Law Commons^™

Basketball On Strike: The All-Stars Of The Fight For Racial Equality, Sherif Robert Hesni Jr.

Vanderbilt Journal of Entertainment & Technology Law

National Basketball Association players have a long history of fighting against racial injustice. In August 2020, players participated in the most attention-grabbing endeavor to date: a league-wide strike against racial discrimination in the United States. Refusing to play games entails financial risk for players because of a no-strike clause in the collective bargaining agreement between the National Basketball Players Association and National Basketball Association team governors. Team governors can fine, bench, or fire players for refusing to play. However, it may be infeasible to discipline players for attempting to fight for racial equality—-players are extremely important to the well-being of …

The Path To Employee Status For College Athletes Post-Alston, Tyler J. Murry

Vanderbilt Journal of Entertainment & Technology Law

College athletics are in a state of flux following the Supreme Court’s decision in NCAA v. Alston. While student athletes can now earn money from their name image and likeness (NIL) through endorsement deals, the NCAA and its member schools can still exploit college athletes to earn billions of dollars. To remedy this injustice, courts should classify student athletes as employees under the Federal Labor Standards Act (FLSA) to compensate these students for their work. Whether student athletes should be eligible for minimum wage and employment benefits has been a hot-button topic in the legal community for many years. Fortunately, …

Labor Organization In Ride-Sharing—Unionization Or Cartelization?, Mark Anderson, Max Huffman

Vanderbilt Journal of Entertainment & Technology Law

The sharing economy brings together the constituent parts of a business enterprise into a structure that, on its surface, resembles a business firm, but in crucial ways is nothing like the traditional firm. This includes the ownership of the primary capital assets used in the business, as well as one of the most fundamental features of a firm—the relationship with its labor force. Sharing economy workers are formally contractors, running small businesses as sole entrepreneurs, with the effect that they are excluded from many of the protections made available to workers across the economy. The result is a seeming disparity …

The Price Is (Not) Right: Mandatory Arbitration Of Claims Arising Out Of Sexual Violence Should Not Be The Price Of Earning A Living, Nicolette Sullivan

Vanderbilt Journal of Entertainment & Technology Law

As demonstrated by the #MeToo movement, current attempts to curtail systemic sexual violence in the workplace have fallen flat: approximately sixty million US workers are subject to mandatory arbitration clauses, which employers tend to bury deep within the fine print of employment contracts. These clauses, often coupled with confidentiality agreements, have provided offenders--and their employers--with a mechanism to escape liability and public scrutiny. Under the existing judicial framework, whether a court will allow victims of workplace sexual violence to escape binding arbitration remains unclear. Congress attempted to address this uncertainty by proposing the Ending Forced Arbitration of Sexual Harassment Act …

Losing The Best And The Brightest: The Disappearing Wage Premium For H-1b Visa Recipients, Danielle M. Drago

Vanderbilt Journal of Entertainment & Technology Law

The pressure for immigration reform in the technology industry revolves heavily around the use of the H-1B visa, which allows companies to temporarily hire highly skilled workers. This Note provides an empirical analysis of the historical wages of H-1B workers and domestic workers in the technology industry to determine whether H-1B workers earn more or less than domestic workers in the same industry. In the technology industry, H-1B workers' wage premium has eroded in recent years relative to domestic workers, leading to stagnant wages that may deter the "best and the brightest" from choosing to enter into the H-1B process. …

The Ironies Of Automation Law: Tying Policy Knots With Fair Automation Practices Principles, Meg L. Jones

Vanderbilt Journal of Entertainment & Technology Law

Rapid developments in sensors, computing, and robotics, including power, kinetics, control, telecommunication, and artificial intelligence have presented opportunities to further integrate sophisticated automation across society. With these opportunities come questions about the ability of current laws and policies to protect important social values new technologies may threaten. As sophisticated automation moves beyond the cages of factories and cockpits, the need for a legal approach suitable to guide an increasingly automated future becomes more pressing. This Article analyzes examples of legal approaches to automation thus far by legislative, administrative, judicial, state, and international bodies. The case studies reveal an interesting irony: …

Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell

Vanderbilt Journal of Entertainment & Technology Law

When does work become play and play become work? Court shave considered the question in a variety of economic contexts, from student athletes seeking recognition as employees to professional blackjack players seeking to be treated by casinos just like casual players. Here, this question is applied to a relatively novel context: that of online gold farming, a gray-market industry in which wage-earning workers, largely based in China, are paid to play fantasy massively multiplayer online games (MMOs) that reward them with virtual items that their employers sell for profit to the same games' casual players. Gold farming is clearly a …

Decertifying Players Unions: Lessons From The Nfl And Nba Lockouts Of 2011, Nathaniel Grow

Vanderbilt Journal of Entertainment & Technology Law

This Article analyzes the National Football League (NFL) and National Basketball Association (NBA) lockouts of 2011, focusing in particular on the role union dissolution played in each work stoppage. Although the existing academic literature had generally concluded that players unions in the four major US professional sports leagues were unlikely to disband during a labor dispute, the unions in both the NFL and NBA elected to dissolve in response to lockouts by ownership. This Article provides an explanation for why the prior literature misjudged the role that union dissolution would play during the 2011 work stoppages. It argues that previous …

