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Fall 2015 Issue 1 SPORTS AND ENTERTAINMENT LAW JOURNAL VOLUME 5 FALL 2015 ISSUE 1 SANDRA DAY O’CONNOR COLLEGE OF LAW ARIZONA STATE UNIVERSITY P.O. BOX 877906 TEMPE, ARIZONA 85287 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 Sports and Entertainment Law Journal should contact the current Editor-in-Chief at the Journal’s website. COPYRIGHT ©: 2015–2016 by Sports and Entertainment Law Journal. All rights reserved except as otherwise provided. CITATION: ARIZ. ST. SPORTS & ENT. L.J. THIS VOLUME OF THE ARIZONA STATE UNIVERSITY SPORTS AND ENTERTAINMENT LAW JOURNAL IS DEDICATED TO PROFESSOR MYLES LYNK, FOR HIS UNWAVERING SUPPORT AS JOURNAL FACULTY ADVISOR, AND HIS PROFOUND DEDICATION TO ALL OF HIS STUDENTS.* * Peter Kiewit Foundation Professor of Law and the Legal Profession, Sandra Day O’Connor College of Law, Arizona State University. SPORTS & ENTERTAINMENT LAW JOURNAL ARIZONA STATE UNIVERSITY VOLUME 5 FALL 2015 ISSUE 1 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 PETER BALZARINI DEXTON NYE JAMES CHONG BRIAN POUDEROYEN LANCE CHRISTIANSEN JESSICA PRADO GRANT CRAGUN HEIDI PURTZER TAYLOR GUSTAFSON SHANE ROSS CHAD HEYWOOD CHARLES SOON JOHN KEITER STEVEN SOROSKY ANTHONY MARINO MIRANDA STARK CHASE MCCORMIES IULIA TARANU ANNE MCMANUS-SPITZER ANDREW WEIGEL NICOLE METZGAR-SCHALL JORDAN WOLFF LANDON MORGAN FACULTY ADVISORS PROFESSOR MYLES LYNK PROFESSOR RODNEY SMITH SPORTS & ENTERTAINMENT LAW JOURNAL ARIZONA STATE UNIVERSITY VOLUME 5 FALL 2015 ISSUE 1 CONTENTS REFORM OF SPORTS GAMBLING IN THE UNITED STATES: LESSONS FROM DOWN UNDER STEPHEN F. ROSS, JAMES GORMAN III, & RYAN MENTZER .................. 6 COLLEGIATE ATHLETICS AND THE UNRELATED BUSINESS INCOME TAX: OLD ASSUMPTIONS AND NEW DIRECTIONS FOR AN ISSUE OF CHARITABLE TAX EXEMPTIONS RONI A. ELIAS ...................................................................................... 50 COMMENT: AMATEUR AMBITION: HOW ATHLETIC PROGRAMS SHAPE UNIVERSITY POLICY ANDREW WEIGEL .......................................................................... 80 MCNAIR V. NCAA: WHAT IT MEANS FOR THE NCAA ENFORCEMENT PROCESS AND HOW TO FIX THE PROBLEM IT CREATES JOHN CARLSON .................................................................................... 89 FASHION NIGHTMARE! THE FUTURE OF CONSUMER 3-D PRINTING AND ONLINE COUNTERFEITING IN THE FASHION INDUSTRY MICHAEL LYNCH ................................................................................ 118 COMMENT: THE CHALLENGES FOR FASHION DESIGNERS UNDER LENZ AND THE DIGITAL MILLENNIUM COPYRIGHT ACT BRIAN POUDEROYEN ................................................................... 146 COMMENT: CHRISTIAN LOUBOUTIN, S.A. V. YVES SAINT LAURENT AMERICA, INC. AND SINGLE-COLOR TRADEMARK PROTECTION THROUGH THE DOCTRINE OF SECONDARY-MEANING NICOLE METZGAR-SCHALL ......................................................... 154 CHINA’S FILM CENSORSHIP PROGRAM AND HOW HOLLYWOOD CAN ENTER CHINA’S FILM MARKET TIFFANY KWONG................................................................................ 163 COMMENT: ONE COUNTRY, TWO SYSTEMS: THE INTEGRATION OF HONG KONG INTO CHINA AND ITS IMPACT ON FREEDOM OF EXPRESSION JOHN KEITER ............................................................................... 210 SPORTS & ENTERTAINMENT LAW JOURNAL ARIZONA STATE UNIVERSITY VOLUME 5 FALL 2015 ISSUE 1 REFORM OF SPORTS GAMBLING IN THE UNITED STATES: LESSONS FROM DOWN UNDER Stephen F. Ross, James Gorman III & Ryan Mentzer* TABLE OF CONTENTS INTRODUCTION ..................................................................................... 7 I. THE PROBLEM WITH ILLEGAL SPORTS GAMBLING IN THE UNITED STATES ................................................................................................ 10 A. THE SCOPE OF ILLEGAL GAMBLING ............................................ 10 B. THE NEED FOR POLICY CHANGES ............................................... 12 C. FISCAL BENEFITS OF LEGALIZED GAMBLING .............................. 14 II. SUMMARY OF U.S. LAW AND THE NEED FOR FEDERAL LEGISLATIVE REFORM ....................................................................... 