Current Legal and Ethical Issues in Sports and Entertainment

Tuesday, June 25th, 2019

Eckstein Hall, Marquette University Law School

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Table of Contents

Page # Description 3 Table of Contents 4-5 Seminar Schedule 6 Wifi Information and Seminar Website Instructions 7-10 Professor Dodds Materials 11-13 Attorney Brown Materials 14-17 Attorney Andresen Materials 18-21 Attorney Strand Materials 22 Sports Law Information

Seminar Schedule

7:30 – 8 am Room 433

Registration and Continental breakfast

8 – 8:05 am Room 444

Welcome

Professor Paul Anderson (L’95), Director, Sports Law Program and National Sports Law Institute, and Chair and Founder, Sports Law Alumni Association, Marquette University Law School, Milwaukee, WI

8:05 – 8:55 am Room 444

Using the Law to Combat Sport Corruption

Professor Mark Dodds (L’05) Associate Professor, Sport Management Department, SUNY Cortland, Cortland, New York

8:55 – 9:00 am

Break

9 – 9:50 am Room 444

Professional Leagues Management of Athlete’s Biometric Data

Attorney Sarah Brown (L'14) Graduate Research and Teaching Assistant, Sports Management – Health and Kinesiology, Texas A & M University, College Station, Texas

9:50 – 10 am

Break

10 – 10:50 am Room 444

Building a Successful Sports Law Practice: The Good, the Bad and the Ugly (While Following the Rules of Professional Conduct)

Attorney Scott Andresen founder, Andresen & Associates, Legal Counsel for Businesses, Entrepreneurs, Sports and Entertainment Professionals and more, Chicago, Illinois

10:50 – 11:00 am

Break

11:00 – 11:50 am Room 444

Entertainment Law Ethics: The Challenge of the Four Cs: Competence, Conflict, Confidentiality, & Compensation.

Attorney Peter Strand Partner, Mandell Menkes LLC, Chicago, Illinois

11:50 – 11:55 am Room 444

Announcements and End of Program

12:00 – 12:30 pm Room 433

CLE and Seminar check out

SEMINAR MATERIALS WEBSITE Speaker presentations and supplementary materials for this seminar are available on a seminar website that can be found at https://law.marquette.edu/national-sports-law-institute/summer- 2019-cle-seminar-materials or https://tinyurl.com/yytrlokf. MU GUEST WI-FI Campus visitors can use MU Guest Wi-Fi for access to the internet. The MU Guest Wi-Fi network is not encrypted and cannot reach university restricted e-resources. From your device's Wi-Fi settings, select MU Guest. The MU Guest Acceptable Use Policy page appears. Review the terms and conditions. The Accept button will become actionable when you scroll through the terms. If you agree, click or tap Accept.

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 Call the IT Services Help Desk at (414) 288-7799  Visit the IT Services Help Desk in Cudahy Hall 293  Or email [email protected]

Using the Law to Combat Sport Corruption

Professor Mark Dodds (L’05) Associate Professor, Sport Management Department, SUNY Cortland, Cortland, New York

Mark Dodds is a Professor teaching sport marketing and sport law at the State University of New York, College at Cortland. He holds a J.D. from Marquette University Law School, a M.B.A. from Robert Morris University and a B.S. in Marketing Management from Syracuse University. While at MULS, he earned a Sport Law Certificate from the National Sport Law Institute. His research area is focused on legal issues in sport business, international sport, sponsorship activation, and legal issues with internships. He has published articles in journals such as: Journal of Brand Strategy, Journal of Sponsorship, Marquette Sports Law Review, Case Studies in Sport Management, Journal of Physical Education, Recreation and Dance, Journal of Sponsorship, International Journal of Sport Management and Marketing and College Athletics and the Law. He co-edited the award- winning Encyclopedia of Sports Management and Marketing and a special motorsports issue of International Journal of Sport Management and Marketing.

Prior to arriving at SUNY Cortland, Mark worked in the sport marketing industry for over 12 years. He lives in Cortland, New York with his wife and two kids.