Three And Out: The Nfl's Concussion Liability And How Players Can Tackle The Problem, Jeremy P. Gove

Vanderbilt Journal of Entertainment & Technology Law

In 1952, the New England Journal of Medicine published a study stating that a player should not continue playing professional football after suffering three concussions. As players continue to get bigger, faster, and stronger, the number of concussions has increased. In response to this problem, the National Football League (NFL) commissioned a study run by scientists and NFL team doctors to determine the long-term effects of concussions. That committee determined that no long-term repercussions exist after experiencing a concussion while playing NFL football. Despite the scientific community's critiques of the study, the NFL used the committee's findings to create the …

Sentencing Guidelines For The Court Of Public Opinion: An Analysis Of The National Football League's Revised Personal Conduct Policy, Michael A. Mahone Jr.

Vanderbilt Journal of Entertainment & Technology Law

The National Football League (NFL) is considered to be the premier professional sports league in the United States, if not the world. In order to maintain that prominence, it is necessary for the NFL to address circumstances that may arise periodically that could have a deleterious effect on league revenues. Throughout the history of the NFL, initiatives taken to safeguard its continued prosperity have been within the province of the NFL Commissioner. The behavior of NFL players, whether on the playing field or in their personal lives, presents one such threat to the league's financial success. In the area of …

The Fair Use Doctrine And Trackjacking: Beautiful Animal Or Destroyer Of Worlds?, S. Wayne Clemons, Jr.

Vanderbilt Journal of Entertainment & Technology Law

"Trackjacking" is the unauthorized replacement of the original soundtrack of an audiovisual recording, such as a movie or television show, with another that is designed to alter substantially the plot and/or characters of the original work. While trackjacking is a creative and entertaining form of art, it may also constitute copyright infringement if the original work is one that is copyrighted. However, if certain criteria are met, the "fair use" doctrine provides a mechanism for courts to excuse what otherwise would be considered copyright infringement. Because the unique nature of trackjacking allows the new work to be distributed in such …

Six Clicks Of Separation: The Legal Ramifications Of Employers Using Social Networking Sites To Research Applicants, Ian Byrnside

Vanderbilt Journal of Entertainment & Technology Law

As social networking sites like Facebook.com and MySpace.com continue to grow in popularity, college students and other job applicants voluntarily divulge an increasing amount of personal information on them, often unaware of the potential negative effects it may have on their search for employment. Employers are beginning to take note of this trend and are increasingly using applicants' social networking profiles to supplement traditional application information. Many applicants feel that employers should not base employment decisions on social networking profiles in any way and believe that it is illegal for employers to do so. Yet, it appears that employers that …

Upon Further Review: Why The Nfl May Not Be Free After Clarett, And Why Professional Sports May Be Free From Antitrust Law, Darren W. Dummit

Vanderbilt Journal of Entertainment & Technology Law

This note begins by reviewing the Jewel Tea line of cases that theoretically serve as the starting point for any non-statutory exemption discussion, followed by brief overviews of the contrasting Wood and Mackey lines of cases. The background section then turns to a summary of Brown--the latest Supreme Court decision relating to the collective bargaining process in professional sports--followed by a brief discussion of the NFL eligibility rule and how it differs from the recently-enacted NBA eligibility rule, which is of unquestioned legality. Finally, both the District Court and Court of Appeals decisions in Clarett are summarized.

The analysis begins …

The United Student-Athletes Of America: Should College Athletes Organize In Order To Protect Their Rights And Address The Ills Of Intercollgiate Athletics?, Marc Jenkins

Vanderbilt Journal of Entertainment & Technology Law

This note will focus on the legal feasibility and practicality of forming a student-athlete players association or union. It assumes that a strike is a possible avenue the CAC may take in the future. Unlike the professional sports unions, the make-up of athletes on college campuses is in constant flux. This will obviously make it harder to initiate a strike. Part I of the note will concentrate on the realities of major college sports and the athletes that play them. This background will establish why student-athletes may want to form a players association. Part II will analyze the NCAA governing …

Major League Baseball's Answer To Salary Disputes And The Strike:, Brien M. Wassner

Vanderbilt Journal of Entertainment & Technology Law

Initially, this paper will briefly consider arbitration in general and then discuss the evolution of FOA and its implementation into MLB salary disputes. This paper will thereafter analyze the praises and criticisms of FOA, and establish that FOA is a superior mechanism for resolving salary disputes in professional sports because the FOA system is designed to facilitate negotiation and settlement rather than to resolve the dispute subsequent to adversarial hearings.

Can't We Play Too?: The Legality Of Excluding Preparatory Players From The Nba, Thomas Lombardi

Vanderbilt Journal of Entertainment & Technology Law

This Note illustrates the legal action necessary to secure a high school underclassman's eligibility to compete in the NBA. Following the precedent established by Spencer Haywood in his suit against the NBA, a case factually analogous to the present issue, the NBA faces an anti-trust action alleging a group boycott in violation of Section I of the Sherman Act. However, incorporating the high school graduation rule into a collective bargaining agreement precludes a straightforward antitrust analysis and necessarily implicates the nonstatutory labor exemption. This Note suggests that even under an analysis favorable to the challenging preparatory player, the nonstatutory exemption …