VOLUME 35, NUMBER 2 FALL 2019 Entertainment and Sports Lawyer A PUBLICATION OF THE AMERICAN BAR ASSOCIATION FORUM ON THE ENTERTAINMENT & SPORTS INDUSTRIES Chair’s Column IN THIS ISSUE Dear Forum Members, 3 Wearables In Sports: Who Are You Betting On? his is my first message to you as the incoming Chair of the Forum. I look forward to seeing you all at the 10 To Have and Have Not: Conflicts of TForum’s Annual Meeting at the Four Seasons Hotel Interest in Entertainment Law in Las Vegas, October 11, 12 and 13. We have an exciting program of panels on cutting edge 29 When Crime Pays, Does Anyone Lose? issues including a Mock Negotiation on eSports Investment Why Owners And Teams Should Care and Team Ownership; Legal Issues in Protecting a Client’s When Their Athletes Get Arrested And Brand; a Fireside Chat with Seth Krauss, Chief Legal Offi- What Can Be Done To Prevent It cer of Endeavor; Mindfulness; Sports Gambling; a Digital Platforms roundtable; a Plenary with leading next GEN 36 ABA Entertainment & Sports Lawyer Entertainment and Sports Lawyers; Journal: Litigation & Industry Updates and a Keynote Address by Merck Column Mercuriadis, CEO and Founder of Hipgnosis Songs Ltd. In addition, there will be great 42 Has the Supreme Court’s Sports networking opportunities including Gambling Decision Opened the Door a Nightcap Reception on Friday for Corruption in eSports? night, a conference wide luncheon on Saturday, the annual Ted Reid 49 Renewed for Another Season: reception on Saturday night and International Cyberattacks on the several offsite Behind the Scenes Entertainment Industry Peter J. Strand activities. This year the Forum instituted new CLE programming to 54 A Review of “Music Money and coincide with our Spring Governing Committee meeting. In Success—The Insider’s Guide April, we met at the Guest House at Graceland in Memphis, to Making Money in the Music Tennessee and presented a half-day CLE program at the Cecil Business”by Jeff Brabec and Todd C. Humphreys School of Law at the University of Memphis. Brabec This programming will continue in April 2020 when the Gov- erning Committee meets in Milwaukee, Wisconsin next year. 56 BOOK REVIEW | “The Legendary Harry I look forward to seeing you all in Vegas. Caray: Baseball’s Greatest Salesman” by Don Zminda Best regards, Peter J. Strand Chair, ABA Forum on the Entertainment & Sports Industries ENTERTAINMENT AND SPORTS LAWYER / VOLUME 35 • NUMBER 2 • FALL 2019 1 Entertainment and Sports Lawyer Table of Contents Editor-in-Chief Chair’s Column . 1 Brian A. Rosenblatt Bryce Downey & Lenkov, LLC Len Glickman Chicago, IL Wearables In Sports: Who Are You Betting On? . 3. Editorial Board Melinda L. McLellan, Ronald B. Gaither, Elizabeth G. McCurrach, Robert G. Pimm and Robyn M. Feldstein Law Office of Robert G. Pimm Walnut Creek, CA Maidie E. Oliveau To Have and Have Not: Conflicts of Interest in Entertainment Law . 10 Arent Fox LLP Yocel Alonso Los Angeles, CA Richard J. Greenstone When Crime Pays, Does Anyone Lose? Why Owners And Teams Richard J. Greenstone Attorneys & Counselors at Law Should Care When Their Athletes Get Arrested And What Can Be San Francisco, CA Done To Prevent It . 29 Stephen G. Weizenecker Anne Phillips Barnes & Thornburg LLP Atlanta, GA ABA Entertainment & Sports Lawyer Journal: Litigation & Industry Vered Yakovee Miami Heat Updates Column . 36 Miami, FL Michelle M. Wahl, Kyle E. Simmons, Sarah E. Visnovsky, and Associate Editor Tyler Corcoran Jacob Abdo Minneapolis, MN Has the Supreme Court’s Sports Gambling Decision Opened the Door for Corruption in eSports? . 42 Litigation Update Editors Christopher C. Schwarz Kenneth Freundlich Freundlich Law Renewed for Another Season: International Cyberattacks on the Encino, CA Entertainment Industry . 49 Michelle M. Wahl Swanson, Martin & Bell Lucas J. Tanglen and Reymond E. Yammine Chicago, IL A Review of “Music Money and Success—The Insider’s Guide to Law Student Assistant Editor Making Money in the Music Business”by Jeff Brabec and Todd Brabec . 54 Applications Being Accepted Contact: [email protected] Andrea Mansourian Young Lawyer Assistant Editor Book Review | “The Legendary Harry Caray: Baseball’s Greatest Amanda Alasauskas Salesman” by Don Zminda . 56. Arnett Law Group Valencia King Kate Drass Admission Pending November 2018 Chicago, IL Forum Information Forum on the Entertainment & Sports Industries American Bar Association 321 N. Clark St. Chicago, IL 60654 Phone: 312-988-5658 Fax: 312-988-5677 ENTERTAINMENT AND SPORTS LAWYER / VOLUME 35 • NUMBER 2 • FALL 2019 2 Wearables In Sports Who Are You Betting On? Melinda L. McLellan, Ronald B. Gaither, Elizabeth G. McCurrach, and Robyn M. Feldstein itness trackers have become ubiquitous in modern life. “biometric information” as defined by certain laws. Within While going for a run, you are likely to see someone the broader category of biometric information is a sub- Fwearing a watch to track their speed or a bracelet to set of data referred to as “biometric identifiers,” which are measure daily steps; and as the