by JSEL | Oct 25, 2019 | Highlight
Electronic Arts (EA) CEO Andrew Wilson recently expressed interest in bringing back the once-popular NCAA Football video game franchise, if the legal framework governing college athletics changes in such a way that would permit its existence. Wilson made the comments at the WSJ Tech Live conference in California, favorably citing a newly signed California law that, starting in 2023, would allow college athletes to profit off of their name, image, and likenesses. The hope is that such a law could “clear the way” for NCAA Football’s return. To be sure, the NCAA opposed the California law and prefers to solve the issue of athlete compensation on its own terms.
EA Sports, a division of EA, last released NCAA Football in 2013—reporting indicates that the game was immensely “popular, ranking behind the FIFA soccer game and the NFL Madden game among EA Sports’ titles[.]” In 2013, the NCAA allowed its licensing deal with EA Sports to expire, citing “the current business climate” and litigation, like the Ed O’Bannon lawsuit, that challenged the revenue scheme related to the usage of college players’ names, images, and likenesses in broadcasts and video games.
The NCAA Football franchise is definitely still on the minds of some at EA Sports headquarters. As Business Insider recently pointed out, EA folded some college football gameplay into its latest installment of Madden NFL—Madden 20—but safely included it in a pre-set, scripted mode (QB1: Face of the Franchise) which does not allow for player customization.
It seems unlikely that EA Sports would spite the NCAA and bring back some iteration of NCAA Football with only California schools. After all, EA jeopardizing its relationship with the NCAA could complicate future efforts to re-introduce NCAA Football in full if the legal landscape settles in such a way that creates the conditions necessary for the franchise’s return. Further, given the opposition to the California law from “[t]he University of California system, California State University schools, Stanford and USC[,]” it would be quite a reversal for the schools to come together and make their own deal with EA Sports for a video game, independent of their governing body.
The possibility of NCAA Football returning is sure to excite football fans and sports gamers (this author included). However, given the uncertain legal future of compensation in college athletics, it remains too early to tell if the once-prominent video game franchise will be making its way back to the shelves of local game stores anytime soon. If profit is any incentive, however, there certainly appears to be a deal waiting to be struck here.
Image: Photo a day project: December 2005, Jenny Lee Silver, CC BY-NC 2.0
Eli Nachmany 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 2022).
by JSEL | Sep 18, 2019 | Highlight
August was dominated by reports that Spider-Man would be leaving the Marvel Cinematic Universe following an impressive theatrical run of the newest movie “Spider-Man: Far From Home.” Spider-Man’s possible departure is due to Disney and Sony failing to reach an agreement on funding and revenue sharing for future Spider-Man films. The very concept of this kind of split raises wider questions regarding intellectual property law and the future of the entertainment industry.
Fictional characters are often protected by copyright laws. An author’s copyright over a character provides them with the exclusive right to use, adapt, or market the character as they see fit. Because the rights are exclusive, no one can use the character unless they are given explicit permission from the author. However, permission is not all or nothing, and authors can place conditions on how the character is used and how long the permission lasts. This kind of permission is referred to as a license and is what Marvel originally sold to Sony in 1999. At that time, Marvel sold Sony Pictures an exclusive license to make Spider-Man movies. Because the license was exclusive, Marvel lost the right to produce its own Spider-Man movies. Marvel had previously granted merchandise rights to Sony in 1995. Because of the agreement, Marvel received 5% box office revenue of Sony-produced Spider-Man pictures while Sony was entitled to 5% gross of all Marvel merchandise sales.
