By: Cameron Miller | Arizona State University's Sports Law & Business
By all normal accounting measures, the National Football League (NFL) has a healthy, expanding business: The league’s 32 teams split a record $7.8 billion distribution in 2016, up 10 percent from the previous year. Fox Sports just acquired five years worth of rights to Thursday Night Football for $3.3 billion. Franchise values continue to soar, reaching an average of $2.5 billion at the start of the 2017 season.
But below the surface, an existential crisis is mounting against America’s most lucrative sport. Television ratings were down nearly 10 percent in the 2017 season, following an 8 percent decrease in 2016. But the statistic of greatest concern may be the decrease in youth and high school football participation across the country. 41 states have seen drops in high school football participation over the last five years, with numbers declining 10 percent or more in 13 states. Overall numbers are down 3.5 percent since 2011-12, likely due in part to the growing medical literature and media focus on the long-term effects of concussions.
And they may drop even further if legislation restricting young children from playing tackle football goes into effect on the state level, which is currently pending in four states. Earlier this month, the “Dave Duerson Act”, which bars children under the age of 12 from tackle football, passed a committee vote in the Illinois legislature and will now be considered by the state’s house of representatives. This article discusses the legal implications of these new laws.
Restricting the Rights of Children
Prohibiting children from participating in tackle football is not the only instance of government restricting the rights of minors. Smoking tobacco, drinking alcohol, driving, marriage, and even running for public office are all reserved for individuals who have attained a certain age. Age minimums for these activities vary across states, and have been routinely upheld under the rational relation test—meaning they further or assist in achieving a legitimate state interest. The Supreme Court, for instance, in 1989 upheld a local ordinance in Texas barring the admission of 14 to 18 year-olds into certain dancing halls. In finding that the ordinance did not infringe upon the minor’s right of association, the court held that the rule did not restrict the “association” protected by the Constitution and furthered the state interest of limiting minors’ exposure to “alcohol, illegal drugs, and promiscuous sex.” But courts have also ruled in the other direction, invalidating laws that discriminate on the basis of age for no supportable reason. Such was the case in 1996, when the Louisiana Supreme Court invalidated the state’s drinking minimum age of 21 because it failed the rational relation test. Though not deciding an age-related statute, the Southern District of New York addressed similar issues in NYC C.L.A.S.H. v. City of New York. There, the court upheld a ban on outdoor smoking because it was not “a prerequisite to the full exercise of association and speech under the First Amendment.”
State Bans on Youth Football
The aforementioned Duerson Act (HB 4341) prohibits children under 12 from “participat[ing] in tackle football offered by an organized youth sports program” but allows those children to play flag or touch football. A New York law would do the same. Proposed legislation in California would “allow high-contact elements from football programs only at the high school level,” as would a similar bill in Maryland. All four states justify the legislation by citing to the negative, long-term health effects of football. Should these laws go into effect as currently constituted, they would no doubt engender further opposition from youth football leagues across the country. Organizations like Pop Warner have already seen participation declines, and the proposed state legislation could drive them down even further—giving these leagues plenty of financial incentive to challenge their constitutionality.
Plaintiffs in these cases could raise a number of arguments challenging the legality of tackle football bans. They could, as did the plaintiffs in NYC C.L.A.S.H., argue that the law violates children’s right to associate with children. Alternatively, they could challenge the strength of the evidence tying youth tackle football participation to neurological injury. Or, as was done in the Louisiana case cited supra, it could be asserted that the age minimum enacted by the legislature is arbitrary absent a showing that children under the age minimum are more susceptible to brain injury as compared to other age groups (this appears to be the strongest potential argument). Equal protection claims could also be asserted, perhaps on the basis that other forms of football (e.g., flag or touch) are not affected but pose similar dangers, or that other sports with head injury concerns, like soccer or hockey, are left untouched. Close attention should be paid to the language of the state’s bill of rights, which may include prohibitions on age discrimination.
But many of these theories face long odds of success. With respect to the right of association, it could plausibly be argued that tackle football participation, like smoking or dancing, is not the type of “intimate association” protectable under the First Amendment. Nor can it be argued that tackle football involves the other activities protected by the Constitution, such as “speech, assembly, petition for the redress of grievances, and the exercise of religion.” Here, state defendants could also point out that not all forms of youth football are banned, giving children other football playing options. Importantly, the states would be required only to make a rational, reasonable connection between the legislation and a legitimate state purpose, like public health. The substantial research connecting football, concussions, and long-term brain injury may be more than enough to clear that low bar.
