentivized to submit higher salary requests for players, since a higher salary suggests a greater skill level, which would also indicate the country should be compensated at a higher level to offset the loss of the player. Mirroring MLB’s arbitration system, talent value would be anchored by mirroring minor-league salaries (i.e., the average salary range for a given minor league prospect would be roughly equivalent to the average salary range for a similar non-draft-eligible player).101

99. A drafted player with three or more years of service (but less than six) may file for arbitration with his team. Frequently Asked Questions, MAJOR LEAGUE BASEBALL PLAYERS’ ASSOCIATION, http://mlb.mlb.com/pa/info/faq.jsp#arbitration (last visited Mar. 27, 2014). There is an exception to this rule for so-called “Super Two” players, who have served for two years plus an additional eighty- six days, and who rank in the top twenty-two percent of similarly-situated players. Id. 100. In the MLB arbitration process: [T]he club and player submit their “last best offer” for a salary ahead of time to the Labor Relations Department and the Players Association respectively. On “exchange day,” representatives from both sides meet in New York and exchange figures one by one. . . . Each side gets one hour to present its case. There is a short recess and then each side gets 30 minutes to rebut the other side’s case and 30 minutes to present their summation. Thomas Gorman, The BP Wayback Machine: The Arbitration Process, BASEBALL PROSPECTIVE (Jan. 18, 2012), http://www.baseballprospectus.com/article.php?articleid=15864. 101. Salaries for minor league players generally have a maximum dollar amount, augmented by bonuses paid to players who earn them. Zachary D. Rymer, MLB Must Finally Answer for Exploitation

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Alternatively, talent value could be based simply on a pre-determined scale that takes into account a player’s statistical performance in assessing the value of his talent level. This would require the creation of a chart showing values ranging from the lowest compensation teams are expected to pay to the highest. Talent value could be assessed either by assigning tiered values to players within a given range of ability (as a vastly oversimplified example, a compensation amount of $100,000 USD might be assessed for all players batting between .260 and .275), or value could be determined on a sliding scale, taking into account statistical performance of the player based on recent games, the compensation assessed for players of comparable performance, and other relevant factors (such as how quickly the player has improved over time, his age, physical health, and so on) to arrive at a compensation figure. Second, a compensation system must determine how such compensation should be paid. Payment of this compensation could occur either a single time, or on a recurring basis. Recurring payments would be most desirable, because that would encourage the country to maintain involvement with the signed player. This is desirable because until a player becomes a free agent, he has limited rights and may still be at risk if the bargaining power of his country is removed from the equation.102 Recurring payments could take the form of monthly payments while the player is under contract with the MLB team, quarterly payments, or annual payments made while the player under contract with the MLB team. Some flexibility may be desirable, so that negotiating parties can create a payment schedule that operates to the mutual benefit of the parties involved. To further encourage all parties to remain involved in the rights

in the Minor Leagues, BLEACHER REPORT (Feb. 12, 2014), http://bleacherreport.com/articles/1957838- mlb-must-finally-answer-for-exploitation-in-the-minor-leagues (“[T]he wage for low-level minor leaguers is $1,100 a month. MLB.com says that’s the maximum, not the minimum. And while the pay does escalate as players climb the ranks. . . . It’s only to a degree. At Triple-A, the highest minor league level, the typical monthly wage is $2,150 a month” [emphasis added]); see also Charlie Wilmoth, Minor League Players Still Paid Next to Nothing, SBNATION (Jan. 14, 2013), http://www. bucsdugout.com/2013/1/14/3874488/minor-league-baseball-players-still-paid-next-to-nothing (“While the Major League minimum salary in 2012 was $480,000, the figure for first-year players, regardless of their organization, runs about $1,110 a month during the season” [emphasis added]). 102. Paying the compensation to a player’s country will encourage countries to become more involved in the contractual arrangements of young players. Further, should difficulties arise between a signed player and an MLB team before the player is able to avail himself of the protection of the MLBPA, the country would be incentivized to stay involved in the process because it would still have a financial stake in the player’s relationship with the MLB team. In this regard, it may also encourage countries to create internal legal regimes in order to protect their interest in the value of each player’s talent; for example, creating laws allowing the country to legally represent baseball players who are in negotiations with MLB teams.

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and welfare of the signed player, it may be desirable to allow the compensation amount to be renegotiated annually at the request of any party. Another important consideration is how long the compensation amount should be a factor in the player’s career. Teams should be required to pay compensation for each baseball player recruited in Latin America and the Caribbean unless or until the player reaches the Major Leagues and has played there for sufficient time to earn free agency status under major league rules. Once the player has achieved this Major League skill level, any property rights in the player’s talent that the country possesses will transfer from the country to the player himself, and he becomes a free agent who can negotiate a contract with an MLB team.103 This means that a country’s property rights would cease at the same time his MLB team no longer has the right to restrict his ability to sign with another team, thus removing all obstacles to the player’s free agency at the same point in time. That is, a Latin American or Caribbean player would earn negotiation rights in much the same way as Rule 4 draft-eligible players do (an across-the-board six-year period of time during which the player cannot lawfully sign with another team or retire without penalty),104 but his rights would also vest through a system that applies only to Latin American and Caribbean players. This system would certainly result in higher transactional costs for MLB. These costs reflect compensation for the social costs MLB imposes on the countries where it recruits young ballplayers. Although MLB teams will see an increase in their bottom-line, these costs are unlikely to become so prohibitive that MLB stops recruiting in these countries—especially in light of the expense of drafting and signing North American players or navigating the Japanese system—as the pressure to find the next “superstar” will continue to motivate teams to recruit outside the North American market.105 Alternatively, if an MLB team is unwilling to pay a fair and equitable contract price to a Latin talent and compensate the player’s government for the negative effects of recruitment, that MLB

103. Paying the compensation to a player’s country will likely encourage countries to become more involved in the contractual arrangements of young players. Further, should difficulties arise between a signed player and an MLB team before the player is able to avail himself of the protection of the MLBPA, the country would be incentivized to stay involved in the process because it would still have a financial stake in the player’s relationship with the MLB team. In this regard, it may also encourage countries to create internal legal regimes in order to protect their interest in the value of each player’s talent; for example, creating laws allowing the country to legally represent baseball players who are in negotiations with MLB teams. 104. Frequently Asked Questions, supra note 75. 105. See Zimmer, supra note 24.

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team will simply be unable to sign the player, and he will have the opportunity to sign with another major league team (whether in North America or elsewhere) or play locally. MLB teams will be discouraged from stockpiling young men because the “boatload mentality” will no longer be financially viable. Also, if the player believes that his talents are best utilized in the United States, the door would not be closed permanently. He would always have the opportunity to follow traditional immigration methods to enter the United States, and if necessary establish residency and enter MLB through the draft system.106 Implementation of this type of system would not be without challenges. One issue is the form of governance that would be used to implement this new system.107 The use of public and private partnerships is arguably the best way to govern the system.108 In a public-private partnership system,

106. Players would need to seek admission to the United States through traditional immigration methods. The issuance of O, P, or H2-B visas would be limited to players who are recruited under the compensation system, so as to reduce the likelihood that MLB teams will seek to circumvent it. This would mean that a player who is not recruited under the system could only enter the United States using either a family-based visa petition or an employment-based visa petition offered by some other employer. See Family-Based Immigrant Visas, UNITED STATES DEPARTMENT OF STATE: BUREAU OF CONSULAR AFFAIRS, http://travel.state.gov/content/visas/english/immigrate/types/family/family-preference. html; see also Employment-based Immigrant Visas, UNITED STATES DEPARTMENT OF STATE, http://travel.state.gov/content/visas/english/immigrate/types/employment.html. While limiting the ballplayer’s opportunities in this way may seem harsh, it is no more restrictive than for any other intended immigrant to the United States. Moreover, allowing Latin American and Caribbean players to seek an O, P, or H2-B visa through an MLB team that recruited him outside the compensation system would not help to reduce recruitment abuses, because it would essentially render the system powerless. 107. “There are three basic forms of governance structure that can exist to oversee sports: a private-market system, a group-control system, and a public-federalist system.” Rosentraub, supra note 16, at 132. Governance can consist of any one of these systems independently or some combination of two or more. Id. A private-market system exists where private individuals operate the market. Id. All decision-making is done on an individual level. Id. This is essentially how MLB recruitment in the Caribbean operates today-MLB teams recruit players in their individual capacity or through agents and government involvement is minimal beyond the immigration stage. Id. Group governance involves owners of organizations giving control to an oversight entity—this is how MLB as a collective operates: all thirty franchises operate under the MLB umbrella. Id. In the Public- Federalist model, both the individual and governments may work together. Id. The “public-private” variation exists where the government controls some aspects of the system while private interests control others. Id. at 132–36. 108. To implement and encourage these partnerships, some sort of international regulatory body is recommended. The simplest option would to employ the International Baseball Federation (IBAF) to oversee and implement the process. The Official Site of the International Baseball Federation, http://www.ibaf.org/en/. The IBAF is a multi-national organization that currently operates the World Baseball Classic, various youth Baseball World Cups, and the Women’s Baseball World Cup. Id. Using the IBAF to implement an international dispute resolution system would not be a completely novel idea in the sports world. Another, more well-known international sports organization already offers a dispute resolution system for teams and players: the Federation Internationale de Football Association (FIFA). See Dispute Resolution System, FIFA.COM, http://www.fifa.com/aboutfifa/ organisation/footballgovernance/disputeresolutionsystem/index.html. Nor would it be unusual for the organization to become involved in improving the international impact of the game. FIFA lists among

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governments (public entities) and MLB teams (private entities) will work together to implement, regulate, and enforce the player-rental system.109 In this type of situation, the public sector will govern some aspects of player movement and recruitment internationally (such as creating procedural systems MLB can utilize to pay rent for talent), while other responsibilities can fall on MLB (for example, monitoring each team’s compliance with visa limitations and rental agreements made with foreign governments), or even the individual players (negotiating talent value or the terms of the payment of rental value to the government and/or the player himself).110

its objectives “to improve the lives of young people and their surrounding communities, to reduce the negative impact of our activities and to make the most we can of the positives.” Mission and Statues, FIFA.COM, http://www.fifa.com/aboutfifa/organisation/ mission.html. The significance of adopting an independent regulatory body for baseball should be noted here. A player might feel pressured to accept a lower contract rate in the event that his country and the MLB team seeking to recruit him collude to harm the player’s interests. Alternatively, a player’s country might exploit him if it is incentivized to do so. Ideally, the public’s concern over locally successful baseball teams and equitable treatment of individuals by the government would help discourage countries from engaging in harmful or unethical activities. However, because the temptation to make decisions that are not in the player’s best interest will always exist, oversight by a third party regulatory body would be ideal. 109. As a comparison to this idea, consider the NCAA, a public-private partnership. For the most part, the NCAA is a successful organization that is accepted by consumers: [T]he model of U.S. collegiate sports involves conjoint control between the public sector and a private group. Specifically, the National Collegiate Athletic Association (NCAA) controls numerous crucial elements of the multibillion dollar college sports industry. Yet, in so far as public institutions are concerned, the government controls the supply of franchises and the distribution of these franchises. Rosentraub, supra note 16, at 132. Adopting this system in countries that have poor political relationships with the United States (for example, Cuba) may prove difficult. However, it is likely that increased communication between the United States and these countries on a topic that is relatively uncontroversial will help to maintain valuable lines of communication despite political tension. Because sports entertainment is nearly universally popular worldwide, it serves as an area of commonality between countries that might have few other reasons to cooperate. By way of example, consider the Olympics, an international sporting event that in 2014 involved eighty-eight countries worldwide. At times, Olympic events have been staged successfully even when political tensions are high. Nonetheless, the United States is likely to oppose a system requiring MLB teams to financially compensate governments that it does not formally acknowledge or support. There may also be concerns regarding how a country intends to use compensation paid by MLB teams. Some of these concerns might be remedied by adopting a system that is highly specific in terms of how compensation operates. This might require the United States to independently negotiate the specifics of the system in each country individually (negotiation the use of compensation funds for different purposes in Cuba than in the Dominican Republic, for example). These are but a few concerns surrounding the political ramifications of a compensation system. Nonetheless, the topic is far too complex to be thoroughly addressed in this Note. 110. Id. at 136. Nonetheless, it is still necessary to fix the antitrust issues that exist within Major League Baseball’s operations in the United States. “Any effort to establish an international amateur draft system will trigger antitrust litigation pursuant to the Curt Flood Act.” Gould, supra note 23, at 116.

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IV. POTENTIAL PROBLEMS, BENEFITS, AND COMPLICATIONS OF A COASE THEOREM-BASED PLAYER-RENTAL SYSTEM

First, this system does not directly resolve the exploitation problem that young baseball players fall victim to in some Latin American and Caribbean countries. However, it does attempt to require MLB teams to not only pay the players their contractual rate, but to also make payments to countries in compensation for the talent the teams recruit in the region, a concept that does not exist in other professional sports.111 As MLB teams incur greater costs for collecting young players in academies, their interest in indiscriminately signing those players should go down. In turn, this should disincentivize buscones from similarly hoarding talent because profit will be less related to quantity and more to the quality of players that a buscon offers to a team. Resistance to a change in the power structure currently governing international player recruitment would be of concern in a rental system, particularly on the part of MLB. MLB’s power and influence in the baseball world is much greater than that of the countries it recruits talent from. Because there is an existing relationship wherein MLB teams operate as the franchisor and other countries and their leagues operate as franchisees, Major League teams can exact significant power over these leagues.112 It may be hard to incentivize change to this type of regime where MLB is at a distinct advantage in recruiting talent. Enforcement is another issue. One potential problem with enforcement is that it may prove costly, both for MLB and for the countries that participate in such a system. However, while initial costs will likely be greater at the time the system is put in place, the long-term benefits of such a program should offset the initial difficulty of putting into place and enforcing player talent rental. Additionally, when countries are being paid for their talent, it will incentivize them to enforce the new regime, so long as it is not overly complicated and they benefit from the new system as least as much as they did when players were independently subject to

111. Nonetheless, this proposal is modeled off of procedures that currently exist in countries like Japan and Mexico for the protection of native talent from MLB teams’ recruitment. See supra notes 53 and 84. 112. Rosentraub, supra note 16, at 137. MLB also exercises unfettered international power. Teams conduct business in many nations, seeking out and developing talent in ways that maximize the interests of MLB. The MLBPA has no authority to deal with the working conditions for major or minor league prospects in foreign countries, even when the teams and MLB are involved in these nations. MLBPA jurisdiction is limited to players signed to MLB contracts and on the roster of a MLB team.

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recruitment by MLB without compensation to the country of origin. However, it is important to note that the willingness of countries to cooperate in a player-rental system cannot be fully realized at this point. On that note, international cooperation will be essential to implement this type of system. Within a multi-country system, each country can cooperate in enforcing the rules against those countries that might resist the change.113 Nonetheless, it will be necessary to create a legal regime to oversee a player-rental system. Two options are: (1) the creation of a multilateral treaty, through which each country would enforce the system nationally, or; (2) the development of an international organization that would independently oversee operations in all participating countries.114 Much as MLB is regulated through federal and state laws in the United States, creating an international body or legal framework to control the international operation of MLB internationally should help to ensure that all parties comply with the new system.115 Another potential issue is how MLB and its teams respond to the new concept of compensation for a player’s talent value, as well as the increased transactional costs of international player recruitment. MLB and many of its teams are likely to resist change, or any type of restriction on how recruitment is accomplished. They may seek out enforcement

113. Some Latin American countries may have concerns with signing on to an internationally cooperative agreement for a variety of political and non-political reasons. See, e.g., supra notes 55–58. Alternatively, MLB may resist the new rules and regulations and attempt to find a way to circumvent them. For example, although teams are currently prohibited from signing players under the age of seventeen (See Zimmer, supra note 24), there are many well-known accounts of teams signing players under seventeen. See, e.g., Vargas, supra note 18, at 26. 114. At least one author has taken an international human rights approach to solving baseball’s problems in the Dominican Republic: American baseball standards for contract signings, training programs and the retention of sports agents have not reached the point of jus cogens and must be codified by the Dominican Republic if they are to have effect and import there. Thus, the burden falls to the Dominican Republic to act on behalf of its own people, as well as to international mechanisms to pressure the Dominican Republic to act. Zimmer, supra note 24, at 439. Of course, considering the limited and controversial role of jus cogens in international law, it is unlikely that sports recruitment would be elevated to that level. Rafael Nieto- Navia, International Peremptory Norms (Jus Cogens) and International Humanitarian Law, ICC NOW 1, http://www.iccnow.org/documents/WritingColombiaEng.pdf (last accessed Mar. 28, 2014). Nonetheless, it is unclear whether international governmental or non-governmental organizations are interested in interfering with international sports recruitment or whether any advisements or decisions would be taken seriously by Major League Baseball and the governments it affects. 115. However, any regulatory organization should function independently of MLB, as the corporation already has strong influence over player recruitment and would be unlikely to act against its own interests. Ideally, a regulatory system would be operated jointly by multiple countries (perhaps through the Organization of American States), rather than being controlled by a single country or organization that might not have the ability or neutrality to make decisions that are beneficial to all parties involved.

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loopholes or recruit in countries outside the jurisdiction of the player- rental system. Moreover, if property rights in a player’s talent transfer after a certain point and teams stop paying compensation, teams may be incentivized to find ways to sidestep the payment of rent to foreign countries. For example, teams may try to rush players to the major league level before they have fully developed, trade less valuable players indiscriminately to attempt to keep costs low, or artificially affect player rental “value” through subversive methods (such as reducing playing time, or moving a player throughout various levels of the minor leagues to inflate or decrease his stats). There may also be difficulty in developing a system for evaluating a fair compensation value that all parties agree appropriately compensates for the social costs of MLB recruitment. The effects of player recruitment are extensive, not heavily studied, and by nature are not easily measureable.116 For a compensation system to be functional, it must make sense, and steps must be taken to determine the monetary value of the negative effects of MLB recruitment in these countries. Despite these potential challenges, a player-rental system will provide a variety of benefits. For example, it may offer the potential for improved international relations.117 An economic-based legal relationship could eliminate some challenges in United States foreign relations—for example, with Venezuela, which may not be amenable to its players leaving the country so long as there are minimal benefits to the political regime.118 This may also help improve U.S. relations with Cuba119 if the embargo is lifted in the future.120

116. How does one determine, for example, how signing a player who turns out to be a major league star encourages a negative colonial relationship between that country and the United States, if at all? Or to what degree is that compensable, or should it be compensable at all? 117. One country of particular importance is Venezuela. Venezuela is a source of a significant portion of baseball talent but politically it has an unstable relationship with the United States. See U.S. Relations With Venezuela, U.S. DEPARTMENT OF STATE (Dec. 2, 2013), http://www.state.gov/r/pa/ ei/bgn/35766.htm; see also Opening Day: Over 28 Percent of MLB Players Are Foreign-Born, supra note 18. Time will tell whether political relations with Venezuela will have any impact on the number of Venezuelan ballplayers in the Major Leagues. 118. Venezuela, which has recently developed strained relations with the United States, is one country that has openly criticized MLB’s international recruitment policies: June 2000, the Associated Press reported that “[s]ports officials in Caracas, Venezuela, denounce an increasing tendency [of MLB teams] to recruit underage players and to crush their baseball dreams through exploitation and false promises. In the worst cases, the officials say, scouts promise boys lucrative major league contracts, then take them out of local play to hide them from other scouts. Vargas, supra note 18, at 25. 119. Cuba is not compensated for its players who must defect from the nation if they wish to compete in the United States. See Rachel D. Solomon, Cuban Baseball Players, the Unlucky Ones:

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Finally, and most importantly, a player-rental system will benefit international baseball players. They will have more negotiating rights, their interests will be protected, and they will still be able to play professionally in the United States. In general, many concerns surrounding the exploitative nature of international recruitment will be redirected towards improving and enforcing the player-rental system. Players not immigrating to the United States will benefit from more successful leagues that have more talent on their rosters, and better conditions generally for the countries they reside in. The result will be a more ethical and socially responsible global game for future generations of players and fans. Emily B. Ottenson

United States-Cuban Professional Baseball Relations Should Be an Integral Part of the United States- Cuba Relationship, 10 J. INT’L BUS. & L. 153 (2011). 120. For a discussion on how baseball relations can help to improve political relationships between the United States and Cuba, see id. It should also be noted that Congress has in the past proposed legislation that would allow Cuban baseball players to circumvent the embargo, suggesting that a focus on relatively low-risk, non-political subjects such as sports can contribute to the improvement of contentious foreign relations by highlighting a goal that both countries share in common. Baseball Diplomacy Act, H.R. 262, 106th Cong. § 2 (1999).  J.D. (2014), Washington University School of Law; B.A. (2008), University of Minnesota Twin Cities. Emily is currently an Assistant Attorney General in the Litigation Division of the Missouri Attorney General’s Office, located in Jefferson City, Missouri.

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April 2016 The eleC brity Behind the Brand International Protection of the Right of Publicity Eliana Torres

Follow this and additional works at: http://digitalcommons.pace.edu/pipself Part of the Entertainment, Arts, and Sports Law Commons, Intellectual Property Law Commons, International Law Commons, and the International Trade Law Commons

Recommended Citation Eliana Torres, The Celebrity Behind the Brand International Protection of the Right of Publicity, 6 Pace. Intell. Prop. Sports & Ent. L.F. 116 (2016). Available at: http://digitalcommons.pace.edu/pipself/vol6/iss1/5

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Abstract Part I of the article provides an overview of the right of publicity and its history. It presents the importance of this right, particularly for celebrities, and it focuses on the influence of the entertainment and sports industries in a global economy. Then, it analyzes the major differences in level of protection, scope and length, starting with the United States. Then it uses the standard in the United States and compares it with the protection offered in 22 selected jurisdictions based on a survey report by Kenyon & Kenyon titled Getting the Deal Through. Then, it addresses potential challenges to the current approach and the issues that arise from having different standards in every jurisdiction. Part II of the article provides a solution to the current issue. It proposes adopting a provision into the TRIPs Agreement.15 The asl t section of Part II analyzes the impact of this proposal in a global spectrum. Lastly, Part III addresses the potential criticisms of the proposal.

Keywords celebrity, right of publicity, privacy, TRIPs, international law

This article is available in Pace Intellectual Property, Sports & Entertainment Law Forum: http://digitalcommons.pace.edu/pipself/ vol6/iss1/5 PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM

VOLUME 5 SPRING 2016 NUMBER 1

THE CELEBRITY BEHIND THE BRAND INTERNATIONAL PROTECTION OF THE RIGHT OF PUBLICITY

Eliana Torres

TABLE OF CONTENTS

INTRODUCTION ...... 117 I. WHY DO WE NEED AN INTERNATIONAL RIGHT OF PUBLICITY? ...... 119 A. The Right of Publicity Defined ...... 119 B. Rationale ...... 120 C. Economic Importance ...... 121 D. The Lack of International Harmonization ...... 122 1. The United States ...... 122 2. Elsewhere ...... 126 E. The Problems Caused by the Lack of International Standards ...... 129 1. Problem Caused by Lack of Substantive Harmonization ...... 130 2. Problems Caused by Lack of National Treatment ...... 131 II. PROPOSING A SOLUTION: INCORPORATING A STATUTE INTO THE TRIP’S AGREEMENT ...... 133 A. Structure Under TRIPs ...... 133 1. Structure of the Statute ...... 133 2. Proposed Text of the Statute ...... 134 3. Elements of The Statute ...... 135 B. Reasons for Adopting Proposal ...... 138 1. Harmonization ...... 138 2. Solving the Issue of National Treatment ...... 139

III. CRITICISMS OF THE PROPOSAL ...... 139 A. Intellectual Property ...... 139 B. Overlapping Rights ...... 141 C. Neighboring Rights and TRIPs ...... 142 CONCLUSION ...... 142

2016] CELEBRITY BEHIND THE BRAND 117

INTRODUCTION Suppose, for example, that you were a famous pro-basketball player recognized worldwide. During an international trip abroad you see that a store is advertising underwear with your name and picture on it. After walking into the store, your image and name are in the underwear being sold. The manufacturer never secured rights for the use of your likeness. However, in bringing an action against the manufacturer, some jurisdictions like India, deny the right of publicity to non-citizens.1 While others, like the United States, are divided over whether foreign individuals can claim this right, particularly, individuals from jurisdictions that do not recognize this right.2 Thus, the potential for an individual from one country to have his identity used for commercial purposes in another country or in multiple ones is a vivid concern.3 Needless to say, the right of publicity plays a critical role in protecting the image of celebrities.4 Generally, the right of publicity is recognized as the “right of an individual to control the use of his or her name, likeness or other personal attribute for commercial purposes.”5 The above hypothetical is a clear example of the growing need for international protection of this right. For example, there are over 30,000 major international sporting events per year and numerous companies take advantage of the large audience attracted by these events. Several industries use the image of the participating athletes to advertise their goods without offering any compensation. Consequently, this scenario is mostly prevalent in the sports and entertainment industries.6 Celebrities are the most vulnerable to exploitation because of “their considerable marketability.”7 Thus, their identity can be used and abused by third parties in connection with advertising and commercial activities.8 Given the importance of the right of publicity, there must be legal standards set in place to protect the individuals most vulnerable to image exploitation. However, it is evident that there is a problem with the current

1. Jonathan D. Reichman, Kenyon & Kenyon LLP, Right of Publicity in 21 Jurisdictions Worldwide, GETTING THE DEAL THROUGH 1, 3 (2014), http://www.kenyon.com/NewsEvents/Publications/2013/11-13-Getting-the-Deal-Through- Right-of-Publicity-2014.aspx. 2. Id. at 4. 3. Id. at 3. 4. See infra p.123-4. 5. Id. at 1. 6. Global Sports Impact Project, SPORTS MARKETING INTELLIGENCE, http://www.sportcal.com/Impact/Default.aspx (last visited Oct. 29, 2014). 7. Reshma Amin, A Comparative Analysis of California's Right of Publicity and the United Kingdom's Approach to the Protection of Celebrities: Where Are They Better Protected? 1 CASE W. RESERVE J.L. TECH. & INTERNET 92, 93 (2010). 8. Id. at 3. 118 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

approach. There are critical differences in protection of the right of publicity in the United States and around the world.9 Some nations offer little to no protection, such as the United Kingdom, which does not even recognize the right.10 Meanwhile, other countries offer a wide scope of protection, like Japan, which extends protection to individuals’ signatures.11 Most importantly, the right of publicity is not mentioned in any international treaty by the WTO such as The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs”). Thus, nations are not required to offer protection to foreign citizens. The fundamental principle of the WTO is to encourage trade without discrimination, this is known as the national treatment principle.12 Under this principle, nations must provide the same level of protection offered to their citizens to foreign individuals (citizens from nations signatory of the WTO).13 Unlike other forms of Intellectual Property, the right of publicity remains excluded from this principle. In response, this comment proposes the implementation of an international statute within TRIPs recognizing the right of publicity. The adoption of a statue is intended to result in a harmonized approach to protect the interests of WTO countries. Part I of the article provides an overview of the right of publicity and its history. It presents the importance of this right, particularly for celebrities, and it focuses on the influence of the entertainment and sports industries in a global economy. Then, it analyzes the major differences in level of protection, scope and length, starting with the United States. Then it uses the standard in the United States and compares it with the protection offered in 22 selected jurisdictions based on a survey report by Kenyon & Kenyon titled Getting the Deal Through.14 Then, it addresses potential challenges to the current approach and the issues that arise from having different standards in every jurisdiction. Part II of the article provides a solution to the current issue. It proposes adopting a provision into the TRIPs Agreement.15 The last section of Part II analyzes the impact of this proposal in a global spectrum. Lastly, Part III addresses the potential criticisms of the proposal.