technology has improved, unique biological characteristics that can be used to identify professional athletes have joined the fold, increasingly a specific human being. For example, biometric informa- using wearable technology (colloquially known as “wear- tion may include general data points such as height and ables”) for more sophisticated purposes. Athletes can now weight, whereas a fingerprint is considered a biometric use wearables to gain a competitive edge, better understand identifier because it is unique to an individual. Biometric their performance, and prevent injury. But as with most identifiers are increasingly used in a variety of settings to technological developments, new insights gained through verify identity using a distinguishing biological trait or traits individualized monitoring are accompanied by certain risks (also referred to as “biometric verification” or “biometric and heightened concerns over the privacy and protection of authentication”). Although fingerprints have been used for potentially sensitive personal data. identification purposes for over a century, technology is now The uptick in the use of wearables by athletes in pro- being developed to identify individuals using more nuanced fessional sports, coupled with the U.S. Supreme Court’s information, such as by their gait, odor, posture or key- decision in Murphy v. NCAA1 (which overturned the Profes- stroke patterns. Such advances may be beneficial in a variety sional and Amateur Sports Protection Act, clearing the way of ways, but carry with them the potential to create addi- for more widespread legalized gambling), have provoked tional privacy concerns. questions regarding the regulation of wearables. As sports betting becomes more sophisticated and granular, and sta- THE LACK OF UNIFORMITY IN HOW WEARABLES tistical analytics improve, wearable technology’s role will ARE ALLOWED IN PROFESSIONAL SPORTS continue to evolve, producing an ever-increasing volume of The importance of regulating the use of wearables by ath- data that could affect a betting spread or alter the outcome letes and teams is not lost on the leagues’ governing bodies. of a game. Complicating the integration of wearables in Every major sports association has a policy addressing the professional sports is the need to balance player privacy and use of wearables during practices and games, but the poli- protection against professional and financial interests. cies differ in meaningful ways. Given the issue’s importance, all of the major U.S. pro- Major League Baseball (MLB) currently permits wear- fessional sports leagues have adopted their own policies ables to be used in games. Among other benefits, this governing wearables and a handful of state laws regulate facilitates analysis of the causes of various ailments common certain types of biometric data wearables may collect. In among baseball players, such as specific stresses on pitch- Europe, the General Data Protection Regulation (GDPR), ers. For example, a common injury suffered by pitchers, an which came into effect on May 25, 2018, has put a new ulnar collateral ligament (UCL) tear, can sideline a player spotlight on safeguards around the collection and process- for well over a year. In 2016, MLB and the MLB Play- ing of personal data, adding specific references to biometric ers Association approved the in-game use of a sensor-laden data to existing law. In the best-case scenario, wearables sleeve designed to specifically measure the stress on a pitch- can effectively aid in the pursuit of excellence in sport by er’s arm throughout a game. In addition to measuring pitch providing valuable metrics to players and coaches. How- count, the sleeve measures arm speed, rotation and force ever, their use must be tempered with an appreciation of the on the elbow with every throw, possibly allowing pitchers attendant privacy risks and ethical implications. to avoid injury through rest and pitch correction. While the sleeve is pitcher-specific, MLB players in any position may WHAT ARE WEARABLE DEVICES? utilize other types of wearables; for example, players may Wearable technology is a blanket term for a type of elec- use wrist sensors that measure heart rate and body strain tronic monitor that can be worn on the body, typically over a day, heart rate and breathing monitors, or GPS track- either sewn into clothing or incorporated in an accessory, ers. Although use of these devices is allowed during games that wirelessly transmits data collected through sensors and practice, a player’s use is strictly voluntary and can be in the device to the Internet. Wearables can track a wide terminated by the player at any time. As an added protec- variety of information about the user, such as heart rate, tion, the most recent MLB Collective Bargaining Agreement glucose levels, pulse oximetry, sleep patterns, gait, and other (MLB CBA) states that a team must destroy the information physical and physiological metrics that can facilitate the collected by wearables if requested by a player.