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Full Version Volume 4, Number 2 Spring 2013 Contents ARTICLES Disarming the Trojan Horse of the UAAA and SPARTA: How America Should Reform its Sports Agent Laws to Conform with True Agency Principles Marc Edelman ..................................................... 145 Reverse Collusion Ryan M. Rodenberg and Justin M. Lovich .............................. 191 Color War: The Louboutin Decision and Single-Color Marks in the Fashion Industry Claire Guehenno ................................................... 225 Copyright and Responsibility Haochen Sun ...................................................... 263 Harvard Journal of Sports & Entertainment Law Caspersen Student Center, 3rd Floor 1585 Massachusetts Avenue Cambridge, MA 02138 [email protected] [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 (19th 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 4, Number 2 Spring 2013 EDITORIAL BOARD Editor in Chief Miles C. Wiley Executive Editor Executive Editor Executive Editor Kelly Donnelly Jenna Hayes Brandon Hammer Online Content Chair Technical Chairs Submissions Chair Timothy Lamoureux Meredith Karp Mitch Drucker Max McCauley Submissions Committee Jay Cohen Timothy Fleming Jocelyn Keider Cody Lawrence Laura Lorenz Kimberly Miner Samuel Straus Jeremy Winter Article Editors John Avila Mitch Drucker Erica Esposito Meg Lenahan Jeremy Winter Albert Zhu Line Editors Jaimie McFarlin Joo-Young Rognile Kyle Schneider Kristen Spitaletta Eitan Ulmer Editors Jay Cohen Sam Cortina Alice Cullina Sean Fernandez-Ledon Timothy Fleming Albert Gilbert Steven R. Green Simon Heimowitz Georgino Hyppolite James Ireland Ryan Issa Keith James Jr. Natalie Jay Jocelyn Keider Tilak Kolivaram Cody Lawrence Joshua Lee Laura Lorenz Matthew Ly David Mainiero Michael McGregor Kimberly Miner Ben Morris-Levenson Sarah Paige Alan Rozen Portney Ben Simmons Kristen Spitaletta Samuel Straus Sam Stuckey Alison Tong Victoria White Kelly Yamashita Online Content Committee Timothy Fleming Jaimie McFarlin Kimberly Miner Joo-Young Rognlie Jeremy Winter Albert Zhu Faculty Advisor’s Introduction Professor Peter Carfagna Former Covington Burling Distinguished Visitor and Visiting Lecturer on Sports Law Harvard Law School It was my pleasure to serve once again this year as the Faculty Advisor to the Journal of Sports and Entertainment Law. Since JSEL’s inception in 2009 under the leadership of the first Editors, my former Sports Law Students Ashwin Krishnan and Ryan Gauthier, JSEL has continued to thrive and prosper under the continuing direction of numerous, outstanding Editors- in-Chief, including this year’s Editor, Miles Wiley. Editor-in-Chief Miles Wiley continued that proud tradition during the past year, as JSEL challenged itself, under Miles’s leadership, to be more selective than ever as it accepted only the most thought-provoking and cutting-edge articles for publication in JSEL. In doing so, Submissions Committee leaders Jenna Hayes and Mitch Drucker, along with the many other HLS students that tirelessly reviewed pieces throughout the year, put together two excel- lent editions. At the same time, JSEL delivered on its long-standing promise to add an interactive Blog component to the JSEL Website, which Miles, Online Con- tent Chair Tim Lamoureux and Executive Editor Kelly Donnelly most capa- bly supervised to achieve its goal of sparking online discussions of the most important Sports and Entertainment Law issues of the day. Throughout the academic year, Executive Editors Jenna Hayes, Brandon Hammer and Kelly Donnelly most capably shared the many long nights of dedicated effort that made this year’s two editions of JSEL among the very best I have been proud to supervise since its first publication. As a result, in its First Edition, JSEL was able to publish three exciting Articles of which the entire JSEL Staff should be proud — including the many Line Editors and Editors assigned to those Articles, without whom no publication of JSEL would be possible. The three published Articles in the first Edition included an exemplary piece by a former HLS Sports Law standout, Jeff Monhait, whom I was proud both to have in my Sports Law Classes and to supervise in a Sports Law Clinical Placement. Jeff’s contribution to the scholarship regarding Baseball Arbitration