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The Tulane Law School Sports Law program provides students with the background necessary to understand and handle problems unique to the sports industry.

Tulane Sports Law Blog

Speaker Series

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The Tulane Sports Law Society hosted four excellent professionals this semester as part of its ongoing Speaker Series. The Speaker Series is designed to introduce students to professionals working in the sports industry and to provide the opportunity to learn about the day-to-day workings of the industry.  In addition, students learn about the variety and breadth of different careers and career-paths available to them upon graduation.

This semester, the society hosted Dell Demps, general manager of the New Orleans Hornets; Ari Nissim, Director of Football Administration for the New York Jets; Tandy O'Donoghue, Vice President of World Wrestling Entertainment; and Darren Heitner, Founder/CEO of Dynasty Athlete Representation.

Each of the speakers provided candid accounts of the paths they took to be where they are today and generously answered a wide of array of questions.  But perhaps most importantly the speakers provided valuable career advice to the students.  The speakers stressed the importance of networking and having a willingness to do anything and go anywhere.  Additionally, students were advised to decide why they want to work in sports and attempt to specialize in that area. Lastly, the speakers made it clear that even though it will take a bit of luck to land a dream job, luck is where preparation meets opportunity.

We would like to thank each of the speakers for taking time out of their busy schedules to provide their insights into the sports industry and give invaluable career advice.

If you would like to be a part of the Speaker Series, please contact Sports Law Society President Nicholas Sabella (nsabella@tulane.edu).

College Athletes and the Right of Publicity, Part 2

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Written By: Andrew Sensi

This is the second of three posts examining the right of publicity and the lawsuits initiated by former student-athletes against the NCAA and Electronic Arts.  The first post focused on defining the right of publicity and tracking its history.  In that post, I argued that the level of protection afforded by the right of publicity can be analogized to a pendulum which swung initially from no protection in the early half of the 20th century, to the peak of its protection in the latter half of the century, and since approximately 1993i, has begun a swift swing back towards a lack of meaningful protection.

One of the primary reasons for this shift is a change in attitudes about the justifications for and criticisms of the right of publicity.  In this post, I will discuss the array of justifications and criticisms, and argue that the criticisms have gone too far.

John Locke, Natural Rights, Unjust Enrichment, and Incentives to Create

"It would seem to be a first principle of Anglo-American jurisprudence, an axiom of the most fundamental nature, that every person is entitled to the fruit of his labors."ii This Lockean labor theory is often combined with a natural rights argument that a person's identity is their own property, to control as they see fit.  Combined, they form perhaps the strongest and most cited justification for the right of publicity. Proponents of this theory would agree that, "[I]n most instances a person achieves publicity values of substantial pecuniary worth only after he has expended considerable time, effort, skill, and even money."iii

Related to these justifications is the goal of preventing unjust enrichment. The Supreme Court put it best when it stated:

The rationale for protecting the right of publicity is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.iv

In combination, these theories seek to justify the right of publicity on the grounds that a person's identity can become valuable through that person's labor and allowing others to take this value without providing compensation is unjust. 

Similarly, proponents of the right of publicity argue that it provides an incentive for people to work to transform their identities into marketable commodities. Proponents of this incentive argument believe that people "should be given an economic incentive to undertake socially enriching activities which require entering the public scene." The incentive justification has been recognized and supported by several courts, including the Supreme Court.vi

Critics of the right of publicity have rejected these justifications and argue that (1) a person's fame is not the result of their labor, and even if it were, the value in the celebrity's identity is largely a result of factors beyond their control,vii  (2) the right of publicity provides little or no incentive to achieve success,viii  and (3) celebrities already make enough money in their respective fields.ix

Continue reading here... 

College Athletes and the Right of Publicity, Part 1

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Written By: Andrew Sensi

In the past few years several lawsuits have been initiated by former collegiate athletes seeking compensation for the alleged use of their likenesses in video games and other products licensed by the National Collegiate Athletic Association ("NCAA") and its member institutions. From lesser known athletes such as Sam Keller and Ryan Hart, to well-recognized athletes such as Oscar Robertson, Ed O'Bannon and Bill Russell; former student athletes have alleged various violations of their right of publicity. Sam Keller and Ryan Hart's claims stem from the video game series NCAA Football produced by Electronic Arts ("EA"). Likewise, Bill Russell's claim stems from EA's alleged use of his image in an NCAA basketball video game. Meanwhile, Oscar Robertson and Ed O'Bannon claim that the NCAA, EA and the Collegiate Licensing Company ("CLC") have (1) conspired to fix prices for the use and sale of their images at zero dollars, and (2) engaged in a group boycott by requiring student athletes to relinquish publicity rights in perpetuity.

