Volume 12, Number 1 Winter 2021 Contents ARTICLES a Proposal For
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Volume 12, Number 1 Winter 2021 Contents ARTICLES A Proposal for Group Licensing of College Athlete NILs Jeffrey F. Brown, James Bo Pearl, Jeremy Salinger, and Annie Alvarado ...... 1 One, Two, Sort the Shoe; Three, Four, Win Some More: The Rhyme and Reason of Phil Ivey’s Advantage Play at the Borgata Nanci K. Carr .................................................... 37 Improving the Game: The Football Players Health Study at Harvard University and the 2020 NFL-NFLPA Collective Bargaining Agreement Christopher R. Deubert and Aaron Caputo .............................. 73 Building a Better Mousetrap: Blocking Disney’s Imperial Copyright Strategies Stacey M. Lantagne................................................. 141 Third-Party Payments: A Reasonable Solution to the Legal Quandary Surrounding Paying College Athletes Ray Yasser and Carter Fox .......................................... 175 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. 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Volume 12 of the Harvard Journal of Sports and Entertainment Law is generously spon- sored by: Premium Partners General Partners Volume 12, Number 1 Winter 2021 EDITORIAL BOARD Editors in Chief Madison Martin Will Lindsey Senior Managing Editors Ryan Gribbin-Burket Managing Editor - Print Managing Editor – Online Eli Nachmany Alex Blutman Executive Editor, Executive Editor, Executive Editor, Submissions Production Online Content Dixie Morrison Erin Savoie Larson Ishii Senior Articles Editors Logan Duffy Marc Francis Becky Hval Kit Metoyer Cara Mund Chris Zheng Submissions Chair Online Content Chairs John Ellis Buddy Bardenwerper Marvellous Iheukwumere Ali Nayfeh Will Walker Submissions Committee Ethan Borrasso Elizabeth Duncan Zachary Tauscher Editors Alexander Amir Amanda Bello Jhanelle Bisasor Ethan Borrasso Elana Confino-Pinzon David Dapaah-Afriyie Robb Dehney Brian Dezurick Elizabeth Duncan Sebastian Edin Kimberly Everett Ethan Harper Landon Harris Randon Herrera Jordan Hittesdorf Mina Kim Jiha Min Harley Moyer Max Novak Connor Oniki Niko Paladino Tim Pierret Anastasia Pyrinis Alexander Rabinowitz Andrew Rodriguez Emma Scott John Sedarous Lauren Spiwak Zach Tascher Online Content Contributors Christine Abely Alex Blutman Dallin Earl Marvellous Iheukwumere Eli Nachmany Ali Nayfeh Connor Oniki Ben Ramsey Hayes Rule Loren Shokes Will Walker Copyright © 2021 by the President and Fellows of Harvard College. A Proposal for Group Licensing of College Athlete NILs Jeffrey F. Brown1 James Bo Pearl2 Jeremy Salinger3 Annie Alvarado4 January 10, 2021 Abstract Recent litigation has clarified rules governing the right to publicity and in some cases has expanded opportunities for NCAA college athletes to commercialize their NILs. Those opportunities will likely increase as state and federal legislation allows compensation for NIL-related activities. Draw- ing from the experience of patent pools and performing rights organizations, this article discusses the economic efficiencies of group licensing and ad- vances a proposal for future licensing of college athlete NILs. A group li- censing entity for NILs would serve the dual purposes of enabling college athlete compensation for NIL-related activities while complying with NCAA rules related to competition in college athletics. The NIL licensing 1 Jeffrey Brown is a partner at Bates White Economic Consulting. He provides expert testimony and economic analysis of antitrust and IP issues in industries such as sports, entertainment, cellular communications and wireless technology. [email protected] 2 Bo Pearl is a litigation partner at Paul Hastings, LLP and practices in the sports, entertainment, and media industries. [email protected] 3 Jeremy Salinger is a litigation associate at Paul Hastings, LLP; his practice focuses on commercial litigation, internal corporate investigations, and white collar criminal defense. [email protected] 4 Annie Alvarado was the captain of the UCLA Women’s Soccer Team, won a national championship in 2013, and is a rising third year law student at UCLA School of Law. [email protected] 2 Harvard Journal of Sports & Entertainment Law / Vol. 12 entity would be created by Congress as a non-profit, quasi-governmental membership organization operating on behalf of college athletes and per- form many pro-competitive functions. 2021 / A Proposal for Group Licensing of College Athlete NILs 3 Table of Contents I. INTRODUCTION.................................... 4 II. EXECUTIVE SUMMARY ............................. 6 III. RELEVANT LITIGATION AND LEGISLATION ........ 8 A. O’Bannon, Keller and the Modern Birth of College Athlete NIL Rights ....................................... 8 B. Unionization and Employee Status..................... 10 C. Alston v. NCAA and Direct Consideration of “Pay for Play” ............................................ 11 D. State and Federal Legislation ......................... 12 IV. ECONOMIC EFFICIENCIES OF GROUP LICENSING . 14 A. Group Patent Licensing – Patent Pools ................. 16 B. Group Copyright Licensing – Performing Rights Organizations ...................................... 19 V. CHARACTERISTICS OF A GROUP LICENSING ENTITY FOR COLLEGE ATHLETE NILS ....................... 27 A. Legal Structure and Safeguards ....................... 27 B. Licensing and Royalty Administration ................. 31 C. Compliance and Dispute Resolution .................... 32 D. Information Collection and Reporting .................. 34 VI. CONCLUSION ....................................... 34 4 Harvard Journal of Sports & Entertainment Law / Vol. 12 I. INTRODUCTION Staring down the barrel of a mostly canceled football season, colleges faced an apocalyptic threat to their athletic programs. Even prior to the cancellation of the Big Ten football season, legendary University of Wiscon- sin Badger football coach Barry Alvarez estimated a loss of $60-$70 million would accrue if football was played with no fans.5 The losses could have surpassed $100 million if the games were canceled in their entirety. It is not hyperbolic to predict many collegiate sports are in danger of cancellation with the loss of any significant portion of football revenue, the oxygen that powers major athletic programs. Colleges will need to make devastating cuts under even the best-case scenario. The National Collegiate Athletic Associa- tion (NCAA) at the same time remains mired in a long and, many would say, damaging legal battle over the rights of college athletes to exploit and profit from their names, images, and likenesses (NIL). State legislatures and Congress are busy trying to find ways to solve the long-running dispute by mandating often conflicting mechanisms for ath- letes to be compensated while maintaining their NCAA amateur status. The NCAA has offered preliminary recommendations attempting to draw boundaries around the newly formed NIL playing field. Under these recom- mendations, however, hundreds of millions of dollars of revenue – which could go to athletes and to colleges facing financial ruin in their athletic departments – will go unearned. Acknowledging that Congress will likely be the final arbiter of conflicting state laws and NCAA guidelines, this arti- cle proposes a federally established framework wherein the NCAA could earn substantially more revenue in a dire economic crisis, athletes could earn increased funds from commercializing their NILs, and consumers could ob- tain the products they want (such as NCAA video games and jerseys of their favorite college players). The NCAA reacted to the changing legal environment with a series of proposals regarding the commercial use of college athlete NILs. In April 2020 it released the final report of its working group