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Volume 3, Number 1 Winter 2012 Contents ARTICLES a Short \\jciprod01\productn\H\hls\3-1\toc301.txt unknown Seq: 1 9-MAR-12 10:07 Volume 3, Number 1 Winter 2012 Contents ARTICLES A Short Treatise on Fantasy Sports and the Law: How America Regulates its New National Pastime Marc Edelman ..................................................... 1 Copyright Termination and Loan-Out Corporations: Reconciling Practice and Policy Aaron J. Moss and Kenneth Basin ..................................... 55 How the Expressive Power of Title IX Dilutes Its Promise Dionne L. Koller ................................................... 103 Transitioning to the NBA: Advocating on Behalf of Student-Athletes for NBA & NCAA Rule Changes Warren K. Zola ................................................... 159 NOTE The Prospects for Protecting News Content Under the Digital Millennium Copyright Act Priya Barnes ...................................................... 201 \\jciprod01\productn\H\hls\3-1\ms301.txt unknown Seq: 2 9-MAR-12 10:07 Harvard Journal of Sports & Entertainment Law Student Journals Office, Harvard Law School 1541 Massachusetts Avenue Cambridge, MA 02138 (617) 495-3146; [email protected] www.harvardjsel.com U.S. ISSN 2153-1323 The Harvard Journal of Sports & Entertainment Law is published semiannually by Harvard Law School students. Submissions: The Harvard Journal of Sports and Entertainment Law welcomes articles from professors, practitioners, and students of the sports and entertainment industries, as well as other related disciplines. Submissions should not exceed 25,000 words, including footnotes. All manuscripts should be submitted in English with both text and footnotes typed and double-spaced. Footnotes must conform with The Bluebook: A Uniform System of Citation (18th ed.), and authors should be prepared to supply any cited sources upon request. All manuscripts 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. Submis- sions 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 distribu- tion to students, 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. \\jciprod01\productn\H\hls\3-1\ms301.txt unknown Seq: 3 9-MAR-12 10:07 \\jciprod01\productn\H\hls\3-1\boe301.txt unknown Seq: 4 9-MAR-12 10:07 Volume 3, Number 1 Winter 2012 EDITORIAL BOARD Editor in Chief Dave Zucker Executive Editor Executive Editor Executive Editor Trisha Ananiades Jeffrey M. Monhait Miles C. Wiley Online Editors Technical Chairs Symposium Chair Timothy Lamoureux Cynthia Chen Katie Weiss Austin Stack Brandon Hammer Submissions Committee Cynthia Chen Joseph Labaw Annie Smith Adam Derry Judy Lai Austin Stack Jenna Hayes Hunter Landerholm Katie Weiss Shafiq Poonja Article Editors Victoria Blohm Eugene Karlik Michael Lieberman Jenna Hayes Hunter Landerholm Katie Weiss Line Editors Adam Derry Shafiq Poonja Annie Smith Abraham Funk Daniel Sinnreich Austin Stack Michael McCauley Paul J. Sullivan Editors Yacoba Annobil Sabreena El-Amin Rachael Moss Lou Argentieri Bukola Eleso Michael Robertson John Avila Erica Esposito Liat Rome Peter Byrne Brad Hinshelwood Alex Rosen Shasky Clarke Meredith Karp Kimberly Solomon Christopher Davis Jesse King McClain Thompson Ty Davis Alana Kirkland Michael Waks Kelly Donnelly Meg Lenahan Daniel Waldman Mitchell Drucker Clint Morrison Christian Yost \\jciprod01\productn\H\HLS\3-1\HLS101.txt unknown Seq: 1 9-MAR-12 10:15 A Short Treatise on Fantasy Sports and the Law: How America Regulates its New National Pastime Marc Edelman1 TABLE OF CONTENTS I. INTRODUCTION ........................................ 3 R II. THE HISTORY OF FANTASY SPORTS LEAGUES ............... 4 R A. Before Fantasy Sports ............................... 4 R B. A New Game is Created ............................ 5 R C. The First Rotisserie League Baseball Auction ............ 7 R D. Rotisserie Baseball Grows in Popularity ................ 8 R E. The Internet Boom .................................. 9 R III. THE FANTASY SPORTS INDUSTRY TODAY ................. 