Sony’s Spider-Man license came with numerous conditions, including one stating that it would lose the license unless it releases a new Spider-Man movie every 5.75 years. Over the course of the last several years, Marvel and Sony have renegotiated the terms and conditions of the film license on numerous occasions. In 2015, Sony hit a snag and struggled to produce commercially successful Spider-Man movies. Marvel, which had been recently acquired by Disney, gained considerable bargaining power and negotiated a new deal. In this deal, Marvel would assist Sony in production of Spider-Man movies in exchange for 5% gross revenue and the right to use Spider-Man in Marvel produced movies (MCU), while Sony would retain creative control, marketing and distribution. Marvel was also able to re-acquire all merchandising rights, generating an estimated $200 million per year.
This resulting deal is a shared license agreement. A 2011 amendment made to the license agreement between Sony and Disney lays down the groundwork for what the deal entailed for Sony and Marvel. The leaked documents reveal a series of conditions that limit how Sony can depict Spider-Man, including requiring that the character be a heterosexual male and abstain from sexual relations before the age of 16. The leaked documents also provide a precise account of exactly which characters are covered by the license — including a test that could be used to determine whether future characters would be covered. Those terms provide some insight into how Sony and Disney approached the character-sharing question and accounted for the possibility that Spider-Man would join the MCU for just a limited time. The agreement states that Sony “holds exclusive film rights to all characters in the Spider-Man universe,” and refers to an explicit list of characters covered by the agreement. This list includes 627 covered characters (Black Cat/Felicia Hardy, Mysterio, Electro, etc.), 70 “Teams/Groups/Gangs” (The Sinister Six), 544 “Supporting Characters” (Uncle Ben, etc.), and 82 businesses (Oscorp, etc.).
Finally, the agreement contains provisions that apply to new characters, which are defined as “characters first appearing” after the agreement becomes effective. The agreement states that Sony has the rights to any new character who first appears in a work with “Spider,” “Spider-Man,” “Peter Parker,” or another Sony-exclusive character in its main title, and to new characters who shoot webs, have “Spider” in their name, or have a spider or spider web on their costume. While the specific terms of the leaked draft agreement are five years old and may not have ended up in the final agreement, it nevertheless provides a high-level understanding of how Marvel and Sony approached the license negotiations. It is clear that both studios had a plan for what they would do if their Spider-Man-sharing agreement broke down.
This shared license agreement initially seemed like a win-win: both companies would enjoy increased revenue at the box office in their respective productions through the shared-use of characters. However, in 2019, renegotiations collapsed and the exclusive film rights to Spider-Man reverted to Sony with Sony Pictures CEO stating that the “door on any potential deal is closed for now.” This may signal a permanent divorce between Sony and Disney.
Naz Khan is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current LLM Candidate at Durham University.
Image: Miles Morales Spider Man, Pat Loika, CC BY 2.0.
by JSEL | Jun 15, 2019 | Interviews
In the first part of a series of interviews with international soccer agent, Erkut Sögüt, we sat down to learn more about his background, his work, and how he sees the world of soccer evolving in the near future. Erkut, who has his PhD in sports law from Universität Osnabrück, is the director of his own agency (“Family and Football”), through which he represents many star Premier League players, including Arsenal midfielder Mesut Özil, Manchester City midfielder Ilkay Gundogan, Arsenal defender Shkodran Mustafi, and others. Whilst acting as the agent of Özil, he has dealt with all matters between the player and his club, including contract negotiations, commercial deals with Adidas, Mercedes-Benz and Beats, and the founding of the Özil Charitable Foundation. Dr. Sögüt has lectured at UCFB and FBA programmes as well as at Harvard University, and is fluent in German, Turkish, Spanish, and English.
The interview was conducted by Daniel Alford ’20 (Executive Editor, Online Sports Content) and Madison Martin ’21 (Online Content Chair, Sports), from the Harvard Journal of Sports and Entertainment Law. It has been edited for clarity.
Daniel Alford, Journal on Sports & Entertainment Law (JSEL): Hi Erkut, nice to meet you. Could you speak a bit about your background and how you got to where you are, especially in the sports industry and with Mesut?
