by JSEL | Dec 15, 2019 | Highlight
Another NFL season, another chance that (as of the start of Week 15) an 8-8 or 7-9 makes it into the playoffs (and hosts a game on Wild Card weekend). One of the Dallas Cowboys/Philadelphia Eagles will take the NFC East title this season, and it is possible that a record under .500 will be enough to get the job done. Winning a division entitles a team to one of the NFL’s 12 (out of 32) playoff spots, along with home field advantage in the team’s first playoff matchup on Wild Card Weekend.
Denver Broncos head coach Vic Fangio is sounding the alarm on this set-up, which he said in a recent press conference leads to “the problem which is going to happen this year where probably an 8-8 team is hosting a 12-4 team.” In the alternative, Fangio proposes eliminating divisions and having each team play one game against each of the other 15 teams in its conference, plus a 16th game against a “natural rival” from the other conference, suggesting Jets-Giants, Eagles-Steelers, and Texans-Cowboys. From there, the “six best” teams make the playoffs.
Coach Fangio has no skin in the game for this year—his 5-8 Broncos have been mathematically eliminated for the 2019 postseason. But he makes an interesting point worth considering.
NFL Commissioner Roger Goodell took the opposite view: “This is not the first time this conversation has occurred or this situation’s occurred. Teams go into the season [and their] first objective is to win the division. That’s what they work on — we win the division and get into the playoffs. That is something we’ve considered over the years. I have not heard that this year and I don’t anticipate hearing it again. It’s been discussed in the past but I don’t see that as an issue. If it comes up we’ll certainly have a conversation. I don’t anticipate it.”
Since the strike-shortened 1982 season produced two sub-.500 playoff teams, only two NFL teams have made the playoffs with a losing record: the 2010 Seattle Seahawks (7-9) and the 2014 Carolina Panthers (7-8-1). Each team won its respective division that year, made the playoffs, and hosted an opponent on Wild Card weekend. You probably remember that Seahawks game—Marshawn Lynch’s “BeastQuake” run (enjoy at 0:17) ignited the Seahawks crowd of 66,000+ (at what was then Qwest Field) and propelled the Hawks to an upset victory over the highly touted 11-5 New Orleans Saints.
In 2010, two 10-6 teams (the New York Giants and the Tampa Bay Buccaneers) watched the BeastQuake run from their couches while the Seahawks were in the playoffs. And in 2014, the Panthers got into the postseason at the expense of the 10-6 Eagles (how the tables have turned). This year, both the Chicago Bears and the (defending NFC Champion) Los Angeles Rams could miss the playoffs with winning records while the NFC East winner advances. Is that fair?
The benefits of Fangio’s proposal are simple. The six most deserving teams would make the playoffs each season, seeded according to their record with no regard to arbitrary geographic divisions. He likened his idea to the way the NBA administers its playoffs—there, eight teams from each conference make it in. Adding to its fairness factor would be the fact that using in-conference record as a first tiebreaker would provide a metric that is the same for each team—everyone plays the same opponents. (That might cheapen the proposed one-off rivalry matchup, however, as “in-conference” record would just be the record from the other 15 games.)
I am, however, more inclined to agree with Commissioner Goodell’s position for three reasons:
First, divisions are good for the league because rivalries add to the intrigue. Jets-Giants, Eagles-Steelers, and Cowboys-Texans are exciting in-state games, but they are not the storied rivalries that make the league so interesting. Here, I am thinking about Steelers-Ravens, 49ers-Seahawks, Bears-Packers, and many others. These rivalries have endured for so long because these teams have routinely beat the snot out of each other, year in and year out, in pursuit of their respective divisions’ titles. And fans get to see these games twice a year, one at each team’s field, often with one of them in Week 17 carrying playoff implications. It is the NFL equivalent of the divisional rivalries that built college football: Texas-Oklahoma, Michigan-Ohio State, USC-UCLA, and many others.
Sure, some rivalries come along that last for a few seasons, such as Patriots-Colts at the height of Tom Brady and Peyton Manning’s dominance. But the ones that endure for decades are based not on players, but on the divisional set-up of the league. There is an elegant simplicity to having one team you root for, and two or three teams you root against. Fangio’s proposal would completely blow that up. A little friction and conflict is a good thing, especially in a sport like football.
Second, inter-conference play is a good thing. Isolating the NFC and AFC from one another, which the Fangio proposal would inevitably do, disincentivizes following the other conference and prevents fans from seeing other franchises, as happens when out-of-conference opponents get scheduled against these fans’ favorite teams. This is arguably irrelevant in an era of fantasy football, Madden, and NFL RedZone, but it is something to consider. We like inter-conference play because it changes up the schedule, adds some unpredictable match-ups to the season, and may even afford fans the opportunity to see (in person) a superstar player who wouldn’t otherwise come to their team’s stadium—think Patrick Mahomes’ Chiefs playing the Lions in Detroit earlier this season.
