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Full Version Volume 11, Number 2 Spring 2020 Contents ARTICLES Reexploring the Esports Approach of America’s Three Major Leagues Peter A. Carfagna.................................................. 115 The NCAA’s Agent Certification Program: A Critical and Legal Analysis Marc Edelman & Richard Karcher ..................................... 155 Well-Intentioned but Counterproductive: An Analysis of the NFLPA’s Financial Advisor Registration Program Ross N. Evans ..................................................... 183 A Win Win: College Athletes Get Paid for Their Names, Images, and Likenesses, and Colleges Maintain the Primacy of Academics Jayma Meyer and Andrew Zimbalist ................................... 247 Harvard Journal of Sports & Entertainment Law Student Journals Office, Harvard Law School 1585 Massachusetts Avenue, Suite 3039 Cambridge, MA 02138 (617) 495-3146; [email protected] www.harvardjsel.com U.S. ISSN 2153-1323 The Harvard Journal of Sports & Entertainment Law is published semiannually by Harvard Law School students. Submissions: The Harvard Journal of Sports and Entertainment Law welcomes articles from professors, practitioners, and students of the sports and entertainment industries, as well as other related disciplines. Submissions should not exceed 25,000 words, including footnotes. All manuscripts should be submitted in English with both text and footnotes typed and double-spaced. Footnotes must conform with The Bluebook: A Uniform System of Citation (20th ed.), and authors should be prepared to supply any cited sources upon request. All manu- scripts submitted become the property of the JSEL and will not be returned to the author. The JSEL strongly prefers electronic submissions through the ExpressO online submission system at http://www.law.bepress.com/expresso or the Scholastica online submission system at https://harvard-journal-sports-ent-law.scholasticahq.com. Submissions may also be sent via email to [email protected] or in hard copy to the address above. In addition to the manuscript, authors must include an abstract of not more than 250 words, as well as a cover letter and resume or CV. Authors also must ensure that their submissions include a direct e- mail address and phone number at which they can be reached throughout the review period. Permission to Copy: The articles in this issue may be reproduced and distributed, in whole or in part, by nonprofit institutions for educational purposes including distribution to stu- dents, provided that the copies are distributed at or below cost and identify the author, the Harvard Journal of Sports & Entertainment Law, the volume, the number of the first page, and the year of the article’s publication. Volume 11 of the Harvard Journal of Sports and Entertainment Law is generously sponsored by: Premium Partners General Partners Limited Partners Volume 11, Number 2 Spring 2020 EDITORIAL BOARD Editors in Chief Sarah Edwards Ross Evans Managing Editors Ashley Park Nicholas Urban Executive Editor, Executive Editor, Executive Editor, Submissions Production Operations Lolita de Palma Sameer Aggarwal Will Lindsey Head of Online Strategy & Executive Editor, Online Executive Editor, Online Sports Operations Entertainment Content Content Adele Zhang Jenna El-Fakih Daniel Alford Submissions Chair Senior Article Editors Dixie Morrison Ryan Gribbin-Burket Matthew Shields Tianyi Tan Online Content Chair, Online Content Chair, Sports Events Chair Entertainment Madison Martin LJ Sanchez Katherine Khazal Submissions Committee Sarah Alawi Maggie Goff Rachel McKenzie Travis Arbon Jack Goldbrenner Maria Mortenson Jack Becker Ryan Gribbin-Burket Eli Nachmany Camille Edwards Allanah Irwin Ali Nayfeh John Ellis Jack Jacobson John Riggs Kimberly Everett Mina Kim Jackie Salwa Jason Fitzgerald Jonathan Kuang Erin Savoie Aaron Fogelson Joseph Marcus Matt Shields Will Walker Editors Travis Arbon Genie Gorbonosov Eli Nachmany Jacob Arkatov Becky Hval Ali Nayfeh Alex Blutman Larson Ishii Griffin Romney Logan Duffy Jack Jacobson Erin Savoie John Ellis Mina Kim Jackie Salwa Kimberly Everett Jonathan Kuang Adam Sharf Jason Fitzgerald Martin Lazzaro Will Walker Aaron Fogelson Kendall Maxwell Chris Zheng Online Content Contributors Alex Butman Aaron Fogelson Eli Nachmany Jason Fitzgerald Larson Ishii Ali Nayfeh Matt Shields Copyright © 2020 by the President and Fellows of Harvard College. Dear Readers, I am Professor Peter Carfagna ’79, the Harvard Law School Faculty Advisor to the Harvard Journal of Sports and Entertainment Law (JSEL). JSEL had another tremendous year, and I am incredibly proud to write the preface to Volume 11. In the Fall Issue, JSEL published four excellent articles. • Professors Roger Blair and Wenche Wang’s article, The NCAA’s Transfer Rules: An Antitrust