Erkut Sogut (ES): Thanks, Dan! So, my story is I grew up in Hannover, Germany to Turkish parents who both had an amazing work ethic and wanted myself and siblings to achieve as much as we could. I was pushed to become a doctor or lawyer by my father, and eventually pursued a career in sports law. I’m currently based in London, and act as the agent and business partner of footballers (soccer players) such as Mesut Ozil. Besides football, I’m also a registered basketball and hockey agent too. It’s been an amazing journey thus far and feel that it is just the start!
The answer to this may actually surprise you, as I initially came into contact with Mesut through teaching! At the time, I was a lecturer (mainly in Germany and Turkey), teaching the regulations for being an agent. Lots of agents are actually the family members of players and many came to my seminars. Mesut’s father got in touch with me about assisting him and his team in Germany, and from there I became the lawyer of Mesut’s marketing company. As time progressed, I got closer with Mesut and it eventually led me to become his full-time agent! It’s amazing that it has now gone full circle! Having founded Football Agent Education a couple of years ago, I’ve been fortunate enough to go to some amazing universities across the world and teach the next generation of agents, as well as detail all of my experiences in my book!
JSEL: That’s so interesting to hear. Do you represent other athletes and how has that been?
ES: Yes – so the agency we founded is called Family & Football. Besides Mesut, we represent other English Premier League players including Mesut’s teammate, Skhodran Mustafi. In addition, we have Kieran Gibbs and Lucas Perez on our roster. Our mentality has always been simple: we’d rather have only a few high-profile clients and do everything we can to represent them as best as possible, on and off the pitch. That’s how we operate. Right now, we’re also starting to work with some really promising youth players in Europe, who we believe can reach a really top level too.
JSEL: And could you take us through your day-to-day? What is a day in the life of Erkut Sogut like?
ES: Every day is different, and that’s what makes this job so exciting. There’s no such thing as a typical day, but I’ve tried to make a routine for myself as much as possible. I wake up at about 5:00 and either start by reading contracts, sending and responding to messages, or anything else that needs to be done. This time of the morning is great, as few people are awake, and I feel I can really concentrate. As soon as I do arrive in the office, I normally have a meeting with my team to update each other on the latest, and make sure we keep on top of all the projects that we’re currently running. From there, the day may entail a number of different things. Whether it be sitting down with a club, a sponsor, other agents, visiting a client’s house, or flying abroad for meetings, anything can happen!
Even on the weekend the job doesn’t stop – in fact it’s sometimes busier! At Mesut’s box in the Emirates we have fifteen seats, and we often host important guests from abroad. Part of what I do is looking after them – meeting them in the days leading up to and after the game, as well as entertaining them during the match. Usually after the match ends I go downstairs to speak with Mesut. Every game, we have at least five seats reserved in our box for kids from local London charities, and we also of course take them after the game to meet Mesut. For me this is the most fulfilling thing I do.
JSEL: Wow, sounds very busy. What is, then, the most rewarding aspect of your job?
ES: As I mentioned before, the charity work we do with Mesut is incredibly rewarding for both of us. Not only is it rewarding, but I see it as one of the most important things I do. Aside from this, I’m fortunate to work with a great group of players, and as such have had lots of memories. In January 2018 we secured the biggest Premier League contract in history for Mesut and was obviously something really special and a moment to be proud of. Negotiating transfers and contracts always have their thrills – it’s hard work yet gives you this incredibly satisfying buzz. But at the same time, I still have this passion for teaching and education. As I said before, I deliver football agent seminars in London and guest-lectures globally, and the fact that people come from all over the world to see me speak is a truly irreplaceable feeling. Spreading knowledge, experience and advice is a true privilege for me. Likewise, when I see people have ordered our book from Australia, or Asia, or the US, it’s special.
JSEL: It is great to see such a rewarding return on your hard work. I must then ask, what keeps you up at night?
