Entertainment, Arts, and Sports Law Commons^™

Under New Management?: Sovereign Wealth Funds And Their Ownership Of U.S. Sports Teams, Benjamin K. Moyer

Dickinson Law Review (2017-Present)

In October 2021, Saudi Arabia’s sovereign wealth fund (“SWF”) successfully purchased the English Premier League soccer team Newcastle United F.C. for $400 million. With this transaction, Saudi Arabia joined fellow Gulf countries, Qatar and the United Arab Emirates, in owning a major European soccer team through one of its state’s SWF. States have long used their SWFs to invest in foreign markets, but recent trends have transformed these originally strictly financial vehicles into political tools. Since the 2007–2008 financial crisis, many states have used their SWFs not only to produce financial gains but also to generate soft power through political …

Fútbol Profesional, Derecho De La Competencia Y 'Fair Play', Stephen Ross

Faculty Scholarship

El presente ensayo examina la relación entre el derecho de la competencia y la noción de «Fair Play» en el ámbito del fútbol profesional. El autor comienza analizando el significado lingüístico y filosófico del término «Fair Play» y valorando cómo las diferentes interpretaciones de esta noción pueden influir en la percepción de lo que se entiende por justicia en el deporte. A continuación, compara la aplicación del derecho de la competencia en EE.UU. y Europa, destacando que, aunque hay diferencias, no existe un verdadero conflicto entre la noción de «Fair Play» y la normativa en materia de competencia. Finalmente, defiende …

The Liv Golf V. Pga Tour Antitrust Case As A Case Study In Federal Civil Procedure, Michael J. Dube

Dickinson Law Review (2017-Present)

This Article uses LIV Golf Inc. v. PGA Tour, Inc., a sophisticated and headline-grabbing antitrust matter, as a means of instantiating federal civil procedure concepts. The first Part of this Article addresses the unsuccessful motion for a temporary restraining order that in many ways shaped how the litigation proceeded. The second Part examines the dance that is discovery through a focus on a drawn-out dispute regarding a single interrogatory. The final Part drills down on a more novel discovery dispute that began the path towards settlement, namely whether the Foreign Sovereign Immunities Act of 1976 and related common-law doctrine …

Would Jackie Robinson Play Baseball Today? How Baseball Owners Conspire To Restrain Trade And Foster Unequal Opportunities For Player Development, Stephen Ross

Faculty Scholarship

No abstract provided.

Promoting Female Sporting Opportunities Without Title Ix: The Spanish Experience, Stephen Ross, Maria Josefa Garcia Cirac

Faculty Scholarship

This article compares the American approach to improving sporting opportunities for females – Title IX – with approaches taken by Spain. Because of the singular American dedication to elite interscholastic and intercollegiate sports, Title IX’s requirement of equal treatment requires that elite female athletes have equivalent opportunities to elite male athletes. The Spanish approach looks instead on the social benefits of athletics participation for boys, men, girls, and women.

De-Gentrified Black Genius: Blockchain, Copyright, And The Disintermediation Of Creativity, Tonya M. Evans

Faculty Scholarly Works

In a 2016 acceptance speech during the Black Entertainment Television (BET) Awards, actor and activist Jesse Williams used the phrase “gentrifying our genius” to refer to the insidious process of misappropriating the cultural and artistic productions of Black creators, inventors, and innovators. In that speech, he poignantly and unapologetically condemned racial discrimination and cultural misappropriation. This Article chronicles the nefarious history of the creative disempowerment of creators of color and then imagines an empowering future for those who successfully exploit their creations by fully leveraging copyright ownership and transfer termination. To that end, I reference the considerable scholarship of Professor …

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

Antitrust Changeup: How A Single Antitrust Reform Could Be A Home Run For Minor League Baseball Players, Jeremy Ulm

Dickinson Law Review (2017-Present)

In 1890, Congress passed the Sherman Antitrust Act to protect competition in the marketplace. Federal antitrust law has developed to prevent businesses from exerting unfair power on their employees and customers. Specifically, the Sherman Act prevents competitors from reaching unreasonable agreements amongst themselves and from monopolizing markets. However, not all industries have these protections.

Historically, federal antitrust law has not governed the “Business of Baseball.” The Supreme Court had the opportunity to apply antitrust law to baseball in Federal Baseball Club, Incorporated v. National League of Professional Baseball Clubs; however, the Court held that the Business of Baseball was not …

Clear Statement Rules And The Integrity Of Labor Arbitration, Stephen Ross, Roy Eisenhardt

Arbitration Law Review (2009 - Present)

Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in collective bargaining agreements, can agree to dispute resolution by an independent arbitrator, whose decision is reviewed deferentially by judges. Where employees or members of an association are governed by its internal rules, in contrast, they often agree contractually to submit internal disputes to an association officer or committee. In this circumstance, the common law governing private associations affords judicial review that is more limited than a civil dispute, but more searching than is the case for …

Clear Statement Rules And The Integrity Of Labor Arbitration, Stephen F. Ross, Roy Eisenhardt