15 A. THE FEDERAL WIRE FRAUD ACT ................................................ 16 B. THE PROFESSIONAL AND AMATEUR SPORTS PROTECTION ACT (PASPA) ..................................................................................... 17 C. THE FANTASY SPORTS EXCEPTION ............................................. 17 D. UNSUCCESSFUL EFFORTS TO IMPLEMENT LEGAL SPORTS GAMBLING UNDER CURRENT FEDERAL LAW .............................. 19 III. HOW AUSTRALIAN LAW REGULATES SPORTS GAMBLING IN A MANNER THAT ADDRESSES AMERICAN CONCERNS .......................... 21 A. OVERVIEW OF AUSTRALIAN FEDERAL AND VICTORIAN STATUTORY REGULATION ........................................................... 21 B. HOW THE VICTORIAN MODEL RESPONDS TO AMERICAN CONCERNS REGARDING SPORTING INTEGRITY ............................ 25 1. The Donaghy Scandal ............................................................ 26 2. The Pete Rose Scandal ........................................................... 28 3. The Black Sox Scandal ........................................................... 30 4. The College Basketball Point Shaving Scandal of the 1950s . 32 IV. NECESSARY MODIFICATIONS OF AMERICAN LAW TO SUCCESSFULLY IMPORT THE VICTORIAN REGIME OF REGULATED SPORTS BETTING ................................................................................ 33 A. NEEDED CHANGES IN CURRENT FEDERAL LEGISLATION ............ 33 B. REPLACING PASPA WITH FEDERAL STANDARDS ....................... 35 1. Online Sports Betting ............................................................. 35 * Stephen F. Ross is the Director of the Sports Law Institute and Professor of Law at The Pennsylvania State University; Gorman and Mentzer are currently Research Fellows at the Sports Law Institute and J.D. candidates at The Pennsylvania State University, 2016. 2015] REFORM OF SPORTS GAMBLING 7 2. Information Sharing ............................................................... 36 3. League Cooperation............................................................... 37 C. STATE IMPLEMENTATION ............................................................ 37 D. MODEST PRIVACY LAW EXCEPTIONS TO FACILITATE ESSENTIAL INFORMATION SHARING .............................................................. 41 E. BUILDING ON COMMISSIONER SILVER’S PROPOSAL..................... 45 CONCLUSION ....................................................................................... 48 INTRODUCTION Americans love sports. Sporting events provide millions of Americans a brief reprieve from the difficulties of life. Sporting events also provide millions of Americans the opportunity to watch their heroes live out the dreams that nearly all Americans shared while growing up in backyards and parks with their family and friends. And for many Americans, wagering related to sports competition is an important part of the experience. Gambling has long been viewed as a major problem in our society. 1 Betting is perceived as a form of corruption affecting the integrity of American sports. The ill-effects of sports gambling dates back, at least, to the infamous Black Sox scandal during the 1919 World Series between the Chicago White Sox and the Cincinnati Reds. Following the series, several White Sox players were accused of intentionally losing games in exchange for money. 2 And in the 1950s, college basketball was rocked by point-shaving scandals. 3 Congress enacted anti-gambling legislation to combat these problems, including, perhaps most notably, the Professional and Amateur Sports Protection Act (PASPA). 4 This act makes it illegal to 1 NCAA v. Governor of N.J., 730 F.3d 208, 215 (3d Cir. 2013); Erica N. Reib, Comment, Ante Up or Fold: What Should Be Done About Gambling in College Sports?, 21 MARQ. SPORTS L. REV. 621, 621 (2011). 2 NCAA, 730 F.3d at 215; see generally ELIOT ASINOF, EIGHT MEN OUT: THE BLACK SOX AND THE 1919 WORLD SERIES (1963); DAVID PIETRUSZA, ROTHSTEIN, THE LIFE, TIMES, AND MURDER OF THE CRIMINAL GENIUS WHO FIXED THE 1919 WORLD SERIES (2003). 3 See Joe Goldstein, Explosion II: The Molinas Period, ESPN (Nov. 19, 2003), http://espn.go.com/classic/s/basketball_scandals_molinas.html.
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