Third, what are we really talking about here—upending everything because a 10-6 team or two, which already didn’t win its division and lost out to two other 10-6 or better teams in the Wild Card race, might miss the postseason here and there? Do we need to fundamentally realign the carefully crafted NFL scheduling system, build in multiple mandatory cross-country road trips for certain teams every season, end inter-conference play, and strike a death blow to the league’s great rivalries all because the Bears might go 9-7 this year?
My answer to that second question is no. Commissioner Goodell is right: If you want to guarantee you will make the playoffs (a means to an end to winning the Super Bowl), go be the best in your division first. Complaining about the Cowboys because you could not secure one of the three playoff slots available to you (the division title and either of the two Wild Cards)? To borrow a phrase that Ravens quarterback Lamar Jackson has championed in recent weeks: Nobody cares, work harder. The existence of the “Wild Card” itself, a way to bail out teams that did not win their divisions, was a post-AFL/NFL merger compromise. It started as one team per conference, and the Pro Football Hall of Fame’s website admits that adding a second Wild Card team was primarily about increasing television revenue and streamlining a complex tie-breaking system.
I will acknowledge that Fangio makes an argument that is difficult to overcome, however, and that is the issue of home field on Wild Card Weekend. It does seem a bit ridiculous that the Seahawks, at all of 7-9, got to enjoy the benefits of playing in front of the 12th Man (especially post-BeastQuake) against the 11-5 Saints in the 2010-11 playoffs. And no, if the second-place NFC West team ends up with 12 wins, it should not have to go on the road against a .500 or worse NFC East winner.
So here is a compromise for the Fangios and Goodells of the football world: Let’s keep the six teams the same, but re-seed ahead of the playoffs once we have the six. If you win your division, you’re in, but it is not a sufficient condition for home field on Wild Card Weekend. And if you’re so good that despite not winning your division, you are one of the two best non-division winners in your conference, you still have a shot at a first-round bye. If the Seahawks, for example, end up being the second-best team in the NFC this season, it doesn’t mean we kick the Cowboys or Eagles out of the playoffs. But it wouldn’t radically alter the league to treat them like the second-best team and give them a bye, while making this year’s NFC East winner the sixth seed and making the team to go on the road to stay alive.
If the third losing team this decade makes it into the 2019-20 NFL playoffs, expect this debate to crop back up. When it eventually does, this year or in the future, this idea should a balance between the two well-reasoned viewpoints currently in the public sphere.
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).
“NFL Network ID” by Brett Morris is licensed under CC BY-NC-ND 4.0
by JSEL | Nov 19, 2019 | Highlight
The National Football League and Major League Baseball’s players associations have entered into a deal with RedBird Capital Partners to maximize profits from player likenesses, the Wall Street Journal reports. This agreement is a major milestone in cross-sport partnerships, as it “marks the first time players unions have joined forces across sports in this way.” With the amount of money that the players and RedBird are putting together, the possibilities are likely endless. I would recommend players focus on replicating the success of athletes like JuJu Smith-Schuster in reaching new fanbases across different platforms to truly see the biggest gains from this new arrangement.
The RedBird deal creates a new company called OneTeam Partners LLC—the company will look to facilitate revenue generation from player portrayals. Bloomberg notes that “[t]he sports unions will have 60% of [OneTeam’s] equity, with RedBird taking the rest.” These intellectual property rights are no joke; from video games to trading cards: usage of player names, images, and likenesses is the cornerstone of various sports products that third-party companies offer (Bloomberg cites Electronic Arts and Nike; while WSJ mentions Sony and Panini America). As the frequent JSEL reader knows, the NCAA has recently taken note of how important these name, image, and likeness rights can be for players.
That the NFL and MLB players are coming together demonstrates a shared understanding among players that pooling resources can have a profoundly positive impact on the overall bottom line. NBA players just “reclaimed their group licensing rights in the last round of labor talks with the league,” and could therefore be next in line to join. One could also imagine a scenario in which other players (such as those in the Women’s National Basketball Association, Major League Soccer and on the U.S. women’s national soccer team) join OneTeam, and the WSJ article states that some are already slated to be OneTeam investors.
RedBird will pool an initial investment of $125 million with annual revenue from the two players associations to get the company going. The players associations make roughly $120 million per year from standard licensing agreements—the players “will still receive their standard annual payouts from the deals, but RedBird will use the funds to invest in other opportunities.” The well-financed company will begin to pursue various opportunities, and in so doing, I would encourage the dealmakers to “Be like JuJu.”