Faculty Scholarship

Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in labor contexts can agree to resolution by an impartial arbitrator, whose decision is reviewed deferentially by judges. Where employees are subject to rules of a private association, they are often contractually obligated to submit their claims to an internal association officer or committee; the common law provides for judicial review more limited than a civil contract but more searching than is the case for an impartial labor arbitrator. Recently, the National Football League and its players …

Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French

Faculty Scholarship

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most …

A Rapid Reaction To O'Bannon: The Need For Analytics In Applying The Sherman Act To Overly Restrictive Joint Venture Schemes, Stephen F. Ross, Wayne Desarbo

Faculty Scholarship

This Article reviews the recent and highly publicized district court decision holding that NCAA rules, which bar student-athletes from any compensation for image rights, violated the Sherman Act, and that big-time athletic programs could lawfully agree among themselves to limit compensation to $5,000 annually in trust for each athlete upon leaving school. This Article briefly discusses why the decision correctly found the current rule to be illegal, but also details why, under settled antitrust law, the critical question of how much compensation would significantly harm consumer appeal for college football and basketball is a question better left to marketing science …

A Strategic Legal Challenge To The Unforeseen Anticompetitive And Racially Discriminatory Effects Of Baseball’S North American Draft, Stephen F. Ross, Michael James Jr.

Faculty Scholarship

Major League Baseball (MLB) has honored a single player by retiring his number for every club. Absent special commemorations, no player will wear the number “42” in honor of the man who broke the color barrier to become the first African American to play major league baseball in the modern era: Jackie Robinson. MLB has also honored a single player—chosen from nominees from each individual club—by presenting an annual award for humanitarian service in his name; that honoree is Roberto Clemente. However, the sad reality is that if a fifteen-year-old Jackie Robinson were growing up today in South Pasadena, California, …

A Regulatory Solution To Better Promote The Educational Values And Economic Sustainability Of Intercollegiate Athletics, Stephen F. Ross, Matt Mitten

Faculty Scholarship

Currently there are several pending antitrust suits challenging NCAA rules restricting the economic benefits intercollegiate athletes may receive for their sports participation. Although remedying the inherent problems of commercialized college sports (primarily Division I football and men’s basketball) is a laudable objective, a free market solution mandated by antitrust law may have unintended adverse consequences. Judicial invalidation of these rules may inhibit universities from providing many athletes with a college education they would not otherwise receive, by eliminating or reducing the value of scholarships for many players whose economic value is less than the cost of an education. A wholly …

Judicial Review Of Ncaa Eligibility Decisions: Evaluation Of The Restitution Rule And A Call For Arbitration, Stephen F. Ross, Richard T. Karcher, S. Baker Kensinger

Faculty Scholarship

Courts have held that the general principles of judicial non-interference with the decisions of private associations do not apply where a dominant organization’s decisions effectively prevent individuals from participating in an important activity, including a profession or sports. Although the bylaws of the National Collegiate Athletic Association (NCAA) give it unfettered power, it remains subject to judicial review when its decisions violate constitutional or statutory limits, or principles of contract law, or when they are inconsistent with the organization’s own rules. As such, general principles of equity should freely permit an athlete to obtain injunctive relief where the applicable standards …

Self-Replicating Technologies And The Challenge For The Patent And Antitrust Laws, Daryl Lim

Faculty Scholarly Works

Few patented inventions challenge the traditional boundaries of the patent and antitrust laws like those that are capable of multiplying as they are used. These self-replicating technologies are embedded in our food, fortify our vaccines, and form the computer code upon which the information age is based. These inventions create an inherent conflict between patentees and their customers. The conflict arises because every customer could become competitors as the product replicates, potentially making every first sale the patentee's last. They also challenge how we think about fundamental issues of ownership as well as innovation and market competition, and make it …

Beyond Microsoft: Intellectual Property, Peer Production And The Law’S Concern With Market Dominance, Daryl Lim

Faculty Scholarly Works

No abstract provided.

Accommodating Labor And Antitrust, Stephen F. Ross

Faculty Scholarship

In this article, the author comments on Professor Michael LeRoy's article "Federal Jurisdiction in Sports Labor Disputes" (2012 Utah L. Rev. 815) and explains why he disagrees with the claim that federal courts improperly invoke the Sherman Act in sports labor disputes.

Using Contract Law To Tackle The Coaching Carousel, Stephen F. Ross, Lindsay A. Berkstresser

Faculty Scholarship

This Article suggests that student-athletes can protect themselves (and, indirectly, fans and students at the university at which they are about to enroll) by securing a binding promise from the coach that he will not voluntarily leave the university throughout the student-athlete's career. This promise could be in a legally binding contract directly between the coach and student-athlete, or by adding to the coach's employment contract with the university a proviso expressly designating student-athletes as third party beneficiaries. Part I briefly describes the problems resulting from the coaching carousel and describes the potential for contracts that limit a coach's mobility …

Where To Begin Researching International Sports Law, Rebecca Mattson

Law Library Faculty Works

In this article, the author discusses selected sources for researching international sports law.