as an ADR Success (or not), will no doubt spark much debate both in the academic as well as in the professional baseball commu- nity itself. Continuing with that same baseball theme, Garrett Broshuis also contrib- uted a unique and personal investigation into the life of a Minor League Baseball Player. This is a subject about which I am personally passionate, given my summer avocation of providing legal advice to a number of affili- ated Minor League teams, and a close reading of Garrett’s well-documented explanation of why Minor League Players remain baseball’s “untouchables” ties in perfectly with the piece by Mitchell Nathanson: “Who Exempted Baseball Anyway? The Curious Development of the Antitrust Exemption that Never Was.” I assure you that any careful reader of these two comple- mentary Articles will come to view all future professional baseball games in a new and better-informed legal light, thanks to Messrs. Nathanson’s and Broshuis’s original research, for which JSEL thanks them. In the Second Edition, JSEL expanded beyond Sports Law, and was proud to accept two scholarly submissions that delved into the most intimate details of intellectual property protection. Any reader of the two pieces, “Copy- right and Responsibility” (for which we thank Haochen Sun) and HLS Stu- dent Claire Guehenno’s illuminating submission “Color War: The Louboutin Decision and Single-Color Marks in the Fashion Industry,” will be richly rewarded by following the intriguing and challenging conclusions reached by them, which should continue to spark scholarly debate and hopefully influence judicial outcomes in ways suggested by the authors. Finally, in the Second Edition of JSEL, we returned to Sports and the Law — but stretched ourselves to reach into other professional sports leagues and their respective CBA’s (the NBA and the NFL); as well as the regulation of agents seeking to represent prospective professional athletes under the Uni- form Athlete Agent Act and SPARTA. Again, we want to thank Professor Ryan Rodenberg and his PhD. Student Justin Lovich for their piece on “Re- verse Collusion” in the three major Leagues, with a particular emphasis on the NBA. Any fan of LeBron James and the Miami Heat will enjoy this thoughtful submission, whereas Cleveland Cavaliers’ fans (like myself) will want to see change effectuated to prevent players from abusing the absence of specific CBA language prohibiting “player collusion” and creating “Super Teams,” as may have happened when LeBron took his talents to South Beach. Finally, a frequent contributor to JSEL and to our Annual CSEL Symposia, Professor Marc Edelman, has inspired all of us who teach and practice in the area of counseling agents and pre-professional athletes with one of his best JSEL submissions ever: “Disarming the Trojan Horse of the UAAA and SPARTA: How America Should Reform Its Sports Agent Laws to Conform to True Agency Principles.” Thanks, Marc. I will be sure to use your JSEL Article when next teaching my Course “Representing the Professional Ath- lete”—it is an important contribution to the field. So, I will conclude by once again thanking Miles Wiley, Jenna Hayes, Bran- don Hammer, and Kelly Donnelly for creating what will surely be judged to be one of, if not the very best JSEL Edition published in our brief but distin- guished history. Thanks to them, their dedicated Staff (which will be led next year by Kelly Donnelly), as well as the continuing support of Dean Minow and the Harvard Law School administration, we can look forward to yet another record-breaking year in 2013-14, as JSEL continues to build upon the strong foundation and significant improvements thereon which I have been proud to supervise since JSEL’s inception. Please enjoy this year’s Editions, and let us know what you think by e- mailing us at [email protected]. We look forward to hearing from you. Disarming the Trojan Horse of the UAAA and SPARTA: How America Should Reform its Sports Agent Laws to Conform with True Agency Principles Marc Edelman1 ABSTRACT The accompanying article argues that most sports agent laws subordinate ath- letes’ interests to those of the National Collegiate Athletic Association (“NCAA”), and that sports agent laws need to change to better protect both professional and amateur athletes.
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