Building a fanbase is key to financial success in the age of athlete celebrities on social media. One great example of this phenomenon is JuJu Smith-Schuster, a young wide receiver for the Pittsburgh Steelers who has already established himself as the third-most popular NFL player on social media. Smith-Schuster’s superstardom is actually no surprise when you consider how he has creatively expanded his potential fanbase past just Steelers or NFL enthusiasts. Smith-Schuster is a well-known Fortnite player and was part of a record-breaking 2018 Fortnite stream (with hip hop artists Drake and Travis Scott, along with streamer “Ninja”) that garnered over 600,000 viewers. As a result, he is reaching consumers that many other NFL players never would.
Smith-Schuster’s example is one to follow. NFL players should look into their contracts with Electronic Arts and see whether Madden NFL has the exclusive right to their portrayal in video games. If so, OneTeam could perhaps figure out a way to structure a limited use arrangement in which the players can become bonus characters in games like Fortnite or other popular titles. For example, maybe Call of Duty could add—as an in-game purchase—an unlockable Lamar Jackson character with turbo speed and extra distance/accuracy on grenade throws (thereby exposing Jackson to CoD players who might otherwise not ever hear of him or interact with him or his likeness in any meaningful, goodwill-inducing way). CoD has already included NFL players Le’Veon Bell and Alejandro Villanueva in a prior game, but it doesn’t appear they are playable characters. Another possible crossover would be encouraging more players to start streaming certain non-sports video games on Twitch, with a special card reward in Madden Ultimate Team (MUT) for those who subscribe to the player’s stream. Related to this, perhaps OneTeam cuts a deal with Panini and Electronic Arts to start putting special cards in actual trading card packs, redeemable for virtual cards on MUT (thus encouraging trading card buyers to buy and play Madden with this new found favorite player, and vice versa).
RedBird may have struck gold with this investment, if player rights stay as lucrative as they have been. With the right awareness of how to build fanbases up over time, OneTeam should be a highly profitable endeavor.
“JuJu” by Brook-Ward is licensed under 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 | Nov 6, 2019 | Highlight
With the 2019-2020 NCAA College Basketball season tipping off, most would expect the Kansas Jayhawks to be looking to make a run at the National Championship. However, amidst program allegations, could Kansas’s performance in the courtroom be more important than its on-court performance for the future of Kansas Basketball? When the National Collegiate Athletic Association (NCAA) handed down allegations on the storied, blue-blood basketball program of the University of Kansas in September, the administration at Kansas quickly acted not just to deny the claims, but to go on the offensive and point the finger elsewhere.
On September 21, the University of Kansas received notice of a list of violations against their basketball program citing recruiting violations and a lack of institutional control. The Hall of Fame coach of the Jayhawks basketball team, Bill Self, was also levied with a responsibility charge. These charges are the result of a “pay-for-play” investigation by the NCAA that was sparked by an FBI investigation into Adidas, where employees testified to making payments to college basketball recruits. Kansas has pointed blame at Adidas, insisting their own involvement is as a victim of the same Adidas scheme that the FBI investigated.
At this time, it is uncertain the exact defense that the University of Kansas will employ, but experts look to a similar defense the University of Missouri employed to represent themselves during their similar allegations scandal in early 2019. The University of Missouri, amid allegations of academic fraud with respect to their football program, hired a Kansas City law firm that specializes in cases involving the NCAA. More specifically, Missouri was looking to the expertise of Mike Glazier, who spent seven years at the NCAA dishing out allegations to collegiate sports teams and has since represented over 100 schools and coaches in NCAA related cases. Though an expensive defense to put on, costing the University of Missouri over $350,000, that was pennies in relation to the potential lost revenue the university could suffer depending on the severity of potential penalties. The University of Kansas will similarly have to weigh these options when deciding how to proceed with their defense.
As the Jayhawks gear up for their season, it will be interesting to see what happens as the NCAA continues to investigate and the University of Kansas begins to put on its defense. Will Kansas be willing, like Missouri, to pay hundreds of thousands of dollars to bankroll its categorical denial of the allegations, or will we see a new legal strategy, ushering in new standards for dealing with NCAA regulations? The allegations against the university are serious, and if Kansas is found guilty, the NCAA could choose to make an example out of them and impose strict penalties, thereby broadcasting to other schools that pay to play behavior will not be tolerated. In the end, Kansas’s most important victories this season might not end up coming from the hardwood.