Football is the most lucrative sport in America, and will likely remain so for the years to come. But its future generations of players and consumers could be substantially impacted by state bans on youth tackle football—and there do not seem to be any particularly strong legal rebuttals to this legislation.
 Ebony Novy-Williams, NFL Teams Split Record $7.8 Billion in 2016, Up 10 Percent, Bloomberg (July 12, 2017), https://www.bloomberg.com/news/articles/2017-07-12/nfl-teams-split-record-7-8-billion-in-2016-up-10-percent
 Darren Rovell, Fox to broadcast Thursday Night Football for next five seasons, ESPN.com (January 31, 2018), http://www.espn.com/nfl/story/_/id/22273473/fox-broadcast-thursday-night-football-next-five-seasons
 Kurt Badenhusen, The Dallas Cowboys Head The NFL's Most Valuable Teams At $4.8 Billion, Forbes (September 18, 2017), https://www.forbes.com/sites/kurtbadenhausen/2017/09/18/the-dallas-cowboys-head-the-nfls-most-valuable-teams-at-4-8-billion/#fea957b243f8.
 Daniel Rapaport, NFL TV Ratings Down Roughly 10% From Last Season, SI.com (January 4, 2018), https://www.si.com/tech-media/2018/01/04/nfl-tv-ratings-decline-ten-percent-colin-kaepernick-thursday-night-football.
 Richard Obert, Numbers game: Arizona high school football participation increased despite growing concerns, AZ Central (October 5, 2017), https://www.azcentral.com/story/sports/high-school/2017/10/05/arizona-high-school-football-participation-numbers-increased-despite-growing-concerns/733254001/.
 John Keilman, Youth football participation declines as worries mount about concussions, CTE, The Chicago Tribune (September 5, 2017), http://www.chicagotribune.com/news/local/breaking/ct-football-youth-decline-met-20170904-story.html.
 Michele Steele, Illinois House to debate, vote on organized tackle football ban for kids under 12, ESPN.com (March 1, 2018), http://www.espn.com/moresports/story/_/id/22616192/dave-duerson-act-passes-committee-advances-illinois-house-vote.
 HB4341, 100th Gen. Assembly, State of Illinois (2018) (available at http://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=91&GA=100&DocTypeId=HB&DocNum=4341&GAID=14&LegID=109000&SpecSess=&Session=).
 Ken Belson, New York Legislator Renews Effort to Bar Tackle Football for Children, The New York Times (January 24, 2018), https://www.nytimes.com/2018/01/24/sports/youth-tackle-football-ban.html.
 Assembly Members McCarty and Gonzalez Fletcher Announce “Safe Youth Football Act” to Protect Children from Brain Injury, Office of Assemblywoman Lorena Gonzalez Fletcher (February 8, 2018), https://a80.asmdc.org/press-releases/assemblymembers-mccarty-and-gonzalez-fletcher-announce-safe-youth-football-act.
 Noah Frank, Maryland to introduce bill to ban tackle football under age 14, WTOP.com (February 5, 2018), https://wtop.com/maryland/2018/02/maryland-to-introduce-bill-to-ban-tackle-football-under-age-14/.
 Taryn Luna, Save California football? Proposal to ban tackling before high school creates uproar, The Sacramento Bee (February 15, 2018), http://www.sacbee.com/news/politics-government/capitol-alert/article200187369.html.
 Steve Fainaru and Mark Fainaru-Wada, Youth football participation drops, ESPN.com (November 14, 2013), http://www.espn.com/espn/otl/story/_/page/popwarner/pop-warner-youth-football-participation-drops-nfl-concussion-crisis-seen-causal-factor.
 Louisiana’s state constitution provides that “No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations.” La. Const. Art. I, Sec. 3.
