Sports & Entertainment Law

This section includes literature on art law.

Baker, Thomas, Marc Edelman and John T Holden, ‘College Football in the Time of COVID-19’ (SSRN Scholarly Paper No ID 3631528, 19 June 2020)
Abstract: This article explores some of the legal and ethical challenges for college sports in the time of COVID-19, and it explains why it would be entirely inappropriate for colleges that are not planning to offer live classes this fall to have student-athletes return to campus this summer to prepare for a college football season.

Behzadi, Emily, ‘Art Law 201: Painting the Picture of Sales of Art During a Global Pandemic’ 37(1) Entertainment and Sports Lawyer 110–114
Abstract: The 2020 pandemic has occasioned unprecedented challenges to the art market. This article examines how the art market has tried to adapt to this new unchartered territory.

Bezen, Serdar et al, ‘Football: Extension of Players’ Contracts in Turkey Due to the COVID-19 Pandemic’ (2020) 11(2) Sports Law and Taxation 46–48
Abstract: Discusses whether footballers in the Turkish league will be released from their contracts before the end of the season, and how the transfer window will be affected, now that the season has been extended because of the coronavirus pandemic.

Carrick, Sarah, ‘COVID-19 and the Taxation of Professional Athletes’ Image Rights’ [2020] The International Sports Law Journal (advance article, published 15 December 2020)
Abstract: The COVID-19 pandemic has raised and will continue to raise issues for sport for some time to come. In particular, the pressure put on athletes by politicians to take wage deductions and wage deferrals has caused controversy. This scrutiny of athletes’ tax affairs is not unusual, given the particular and somewhat constant media focus, coupled with HMRC’s ‘Football Compliance Project’ regarding footballer’s use of image rights companies to make tax deductions. This focus often presents footballers in an unflattering light. However, the purpose of this article is to demonstrate that the issues regarding athlete image rights are generally not due to overly sophisticated or overt actions by footballers and/or their agents but are the consequence of a convoluted system of taxation. Ultimately, HMRC guidance allows athletes to exploit an ‘image right’ to make tax savings. This ‘image right’ does not exist in law. Thus, this article will show that the current controversy surrounding footballers and their tax affairs is not a novel concept and that in the context of image rights athletes, clubs and agents have been forced to navigate a system of tax which is confusing, at best. In short, the issues surrounding footballers and image rights are due to the fact that ‘image rights’ are protected in one area of law yet do not exist in another.

Conrad, Mark A, ‘Reimagining U.S. Olympic Sports – How the Covid-19 Pandemic Serves as the Catalyst for Public Funding, Greater Transparency, and Increased Athlete Rights’ (SSRN Scholarly Paper No ID 3671087, 10 August 2020)
Abstract: The Amateur Sports Act was enacted over four decades ago when Olympic sports were still an ‘amateur’ pursuit. That law created a self-funding system for the United States Olympic and Paralympic Committee and the national governing bodies for the respective Olympic sports. Its self-governance model resulted in a system of limited transparency and ineffective governance that culminated with the sex abuse scandals involving young athletes. With the growth and change in the now U.S. Olympic and Paralympic movement over the last four decades, this article advocates significant changes to the law to permit direct or indirect government funding for the United States Olympic and Paralympic Committee (USOPC) and the sport governing bodies in return for more stringent transparency and ethical rules. The new law should ‘federalize’ a new governing body that will oversee the USOPC and the governing bodies and create additional rights for rights for athletes and required disclosure and ethics rules for the Olympic bodies. Because of the Covid pandemic and the funding shortfalls faced by the USOPC and the governing bodies, the article concludes that now is the time for such a major change.

