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Volume 5 | Issue 2 ARIZONA STATE SPORTS AND ENTERTAINMENT LAW JOURNAL VOLUME 5 SPRING 2016 ISSUE 2 SANDRA DAY O’CONNOR COLLEGE OF LAW ARIZONA STATE UNIVERSITY 111 EAST TAYLOR STREET PHOENIX, ARIZONA 85004 ABOUT THE JOURNAL The Arizona State Sports and Entertainment Law Journal is edited by law students of the Sandra Day O’Connor College of Law at Arizona State University. As one of the leading sports and entertainment law journals in the United States, the Journal infuses legal scholarship and practice with new ideas to address today’s most complex sports and entertainment legal challenges. The Journal is dedicated to providing the academic community, the sports and entertainment industries, and the legal profession with scholarly analysis, research, and debate concerning the developing fields of sports and entertainment law. The Journal also seeks to strengthen the legal writing skills and expertise of its members. The Journal is supported by the Sandra Day O’Connor College of Law and the Sports Law and Business Program at Arizona State University. WEBSITE: www.asuselj.org. SUBSCRIPTIONS: To order print copies of the current issue or previous issues, please visit Amazon.com or visit the Journal’s website. SUBMISSIONS: Please visit the Journal’s website for submissions guidance. SPONSORSHIP: Individuals and organizations interested in sponsoring the Arizona State Sports and Entertainment Law Journal should contact the current Editor-in-Chief at the Journal’s website. COPYRIGHT ©: 2015–2016 by Arizona State Sports and Entertainment Law Journal. All rights reserved except as otherwise provided. CITATION: ARIZ. ST. SPORTS & ENT. L.J. SPORTS & ENTERTAINMENT LAW JOURNAL ARIZONA STATE UNIVERSITY VOLUME 5 SPRING 2016 ISSUE 2 EDITORIAL BOARD EDITOR-IN-CHIEF TYLER BROWN MANAGING EDITOR NOTES & COMMENTS EDITOR VIKRAM AMRITRAJ ZARI PANOSIAN TECHNOLOGY EDITOR ARIEL DAVIS SENIOR ARTICLE EDITORS ANNELISE DOMINGUEZ AMMON ORR COLLEEN KIELTY CHRISTOPHER RUSSELL SUBMISSIONS CHAIR DIRECTOR OF EXTERNAL AFFAIRS RYAN OSUGI SKYLAR SHAPIRO ASSOCIATE EDITORS JAMES CHONG BRIAN POUDEROYEN GRANT CRAGUN JESSICA PRADO TAYLOR GUSTAFSON HEIDI PURTZER CHAD HEYWOOD SHANE ROSS JOHN KEITER CHARLES SOON ANTHONY MARINO STEVEN SOROSKY CHASE MCCORMIES MIRANDA STARK ANNE MCMANUS-SPITZER IULIA TARANU NICOLE METZGAR-SCHALL ANDREW WEIGEL LANDON MORGAN JORDAN WOLFF DEXTON NYE FACULTY ADVISORS PROFESSOR MYLES LYNK PROFESSOR RODNEY SMITH SPORTS & ENTERTAINMENT LAW JOURNAL ARIZONA STATE UNIVERSITY VOLUME 5 SPRING 2016 ISSUE 2 INDEX LEGAL CONSISTENCY IN SPORTS GAMBLING: CAN ANTITRUST LAW AND UNDERSTANDING SPONSORSHIP PROVIDE A LEGAL PATH FOR STATES TO PERMIT WAGERING ON SPORTS GAMES? JOHN A. FORTUNATO ...........................................................................219 COMMENT—DAILY FANTASY SPORTS IN FLUX: BETTING ON THE FUTURE OF THE LEGALITY OF THE LEAGUES DEXTON NYE .......................................................................................275 ROMAN POLANSKI AND THE “ARTISTS’ MINISTER”: AMERICAN CRIMINAL LAW V. FRENCH CULTURAL DIPLOMACY JULIEN MAILLAND ...............................................................................283 COMMENT—POLANSKI: ANOTHER ITERATION OF FRENCH CULTURAL POLICY, AND BAD FOR FRANCE ANTHONY MARINO ..............................................................................329 EVOLVING SPORTS TECHNOLOGY MAKES ITS MARK ON THE INTERNET OF THINGS: LEGAL IMPLICATIONS AND SOLUTIONS FOR COLLECTING, UTILIZING, AND DISSEMINATING ATHLETE BIOMETRIC DATA COLLECTED VIA WEARABLE TECHNOLOGY KRISTY GALE ......................................................................................337 COMMENT—BIOMETRIC DATA AND THE GIONFRIDDO STANDARD MIRANDA STARK .................................................................................381 FLEDGLING MUSICIANS: DON’T LET NET NEUTRALITY DISTRACT YOU GLENTON W. DAVIS, JR. ......................................................................388 COMMENT—COPYRIGHT LOOPHOLE TO FCC’S NET NEUTRALITY RULES JAMES CHONG .....................................................................................417 COMMENT—MUSIC STREAMING SERVICES: THE INEQUITABLE SOLUTION TO PIRACY HEIDI PURTZER ....................................................................................426 PRESCRIPTION PSYCHOSTIMULANTS AND COLLEGE SPORTS: FOCUSING ON A PRACTICAL SOLUTION SHANE A. ROSS ...................................................................................436 SPORTS & ENTERTAINMENT LAW JOURNAL ARIZONA STATE UNIVERSITY VOLUME 5 SPRING 2016 ISSUE 2 LEGAL CONSISTENCY IN SPORTS GAMBLING: CAN ANTITRUST LAW AND UNDERSTANDING SPONSORSHIP PROVIDE A LEGAL PATH FOR STATES TO PERMIT WAGERING ON SPORTS GAMES? * JOHN A. FORTUNATO, PH.D. ABSTRACT The Professional and Amateur Sports Protection Act (PASPA) directs