The media/entertainment landscape is evolving every single day. With that, content has always been the driving force behind the industry. It is a well-known saying that “content is king”. The key to success for content creators and distributors such as networks, sports leagues, and movie studios are to develop the most engaging, unique, and diverse product. Content is still the king; however, its grasp on the throne is loosening and not as strong as it once was. Why is this? Well, it’s been the same answer for decades: the proliferation of new technologies that create new mediums for consumption. First, the radio introduced new ways of consuming media. Subsequently, TV stole the limelight but was limited to broadcast networks such as NBC, ABC, and CBS. Then, cable networks such as HBO and Showtime entered the equation with new, cutting-edge content spanning from TV series to documentaries. Now, we are seeing the proliferation of over-the-top (OTT) services, international conglomerates and social media heavyweights using their expansive capital to lure creators to their platforms and provide a “content everywhere” model that is changing everything. In the past, creators would pitch shows, films, documentaries and anything content related to the cable/broadcast networks and studios. For TV, these networks share ad-revenue and affiliate/provider fees. For film, revenue streams span ticket sales to merchandising. In sports, leagues would sell their media rights to networks such as ESPN, CBS, ABC and NBC for astronomical dollar amounts, which would help the leagues grow financially and operate at the highest level. The buyer-seller model was linear – if you were a content creator, you knew who the content buyers were, which affected negotiating leverage and the power paradigm. However, over the past few years, this model has completely changed – it has almost flipped upside down. The leverage is no longer with the media companies, but with creators due to the vast amount of new entrants. Netflix has been spending billions of dollars on content alone, Amazon has its own movie and TV studio that has distributed an Oscar-winning film (Manchester by the Sea) in addition to buying part of the NFL’s Thursday Night Football package. Twitter has dabbled with sports rights, Facebook has invested heavily in video content, Apple recently hired two veteran TV programmers to build its content division, and YouTube is expanding its original content offerings with the help of a pretty big company called Google. Additionally, digital media companies such as Vice and Snapchat are providing platforms for younger, mobile-driven, internet-age creators that do not want to be constrained by the traditional media ecosystem. What does this mean? What are the implications? Well, content creators can now choose from a plethora of content distributors and can find the correct fit. Consumers can now watch any their favorite TV show, film or sports team pretty much anywhere on any device. The aforementioned new entrants to the media/entertainment world have opened up opportunities for every single writer, actor, artist, and player to establish a footprint in the industry. With new opportunities comes new responsibilities. Creators focus on the building and developing the best content that resonates most with their audience. Unfortunately, with that responsibility, there is little time for them to truly understand the changes that are occurring and impacting their work product. Agents, entertainment lawyers, and managers need to understand what these new entrants can provide for their clients. They also need to build relationships accordingly, which is no small task. From a macro-level industry view, there is the possibility of new anti-trust issues with conglomerates such as Apple and Facebook, who have billion-dollar valuations, simply paying more than traditional media companies for content? For over-the-top services, which rely on Internet bandwidth, will there be new regulation issues? The questions facing the legal industry are expansive and fascinating. In sum, we are in the middle of the next big media revolution, with no end in sight. There is virtually unlimited content options for consumers, unlimited distribution options for creators and more capital in the industry than ever before with entrants such as Netflix, Facebook, and Apple. Don’t blink or you’ll miss out!
A Look into the Legal Aspects and Business Elements of Live Music on the Road By: Sydney Abualy (1L Delegate Executive Board)
On November 28th, BESLS invited Gary Casson, Monika Tashman, and Phil Sarna to join in a discussion about the legalities of live music events and the touring artist experience. Attendees were given the unique opportunity to learn about the music business from an esteemed panel of industry professionals. Mr. Casson is an independent music business consultant who draws upon his extensive industry experience as the Executive Vice President of Elektra Entertainment, Inc. from 1983 – 2003. Ms. Tashman is a partner in the Entertainment Law Department of Fox Rothschild, LLP. She has achieved success by complementing her client services with her expertise as a certified executive coach. Mr. Sarna is the Senior Managing Director and owner of PS Business Management LLC, a full-service business management firm. He has used his 24-year tenure in the music business to guide his diverse roster of clients through challenges they face in the entertainment industry today.
Having known one another for years prior, there was a familiarity that brought about a comfortable and casual vibe among the panelists. Armed with their diverse experiences, the panelists focused the discussion on how the music industry has transformed with the emergence of technology, industry tips for artist success, and the current state of the “360 deal” in 2017.
When the music business was known as the “record business,” Mr. Casson reminded the audience that the industry was not predominantly about touring. Artists used their records to promote live touring, and not much else. Prior to the advent of iHeartRadio and other streaming services, it was local radio that enabled artists to gain recognition. Ms. Tashman informed the audience that one of the only ways for an artist to promote their music was to call up a radio station and ask for their song to be heard. Mr. Sarna summed up the unconventional, edgy culture of touring, pre-dating a tech influence, by reciting an old saying; “If an artist did not sell the seats, then tear up the front row!”