This presentation examines the legal tools being used to combat sport corruption. Maennig (2005) defined two types of sport corruption: competition corruption and management corruption. Competition corruption involves athletes, sporting officials or non-athletes trying to influence the outcome of the competition. Match- fixing is an example of competition corruption and focuses on the in-game or end result of the contest. Spot-fixing is corruption of the game that is unrelated to the final score of the event (such as kicking the ball out of bounds, a double fault, etc.). Management corruption involves sport organizations or sport officials manipulating business decisions (Maennig, 2005) often using active or passive bribery. The prevention of management corruption has led the United Nations to work with countries, sport organizations and sponsors to prevent bribery in sport (United Nations Global Compact, 2014).

Using a case study format, anti-corruption laws and other novel legal theory will be examined through real-world, infamous scandals. For instance, the 2015 FIFA

7 bribery scandal used mail fraud to charge fourteen officials in connection with the 2010 World Cup bidding process. The law and its effectiveness will be explored.

Other scandals will be investigated. The Lance Armstrong doping scandal featuring the False Claims Act as Floyd Landis and the US Postal Service attempted to recoup more than $30 million dollars in sponsorship money.

The 2002 Salt Lake City Olympic bribery scandal led to Salt Lake City organizing committee members who faced fifteen criminal charges for providing more than $1.2 million in cash and gifts (including a knee replacement surgery) to entice IOC members to support its bid for the 2002 Winter Games. Despite an overwhelming amount of evidence, the prosecution failed to convict the members using traditional bribery laws.

There are examples of sponsor corruption scandals that impact sport. The USA uses the Foreign Corrupt Practices Act to combat this type of sport corruption. Weatherford International used on-site hospitality from the 2006 World Cup to bribe officials which resulted in penalties of over $120 million (plus $115 million investigation costs) and lack of cooperation fine. BHP Billiton used sponsorship benefits from 2008 Olympics to bribe public officials and incurred $25 million fine. Bilfinger Engineering was accused of paying bribes to public officials to secure security command contracts at twelve host cities for the 2014 FIFA World Cup.

The recent Adidas / NCAA basketball corruption scandal found three Adidas employees guilty of wire fraud and conspiracy in what could become a far-reaching issue for many colleges involving Adidas, Nike and Under Armour sponsored programs.

Finally, the presentation examines the Swiss Lex FIFA anti-bribery laws. More than sixty international sport organizations, including the IOC and FIFA, are headquartered in Switzerland. Switzerland revised its criminal code to criminalize active and passive bribery involving sport organizations and its senior officials. Although this law has not been used in a sport context yet, it is hoped that this legislation deters future sport bribery scandals.

Reference list

Statutes/Codes  The False Claims Act, 31 U.S.C. §§ 3729-3733, (2019)  Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-1, et seq. (2019)  Honest Services Fraud, 18 U.S.C. §1346 (2019)  Sports Bribery Act, 18 U.S. Code § 224 (2019)  Wire Fraud Act, 18 USCS §1343 (2019)  Swiss Code, Art. 29-7, 2013  Swiss Code, Art. 102, 2015  Swiss Code, Art. 322, 2016

Cases  In re BHP Billiton Ltd., No. 3-16546 (May 20, 2015)  Landis v. Tailwind Sports Corporation, Civil Action No. 2010-0976 (D.D.C. 2017)  Securities and Exchange Commission v. Weatherford International Ltd., No. 4:13-cv-3500 (S.D. Tex. 2013)  United States v. Esquenazi, 752 F.3d 912 (11th Cir. 2014)  United States v. Gatto, 17 Mag 7120 (2018)

Articles/Reports  United Nations Global Compact. (2014). Fighting corruption in sport sponsorship and hospitality: A practical guide for companies. Retrieved from: https://www.unglobalcompact.org/docs/issues_doc/Anti- Corruption/SportsSponsorshipHospitalityGuide.pdf  Maennig, W. (2005). Corruption in international sports and sport management: Forms, tendencies, extent and countermeasures. European Sport Management Quarterly, 5(2), 187-225.

