Journal of Business and Intellectual Property Law
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WAKE FOREST JOURNAL OF BUSINESS AND INTELLECTUAL PROPERTY LAW VOLUME 16 NUMBER 4 SUMMER 2016 WHEN PROFESSIONAL ATHLETES BEHAVE BADLY, WHO IS ON THEIR SIDE? Amanda Siegrist 481 CAUGHT IN THE WEB OF STARE DECISIS: WHY THE SUPREME COURT’S HOLDING IN KIMBLE V. MARVEL ENTERPRISES, INC., WAS WRONGLY DECIDED Molly McCartney 491 “FREE MY AGENT”: LEGAL IMPLICATIONS OF PROFESSIONAL ATHLETES’ SELF- REPRESENTATION Jodi S. Balsam 510 LEGALIZING AMERICA’S NEW PASTIME: TEAMING UP WITH THE HOUSE FOR PARI- MUTUEL SPORTS BETTING Sarah Remes 551 ABOUT THE JOURNAL The WAKE FOREST JOURNAL OF BUSINESS AND INTELLECTUAL PROPERTY LAW is a student organization sponsored by Wake Forest University School of Law dedicated to the examination of intellectual property in the legal context. Originally established as the Wake Forest Intellectual Property Law Journal in 2001, the new focus and form of the Journal, adopted in 2010, provides a forum for the exploration of business law and intellectual property issues generally, as well as the points of intersection between the two, primarily through the publication of legal scholarship. The Journal publishes four print issues annually. Additionally, the Journal sponsors an annual symposium dedicated to the implications of intellectual property law in a specific context. In 2009, the Journal launched an academic blog for the advancement of professional discourse on relevant issues, with content generated by both staff members and practitioners, which is open to comment from the legal community. The Journal’s student staff members are selected for membership based upon academic achievement, performance in an annual writing competition, or extensive experience in the field of intellectual property or business. The Journal invites the submission of legal scholarship in the form of articles, notes, comments, and empirical studies for publication in the Journal’s published print issues. Submissions are reviewed by the Manuscripts Editor, and decisions to extend offers of publication are made by the Board of Editors in conjunction with the Board of Advisors and the Faculty Advisors. The Board of Editors works closely and collaboratively with authors to prepare pieces for publication. Manuscript submissions should be accompanied by a cover letter and curriculum vitae, and may be sent electronically to [email protected] or by mail to: Manuscripts Editor Wake Forest Journal of Business and Intellectual Property Law Wake Forest University School of Law P.O. Box 7206 Reynolda Station Winston-Salem, North Carolina 27109 COPYRIGHT © 2015 WAKE FOREST JOURNAL OF BUSINESS AND INTELLECTUAL PROPERTY LAW ISSN 2164-6937 (Print) ISSN 2164-6945 (Online) BOARD OF ADVISORS DANNY M. AWDEH BARBARA LENTZ Finnegan Henderson Farabow Professor, Wake Forest Garrett & Dunner LLP University School of Law Washington, DC Winston-Salem, North Carolina CHARLES W. CALKINS JAMES L. LESTER Kilpatrick Townsend & Stockton MacCord Mason PLLC LLP Greensboro, North Carolina Winston-Salem, North Carolina JUSTIN R. NIFONG KENNETH P. CARLSON Olive Law Group Constangy, Brooks & Smith, LLP Cary, North Carolina Winston-Salem, North Carolina MICHAEL S. MIRELES TRIP COYNE Professor, University of the Williams Mullen Pacific, McGeorge School of Law Wilmington, North Carolina Sacramento, California RODRICK J. ENNS ALAN PALMITER Enns & Archer LLP Professor, Wake Forest Winston-Salem, North Carolina University School of Law Winston-Salem, North Carolina EDWARD R. ERGENZINGER, JR., PH.D. ABBY PERDUE Ward & Smith, P.A. Associate Professor, Wake Forest University School of Law Raleigh, North Carolina Winston-Salem, North Carolina JASON D. GARDNER Kilpatrick Townsend & Stockton COE W. RAMSEY LLP Brooks Pierce Atlanta, Georgia Raleigh, North Carolina STEVEN GARDNER T. ROBERT REHM, JR. Kilpatrick Townsend & Stockton, Smith, Anderson, Blount, LLP Dorsett, Mitchell, & Jernigan, Winston-Salem, North Carolina LLP ROB HUNTER Raleigh, North Carolina The Clearing House Payments SIMONE ROSE Company, LLC Professor, Wake Forest Winston-Salem, North Carolina University School of Law Winston-Salem, North Carolina Editor-in-Chief TIMOTHY M. MCLISTER Managing Editor ELI M. MARGER Marketing Editor Manuscripts Editor JOSEPH GREENER ANASTASIA E. FANNING Symposium Editor Executive Articles JAIME C. GARCIA Editors CAMERON J. BROWN Development Editor JANE C. GARRITY KATHERINE S. OTT COLIN T. KENNEDY Senior Notes and Comments Editor Articles Editors MAGGIE H. DICKENS BRITTANY P. COLTON Notes and Comments Editors SARAH A. GALLAS EMILY G. MORRIS KAYLA M. FREDERICKSON EMILY A. SINGER S. BLAYDES MOORE Editorial Staff ANDREW M. ADAMS CHRISTIAN C. DORISMOND ALEC C. ROBERSON ISSAC B. ALLMAN DANIEL P. GALYON ELIZABETH RUOCCO MITCHELL