The panelists recalled the major shift of the industry, from being “hustler-run,” creating deals out of nothing, to becoming a professionally orchestrated business. Mr. Sarna reminded the audience that platforms such as Napster and iTunes changed the landscape of the business by popularizing artists internationally. Currently, 75% of the “revenue pie” is in touring. Further, the industry is inventing technology just for touring purposes. Sites such as Pandora and Spotify promote global touring by providing artists with information indicating the far-reaching locations where their music is being streamed. The panel informed the audience about the major players in touring; starting with the agent, who books the tours, the promotor, who books the venue, the manager who “pumps up” the artist, delivers them to the show, and builds the touring audience, the crew, and of course, the artist. The panelists shared with the audience that every successful tour is built from a strong crew and a thoughtful tour protocol that lays out policies regarding the chain of command, drug-use, harassment, and other rules of conduct. While technology has granted the touring industry a much wider reach, the panelists reminded the audience that emerging artists need to narrow their scope, and begin their careers by selling out their local venues first, before moving to a larger scale.
The “360 deal” is a contract that is built between an artist and the record label that controls pieces of artist revenue from all aspects, including sponsorship, publishing, merchandising, and touring. “The bands are the brands,” Mr. Casson added. The goal of a “360 deal” is for the record label to share in every aspect of revenue that they can create from the artist. The panelists emphasized that artists are more savvy and industrious than they used to be. Chance the Rapper and other independent artists, are starting to stray away from any third-party sharing of their income sources, and have moved towards making smarter deals.
For those who would like to continue your music industry education, Mr. Casson recommended the book “All You Need to Know About the Music Business,” by Don Passman. Ms. Tashman also shared one of her industry favorites, “Hitman: Forty Years Making Music, Topping the Charts, and Winning Grammys,” by David Foster.
After about an hour and a half of discussion, the panelists joined Brooklyn Law School students in a one-on-one networking opportunity. We would like to thank the panelists for sharing their industry experience and joining us for this memorable evening.
Harrison Gaines, a new attorney at 28-year-old, despite not having a single client playing in the NBA, was able to win over the Ball family. Early in life, Gaines showed the makings of a future sports agent. On the court too, Gaines quickly proved himself as one of his team’s hardest workers. He played college basketball with Penn before transferring to UC Riverside for his final two seasons.
Gaines is known as the sports agent behind the Ball Brothers. As a former college athlete himself, he brings another level of perspective to his work. Gaines is also the founder and chief executive officer of sports agency SLASH Sports & Entertainment.
Join BESLS for an evening with Harrison Gaines to hear his transition from athlete to agent.
Thursday, February 1, 2018 6:30 – 8:30 pm Brooklyn Law School Student Lounge 250 Joralemon St. Brooklyn, NY 11201
Concluding the 2018 College Football Playoff (CFP) Title Game, where No.4 Alabama defeated No.3 Georgia, 26-23 in overtime, the absence of the No.12 University of Central Florida (UCF) remains an issue, as they were denied access to the CFP series. Throughout the 15-week regular season, a thirteen-man committee ranks teams, adhering to the CFP Selection Committee Protocol. The committee considers variables such as the strength of schedule, head-to-head competitions, championships won, and comparative outcomes of common opponents, as they provide weekly standings of the nation’s top 25 teams. After 15 weeks, the teams ranked in the top four, compete in the CFP series. As it stands, the CFP is a bracket-like competition, consisting of two playoff games, the winner of each making it into the title game. This year’s CFP series consisted of No.1 Clemson facing No.4 Alabama, and No.2 Oklahoma facing No.3 Georgia. When Alabama defeated Clemson, and Georgia defeated Oklahoma, the CFP Title game was set to be a South Eastern Conference (SEC) showdown. Alabama verse Georgia. As it stands UCF remains the only undefeated football bowl subdivision (FBS) team. They ended their season in the Chick-Fil-A Peach Bowl, with a 34-27 win over No.7 Auburn. Worth noting, Auburn is the only team this season to have beaten two No.1 ranked teams. On November 11th, then, No.10 Auburn, defeated No.1 Georgia, 40-17. Two weeks later, then No. 6 Auburn, defeated No.1 Alabama, 26-14. In the SEC championship game, however, No.6 Georgia came back to defeat No.2 Auburn, 28-7, to become the SEC Champions. UCF has recently made a self-declaration as the 2018 CFP Champions. On SBNation, Richard Johnson comprised various social media accounts that showed UCF’s intent on treating the coaches and players as the national champions, with pay bonuses and celebratory parades respectively. However, some are asking if simply being undefeated in enough. Those arguing that being undefeated is not enough rely mostly on the strength-of-schedule variable in the rankings. It is clear that the America Athletic Conference is not a football powerhouse, and because universities have a degree of control over making their schedules, UCF had the opportunity to strengthen their schedule, despite having a weaker conference. According to a Bleacher Report article, universities consider