11 R 1 Marc Edelman is a member of the faculty at Barry University’s Dwayne O. Andreas School of Law in Orlando, FL and a summer adjunct professor at Fordham University School of Law in New York, NY ([email protected]). Professor Edelman earned his B.S. in economics from the Wharton School (University of Pennsylvania) and both his J.D. and M.A. from the University of Michigan. While a law student at the University of Michigan, Professor Edelman founded the fantasy sports dispute resolution business, SportsJudge.com. In addition, Professor Edelman has served as a legal consultant to various fantasy sports businesses. Professor Edelman wishes to thank Amit Schlesinger, Erica Cohen, Kristen Chiger and Raleigh Webber for their research assistance. He also wishes to thank his wife, Rachel Leeds Edelman, for her assistance in developing the concept for a course in Fantasy Sports & the Law, and the students in his 2011 seminar on Fantasy Sports & the Law for providing their insights on fantasy sports gaming. Professor Edelman retains full copyright to this article and has agreed to provide the Harvard Journal of Sports and Entertainment Law with an irrevocable license to publish this work. Copyright 2011 by the President and Fellows of Harvard College. \\jciprod01\productn\H\HLS\3-1\HLS101.txt unknown Seq: 2 9-MAR-12 10:15 2 Harvard Journal of Sports & Entertainment Law / Vol. 3 A. Different Types of Fantasy Games ..................... 11 R 1. Different Fantasy Sports ....................... 12 R 2. Different Ways to Initially Allocate Players ..... 13 R 3. Different Season Lengths ...................... 15 R B. The Stakeholders ................................... 16 R 1. Participants .................................. 16 R 2. Host Sites .................................... 19 R 3. Commissioners................................ 21 R 4. Treasurers .................................... 22 R 5. Strategic Advisors ............................. 24 R 6. Insurers ...................................... 25 R IV. LEGAL RISKS FOR FANTASY SPORTS HOST SITES ............ 25 R A. State Gambling Law................................ 26 R 1. Is Fantasy Sports Illegal Gambling under State Law?......................................... 26 R 2. Is Fantasy Sports Illegal Gambling? (Majority View) ........................................ 29 R 3. Stricter Views Toward Fantasy Sports ........... 30 R 4. Montana’s Alternative Test of Fantasy Sports .... 33 R B. Federal Gambling Law.............................. 34 R 1. Interstate Wire Act of 1961 ................... 34 R 2. Illegal Gambling Business Act ................. 35 R 3. Professional and Amateur Sports Protection Act . 36 R 4. Uniform Internet Gambling Act ............... 37 R C. Intellectual Property Laws ........................... 38 R 1. Patent Law ................................... 38 R 2. Copyright Law ............................... 39 R 3. Trademark Law ............................... 40 R 4. Right to Publicity ............................ 42 R V. LEGAL RISKS FOR FANTASY SPORTS PARTICIPANTS .......... 45 R A. Criminal Liability under Gambling Laws .............. 45 R B. Civil Liability for Gambling Activities ................ 46 R C. Violating Company Anti-Solicitation Policies ............ 46 R D. Bankruptcy ........................................ 47 R VI. LEGAL RISKS FOR ANCILLARY FANTASY SPORTS BUSINESSES ........................................... 48 R A. Fantasy Sports Treasury Sites ......................... 48 R B. Fantasy Sports Advisors ............................. 49 R C. Fantasy Sports Insurance ............................. 51 R D. Fantasy Sports Dispute Resolution ..................... 52 R VII. CONCLUSION .......................................... 52 R \\jciprod01\productn\H\HLS\3-1\HLS101.txt unknown Seq: 3 9-MAR-12 10:15 2012 / A Short Treatise on Fantasy Sports and the Law 3 I. INTRODUCTION America is in the midst of a “fantasy sports revolution” that is chang- ing the way sports fans interact with one another.2 With more than 30 million Americans playing fantasy sports,3 today’s sports fans spend as much time predicting the performance of professional athletes as Wall Street in- vestors spend predicting stocks and bonds.4 Some fantasy sports contests, such as the World Championship of Fan- tasy Football, charge participants entry fees in the thousands of dollars, and offer grand prizes upwards of $300,000.5 Meanwhile, other business ven- tures, such as Bloomberg Sports, sell fantasy participants “analytical tools” and “expert advice.”6 One insurance carrier, Fantasy Sports Insurance, has even begun to offer fantasy participants insurance policies against injury to their star fantasy players.7 Nevertheless, with the rapid and unexpected emergence of fantasy sports, few have devoted time to understanding
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