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Professional Leagues Management of Athlete’s Biometric Data

Attorney Sarah Brown (L'14) Graduate Research and Teaching Assistant, Sports Management – Health and Kinesiology, Texas A & M University, College Station, Texas

Sarah Brown is a graduate research assistant at Texas A&M University, where she is pursuing her PhD in Sport Management and teaches undergraduate and graduate sport- related courses. While at Texas A&M, Sarah has established a research line examining athlete and sport entities brand management, specifically investigating the effects of new technologies on brands. Moreover, Sarah has researched the effects of athlete activism on an athlete’s brand, as well as the effects of corporate activism.

Prior to starting at Texas A&M, Sarah worked as a transactional attorney for Northrop Grumman where she negotiated various agreements and counseled vice president’s, directors and managers on various contractual issues. Sarah also has experience working in the legal departments of the Texas Rangers and Nike.

Sarah holds two BA’s in Public Relations and Political Science from Penn State University and a JD from Marquette University Law School. She currently lives in Dallas with her husband Sean, daughter Sage and two dogs Swoosh and Splash.

Presentation Summary: Big data generated from wearable technology (wearables), provides an opportunity to professional sport leagues to enhance fan engagement, create competitive advantages, and generate new revenue streams for leagues, teams and athletes. Currently, all five leagues are utilizing wearables to collect athlete data during training. Yet, the leagues understanding of the technology and necessary data protections is limited. The purpose of this presentation is to discuss and compare the CBA’s of the NFL, NBA, MLB, NHL and MLS to understand potential gaps in protection for their athlete’s biometric data and to explore whether federal laws, including HIPPA and GINA are applicable to protect athlete biometric data. Additionally, this presentation will analyze emerging state laws that have been introduced to specifically provide protection for athlete biometric data.

References List

Articles/Reports  Barbara Osborne, Legal and Ethical Implications of Athletes’ Biometric Data Collection in Professional Sports, 28 MARQ. SPORTS L. REV. 37 (2017).  Zachary Zagger, Sports Teams must Tackle Hacking Risk Amid Legal Gambling, LAW360 (Sept. 24, 2018, 9:28 PM), http://www.law360.com/articles/1085391/print?section=sports.  Nicholas Zych, Collection and Ownership of Minor league Athlete Activity Biometric Data by Major League Baseball Franchises, 14 DEPAUL J. OF SPORT L. 129, 136 (2018).  Sophie Goodman, A Game Changer in the Personal Data Protection in the EU, MICH. ST. U. INT’L L. REV. (Jan. 29, 2018). Retrieved from, https://www.msuilr.org/msuilr-legalforum-blogs/2018/2/19/a-game- changer-in-the-personal-data-protection-in-the-eu.

Cases  Murphy v. Nat’l Collegiate Athletic Ass’n., 138 S.Ct. 1461 (2018).

Statute  Genetic Information Nondiscrimination Act of 2008, 42 USC 2000f, et. seq. (2019)

League Documents  NATIONAL BASKETBALL ASSOCIATION, Article XXII, Section 13 (2017) archived at, http://3c90sm37lsaecdwtr32v9qof-wpengine.netdna- ssl.com/wp-content/uploads/2016/02/2017-NBA-NBPA-Collective- Bargaining-Agreement.pdf.  MAJOR LEAGUE BASEBALL COLLECTIVE BARGAINING AGREEMENT, Attachment 56 (2017) archived at http://www.mlbplayers.com/pdf9/5450407.pdf.  NATIONAL FOOTBALL LEAGUE COLLECTIVE BARGAINING AGREEMENT, Article 51, Section 13(c) (2011). Archived at, https://nfllabor.files.wordpress.com/2010/01/collective-bargaining- agreement-2011-2020.pdf.  NFLPA. WHOOP Strikes Landmark Deal as the Officially Licensed Recovery Wearable of the NFL Players Association, NFLPA.COM (April 24, 2017). Retrieved from, https://www.nflpa.com/players/news/whoop-strikes- landmark-deal-as-the-officially-licensed-recovery-wearable-of-the-nfl- players-association.

 MLS COLLECTIVE BARGAINING AGREEMENT RATIFIED AND SIGNED, MLS, art. 9.10 (Feb. 1, 2015) [hereinafter MLS CBA], https://www.mlsplayers.org/images/Collective%20Bargaining%20Agree ment%20- %20February%201,%202015.pdf.