Conrad, Mark A, ‘The COVID Pandemic, The Empowering Olympic, Paralympic and Amateur Athletes Act and the Dawn of a New Age of U.S. Olympic Reform’ (SSRN Scholarly Paper No ID 3744574, 1 December 2020)
Abstract: In the fall of 2020, Congress enacted the first substantive changes in the Governance of the Olympic Sports system in over four decades. The new law, The Empowering Olympic, Paralympic and Amateur Athletes Act, was passed in the wake of sexual abuse scandals that rocked certain governing bodies. In amending the 1978 Amateur Sports Act, the new law grants Congress the power to decertify the United States Olympic bodies, mandates greater athlete representation in governance, increases funding to protect athletes through greater support of USA Safe Sport. Aside from the decertification power, the most significant provision of the new law is the establishment of a Commission on the State of U.S. Olympics and Paralympics to review the governance of the United States Olympic and Paralympic Committee (‘USOPC’) and make proposals for change. The Commission’s creation comes at a crucial time in U.S. Olympic governance. Due to the governance scandals, uncertain funding and the general national sports upheaval caused by the COVID-19 pandemic, this article advocates more significant changes to the Olympic structure that the commission should consider, such as direct or indirect government funding for the USOPC and the sport governing bodies in return for adherence to more stringent transparency and ethical rules. Ideas that the Commission could consider include mandatory disclosure of information such as sponsorship agreements and compensation and bonus limitations for those in key leadership positions, the appointment of an inspector-general and greater athlete involvement in the U.S. Olympic movement. The article also proposes more statutory changes such as a limited antitrust exemption and the end of special trademark protections for the USOPC.

Cornelius, Steve, ‘Sport in a Time of COVID-19’ (2020) 11(2) Sports Law and Taxation 9–13
Abstract: Discusses the effects of the coronavirus pandemic on sporting events, the contractual implications of postponement or cancellation and application of frustration and force majeure. Considers the meaning of act of God and dread disease.

Dilger, Alexander and Lars Vischer, ‘No Home Bias in Ghost Games’ (Institute for Organisational Economics, Dicusssion Paper No 7/2020, 1 July 2020)
Abstract: Because of the COVID-19-pandemic the men’s first German football league (Bundesliga) had to finish the season 2019/20 with ghost games as spectators were not allowed in the stadiums. Comparing these games with the regular ones between the same teams before, we find that the normal advantage for the home team disappears. One reason for this is the disappearances of the home bias of the referees whereas changes in the sportive performance of the teams seem to be irrelevant in this regard.

Edelman, Marc et al, ‘Exploring College Sports in the Time of COVID-19: A Legal, Medical, and Ethical Analysis’ [2021] (2) Michigan State Law Review (forthcoming)
Abstract: The emergence of the COVID-19 pandemic threatens the safety of people attending large social gatherings including organized sporting events. As the number of deaths and hospitalizations from COVID-19 skyrocketed in March 2020, the National Collegiate Athletic Association (‘NCAA’) suspended all member colleges’ spring sports seasons. The NCAA has since implemented new guidelines that allow for individual member colleges to make independent decisions about if, and when, to resume their intercollegiate sports programs. This Article explores the implications of resuming intercollegiate sports in the midst of a pandemic from a legal, medical and ethical perspective. The team of scholars who authored this Article include professors at four major public universities, with terminal degrees in the fields of law, medicine, education, and sports management. Adopting a true interdisciplinary approach to the question of how and when to return to sport, the authors collectively express their concerns regarding how NCAA member colleges are approaching the legal and ethical issues surrounding the offering of intercollegiate sports during a pandemic, and propose ten best practices for colleges to determine when and how to resume offering intercollegiate sports.

Engelberg, Terry and Stephen Moston, ‘Crime and Misconduct in Sport’ (2020) 23(6) Sport in Society 975–980
Abstract: The global pandemic of 2020 brought about the suspension of almost all sporting activity. From grassroots sport through to elite competitions, the sporting world effectively ended. At the time of writing (early May 2020), there are tentative plans to restart some elite competitions, with the German Bundesliga and the Australian National Rugby League both announcing that competitions will recommence shortly. In both cases, the plan is to play games for a television audience only, in near-empty stadiums. In the months and years to come, it is likely that Sport in Society will see considerable debate as to the logistical problems in restarting sporting competition during and after a pandemic. For example, as spectators will not be able to attend matches and so there will be no game-day revenues. The purpose of competing is almost entirely to fulfil contractual obligations to television companies and sponsors, not because of any consideration for fans. It is also likely that the journal will see considerable debate as to the social and ethical problems of recommencing sporting competitions. For example, whilst players will need to be tested for COVID-19 on a regular basis, tests for first responders (medical staff, police, etc.) are currently in short supply.

Hardiman, Ann-Marie, ‘This Sporting Life’ (2020) 25(3) Bar Review 67–70
Abstract: Talks to Matthieu Reeb, Secretary General of the Court of Arbitration for Sport (CAS), about the standards CAS arbitrators must meet, innovative initiatives at the CAS, the difficulty of getting all international sporting bodies to recognise its jurisdiction and the challenges of preparing for the Tokyo Olympics which were postponed as a result of the coronavirus pandemic.