9. Id. at 3. 10. Reichman, supra note 1, at 3. 11. Id. 12. Agreement on Trade Related Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 33 I.L.M. 1125 (1994) [hereinafter TRIPs Agreement or TRIPs], at http://www.wto.org/english/docs_e/legal_e/27- trips.pdf. 13. Id. 14. Reichman, supra note 1. 15. TRIPs, supra note 11, art. 3. 2016] CELEBRITY BEHIND THE BRAND 119

I. WHY DO WE NEED AN INTERNATIONAL RIGHT OF PUBLICITY?

It was only 50 years ago that the right of publicity began evolving from being almost non-existent to being almost widely accepted today.16 In recent years, technology advancement and the global rise of social media have opened the door for the commercial exploitation of one’s name or likeness to become part of international transactions.17 Currently, celebrity and sport-stars endorsements surpass national boundaries and both common law and civil law countries are beginning to reassess the lack of protection of the right of publicity.18 As presented below, the right of publicity is an ever- expanding right but the critical differences in protection by jurisdictions around the world create a large disparity in treatment and protection.

A. The Right of Publicity Defined

The right of publicity is defined by Black’s Law Dictionary as “[t]he right of individual, especially public figure or celebrity, to control commercial value and exploitation of his name or picture or likeness or to prevent others from unfairly appropriating the value for their commercial benefit.”19 Most courts around the world did not recognize this right until the late 50’s.20 The Unites States first saw the court use this concept in 1953.21 Korea’s first time discussing the right of publicity was in 1992, in the case of actor James Dean.22 Thus, the definition can vary depending on the source.23 In the United States, the right of publicity originated from privacy and property law.24 It developed from situations in which individuals required protection from commercial exploitation but privacy law would not offer

16. Marshall Leaffer, The Right of Publicity: A Comparative Perspective, 70 ALB. L. REV. 1357, 1358 (2007). 17. Emily Grant, The Right of Publicity: Recovering Stolen Identities Under International Law, 7 SAN DIEGO INT'L L.J. 559, 561 (2006). 18. Id. 19. BLACK’S LAW DICTIONARY, 1325 (6th ed. 1990) (citing Presley's Estate v. Russen, 513 F. Supp. 1339, 1353 (D.C.N.J. 1981)). 20. Grant, supra note 17. 21. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953). 22. Hyung Doo Nam, The Emergence of Hollywood Ghosts on Korean Tvs: The Right of Publicity from the Global Market Perspective, 19 PAC. RIM L. & POL'Y J. 487, 488 (2010) (Heirs of James Dean brought an action against an underwear manufacturing company for use of James’ name and likeness to advertise their products). 23. Eric J. Goodman, A National Identity Crisis: The Need for A Federal Right of Publicity Statute, 9 DEPAUL-LCA J. ART & ENT. L. 227, 229 (1999). 24. Id. at 230. 120 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

adequate protection.25 The right of publicity was first separated from privacy law in the seminal case of Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.26 This case involved the use of photographs of baseball players in trading cards by manufacturers of chewing tobacco.27 In Haelan, the Second Circuit held that individuals could license or assign their images, and licensees and assignees could enforce this right against infringement by third parties. 28 It was in the opinion by Judge Frank that the “the right of publicity” was coined:

We think that, in addition to and independent of that right of privacy . . . a man has a right in the publicity value of his photograph . . . [and] to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made ‘in gross' . . . .This right might be called a ‘right of publicity.29

Since Haelan, nineteen states in the United States have codified the right of publicity and twenty-eight more states recognize the right by means of common law. 30

B. Rationale

There are two leading arguments in the discussion on what justify the right of publicity. The first one is the Lockean “labor theory,” which professor Nimmer argues as the rational for recognizing the right.31 The second one is the economic theory based on utilitarian principles.32 Under the Lockean theory endorsed by Nimmer, a person is entitled to the fruits of his or her own labor.33 In other words, the celebrities’ efforts merit legal protection. This theory was advanced in a Supreme Court decision recognizing the right of publicity, where the Court analogized the state’s interest in protecting the performance of the individual with the goals of copyright and patent law.34 The Court stated:

25. Alexander Margolies, Sports Figures' Right of Publicity, 1 SPORTS LAW. J. 359 (1994). 26. Haelan, 202 F.2d 866. 27. Id. 28. Id. 29. Id. at 868. 30. Statutes, THE RIGHT OF PUBLICITY.COM, http://rightofpublicity.com/statutes [hereinafter Statutes] (last visited Nov. 1, 2014). 31. F. Jay Dougherty, Foreword: The Right of Publicity-Towards A Comparative and International Perspective, 18 LOY. L.A. ENT. L.J. 421, 441 (1998). 32. Id. at 443. 33. Id. at 441. 34. Margolies, supra at 360. 2016] CELEBRITY BEHIND THE BRAND 121

The rationale for [protecting the right of publicity] is the straightforward one of preventing unjust enrichment by the theft of goodwill. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which [the defendant] would normally pay.35

Supporters of this theory argue that if a celebrity is not able to control the commercial exploitation of their image after it becomes valuable then the incentive to continue doing socially valuable things might diminish.36 This theory was also advanced by the Supreme Court in Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471(1954). There, the Court analogized with the philosophy behind the protection granted to patents and copyrights. The Court has stated the “philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors…Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.”37 Thus, both Lockean and Economic theories equally justify the right of publicity.

C. Economic Importance

There are enormous economic stakes in the merchandising of celebrities, athletes and public figures, but there is no protection offered to prevent the misuse of their image. 38 Industries are widely interested in the growth of their market through the use of the cross-cultural influence of endorsement deals.39 This is because celebrities as endorsers “confer a unique ability to transcend the traditional entertainment” market.40 The use of endorsers results in brand awareness and higher potential sales.41 In addition to their strong influence on consumers, the growth of social media and technology has allowed companies and advertisers to break national barriers and reach international consumers.42 The expanding economic landscape and globalization of cultural influencers make

35. Margolies, supra at 360. 36. Id. 37. Mazer v. Stein, 347 U.S. 201, 219, 74 S. Ct. 460, 471, 98 L. ED. 630 (1954). 38. Leaffeer, supra at 1357. 39. Id. 40. Emily Grant, The Right of Publicity: Recovering Stolen Identities Under International Law, 7 SAN DIEGO INT'L L.J. 559, 561 (2006). 41. Id. 42. Natasha T. Brison & Thomas A. Baker III, Kevin K. Byon, Tweets and Crumpets: Examining U.K. and U.S. Regulation of Athlete Endorsements and Social Media Marketing, 23 J. LEGAL ASPECTS SPORT 55, 56 (2013) 122 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

merchandising of celebrities a huge international business.43 Endorsers have the power to reach millions of consumers through multiple sources of social media. Advertisements are distributed internationally and with the Internet in the front page of merchandising, there is no boundary for incorporating celebrities in both content and advertising.44 Nevertheless, as the market and potential for endorsement expands, the opportunities for “unauthorized third parties to profit from the fame of these athletes” increase.45 As a consequence, the right of publicity has become the “essential legal right in protecting the entertainment industry.” 46

D. The Lack of International Harmonization

There is no unifying body of international law on the right of publicity.47 Unlike the intellectual property right of trademark, copyright and patent law, there is no international treaty or convention to address the right of publicity.48 Every jurisdiction treats the right of publicity differently. Thus, depending on the geographical location in which an individual resides, there are different levels of protection offered.

1. The United States

The right of publicity is unique to the United States.49 It grew out of an economic policy framework50 and it was perceived from the natural right of privacy.51 It became recognized as a property right after the decision in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.52 Thereafter, Professor Nimmer explored the inadequacy of traditional privacy law to protect the right of publicity, which became the foundation for this concept.53 Today, scholars characterize this right as “a combination of personal rights, intellectual property rights, and rights against unfair competition.”54 They

43. F. Jay Dougherty, Foreword: The Right of Publicity-Towards A Comparative and International Perspective, 18 LOY. L.A. ENT. L.J. 421 (1998). 44. Id. 45. Abib Tejan Conteh, The Right of Publicity in Sports: Athletic and Economic Competition, 3 DEPAUL J. SPORTS L. & CONTEMP. PROBS. 136, 137 (2006). 46. Nam, supra at 497. 47. Reichman, supra at 3. 48. Id. 49. Grant, supra at 562. 50. Grant, supra at 562. 51. Dougherty, supra at 424. 52. Haelan, 202 F.2d 866. 53. Margolies, supra at 360. 54. Grant, supra at 564. 2016] CELEBRITY BEHIND THE BRAND 123

also recognize the frequent overlap with trademark infringement and unfair competition claims and lack of protection under the Lanham Act.55 Regardless, presently there is no federal right of publicity. It is a matter of state law. As previously mentioned, there are nineteen states that have codified the right of publicity and twenty-eight more states that recognize the right by means of common law.56 There are other states that have tried to codified the right but have not succeeded.57 In 2009 North Carolina proposed legislation to address the right of publicity but did not enact it.58 Most recently, in March 31, 2015 the Arkansas governor vetoed a bill that would establish the right of publicity in the state of Arkansas.59 Moreover, of the states that recognize the right, the majority assert that only human persons posses it.60 a minority view that expands this right to cover musical groups.61 Furthermore, a majority of states does not require commercialization to offer protection.62 All individuals including non-celebrities can have an enforceable right of publicity. a. Scope

There is broad range of protection among the states.63 The states that recognize this right extend the protection only to the individual’s name and either his or her likeness.64 The only exceptions are New York and California. New York protects: name, portrait picture and voice.65 California protects: any aspect or combination of aspects of an individual’s persona that serves to identify him.66 On the broader end of the spectrum is Indian. Indiana extends protection to: name, voice, signature, photograph, image, likeness, distinctive

55. See Board Resolution Approving a U.S. Federal Right of Publicity, INT. TRADEMARK ASSOC., [hereinafter INTA], http://www.inta.org/Advocacy/Pages/ USFederalRightofPublicity.aspx (last visited Feb. 4, 2015). 56. Reichman, supra note 1, at 78. 57. Statutes, supra note 28. 58. North Carolina Right of Publicity Law, DIGITAL MEDIA LAW PROJECT (May 4, 2013), http://www.dmlp.org/legal-guide/north-carolina-right-publicity-law. 59. Governor Hutchinson’s Veto Letter to Senate Concerning SB79, ARKANSAS GOVERNOR (Mar. 3, 2015), http://governor.arkansas.gov/press-releases/detail/governor- hutchinsons-veto-letter-to-senate-concerning-sb79. 60. Reichman, supra note 1, at 78. 61. Id. at 4. 62. Id. at 3. 63. Reichman, supra note 1, at 79. 64. Id. 65. Id. at 78. 66. Id. at 79. 124 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

appearance, gestures, or mannerisms.67 There is even more controversy over the length of a postmortem right.68 The scope of protection can also be limited after the individual’s death.69 The states are split over the recognition of a post mortem right.70 It varies from 20 years under Virginia law to 100 years under the statute in Indiana and Oklahoma.71 Adding to the disparity, Nebraska does not even specify the length of protection after death and New York and Wisconsin expressly reject the right post mortem.72 The majority recognizes it but require some form of formalities in order to offer protection.73 Utah requires the right to be commercialized during the lifetime of the individual.74 Tennessee requires continuous exploitation even after death.75 b. Formalities

No state currently requires any registration of an individuals’ right of publicity in order to receive protection.76 However, a number of states require registration in order to offer protection post mortem.77 Nevada, for example, is one of the states that allow registration of a deceased persons’ postmortem right of publicity.78 If registered, third parties must make a reasonable effort to discover the identity of a successor in interest of the deceased in order to use the right of publicity of the deceased person for commercial purposes.79 c. Transferring or Licensing

The right is freely alienable and transferable in gross.80 It is also divisible; an individual can assign his or her right in his or her name to one party and his right or her likeness to another party.81

67. Id. at 79. 68. Jeffrey A. Lindenbaum, Fifteen Minutes of Fame can Generate Fifteen Decades of Royalties, COLLEN IP 1, 9 (Jan. 31, 2009), http://www.collenip.com/newsletter/ publicityrights/. 69. Reichman, supra note 1, at 3. 70. Id. at 78. 71. Id. at 80. 72. Lindenbaum, supra at 9. 73. Reichman, supra at 80. 74. Id. 75. Id. 76. Id. at 79. 77. Id. 78. NEV. REV. STAT. § 597.800(7). 79. NEV. REV. STAT. § 597.800(5). 80. Reichman, supra at 79. 81. Id. 2016] CELEBRITY BEHIND THE BRAND 125

d. Infringement

There is infringement when an individual has a valid enforceable right, a protected aspect of his or her persona is used without permission, in a commercial context, and the individual is injured as a result.82 Some states require that the unauthorized use cause damage to the value of the person.83 e. Damages

Usually, compensatory and punitive damages are available in the states recognizing the right.84 Injunctive relief is also available and some states allow the destruction of the material that infringed the right.85 Some injunctions extend nationwide, even extending over states that do not recognize the right of publicity.86 In determining compensatory damages, the court will try to determine the fair market value of the use of the image of the individual harmed.87 f. Protection for Foreign Nationals

In the United States, the States are split on whether to offer protection to foreign nationals.88 This has been mostly controversial when dealing with individuals that reside in countries that do not offer protection at all like the United Kingdom.89 The United States has dealt closely with this issue in California, where the successors of Princess Diana attempted to enforce her publicity rights against third parties in the United States.90 There, the California court had to decide whether the post-mortem right of Diana, who died a domiciliary of Great Britain, was enforceable in the United States. 91 The court decided that there was nothing to pass on because the United Kingdom does not recognize the post-mortem right of publicity like California.92

82. Id. at 80. 83. Id. 84. Id. at 81. 85. Id. at 82. 86. Id. 87. Id. at 78. 88. Id. at 4. 89. Id. 90. Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002). 91. Id. 92. Id. 126 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

2. Elsewhere

Using the United States as a threshold standard, there are significant differences around the world in protection of the right of publicity. Some have argued that the differences are a result of the difference in culture, philosophies, and history.93 For example, the United States views the right as a commercial property, while Italy views it as a fundamental personal right that cannot be detached from the individual.94 Similarly, Spain and Portugal combine both approaches.95 In 2014 Kenyon & Kenyon published Getting the Deal Through-Right of Publicity.96 The publication surveyed 22 jurisdictions worldwide and analyzed the right of publicity within those jurisdictions from a practitioner’s point of view. This Article will use the findings of this survey to compare the state of the right of publicity in the 22 jurisdictions mentioned and it will complement the findings with other independent law reviews to formulate and support the thesis presented. a. Scope

There are numerous differences in scope of protection. For example, Japan protects the individuals’ signature;97 meanwhile, only one state in the United States, Indiana, extends protection to this element of the person. Similarly, France extends protection to individuals’ title, nobility and family motto.98 Nevertheless, France has experienced controversy as to whether the right is solely a personal right or whether it should be considered a property right.99 Thereby, France protects personality rights but limits the protection for known facts and images of public figures.100 Germany protects the concepts of “an absolute person of contemporary history” which allows the protection of character or description of an individual part of history.101 Portugal also protects a family’s name.102 Israel offers a broad and ambiguous protection.103 It extends to any characteristic that uniquely belongs to a

93. Dougherty, supra at 423. 94. Id. at 434. 95. Reichman, supra note 1, at 3. 96. Id. 97. Id. 98. Dougherty, supra at 434. 99. Id. 100. See Right of Publicity, PROJECT GUTENBERG, http://self.gutenberg.org/articles/Ri ght_of_Publicity#Guernsey (last visited Apr. 4, 2015). 101. Id. 102. Reichman, supra note 1, at 3. 103. Id. 2016] CELEBRITY BEHIND THE BRAND 127

person.104 A number of jurisdictions, such as Greece, Austria, Argentina and Spain offer protection “for any element of a persona that serves to identify a person in the mind of the public.”105 Hong Kong is currently dealing with an ongoing dispute between Cantopop singer Andy Lau and Hang Seng Bank over the use of the singer’s images on credit cards.106 The United Kingdom does not recognize the right of publicity.107 However, “passing off” is a possible cause of action but it is limited in application because it is based on the law of unfair competition.108 The closest source of protection in the United Kingdom is the right of privacy, which has been introduced as a Human Rights Bill that would incorporate the European Convention on Human Rights into British law and directly mentions the right of privacy.109 However, this bill is still pending in parliament.110 Canada bases the right on unfair competition law.111 It is the closest system to the United States because the Canadian provinces differ in protection offered and scope.112 The Island of Guernsey offers one of the broadest scope of protection by allowing five categories: natural person, legal person, two or more natural persons or joint personalities, group or teams, and fictional characters of human or non- human being.113 Namely, personalities such as Homer Simpson, a fictional cartoon character, would qualify for protection in Guernsey.114 Furthermore, jurisdictions offer the right during a persons’ life but only a small number offer the right post mortem such as Argentina, Brazil, France, Germany, Mexico, Spain and Russia.115 The Island of Guernsey, with its most recent ordinance, allows humans to register up to 100 years after the date of death.116 b. Formalities

104. Reichman, supra note 1, at 3. 105. Id. 106. Jane Moir, Andy Lau Takes Bank to Court Over Use of Name, SOUTH CHINA MORNING POST (Mar. 11, 1999), http://www.scmp.com/article/275142/andy-lau-takes-bank- court-over-use-name. 107. Dougherty, supra at 433. 108. Id. 109. Id. at 434. 110. Id. 111. Id. at 436. 112. Id. 113. The Image Rights (Bailiwick of Guernsey) Ordinance, § 1(1) (2012) [hereinafter Guernsey], http://www.guernseylegalresources.gg/article/104749/Image-Rights-Bailiwick -of-Guernsey-Ordinance-2012. 114. Reichman, supra note 1, at 59. 115. Reichman, supra note 1, at 59. 116. Reichman, supra note 1, at 3. 128 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

Most jurisdictions do not use formalities as a condition to right of publicity protection. However, Russia requires that a person’s name be registered at birth.117 Other jurisdictions require registration for the protection of the post mortem right, like some states in the United States.118 In addition, there is a requirement to prove economic value in some jurisdictions like Israel. Thus, individuals have a right of publicity but it is limited to those who can prove economic value in their image.119 Similarly, Japan limits the right to “persons of distinction.”120 Most notable is the case of the Island of Guernsey. In December 2012, the Guernsey enacted an Image Rights registry, which allows the registration of personality rights and associated image.121 The requirement for registration is not based on commercial value like in the majority of states in United States that protect the right of publicity.122 Instead, in order to bring a claim for infringement, the image must meet two elements; (1) it must be distinctive or recognized in association with the registered personality by a relevant part of the public anywhere in the world; (2) it must have actual or potential value, likely to be exploited because of its value.123 Furthermore, a personality may register his or her image by presenting an application to the intellectual Property Office in Guernsey.124 c. Transferring or Licensing

Similar to the differences between states in the United States, jurisdictions are divided over the right to transfer or license someone’s’ image. Greece, India and Japan allow the right to be freely transferred.125 Whereas, the France and Mexico allow licensing but not transferring and Austria prevents both.126 The Island of Guernsey allows the transfer of image rights to third parties by virtue of an assignment.127 Similarly, Jamaica allows a personality right to be transferred by disposition.128

117. Reichman, supra note 1, at 3. 118. Id. 119. Id. 120. Id. 121. Guernsey, supra at 1(1)(e)(5). 122. Reichman, supra note 1, at 3. 123. Guernsey, supra at 27(2)(b). 124. Guernsey, supra at 11. 125. Reichman, supra at 4. 126. Reichman, supra at 4. 127. Guernsey, supra at 58(8)(2)(d). 128. Right of Publicity, supra note 98. 2016] CELEBRITY BEHIND THE BRAND 129

d. Infringement and Damages

Infringement may be the only area where there are not as many differences. There is infringement when the right of publicity is misused or used with no compensation by another, which results in damage to the individual.129 Similarly, the United States damages available are also offered in most jurisdictions, with the exception of Austria, France, Mexico and Spain, which provide for a publication of the judgment as part of the judgment. Only a few offer punitive damages, such as India.130 e. Protection for Foreign Nationals

Analogous to the United States dilemma, most other jurisdictions are split over the protection offered to foreign citizens. Reichman presents India as an example, where a foreign individual is not entitled to the protection of the right of privacy offered by the constitution.131 However, he points out, individuals may still receive protection of some statutory rights.132 France only applies French law to events occurring in France and if there is a publication outside of France, French Courts will not offer relief except to any harm occurred in France.133 Italy, on the other hand, offers protection to citizens and noncitizens for violations of the “personality right.”134 Brazil and Argentina offer similar protection for interest similar to the right of publicity.135 However, it is unclear whether they would offer protection to a foreign national.136 Guernsey offers protection under its Image Rights Registry to all individuals regardless of citizenship.137 Likewise, Germany allows protection for foreign nationals but limits foreign verdicts for punitive damages as unenforceable.138 Japan offers the same protection and limitations for foreign nationals and verdicts.139

E. The Problems Caused by the Lack of International Standards

There are two major problems with the lack of harmonization. First,

129. Right of Publicity, supra note 98. 130. Id. 131. Reichman, supra at 4. 132. Id. 133. Dougherty, supra at 433. 134. Id. 135. Id. 136. Id. 137. Guernsey, supra at 7(7). 138. Reichman, supra at 41. 139. Id. at 69. 130 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

there are too many substantive differences between jurisdictions. Second, there is a major problem caused by the lack of national treatment.

1. Problem Caused by Lack of Substantive Harmonization

The popularity of the image of individuals extends to the international market. There is now a single market for popular figures rather than a geographic limit as it was before. Everyone knows LeBron James and Miley Cyrus across nations. However, it is evident that there are critical differences in protection of the right of publicity by jurisdictions around the world. Thus, disputes are inevitable unless a harmonized standard is set in place. The globalization of celebrities and the growing technological landscape creates opportunity for more infringement worldwide. In form of analogy, the Anti- Counterfeiting Trade Agreement (“ACTA”) was established as a response to the similar issue, the lack of international harmonization of anti- counterfeiting measures.140 The arguments made in favor of ACTA by the European Commission are similar to the arguments that can be made in favor of the harmonization of the right of publicity.141 The European Commission stated:

The proliferation of intellectual property rights (IPR) infringements poses an ever-increasing threat to the sustainable development of the world economy. It is a problem with serious economic and social consequences. Today, we face a number of new challenges…the speed and ease of digital reproduction; the growing importance of the Internet as a means of distribution...[a]ll these factors have made the problem more pervasive and harder to tackle.142

This is a rationale that is also applicable to the right of publicity. Technological advances and modernization are generating more pervasive challenges faced by celebrities whose image is compromised. This becomes a bigger issue when Individuals cannot be protected at all by some jurisdictions and protected in others to extent of their signature.143 For example, in Italy, one of the countries that recognize the right of publicity, the Court of First Instance of Milan decided in the case of actress Audrey Hepburn that this right extended to the use of elements that merely evoke the

140. Council of the European Union, Council Resolution on a Comprehensive European Anti-counterfeiting and Anti-piracy Plan, OFFICIAL WEBSITE OF THE EUROPEAN UNION (last visited October 30, 2014), http://www.consilium.europa.eu/ueDocs/cms_ Data/docs/pressData/en/intm/103037.pdf. 141. Id. 142. Id. 143. See Reichman, supra note 1, at 3. 2016] CELEBRITY BEHIND THE BRAND 131

celebrity involved.144 There, elements of Audrey Hepburn’s image were being used in advertisements with a cat that evoked her persona.145 There are other recent controversies that have arisen from this same context. In February 2015, Bleacher Creatures, a company headquartered in the state of Pennsylvania, announced their newest product Pope Francis dolls.146 However, there has been no statement made by the company in regards to the license used for the image of the Pope.147 Given the wide range of popularity of the Pope, there would be multiple venues where this doll could be sold and liable for infringement of his image. The wide range of protection and limitations around the world would also make any possible claim a complex matter for both parties. The result would be disparate because of the lack of harmonization.

