THE SECOND ANNUAL PUBLICATION: Pace I.P., Sports, & Entertainment Law Forum

An online publication produced at Pace Law School by Pace Law Students

The Forum, now in its second year, remains focused on publishing scholarly articles, commentaries, and reviews on Intellectual Property, Sports and Entertainment law. It follows recent issues in these fields of law and serves as a resource to practitioners and students alike. This year’s edition has expanded to include 11 articles for your reading pleasure! The Forum hopes to generate discussion and interest in IP, Sports & Entertainment law.

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Volume 2

Pace I.P., Sports, & Entertainment Law Forum

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Football v. Football: A Comparison of Agent Regulation in France’s Ligue 1 and the National Football League

Thomas A. Baker III, Darren A. Heitner, Jean Francois Broçard, and Kevin K. Byon

Baker, Heitner, Broçard and Byon, in their article Football v. Footbll, analyze agent regulation in the NFL and compare it to how agents are regulated in France for Ligue 1. The article begins with a brief discussion on the concept of a sports agency that includes analysis of governmental regulation of agency in both the United States and in France. The article continues by exploring how agents are regulated in their representation of the NFL and Ligue 1 football players. Subsequently the article concludes with a discussion that includes suggestions concerning future agent regulation for both the NFL and Ligue 1.



Combating Online Trademark and Copyright Infringement: ICE and DOJ Domain Name Seizures New Tools In the Government’s Efforts to Combat Online IP Infringement

Tanya Dunbar

The ICE seizures and proposed legislations to codify ICE-style seizures have led many to question the legitimacy of ICE’s seizures and decry the bills as censorship.  Tanya Dunbar’s article explores the reasons for the government’s actions, the seizure mechanism the government employs, and the controversy surrounding domain name seizures.  Where possible, the Ms. Dunbar offers solutions to some of the controversial issues that may arise.


Social Media In Sports: Can Professional Sports League Commissioners Punish ‘Twackle Dummies’?

An Analysis of Professional Sports Leagues Restrictions on Athletes’ use of Social Media

Daniel J. Friedman

Daniel J. Friedman writes an article discussing the rise and popularity in social media use by professional athletes.  He then discusses some of the new problems that have arisen due to social media misuse and the power of the
Commissioner to restrict and punish the players for misuse.  The article culminates with a case study hypothetical related to content based social media misuse and whether the Commissioners of professional sports league can punish a player for the content of their social media messages.


American Needle’s Progeny? Tennis and Antitrust

Ryan M. Rodenberg and Daniel Hauptman

Decided in the shadow of the U.S. Supreme Court’s May 2010 decision in American Needle v. NFL, Ryan M. Rodenberg and Daniel Hauptman analyze Deutscher Tennis Bund v. ATP World Tour (hereinafter “DTB v. ATP”) and aim to explain its implications for individual sports (e.g. tennis and golf) and sport governance generally.  Treatment is afforded to both the District  Court’s jury verdict and the Third Circuit’s appellate decision in DTB v. ATP.  Despite being the first federal appellate sports antitrust decision rendered following American Needle, this article concludes that DTB v. ATP should not be considered an offspring of American Needle.  More specifically, this article posits that the: (i) Third Circuit correctly applied relevant antitrust precedent in upholding the governing body’s unilateral decision to demote the German-based  tournament to second-tier status as part of the ATP’s overall administration of men’s professional tennis globally; (ii) case would have been decided the same way notwithstanding American Needle; and (iii) DTB v. ATP holding is consistent with the Supreme Court’s ruling in American Needle.  Part II of this paper will provide background information on the ATP as well as the Sherman Act.  Part III will discuss both court rulings – the jury trial in the District Court and the Third Circuit’s affirming opinion – in which the ATP prevailed.  Next, Part IV will analyze the pivotal legal issue that ultimately led the case to be decided in favor of the defendants, as well as provisionally explore how this dispute may have been decided under EU competition laws.  Finally, Part V will conclude by examining how this vital antitrust ruling has affected the Hamburg tennis tournament and the ATP.


Sports in America

John D. Feerick

A speech written and delivered by Dean John Feerick on April 17, 2009 at the Fordham Law School Sports Law Symposium gives us an insightful look into what sports mean to the world around them.  Dean Feerick has been involved first hand in a number of influential sports law decisions in his time as a practitioner and this speech serves as a reminder as to the meaningful role that sports play in each one of our lives.  Feerick draws from life experiences of his own as well as that of colleagues and family members to observe the timeless and universal nature of Sports.