Jones, Amanda L, ‘The Dawn of a New Era: Antitrust Law vs. the Antiquated NCAA Compensation Model Perpetuating Racial Injustice’ (2022) 116(5) Northwestern University Law Review 1319–1364
Abstract: Two crises in 2020 fueled the fire underlying a debate that has been smoldering for years: whether student athletes should be compensated. The COVID-19 pandemic coincided with the Black Lives Matter movement and drew unprecedented attention to systemic racism permeating society, including college sports that rely disproportionately on Black men risking physical harm to support an entire industry. The Supreme Court’s decision in NCAA v. Alston opened the door for some athletic conferences to offer student athletes unlimited education-related benefits and called out the NCAA’s business model that relies on not paying student athletes under the justification of amateurism. Alston asserted that the NCAA amateurism model is not exempt from antitrust law, and a scathing concurrence by Justice Brett Kavanaugh said in no uncertain terms that ‘[t]he NCAA is not above the law.’ In the context of the ever-evolving landscape of student-athlete compensation, this Note examines recent changes to the NCAA compensation model and suggests that antitrust law should be used as a vehicle to change the game by correcting racial inequities perpetuated by this business model. This Note asserts that the ball is now in Congress’s court and advocates for federal legislation and collective bargaining to empower student athletes to seek the full value of their labor.

Kindt, John Warren, ‘Bans on Sports Gambling and Lotteries Would Pump-Prime the U.S. Economic System in the New Age of Covid’ (2021) 2021(5) University of Illinois Law Review 1771–1793
Abstract: A strong economy is essential for U.S. national security. The economic downturn caused by the 2020 COVID-19 pandemic has again highlighted this basic economic principle. In the context of legalized gambling, Nobel-Prize Laureate Paul Samuelson emphasized that gambling creates ‘no new money or goods’ and ‘subtracts from the national income.’ The economic multiplier effect of ‘consumer dollars’ is negated or otherwise substantially diminished when consumer dollars are diverted into gambling dollars. Therefore, the $2.2 trillion economic stimulus of the 2020 Coronavirus Aid, Relief, and Economic Stimulus Act (CARES Act) wasted billions of dollars of the $260 billion allocated for unemployment benefits and the $300 billion allocated in payments to U.S. citizens. Intended to put food and other necessities of life in consumer pantries, billions of CARES Act dollars were instead misdirected into lotteries--creating record lottery sales, for example, in Georgia and Texas during the first 30 days of the CARES Act. While shutting down productive consumer businesses, governors declared lotteries to be ‘essential’--although historically states were receiving only 27 cents per gambled dollar. More importantly, U.S. lotteries take $85 billion out of the U.S. consumer economy each year (with only $23 billion going to state budgets). Accordingly, the cheapest and most effective way to pump-prime the consumer economy would be to shut down the lotteries. This $85 billion would thereby morph into a consumer economic multiplier resulting in approximately $255 billion in new economic spending on consumer goods (or over $1 trillion in 4 years). In his 1999 Martin Luther King Day speech in Chicago, Jesse Jackson emphasized that ‘[t]he new chains of slavery happen to be . . . lottery tickets.’ Later in 1999, the state lotteries were savaged by the congressional U.S. National Gambling Impact Study Commission, in its Final Report (‘NGISC Final Report’). Academically, it is well-established that lotteries make ‘poor people poorer’ and target-market to minorities contributing to gambling addiction rates of: African Americans (2-4%); Native Americans (2-6%), Hispanics (2-3%), and Caucasians (1.2-2%). As reported in the Wall Street Journal, these social and economic concerns prompted Mr. Les Bernal, the national director of the charity Stop Predatory Gambling (‘SPG’), to write to all U.S. governors and state attorneys general detailing the need to close the state lotteries. The 2020 movie Money Machine, however, documented the power of the gambling lobby in suppressing adverse facts. While Columbine and Sandy Hook remain in the psyche of the U.S. public, Money Machine details how the October 1, 2017 Las Vegas killings have been sanitized via ‘a web of corruption and cover-ups that make the Vegas of yesteryear, when it was still run by the mob, seem positively quaint.’ The biggest mass murderer in U.S. history, Stephen Paddock, killed 59 people including himself and injured 413 by gunfire. It would be difficult to argue that Paddock did not satisfy the American Psychiatric Association’s criteria for being an addicted or problem gambler. All of these facts and trends are well-known to the gambling industry, whose business model has morphed toward abandoning brick and mortar gambling facilities in favor of widespread internet gambling--utilizing sports gambling to build pressure on government decision-makers. Gambling lobbyists are looking to leverage the COVID pandemic and the public’s natural affinity for sports into real-time 24/7 gambling on cell phones and throughout video games. In the age of COVID, bans on sports gambling and lotteries would inexpensively and effectively pump-prime the U.S.