2. Problems Caused by Lack of National Treatment

Because of the fast globalization of commerce, it may be necessary to purse claims in foreign courts. However, the lack of protection and over protection around the world results in disparate treatment and unfavorable consequences for individuals.148 Scholars have noted that the inconsistent doctrines governing publicity rights have the potential effect to “harm litigants and the judicial system as a whole.”149 Intellectual property rights are harmonized by conventions such as the Paris Convention, Berne Convention and TRIPs. These important conventions apply the national treatment principle.150 This principle operates by according nationals of other member states the same treatment afforded by treaty members’ nationals.151 This principle of national treatment has been incorporated in most national and international laws. It derived from natural law, most specifically

144. Eleonora Rosati, Evoking Audrey Hepburn’s Image in an Ad is Not Okay, Says Italian Court (Feb. 9, 2015), http://ipkitten.blogspot.com/2015/02/evoking-audrey-hepburns- image-in-ad-is.html 145. Id. 146. Pope Francis has Arrived… as a Plush Doll, CNN MONEY (Feb. 16, 2015), http://money.cnn.com/2015/02/16/smallbusiness/pope-francis-plush-doll/index.html 147. Id. 148. Amin, supra at 93. 149. Kyle D. Simcox, Selling Your Soul at the Crossroads: The Need for A Harmonized Standard Limiting the Publicity Rights of Professional Athletes, 63 DEPAUL L. REV. 87, 103 (2013). 150. The Berne Convention for the Protection of Literary and Artistic Works, art. 5(2), (Sept. 9, 1886; revised July 24, 1971 and amended 1979; entered into force for U.S. Mar. 1, 1989 (Sen. Treaty Doc. 99-27)) 1986 U.S.T. Lexis 160 or 1 B.D.I.E.L. 715 [hereinafter Berne Convention]; TRIPs, supra note 11, art. 3. 151. George B. Delta & Jeffrey H. Matsuura, Law of the Internet, § 5.04 (3d ed. 2013). 132 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

from general fairness principles.152 According to The World Intellectual Property Organization (“WIPO”) one of the reasons which lead to this principle was the understanding that “authors by nature should be able to benefit everywhere from their natural property” and therefore should be recognized as authors with given rights in foreign countries.”153 This principle, however, is only applicable to the other intellectual property rights (copyright, trademark and patents) through the respective treaties protecting them. The right of publicity cannot be afforded national treatment principles under current law. The right of publicity is equally as important in the development of the world economy and should be afforded equal protection like the rest of the intellectual property rights. There are courts around the world that have dealt shed light to the issues that the lack of national treatment presents. The Princess Diana case mentioned earlier is notably one of these major cases. Along the same context, in the 1985 case of Bi-Rite Enterprises Inc. v. Bruce Miner Co., members of the three different pop groups succeeded in bringing an injunction to prohibit the use of their image in posters that were being commercialized.154 This is an example where foreign nationals were able to protect their right of publicity regardless of their residency. However, the same result may not be achieved if the same claim was brought in a country where there is no protection like the United Kingdom or where there is no protection for foreign nationals like in India. Furthermore, if the court deciding these cases were one where punitive damages are awarded, this award would not be enforceable in other jurisdictions, such as Germany and Japan, where foreign punitive damages are not enforceable. This scenario was presented in a recent case in the United Kingdom where United States resident Rihanna, a famous singer, sued Topshop, clothing company, for selling t-shirts with her image.155 There, the court decided “[t]here is in English law no "image right" or "character right" which allows a celebrity to control the use of his or her name or image.”156 However, the court allowed Rhianna to succeed on a passing off action.157 If the elements of “passing off” would not have been met, Rhianna wouldn’t have any other course of action in the United Kingdom, where the shirts were being sold. This is a big issue

152. Dr. Silke Von Lewinski, Intellectual Property, Nationality, and Non-discrimination, WORLD INTERNATIONAL PROPERTY ORGANIZATION (last visited October 30, 2014), http://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_ unhchr_ip_pnl_98_6.pdf. 153. Id. at 15. 154. Bi-Rite Enterprises, Inc. v. Bruce Miner Co., Inc., 757 F.2d 440 (1st Cir. 1985). 155. Eleonora Rosati, Rihanna T-Shirt: Court of Appeals says It’s Passing Off, THE IPKAT (Jan. 22, 2015), http://ipkitten.blogspot.com/2015/01/court-of-appeal-confirms-that- sale-of-t.html. 156. Id. 157. Id. 2016] CELEBRITY BEHIND THE BRAND 133

for celebrities who are citizens of a different country where they reside and whom are likely to be exploited in the multiple countries where they are popular.

II. PROPOSING A SOLUTION: INCORPORATING A STATUTE INTO THE TRIP’S AGREEMENT

This comment proposes adopting a provision into the TRIPs Agreement. A new provision under a current international treaty would set minimum standards to recognize the right of publicity in already WTO signatory countries to harmonize it. The provision sets clear standards defining the criteria for an individual to qualify for protection of the right of publicity. Additionally, it defines what the right of publicity is and what it protects. It also breaks down the provision into the major areas of issue outlined in Part I. The first part of the provision determines the scope of protection. It then presents the formalities to qualify for protection. Lastly, it would determine the length for protection.

A. Structure Under TRIPs

The TRIPs Agreement is a treaty administered by the WTO to which 158 countries are signatory members.158 This comment proposes the adoption of an additional article under TRIPs as the potential solution. The new provision under an already enacted and enforceable international treaty would set minimum standards to recognize the right of publicity in already WTO signatory countries. Under this scheme, the scope of protection would extend to celebrities resulting in a harmonized system of enforcement.

1. Structure of the Statute

An additional obligation to protect the right of publicity under TRIPs would fit under Part II, Section 1 Titled: Copyright and Related Rights, after Article 14.159 The additional provision emulates the same objective behind the inclusion of Article 14 into TRIPs.160 Under Article 14, TRIPs protects the rights of performers, producers of phonograms, and broadcasting organizations.161 It protects these individuals and entities from having the

158. Alain J. Lapter, Esq., How the Other Half Lives (Revisited): Twenty Years Since Midler v. Ford A Global Perspective on the Right of Publicity, 15 TEX. INTELL. PROP. L.J. 239, 310 (2007). 159. TRIPs, supra note 11, art. 14. 160. Id. 161. TRIPs, supra note 11, art. 14(3). 134 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

fixation of their performance on a phonogram undertaken without authorization.162 This adoption is narrowly tailored to the protection of performers by reference to the Rome Convention.163 Article 3 of the Rome Convention of 1961 defines performers “actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works.”164 Similarly, this comment proposes a narrowly tailored scope of protection for celebrities, as recognized and defined by the courts in the United States.

2. Proposed Text of the Statute

In order to guarantee a feasible system for enforceability, the proposed provision is narrowly tailored to protect the rights of a smaller class of individuals. A draft of the right of publicity as Article 15 would look like the following:

Article 15 Protection of The Right of Publicity: Persona and Image Rights 1. In respect of the use of an individuals’ likeness for commercial use without prior consent from the individual or the individual’s successor-in-interest, the individual shall have the possibility to prevent such use of his or her persona or image.165 2. Infringement shall occur when the individual’s image or persona is used for a commercial purpose without authorization and from such use the individual is ‘readily identifiable’ when one who views the image with the naked eye can reasonably determine that it is such natural person depicted in the image.166 3. Rights in Persona and Image shall last for the lifetime of the Registrant plus a period of fifty (50) years after the death of the Registrant. 167 4. Rights in Persona and Image vest in the right-holder regardless of whether such rights were commercially exploited during that individual's lifetime by either that individual or a licensee or assignee168 and shall be deemed exclusive to the individual, or

162. International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, Oct. 26, 1961, (Rome 1961), 496 U.N.T.S. 43, reprinted in 3 UNESCO, COPYRIGHT LAWS AND TREATIES OF THE WORLD (Supp. 1978) [hereinafter Rome Convention]. 163. TRIPs, supra note 11, art. 3, 4. 164. Rome Convention, supra note 125, art. 3. 165. See 15 U.S.C. § 1125(a)(1) (1998); CAL. CIV. CODE §§ 990(a), 3344(a); TENN. CODE ANN. § 47-25-1105(a) (1997). 166. Id. at 317. 167. See TENN. CODE ANN. §47-25-1104(a). 168. Lapter, supra note 121, at 322. 2016] CELEBRITY BEHIND THE BRAND 135

licensee or assignee of such rights, for the full duration of such rights as protected under this statute.169 5. The individual rights provided for in this statute are considered property rights and are freely assignable and licensable. 170 6. After the death of any individual, the rights under this statute shall belong to the successor-in-interest.171 7. Members shall provide limitations and exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the Persona or Image and do not unreasonably prejudice the legitimate interests of the right-holder, such as fair use and newsworthiness.172

3. Elements of The Statute

In order to provide the best enforcement mechanism, the draft of The Right of Publicity: Persona and Image Rights draws various elements from court decisions in the United States, as well as state statutes. The following part of this comment discussed the elements it draws and the benefits of adopting them into an international provision into TRIPs. a. Commercial Value as a Limitation

To qualify for protection an individuals’ persona must be used for commercial value as stated in the first sentence under Section 1 of the proposed statute. This means that an individual qualifies for protection if the individual can prove that his or her persona or image has commercial value and he or she intends to profit from that value.173 This definition of what it means to have commercial value would be included in the definitions section of the statute. The definition of commercial value, for purposes of this provision, shall be proven by the distinctiveness of the identity and by the degree of recognition of the person among those receiving the publicity.174 Commercial value is what this paper justifies as the requirement to be deemed a ‘celebrity or public figure’ in order to receive protection. This definition exemplifies and expands what it means to have commercial value in one’s image or persona. This requirement is essential to narrow the scope of protection for a more enforceable provision.

169. Id. at 323. 170. See TENN. CODE ANN. §47-25-1103(b). 171. See CAL. CIV. CODE § 990(d). 172. INTA, supra note 53. 173. Id. at 386. 174. Id. 136 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

The scope of protection offered by the drafted provision is more likely to be enforced because it is narrowly tailored to celebrities. It has been articulated by some courts in the United States that they “sense a difficulty in allowing any individual to sue under the right of publicity” because it conflicts with the duty of the court not to unduly restrict commercial speech.175 This justification is based on the fact that non-celebrities do not have any commercial value to be protected and no other countervailing right is being harmed in right of publicity cases. Instead, privacy right is the appropriate route for private citizens. This was expressed by The Supreme Court of Georgia which held that “the right of publicity historically grew from the need to protect property rights of celebrities or public figures, the right of publicity applied only to public figures, while the right of privacy applied to private citizens.”176 Furthermore, this article also suggests that to determine when an individual has gained commercial value, the test derived from the decision in Cheatham v. Paisano Publications, Inc. should be adopted.177 There, the court decided that “celebrity status “should not be an absolute prerequisite” but plaintiffs must establish ‘commercial value’ which can be shown by ‘(1) the distinctiveness of the identity and by (2) the degree of recognition of the person among those receiving the publicity.” 178 The author of this paper believes that this test is the most appropriate for adoption into the drafted provision given its flexibility and lack of complexity. b. Scope of Protection

The proposed statute intends to protect the unauthorized used of an individual’s persona or image. Thus, “Persona” as intended by this statute, would mean the following or an imitation thereof: the legal name of any natural person or any other name by which a natural person is known to any material segment of the general public; signature; voice; image; distinctive characteristics or appurtenances by which a natural person is known to any material segment of the general public; or a character portrayed by the natural person on stage, in film or television or in live performances or other entertainment media, provided that the character has been created by the natural person and has become so associated with the natural person as to be indistinguishable from the natural person's public image.179

175. Alicia M. Hunt, Everyone Wants to Be a Star: Extensive Publicity Rights for Noncelebrities Unduly Restrict Commercial Speech, 95 NW. U.L. REV. 1605, 1621 (2001). 176. Id. at 1624. 177. 891 F. Supp. 381, 384 (W.D. Ky. 1995). 178. Id. 179. Lapter, supra note 121, at 320. 2016] CELEBRITY BEHIND THE BRAND 137

The term “image” would include but not be limited to, a picture, portrait, likeness, photograph or photographic reproduction, still or moving, or any videotape or live television transmission or audio/visual representation or any analog or digital representation or transmission or any other method of crating or reproducing a likeness, now know or hereafter created, such that the natural person is readily identifiable.180 These definitions are implemented from an amendment proposed by the International Trademark Association (“INTA”) in 1998.181 The proposal called for the expansion of the Lanham Act, the controlling federal act for trademarks in the United States, to cover “persona” rights as defined in the proposed definitions.182 Lastly, The length of the protection is also adopted from the Tennessee statute, which allows the right of publicity to last the life of the right-holder plus 50 years.183 This length is appropriate in relation to the duration that the Berne Convention affords to copyrights.184 In addition, the drafted provision adopts the language of the Tennessee statute, which deems the right of publicity a property right.185 Thus, the right is freely alienable. Likewise, the provision would allow the right to pass to a successor-in- interest after death of the right-holder. 186 c. Specific Defenses

As developed in the case law, defenses to claims of infringement of a right of publicity have included legal and equitable defenses such as constitutional free speech, the non-confusing use of a person's own name or other aspects of persona, or that the alleged infringer has obtained consent to the use. The INTA Right of Publicity Subcommittee proposed that federal right of publicity legislation be designed to accommodate First Amendment constitutional and fair use principles and to permit use of aspects of persona in connection with matters of public interest.187 Expressly permitted uses of aspects of persona would include, but not be limited to, news, biography, history, fiction, commentary, and parody.188 In congruence with INTA, and in the interest of free speech, the drafted statute suggests adoption of a similar exception.

180. Id. at 316. 181. INTA, supra note 53. 182. Id. 183. See TENN. CODE ANN. §47-25-1104(a). 184. Berne Convention, supra note 125. 185. TENN. CODE ANN. §47-25-1103(b). 186. See CAL. CIV. CODE § 990(d). 187. INTA, supra note 53. 188. Id. 138 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

d. Protection Based On U.S. Courts Decisions and Statutes

Although the United States does not currently have a federal statute addressing the right of publicity, there have been many states that have ruled on the matter and many other states that have adopted statutes protecting it. The first subsection on the draft of the provision in this paper adopts similar language from the statue protecting the right of publicity in Tennessee. The Tennessee statute provides a clear and concise introduction to the right of publicity.189

B. Reasons for Adopting Proposal

The proposal provides a solution to the current uncertainty generated from the lack of consistency in the way all nations treat the right of publicity. This proposal is the most advantageous because “legal certainty promotes commercial efficiency,”190 it promotes public policy by protecting the fruits of labor of individuals, and it institutes a more efficient administrative system. Most importantly, this proposal is a resolution to the harmonization and national treatment issues that the right of publicity faces.

1. Harmonization

An international scheme like the one proposed is the best solution to harmonize the right of publicity around the word. Given the global landscape of marketing and advertising campaigns, the commercial appropriation of celebrities without authorization creates tension between the celebrities, the authorized licensors and the unauthorized entity or individual. This proposal solves this issue by introducing the WTO as the main body to resolve disputes associated with the right of publicity. The WTO provides and effective dispute resolution system that governs TRIPs and all its other treaties.191 The WTO has “presided over hundreds of cases invoking agreements under their auspices including several dozen claims alleging violations of TRIPs.”192Additionally, one legal standard will generate certainty for those exploring international marketing and advertising campaigns and those interested in using the image or persona of a celebrity for similar purposes.

189. TENN. CODE ANN. § 47-25-1105(a) (1997). 190. Eric J. Goodman, A National Identity Crisis: The Need for A Federal Right of Publicity Statute, 9 DEPAUL-LCA J. ART & ENT. L. 227, 243 (1999). 191. See Alain Lapter, The WTO's Dispute Resolution Mechanism: Does the United States Take it Seriously? A TRIPs Analysis, 4 CHI.-KENT J. INTELL. PROP. 217 (2005). 192. Lapter, supra note 121, at 312. 2016] CELEBRITY BEHIND THE BRAND 139

2. Solving the Issue of National Treatment

As mentioned previously, under the Lockean “labor theory,” a person is entitled to the fruits of his labor.193 Professor Nimmer in his seminal article, earlier mentioned, advocates for the labor theory as the rationale behind the need to recognize the right of publicity.194 The multiple countries that protect the right of publicity endorse this rationale. However, the intended result of protecting individuals from unauthorized used of their image is diminished once an individual is left with no recourse in foreign countries where he cannot be protected. For “some celebrities consumers automatically assume that they have been compensated,” without realizing that they are being used with no compensation.195 There is an expectation of profit from the use of a celebrity’s image and persona, which is the fruit of their labor, and this expectation should be protected regardless of the place of residence. Celebrities should receive the profit that is generated from the use of their own persona or image. The ability to receive national treatment translates into the ability to “retain control over one’s identity” in any part of the world. This is a fairness principle that has been endorsed by those who believe in the protection intellectual property rights, which should be extended to the right of publicity.196

III. CRITICISMS OF THE PROPOSAL

Critics might object that the right of publicity shouldn’t belong in the set of intellectual property rights and argue that the current set of rights overlaps with the rights protected by the proposed statute. Additionally, critics may believe that there are better alternatives other than a statue in TRIPs and under the Neighboring rights provision. These potential criticisms will be addressed in the following sections of the paper.

A. Intellectual Property

The right of publicity may be questioned as a right that should not belong as intellectual property. This criticism is derived from the attack on intellectual property rights in general, viewed as growing “uncontrolled to

193. See Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287 (1988). 194. See Nimmer, The Right of Publicity, 19 LAW & CONTEMP. PROBS. 203 (1954). 195. Jeff Bercovici, How The FTC’s Endorsement Rules Unfairly, DAILY FINANCE (Jan. 06, 2010), http://www.dailyfinance.com/2010/01/06/how-the-ftcs-endorsement-rules- unfairly-favor-celebrities (last visited Jan. 20, 2015). 196. See Patrick Whitman, Comment, Everyone’s a critic: Tiger Woods, The Right of Publicity and the Artist, 1 HOUS. BUS. & TAX. LJ. 41, 48-56 (2001). 140 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

the point of recklessness.”197 Similarly, critics present that courts have given too much weight to celebrities’ interest in the control of their image as opposed to freedom of speech.198 They argue, “treating limited monopolies in certain expression as a ‘property’ leads people to embrace broad and dangerous new form of protections for that ‘property.’”199 Thus, they conclude that the right of publicity in its growing form clashes with the freedom of speech.200 The argument made is that it “puts the power of the state behind private individuals who want to control whether and how information about important people...can be used by other people.”201 Furthermore, critics also argue that this right overlaps with other already existing rights, thus, does not need to be a stand-alone right.202 However, the right of publicity should be considered a stand-alone intellectual property right that is not in conflict with any other right. The rationale behind the right of publicity is analogous to the rationale behind the protection of other intellectual property rights, such as trademarks and copyrights. Additionally, the right of publicity has been recognized by multiple courts in the United States as an independent right under intellectual property. This uniformity of decisions is only seen with similar intellectual property rights. The right of publicity grew out of the natural rights theory to protect an individual’s own image and identity that is generated as the fruit of their labor.203 Similarly, the remaining rights protect assets created upon the same natural rights principle. Trademark law protects words or symbols that identify goods or services in order to prevent consumer confusion and companies’ good will.204 Copyright protects original works of expression as

197. Sheldon W. Halpern, The Right of Publicity: Maturation of an Independent Right Protecting the Associative Value of Personality, 46 HASTINGS L.J. 853, 864-69 (1995). 198. Corynne McSherry, Publicity Rights Aren’t Property Rights: Appellate Court Gets It Very Wrong in Hart v. Ea, ELECTRONIC FRONTIER FOUNDATION (May 22, 2013), https://www.eff.org/deeplinks/2013/05/publicity-rights-arent-property-rights-court-wrong -hart-v-ea. 199. Id. 200. Alicia M. Hunt, Everyone Wants to Be A Star: Extensive Publicity Rights for Noncelebrities Unduly Restrict Commercial Speech, 95 NW. U.L. REV. 1605, 1616 (2001). 201. Diane L. Zimmerman, Who Put the Right in the Right of Publicity? 9 DEPAUL-LCA J. ART & ENT. L. & POL'Y 35, 53 (1998). 202. Andrew Beckerman-Rodau, The Right of Publicity. A Doctrine Gone Wild? (Mar. 11, 2010), http://www.ipwatchdog.com/2010/03/11/the-right-of-publicity-a-doctrine-gone- wild/id=9647/. 203. David S. Welkowitz & Tyler T. Ochoa, Teaching Rights of Publicity: Blending Copyright and Trademark, Common Law and Statutes, and Domestic and Foreign Law, 52 ST. LOUIS U. L.J. 905, 909 (2008). 204. William Fisher, Theories of Intellectual Property, CAMBRIDGE UNIVERSITY PRESS, http://www.law.harvard.edu/faculty/tfisher/iptheory.html#_ftn2 (last visited Mar. 29, 2015). 2016] CELEBRITY BEHIND THE BRAND 141

well as neighboring rights, such as performer’s rights.205 Patent protects inventions and discoveries.206 Lastly, trade-secret law protects commercially valuable information.207 All the current rights identified as intellectual property are based on the same theory “that creators' or inventors' entitlement to their work is akin to an inherent natural right which the state is under an obligation to protect and enforce.”208 Although there is no universal definition of intellectual property, a possible definition “might begin by identifying it as nonphysical property which stems from, is identified as, and whose value is based upon some idea or ideas,” and which requires some level of novelty.209 The right of publicity is the creation of the author, it is his image and identify generated based on his own popularity and fame. Similar to the rights of performers granted under the TRIPs agreement, it is the same principle that should protect the rights of those who have generated an image of significant economic importance.

B. Overlapping Rights

The similarity of the right of publicity to other rights may give rise to criticism that it should be protected under an already existing right such as trademarks.210 For example, in Germany there is a continuing debate in deciding whether celebrity trademarks should comply with trademark rules or right publicity rules.211 Nonetheless, the overlap with other intellectual property rights is an indication that the right of publicity belongs as a stand- alone right within the same family of rights. Courts in the United States view the right of publicity as having similarities and differences to other types of intellectual property rights.212 However, the historical origin of each right demonstrates distinct policies and rationales for the interests that each is intended to protect.213 Given the many similarities, overlap is inevitable.214

205. William Fisher, Theories of Intellectual Property, CAMBRIDGE UNIVERSITY PRESS, http://www.law.harvard.edu/faculty/tfisher/iptheory.html#_ftn2 (last visited Mar. 29, 2015). 206. Id. 207. Id. 208. Chidi Oguamanam, Beyond Theories: Intellectual Property Dynamics in the Global Knowledge Economy, 9 WAKE FOREST INTELL. PROP. L.J. 104, 108 (2009). 209. Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287, 294 (1988). 210. Sarah M. Konsky, Publicity Dilution: A Proposal for Protecting Publicity Rights, 21 SANTA CLARA COMPUTER & HIGH TECH. L.J. 347, 362 (2005). 211. When Trademarks Overlap with Other IP Rights, TheIPKat (Dec. 9, 2014), http://ipkitten.blogspot.com/2014/12/when-trademarks-overlap-with-other-ip_35.html. 212. RIGHTS OF PUBLICITY AND PRIVACY § 10:7 (2d ed). 213. Reichman, supra note 1. 214. Id. 142 PACE INTELL. PROP. SPORTS & ENT. L.F [Vol. 6:1:1

Copyright and trademark have constant overlaps. For example: “a picture of a person or character is copyrightable as a pictorial work and may also be used as a mark to identify the source of goods or services.”215

C. Neighboring Rights and TRIPs

Adding the proposed provision under TRIPs is the best route. TRIPs, as administered by the WTO, has an effective dispute resolution system that is already procedurally sound and enforceable against those signatory of its treaties.216 Thus, this provision is better placed after the rights granted to performers under Article 14 of Section 1, Copyright and Neighboring Rights. It is logical to introduce the right of publicity, which protects only those who have gained commercial interest in their image, after performer’s rights, because both provisions protect a narrow set of individuals. The rights granted to performers can be analogized to the rights granted to celebrities under the right of publicity. Celebrities and performers sometimes are one in the same. The protection for celebrities should not be overlooked.

CONCLUSION

Right of publicity laws around the world are evolving at a rapid pace. The many differences resulting from a broad set of jurisprudence in the matter is generating inconsistent treatment and application of this right to many individuals.217 An international right of publicity based on TRIPs will provide a solution to the current lack of harmonization and lack of national treatment in those countries that fail to provide adequate protection. The current laws in different countries differ in great nature procedurally and in substance. Therefore, the best solution is to harmonize the right of publicity as proposed in this paper. Adopting this proposal would not only provide a solution to the current issues generated by the lack of harmonization and national treatment, but it would also serve the theories behind protecting intellectual property rights in their entirety.

215. MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 6:14 (4th ed.). 216. INTA, supra note 53. 217. Lindenbaum, supra at 1-2. University of Chicago Law School Chicago Unbound

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2014 Sport as Speech Genevieve Lakier

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SPORT AS SPEECH

Genevieve Lakier*

“Whoever wants to know the heart and mind of America had better learn baseball . . . .”

Jacques Barzun1

INTRODUCTION Americans love sports. We love to play sports, we love to talk about sports, but mostly we love to watch them. While only roughly sixteen percent of people in the United States age fifteen and older play sports and exercise on a regular basis,2 a recent poll found that over half of all Americans regularly watch football on television.3 In 2005, over seventy-four million people attended a Major League Baseball game.4 In 2011, over 111 million people watched the television broadcast of the Super Bowl—making it the most watched network event in twenty years.5 Super Bowl viewership in 2012 was higher still.6 The tremendous popularity that spectator sports enjoy in the United States is a consequence of the pleasure and meaning that viewers find in the activity. Watching games offers audiences an excitement that may be otherwise missing from daily life in a com-

* Bigelow Fellow and Lecturer in Law at the University of Chicago Law School. Thanks to Barry Friedman, Robert Post, Geoffrey Stone, Mark Tushnet, Omar Kutty, Daniel Abebe, Amy J. Cohen, Tabatha Abu El-Haj, and Brian Levy for reading and commenting on drafts of this paper. 1 GOD’S COUNTRY AND MINE: A DECLRATION OF LOVE SPICED WITH A FEW HARSH WORDS 159 (1954). 2 Bureau of Labor Statistics, Sports and Exercise, in BLS SPOTLIGHT ON STATISTICS 1 (2008), http://www.bls.gov/spotlight/2008/sports/pdf/sports_bls_spotlight.pdf. 3 Harris Interactive, Inc., America’s Sport—A Majority of Americans Watch NFL Football, THE HARRIS POLL 1, 2 (Oct. 14, 2011), http://www.harrisinteractive.com/vault/ HI-Harris- Poll- Adweek-Football-2011-10-14.pdf. 4 Brad R. Humphreys & Jane E. Ruseski, The Size and Scope of the Sports Industry in the United States 11 (Int’l Assoc. of Sports Economists, Working Paper No. 08-11, 2008). 5 Ben Klayman, Super Bowl Packs in Record U.S. TV Viewer Total, REUTERS (Feb. 7, 2011), http://www.reuters.com/article/2011/02/07/us-superbowl-ratings- idUSTRE7163GS20110207. 6 Mason Levinson, Super Bowl Sets TV Record: 111.3M Viewers, BLOOMBERG NEWS (Feb. 6, 2012),http: //www.bloomberg.com/news/2012-02-06/ giants-21-17-super-bowl-victory- over-new-england-misses-tv-ratings-record.html.

1109 1110 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 plex, industrialized society.7 They also provide important symbols of national identity. As President Bill Clinton noted in 1988, “America, rightly or wrongly, is a sports crazy country . . . and we often see games as a metaphor or a symbol of what we are as a people.”8 For individuals, supporting the home team can provide a powerful means of expressing and forging membership in the community.9 For many, it may also be a deeply emotional experience. Nevertheless, despite extensive evidence of the personal, cultural, even political significance that the act of watching sports can possess, courts have largely rejected the possibility that spectator sports are expressive acts and therefore entitled to First Amendment protection. Few commentators have disagreed.10 This is despite the fact that, over the past several decades, courts have recognized an increasing array of expressive conduct to fall within the protection of the First

7 NORBERT ELIAS & ERIC DUNNING, QUEST FOR EXCITEMENT: SPORT AND LEISURE IN THE CIVILIZING PROCESS (1988) (asserting that sports provide a “mimetic excitement” otherwise missing from life in industrialized society). 8 Kathryn Jay, MORE THAN JUST A GAME: SPORTS IN AMERICAN LIFE SINCE 1945, at 2 (2004). (internal quotation marks omitted). 9 See infra notes 98–101 and accompanying text. 10 In a 2004 article, Howard Wasserman argued that “sport carries political and social messages” and “is a proper vehicle through which a message or meaning may be presented and expressed.” Howard M. Wasserman, Symbolic Counter-Speech, 12 WM. & MARY BILL RTS. J. 367, 374–76 (2004). Wasserman is alone among legal academics in suggesting that all spectator sports deserve categorical First Amendment protection. Other scholars have reached a similar conclusion with respect to particular spectator sports. Charles I. Schachter, Selfridge v. Carey: The First Amendment’s Applicability to Sporting Events, 46 ALB. L. REV. 937, 977–78 (1982) (arguing that a particular rugby match satisfied the test for expressive conduct and deserved constitutional protection); Joshua A. Stein, Hitting Below the Belt: Florida’s Taxation of Pay-Per-View Boxing Programming is a Content-Based Violation of the First Amendment, 14 J.L. & POL’Y 999, 1002 (2006) (“Boxing deserves the First Amend- ment protections that have been granted to other physical, yet expressive, conduct.”). Others have reached the opposite conclusion. Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds, 90 VA. L. REV. 2043, 2057 (2004) (asserting that the “free speech claims” of spectator sports like boxing and hockey “are tenuous”); Mi- chael T. Morley, “Exceedingly Vexed and Difficult”: Games and the First Amendment, 112 YALE L.J. 361, 368 (2002) (“It seems that athletes in only a few sports, such as diving, gymnastics, and figure skating, are sufficiently close to being theatrical performers or dancers to merit constitutional protection.”). For the most part, however, legal academics have simply ignored the question of the First Amendment status of sports themselves. The bulk of the legal scholarship exploring First Amendment issues as they relate to sports has instead tended to focus on the constitutional status of activities associated with the playing, watching, and business of sports rather than the games themselves. See, e.g., Louis M. Benedict & John D. McMillen, Free Expression Versus Prohibited Speech: The First Amendment and College Student Sports Fans, 15 J. LEGAL ASPECTS SPORT 5 (2005) (examining the First Amendment rights of student sports fans); Christopher J. Kaufman, Unsportsmanlike Con- duct: 15-Yard Penalty and Loss of Free Speech in Public University Sports Stadiums, 57 U. KAN. L. REV. 1235 (2009) (examining the First Amendment rights of expression of spectators at university sporting events).

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Amendment. Today, nude dancing, begging, and making a movie or violent video game are all activities that trigger First Amendment scrutiny.11 Yet, playing football or baseball, or performing an artistic, non-team sport like gymnastics or figure skating, is not. This means that watching sports, at least in person, is also not granted First Amendment protection, because audience rights typically derive from and depend upon the rights of performers.12 This Article argues that the denial of free speech protection to spectator sports—that is, to sport performed in front of and with the intention of being seen by an audience—is wrong, both doctrinally and when considered in light of the aims and purposes of the First Amendment. Doctrinally, it is wrong because games of spectator sports express, and effectively communicate, the “particularized messages” that the Supreme Court has held to be the prerequisite for constitutional protection.13 Philosophically, it is wrong because spectator sports contribute to the democratic public sphere in much the same way as do the other genres of mass entertainment that the First Amendment protects. Like movies and other kinds of artistic entertainment, spectator sports not only entertain, they also help shape public attitudes and beliefs by providing audiences dramatic images of triumph and defeat, of virtue and excellence. In this respect, sports demonstrate the tremendous influence that even lowbrow and highly commercialized genres of mass entertainment can have on democratic public attitudes and commitments. The same justifications that led the Court to recognize movies and other forms of artistic entertainment as protected by the First Amendment thus apply also to spectator sports, despite the formal differences that distinguish artistic and athletic performances. For this reason, the

11 Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011) (“[V]ideo games qualify for First Amendment protection.”); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991) (“[N]ude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.”); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952) (“[E]xpression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.”); Loper v. N.Y.C. Police Dep’t, 999 F.2d 699, 704 (2d Cir. 1993) (holding that begging is expressive conduct because, although beggars do not transmit or express social or political messages, their presence, appearance, and conduct express their need for help). 12 See, e.g., Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982) (“[T]he right to receive ideas follows ineluctably from the sender’s First Amendment right to send them[.]”). 13 See generally Texas v. Johnson, 491 U.S. 397, 404 (1989) (“In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.’” (quoting Spence v. Washington, 418 U.S. 405, 410–11 (1974)).

1112 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 government should not be able to ban the performance of spectator sports, or the training such performance requires, because it dislikes the messages that the sport conveys. While the popularity of sports like football and baseball works, as a kind of prophylactic against censorhip, the same is not true of all sports. Less widely popular sports, such as boxing and mixed martial arts, remain vulnerable to efforts to prohibit their performance because of distaste for the violent and hyper-masculine messages they send. This offends, or should be recognized to offend, the First Amendment as much as similar efforts to censor artistic or political performance do. What follows thus makes the case for recognizing spectator sports as expressive conduct, worthy of First Amendment protection. Part I examines the exceptional status of spectator sports in First Amendment doctrine and the justifications that courts provide to explain them. It argues that none of the justifications provide a satisfactory reason for denying spectator sports the First Amendment protection afforded all other genres of what we might call “audience- oriented entertainment.” Part II examines what the social scientific literature on sports reveals about the expressiveness of athletic performance. The case law dealing with the First Amendment status of sport has tended to ignore the extensive body of social scientific research examining the practice, and the cultural significance, of spectator sports in contemporary society. This is problematic because it leaves courts at the mercy of their pretheoretical assumptions about the value and significance of spectator sports—assumptions that the scholarly literature suggests are simply wrong. Indeed, when we turn to the social scientific literature, what we find is tremendous evidence that, rather than the relatively meaningless acts of entertainment that the case law makes them out to be, games of spectator sports are in fact dense symbolic performances—performances that communicate messages about, among other things, individual excellence and virtue, political identity, race, gender, sexuality, and even beauty. It is because of the ability of spectator sports to communicate these kinds of messages to their audiences that they possesses the cultural and political significance that they do, not only in the United States, but around the world. Part III argues that the rich evidence of sports’ expressiveness means that neither doctrine nor philosophy justifies denying First Amendment protection to spectator sports while extending it to other genres of mass entertainment such as movies, plays, and dance performances. It argues that, in fact, there are no justifications for denying First Amendment protection to spectator sports. Instead,

Apr. 2014] SPORT AS SPEECH 1113 the denial of First Amendment protection to spectator sports only needlessly complicates the doctrine, by establishing an ultimately unjustifiable distinction between artistic and athletic expression and between live and televised athletic performance.

I. THE PROBLEM WITH SPORTS In his now-famous paean to the glories of baseball in Flood v. Kuhn, Justice Blackmun quoted a poem that had been published in the New York Herald Tribune in 1926. The poem commented pungently on the relative importance of sports and literature in American popular culture at the time. It noted that Ten million never heard of Keats, or Shelley, Burns or Poe; But they know “the air was shattered by the force of Casey’s blow”; They never heard of Shakespeare, nor of Dickens, like as not, But they know the somber drama from old Mudville’s haunted lot.14 Eighty-five years later, the subtext of that poem—that sports play a far more vital role in American popular culture than does poetry or art—remains as true as when it was written. It is sports, not art (or, as the poem suggests, when it is art, it is art about sports), that for many Americans provide the tragic and/or comedic narrative of their collective existence. Americans spend hours every week watching sports on television; and for many, the sports pages are the first, perhaps only, section of the newspaper they read. Sports metaphors pervade the American dialect; sports imagery pervades the American marketplace; and sports news and narratives pervade the American media.15 Sports thus provide many in the United States, as the sports historian Kathryn Jay notes, with a “central lens through which we view the world[.]”16 Despite the importance of sports as a cultural institution—and despite Justice Blackmun’s explicit acknowledgement of this importance (at least with respect to baseball)—few courts have even hinted at the possibility that the act of participating in athletic competition might be a protected First Amendment activity. Most instead conclude that sports games, even when performed in front of and with the intention of being seen by an audience, are not capable

14 Flood v. Kuhn, 407 U.S. 258, 263 n.4 (1972) (quoting Grantland Rice, He Never Heard of Casey, N.Y. HERALD TRIB., June 1, 1926, at 23). 15 DANIEL L. WANN, ET AL. SPORTS FANS: THE PSYCHOLOGY AND SOCIAL IMPACT OF SPECTATORS 2, 13–17 (2001) (discussing the pervasiveness of sports as demonstrated through various media sources, including cinema, television, radio, print, and Internet). 16 JAY, supra note 8.

1114 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 of conveying the kinds of “particularized message[s]” that the Supreme Court, in Spence v. Washington, held that nonlinguistic conduct must communicate in order to receive First Amendment protection.17 Courts find this to be true notwithstanding the Supreme Court’s subsequent clarification in Hurley v. Irish-American, Gay, Lesbi- an and Bisexual Group that messages need not be “succinctly articulable” in order to merit First Amendment protection and, therefore, even such amorphous messages as those conveyed by the abstract “painting[s] of Jackson Pollock, . . . or Jabberwocky verse of Lewis Carroll” are “unquestionably shielded.”18 Even under this more relaxed articulation of the particularized message requirement, courts tend to reject First Amendment claims arising out of athletic performance either because they find that games do not reflect the requisite “intent to express a particularized message” that the first part of the Spence test for expressive conduct requires,19 or because they find that even when athletes do possess the requisite intent, the medium of the sports game is unable to communicate this message in a form in which the audience is likely to understand it.20 What this means is that art and sport enjoy a very different status under the contemporary First Amendment. Whereas art, including the nonpolitical abstract art and music referred to in Hurley, is generally considered high-value speech and therefore receives the same degree of protection as the expressly political speech that has historically been the primary concern of free speech jurisprudence, sports— even spectator sports—usually receives no First Amendment protection whatsoever. Although several courts have suggested that, under the right circumstances, the “exposition of an athletic exercise” might

17 418 U.S. 405, 411 (1974). 18 515 U.S. 557, 569 (1995). 19 See, e.g., Justice v. NCAA, 577 F. Supp. 356, 374 (D. Ariz. 1983) (dismissing the First Amendment claim of college football players on the ground that college football, “like other sports, is primarily a conduct-oriented” rather than a “communicative” activity); Murdock v. City of Jacksonville, 361 F. Supp. 1083, 1096 (M.D. Fla. 1973) (dismissing the First Amendment claim of a wrestling promoter on the grounds that “[t]he promotion of wrestling matches . . . is not a symbolic act, nor is the wrestling match itself a symbolic act” but instead constitutes a “purely entertainment pastime”). 20 Interactive Digital Software Ass’n v. St. Louis Cnty., Mo., 200 F. Supp. 2d 1126, 1134 (E.D. Mo. 2002) (denying First Amendment protection to video games because, like baseball games, they fail to express any “ideas, impressions, feelings, or information unrelated to the game itself”); Fighting Finest v. Bratton, 898 F. Supp. 192, 195–96 (S.D.N.Y. 1995) (dismissing the First Amendment claim of amateur police boxers because “[w]hile we recognize that dance, when combined with nudity, can inexorably convey a message of eroticism . . . . we are not convinced that a boxing match, in which police officers participate, inexorably conveys any message other than that police officers can be pugilists”).

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21 be entitled to some degree of First Amendment protection, in only two cases have courts actually struck down regulations of athletic competition on First Amendment grounds, and in neither case did the court squarely hold that sport was protected expression.22 From a purely institutional perspective, this distinction between spectator sports and art is puzzling. Like plays, concerts, ballets, and movies, spectator sports provide what we can call “audience-oriented entertainment.” A football game, like a rock concert or art show, is an event that is performed in order to entertain and amuse an audience and that, in the absence of an audience, would not exist—or at least, would only exist in radically altered form. (Think of the Super Bowl, for example, with nobody watching.) Economically, as well, the spectator sports industry depends upon the willingness of spectators to watch its performances, just as the motion picture industry depends upon the willingness of the public to buy tickets to shows.

21 Post Newsweek Stations-Conn., Inc. v. Travelers Ins. Co., 510 F. Supp. 81, 86 (D. Conn. 1981) (asserting that the broadcast of a skating competition is protected speech, albeit “on the periphery of” First Amendment protection). See also Maloney v. Cuomo, 470 F. Supp. 2d 205, 213 (E.D.N.Y. 2007) (denying First Amendment protection to the private, at home, practice of martial arts but recognizing that because the martial arts are historically and culturally significant to many, there could be circumstances in which an individual’s practice of martial arts would merit First Amendment protection); Sunset Amusement Co. v. Bd. of Police Comm’rs of L.A., 496 P.2d 840, 845–46 (Cal. 1972) (“[N]o case has ever held or suggested that simple physical activity falls within the ambit of the First Amendment, at least in the absence of some element of communicating or advancing ideas or beliefs.” (emphasis added)). 22 In the first case, the court granted the plaintiffs a preliminary injunction enjoining the enforcement of a village ordinance that made it unlawful “to play any games upon any street, alley, or sidewalk, or other public places except when a block party permit has been issued by the President and the Board of Trustees” because, inter alia, it found the statute overbroad in prohibiting even games performed with an expressly political intent. Weigand v. Vill. of Tinley Park, 114 F. Supp. 2d 734, 736–37 (N.D. Ill. 2000). In the second case, a Maine district court held that a city parade regulation that exempted all “athletic events conducted by the Board of Education, Little League or other organizations” from the arduous registration requirements otherwise imposed on large-scale gath- erings violated the First Amendment not by discriminating against certain kinds of speakers on the basis of the content of their speech, but by placing burdensome restrictions on particular indigent groups while allowing other favored groups more freedom. Sullivan v. City of Augusta, 406 F. Supp. 2d 92, 107–08, 114, 126 (D. Me. 2005), aff'd in part, vacated in part, rev'd in part, 511 F.3d 16 (1st Cir. 2007). The court acknowledged that other courts “have hesitated to declare that restraints on athletic activity violate the First Amendment” but concluded that, even if “pure athletic activities and games may not be protected by the First Amendment, free speech activities are quite foreseeable at the broader category of an athletic event.” Id. at 107–08 n.13 (internal citations and quotation marks omitted). The court struck down the regulation, in other words, because of its discriminatory effect on the expressive rights of those who attended athletic and non- athletic events, rather than because it found the athletic events themselves to be expressive acts.

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The explicit orientation of spectator sports toward an audience establishes a strong presumption that something expressive is taking place. After all, why else would individuals address an audience if they did not wish to thereby communicate a message of some sort? And why would the audience pay good money to watch them if they received no messages from the act? In other contexts, courts have suggested that the presence of an audience orientation in fact establishes not only a presumption that something expressive is taking place but also may be dispositive of the expressiveness question altogether. In Barnes v. Glen Theatre,23 for example, the Supreme Court extended protection to nude dancing despite having denied protection only two years earlier, in City of Dallas v. Stanglin,24 to recreational ballroom dancers. In his concurrence in Barnes, Justice Souter reconciled the two decisions by pointing to the presence, in the first case, and the absence, in the second case, of an audience-orientation. Souter argued, Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment’s protection . . . and dancing as aerobic exercise would likewise be outside the First Amendment’s concern. But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience.25 Two decades earlier, the California Supreme Court similarly suggested that the presence or absence of an audience-performer relationship could be decisive in distinguishing protected from unprotected conduct when it rejected a First Amendment challenge brought by owners of a Los Angeles roller skating rink to a city agency’s decision denying them a permit to continue operating the rink the following year.26 The plaintiffs claimed that the decision violated the free speech and assembly rights of their patrons.27 The court disagreed because it found no evidence that those who skated at the rink intended their skating to be seen by others: [N]o case has ever held or suggested that simple physical activity falls within the ambit of the First Amendment, at least in the absence of some element of communicating or advancing ideas or beliefs . . . . The key element is, of course, communication. We have difficulty finding that essen-

23 Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991). 24 City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). 25 Barnes, 501 U.S. at 581 (Souter, J., concurring)(emphasis added). 26 Sunset Amusement, 496 P.2d at 843–44. 27 Id. at 845.

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tial element to exist in the context of a roller skating rink. True, it is inevitable that some patrons of the rink watch the other skaters and are, perhaps, entertained or amused by their activities. And yet it seems ines- capable that petitioners’ patrons primarily use the facilities for physical exercise and personal pleasure; [the] element of communication between an artist or performer and his audience seems entirely lacking.28 Although not stated as explicitly elsewhere, the idea that it is the presence of an audience-performer relationship that distinguishes expressive conduct from that which is not expressive informs, and helps make sense of, much of the First Amendment case law dealing with art and entertainment. This idea explains, for example, why— when confronted with an activity involving an audience-performer relationship—courts tend to extend First Amendment protection without requiring first any proof that the conduct actually satisfies both elements of the Spence test for expressive conduct.29 This is notwithstanding the general recognition that, in theory, the Spence principles apply to art and entertainment, as to other forms of non-linguistic expression.30 The audience-orientation appears to obviate any need to demonstrate that the actor, dancer, or musician actually intended to convey a particularized message to the audience, or that this message was, in the circumstances in which it was expressed, likely to be understood. Courts’ willingness to extend First Amendment protection to all activities that involve a recognizable performer-audience relationship means that today, the category of spectator sports is the only genre of audience-oriented entertainment that is not categorically protected by the First Amendment. There are a number of other popular genres of entertainment that are also denied First Amendment protec-

28 Id. at 845–46. 29 See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) (extending categorical First Amendment protection to musical performance without invoking the Spence test); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557–58 (1975) (recognizing live theatre as protected speech without requiring any evidence that actors intended to convey particularized messages or that these messages were likely to be understood, as required by the Spence test); Boring v. Buncombe Cnty. Bd. of Educ., 98 F.3d 1474, 1477 (4th Cir. 1996) (“Films, plays, and even ‘crude street skits’ constitute inherently expressive communicative vehicles and, as such, warrant First Amendment protection even if the speaker cannot establish an intent to convey a particularized message.”). See also Amy Adler, Girls! Girls! Girls!: The Supreme Court Confronts the G-String, 80 N.Y.U. L. REV. 1108, 1114 n.19 (2005) (noting that, when deciding whether nude dancing is entitled to First Amendment protection, the Supreme Court “[o]ddly” did not invoke the Spence test in either Barnes or a subsequent case, City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)). 30 Hurley v. Irish-Am., Gay, Lesbian and Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995) (in- terpreting the “particularized message” requirement in Spence as not requiring linquistic expression in light of the extension of First Amendment protection to art).

1118 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 tion. Gambling, for example, is generally not considered expressive activity.31 Nor is recreational dancing, as Stanglin made clear.32 How- ever, these activities typically do not involve the kind of audience- performer relationship that characterizes movies and musical performances, and all of the other kinds of art and entertainment that the First Amendment protects. Spectator sports do involve an audience-performer relationship, but nevertheless are generally denied any recognition as expressive activity. This makes its status under the First Amendment an exceptional one. As such, it raises as an obvious question, namely, what it is about spectator sports that make them— or that makes courts perceive them to be—inexpressive in a way that all other genres of audience-oriented entertainment are not. The sports case law provides little assistance in answering this question. Courts provide generally three explanations for the denial of First Amendment protection to spectator sports, but none provide an ultimately convincing explanation of the distinction between sports and art. Some courts argue that games of spectator sports are not expressive acts because those who take part in them do not do so in order to communicate any ideas or information to their audiences. A Florida district court made this argument to justify its dismissal of a wrestling promoter’s First Amendment challenge to a city lease agreement that granted his competitor exclusive access to the only facility in town capable of hosting public wrestling matches.33 The promoter argued that the lease agreement violated his First Amendment rights by preventing him from expressing himself through the promotion of the wrestling matches.34 The court disagreed because it found no evidence that the promoter intended to use the matches as a vehicle for advancing his own political or social views, or for allowing the wrestlers to advance their own.35 The court pointed to a colloquy between the plaintiff and defense counsel in which the plaintiff admitted that

31 See, e.g., Allendale Leasing, Inc. v. Stone, 614 F. Supp. 1440, 1454–55 (D.R.I. 1985) aff'd, 788 F.2d 830 (1st Cir. 1986) (rejecting the plaintiffs’ argument that playing and conduct- ing Bingo games is a form of expression and association that is protected by the First Amendment); United States v. Borgese, 235 F. Supp. 286, 296 (S.D.N.Y. 1964) (“The First Amendment is not applicable where criminal conduct is involved.”). 32 See Stanglin, 490 U.S. at 24-25 (“The Dallas ordinance restricts attendance at Class E dance halls. . . . These opportunities . . . simply do not involve the sort of expressive association that the First Amendment has been held to protect.”) 33 Murdock v. City of Jacksonville, 361 F. Supp. 1083, 1094–95 (M.D. Fla. 1973) (emphasizing that wrestlers do not participate in wrestling matches for the purpose of publibly expressing political statements or philosophies or addressing the public through speeches). 34 Id. at 1096. 35 Id.