ES: What keeps me up at night? My son Emre! He’s nearly two years old, and incredibly full of energy! It’s funny because in the garden I even got artificial grass and a goal, so I’m training my son! I’m trying hard to make him a left-footed player, but he still shoots with his right.
JSEL: Perhaps the next Messi? Speaking of which, how do you see the industry in the next ten years developing?
ES: The issue with football agency lies in its registration process. The rules to become an official agent are so relaxed and the procedure is extremely simple. Of course, initially this may seem like a good thing – it means that people can be an agent tomorrow if they wanted to! However, this is the main problem. You have people that are unqualified and don’t know how the industry works suddenly being able to represent a player. A lot of the time as an agent you can be dealing with players that are in their early twenties, or even teenagers. If you have people going to these young players saying that they are capable of representing them, but in truth only became a registered agent the day before, then the problems are obvious to see. Suddenly, lots of players are poorly represented by people with no experience or who operate immorally. In very few professions is this wide-scale lack of regulation present. I’m actually part of FIFA’s football agent commission, and one of the things we’re trying to tackle is exactly this. Whether it be the re-introduction of an exam for agents, or just more rigorous rules, it’s obvious something has to be done.
JSEL: That makes sense. How about yourself and your future?
ES: Actually, I see myself in the US! Not only has it always been a dream to move to America, but given how quickly the game is growing here it makes business sense for me too! The structure and the team we have created in London is really fantastic. We are like a family. Replicating this same setup in America is something that I really want to do, and perhaps even venture into other sports such as basketball. Also, I definitely feel that I want to do more on the educational side. As I said, it’s my passion, and teaching in perhaps more of a full-time role is something that is certainly a potential priority.
JSEL: That would be truly wonderful. We see the game growing exponentially here. Do you see any room for growth in the EPL here stateside? How about MLS?
ES: Obviously, it is tricky with the time difference (especially on the West Coast) but given how the English Premier League is going from strength to strength I think that viewership of soccer will only rise as the sport in general grows in North America. There’s a huge amount of talent right now in England, and with six of the best teams in the world playing in the Premiership, it’s at its height of entertainment.
I believe that the MLS has incredible potential. US soccer is growing incredibly quickly, and events like the 2026 World Cup will only boost the league. Like all American sports, the MLS is run really well, and all the regulations serve to help and grow the clubs. In the past the US has been seen as an almost retirement league for top players, but I feel that the MLS is becoming much more than this. It’s producing amazing young talent of its own, and I am confident that it has the potential of becoming a top-tier league in the coming years
by JSEL | Apr 26, 2019 | Highlight
The relationship between the Washington Nationals and Baltimore Orioles has been fraught ever since baseball returned to DC in 2005. Because the Nationals (formerly the Montreal Expos) would be tapping into a major chunk of the Orioles’ formerly exclusive television market, an unwieldly and tenuous deal was brokered: The Mid-Atlantic Sports Network (MASN). Since its creation, it has been the cause of much litigation.
The Orioles were given ninety percent ownership of MASN, and the Nationals the remaining ten, despite the fact that the media outlet would broadcast both teams’ games. Under the agreement, the Nationals would gain an additional percentage point of ownership each season until 2032, when they would be capped at a lowly 33% interest .
Also as part of the deal, MASN pays the same amount in rights fees to the Orioles and Nationals each season. On top of that, MASN distributes to the teams shares of the broadcast profits, most of which goes to the Orioles as MASN’s majority owners.
Because the Nationals get so little in terms of MASN profits, the team has been fighting for years for greater rights fees. In 2012, the dispute went before baseball’s Revenue Sharing Definitions Committee (RSDC), made up of representatives from the Pittsburgh Pirates, Tampa Bay Rays, and New York Mets. The three-person panel ruled that MASN owed the Nationals $298 million for the team’s 2012-16 television rights. The Orioles sued, and the New York Supreme Court Appellate Division sent the decision back to a reconstituted RSDC, this time made up of representatives from the Milwaukee Brewers, Seattle Mariners, and Toronto Blue Jays.