This post is the first of several which will examine the history of the right of publicity, the justifications for and criticisms of the law, along with the potential success or failure of these recent suits. This post will focus on defining the right of publicity, and tracing its history.

The right of publicity is "the inherent right of every human being to control the commercial use of his or her identity," and until recently was generally successful in securing to persons the commercial value of their identities. In general, the elements of a right of publicity claim are (1) use of a person's identity, (2) for a commercial purpose, (3) without their consent. The term identity is broad and includes, but is not limited to a person's name, nickname, photograph, voice, likeness, and persona. Two commonly asserted defenses to a right of publicity claim are copyright preemption and the First Amendment.

Continue reading here... 

Disturbing Trends in Stadium Safety

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Written by: Emma Stendig
With Research Assistance by: Eric Ferrante

Brian Stow, the San Francisco Giants fan beaten at Dodgers Stadium early this baseball season, was finally released from the hospital and into rehab this month.  But the debate about stadium safety, especially in professional baseball and football, continues to make headlines.  Leagues and stadium operators face a myriad of issues; including pat downs, tailgating, intense regional rivalries and unsafe conditions.  In an era when live-game-attendance is in serious competition with television broadcasts, leagues and teams must make a concerted effort to ensure the safety of their stadiums if they are to stand a chance in attracting spectators to their events.  Yet, it remains to be seen how leagues and stadium operators are going to deal with these ongoing problems.  One thing is clear though, no matter what they decide to do, they have to address the role that alcohol plays in the majority of the incidents that have rocked the sports world.
 
Long before Brian Stow, the NFL instituted mandatory pat downs at all games.  Shortly after 9/11 the league recognized football games and stadiums as "soft targets" for terrorists, highly visible events followed by millions that also uniquely embody American values and celebrations.  As the only league with mandated pat downs, the NFL looks to shield itself, host teams, and stadium operators from massive tort liability in the event of an attack.  While most fans are accepting and understanding of the pat downs, constantly reminded by signs and stadium personnel, there is a minority who strongly oppose the pat downs.1
  
An ACLU representative has described the pat down as "essentially being groped by a stranger." Others cite the 4th amendment which requires physical searches by government personnel to be reasonable.  Critics of those who oppose the pat downs say the criticisms are unfair and fans consent to them by entering the stadium and attending the game.  Nevertheless, the California Supreme Court decided a case in March of 2009 holding that ticket holders adequately alleged a legally protected interest and a reasonable expectation of privacy not to be subjected to pat downs when attending a football game.  Still, violence at football games persists despite the pat downs.  A little over a month ago, on the ten-year anniversary of 9/11 a fan attacked another fan with a taser during the Jets home opener against the Cowboys at New Meadowlands stadium in New Jersey.2   The man was charged with aggravated assault and weapons possession charges; he was later released on $22,500 bail.  Despite increased security for the anniversary, no one could explain how the taser made it past security during the pat down and into the stadium.

Continue reading here...

Tulane Sports Law Program in the news

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Tulane Law is extremely fortunate to have a pre-eminent Sports Law Program. Many of our students choose TLS specifically for the extensive sports law curriculum providing students with an unparalled exposure to the relevant issues encountered by practitioners in the sports law arena. TLS also offers a Certificate of Specialization in Sports Law which includes a coherent foundation preparing students for the various practice areas encountered by the sports law practitioner. In addition to the certificate program, TLS offers its students the opportunity to participate on the staff of The Sports Lawyers Journal. Students may write short articles or assist in editing. Additionally, TLS has an active student-run Sports Law Society that regularly meets with important sports figures to discuss legal issues, and often sponsors public programs involving leading sports attorneys and business leaders. In the spring, Tulane's Moot Court Board will host the annual Mardi Gras National Moot Court Competition, based on a contemporary legal problem confronting the sports industry. Finally, we are very proud to have Professor Gabe Feldman as an Associate Professor of Law and Director of the Sports Law Program at TLS. Professor Feldman has appeared on radio and television programs and is regularly quoted in newspapers throughout the country, including recently in The Salt Lake Tribune and in USAToday. If you have any further questions about our Sports Law Program, please review the Sports Law Brochure located on this website.

Tulane Law also has a very active alumni group practicing in the sports law industry. These alumni work for teams, governing bodies, firms, and many other disciplines practicing sports law. One of our alumni, Dean Warren Zola, recently testified before the US Congress on “The Impacts of Back-Room Deals, Payoffs, and Scandals in American Collegiate Student Athletics.” Warren K. Zola is the Assistant Dean for Graduate Programs in the Carroll School of Management at Boston College. He earned his Juris Doctor degree from Tulane University in 1992 where he founded the Sports Law Society.

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