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Volume 7, Number 1 Winter 2016 Contents ARTICLES Comparing NCAA and Olympic Athlete Eligibility Dispute Resolution Systems in Light of Procedural Fairness and Substantive Justice Josephine R. Potuto and Matthew J. Mitten.............................. 1 Constitutional Voting Rules of Australian National Sporting Organizations: Comparative Analysis and Principles of Constitutional Design Robert D. Macdonald and Ian M. Ramsay .............................. 53 NOTE Financing Music Labels in the Digital Era of Music: Live Concerts and Streaming Platforms Loren Shokes ...................................................... 133 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. Volume 7, Number 1 Winter 2016 EDITORIAL BOARD Editor in Chief Editor in Chief Jonathan Diaz Jeff Huberman Executive Editor, Executive Editor, Submissions Managing Editor Production Patrick Gutierrez Elisa Hevia Michael Brandon Michelle Elsner Executive Editor, Online Content Executive Editor, Solicitations Jason Fixelle Willimina Bromer Production Chair Submissions Chairs Online Highlights Editors Scott Sherman Matthew Lee Samuel Lifton Jeremy Salinger Jennifer Mindrum Online Content Contributors Hector Grajeda Jennifer Marr Loren Shokes Chandler Howell Miranda Means Submissions Committee Nathan Abelman Chandler Howell Arthur Munoz ˜ Jazzmin Carr Rebecca Johnson Kenneth Notter III Brooks Coe Mushegh Manukyan Patrick O’Bryant Ella Cohen Michael Mattheiss Daniel Parino Michael Cunniff Nicoleas Mayne Harry Rudo Kelsey Davidson Miranda Means Marina Shkuratov Alex Greenberg Jennifer Mindrum Loren Shokes Benjamin Hecht Nathan Wolcott Senior Article Editors Laura Escalona Rebecca Johnson Marissa Lambert Jennifer Mindrum Article Editor Harry Rudo Editors Nathan Abelman Benjamin Hecht Patrick O’Bryant David Azcarraga Chandler Howell Evan Omi Jazzmin Carr Cassandra Liu Daniel Parino Michael Cunniff John Lomazzi Ashleigh Ruggles Brooks Coe Jennifer Marr Minje Shin Kelsey Davidson Nicoleas Mayne Theresa Smith Adabelle Ekechukwu Brady Moe Julian SpearChief-Morris Margaret Finnegan Arthur Munoz ˜ Maclen Stanley Hector Grajeda Kenneth Notter III Nathan Wolcott Comparing NCAA and Olympic Athlete Eligibility Dispute Resolution Systems in Light of Procedural Fairness and Substantive Justice Josephine (Jo) R. Potuto* and Matthew J. Mitten** ABSTRACT The traditional adjudicative model for resolving disputes involves public judicial systems (i.e., courts) established and administered by the govern- ment. But disputes also are resolved by alternative dispute resolution (ADR) systems outside the traditional model that are established and administered by private parties. The National Collegiate Athletic Association (NCAA), International Olympic Committee (IOC), and United States * Richard H. Larson Professor of Constitutional Law at the University of Nebraska College of Law. Potuto is the university’s faculty athletics representative (FAR), a required campus position at all National Collegiate Athletic Association (NCAA) member institutions. Potuto served nine years as a member of the NCAA Division I Committee on Infractions (two years as Chair) and more than four years on the Division I Management Council (including its Legislative Review and Administrative Review Subcommittees). She also served on both the Special NCAA Arbitration Review Committee and Special NCAA Internal Review Committee. The latter committee evaluated and recommended changes to the NCAA enforcement and infractions policies. ** Professor of Law and Director, National Sports Law Institute and LL.M. in Sports Law Program for Foreign Lawyers, Marquette University Law School. Mitten is a member of the Court of Arbitration for Sport, Lausanne, Switzerland and the American Arbitration Association’s panel of arbitrators that resolves Section 9 Olympic sports athlete eligibility disputes. Mitten served for six years as a member (two years as Chair) of the NCAA’s Competitive Safeguards and Medical Aspects of Sports Committee and its Drug-Education and Drug-Testing Subcommittee from 1999–2005. Copyright © 2016 by the President and Fellows of Harvard College. 2 Harvard Journal of Sports & Entertainment Law / Vol. 7 Olympic Committee (USOC) use differing ADR systems to resolve intercollegiate and Olympic athletic eligibility disputes that are afforded very defer- ential review by courts with the merits of their respective determinations almost always judicially upheld and enforced. Olympic sports athlete eligibility disputes are resolved at the international level by the Court of Arbitra- tion for Sport (CAS), an external system of arbitration that has been called the gold standard for resolving athlete disputes. The NCAA uses a system of internal committees comprised of faculty and institutional and conference staff to resolve intercollegiate athlete eligibility disputes, which is the sub- ject of perpetual criticism and has led to calls for reform measures mirroring CAS’s external arbitral process. In this Article we describe the NCAA’s internal systems for resolving athlete eligibility disputes, which often are misunderstood by commentators without due consideration of the need for its ADR processes to be tailored to effectively, efficiently, and fairly resolve disputes in light of the NCAA’s particular demographics and needs. We also describe the CAS arbitral system as well as the corresponding American Arbitration Association (AAA) system used to resolve domestic Olympic athlete eligibility disputes in the U.S. and the requisite procedural fairness and substantive justice both systems provide to athletes, which justify judicial recognition and enforcement of their arbitration awards. Considering the salient differences between the ADR processes for resolving Olympic and intercollegiate sports athlete eligibility disputes, we explain why the NCAA’s ADR processes provide a commensurate level of procedural fairness and substantive justice to athletes that responds to the demographics and requisites of its approximately 460,000 student-athletes, its eligibility re- quirements, and the thousands of annual competitions that it administers. Finally, we offer suggestions to improve the NCAA’s processes for resolving athlete eligibility disputes without jeopardizing its needed autonomy or ability to govern its affairs in an efficient and effective manner. 2016 / NCAA and Olympic Athlete Eligibility Dispute Resolution Systems 3 I. INTRODUCTION For more than 100 years the National Collegiate Athletic Association1 (“NCAA”) and the International Olympic Committee2 (“IOC”) in combi- nation with the United States Olympic Committee3 (“USOC”), which all 1 The NCAA was founded in 1906 in response to the deaths of 18 college football players and serious injuries to another 150 or so. President Theodore Roosevelt urged administrators from Princeton, Yale, and Harvard to reform the game to prevent deaths and serious injuries from occurring, threatening to propose federal legislation to outlaw football if they did not do so. See Walter Byers, Un- sportsmanlike Conduct 38–40 (U. Mich. Press, 1995). The NCAA has three divisions. See 2014–15 NCAA Division I, II, III Manuals, available at http://www. ncaapublications.com/. Overriding NCAA foundational principles, including the amateurism principle, apply similarly to all three NCAA divisions, as do the enforcement/infractions and student-athlete reinstatement processes. NCAA Bylaw Chapter 19; Student-Athlete Reinstatement Frequently Asked Questions at 2, http://www.ncaa.org/compliance/reinstatement/student-athlete-reinstatement-fre quently-asked-questions. Division I, and more specifically its football bowl subdi- vision, is what commentators, media, and the public

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