This reconstituted panel heard the case this past November and released its findings on Tuesday. An attorney from the Nationals immediately filed a motion in New York Supreme Court in Manhattan asking that the RSDC decision be confirmed and submitted under seal. Only time will tell which details, if any, are released to the public.
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: Royals at Orioles 5/8/18, Keith Allison, CC BY-SA 2.0.
by JSEL | Apr 26, 2019 | Highlight
Last week, a Los Angeles Superior Court judge denied a motion for summary judgement submitted by Stranger Things creators, Matt and Ross Duffer, in a breach of implied contract suit filed by independent filmmaker Charlie Kessler. Kessler claims the Duffers stole the idea for their show after he pitched his own project to the brothers at the 2014 Tribeca Film Festival.
With sky-high ratings, an accompanying book deal, and a PlayStation VR game in the works, Stranger Things has made its mark as the single most popular streaming show of all time. Based in small-town 80’s America, the series (originally titled The Montauk Experiments) focuses on the disappearance of a young boy and the dark forces that unfurl as his family and friends search for answers. What starts as a simple missing persons case develops into a supernatural mystery that includes top-secret government experiments, children with extraordinary psychic abilities, and a monster from another dimension. Though viewers have embraced the innovative premise of the Duffer Brothers’ creation, filmmaker Charlie Kessler alleges that the idea was taken directly from his short film, Montauk, as well as his accompanying feature-film screenplay, The Montauk Project. Like the Duffers’ story, Kessler’s work centers on the search for a missing boy, a battle against paranormal forces, and the discovery of an abandoned military base that conducts secret experiments on children.
It may seem odd that Kessler chose to bring an implied-contract claim, rather than a copyright infringement complaint. However, under federal copyright law, Kessler has no case. Ideas – even those that are finely detailed and significantly developed – cannot be copyrighted. This means that a film idea, and “any of the characters portrayed [with]in it” is largely free for the taking, regardless of who thought of it first. Under the contract claim, however, Kessler can (and does) allege that there was a “mutual [understanding]…that [the Duffers] would not disclose, use, and/or exploit” Kessler’s ideas. The Duffers aim to show that they independently created Stranger Things prior to meeting Kessler, a complete defense against the filmmaker’s claims in the state of California. (See Teich v. General Mills, 170 Cal.App.2nd 791, 799 (1959)).
While the Duffers’ motion for summary judgement cites emails from 2010, three years before Kessler’s alleged pitch, that detail their plans for a supernatural film project, Judge Michael L. stated that the brothers provided insufficient “verifying evidence of the originality of their idea,” raising several issues surrounding the ownership of original work. The emails directly reference central elements of Stranger Things, such as a protagonist who is “[a]bducted with a group of other psychically gifted…children,” a “[s]ecret underground research facility,” and the “opening up another dimension” that leads to a “creature…escap[ing].” Considering the specificity of these plot details, one must wonder: what doesconstitute sufficient, unrebutted evidence of the originality of a creative idea?
The answer to this question could have a serious impact on Hollywood’s creative circles and the manner in which artists develop and pitch their ideas. With the possibility of an implied contract breach stemming from standard mingling lurking on the horizon, industry movers may become more hesitant to hear casual pitches from relative unknowns. This, of course, could make it increasingly difficult for independent artists to break into the Hollywood sphere and secure financing for their projects. On the flipside, the protections Kessler seeks to establish may give emerging writers and directors some comfort that, should they manage to pitch their next big project to potential collaborators, sponsors, or producers, their work will be safe from copycats.
The trial, now with a May 7th start date, is set not only to provide insights into the development of Netflix’s runaway series, but may also serve as an indicator for how the entertainment industry as a whole could evolve to regulate the free exchange of creative ideas.
Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).
Image: Lowtrucks, Stranger Things logo, CC BY-SA 4.0
