California state Senator Nancy Skinner (D-Berkeley) proposed a bill that would compensate college athletes from the state’s 24 public colleges for sponsorship opportunities. The “Fair Pay to Play Act” would also allow student-athletes to sign with agents while maintaining amateur status in order to ensure they are adequately represented while pursuing these new opportunities.
The bill would not, however, allow universities to pay students directly. Instead, it would allow students to benefit from uses of their “name, image, or likeness.” The bill cites a 2012 study by the National College Players Association and Drexel University Sports Management Program which estimated the fair market value for the average college basketball player at $137,357, while many live at or below the poverty line.
The bill would likely put the NCAA and California colleges on a direct collision course; the NCAA could ultimate deem any paid student-athletes ineligible to compete in college sports. If the NCAA bars these athletes from competing, it could have a crippling effect on college sports in California. If, however, the NCAA allows paid players to compete, it could open the door for other states to pass similar bills, permanently altering the landscape of amateur athletics.
In a 2015 case on the subject, the Ninth Circuit Court of Appeals ruled that the NCAA did not need to require schools to compensate players for using their likeness.
Mike Klain is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).
Image: NCAA Basketball, Phil Roeder, CC BY 2.0.
In January, former Oregon Ducks offensive lineman Doug Brenner sued his alma mater, coaches, and the NCAA for $11.5 million, relating to a series of extreme workouts in 2017. In the wake of the workouts in question, Brenner and two teammates suffered from rhabdomyolysis, a syndrome in which muscle content breaks down and leaks into the bloodstream.
The workouts, argues Brenner, were not focused on improving player performance but rather on discipline. The extreme number of repetitions caused players to vomit, collapse, and even pass out. For Brenner, his case of rhabdomyolysis resulted in permanent kidney damage.
The suit alleges that the head football coach and strength and conditioning coach, as well as Oregon University and the NCAA, were negligent and should have known that such extreme workouts could result in rhabdomyolysis, as similar incidents have occurred at Nebraska, Maine, and Iowa. The lawsuit will be heard in Oregon’s Multnomah County circuit court.
Thomas “Buddy” Bardenwerper is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).
Image: Quintin Soloviev, The Oregon Duck at a basketball game in 2017, CC BY-SA 4.0
Editor’s Note: Welcome to Career Spotlights, where we publish short-form interviews with real-world sports/entertainment-industry practitioners who are employed by (or alumni of) our partner firms.
David Marroso, Partner, Century City, Los Angeles, CA
Practice Areas/Industries: Sports and Entertainment Litigation
Education: Harvard Law School
Hometown: Las Vegas
You Picked O’Melveny Because: Warren Christopher
“Typical” Workday: No such thing. Every day is full of surprises.
Favorite Part Of Your Job: Learning new industries, businesses, and client-focused strategies
What Fires You Up: Trials
What You Would Tell Yourself In Law School: Slow down.
Person You’d Most Like To Meet In Your Industry: Chief Justice John Roberts
CSEL x JSEL Members Might Be Surprised To Know: Sports law is more law than sports
Favorite Law School Class (And Professor If HLS Alum): Enjoyed the entire experience. Favorite professors were Kagan, Zittrain, Hyman, and Ogletree
Ideal Day Off: Time with family
On Thursday, Judge Janis Sammartino of the Southern District of California rejected the affirmative defenses advanced by Conan O’Brien in a long-running joke theft lawsuit. The suit centers on four jokes that O’Brien told on his show Conanin 2015, which were allegedly stolen from the Twitter account of plaintiff Robert Kaseberg, a former comedy writer for The Tonight Show with Jay Leno.
O’Brien’s affirmative defense specifically stemmed from “The Tom Brady Joke,” which he told on his show the day after Super Bowl XLIX in February 2015. The joke stated that the truck which was given to the winning team’s “Most Valuable Player” should have instead gone to the losing team’s head coach because of a controversial decision he made toward the end of the game. The structure and content of the joke were similar to a tweet written by Kaseberg earlier that same day. Kaseberg filed suit in July 2015.
O’Brien argued that Kaseberg defrauded the Copyright Office when attempting to register the Tom Brady Joke in August 2016. First, O’Brien’s team argued that Kaseberg did so by mischaracterizing the Court’s opinion from an earlier order in his copyright registration documents. Specifically, Kaseberg stated that the Court had held the joke was entitled to copyright protection, omitting the fact that this came from an order stating the joke was actually entitled “to only ‘thin’ copyright protection.” Second, O’Brien argued that Kaseberg withheld the fact that he had previously been denied a copyright on the joke when re-registering it.
The Court dismissed both arguments. It concluded that its previous order, in which it stated that Plaintiff’s joke was entitled “to only ‘thin’ copyright protection,” necessarily implied that somecopyright protection was warranted. Though it may have been misleading to omit the fact that such protection was “thin,” the Court found that “there was no intent to defraud.” It also ruled that Kaseberg did not have any duty to disclose his previous copyright rejections when re-registering with the Copyright Office.
While the concept of “thin” copyright does not appear anywhere in the US code, it will likely play a major role as this lawsuit proceeds. A work’s copyright protection is thin when the work is “simple, readily created, and descriptive or reflective of external world realities.” Sammartino ruled that topical jokes like the Tom Brady Joke, which followed a conventional set-up/punchline structure, have only thin protection. Kaseberg will therefore have to prove that the two jokes were virtually identical to prove copyright infringement. Other examples of jokes with thin protection include photographs of common objects or simple computer icons, such as the recycling bin icon.
Alex Van Dyke is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).
Image: The Tonight Show with Conan O’Brien, Ryan Olsen, CC BY 2.0.