the current federal sports gambling policy; PASPA prohibits states from allowing wagering on sports games and regulates the Unlawful Internet Gambling Enforcement Act (UIGEA), which differentiates most forms of gambling from fantasy sports by defining the latter as a game of skill. Allowing gambling through fantasy sports participation, but not allowing wagering on sports games, represents a legal inconsistency. The most prominent challenge to PASPA was initiated by the state of New Jersey. Sports leagues have contested New Jersey’s claim by arguing that sports wagering would harm the integrity of their games. Although it can be argued that permitting gambling could indeed cause harm, it can also be argued that leagues are, in fact, complicit in gambling behavior and are capitalizing on sponsorships with gambling organizations, including lucrative partnerships with daily fantasy sports companies. New Jersey may be able to highlight this conflict in framing a legal argument. This article contends that the leagues’ contradictory positions may be most vulnerable to antitrust scrutiny. If the gambling marketplace is defined as all of the gambling dollars available, competition to daily fantasy sports companies would be greater if people have the option to wager on games at a local racetrack or casino. The enactments of the PASPA and UIGEA drastically altered the gambling environment. A subsequent change in sports gambling law that permits all forms of gambling would * Professor, Fordham University School of Business, Area of Communication & Media Management. 220 ARIZ. ST. SPORTS & ENT. L.J. [Vol. 5:219 create a competitive marketplace compatible with the philosophical intent of antitrust laws and also provide needed legal consistency. TABLE OF CONTENTS INTRODUCTION ....................................................................... 220 I. AUDIENCE MOTIVATIONS .................................................. 225 A. THE SPORTS AUDIENCE .............................................................225 B. THE SPORTS GAMBLING AUDIENCE ...........................................227 C. FANTASY SPORTS .......................................................................228 D. DAILY FANTASY SPORTS ...........................................................232 II. THE SPONSORSHIP PRACTICE .......................................... 238 A. PROFESSIONAL SPORTS LEAGUE GAMBLING SPONSORSHIPS .....241 B. PROFESSIONAL SPORTS LEAGUE DAILY FANTASY SPONSORSHIPS ...........................................................................246 III. SPORTS GAMBLING AND GOVERNMENT ....................... 252 A. THE CURRENT STATE OF SPORTS GAMBLING LAW: PASPA .....253 B. THE PASPA LEGAL CHALLENGE: NEW JERSEY ........................253 C. THE CURRENT STATUS OF SPORTS GAMBLING LAW: UIGEA ...258 D. DAILY FANTASY SCRUTINY .......................................................260 IV. ANTITRUST LAW .............................................................. 264 V. POSSIBLE SPORTS GAMBLING REGULATIONS ................ 268 A. THE STATUS QUO ......................................................................268 B. AMEND OR RESCIND THE PASPA ..............................................269 C. AMEND OR RESCIND THE UIGEA ..............................................272 CONCLUSION ........................................................................... 273 INTRODUCTION According to the American Gaming Association, an estimated $3.6 billion is bet legally every year, compared approximately to the annual $140 billion bet illegally. 1 The increase in sports wagering through innovative games, led by daily fantasy sports, and the technological ease with which people can participate in these games through digital and mobile capabilities have altered the gambling landscape and have brought a heightened legal focus to this issue. 1 Sean Gregory, The Case for Sports Gambling in America, TIME, Mar. 23, 2015, at 40; David Purdum, “I’m Not Pro Sports Gambling. I’m Just a Realist”: When NBA Commissioner Adam Silver Declared His Support for Legalized Sports Betting in November, He Changed the Game for the Other Leagues. But Will it be Enough to Move the Line?, ESPN THE MAGAZINE, Feb. 16, 2015, at 55. 2016] CONSISTENCY IN SPORTS GAMBLING 221 Current federal sports gambling policy is directed by the Professional and Amateur Sports Protection Act (PASPA), 2 which prohibits states from offering wagering on sports games, and the Unlawful Internet Gambling Enforcement Act (UIGEA),3 which provides a special exemption for fantasy sports games and differentiates these games from other forms of gambling by defining them as a game of skill. Designed to complement each other and to provide comprehensive regulation of the sports gambling industry, the coexistence of
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