Back On Track 2:  The Principles Of Corrective Justice For Performance Enhancing Malpractice In Sports

Andrea Carska-Sheppard, Paul Weiler, and Jim Medford

The first version of this article appeared on the Social Science Research Network more than five years ago. At the time, Andrea Carska-Sheppard, Paul Weiler, and Jim Medford suggested an interdisciplinary debate to bring about solutions urgently needed in the area of performance enhancing malpractice in sports.  This was before the Congressional investigations on steroid use, which brought public scrutiny to professional sports. While our society deals (with varying success) with other types of offenses by providing perpetrators with means of support and rehabilitation, we noted there is very little systematic support available to athletes who are suspended for performance enhancing malpractice.  The article offered a debate on the legal model that would provide corrective justice and rehabilitation for these types of wrongdoing.   In order to create a legal model the authors turned to Professor Weiler’s proposed medical malpractice theory and applied it to performance enhancing malpractice. The World Antidoping Agency (WADA) has now adopted its revised Anti-Doping Code and the time has come to revisit our article and the proposed model. What the authors found is that, despite of the passage of time, their proposal is still timely and calls for the attention of all stakeholders. Though the new Anti-Doping Code sheds light on various aspects of doping prosecution and education, it is silent as to the rehabilitation and assistance provision to athletes implicated in doping.  The concept of offering a systematic assistance model to the wrongdoers relates to the morality of current and future generations, which cannot be ignored.  Instead it is time for the stakeholders to review and examine the model proposed in this article, which would assist athletes and enhance corrective principals in doping malpractice management.


For  the Love of the Name: Professional Athletes Seek Trademark Protection

Brett Harris Pavony and Jaia Thomas

Brett Pavony & Jaia Thomas  wrote an article that explores the burgeoning relationship between professional sports and trademark law.  After providing an overview of the various requirements outlined by the United States Patent and Trademark Office (USPTO), the article transitions into exploring the emerging trend of sports figures seeking federal trademark protection.  Brett & Jaia blend their expertise and research to present an article that focuses on an analytical examination of  professional athletes seeking trademark protection.  The article also offers a glimpse into the  future of intellectual property law as it pertains to professional  athletes.  As more and more athletes seek  to take advantage of the legal tools afforded through U.S. trademark law, the  article concludes by offering practical advice for athletes as they continue to protect and monetize their personal brands.


War of the Dolls: Did the Ninth Circuit  fail to apply the “Intended Audience Test” in holding substantial similarity should be determined from the Perspective of the “ordinary observer” and not a  “child” in Mattel v. MGA Entertainment?

Emily Flasz

Emily  Flasz writes an article on the application of the substantial similarity test in copyright infringement cases. Her article addresses whether the second prong of the substantial similarity test, the “intrinsic test,” should include the  “intended audience test” when the works in issue are intended for children. She examines this question within the context of the Ninth Circuit’s decision in Mattel, Inc. v. MGA Entertainment, Inc. and provides an in depth look at how
the Second, Third, Fourth, Sixth, and Ninth Federal Circuit Courts have applied the “intended audience test” when the works in dispute are intended for specialized audiences, particularly children.


A  Changing Game: The Inclusion of Transsexual Athletes in the Sports Industry

Joseph  Randall

Joseph Randall explores the emerging trend in the sports industry towards the inclusion of transsexual athletes. He analyzes the impact of Renee Richards v. United States Tennis Association, the first case to speak on the legal rights
of transsexual athletes, and then provides an overview of how the sports industry is gradually making it easier for transsexual athletes to compete in athletics.   Randall ultimately concludes that in the interests of ethics and equality, the
sports industry has a duty to afford all transsexual players an equal opportunity to play.


The Creative Commons: A Supplement to Copyright in Today’s Technological Culture

Frank Polcino

In his article “The Creative Commons: A Supplement to Copyright in Today’s Technological Culture”, Frank Polcino discusses the relatively new licensing approach for copyrightable works, which originated from a 501(c)(3) tax-exempt charitable corporation called Creative Commons.


How Close Is “Too Close”

Lana Ciaramella

Lana Ciaramella writes an article on trade dress infringement.  Her article discusses the standards of trade dress infringement, how they are applicable to private label products and how the courts have modified their view of trade dress infringement over time.  She focuses on the landmark decision in McNeil Nutritionals, LLC v. Heartland  Sweetners, which set a new precedent for treatment of trade dress infringement  by private label manufacturers of brand name products.

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