Apr. 2014] SPORT AS SPEECH 1119 he did not intend to make his wrestlers “stop wrestling and make speeches to the crowd” and concluded that There can be no serious contention, and none has been advanced by plaintiff, that . . . wrestling is an activity “akin to free speech” as that phrase was used in Tinker v. Des Moines Community School District . . . . [to refer to] the symbolic act of wearing politically significant armbands to protest the Vietnam war . . . . This case does not involve a speech by a public figure or anything of that nature, but only concerns the right to promote wrestling, a purely entertainment pastime. There is no evidence which could conceivably support the idea that the promotion of professional wrestling involves speech or symbolic acts equivalent to speech . . . .36 The court concluded, in other words, that wrestling constituted a “purely entertainment pastime,” rather than “speech or symbolic acts,” because it was not intended to convey political messages like those the schoolchildren in Tinker intended to convey by wearing black armbands to school. In 1982, a New York district court similarly concluded that baseball games do not deserve First Amendment protection because they provide “pure entertainment with no informa- tional element.”37 Other courts argue that there is something inherent in the nature of athletic performance that distinguishes sport from art. A New York district court, for example, accepted, for purposes of argument, that members of an amateur police boxing team took part in public boxing matches because they wanted to convey the “particularized message” that they were “individuals of character pursuing excellence and adhering to ethical standards of fair play and sportsmanship . . . .”38 It nevertheless concluded that whatever messages the boxers intended to convey via their performance in the ring would not be likely be understood by their audiences. “While we recognize that dance, when combined with nudity, can inexorably convey a message of eroticism,” the court wrote, “we are not convinced that a boxing match, in which police officers participate, inexorably conveys any message other than that police officers can be pugilists.”39 An Ar- izona district court made a similar distinction between sport and art when it called college football a “conduct-oriented activity” and on this basis distinguished it from the more “communicative” genres of artistic performance, such as jazz music and nude dance, which were

36 Id. at 1095–96. 37 America’s Best Family Showplace Corp. v. City of New York, Dep’t of Bldgs., 536 F. Supp. 170, 174 (E.D.N.Y 1982). 38 Fighting Finest, Inc. v. Bratton, 898 F. Supp. 192, 195 (S.D.N.Y. 1995). 39 Id. (internal citation omitted).

1120 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 entitled to First Amendment protection.40 The court did not explain what it is about college football that makes it, unlike jazz music or nude dancing, insufficiently communicative to justify First Amend- ment protection. One could speculate, however, that it has something to do with the violence and physicality of the sport when compared to the more obviously aesthetic orientation of music and dance.41 Alternatively, it may have something to do with the fact that football is a competitive activity, whereas jazz music and dance are not. This distinction is what underpins the third, and perhaps most persuasive, justification courts provide for denying First Amendment protection to sport: namely, that because sport typically involves competition, it is incapable of expressing the kinds of messages that the First Amendment protects. A Missouri district court made this argument, for example, in Interactive Digital Software Association v. St. Louis County, to explain why neither baseball nor baseball video games are entitled to First Amendment protection. The court wrote [T]he game of baseball is not a form of expression entitled to free speech protection. It is often times surrounded by speech and expressive ideas—music between innings, fans carrying signs with expressive messages—however, these expressive elements do not transform the game of baseball into “speech.” Rather it remains, just what it is—a game. Nor does the Court think there is some magical transformation when this game of baseball appears in video form. The objectives are still the same—to score runs—and the only difference is a player pushes a button or swings a “computer bat,” rather than swinging a wooden bat . . . . [T]he Court fails to see how video games express ideas, impressions, feelings, or information unrelated to the game itself. 42 The court suggests here that it is because those who play baseball do so with the objective of winning the game—rather than for some other, presumably more expressive reason—they fail to communicate by their performance in the game any messages, or at least any messages that the First Amendment protects, even when the performance itself is surrounded by other kinds of expressive activity (fans waving signs, music before and in the middle of the game, etc.).

40 Justice v. NCAA, 577 F. Supp. 356, 374 (D. Ariz. 1983). 41 Indeed, at least one commentator has argued that while First Amendment protection should be denied to sports such as football and wrestling, it should be extended to other sports—ice skating, gymnastics, diving—which more closely resemble music and dance and in which athletes’ participation is guided by more self-evidently aesthetic concerns. Morley, supra note 10, at 368. 42 Interactive Digital Software Ass’n v. St. Louis Cnty., 200 F. Supp. 2d 1126, 1134 (E.D. Mo. 2002).

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In a 2002 article in the Yale Law Journal, Michael T. Morley similarly argued that the fact that they involve competition means that most sports do not deserve First Amendment protection, notwithstanding the “inconsisten[cy]” created by “deny[ing] constitutional protection to sporting events, while extending it to other forms of live entertainment performed before audiences.”43 The fact that sport involves competition, Morley argued, means that “unlike most theatrical performances, just about everything an athlete does can be ex- plained by something other than an attempt to convey an idea to the audience.”44 It also means that, when athletes participate in spectator sports, their performance is primarily guided by “functional, non- expressive concerns such as catching a pass or kicking a goal.”45 For this reason, he concluded that the only spectator sports that deserve First Amendment protection are those in which the competition itself depends upon the ability of the athletes to effectively express messages of grace and beauty through their performance. In these sports only, Morley suggests, the fact of competition will not blur or under- mine the expressive desires that athletes may bring to the sport.46 None of these arguments provide a persuasive explanation for why art is entitled to First Amendment protection but spectator sport is not. The first idea—that spectator sports are not expressive acts because they function to entertain rather than to educate or politicize—is deeply unsatisfying as a justification for denying free speech protection to spectator sports, given the extension of First Amend- ment protection to other genres of expression—movies, music, dance, even video games—that similarly function primarily to entertain. Indeed, the First Amendment protects more than merely the “exposition of ideas,” as the Supreme Court noted over fifty years ago, in Winters v. New York, when it struck down the conviction of a bookseller convicted of selling magazines “principally made up of . . . stories of deeds of bloodshed, lust or crime” and disavowed any attempt to distinguish between protected and unprotected expression on the basis of whether it educates or merely entertains.47 “The line between the informing and the entertaining is too elusive,” the Court stated, “for the protection of that basic right [of a free press].

43 Morley, supra note 10, at 367. 44 Id. 45 Id. at 368. 46 Id. (suggesting that athletes in sports such as ice skating, gymnastics, and diving are entitled to protection under the First Amendment because these sports are “permeate[d]” with creative, artistic expression rather than being “primarily controlled by functional, nonexpressive concerns”). 47 333 U.S. 507, 508, 510 (1948).

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Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.”48 Be- cause it recognized that even non-political and non-didactic expression can have a political effect on its audience’s beliefs and opinions, the Court refused to sustain the prosecution of even vulgar literature like the true crime magazines and, in subsequent decades, extended First Amendment protection to many other kinds of merely entertaining speech.49 It cannot, therefore, simply be the fact that athletes do not communicate in speeches, or seek by their performance to advance a particular set of social or political ideas that precludes First Amendment protection because the same would obviously be true of many varieties of non-political art and entertainment that the Court, in the decades since Winters, has recognized to be “unquestionably” protected by the First Amendment.50 The second idea—that there is something inherent in athletic activity that renders it inexpressive—is also unpersuasive as a justification for the denial of First Amendment protection to sport. Under Spence, it is not the form of the activity but instead the context in which it takes place and the intent with which it is performed that determines its status under the First Amendment. Hence, activities that share many of the same formal properties may possess a very different constitutional status. For example, recreational ballroom dancing and nude dancing share many of the same formal properties. Never- theless, only nude dancing is entitled to First Amendment protection because—as Justice Daniel Souter noted in his Barnes concurrence51— it is only nude dancing that is addressed to, and performed in front of, an audience. Without more elaboration of what it is about the context in which, or the intent with which, boxing matches—or football games—are performed, this justification for denying those who participate in these games First Amendment protection is deeply unsatisfying. Nor can the distinction between art and sport be justified on the basis of their purportedly aesthetic versus non-aesthetic orientations.

48 Id. at 510. 49 See supra note 29. 50 Hurley v. Irish-Am., Gay, Lesbian and Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995) (“[I]f confined to expressions conveying a ‘particularized message,’ . . . [constitutional protection] would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.” (internal citation omitted)); see Mark Tushnet, Art and the First Amendment, 35 COLUM. J.L. & ARTS 169, 170, 188 (2012) (noting that art receives First Amendment protection notwithstanding the absence, in many cases, of any intent by the artist to communicate ideas). 51 Barnes v. Glen Theatre, 501 U.S. 560, 581 (1991) (Souter, J., concurring).

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For one thing, it is not at all clear that athletes, even in non-aesthetic sports such as boxing and baseball, do not seek by their performance in the ring or on the field to communicate messages of grace and 52 beauty. Even assuming for purposes of argument that they do not, there is nothing in the case law that suggests that messages of beauty are the only kinds of messages to which constitutional protection extends. To the contrary, it is a fundamental principle of the First Amendment that, except with respect to a few limited categories of speech, the guarantee of freedom of expression applies equally to all speakers, irrespective of the content of their speech.53 The fact that athletes and others associated with spectator sports may not inten- tionally communicate by their performance on the field the kinds of aesthetic messages that dancers or musicians communicate does not justify denying them First Amendment protection if they communicate other kinds of messages (as I argue in the next Part that they do). The third idea, that spectator sports are not entitled to First Amendment protection because they involve competitive activity is also not ultimately persuasive as an explanation of the difference in the constitutional status afforded sport and art. Intuitively, the argument has a great deal of appeal. It identifies what appears to be a fundamentally distinguishing feature of sport and the artistic genres of entertainment that the First Amendment protects. Art does not, after all, tend to be organized as a competition, whereas sport is by definition competitive.54 This fact in turn has important implications

52 See infra notes 76–78 (demonstrating examples of purposes that some athletes may have and messages that they may seek to communicate through their athletic performances). 53 Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (“[A]s a general matter, ‘the First Amend- ment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983)); see also United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 818 (2000) (“[E]sthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”). 54 There is some debate about how to define sport and, specifically, whether the term refers to all “competitive, rule-governed activity that human beings freely choose to engage [in],” or only to competitive activities that require physical exertion on the part of the competitors. Compare CRAIG CLIFFORD & RANDOLPH FEEZELL, COACHING FOR CHARACTER: RECLAIMING THE PRINCIPLES OF SPORTSMANSHIP, 11 (1997) with JAY COAKLEY, SPORTS IN SOCIETY 21 (2006) (defining sports as “institutionalized competitive activities that involve rigorous physical exertion or the use of relatively complex physical skills by participants motivated by internal and external rewards.”). What neither side of the debate disputes, however, is that sport involves competition. Cf. Sport Definition MERRIAM-WEBSTER ONLINE DICTIONARY, http://www.merriam-webster.com/dictionary/sport (last visited Feb. 28, 2014) (defining sport as “a contest or game in which people do certain physical activities according to a specific set of rules and compete against each other”).

1124 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 for how the different kinds of performances operate. A football game will be structured very differently than a ballet performance, for example, and this is not simply because in one performance the performers dance and in another performance they hit one another and run and catch balls. Instead, it is because, in one performance, the dynamism of the performance derives from the competitive struggle of the players to win, and in the other it does not. We experience the two performances differently, as a result. We might call a really exciting football game a nail-biter, for example, but we would never describe an exciting ballet in this way. This is because we watch the football game in order to see who wins the competition, whereas this is not why we watch a ballet, nor a reason to give it praise. The fact that sport involves competition and art typically does not thus helps explain many of the formal differences between sport and art as genres of performance. It also may affect our judgment about the relative cultural value that the two genres of activity possess.55 What that fact does not do, however, is justify the legal conclusion that courts draw from it: namely, that sport, and other competitive activities, are not entitled to First Amendment protection even when performed before, and addressed to, an audience. This is because, under Spence, the form that an activity takes is irrelevant to the question of whether the First Amendment applies. Instead, the only question that matters constitutionally is whether games of spectator sports convey particularized messages that audiences can understand. This is an empirical question, but one courts have not turned to the empirical, or even the popular, writing on sports to address. This is problematic, because when we do turn to the relatively extensive body of social scientific literature on sports, what becomes clear is that the empirical assumptions that underpin the courts rely on are wrong. It is simply not the case that, because

55 The philosopher Graham Gordon argues, for example, that one of the implications of the formal differences between sport and art is that, while there may be “sporting equivalents” of great artistic performers, such as the opera singer Maria Callas and the actor, Lawrence Olivier—he suggests, as equivalents for these figures, the tennis player, Martina Navratilova, and the boxer, Muhammed Ali, respectively—there will be “no sporting equivalents of Shakespeare and Mozart.” GORDON GRAHAM, PHILOSOPHY OF THE ARTS: AN INTRODUCTION TO AESTHETICS 27–28 (2005). This leads him to conclude that, while sport may be a tremendously important and creative human endeavor, it is nevertheless of lesser cultural significance than the arts. Id. at 28. Other philosophers, however, disa- gree. For a strong articulation of an opposing point of view, see Peter J. Arnold, Sport, the Aesthetic and Art: Further Thoughts, 38 BRIT. J. EDUC. STUDIES 160 (1990) (arguing that some sports have aesthetic significance and merit and that all sports can usually be classified as either non-aesthetic or partially aesthetic while some sports may be correctly classified as art).

Apr. 2014] SPORT AS SPEECH 1125 athletes play games in order to win them, they neither intend nor are capable of communicating, by their performance in the game, any messages worth protecting. To the contrary, as the social scientific literature on sports demonstrates, it is in many respects because sport involves competition that games possess the important cultural, even sometimes political, significance that they do—as the next Part explores.

II: SPORT AS AN EXPRESSIVE ACTIVITY Under Spence, two things must be true for games of spectator sports to merit the protection of the First Amendment. First, individuals associated with the performance of the game—be they athletes, coaches, promoters, funders, or the like—must seek to convey, by their participation in the event, particularized, even if not succinctly articulable, messages.56 Second, the messages that athletes, coaches, promoters and the like seek to convey through their participation in the activity must be likely to be understood by the audience watching the game.57 The particularized messages that games express must, in other words, be not only intended, but intelligible. This is in some respects a high bar, and in some respects a low one. On the one hand, the fact that, under Spence, an expressive act must be both intentional and intelligible excludes from constitutional protection many things that we may find entertaining or meaningful to watch but that are not the product of an expressive intention. As Judge Posner noted in Miller v. Civil City of South Bend, a display of the northern lights might be both entertaining and personally meaningful to those who watch it, but under Spence it would not qualify as constitutionally protected because it would not reflect the right kind of expressive intent.58 Spence also fails to protect idiosyncratic expression that an audience is unlikely to understand, no matter how deeply an individual may intend to convey it.59

56 Spence v. Washington, 418 U.S. 405, 411 (1974). 57 Id. at 415. 58 Miller v. Civil City of S. Bend, 904 F.2d 1081, 1096 (7th Cir. 1990) (Posner, J., concurring) (“Anything that gives pleasure can be counted as entertainment, yet not everything that gives pleasure is expressive. I might find a display of northern lights entertaining; this would not make that display an expressive activity.”). 59 Hence the Second Circuit dismissed a First Amendment challenge to a county regulation that prohibited van drivers from wearing skirts while on duty because it found that, even if the plaintiff sought to communicate a “deeply held cultural value” by the wearing of a skirt, this message was unlikely to be understood by those who saw her wearing it. Zalewska v. Cnty. of Sullivan, N.Y., 316 F.3d 314, 318–20 (2d Cir. 2003). The Third Cir- cuit dismissed, for similar reasons, a corrections officer’s challenge to a regulation that

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On the other hand, Spence establishes no limits on the kinds of messages that expressive conduct may communicate. Nor does the test restrict in any way the form in which these messages may be conveyed. Instead, as Robert Post argues, because the Spence test focuses solely on the speaker’s intent, the message, and the likelihood that an audience will understand that message, and pays no attention to the social context in which the conduct takes place or the values that it fosters, the test in principle extends free speech protection to acts that, in practice, courts will be very unwilling to recognize as protected speech, given their preexisting commitments to the norms and purposes of the First Amendment.60 Post cites as an example of this phenomenon a racially motivated hate crime that successfully communicates a message of racial prejudice.61 One can see hints of a similar phenomenon in the sports case law, and specifically in courts’ unwillingness to even consider the possibility that the messages that surely all sports games send—namely, messages about the outcome and progress of the game—might be sufficient to entitle spectator sports to First Amendment protection. In theory, it is difficult to understand why these messages do not satisfy the two elements of the Spence test. The message, for example, that “Team A won,” seems very directly a reflection of the arduous efforts of Team A to communicate, by its performance in the game, this message. It also seems unlikely that a clear and explicit message of this sort would not be intelligible to the audience to the game. Yet, courts refuse to extend protection to spectator sports on the basis of messages of this kind. The Interactive Digital Software Ass’n court made this clear when it acknowledged that video games might communicate to their audiences messages “[]related to the game itself”—that is, messages that relate to the outcome and progress of the competi-

required him to wear a flag patch on his uniform. Since the court found it unlikely that the flag patch would “relay any message (ideological or otherwise) to anyone,” the court concluded that the regulation raised no issue of compelled speech. Troster v. Pa. State Dep’t. of Corr., 65 F.3d 1086, 1091 (3d Cir. 1995). 60 Robert Post, Recuperating First Amendment Doctrine, 47 STAN. L. REV. 1249, 1252 (1995) (pointing out that the Spence test’s flawed, limited focus on “a speaker’s intent, a specific message, and an audience’s potential reception of that message” theoretically brings instances of defacement of public property under the protection of the First Amendment even though no courts would permit such an outcome). 61 Id. (“Think of the racist who commits a violent crime successfully to communicate a message of racial prejudice and hate. In such a case we do not say that the state’s interest in prohibiting violence outweighs the defendant’s interest in communication, but rather that the First Amendment does not come into the case at all.” (internal citation omitted)).

Apr. 2014] SPORT AS SPEECH 1127 tion—but nevertheless denied that sport constitutes a “form of expression entitled to free speech protection.”62 This refusal to entertain the possibility that messages of this sort are sufficient to trigger First Amendment protection may reflect courts’ commitment to their conception of the normative values of the First Amendment. As Part III explores, the First Amendment has traditionally been interpreted to protect, above all, speech on matters of public concern—that is, speech that relates, in some fashion, to questions of social or political order or meaning. Messages that relate solely to the outcome or progress of a formal contest like a game may simply be too far removed from this core concern to justify constitutional protection. Even if we take into account this limitation, however, and consider as grounds for extending First Amendment protection to sport only messages that relate in some fashion to the larger concerns of the social and political world, what the social scientific sports literature makes abundantly clear is that even non- aesthetic sports satisfy both Spence’s intent and intelligibility requirements.

A. The Expressive Intent of Athletes and Others First, it is not true, as the Interactive Software Digital Ass’n court assumed, that because athletes are motivated to take part in games of spectator sports by the non-expressive desire to win they are not also motivated by other, more properly expressive desires. In fact, there is considerable evidence that athletes take part in public competition not only because they want to win but also because they want to show that they can win. Sports journalism is replete, for example, with instances of athletes vowing to put on a good show or to show what they can do.63 Indeed, like the professional entertainers to whom they are frequently compared, professional athletes can earn tremendous fame and money by putting on a good show. Michael Jordan’s exceptional performances on the basketball court, for example, “not only transformed the game of basketball” but also turned Jordan into a

62 Interactive Digital Software Ass’n v. St. Louis Cnty., Mo., 200 F. Supp. 2d 1126, 1134 (E.D. Mo. 2002). 63 See, e.g., Rick Maese, Donte Stallworth: ‘I just want to show what I can do’ with Redskins, WASHINGTON POST SPORTS INSIDER BLOG (July 27, 2011, 10:37 AM ET), http://www.washingtonpost.com/blogs/football-insider/post/donte-stallworth-i-just- want-to-show-what-i-can-do-with-redskins/2011/07/27/gIQA1CjrcI_blog.html; Ian Thom- sen, 1 Cleveland Cavaliers, SPORTS ILLUSTRATED, Oct. 26, 2009, at 80 (Anthony Parker stating that “[he] was given an opportunity to show what [he] can do” in the NBA).

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“global superstar, celebrity figure and commercial brand.”64 Other sports stars earn tens of millions of dollars each year in salary and endorsement deals; like actors and other kinds of entertainers, their skill as performers can make them not only extremely rich but famous on an almost global scale.65 In this respect, athletes are like other kinds of performing artists, whose career success depends upon the excitement and interest they generate by their performance. Athletes take part in spectator sports not only for fame, but also for glory. The link between athletic performance and glory is an old and well-established one. In ancient Greece, for example, participation in public athletics was considered a “deadly serious [means] to attract glory to one’s name and honour to oneself and family”66 and to “establish social status and individual preeminence . . . .]”67 Ath- letes did so by showing “especial skill and excellence” on the playing field, thereby demonstrating the manly virtues associated with both sport and war.68 Notwithstanding the significant differences between contemporary and ancient athletics and contemporary United States and ancient Greece, the sports literature suggests that athletes continue to take part in public athletic competition for glory. In other words, they want to demonstrate to an audience their “especial skill and excellence” on the playing field—and the moral (and often still, “manly”) virtues it takes to acquire and to perform those skills—and in so doing earn the praise, honor, and validation of those who watch them play. Sport provides an excellent venue for the demonstration of these virtues because of its formalism. The simplicity and transparency of the rules that govern athletic competition, and the fact that when individuals compete on the playing field, they do so from a position of equality, lends games an appearance of fairness that may be missing from ordinary social life, where individuals compete armed with highly unequal materials and social resources and according to a complex, and in many cases, highly ambiguous, set of rules. It also creates the impression that athletic victory is a consequence of the skill of the players—and the skill of the players alone. It is because, as Mi-

64 BARRY SMART, THE SPORT STAR: MODERN SPORT AND THE CULTURAL ECONOMY OF SPORTING CELEBRITY 10 (2005) (internal citations omitted). 65 Id. at 78 (noting Tiger Woods’s forty million dollar endorsement contract with Nike and LeBron James’s ninety million dollar sponsorship contract with Nike, among others); id. at 144–90 (discussing the cultural phenomenon of the global sports star as represented in the figures of David Beckham and Anna Kournikova). 66 MIKE MCNAMEE, SPORTS, VIRTUES AND VICES: MORALITY PLAYS 16 (2008). 67 DONALD G. KYLE, SPORT AND SPECTACLE IN THE ANCIENT WORLD 7 (2007). 68 Id.

Apr. 2014] SPORT AS SPEECH 1129 chael Mandelbaum puts it, “[e]very game begins with the teams equal on the dimension that matters most: The score is always zero to zero. The outcome of each game [appears to] depend . . . entirely on what the players do during the contest[,]” so “sports . . . express the principle of merit.”69 In practice, of course, sports games do not provide as even of a playing field as they appear. Economic inequalities impact which players and which teams win the games, and racial and gender inequalities have in the past, and continue to some degree today, to bar certain kinds of individuals from the field.70 Nevertheless, the idea that what is displayed on the field of athletic competition is individual excellence, freed from social and political constraints and inequalities, continues to attract athletes to sports. Indeed, sociological studies of athletes in a variety of sports suggest that one of the most important reasons why individuals choose to take part in public competition is because of the opportunity it gives them to demonstrate that they possess the physical and psychological virtues associated with success in that sport. In a recent study of professional prizefighters on the South Side of Chicago, the sociologist Loïc Wacquant noted, for example, that one of the primary reasons the men he studied chose the physically dangerous and financially uncertain profession of prizefighting was because of the opportunity it gave them to “publicly establish . . . [their] fortitude and valor.”71 By boxing well, fighters demonstrated that they possessed the “virile values” commonly associated with success in boxing, “such as hardness, pugnacity, and physical bravery.”72 At the same time, by appearing fit and well-prepared for their fights, boxers showed that they possessed the self-discipline and commitment that it

69 MICHAEL MANDELBAUM, THE MEANING OF SPORTS: WHY AMERICANS WATCH BASEBALL, FOOTBALL, AND BASKETBALL AND WHAT THEY SEE WHEN THEY DO 20–21 (2004). Mandelbaum makes this claim specifically about team sports, but the same is true of individual sports as well. 70 For more discussion of these points, see D. Stanley Eitzen, Upward Mobility Through Sport? The Myths and Realities, in SPORT IN CONTEMP. SOC’Y 249, 249 (D. Stanley Eitzen ed., 7th ed. 2005) (noting that “[t]ypically, Americans believe that sport is a path to upward mobility” but questioning the truth of this assumption); JOHN HOBERMAN, DARWIN’S ATHLETES: HOW SPORT HAS DAMAGED BLACK AMERICA AND PRESERVED THE MYTH OF RACE (1997) (critiquing the myth of sport as a space of equal opportunity and a mechanism for racial integration); Robert E. Washington and David Karen, Sport and Society, 27 ANN. REV. SOCIOL. 187 (2001) (reviewing the literature exploring the racial, gender, and class ineq- uities involved in professional sports). 71 Loïc J. D. Wacquant, The Pugilistic Point of View: How Boxers Think and Feel about Their Trade, 24 THEORY & SOC’Y 489, 513 (1995). 72 Id. at 505.