Radical Reform Of Intercollegiate Athletics: Antitrust And Public Policy Implications, Stephen F. Ross

Faculty Scholarship

Universities operating major intercollegiate athletic programs are heading for, if not already in, a crisis. Corruption continues to affect major football and basketball programs, exacerbated by a failure of imagination and will in identifying and deterring corruption, and by a lack of consensus on what constitutes "corruption" when football and men's basketball stars generate millions of dollars but cannot enjoy a lifestyle commensurate with many peer students. Current levels of spending are nonsustainable at many schools. Even where intercollegiate athletic programs are sustained primarily by football and basketball revenues, otherwise visionary and questioning college presidents have yet to publicly question …

Copyright Under Siege: An Economic Analysis Of The Essential Facilities Doctrine And The Compulsory Licensing Of Copyrighted Works, Daryl Lim

Faculty Scholarly Works

No abstract provided.

Antitrust And Inefficient Joint Ventures: Why Sports Leagues Should Look More Like Mcdonald's And Less Like The United Nations, Stephen F. Ross, Stefan Szymanski

Faculty Scholarship

Antitrust law generally favors joint ventures that allow separate firms to integrate economic functions while continuing to compete as independent entities. In evaluating the risks to competition that joint ventures could pose, insufficient attention has been paid to the risk that joint ventures with market power may be structured so that the parties, acting in their independent self interest, will prevent the venture from providing innovative goods and services responsive to consumer demand. In these cases, it may be better if a single firm provided services rather than having them provided jointly.

We illustrate this problem by challenging the conventional …

Player Restraints And Competition Law Throughout The World, Stephen F. Ross

Faculty Scholarship

This article reviews agreements among clubs participating in league sports in many countries throughout the world that limit competition for the services of players. Under the English common law (which governs in most of the British commonwealth), the competition law provisions of the European Union's governing treaty, the American Sherman Act, and the Canadian Competition Act, the governing standard is quite similar. Player restraints cab only be justified if they are related to a legitimate purpose, which is usually defined as one that demonstrably improves the consumer appeal for the sporting competition. Moreover, and significantly, player restraints must be reasonably …

The Nhl Labour Dispute And The Common Law, The Competition Law, And Public Policy, Stephen F. Ross

Faculty Scholarship

This article develops the claim that, absent an agreement with the union, the imposition of a salary cap or punitive luxury tax would constitute an unreasonable restraint of trade, as well as a violation of section 48 of the Competition Act that the Canadian courts should enjoin. The article analyzes decisions of Canadian and other British Commonwealth courts concerning general principles of the common law as well as their specific application in the context of the sports industry. Second, the paper discusses why the same standard applies to restraints challenged under section 48 of the Competition Act. Next. the …

Light, Less-Filling, It's Blue-Ribbon!, Stephen F. Ross

Faculty Scholarship

This Commentary reviews the recommendations of the Blue Ribbon Panel and, accepting the Report's perspective of advocating the long-term interests of baseball fans, identifies some important and positive contributions made by the Report. Next, some significant flaws and shortcomings are discussed. Finally, the Commentary suggests several practical reforms likely to improve competitive balance which plausibly could secure the support of t he various constituencies of the National Pastime.

Antitrust Options To Redress Anticompetitive Restraints And Monopolistic Practices By Professional Sports Leagues, Stephen F. Ross

Faculty Scholarship

The hallmark of an antitrust violation is an agreement which has the effect of raising price, lowering output, or rendering output unresponsive to consumer demand. Owners of clubs comprising Major League Baseball, the National Football League, the National Basketball Association, and the National Hockey League engage in a variety of exploitative activities that consumers cannot avoid by substituting rival products. The purpose of this Article is to analyze specific areas where these monopoly sports leagues harm a variety of groups, through the maintenance of a monopolistic structure that precludes competitive entry, or through specific restraints that have demonstrable anticompetitive effects. …

Art And Ideology In The Third Reich: The Protection Of Cultural Property And The Humanitarian Law Of War, Matthew Lippman

Penn State International Law Review (1982 - 2011)

No abstract provided.

Gambling To Be Competitive: The Gorton Amendment And International Law, Brian C. O'Donnell

Penn State International Law Review (1982 - 2011)

No abstract provided.

The Misunderstood Alliance Between Sports Fans, Players, And The Antitrust Laws, Stephen F. Ross

Faculty Scholarship

The baseball strike and the ongoing hostilities between the players' association and owners have evoked criticism and frustration among fans and others. Although the players successfully defeated the owners' most recent attempts to reduce major league competition, the threat of future imposition of competitive restraints by the owners remains. In this article Professor Stephen F. Ross argues that blanket restraints on the market for players affirmatively inhibit on-the-field competition and consequently offend the Sherman Act.

The article begins with the proposition that monopsony - price-fixing behavior by buyers', rather than sellers' cartels - implicates the Sherman Act. Restraints on competition …