Analysis argues that the Seventh Circuit erred in its Deppe v. NCAA decision in 2018. Indeed, the authors assert that the NCAA’s transfer rules and non-solicitation rules are both anticompetitive and that neither would survive a rule of reason analysis. • Professor Roberto Corrada’s article, The Northwestern University Football Case: A Dissent critiques the NLRB’s decision in the well-known Northwestern University v. College Athletes Players Association case, which stemmed from the Wildcat players’ unionization attempt. • Transfixed in the Camera’s Gaze: Foster v. Svenson and the Battle of Privacy and Modern Art, written by Michael Goodyear, explores the conflict between First Amendment expression and privacy rights, ultimately arguing that New York law should allow for unjust enrichment claims to better balance these interests. • And finally, You Can Bet On It: The Legal Evolution of Sports Betting— winner of the 2019 Paul C. Weiler Writing Prize at Harvard Law and written by Kendall Howell ’19—rounded out our Fall Issue. Howell’s article explores gambling policies in professional sports, analyzes the Bradley Act and the Supreme Court’s Murphy v. NCAA decision on its constitutionality, and offers policy recommendations for the sports- betting industry. In the Spring Issue, JSEL published four more articles, the first of which I am honored to have written: • In Reexploring the Esports Approach of America’s Three Major Leagues, I survey the respective esports strategies of MLB, the NBA, and the NFL. I then use the NBA 2K League as an example to detail a number of legal issues facing esports leagues today. • In The NCAA’s Agent Certification Program: A Critical and Legal Analysis, Professors Marc Edelman and Richard Karcher offer the first critical and legal analysis of the NCAA’s newly launched agent certification program. The authors contend that this new initiative runs afoul of fundamental laws and policies, including § 1 of the Sherman Antitrust Act. • Next, Well-Intentioned but Counterproductive: An Analysis of the NFLPA’s Financial Advisor Registration Program—winner of the 2020 Paul C. Weiler Writing Prize at Harvard Law and written by JSEL Editor-in- Chief Ross Evans ’20—argues that the NFLPA’s unique attempt to regulate players’ financial advisors has done more harm than good. • Finally, Jayma Meyer and Professor Andrew Zimbalist’s article, A Win Win: College Athletes Get Paid for Their Names, Images, and Likenesses and Colleges Maintain the Primacy of Academics articulates specific policy proposals—including an antitrust exemption—to enable college athletes to benefit from their NIL rights. Moreover, the JSEL Online team worked throughout the academic year to publish a number of highlights and short articles with updates on the latest legal news in sports and entertainment, covering topics such as the impact of COVID-19 on the NBA’s broadcasting deals, collective bargaining between the NFL and NFLPA, and Disney’s attempts to mitigate “Baby Yoda” copyright infringement among vendors on e-commerce websites like Etsy. I thank the students involved in JSEL, who worked tirelessly to ensure its success. Specifically, I would like to thank Sarah Edwards ’20 and Ross Evans ’20 for their dedication and excellence as Editors-in-Chief. I would also like to convey my thanks to other graduating members of JSEL’s Executive Board: Sameer Aggarawal ’20 (Executive Editor of Production), Lolita de Palma ’20 (Executive Editor of Submissions), Jenna El-Fakih ’20 (Executive Editor of Online Entertainment Content), Dan Alford ’20 (Executive Editor of Online Sports Content), and Adele Zhang ’20 (Head of Online Strategy & Operations). Finally, I would also like to welcome the incoming JSEL Masthead for Volume 12, including our new Editors-in- Chief Madison Martin and Will Lindsey. With another fantastic year in the books, I look forward to next year’s volume! —Peter A. Carfagna Exploring the Esports Approach of America’s Three Major Leagues Peter A. Carfagna* I. Introduction ....................................... 116 II. Comparative Esports Systems of America’s Three Major Leagues ...................................... 118 A. Major League Baseball .............................. 118 B. NFL and EA Sports’ Madden Championship Series ...... 121 C. NBA 2K League ................................... 125 1. League Structure .............................. 125 2. Gameplay .................................... 127 3. Competition and Playoff Structure .............. 128 4. Joining the League ............................ 129 5. Compensation ................................ 130 III. Legal Evolution of the NBA 2K League ............. 134 * Visiting Professor, Harvard Law School teaching three Sports Law courses since 2006, each of which has
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