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Building a Successful Sports Law Practice: The Good, the Bad and the Ugly (While Following the Rules of Professional Conduct)

Attorney Scott Andresen founder, Andresen & Associates, Legal Counsel for Businesses, Entrepreneurs, Sports and Entertainment Professionals and more, Chicago, Illinois

Scott A. Andresen is the founder of Andresen & Associates, P.C., a Chicago-based law firm that focuses its offerings in the areas of sports law, entertainment and the arts, and intellectual property. The firm also has a strong focus in the startup and small entrepreneur space, addressing the legal needs of new and emerging business owners.

Prior to founding Andresen & Associates, Scott served as in-house legal counsel for the Arena Football League. He also worked for the legal department of the Oakland Raiders, and served as Legal Assistant to the Executive Director of the Illinois High School Association.

Scott earned his undergraduate degree from the University of Illinois, Urbana- Champaign, his Doctor of Jurisprudence at the Valparaiso University School of Law, and his Master of Business Administration from the University of Phoenix. Scott also studied at Cambridge University in England under United States Supreme Court Justice Ruth Bader Ginsberg.

When he is not practicing, Scott is a sports law instructor in Northwestern University's Masters of Sports Administration program. He also provides legal insight and commentary on sports law and sports business topics to national television, radio, print and online media outlets, including the New York Times, Wall Street Journal, Los Angeles Times, Washington Post, Chicago Tribune, Chicago Sun-Times, Tampa Bay Tribune, Seattle Tribune, Reuters, Associated Press, Chicago Daily Law Bulletin, Bleacher Report, ESPN.com, VICE.com, Hungton Post, Courthouse News Service and AskMen.com.

Scott's ardor and tenaciousness has resulted in him being spotlighted by his peers and the media. He is a three-time recipient of the "Rising Star" designation by Super Lawyers in Entertainment and Sports and has a perfect 10.0 AVVO.com rating.

Summary: Whether starting a practice out of law school or after several years of working for someone else, it quickly becomes clear that graduating at the top of your class or being a successful attorney does not automatically equate to being successful at building and operating a law practice--especially in the ultra-competitive world of sports law. This presentation will take you through the 15-year journey of one sports law practitioner, with practice tips and cautionary tales offered along the way, all done with specific focus on practicing law following the rules of professional conduct. Topics: A. Starting off at Zero (Clients). Coming Out of the Safety of In-House Counsel

B. Creating a Solid Business Foundation

C. Stick to What You Know: Be a Master, Not a Jack

D. Building a Client Base: The Cautionary Tale of a Homeless Television Golfer

E. Marketing and Personal Branding: Don’t Fake it Until You Make it

F. Know When to Hold Em’ and When to Fold Em’: When is it Time to Fire a Client?

G. It’s Not About You: Confidentiality of (High-Profile) Client Matters

H. Representing Clients in Other States

I. The Difference Between Billing and Getting Paid

J. Growing Pains

K. The Work-Life Balance

L. Miscellaneous Observations and Conclusion

Resources: Illinois Rules of Professional Conduct* - Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer) (Wisconsin Supreme Court Rule 20:1.2) - Rule 1. 3 (Diligence) (Wisconsin Supreme Court Rule 20:1.3) - Rule 1.5 (Fees) (Wisconsin Supreme Court Rule 20:1.5) - Rule 1.6 (Confidentiality of Information) (Wisconsin Supreme Court Rule 20:1.6. Confidentiality) - Rule 1.7 (Conflict of Interest: Current Clients) (Wisconsin Supreme Court Rule 20:1.7. Conflict of interest current clients) - Rule 1.16 (Declining or Terminating Representation) (Wisconsin Supreme Court Rule 20:1.6) - Rule 3.6 (Trial Publicity) (Wisconsin Supreme Court Rule 20:3.6) - Rule 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law) (Wisconsin Supreme Court Rule 20:5.5) - Rule 7.1 (Communications Concerning a Lawyer’s Services) (Wisconsin Supreme Court Rule 20:7.1) - Rule 7.2 (Advertising) (Wisconsin Supreme Court Rule 20:7.2) - Rule 7.3 (Solicitation of Clients) (Wisconsin Supreme Court Rule 20:7.3) - Rule 7.4 (Communication of Fields of Practice and Specialization) (Wisconsin Supreme Court Rule 20:7.4. Communication of fields of practice)

*Wisconsin Supreme Court, Rules of Professional Conduct for Attorneys sections listed in parens, with full names if different from Illinois rule.