“Basketball vs. Emporia State” by Kelsey Weaver is licensed under CC BY-NC-ND 2.0
Jason Fitzgerald 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 | Nov 2, 2019 | Highlight
On Tuesday, the National Collegiate Athletic Association (NCAA) made headlines when its governing board voted to “start the process of modifying its rule to allow college athletes to profit from their names, images and likenesses ‘in a manner consistent with the collegiate model.’” This change comes on the heels of California passing the Fair Pay for Play Act into law. This legislation, set to take effect in 2023, would prevent the NCAA from prohibiting college athletes from profiting off of their names, images, and likenesses. I recently wrote a JSEL blog post on the implications of this law on EA Sports’ NCAA Football video game franchise returning; check that out here.
Chris Vannini, a reporter for The Athletic, cautioned on Twitter that mainstream media headlines are overstating what occurred. This news is a big deal, but the NCAA has only agreed to start a process of modifying its rule—a great deal remains to be determined. Key thought leaders in the sports business world, like Professor Andrew Zimbalist, have homed in on a specific clause in the NCAA’s announcement: the new rule will be created “in a manner consistent with the collegiate model.”
What does that mean? We don’t yet know. The “collegiate model” tends to point to the preservation of amateurism in college sports, which some may find incompatible with the concept of compensation altogether. The decision makers are sure to haggle over how the NCAA can reconcile amateurism with compensation in the new rules, consistent with the direction that this vote has given them. This is not the last we will hear of this question.
A recent post on Inside Higher Ed highlighted an interesting division on the political right regarding college athlete compensation following the NCAA vote. U.S. Senator Richard Burr, a Republican from North Carolina, tweeted: “If college athletes are going to make money off their likenesses while in school, their scholarships should be treated like income. I’ll be introducing legislation that subjects scholarships given to athletes who choose to ‘cash in’ to income taxes.”
U.S. Representative Mark Walker, also a North Carolina Republican, responded to his colleague in the upper chamber: “If scholarships are income, that makes them employees, not student-athletes. This isn’t about income. It’s about basic rights that every other American has to their own name.” Rep. Walker is the author of a bill that would amend the Internal Revenue Code to “prevent qualified amateur sports organizations from restricting student-athletes from using or being compensated for use of their name, image, and likeness.” Andrew Distell covered the Walker bill for JSEL back in April 2019. Walker’s point seems to be that the NCAA’s current model is anti-free market.
The NCAA vote likely buys the organization some time to figure out the issue of athlete compensation on its own terms, but the clock is certainly ticking. We are not out of the woods just yet.
Image: “SELU LSU 9718 037” by tammy anthony baker is licensed under CC BY 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 | Oct 28, 2019 | Highlight
The
Copyright Alternative in Small Claims Enforcement (CASE) Act sailed through the House of Representatives last week after a
410-6 vote, a move industry organizations and lobbying firms are calling a major win.
“The Recording Academy applauds the House for passing the CASE Act today, a…victory for music creators,” said Daryl P. Friedman, the Recording Academy’s Chief Industry, Government, & Member Relations Officer.
As its title suggests, the bill would create a small claims tribunal, the Copyright Claims Board, before which musicians, artists, and other content creators would be able to bring infringement claims totaling less than $30,000. Under current copyright law, infringement claims must be brought in federal court, where litigation can be prohibitively onerous and expensive.
Artists “currently have rights but no means to enforce them because federal court is too expensive and complex to navigate,” explains Keith Kupferschmid, CEO of the Copyright Alliance, the Washington-based advocacy organization whose members include the Motion Picture Association of America, The National Association of Broadcasters, and the Recording Industry Association of America.
Critics have voiced fears that the bill would provide copyright trolls with an easy means to bring a wave of opportunistic claims and point to copyright profiteering in the wake of the Digital Millennium Copyright Act as evidence that trolls will similarly benefit from the CASE Act.
Additionally, organizations such as the ACLU have voiced concerns over the bill not creating effective checks on the power of the Copyright Claims Board. Decisions made by the panel would not be subject to broad judicial review, but rather could face such review under limited circumstances enumerated in the bill, such as when decisions were based on “fraud, corruption, misrepresentation, or other misconduct.”
The President has already signaled his support for broad copyright reform last year by signing into law the Music Modernization Act. It is expected that the Senate will also act quickly in confirming the bill. If the Senate acts as decisively as the House, a veto-proof vote passage of the CASE Act could make the creation of the Copyright Claims Board a near inevitability.
Matt Shields is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and current second year student at Harvard Law School (Class of 2021).
Image: File:US Congress 02.jpg, Bjoertvedt, CC BY-SA 3.0
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).