H. BLANKENSHIP CALEB J. HOLLOWAY RACHEL M. SHIELDS ALEXANDRA C. BRAVERMAN TYLER S. HOOD JONATHAN D. SILVER KEES C. BURNS AFZAL KARIM TALIS TREVINO BRANDY L. DAVIS JAMES C. WYATT Staff Members RYAN BOWERSOX THOMAS M. GAFFNEY NICOLE REGNA CHRIS CHOE LAUREN HENDERSON SARAH REMES AMANDA MICHELLE BRAHM MATTHEW KERSCHNER ZACHARY RHINES LAURA BROWDER LUKE E. KRAUS DIANNA SHINN JENNA B. COOGLE JAMES LATHROP MATTHEW W. SILVERSTEIN ETHAN CLARK AMELIA E. LOWE DANA SISK MARIA COLLINS DRAKE MASON DAVID A. SWENTON CANDICE A. DIAH MOLLY MCCARTNEY CARA VAN DORN KELLY DONIGAN RACHEL OPLINGER KAITLIN G. WESTBROOK LAUREN N. FREEDMAN MOLLY D. PEARCE SARAH WESLEY WHEATON Faculty Advisors BARBARA R. LENTZ ALAN R. PALMITER ABBY PERDUE SIMONE A. ROSE OMARI S. SIMMONS WAKE FOREST JOURNAL OF BUSINESS AND INTELLECTUAL PROPERTY LAW VOLUME 16 SUMMER 2016 NUMBER 4 WHEN PROFESSIONAL ATHELETES BEHAVE BADLY, WHO IS ON THEIR SIDE? Amanda Siegrist† I. INTRODUCTION ............................................................. 482 II. FIDUCIARY RESPONSIBILITY ...................................... 482 A. FIDUCIARY DUTY ...................................................... 483 1. NFL Player Contract ............................................... 484 2. Collective Bargaining Agreements.......................... 485 III. APPLICATION ............................................................. 486 A. APPEALING A PUNISHMENT ...................................... 487 B. ETHICS AND EXAMPLES ............................................ 487 IV. SUGGESTIONS AND SOLUTIONS ................................. 489 V. CONCLUSION ................................................................ 490 † Amanda has both a legal and sport management background, having earned her Juris Doctor from NKU Salmon P. Chase College of Law and has been admitted to the State Bar of Ohio. Amanda graduated summa cum laude with a 4.00 GPA from Wingate University. While maintaining responsibilities at KMG Sports as a contract attorney and agent, Amanda is an assistant professor of recreation and sport management at Coastal Carolina University, teaching courses in sport law at both the graduate and undergraduate level. 482 WAKE FOREST J. [VOL. 16 BUS. & INTELL. PROP. L. I. INTRODUCTION Misconduct by professional athletes has long been a contentious topic within the professional sports industry. 1 When an athlete is involved in personal misconduct or criminal activity, there is a fiduciary duty owed to the athlete by the athlete’s agent rooted in contract law.2 Additionally, ethical considerations arise for both the athlete and the agent in regards to the misbehavior and the effect it could have on image, reputation, and even pay. 3 The collective bargaining agreements (CBA) that govern the athletes’ expectations within their respective organization, along with standard representation agreements (SRA) between the player and agent, set a process for handling misbehavior by the athlete. II. FIDUCIARY RESPONSIBILITY To officially sign a professional athlete as a client, specifically within the NFL or NBA, a player and agent must sign a SRA and file it with the respective league’s Player’s Association.4 The language in these SRA’s is uniform across the league and is required of every player and agent relationship.5 Based on the language in these SRA’s, when an agent signs an athlete, he or she is assuming a contractual fiduciary responsibility to that athlete.6 A fiduciary duty is a legal duty to act solely in another party’s interests.7 It is not uncommon for an athlete to break a league or team rule, violate a contractual obligation, or misbehave off the field or court, resulting in fines or suspensions from the league. These missteps could range from a violation of a league uniform rule or an excessive touchdown celebration, all the way to criminal behavior. Regardless of the offense, an agent has taken on the duty of 1 See Arkady Bukh, Top Professional Athletes Gone Bad, HUFFINGTON POST (Feb. 17, 2015, 12:52 PM), http://www.huffingtonpost.com/arkady-bukh/top- professional-athletes_b_6694184.html. 2 RESTATEMENT (THIRD) OF AGENCY, § 1.01 (2006). 3 See, e.g., Bukh, supra note 1. 4 See generally 2011 NBA Collective Bargaining Agreement, NAT’L BASKETBALL PLAYERS ASS’N (Dec. 2011), http://nbpa.com/cba/ [hereinafter NBA CBA]; 2011 NFL Collective Bargaining Agreement, NAT’L FOOTBALL LEAGUE PLAYERS ASS’N (Aug. 4, 2011), https://nflpaweb.blob.core.windows.net/media/Default/PDFs/General/2011_Final_C BA_Searchable_Bookmarked.pdf [hereinafter NFL CBA]. 5 Questions and Answers, SPORTS CAPITAL GROUP, http://sportscapitalgroup.com/qa/ (last visited June 5, 2016). 6 See Timothy Davis, Regulating the Athlete-Agent Industry: Intended and Unintended Consequences, 42 WILLAMETTE L. REV. 781, 792–93 (2006). 7 See DUTY, BLACK’S LAW DICTIONARY (10th ed. 2014).