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Entertainment Law Ethics: The Challenge of the Four Cs: Competence, Conflict, Confidentiality, & Compensation.

Attorney Peter Strand Partner, Mandell Menkes LLC, Chicago, Illinois

Peter Strand represents content creators and providers including authors, songwriters and composers, recording artists, musicians, television and film writers, independent record labels, music publishers, independent film producers and documentarians, and production companies in various transactional and litigation matters in the entertainment industry. In addition to contract preparation, analysis, and negotiation. He assists clients with protecting and enforcing their copyrights, trademarks, and other intellectual property rights; licensing or exploiting their creative works; acquiring and distributing content; and selecting, securing, and protecting product and service brand names. In addition to his law practice, Peter has taught entertainment law and music law as an adjunct professor at Northwestern University School of Law, Chicago Kent College of Law, DePaul University College of Law, and Marquette University Law School. Peter is the Chair- elect of the ABA Forum on the Entertainment & Sports Industries. He has served in several leadership positions for the Chicago Chapter of the Recording Academy, including National Trustee, President, Vice President, and Chapter Governor.

Chambers USA named Peter to Band 1, Media & Entertainment – Transactional in 2018. In 2015, Peter was named one of the Top 100 Attorneys in Illinois by Chicago Magazine. He has been also selected as: “Super Lawyer — Billboard Magazine’s 50 Attorneys of Note in the Music Business” 2014; “Entertainment Law-Music Lawyer of the Year” by Best Lawyers Magazine in 2013, 2016 and 2018; “Leading Lawyer” in Arts, Entertainment and Sports in Illinois from 2003 – 2018 and in its 2018 Top 10 list for Arts, Entertainment and Sports in Illinois; and an “Illinois Super Lawyer” 2007- 2018.

He has been profiled in Crain’s Chicago Business, Illinois Super Lawyers Magazine, Chicago Daily Law Bulletin, and Wisconsin Lawyer Magazine. Peter also provides pro bono legal services to musicians, artists, and arts organizations through the Lawyers for the Creative Arts, where he has been involved as a volunteer, Board Member, and on the Honors Council for more than 20 years. In 2008, Peter received the Thomas R. Leavens Awards from the Lawyers for the Creative Arts for his distinguished service to the arts through LCA. Before becoming an attorney, Peter played and recorded as a full-time touring musician with several bands including Yipes who recorded two albums for RCA/Millennium Records and will release its third album in 2019.

Panel description: Entertainment Law Ethics: The Challenge of the Four Cs: Competence, Conflict, Confidentiality, & Compensation. We will discuss the typical ethics issues that arise representing talent especially for collaborative projects. Topics will include: 1. Acquiring Competence – not just general lawyer competence but entertainment industry competence o Knowing the terminology of the business o Knowing the norms of the deal o Knowing the players

2. Conflicts o Identifying the client – individual vs. a group; o Representing the group client – not all group members are equal

3. Confidentiality o Keeping the client’s confidences o Group speak – what you say to one you say to all – no secrets among groups o Including or excluding the team . Manager, Agent, Business manager, spouses, children, parents, 4. Compensation o The Rule: reasonable o Contingent, hourly and flat fees o The norms of the industry o The pitfalls of percentages o Payments by 3d parties

Reference List  Model Rules of Professional Conduct o Rule 1.1 Competence o Rule 1.5 Fees o Rule 1.6 Confidentiality o Rule 1.7, 1.8. 1.9, 10.10 Conflicts of Interest

 Wisconsin’s Rules of Professional Conduct for Attorneys, Supreme Court Rules, Chapter 20 o Rule 1.1 Competence o Rule 1.5 Fees o Rule 1.6 Confidentiality o Rule 1.7 o Rule 1.8 o Rule 1.9, 10.10

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