Lindholm, Johan, ‘Editorial: When Sports Is the Most Important Utterly Non-Important Thing in the World’ (2020) 20(1) The International Sports Law Journal 1–2
Abstract: It will take considerable time before it is possible to fully gauge the impact of Covid-19 on sports, but it is possible to see some possible and significant consequences and related legal issues that will follow in the wake of the virus. As often, most of these are related to the commercial aspects of sports and there are both short- and more long-term issues.

McCarthy, Claudine, ‘Campus Partnerships Play Valuable Role in Managing Legal Ramifications of Tough Decisions Tied to Pandemic’ (2020) 17(6) College Athletics and the Law 12
Abstract: College athletics administrators have long known the importance of considering the legal implications of the decisions they make as part of their daily work. But now those legal considerations have increased in scope and complexity due to a completely changed environment.

Pryor, Gregor, ‘Music in the Metaverse’ (2022) 34(2) Intellectual Property & Technology Law Journal 15–19
Abstract: The article reports on the innovations by music industry players, particularly performing artists, in the delivery of live music performances due to challenges posed by the COVID-19 epidemic, including online streaming and the use of the metaverse. Also cited are the benefits of metaverse as a live music platform like the ability to interact with the audience in real time and the possibility of using an avatar or other visual representation of an artist.

Reade, J James and Carl Singleton (eds), ‘European Football After COVID-19’ in A New World Post COVID-19: Lessons for Business, the Finance Industry and Policy Makers (Ca’ Foscari University Press, 2020) 349–358
Abstract: The European football industry has suffered an unprecedented shock from COVID-19. In this chapter, we reflect on how the sport’s administrators responded to the initial outbreaks and what lessons can be learned. We also look ahead to what football in the post-COVID-19 era could look like. We conclude that this largely depends on the decisions now facing the sport’s administrators and the powerful owners of the biggest football clubs: will they prioritise football as the inclusive and diverse game, at the heart of local communities? Or will their intrinsic financial interests dominate?

Rubí-Puig, Antoni, ‘Coronavirus’ Impact on Broadcasting Rights for the Spanish Professional Football League’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The spread of SARS-CoV-2 and the measures adopted by public authorities to prevent health risks posed by COVID-19 led organizers of sport events worldwide to cancel all ongoing competitions. The Spanish Professional Football League or ‘La Liga’ was suspended for almost three months, and pending matches for the 2019-2020 season have now resumed with a new and tight calendar. Such unexpected changes in the championship have undoubtedly diminished the value of La Liga broadcasting rights and have generated losses to their national and international holders. This contribution discusses the application of Spanish contract law to identify any possible claims that broadcasters could have to seek some relief. On close inspection, it is unlikely that broadcasters could enjoy any remedies to claim damages, to terminate their payment obligations or to adjust their contracts with La Liga’s organizer. However, due to the particularities of the football broadcasting market, voluntary renegotiation of contracts is expected to occur.

Stevens, Patrick A, ‘Constitutional Interpretation Remains Unsettled After Sixth Circuit’s Preliminary Assessment of University Vaccine Mandate’ (2022) 83 Ohio State Law Journal Sixth Circuit Review Article 001
Abstract: At the beginning of the 2021 school year, Western Michigan University (WMU) instituted a policy requiring student-athletes to be vaccinated against COVID-19, and sixteen student-athletes requested religious exemptions to this requirement, which the university denied. Barred from participation in team activities, these student-athletes sued WMU in federal court for allegedly violating their rights under the First Amendment. The case reached the Sixth Circuit Court of Appeals as WMU sought a stay of the district court’s preliminary injunction, which kept the school from enforcing the vaccination requirement against the plaintiffs. Because the likelihood of success of a plaintiff’s claim is typically the determinative factor when the Sixth Circuit decides whether to stay a district court’s preliminary injunction, the court declined to stay the preliminary injunction in Dahl v. Board of Trustees of Western Michigan University. 5 The court’s analysis in Dahl delineates the distinctions between WMU’s vaccination requirement and mandates that are constitutionally valid. This decision also spotlights the precarious balance between proper deference to sincerely held religious beliefs and misguided deference to what may instead be political and social ideologies masquerading as—or entangled with religious beliefs.