1130 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 took to stick to the arduous training regimen and ascetic lifestyle that success as a boxer was believed to require.73 They boxed, in other words, for expressive reasons: because they wanted to demonstrate to the watching crowd that they were “m[e]n of strength” as well as “m[e]n of virtue” and thereby earn its admiration and respect.74 Studies of athletes in other sports suggest they also participate in public competition in order to demonstrate their virtue and their valor. In an article examining the phenomenon of pickup or “schoolyard” basketball, Jeff Greenfield noted, for example, that many kids in the inner city played basketball because it provided them a perhaps unique opportunity to demonstrate, both to the other players and to those who might watch the game, their manliness and value: For many young men in the slums . . . the school yard is the only place they can feel true pride in what they do, where can move free of inhibi- tions and where they can, by being spectacular, rise for a moment against the drabness and anonymity of their lives. Thus, when a player develops extraordinary ‘school yard’ moves and shots . . . [they] become his measure as a man. So the moves that begin as tactics for scoring soon become calling cards. You don’t just lay the ball in for an uncontested basket; you take the ball in both hands, leap as high as you can and slam the ball through the hoop. When you jump in the air, fake a shot, bring the ball back to your body, and throw up a shot, all without coming back down, you have proven your worth in uncontestable fashion.75 Subsequent studies have found that basketball players who play the game in more formal arenas similarly compete to demonstrate their manliness by demonstrating on the court, particular gendered virtues, such as aggression, creativity, and physical strength. Hence, a recent study of African-American college basketball players found that they considered the basketball court a prime location in which to “flaunt their manhood” by demonstrating that they had game.76

73 Id. at 513 (noting “the homology set up in and by the ring between physical excellence and moral standing,” its dependence on the idea that success in the ring “hinges on the adoption of proper personal habits and conduct outside of it,” and that it was widely believed among boxers that “an ordinary boxer who conscientiously abides by the com- mandments of the pugilistic catechism, as they apply in particular to nutrition, social life, and sexual activity, stands every chance of toppling a more talented but dissipated foe . . . .”) 74 Id. 75 Jeff Greenfield, The Black and White Truth About Basketball, in SIGNIFYIN(G), SANCTIFYIN’, AND SLAM DUNKING 375 (Gena Caponi ed., 1999) (citation omitted). 76 Shaun R. Harper, The Measure of a Man: Conceptualizations of Masculinity Among High- Achieving African American Male College Students, 48 BERKELEY J. SOCIOLOGY 89, 97–98 (2004).

Apr. 2014] SPORT AS SPEECH 1131

A recent study of middle-class practitioners of the sport of mixed martial arts (“MMA”) found that these athletes also participated in public fights because they wished to demonstrate their mental and physical virtues.77 By remaining “steady in the face of [the] sudden pressure [of the fight],” the researchers noted, “fighters show themselves and their peers who they really are by reaffirming collectively recognized virtues such as gameness, heart, courage, and asceti- cism.”78 It was because of the opportunity it provided to demonstrate these valued qualities that fighters believed cage fighting accomplished things that no amount of training could. As the researchers note, “Fighters believe training in the gym is about becoming the sort of person you want to be, and fighting in front of an audience is about revealing who you are and who you have become, both to your- self and to everyone watching.”79 A survey of professional, college, and amateur male athletes in a wide variety of sports similarly concluded that, for many of the athletes surveyed, their performance on the sports field, and the relationship they established with the crowd during the game, was “the most emotionally salient relationship through which their positional identities [were] constructed and affirmed.”80 In other words, for these athletes also, it was on the playing field that they showed who they were and what they were made of. It is not the case, therefore, that because athletes play games to win them, they are not motivated by other, more properly expressive ends. What the studies quoted above suggest, in fact, is that it may be difficult in many cases to distinguish an athlete’s competitive motivations from his or her expressive desires: that athletes play spectator sports because they want to demonstrate by winning, or at least by struggling valiantly to win, that they possess the particular physical and psychological virtues associated with success in that sport and that they thereby deserve the audience’s admiration and respect, its honor, and its glory. Nor is it only athletes who seek to communicate particularized messages through their participation in spectator sports. Those who fund and promote spectator sports also do so, in many cases, for expressive ends. National governments, for example, provide both economic and non-economic support to local teams or sports pro-

77 Corey M. Abramson & Darren Modzelewski, Caged Morality: Moral Worlds, Subculture, and Stratification Among Middle-Class Cage-Fighters, 34 QUALITATIVE SOCIOL. 143, 165–66 (2011). 78 Id. (internal citations omitted). 79 Id. at 166. 80 MICHAEL A. MESSNER, POWER AT PLAY: SPORTS AND THE PROBLEM OF MASCULINITY 50 (1992).

1132 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 grams to ensure that when athletes compete in international competitions, they demonstrate through their performance the strength and power of the political community they represent or with whom they are associated. As James Frey and Stanley Eitzen note, “[S]tatus in the community of nations is ultimately related to success in athletic events. The gold medal count in the Olympics is important precisely because that count becomes a measure of political legitimacy, of modernization, or of a people’s resolve.”81 Municipal governments support local teams for many of the same reasons. Michael Danielson notes, for example, that in the United States, “[a]lmost every stadium and most arenas built over the past half century have been financed with public funds; and these facilities have been offered to teams under ever more favorable terms.”82 Governments support local teams—and provide generous financial incentives to ensure they stay local—because of the boost not only to tourism and tax revenues but also to the city’s image and sense of well-being, associated with a successful local sports franchise.83 This is an expressive desire—albeit a risky one. Danielson notes, for example, that “Cleveland’s image as a failed city was reinforced by a long string of losing seasons by the In- dians, who played in a dingy stadium tabbed the ‘mistake by the lake.’”84 Corporations also fund teams, athletes, and/or stadia for expressive reasons: namely, because they wish to associate their brand with the positive virtues displayed on the field during the game.85 When athletes take to the field, it is not merely their own expressive intent that they communicate via their performance but that of the governments, corporations, or other groups that fund and promote

81 James H. Frey & D. Stanley Eitzen, Sport and Society, 17 ANN. REV. SOC. 503, 512 (1991) (internal citations omitted). 82 MICHAEL N. DANIELSON, HOME TEAM: PROFESSIONAL SPORTS AND THE AMERICAN METROPOLIS 14 (1997). 83 Id. at 7–11, 105–12 (exploring the symbolic importance of teams to the cities they represent and discussing the economic and social benefits to cities of having home teams). 84 Id. at 104. 85 See Matthew P. McAllister, College Bowl Sponsorship and the Increased Commercialization of Am- ateur Sports, 15 CRITICAL STUD. MASS COMM. 357, 360 (1998) (exploring the impact of the increasing corporate sponsorship of amateur sports and arguing that corporations seek to sponsor sports competitions in order to associate themselves with the relatively “risk-free, apolitical message of struggle and triumph” sporting events communicate); SMART, supra note 64, at 17, 65–102 (noting the increasing commercialization of spectator sports and the powerful impact of corporate sponsorship on the cultural significance of spectator sports); SPORT AND CORPORATE NATIONALISMS (Michael L. Silk, David L. Andrews & C.L. Cole eds., 2005) (exploring how corporations seek to identify themselves with the nationalist messages that games promote).

Apr. 2014] SPORT AS SPEECH 1133 them—and whose symbols they often wear on their clothing as they play. Even those who regulate sports demonstrate an expressive interest in the messages that games communicate. The recent decision by the National Football League (“NFL”) to ban what it called “excessive [touchdown] celebrations,” for example, was prompted by a concern that the touchdown celebrations communicated the wrong message—and specifically, celebrated macho individualism, rather than the teamwork and good sportsmanship that the NFL wished to promote instead.86 Efforts by both the NFL and the National Basketball Association (“NBA”) to enforce a strict on-court and on-field dress code similarly reflect the organizations’ concern that athletes were sending the wrong messages by playing the game in the way they did.87 These attempts to influence the messages that games communicate by changing the rules are only the latest in a long series of attempts by the NFL, NBA, and other professional sports leagues to shape the expressive meaning of their sports in order to ensure their leagues’ profitability and respectability.88 Rather than the product of a singular expressive intent, the sociological literature reveals sports games to be instead the product of multiple—sometimes conflicting—expressive desires on the part of those who play, those who promote, those who fund, and those who regulate the sports. This in turn points to the cultural and sometimes overtly political significance that games of spectator sports can possess. It is because of the symbolic power of what takes place on the playing field that governments, corporations, leagues, as well as players, care so much about what happens during the game.

86 Phillip Lamarr Cunningham, “Please Don’t Fine Me Again!!!!!”: Black Athletic Defiance in the NBA and NFL, 33 J. SPORT & SOC. ISSUES 39, 45 (2009) (discussing the NFL’s decision to penalize athletes and their teams for “ ‘excessive celebrations’ after touchdowns”). 87 Id. at 41–43 (arguing that what motivated the new dress code was an anxiety, by primarily white owners, about black players’ adoption of “hip-hop” and “gang” dress styles, which they feared sent messages of criminality and disrespect for the law which threatened the respectability of both sports). Cunningham also notes the significant resistance on the part of many athletes to obeying these rules. Id. at 39–40. 88 See, e.g., MICHAEL ORIARD, READING FOOTBALL 25–56 (Alan Trachtenberg ed., 1993) (exploring how early football regulators altered the rules of the sport in order to attract spectators and to make the game more exciting by emphasizing the achievements of individual players—and noting the resistance this generated amongst those committed to a more collectivist conception of football); Greg Downey, Producing Pain: Techniques and Technologies in No-Holds-Barred Fighting, 37 SOC. STUD. SCI. 201, 213–16 (2007) (examining how promoters of mixed martial arts structured contests in order to ensure a quick flow of action, maintain audience excitement, and increase profitability).

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B. The Messages that Games Communicate Just as it is not true that the only motivations that drive athletes to participate in spectator sports is the competitive and non-expressive desire to win, it is also not true that because games are competitions they communicate no messages worthy of First Amendment protection. To the contrary, it is because they are competitions that games of spectator sports provide a perhaps uniquely powerful medium for communicating messages of virtue. This is because of the aura of authenticity that games possess as competitions. The fact that what audiences see when they watch a sports game is the genuine struggle of the competitors to win, rather than a scripted simulacram of that struggle, gives sport an aura of authenticity that narrative art, no matter how gripping, cannot match. This is not to say that narrative art—Shakespeare’s plays, for example—does not provide audiences a kind of psychological or artistic truth that sport does not. Neverthe- less, the idea that what happens on the playing field is not only real but also somehow true is an important source of sport’s appeal, both to athletes and to spectators. As the football historian Michael Oriard argues with respect to football, the fact that “behind the spectacle of football, real persons are performing real acts” means that “football is grounded in a reality absent from the popular romance or adventure plot.”89 For this reason, Oriard argues against attempts to equate athletes to entertainers and to analogize sports like football to other genres of mass entertainment. Instead, he argues that the reality of sport provides the activity a specific kind of “cultural power” that art cannot replicate: namely, the power “to tell [real] stories . . . in a way that no movie or novel can.”90 Other commentators have noted the peculiar cultural power that sports, and those who play sports, possess because of the aura of authenticity that attaches to games and to those who participate in them. Michael Mandelbaum argues, for example, that the fact that “[a]ctors who appear to do dangerous, difficult things on the screen almost never actually do them [whereas] . . . baseball, football, and basketball players really do what spectators see them do” is one reason why athletes have historically been favored over actors as product pitchmen.91 “Because the spectator could be confident of the authenticity of their deeds,” advertisers believed that consumers would more

89 ORIARD, supra note 88, at 9. 90 Id. 91 MANDELBAUM, supra note 69, at 11.

Apr. 2014] SPORT AS SPEECH 1135 willingly “believe in the sincerity of their words” when they promoted a product.92 The writer Joseph Epstein suggests, similarly, that a great part of sports’ appeal to spectators is the authenticity which attaches to it: the fact that what happens on the field is “beyond the aid of public relations” and, for that reason, is “fraud-free and fakeproof.”93 Sport may be the toy department of life, but one of its abiding compensa- tions is that, at least on the field, it is the real thing. . . . With a full count, two men on, his team down by one run in the last of the eighth, a batter (as well as a pitcher) is beyond the aid of public relations. At match point at Forest Hills a player’s press clippings are of no help. . . . In all these situations, and hundreds of others, a man either comes through or he doesn’t. He is alone out there, naked but for his ability, which counts for everything. Something there is that is elemental about this, and something greatly satisfying.94 It is also because what happens on the field is real in this way that spectator sports provide, as the sociologist Barry Smart notes, “one of the most significant . . . institutional sites for popular cultural recognition and acclaim of exceptional performance and prowess, if not the most prominent context in which the deeds of participants continue to retain authenticity.”95 Nor is it simply athletes’ physical prowess that audiences recognize and acclaim. This is demonstrated by the fact that athletes tend to get celebrated as heroes and role models, not just as celebrities. The difference between a celebrity and a hero, of course, is the moral value that attaches to the latter but not to the former. Whereas celebrities are individuals who are “known for [their] well-knownness,”96 sports heroes are “individuals who gain honor” through the “public display[of] their personal prowess, moral character, and social worth in [a] competition evalu- ated by their peers and the broader society.”97

92 Id. at 16. 93 Joseph Epstein, Obsessed With Sport: On the Interpretation of a Fan’s Dreams, HARPER’S MAG., July 1976, at 71. 94 Id. 95 SMART, supra note 64, at 9. 96 DANIEL J. BOORSTIN, THE IMAGE: A GUIDE TO PSEUDO-EVENTS IN AMERICA 57 (1961) (emphasis omitted). 97 MEDIASPORT 138 ((Lawrence A. Wenner, ed., 1998) (citing John W. Loy and Graham L. Hesketh, THE AGON MOTIF: A PROLEGOMENON FOR THE STUDY OF AGONETIC BEHAVIOR, in CONTRIBUTION OF SOCIOLOGY TO THE STUDY OF SPORT (Kalevi Olin ed., 1984)). See also Gill Lines, Villians, Fools or Heroes? Sports Stars as Role Models for Young People, 20 LEISURE STUD. 285, 285 (2001) (“The sporting hero has traditionally been perceived of as epito- mizing social ideals and masculine virtues, and as embodying values that learnt on the playing fields will readily transfer into everyday life.”).

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Of course, athletes frequently fail to live up to their status as heroes and role models—in part because the virtues that they display when on the field are not necessarily easily translatable into everyday life.98 Yet, the intense criticism leveled against athletes when they fail in their personal lives to live up to their role model status only emphasizes the strength of the association between superior athletic performance and moral, as well as physical, excellence. We would not be so disappointed in athletes when they fail to demonstrate exemplary behavior off the field if we did not believe what they told us by their performance on the field: namely, that they are not simply superior physical specimens but they also embody the sporting virtues— among these, “courage, . . . perseverance, assertiveness, generosi- ty, . . . dependability, honesty, and character.”99 For many of the same reasons that it provides a powerful medium for the expression of messages of individual excellence and virtue, spectator sports also provide an important vehicle for communicating messages about political community. The strong association that tends to be made between athletes and the towns, regions, or nations where they live or on whose behalf they play means that what athletes demonstrate by their performance in the game is not only their own strength and valor but that of the political community with whom they are metonymically identified. It is for this reason, of course, that governments provide so much economic as well as non-economic support to local teams and sports programs.100 By funding sport, they

98 See, e.g., Lines, supra note 97, at 285 (noting the contemporary construction of the sport hero as “damaged”); STANLEY H. TEITLEBAUM, SPORTS HEROES, FALLEN IDOLS (2005) (discussing how the pressure to succeed and the sense of entitlement that comes with being a sports icon create circumstances that are ripe for sports stars to make bad decisions and lose everything). 99 MEDIASPORT 138 (Lawrence A. Wenner, ed., 1998) (citation omitted). 100 For an informative account of the expressive, and more specifically nationalist motivations behind early efforts to establish a U.S. Olympic team, see MARK DYRESON, MAKING THE AMERICAN TEAM: SPORT, CULTURE, AND THE OLYMPIC EXPERIENCE (1998). Dyreson notes that one of the primary objectives of those who promoted the development of the Olympic program was a desire to demonstrate that “modern American civilization did indeed produce . . . the ‘strongest and boldest people.’” Id. at 59 (quoting Theodore Roo- sevelt). The desire to demonstrate, via the number of medals won at the Olympic Games, the strength and power of the nation and its people remains a common theme in the promotion of the U.S. Olympic team and is replicated by similarly nationalist efforts in other countries. For a discussion of nationalism displayed by various countries through participation in the Olympics and other international sporting events, see generally NATIONAL IDENTITY AND GLOBAL SPORTS EVENTS: CULTURE, POLITICS, AND SPECTACLE IN THE OLYMPICS AND THE FOOTBALL WORLD CUP (Alan Tomlinson & Christopher Young eds., 2006); ALAN BAIRNER, SPORT, NATIONALISM, AND GLOBALIZATION: EUROPEAN AND NORTH AMERICAN PERSPECTIVES (2001).

Apr. 2014] SPORT AS SPEECH 1137 also, in many cases, seek to promote a sense of national, or local, identity. Indeed, sport has long been used as a powerful vehicle of collective identification, be it at the local or national level. Games provide an important vehicle for the expression of collective belonging because they provide a shared object—the local team or player— around which citizens can collectively identify. As the anthropologist Joseph Adjaye notes [S]ports provide a unique medium for articulating national sentiments in a highly symbolic way. The sports arena makes more real the nation or imagined community. It incites the national psyche as no other activity, often acting as a surrogate for politics. . . . For third-world nations, in particular, sports often carries a special political function that goes beyond national pride; it can evoke a deep national consciousness that superfi- cially masks internal divisions and forge a façade of unity. Thus in countries where internal tensions exist, international sports can provide a stimulant to apparent harmony, for throughout history, sports has been employed not only as a tool in nation building, but also as a means of transcending internal strife.101 In the act of collectively cheering their team or athlete to victory, fans experience, and reinforce, the ties that bind them to one another.102 In so doing, as Adjaye notes, they make the “imagined community” of the nation—or the political community of the city or region that the athletes represent—“more real.”103 For this reason, the geog- rapher John Bale argues that “[s]port has become perhaps the main medium of collective identification in an era when bonding is more frequently a result of achievement.”104 When athletes take to the field, what they communicate is not only a message of individual or even collective virtue and valor; what they communicate is something about collective identity itself: about “what sort of identities consti-

101 Joseph K. Adjaye, Reimagining Sports: African Athletes, Defection, and Ambiguous Citizenship, 57 AFR. TODAY 26, 32–33 (2010). 102 Scholarship exploring spectator identification with teams is vast. For some good examples, see GARRY CRAWFORD, CONSUMING SPORT: FANS, SPORT AND CULTURE 53 (2004) (noting the important role that sport spectatorship plays in “creat[ing a] sense of community and belonging” among fans); JOSEPH MAGUIRE, POWER AND GLOBAL SPORT: ZONES OF PRESTIGE, EMULATION AND RESISTANCE 109 (2005) (arguing that “[s]port provides an important arena for the construction, maintenance and challenging of identities and has the capacity to bind together individuals, local communities, nations and the world–but also to fragment them”); NATIONAL IDENTITY AND GLOBAL SPORTS EVENTS: CULTURE, POLITICS, AND SPECTACLE IN THE OLYMPICS AND THE FOOTBALL WORLD CUP (Alan Tomlinson & Christopher Young eds., 2006) (exploring how national identities come to be constructed through international sport competitions). 103 Adjaye, supra note 101. 104 JOHN BALE, SPORTS GEOGRAPHY 14 (1989).

1138 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 tute our countries and nations and other people’s countries and nations.”105 Games also express other messages that may not be as expressly intended by those who play, support, or fund spectator sports. Sports philosophers point, for example, to the aesthetic messages that are expressed by what we might call a “virtuous” or “courageous” performance. As the philosophers Teresa Lacerda and Stephen Mumford note A victory can seem beautiful or dramatic because of the maximum effort and focus of the athlete, even though they have no desire to produce beauty or drama. Sport’s aesthetic value derives frequently from situations where athletes are confronted by their limits, and their attempts to surpass themselves is one of the most appreciated aspects of the sport. . . . Examples come to mind of Bernard Hinault, finishing a stage of the Tour de France with blood streaming down his face and of Gabriela Andersen- Schiess, who entered the Los Angeles Olympic stadium at the end of the 1984 marathon staggering and struggling to finish the competition. Such cases show the ability of sport to turn the ugly into the beautiful and profound.106 It is not only the spectacle of human beings in prime condition performing skills that, in many cases, they have spent a lifetime acquiring and perfecting that makes sport beautiful to watch, Mumford and Lacerda suggest here, although the grace and beauty of the performance is one of the attractions that draws viewers to sport.107 The aesthetic value, they suggest, also lies in sports’ ability to render the human struggle against adversity visible, in stark tableau. Athletes may not specifically mean to convey messages of beauty of this kind. Indeed, the moments of intense effort to which Mumford and Lacerda refer may in fact be moments where the athlete is insen- sible to the audience and lost, like an actor or a musician, in the flow

105 GARRY WHANNEL, CULTURE, POLITICS AND SPORT: BLOWING THE WHISTLE, REVISITED 170 (2008). 106 Teresa Lacerda & Stephen Mumford, The Genius in Art and in Sport: A Contribution to the Investigation of Aesthetics of Sport, 37 J. PHIL. SPORT 182, 186 (2010). 107 See WANN ET AL., supra note15, at 34 (noting that one of the factors that leads individuals to become sports fans is an appreciation of “the artistic beauty and grace of sport move- ments” and that “the aesthetic motive is not limited to fans of stylistic sports” such as figure skating or gymnastics but that fans of other sports “may also express a high level of aesthetic motivation. For instance, football fans who remember Lynn Swann (a wide re- ceiver for the Pittsburgh Steelers) often describe the artistic nature of his leaping catches. Similarly, track and field fans often speak of the beauty and grace of such events as the discus, pole vault, and hurdles.”); Garry J. Smith, The Noble Sports Fan, 12 J. SPORT & SOC. ISSUES 54, 58 (1988) (“Comitted sport fans say that one of the reasons they follow sport is that they are fascinated by the excellence, beauty, and creativity in an athlete’s performance. . . . Devotees will speak rapturously, years later, of great moments they witnessed: a Gretzky goal, a Dr. J move, or a Nadia Comaneci perfect routine.”).

Apr. 2014] SPORT AS SPEECH 1139 of the performance. Nevertheless, the aesthetic messages that they convey by their performance are hard to disentangle from the messages of virtue, character, and courage that athletes more self- consciously intend. It is, after all, the bravery and determination that the athlete displays that makes his or her performance beautiful even when it is not pretty, graceful, or easy but instead blood-spattered and arduous. These aesthetic messages therefore add complexity to what it means for athletes to demonstrate, via public competition, their virtue, skill, and character. Games communicate messages about individual identity as well. It is because of the importance of spectator sports as a site for the demonstration of individual excellence and achievement that what happens on the playing field, and who populates it, can have a powerful influence on popular conceptions of what kinds of persons have value, and what values matter. Hence, feminists argue that the male-dominated nature of the major spectator sports, and the violent and aggressive virtues they celebrate, play a key role in the articulation and reinforcement of a notion of “hegemonic masculinity” that, they argue, harms both women and non-normative men.108 For the same reason, critics argue that modern spectator sports play a powerful role in reproducing racial inequalities and stereotypes.109 Others point, however, to the tremendous importance that the entrance of female and minority athletes into the major spectator sports has had on the struggle for racial and gender equality, by reshaping the popular conception of what minorities and

108 R.W. Connell, An Iron Man: The Body and Some Contradictions of Hegemonic Masculinity, in SPORT, MEN, AND THE GENDER ORDER: CRITICAL FEMINIST PERSPECTIVES 83, 94 (Michael A. Messner & Donald F. Sabo eds., 1990) (arguing that sports help construct a culturally idealized form of masculine character that “connect[s] . . . masculinity to toughness and competitiveness” and which she calls “hegemonic masculinity”); Marie Hardin et. al., ‘Have You Got Game?’ Hegemonic Masculinity and Neo-Homophobia in U.S. Newspaper Sports Columns, 2 COMM., CULTURE & CRITIQUE 182, 185 (2009) (“The most powerful institution for ‘shoring up’ hegemonic masculinity in the United States has been the sports/media complex. . . . [M]en who participate in sports that most exemplify the qualities of hegemonic masculinity are constructed as embodiments of the ideal.” (internal citation omitted)). 109 HOBERMAN, supra note 70 (arguing that the astronomical social mobility of many black athletes, who represent, obviously, only a small percentage of the population, distort public perceptions of the opportunity structure for blacks, causing many whites to assume that blacks no longer face discrimination); D. STANLEY EITZEN, FAIR AND FOUL: BEYOND THE MYTHS AND PARADOXES OF SPORT 7 (1999) (exploring how sport promotes a perception of equal opportunity that occludes pervasive racial inequalities and noting that while professional sports present an opportunity for social mobility, the odds of athletes ascend- ing to professional leagues are slim).

1140 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 women can do or achieve.110 In either case, what is clear is that sport provides a powerful medium for the expression and contestation of dominant notions of gender, race, and sexuality. Of course, like the aesthetic messages discussed earlier, athletes or others associated with the game may not specifically intend to communicate messages of this sort—although in some cases, they clearly do intend to.111 Nevertheless, the fact that games frequently do communicate messages of this sort only provides further evidence of the sometimes profound cultural, even political, significance that spectator sport can possess, not despite but because it is a competitive activity that is able to communicate messages that are both densely symbolic and also somehow true.

III. IMPLICATIONS

The political and cultural significance of what takes place on the field during the games of spectator sports has obvious doctrinal and philosophical implications.

A. Doctrinal Implications Doctrinally, what it means is that spectator sports satisfy both elements of the Spence test for expressive conduct. As the first element of the Spence test requires, games reflect the expressive desires of those who play, fund, promote, or regulate sport to communicate via

110 Michael Eric Dyson, for example, argues that Michael Jordan’s success on the basketball court made him a powerful symbol of “racial and cultural desires to fly beyond limits and obstacles,” an embodiment of perhaps a post-racial America. Michael Eric Dyson, Be Like Mike?: Michael Jordan and the Pedagogy of Desire, 7 CULTURAL STUD. 64, 71 (1993). Others point to the importance that Jackie Robinson’s entrance into the major league held for the struggle for racial equality in the United States. See, e.g., John Kelly, Integrating Ameri- ca: Jackie Robinson, Critical Events and Baseball Black and White, 22 INT’L J. HIST. SPORT 1011, 1012 (2005) (“Jackie Robinson was the first black American known by most of white America. His were the struggles observed, understood and embraced. His campaign re- oriented public culture and the body politic. Maybe.”); Charles E. Schumer, Foreword, in JACKIE ROBINSON: RACE, SPORTS AND THE AMERICAN DREAM ix (Joseph Dorison & Joram Warmund eds., 1995) (“On April 15, 1947, Jack Roosevelt Robinson changed America forever.”). 111 A particularly famous example of an athlete who specifically intended to convey a message about gender by her participation in the game of a spectator sport is Billie Jean King who, in 1973, took part in the a highly-publicized tennis match—entitled the “Battle of the Sexes”—in order to demonstrate that women could not only compete against men, but could triumph over them in competition. See Nancy E. Spencer, Reading Between the Lines: A Discursive Analysis of the Billie Jean King vs. Bobby Riggs “Battle of the Sexes,” 17 SOC. SPORT J. 386, 386 (2000) (describing Billie Jean King’s victory over Bobby Riggs in 1973 and classifying it as “perhaps the most important event in women’s tennis history”).

Apr. 2014] SPORT AS SPEECH 1141 their performance “particularized messages” of individual or collective virtue—and perhaps other messages as well (messages of national pride, of racial equality, of beauty, etc.). As the second element of the Spence test requires, these messages are intelligible. The conven- tionality of sport as a genre of performance makes it in fact an especially intelligible medium for the communication of symbolic messages when compared to highbrow genres of artistic performance, which tend to favor the subversion or transformation of existing symbolic conventions.112 In spectator sports, in contrast to more elite genres of entertainment, the performance works only if actors follow the rules. Following the rules is, in fact, one of the virtues that sports express and display.113 This makes the messages that games express particularly easy to understand—a fact that may, in turn, be one reason for sports’ mass appeal.114 There is thus no doctrinal justification for denying spectator sports First Amendment protection. This conclusion is buttressed by the 2011 decision, Brown v. Entertainment Merchants Ass’n, in which the Supreme Court recognized video games as a form of expression entitled to First Amendment protection.115 In recognizing video games as First Amendment-protected expression, the Court expressly rejected arguments—similar to those made by the Interactive Digital Software Ass’n court—that because video games, like other kinds of games, are “interactive” activities whose ending is not fixed in advance but determined by the actions of the players, they do not merit the constitutional protection afforded other, less-interactive, genres of expression, such as movies, books, and art.116 Justice Antonin Scalia, who wrote the majority opinion in Brown, acknowledged that the experi-

112 See ANDREAS HUYSSEN, AFTER THE GREAT DIVIDE: MODERNISM, MASS CULTURE, Postmod- ernism 4-7 (1986) (chronicling the twentieth-century concept of the avant-garde and of art as a challenge to existing convention). 113 See WILLIAM J. MORGAN, WHY SPORTS MORALLY MATTER 146 (2006) (“[I]n sports, it is crucial that everyone start from the proverbial same starting line, so that no one enjoys a leg up on the competition. At the very least, this entails an impartial observance and application of the rules to ensure that similar cases are treated similarly.”). 114 MANDELBAUM, supra note 69, at 7–8 (“The modern age brought incoherence to the traditional forms of artistic expression. . . . The highest value of a work of art came to be regarded as originality; but what was original was also often obscure. . . . [Sports, in contrast,] offer entertainment to the masses, and a principal reason for this is that they are supremely coherent. . . . At the end of each game, the spectators and the participants know which side has won. While the news section of the daily newspaper may report the baffling and the unintelligible, the sports section features succinct histories that everyone can understand, with a clear-cut beginning, middle, and end.”). 115 Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011) (“California correctly acknowledges that video games qualify for First Amendment protection.”). 116 Id. at 2737–38.

1142 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 ence of playing a video game is, as Justice Samuel Alito argued in dissent, “different in ‘kind’” from the experience of reading a book.117 He nevertheless rejected the claim that this difference was constitutionally significant. Since he found that “video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” Scalia concluded that video games were, “[l]ike the protected books, plays, and movies that preceded them,” fully protected by the First Amendment.118 What was true of the video games in Brown is true of spectator sports. Although most games of spectator sports lack some of the “familiar literary devices” that Scalia highlighted in Brown, such as music and dialogue, they clearly possess others. They provide, for example, larger-than-life characters that audiences can adore or re- vile. In the movement from the beginning to the end of the performance, they also narrate a story—though a story whose meaning might depend, to a great degree, upon which team one is rooting for. The fact that the end of the game’s narrative is not known in advance, but depends upon what happens on the field during the performance—as is not true of most kinds of artistic performance, but is true of video games—does not make sport necessarily any less expressive than other, less-interactive genres of entertainment, as Brown makes clear. Instead, it only adds to the power and urgency of the dramatic narrative of the game, and in some cases, also the season. As Michael Mandelbaum argues [S]ports offer a particularly compelling form of drama. The outcome of a game, unlike that of a scripted drama, is unknown. Few people watch the same play or motion picture repeatedly because after they have seen it once they know the ending. The tension is gone. But tension suffuses each and every game of baseball, football and basketball. Moreover, in organized sports the tension carries beyond each individual game and tends to increase over time. Each game is part of a designated se- quence—a season—the goal of which is to produce a champion. . . . Sus- pense mounts because, as the end of the season approaches, games tend to become more important to the determination of the champion. In this way baseball, football and basketball resemble the oldest of literary forms, the epic. Like the greatest of them, the Odyssey, the protago- nist—in the case of sports, the team—encounters a series of challenges that it must meet to achieve its ultimate goal.119

117 Id. at 2737 n.4. 118 Id. at 2733. 119 MANDELBAUM, supra note 69, at 5.

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Mandelbaum is not the only writer to compare spectator sports to art. Indeed, comparisons to poetry, drama, and theatre abound. A. Bartlett Giamatti, former commissioner of Major League Baseball, described baseball as “a narrative, an epic of exile and return, a vast, communal poem about separation, loss, and the hope for reunion” and the “Romance Epic of homecoming America sings to itself.”120 Saul Steinberg argues that “[b]aseball is an allegorical play about America, a poetic, complex and subtle play of courage, fear, good luck, mistakes, patience about fate and sober self-esteem. . . .”121 Joyce Carol Oates writes that “[e]ach boxing match is a story—a unique and highly condensed drama without words.”122 In truth, sports games are only metaphorically similar to epic dramas, poems, or ballets. They may possess many of the same dramatic and symbolic elements as these kinds of artistic performance, but the fact that they are competitions means that they communicate and express cultural meaning differently than does a drama, a poem, or a play. The analogy with art arises, nonetheless, because of the deeply expressive character of both art and spectator sports. What theorists mean when they say sport is an epic drama, a poem, or a play is that sports games convey, in a similarly dramatic and densely symbolic form, important cultural themes or messages. For this reason, although sport may be “different in kind” than other kinds of expression that the First Amendment protects, it is no less deserving of protection under Spence than are movies, dance performances—or, for that matter, video games.

B. Philosophical Implications The cultural and political significance of what takes place during the game of a spectator sport also means that there is no philosophical justification for denying protection to sports but extending it to art and audience-oriented entertainment. By philosophical justification, I mean a justification grounded in the aims and purposes that First Amendment doctrine is intended to advance. A notion of constitutional purpose has traditionally played an important role in modern First Amendment jurisprudence. When Jus- tices Oliver Wendell Holmes and Louis Brandeis reimagined the First

120 A. BARTLETT GIAMATTI, TAKE TIME FOR PARADISE: AMERICANS AND THEIR GAMES 95 (1989). 121 ALBERT THEODORE POWERS, THE BUSINESS OF BASEBALL 9 (2003); HAROLD ROSENBURG, SAUL STEINBERG (1978). 122 JOYCE CAROL OATES, ON BOXING 8 (1987).

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Amendment in the early twentieth century as a powerful justiciable check on governmental power, they did so by turning away from the rather restrictive notion of what it meant to abridge “the freedom of speech” available at the Founding.123 Since then, the Court has per- sistently refused to define the scope of First Amendment protection with reference to the precise intentions of the Framers.124 However, it has also refused to extend First Amendment protection to all activities that, in ordinary language, would constitute speech, or that we might consider, in one way or another, to be expressive.125 Instead, the Court has tended to justify the doctrinal rules it has established to distinguish protected speech from unprotected conduct in terms of the broad purposes that the First Amendment was intended to serve. Hence, in the famous early twentieth-century concurrences and dis- sents in which they laid out the framework of the modern doctrine, Justices Holmes and Brandeis justified extending protection to even politically unpopular speech as necessary to further the core purpose of the First Amendment, which Holmes identified as the protection of the “free trade in ideas,” and Brandeis identified instead as the protection of democracy against “the occasional tyrannies of govern-

123 See, e.g., Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. ILL. L. REV. 815, 835 (2012) (“When the First Amendment was adopted in 1791, the standard legal view . . . was that the guarantee of freedom of the press banned prior restraints on publication but did not prevent subsequent punishments for libel or seditious advocacy.”); Cass R. Sunstein, Free Speech Now, 59 U. CHI. L. REV. 255, 256 n.3 (1992) (“[I]t seems clear that during the founding period, much of what we now consider ‘speech’ was thought to be unprotected, and speech could be regulated if it could be shown to cause injury or of- fense.”). See generally MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM 7–9 (1991) (examining the basis of libertarian interpretations of the First Amendment); David M. Rabban, The Emergence of Modern First Amend- ment Doctrine, 50 U. CHI. L. REV. 1205, 1207–09 (1983) (describing the early twentieth- century historical evolution of the meaning of “freedom of speech” and the invention of a new libertarian tradition). 124 Sunstein, supra note 123, at 256 (“The current state of free speech in America owes a great deal to extremely aggressive interpretations by the Supreme Court . . . . These decisions cannot be justified by reference to the original understanding of the First Amend- ment.”). 125 City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (Although “it is possible to find some kernel of expression in almost every activity a person undertakes[,] . . . such a kernel is not sufficient [by itself] to bring the activity within the protection of the First Amend- ment.”). See also Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1773–84 (2004) (“That the boundaries of the First Amendment are delineated by the ordinary language meaning of the word ‘speech’ is simply implausible. . . . [T]he speech with which the First Amend- ment is even slightly concerned is but a small subset of the speech that pervades every part of our lives.”).

Apr. 2014] SPORT AS SPEECH 1145 ing majorities.”126 Several decades later, a majority of the Court again invoked the democracy-promoting purpose of the First Amendment to justify, among other things, the extension of free speech protection to labor picketing and the imposition of significant limits on the government’s ability to prosecute libel.127 Scholars have also invoked sometimes divergent conceptions of the First Amendment’s purpose to explain, as well as to challenge, the doctrinal rules.128 Given what Robert Post has identified as the over-expansiveness of the Spence test, it is conceivable that, even if spectator sports satisfy the doctrinal test for expressive conduct, there may be other, philosophical reasons for denying sport First Amend- ment protection—reasons that are not fully captured by the Spence test but that nevertheless influence how courts interpret it. Yet, it is very difficult to see what these reasons may be. Certainly, if we consider the question of spectator sports’ First Amendment status in light of the most commonly invoked of the amendment’s purposes—namely, the protection and facilitation of democracy in the United States—there is no justification for extending protection to art and entertainment and denying it to spectator sports. This may seem a counterintuitive claim to make, given the, at best, highly attenuated relationship between spectator sports and democratic political processes and debates. Indeed, some scholars— most notably, Robert Bork—have argued that, if the purpose of the First Amendment is to protect democracy in the United States by protecting the free and open political debate necessary to sustain it, as

126 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357, 375–76 (1927) (Brandeis, J., concurring). 127 New York Times Co. v. Sullivan, 376 U.S. 254, 272, 279–80 (1964) (holding that, in order to give First Amendment freedoms the “breathing space that they need to survive,” public officials may not recover for defamation “relating to [their] official conduct unless [they] prove that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not” (internal citation and quotation marks omitted)); Thornhill v. Alabama, 310 U.S. 88, 103 (1940) (concluding that, because “[f]ree discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society,” labor picketing is entitled to First Amendment protection). 128 The literature analyzing and critiquing First Amendment doctrine from one or another purposive perspective is extensive. For a good survey, see Kent Greenawalt, Free Speech Jus- tifications, 89 COLUM. L. REV. 119, 145 (1989) (finding that “[a]rguments from democracy have been said in a comparative study to be the ‘most influential . . . in the development of twentieth-century free speech law’” and noting the importance of free speech to liberal democracy); see also Schauer, supra note 125, at 1785–86 (critiquing the various purposive accounts of First Amendment boundaries that have been proposed).

1146 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 many have argued that it is,129 then the only kind of speech to which free speech protection should extend is speech that is “explicitly po- 130 litical.” On this view of what it means for the First Amendment to safeguard democracy, the vast majority of works of art would not be protected by the First Amendment—and neither would all spectator sports. The Supreme Court has, however, embraced a much broader conception of what speech must be protected in order to ensure that it is, as James Madison put it, the “People, not the Government, [that] possess the absolute sovereignty.”131 In Winters, the Supreme Court recognized that true crime magazines, although not expressly political, had the capacity to both educate and politicize their audience through their depiction of the social world and for that reason were entitled to First Amendment protection.132 Four years later, in Joseph Burstyn, Inc. v. Wilson, the Court found the same to be true of motion pictures; since films have the capacity to “affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression,” the Court held that even non-

129 See, e.g., Greenawalt, supra note 128 and accompanying text; Post, supra note 60, at 1275 (“The most prominent and important form of social order for First Amendment jurisprudence is what I have elsewhere called ‘democracy.’ . . . [L]arge patches of core First Amendment doctrine in fact express the normative aspirations of this specific kind of social order, which seeks to sustain the value of self-government by reconciling individual and collective autonomy through the medium of public discourse.”); Martin H. Redish & Abby Marie Mollen, Understanding Post’s and Meiklejohn’s Mistakes: The Central Role of Adver- sary Democracy in the Theory of Free Expression, 103 NW. U. L. REV. 1303, 1303 (2009) (“De- mocracy could not exist, in any meaningful sense, absent a societal commitment to basic notions of free expression, nor could free expression flourish in a society uncommitted to democracy. It is therefore not surprising that among the most prominent and widely accepted theories of the First Amendment are those that explain the Free Speech Clause as either a catalyst for or a protection of democracy itself.”). 130 Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 27–28 (1971) (“The category of protected speech should consist of speech concerned with governmental behavior, policy or personnel, whether the governmental unit involved is executive, legislative, judicial or administrative. Explicitly political speech is speech about how we are governed . . . .”). Bork notes that the category “includes a wide range of eval- uation, criticism, electioneering and propaganda” but “does not cover scientific, educational, commercial, or literary expression as such.” Id. at 28; see also Lillian R. BeVier, The First Amendment and Political Speech: An Inquiry into the Substance and Limits of Principle, 30 STAN. L. REV. 299, 300–01 (1978) (arguing that in principle, First Amendment protection extends only to political speech, although acknowledging the possibility that in practice, “pragmatic and institutional concerns” might justify the extension of First Amendment protection to some kinds of art). 131 Sunstein, supra note 123, at 256 (quoting James Madison, Report on the Virginia Resolution, in 6 THE WRITINGS OF JAMES MADISON 386 (Gaillard Hunt ed., 1906)). 132 Winters v. New York, 333 U.S. 507, 510 (1948).

Apr. 2014] SPORT AS SPEECH 1147 political movies were entitled to the same degree of constitutional protection as was afforded more explicitly political speech.133 In the years since Joseph Burstyn, members of the Court have continued to affirm that art and entertainment are entitled to the highest degree of First Amendment protection because of their ability to express and, in turn, shape public attitudes and beliefs.134 The Court has continued to recognize, in other words, that artistic expression must be protected because of its capacity to influence, even if only indirectly, democratic political debates by influencing how members of the poli- ty understand and imagine the world around them. Under this more capacious conception of what it means for the First Amendment to safeguard democracy in the United States, there is no justification for denying protection to spectator sports. This is because, like movies and other kinds of audience-oriented entertainment, spectator sports have the capacity to “affect public attitudes and behavior in a variety of ways,”—as the previous Part should already have made clear. By providing a forum for the demonstration and valorization of individual virtue, games help shape ideas of what virtues matter and who possesses them. They influence popular notions of gender, sexuality, and race. They reinforce, and make more effectively powerful, collective identities, including national ones. By providing a venue in which individuals appear to compete on a truly even playing field, sports may also help to reinforce popular faith in the meritocratic ideal so important to American democracy.135 In these ways, games of spectator sports help shape our conceptions of the normative social order and, by implication, the rules that should govern it. As such, games of spectator sports are political, or at least politically relevant, in the same way that the Burstyn court recognized

133 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952). 134 See Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 602 (1998) (Souter, J., dissenting) (arguing that because art has the potential to affect public attitudes and behavior in various ways,, “[i]t goes without saying that artistic expression lies within this First Amendment protection” (quoting Joseph Burstyn, 343 U.S. at 501)). 135 See, e.g., MANDELBAUM, supra note 62, at 20–21 (noting that team sports in the United States express the principle of merit and the democratic ideal that we all have to play by the same rules); Gerald Early et. al., Baseball, Boxing and the Charisma of Sport and Race, in The Charisma of Sport and Race, 8 DOREEN B. TOWNSEND CENTER OCCASIONAL PAPERS 5 (Christina M. Gillis ed., 1996) (“Sport is about meritocracy. People are attracted to sport often because it is pure meritocracy. You have to be excellent at sport, and that excellence supposedly transcends any social construction except the social construction of ‘athlete’ which, ideally, is just reified merit, actualized desire and ambition, or apolitical excellence. Of course, sport has practiced race and gender exclusion, but in the rational liberalism that sport represents, this exclusion has been seen as a form of corruption of sport’s ‘truth.’”); Eitzen, supra note 70, at 249 (“Typically, Americans believe that sport is a path to upward social mobility.”).

1148 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 movies could be, and later decisions recognized to be true of music, drama, poetry, and dance as well. Even if one accepts the narrower, Borkian view of what speech must be protected in order to safeguard democracy in the United States, there is little reason to believe that art should receive protection and spectator sports should not. Most art is, after all, not explicitly political, in the sense that Bork uses the term, to refer to “speech 136 concerned with governmental behavior, policy or personnel.” The Borkian interpretation of what it means for the First Amendment to safeguard democracy does not, therefore, justify the current doctrinal arrangement any more than the more expansive interpretation adopted by the Court in Winters and Joseph Burstyn does; nor does Cass Sunstein’s recent effort to carve out a somewhat broader category of political speech than that which Bork proposes. Sunstein defines the category of speech he thinks must be protected in order to safeguard democracy in the United States as “speech intended and received as a contribution to public deliberation.”137 In this category, he includes some but not all art. Sunstein argues, for example, that Charles Dicken’s novel Bleak House and the photographs of Robert Mapple- thorpe, should be considered political speech because, in both cases, they engage, and were intended to engage, with pressing social issues of their time (the exploitation of the worker, in the first case, and questions of privacy and sexuality in the second case).138 Sunstein’s argument, therefore, would clearly extend protection to some art and deny protection to some spectator sports that are intended to fulfill a purely entertainment function. What Sunstein’s argument would not do, however, is establish the kind of categorical distinction between art and spectator sports that exists in the case law. Indeed, one could easily argue that, under Sunstein’s definition of political speech, at least some spectator sports should receive First Amendment protection. Billie Jean King’s battle against Bobby Riggs in the 1973 tennis match, entitled the “Battle of the Sexes,” was, after all, clearly intended and received as a contribution to public deliberation, as was Jackie Robinson’s participation in Major League Baseball.139

136 Bork, supra note 130, at 27. 137 Sunstein, supra note 123, at 306. 138 Id. at 308 (“Both Ulysses and Bleak House are unquestionably political for First Amendment purposes. The same is true of Robert Mapplethorpe’s work . . . .”). 139 Kelly, supra note 110, at 1018–23 (describing the extensive deliberation and planning involved in Jackie Robinson’s signing with the Brooklyn Dodgers and the explicitly political terms in which both Robinson and others viewed his entrance into Major League Base- ball); Spencer, supra note 111, at 393 (noting that King participated in the match because

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None of the conflicting views of what it means for the First Amendment to protect democracy—and what speech must be protected in order to do so—thus justify the current doctrinal arrangement. Nor can the different status afforded spectator sports and art in the case law be justified under the other purposes that jurists and scholars invoke to justify or explain First Amendment doctrine. Nei- ther sport nor art provide the kind of objective truth whose discovery Justice Holmes, in Abrams v. United States, famously argued it was the purpose of the First Amendment to foster, although both genres of expression may provide their own kinds of truth—what we might call aesthetic or psychological truth in the case of art, and what we could call moral truth in the case of sports.140 Were we to conceive the search for truth fostered by the First Amendment as a search for subjective, rather than purely objective truth, both art and sport would therefore have a plausible claim to protection.141 It would, in other words, be difficult to argue that art contributes in a more significant way to the discovery of “subjective truth” than sport. It is similarly unclear why art would receive protection under a First Amendment conceived primarily as a guarantee of individual liberty or autonomy, but sport would not. If “the significance of free expression rests on the central human capacity to create and express symbolic systems, such as speech, writing, pictures, and music, intended to communicate in determinate, complex, and subtle ways[,]”

she recognized the broader social implications of the match, especially on the fight for gender equality and the role of women in sports). 140 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”); see also William P. Marshall, In Defense of the Search for Truth as a First Amendment Justification, 30 GA. L. REV. 1, 1 (1995) (“The most influential argument supporting the constitutional commitment to freedom of speech is the contention that speech is valuable because it leads to the discovery of truth.”); JOHN STUART MILL, ON LIBERTY 67-176 (David Bromwich & George Kateb eds., 2003) (offering a classic articulation of the “search for truth” rationale of freedom of speech). 141 See Greenawalt, supra note 128, at 132 (suggesting subjective truth as a plausible interpretation of the search for truth rationale). But see Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 15 (1984) (“[I]f truth is to defeat falsity through ro- bust debate in the marketplace, truth must be discoverable and susceptible of substantia- tion. If truth is not ascertainable or cannot be substantiated, the victory of truth in the marketplace is but an unprovable axiom. In order to be discoverable, however, truth must be an objective rather than a subjective, chosen concept.”).

1150 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 as David Richards argues that it does,142 then surely the values are fostered equally well when an athlete exercises these capacities on the playing field rather than in the concert hall. Of course, one could argue that sport provides a less “complex and subtle” vocabulary for the exercise and development of human creativity, but here we enter the thickets of subjective opinion. In fact, athletes are careful to em- phasize the complexity and subtlety of their art in the face of pervasive assumptions that at least certain kinds of sports—combative sports such as boxing, for example—involve nothing more than the exercise of brute force.143 Sports fans also tend to celebrate the subtlety and complexity of the moves that great players demonstrate on the playing field and the creativity they display in negotiating, and ultimately, transcending, the constraints of the game.144 The argument that spectator sports do not deserve free speech protection thus seems as difficult to make under a liberty or autonomy rationale as it is to make under the democratic rationale of the First Amendment. Indeed, it is hard to think of another genre of performance in which the themes of individual autonomy and self-mastery are more pro- nounced than they are in sport. Despite general agreement in the cases that sports are not a mode of expression entitled to free speech protection, it thus turns out to be just as difficult to justify the constitutional distinction between spectator sports and art by reference to the aims and purposes of the

142 David A. J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. PA. L. REV. 45, 62 (1974). 143 See Wacquant, supra note 71, at 501 (“Fighters conceive of boxing not as a springboard for aggression and an exercise in violence but as a skilled bodily trade, a competitive performance craft requiring sophisticated technical know-how and an abiding moral commitment that will enable them not only to improve their material lot but also, and more ur- gently, to construct a publicly recognized, heroic self.”). Scholars who have studied MMA note a similar resistance among fighters to the idea that the sport only involves violence. See, e.g., Abramson & Modzelewski, supra note 77, at 158, 160 (“When we looked at the ‘collective dispositions’ and espoused understandings of this activity, it became impossible to sustain the argument that the subcultural world of the cage-fighter is about celebrating and supporting violence. To the contrary, fighters downplay the violence and highlight the difficulty, competition, strategy, and challenge of fighting, often referring to it as a game of chess. As Mark, a 30-year-old man working in the entertainment industry, noted, ‘You have to set up all of your moves in advance. You can’t just play a move at a time; you can’t say I’m just going to knock this guy out. . . . I think that it [MMA] is a chess match and the guys that can set up those moves win.’” (internal citations omitted)). 144 Epstein, supra note 93 (noting that one of the great pleasures that sport provides is the opportunity to watch “craft of a very high order, which is intrinsically interesting”); Smith, supra note 107 , at 58 (“A splendid athletic performance rivals any great work of art; but, unlike ‘a concert where the musician normally interprets the work of the composer, the athlete is an innovator, responding to each situation as it comes along.’” (internal citation omitted)).