Weston, Maureen A, ‘COVID-19’s Lasting Impact on the Sports Industry: Financial, Legal, and Innovation’ (Pepperdine University Legal Studies Research Paper No 2020/21, 14 July 2020)
Abstract: The COVID-19 pandemic has wrought unprecedented havoc across the globe. Every sector of society has been impacted and forced to change business as usual, to re-evaluate priorities and systems, and to innovate amid the unknown and possible lasting impacts of this threat to public health and commerce. Sport worldwide is also profoundly impacted. Since the World Health Organization declared COVID-19 a pandemic on March 11, 2020, nearly all competitive sports have been suspended, postponed, or cancelled, raising significant questions about how to deal with the severe financial impacts, legal issues, and when and how to resume play safely amid continued uncertainty. Like other sectors, the impact on sports is likely to far outlast the pandemic. Sports has been, and will continue to be, forced to pivot, innovate, and remain vigilant to survive as an industry and to ensure player, personnel, and spectator health, safety, and security. Recognizing that the crisis is not yet over and the impact of COVID-19 on the global sports industry is in the nascent stage, this article nonetheless seeks to examine the impact of COVID-19 on major competitive sports, from a financial, legal, and problem-solving perspective. The article contends that, while many financial, legal, and practical outcomes remain pending and unresolved, the rules for operating sports as we knew it have changed. To survive, sport must put safety first, anticipate and plan for this and future crises, innovate, and find common ground, despite technical force majeure rights that could pose a disparate impact on one party, to preserve industry and the very sports we adore. The challenges and lessons that can be learned from this crisis will have a lasting impact on and throughout the sport industry.

Windholz, Eric, ‘COVID-19, Professional Sport and Health and Safety: Australian Cricket – A Case Study’ (2021) 14(1) Australian and New Zealand Sports Law Journal 1–35
Abstract: COVID-19 played havoc with professional sports. Events were postponed or cancelled; organisations were placed under enormous economic strain; and financial, commercial and governance tensions were exposed. The same organisations then faced the daunting task of having to reformulate competitions and events to be COVID-safe. These challenges raise complex legal and regulatory issues. This article examines one set of these legal and regulatory issues – namely those associated with managing the health and safety risks associated with resuming professional sport in a COVID-19 environment. While much has been written about managing these risks from a medical and scientific perspective, comparatively little has been written about them from a legal or regulatory perspective. This article contributes to filling this gap using Cricket Australia’s response to the pandemic as its case study. Cricket’s complexity of men’s and women’s international and domestic competitions, across different formats, and in every Australian State, provides an interesting and instructive case study from which valuable insights and lessons can be distilled to inform other professional sports faced with solving like problems in the future.

Young, Rachel, ‘Forced Play: Was the MLB Commissioner’s Decision to Force a 2020 MLB Season amid Coronavirus Unenforceable, or Just a Bad Idea?’ (2021) 28(2) Jeffrey S. Moorad Sports Law Journal 499-553
Extract from Introduction: This Comment discusses the various contract doctrines under which the MLBPA’s performance could have been excused, ultimately assessing why these legal arguments reflect that the decision to play a 2020 MLB season was a bad idea (as implemented) regardless of whether the agreement was enforceable. Part II discusses the history of MLB negotiations (including negotiations for the 2020 Agreement), assessing why the 2020 season interruption is unique. Part III defines the legal doctrines the MLBPA could have relied on to defend a refusal to perform under the 2020 Agreement. Part IV of this Comment analyzes the potential arguments the MLBPA would make under each of the defined doctrines and assesses why the arguments the MLBPA could make under each doctrine are also arguments likely to cause a stoppage during 2021 collective bargaining agreement negotiations. Part V of this Comment analyzes the lessons the MLB and MLBPA can learn from their surprisingly successful 2020 season. Finally, Part VI predicts how the forced season and the ugly negotiations surrounding it could negatively impact the MLB moving forward.

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