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First Amendment as it is to justify the distinction doctrinally. At least, it is difficult to justify the distinction if we accept what courts have been loath to accept but that the social scientific literature suggests we must accept—namely, that games are expressive acts, which viewers watch not just because they are exciting but because of what they signify and represent. Moreover, although it is certainly possible to justify the claim that First Amendment protection should extend to only political speech—and therefore should include neither sport nor art—there are good reasons to reject this argument, however broadly or narrowly the category “political” is defined. As Sunstein himself acknowledges, “[o]ften the deepest political challenges to the existing order can be found in art, literature, music, or sexual expression.”145 Spectator sports also, as we have seen, provide an important arena for challenging the existing social order and, more particularly, dominant conventions of gender and race. For this reason, even if athletes, unlike artists such as Robert Mapplethorpe, may not intend for their performances to “contribute to public deliberation,” 146 they may in fact quite powerfully do so. For this reason, even if plausible arguments can be made that spectator sports, like art, should receive lesser protection than other forms of speech, it is difficult to justify the categorical denial of First Amendment protection to either genre of expression—at least it is if we believe, as Jack Balkin recently argued, that “true democracy means allowing people not only to have a say about who represents them in a legislature, or what laws are passed, but also to have a say about the shape and growth of the culture that they live in . . . .”147

C. Pragmatic Implications There are, in addition, no other, more pragmatic reasons to deny First Amendment protection to spectator sports but to extend it to art and other genres of audience-oriented entertainment. The recognition of spectator sports as speech would not, for example, threaten the fundamental First Amendment distinction between speech and conduct by allowing “an apparently limitless variety of conduct [to] be labeled ‘speech.’”148 This is a common concern in the expressive conduct context when courts are frequently forced to wrestle with the

145 Sunstein, supra note 123, at 308. 146 Id. at 306. 147 Jack M. Balkin, Commentary, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. REV. 1, 39 (2004). 148 United States v. O’Brien, 391 U.S. 367, 376 (1968).

1152 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 implications of extending First Amendment protection to conduct that is not only non-linguistic—and therefore does not fit our conventional understanding of speech as “the communication . . . of thoughts in spoken words”149—but may also be conventional and hence widespread. At least one court has suggested that fear of an all-encompassing First Amendment—in which everything is protected, and hence nothing is protected—influenced its deliberations regarding the constitutional status of spectator sports.150 This fear is unfounded. Just as extending First Amendment protection to dance performances does not mean that all kinds of dance are necessarily protected, extending First Amendment protection to spectator sports would not mean that the First Amendment would be “applicable to all athletic endeavors.”151 Recreational sports would remain unprotected—at least as a categorical matter. Of course, there may be occasions in which recreational athletes, like recreational dancers, may be able to invoke the protections of the First Amendment. Think, for example, of an anti-war protestor who jogs around town wearing a sign that says something like, “End the War Now.” His act would obviously receive protection for the same reason that those of the schoolchildren in Tinker did: because, in the particular context in which it was performed, it both expressed and appeared likely to convey a “particularized message.” However, recreational athletics, like going to school, would not be categorically presumed to be an expressive act. It is only spectator sports which are entitled to categorical First Amendment protection for the same reason that art and other forms of entertainment are: because, by addressing a public audience, athletes participate in the formation of democratic public attitudes and beliefs. Nor should it be terribly difficult to distinguish recreational from spectator sports. Spectator sports are sports that are intended to be seen by an audience; to use Justice Daniel Souter’s language from his Barnes concurrence, they are sports that are “directed to an actual or hypothetical audience . . . .]”152 While there may be some cases in which it is difficult to determine whether a given athletic performance is or is not “directed at an actual or hypothetical audience”—

149 Speech Definition, MERRIAM-WEBSTER ONLINE DICTIONARY, http://www.merriam- webster.com/dictionary/speech (last visited Feb. 28, 2014). 150 Top Rank, Inc. v. Fla. State Boxing Comm’n, 837 So. 2d 496, 502 n.1 (Fla. Dist. Ct. App. 2003) (“I am in fact an enthusiastic sports fan, but I do not believe we should dilute the significance of First Amendment protection by making it applicable to all athletic endeavors.”). 151 Id. 152 Barnes v. Glen Theatre, Inc., 501 U.S. 560, 581 (1991) (Souter, J., concurring).

Apr. 2014] SPORT AS SPEECH 1153 think for example of the pickup basketball games discussed in Part II—in most cases, the distinction between recreational and spectator sports should be relatively easy to draw. All sports whose performance fans or family members typically watch, either from the stands or on their television, should be included in the category of spectator sports. Activities that individuals engage in purely for pleasure or fit- ness should not. Although these acts obviously have expressive meaning for those who engage in them, they do not have the kind of expressive meaning that the First Amendment has historically privileged and therefore, like the recreational ballroom dancing in Stanglin, are not entitled to First Amendment protection in the absence of a showing of specific intent. Recognizing spectator sports as an expressive activity would also not impede the effective governmental regulation of the public sphere—another worry that is frequently raised when questions of expanding the category of speech occur.153 Governmental actors would be able to regulate the time, place, and manner in which games of spectator sports occur in just the same way as they currently regulate the time, place and manner in which concerts, plays, and dance performances take place.154 They could even ban a particularly dangerous sport if the ban left open ample alternative channels for the communication of that sport’s message and was genuinely directed at the sport’s physical dangers.155 They simply would not be

153 For a particularly forceful articulation of this concern, see Justice Stephen Breyer’s dissent in Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2675 (2011) (Breyer, J., dissenting) (“To apply a ‘heightened’ standard of review in such cases as a matter of course would risk what then-Justice Rehnquist . . . described as a ‘retur[n] to the bygone era of Lochner v. New York . . . in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies.’” (citing Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 589 (1980) (Rehnquist, J., dissenting)). 154 See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 796 (1989) (upholding a city regulation limiting the volume of amplified noise at a public concert band shell as a reasonable regulation of the time, place, and manner in which public concerts took place on the grounds that it was content neutral and “narrowly tailored to serve a significant governmental interest[:]” namely, protecting citizens from unwelcome noise); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (“Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”). 155 Barnes, 501 U.S. at 571 (upholding a ban on nude dancing on the grounds that “the requirement that the dancers don pasties and G-strings does not deprive the dance of whatever erotic message it conveys”); Clark, 486 U.S. at 294–95 (upholding a ban on sleeping in national parks as a “defensible . . . time, place, or manner restriction” on expression

1154 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 able to ban the performance of a sport or the training necessary to allow that performance, or otherwise target those who produce, promote, or take part in the sport, because of the messages that its performances convey. Under the principles that inform the contemporary view of the First Amendment, this would obviously be a good thing. As Justice Brennan noted in Texas v. Johnson, “[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”156 Although the sheer popularity of sports works as a kind of prophylactic against repression—after all, who would want to vote for the politician who banned baseball?—spectator sports, like all other public sphere activities, are vulnerable to government censorship. Re- cent efforts in both the United Kingdom and the United States to ban the sport of boxing, and the successful efforts of opponents of mixed martial arts in the United States to get the sport banned in various states, demonstrate as much.157 Serious health and safety concerns obviously played a role in the move to ban these sports, but so too did concerns with both the violent and hyper-masculine messages both sports were perceived to send. In the United Kingdom, for example, opponents of boxing compared the sport to pornography; just as pornography, by valorizing the subjugation of women, de- praves and corrupts those who consume it, so too, they argued, does boxing, by valorizing violence and depraving and corrupting its fans.158 Similar concerns with the effect of sports’ messages on its audiences informed the anti-MMA movement in the United States. Sponsors of the bill to ban MMA in New York asserted, for example, that the ban was justified because the sport of MMA was “disgraceful, animalistic and disgusting” and “sets an abominable example for our youth.”159

given no evidence that the regulation targeted speech or attempted to ban sleeping altogether);. 156 491 U.S. 397, 414 (1989). 157 For a discussion of the issues involved in the anti-boxing movement in the United States and the United Kingdom, see Ken Jones, A Key Moral Issue: Should Boxing be Banned?, 4 CULTURE, SPORT, SOC’Y 63 (2001) (presenting safety, health, intentional harm, and violence-based arguments for banning boxing). For a discussion of the anti-MMA movement in the United States, see Geoff Varney, Fighting for Respect: MMA’s Struggle for Ac- ceptance and How the Muhammad Ali Act Would Give it a Sporting Chance, 112 W. VA. L. REV. 269 (2009) (discussing the history of MMA in the United States and efforts to ban MMA). 158 Jones, supra note 157, at 69 (comparing and likening the harmful effects on citizens of viewing pornography to watching boxing matches). 159 James Dao, Senate Chief in Albany, Reversing Himself, Says He Backs a Ban on Ultimate Fighting, N.Y. TIMES, Feb. 11, 1997 at B7.

Apr. 2014] SPORT AS SPEECH 1155

Whatever we may feel about either sport, arguments that they should be banned—and in the United States, the successful enact- ment of such bans—premised, at least in part, on the dangerous, disgusting, or disgraceful messages that they communicate to their audiences clearly implicate a “bedrock principle” of First Amendment concern. Yet, under the precedents outlined in Part I of this Article, the First Amendment has no relevance to struggles over the status of these sports, and the government retains its power, in this arena of public life if no other, to act as a moral censor.

D. Indirect Benefits Recognizing spectator sports as First Amendment-protected expression would therefore help safeguard an important sphere of cultural expression in the United States from governmental repression and political control. It would have two other, more indirect, benefits as well. First, it would help clarify what is at present the rather vexing case law governing art and entertainment. In 1981, Justice Byron White declared, in Schad v. Borough of Mount Ephraim, that “[e]ntertainment, as well as political and ideological speech, is protected [by the First Amendment]; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee.”160 The sports cases make clear that this is not in fact true. Nonetheless, courts continue to assert that entertainment in general is protected by the First Amend- ment,161 even as others note that, in fact, it is not.162 The recognition of spectator sports as a constitutionally protected activity would help clarify matters by bringing, for the first time, all genres of audience-oriented entertainment under the First Amend- ment’s purview. Non-audience-oriented entertainment, such as gam-

160 452 U.S. 61, 65 (1981). 161 Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 211 (5th Cir. 2009) (“[L]ive musical entertainment . . . is unquestionably speech and expression subject to the guarantees of the First Amendment.” (quoting Collins v. Ainsworth, 382 F.3d 529, 539 (5th Cir. 2004)); Wil- lis v. Town of Marshall, N.C., 426 F.3d 251, 260 (4th Cir. 2005) (holding that musical performances are entitled to First Amendment protection); Tacynec v. City of Philadelphia, 687 F.2d 793, 796 (3d Cir. 1982) (“[T]he Supreme Court has made it clear that ‘[e]ntertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee.’” (quoting Schad v. Bor- ough of Mount Ephraim, 452 U.S. 61, 65 (1981)). 162 Miller v. Civil City of South Bend, 904 F.2d 1081, 1096 (7th Cir. 1990) (noting that “[t]he passage . . . from Schad cannot have been meant literally”).

1156 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 bling and recreational athletics, would remain outside the First Amendment guarantee. Strictly speaking, therefore, Justice White’s claim would still not be true—that is, if we define entertainment broadly, to include all activities designed to provide participants amusement and pleasure, rather than more narrowly, to refer only to “amusement or diversion provided especially by performers” (as Mer- riam-Webster, for example, defines the term).163 Nonetheless, the distinction between audience-directed and other forms of entertainment is, unlike the current distinction between athletic and artistic kinds of audience-directed entertainment acts, a justified one, well-grounded in the First Amendment’s traditional priori- ties and concerns, specifically its core concern with speech about matters of “public concern.”164 While gambling and mountain-biking are activities that take place in public, they are not activities that address themselves to a public audience. They do not, as a result, implicate the same First Amendment values as do audience-oriented performances like plays, books, and, of course, spectator sports—all of which, by addressing a public audience, function to communicate and express matters of public concern. Extending protection to spectator sports would therefore replace what I have suggested is ultimately an arbitrary distinction between different kinds of audience-oriented expressive acts (namely, artistic versus athletic performances) with a distinction that instead recognizes the different kinds of social relationships and constitutional interests involved in practices that address a public audience, and therefore have the power to broadly impact public attitudes and beliefs, and those that do not. Extending protection to all forms of audience-oriented entertainment would also finally expunge from the doctrine the troubling distinction between “entertainment” and “information” that the Court rejected as a plausible basis for distinguishing between protected and unprotected speech over sixty years ago and yet which courts continue to invoke to justify their conclusions

163 Entertainment Definition, MERRIAM-WEBSTER ONLINE DICTIONARY, http://www.merriam/webster.com/dictionary/entertainment (last visited Feb. 28, 2014). 164 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–59 (1985) (“We have long recognized that not all speech is of equal First Amendment importance. It is speech on ‘matters of public concern’ that is ‘at the heart of the First Amendment’s protection.’”) (quoting First Na’l Bank of Bos. v. Bellotti, 435 U.S. 765, 776 (1978)). See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (stating that speech on public issues occupies the “highest rung of the hierarchy of First Amendment values”); Garri- son v. Louisiana, 379 U.S. 64, 74–75 (1964) (“[Speech] concerning public affairs is more than self-expression; it is the essence of self-government.”).

Apr. 2014] SPORT AS SPEECH 1157 that spectator sports do not constitute a form of expression worthy of First Amendment protection.165 In addition to the clarity it would help bring to the case law governing entertainment, recognizing spectator sports as an expressive activity would clarify the doctrine in another way: by avoiding what we might call the “media fetishism” that currently besets the sports cases. As is true in other domains of the First Amendment, the sports case law treats live performance very differently than it treats the same performance when filmed or broadcasted.166 Under the precedents discussed in Part I, live athletic performance gets effectively no protection. Yet, courts generally agree that the broadcast of a sporting event is a fully protected expressive act.167 From either an audience-centric or a speaker-centric view of the First Amendment, however, there is little justification for treating the act of turning on the video camera as a constitutionally significant event when what is being filmed is itself an audience-oriented performance like a sports game. In other contexts, of course—where what is recorded is not something that was intended or performed in order to be seen—the act is constitutionally significant because what it does, in effect, is transform a non-audience-directed act (the display of the northern lights, for example)168 into something that is addressed to an audience. This is not true, however, of the act of videotaping a football game because, in that case, an audience already exists. As a result, the act of videotaping a football game may enable more people to watch the game, thereby extending the size and scope of its audience, but it does not transform the game into something that is directed at a public audience.

165 Supra note 36–36, and accompanying notes. 166 For an argument about the unjustifiable distinction the First Amendment case law makes with respect to live and mediated performance, see Amy Adler, Performance Anxiety: Medu- sa, Sex and the First Amendment, 21 YALE J.L. & HUMAN. 227, 235 (2009) (pointing out that, under current precedents, “sexual behavior caught on film has more speech protection than when it is live”). 167 United States Satellite Broad. Co., Inc. v. Lynch, 41 F. Supp. 2d 1113, 1121 (E.D. Cal. 1999) (holding that sports broadcasters are entitled to First Amendment protection and that the argument “that telecasts of boxing do not enjoy First Amendment protection because boxing is somehow ‘less valuable’ than other subjects, runs contrary to every principle of the Free Speech Clause itself”); TVKO v. Howland, 15 OTR 335 (Or. T.C. 2001) (striking down a state tax law imposed solely on broadcasters of boxing matches on First Amendment grounds). 168 See Miller v. Civil City of S. Bend, 904 F.2d 1081, 1096 (7th Cir. 1990) (Posner, J., concurring) (stating that although a “display of northern lights [may be] entertaining[,] this would not make that display an expressive activity” directed to an audience).

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Courts provide no justification for the distinction that the case law draws between live and broadcast sport. Nor does the commentary.169 An obvious explanation for the different treatment of live and mediated expression might be the special solicitude due to the press under the Press Clause of the First Amendment. Yet courts do not tend to invoke the Press Clause in these decisions; and most observers suggest it to be a largely dormant source of constitutional protection.170 In fact, what courts’ solicitude to the broadcasting of sports may reflect is their recognition that at least the act of watching sports is a constitutionally significant activity. But, if this is the case, why does First Amendment protection extend only to those who watch sports on television, rather than in person? Extending free speech protection to spectator sports would therefore get rid of another doctrinal distinction—in this case, the distinction between live and mediatized representations of sports—that currently complicates the case law without appearing to further any of the purposes of the First Amendment. It would ensure that it is not only the expressive interests of those who broadcast sports or watch sports on television that receive constitutional protection, but also the expressive interests of those who play and promote sports, and those who watch sports in person as well. More broadly, it would ensure that First Amendment doctrine recognizes the expressive significance of spectator sports as performance, no matter the form in which it is performed or received. If the act of watching sport on television is constitutionally protected, the act of watching sport in the stadium, and of playing it, should be as well. To do otherwise is to ignore all the expressive interests, other than those of the broadcasters, involved in the performance of a game of spectator sports.

CONCLUSION Sports sociologists frequently complain about the lack of interest that social scientists have historically demonstrated in the topic of

169 In fact, the only commentary I have been able to find that examines this question is a student note. See Joshua A. Stein, Note, Hitting Below the Belt: Florida’s Taxation of Pay-Per-View Boxing Programming is a Content-Based Violation of the First Amendment, 14 J.L. & POL’Y 999, 1002 (2006) (arguing that boxing deserves First Amendment protection). 170 See, e.g., David A. Anderson, Freedom of the Press, 80 TEX. L. REV. 429, 430 (2002) (“[A]s a matter of positive law, the Press Clause actually plays a rather minor role in protecting the freedom of the press.”); C. Edwin Baker, The Independent Significance of the Press Clause Un- der Existing Law, 35 HOFSTRA L. REV. 955, 956 (2007) (“[T]he Court has never explicitly recognized that the Press Clause involves any significant content different from that provided to all individuals by the prohibition on abridging freedom of speech.”).

Apr. 2014] SPORT AS SPEECH 1159 sport. Indeed, for many decades, the study of sport was a topic of only marginal interest in the social sciences. As the sociologist Pierre Bourdieu noted in 1988, the sociology of sport faced “special difficulties . . . scorned by sociologists, it is despised by sportspersons.”171 Sport appeared too inconsequential an activity to warrant serious study; something that was too divorced from the concerns of the everyday social world to matter. Indeed, sport comprises part of a broader category of human activities that philosophers call generally “play,” and that is defined by its separation from the everyday social world.172 It is this, perhaps, that has led to the widespread perception—a perception that courts clearly share—that sport is a merely “trivial” activity, entertaining, perhaps, but unimportant.173 And yet, as the extensive body of social scientific research that has emerged over the two and a half decades since Bourdieu lamented the plight of the sport sociologist demonstrates, it is in fact because of its divorce from the everyday social world that sports provides such a powerful vehicle for the expression of social ideals and values. By in- sulating participants from the complexity and inequality characteristic of the everyday social world, sports games provide an environment in which what athletes demonstrate, and what audiences watch, is the concentrated performance of individual skill, as revealed through the competitive struggle to win. What this allows, in turn, is the expression, in a particularly powerful form, of messages about individual virtue, beauty, identity, and political community. Social scientists’ recognition of the cultural and political significance of spectator sports has led, over the past two decades, to an ex- plosion of research and writing devoted to the analysis of the practice and the significance of sports in contemporary public culture.174 There has not, however, been a similar reconceptualization of the value of sport in the First Amendment case law. This Article has argued that, for some of the same reasons that led the Court recently to

171 Pierre Bourdieu, Program for a Sociology of Sport, 5 SOC. SPORT J. 153, 153 (1988). 172 The most famous definition of the category is that provided by Johan Huizinga in Homo Ludens. Huizinga defines play as: “a ‘free activity standing quite consciously outside ‘ordinary life’ . . . It is an activity connected with no material interest, and no profit can be gained by it. It proceeds within its own proper boundaries of time and space according to fixed rules and in an orderly manner.’” JOHAN HUIZINGA, HOMO LUDENS 13 (1955). 173 See, e.g., Early, supra note 135, at 2–3 (“They thought sport was a trivial subject and not worthy of scholarly attention. Many dismissed sport as a passive amusement or entertainment, which precluded its having any intellectual content.”). 174 For a good overview of only some of the recent scholarship on the topic, see Robert E. Washington & David Karen, Sport and Society, 27 ANN. REV. SOC. 187,(2001); Niko Besnier & Susan Brownell, Sport, Modernity, and the Body, 41 ANN. REV. ANTHROPOL. 443 (2012).

1160 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:4 recognize video games as speech, spectator sports should also be recognized as expressive acts, and those who play in them, fund them or promote them as entitled to First Amendment protection for their participation in the act. Indeed, to a more profound degree than video games, spectator sports provide a powerful venue for the articulation, negotiation, and contestation of our popular attitudes and beliefs, including our attitudes and beliefs about that most central of American preoccupations—competition itself.175 Given the centrality of sport to American public culture, and the centrality of the idea of competition to American culture and ideolo- gy, the dismissal and general neglect of the question of the First Amendment status of sport is both unfortunate and unnecessary. It is certainly not required by the doctrinal rules that today set the boundaries of the First Amendment. Instead, as this Article has argued, denying First Amendment protection to spectator sports only distorts the doctrine, by maintaining in it distinctions—between information and entertainment, between athletic and artistic expression, and between live and mediated representations of sports—that have either been expressly rejected by the Supreme Court as a legitimate basis on which to distinguish between protect and unprotected speech or simply do not promote any of the purposes that the First Amendment is intended to advance. It is widely recognized that America is a “sports-crazy” country. It is time for First Amendment doctrine to also recognize the expressive significance of spectator sports.

175 As Gerald Early has argued, “[s]port is how human beings perform the art and craft of competition. . . . Trying to understand what sport is about is trying to understand what winning and losing are all about.” Early, supra note 135, at 5.

Tab 3 – PowerPoint

Hispanic National Bar Association

The Global Impact of Sports And The Roles Lawyers Play

2017 Corporate Counsel Conference Miami, Florida

Christina G. Sarchio "Ten million never heard of Keats, or Shelley, Burns or Poe; or Shelley, heard of Keats, never "Ten million They never heard of Shakespeare, nor of Dickens, like as not,

But they know `the air was shattered by the force of Casey's blow'; But they know the somber drama from old Mudville's haunted lot. Justice Blackmun quotes 1926 poem from the New York Herald Tribune York Justice Blackmun quotes 1926 poem from the New Flood v. Kuhn (1972) Flood v. • Panelists

• David Foster, National Basketball Players Association

• Michele Lee, Twitter

• DeMaurice Smith, National Football Players Association Global Impact of Sports

• The global popularity of athletes • Do professional athletes enjoy freedom of speech? • Do college athletes shed their constitutional rights at the stadium gate? • How do international athletes protect their intellectual property globally? • What are the immigration issues that stem from international athletes? The Global Popularity of Athletes

e255cdcf Forbes: Highest Paid Athletes 2016 Global Fanbase

• The number of fans engaging with the NBA on Facebook rose from 14.5m to 27.4m between September 2012 and September 2015, with the NBA’s Twitter following increasing from 6m to 17m during the same period.

• The American Football League of China includes about 1,000 players on 16 teams throughout China, the most significant football league in a country that now counts about 5,000 men and women playing some level of tackle football. Professional Athletes and Freedom of Speech

e255cdcf 1968 Summer Olympics 2015: Taking A Knee During US National Anthem No Enforcement Actions for Expression of Speech On Racism Tweets Gone Bad Tinker Disruption Standard

• In Tinker v. Des Moines Independent Community School Dist. (1969), the Court determined that public school officials in Iowa violated the free- speech rights of several students when they punished them for wearing black anti-war armbands. According to the court record, the armbands caused minimal disruption.

• Did the speech or expression of the student “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school?" November 2015: Univ. of Missouri football team refused to participate in any practice or game until president was removed The Global Impact of Sports on Intellectual Property

e255cdcf Right of Publicity in the US

• Prohibits the knowing use of “another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent.”

• Statutory and common law, no federal right of publicity law

• Professional vs. amateur athletes Right of Publicity Overseas

• Trademark rights of signature or photo • “Personality” rights • Other common law The Global Impact of Sports on Immigration Issues

e255cdcf References

• Akers, Matthew, “A RACE TO THE BOTTOM? INTERNATIONAL INCOME TAX REGIMES' IMPACT ON THE MOVEMENT OF ATHLETIC TALENT,” 17 U. Denv. Sports & Ent. Law J. 11 (Spring 2015) • Lakier, Genevieve, “Sport as Speech” University of Chicago (2014) • Ottenson, Emily, “The Social Cost of Baseball,” 13 Wash. U. Global Stud. L. Rev. 767 (2014) • Torres, Eliana, “The Celebrity Behind the Brad International Protection of the Right of Publicity,” Pace Intellectual Property, Sports & Entertainment Law Forum (Spring 2016) • Umar, Tehrim, “Total Eclipse of the Tweet,” 22 Jeffrey S. Moorad Sports L.J. 311 (2015)

Tab 4 – Attendee Takeaway

Hispanic National Bar Association The Global Impact of Sports And The Roles Lawyers Play 2017 Corporate Counsel Conference Miami, Florida

I. Introduction a. Overview of Presentation b. Panelists i. David Foster, National Basketball Players Association ii. Michele Lee, Twitter iii. DeMaurice Smith, National Football Players Association

II. The Global Popularity of Athletes a. Top ten athletes receive endorsements from worldwide corporations b. Fan base has grown through social media c. The global power that athletes can wield

III. The Global Impact of Athletes Expression of Speech a. The legal restrictions on an athlete’s expression of speech b. When those legal restrictions are enforced and when not c. Political speech vs. hate speech

IV. The Global Impact of Sports on Intellectual Property a. Right of Publicity in the US b. Right of Publicity Abroad

V. The Global Impact of Sports on Immigration Issues a. Recruitment of athletes b. Taxing non-citizens