how much an opposing team may charge for the game, how matchups affect recruiting opportunities, fan base turnout, etc. But ultimately, because UCF could have made their schedule tougher, they should have. Alternatively, those arguing that being undefeated is enough, are arguing that UCF did what was required of them. UCF won their conference championship game, yet still, were denied access to the playoffs. If UCF did everything in their power to show their “worthiness,” and a 13-0 record is not enough, then what is? Did they not win by enough? What more could UCF have done, and should UCF have done, to solidify their access to the CFP series? According to the College Football Playoff Committee website, the committee strives to grant “[e]very FBS team… access to the College Football Playoff based on its performance. No team automatically qualifies.” However, it would seem that being undefeated, at the least, should provide access. Additionally, it seems that Alabama, a team that did not compete in their own conference championship game, “automatically qualified”, simply for being Alabama, a well-respected, and undeniably competitive team, with a history of championship titles. The CFP committee may consider expanding the CFP series beyond four teams. Conference champions should arguably have access, and teams that, in the current season, have repeatedly displayed worthy competitiveness, should arguably have access. With an expanded and more inclusive CFP series, both UCF and Alabama would have undeniably been able to compete in the CFP series and determine their own title game fate. The logistics of expansion are much more complex, however, as access to the CFP series has recently become a hotly contested topic, it should be considered.
BESLS is hosting an Entertainment Society Mixer with Cardozo and Fordham law schools. It will be a great opportunity to network and meet fellow students in the field. There will also be a drink special for the night. We hope to see you there!
A bill has been introduced to Congress that has the potential to change the way that musicians and songwriters make money for their work. The “Fair Play Fair Pay” act was introduced in March and has been gaining momentum ever since. The act will amend federal copyright law so that copyright owners of sound recordings will now receive royalties for non-digital audio transmissions of their recordings through AM/FM radio. As hard as it is to imagine, the current copyright law only allows for royalties to be paid through digital transmissions, which occur when recordings are played through cable, satellite, and Internet radio stations. Previously, there has been absolutely no requirement for royalty payments made for FM radio airplay, aside royalties to songwriters. Due to the fact that FM radio is still the leading way that Americans listen to music, this will have an enormous monetary effect on the copyright owners. The problem lies with the fact that musicians are not always the owners of their digital recordings. Labels often maintain copyrights for the recordings themselves and are able to receive these royalty payments. Resulting in labels contracting the percentage of profit that artists receive in this new revenue stream. While independent artists do not have the economic backing of a major label, they do benefit from ownership rights to their sound recordings and increased control over their royalties. Another problem this bill has encountered is assigning a monetary value for plays. Spotify has encountered an enormous amount of backlash for the small royalty payments it makes to artists. Therefore, it is likely that the royalty rate of these payments may take some negotiation. Although the bill has been gaining momentum, it has encountered some problems as well. It currently has the support of 21 house members but is being opposed by the National Association of Broadcasters, which has a considerable amount of power. Although the United States is currently the only major country in the world not paying royalties for terrestrial radio, the association still believes that this type of bill will considerably hurt the radio industry. In their argument, they try to establish the rights granted in the “Local Radio Freedom Act” which is a nonbinding act without any legislative power that states that radio stations should not be charged for airplay. Obviously, this argument has not been very persuasive. The implications of this bill will not only include enormous revenue for artists but also, an incredible amount of newly taxable income; incentivizing Congress to pass the bill. This bill will create new revenue for an industry that desperately needs it, holding radio stations accountable for benefiting from others’ work.
Looking for new music on YouTube, I stumbled upon a song by one of my favorite contemporary rock bands, Wolf Alice. The song, entitled “Beautifully Unconventional,” made my ears perk up with its tight, reverb-laden guitar lines and catchy chorus. I was not surprised. This band always delivers the goods. The closest comparison I can make to their sound is if Nirvana and Bikini Kill had a baby (just take one listen to them and you may know what I mean).
What really struck me about this song though was not the music itself, but the interesting music video that the band and their label RCA made to promote the single. It features their lead singer dressed in a white dress and a blond wig; a look that seems uncannily similar to Marilyn Monroe. The other band members accompanying her are dressed in black and white suits and are play vintage instruments (think The Beatles on their classic debut on the Ed Sullivan Show in the early sixties). As a newly minted law student with an interest in intellectual property and copyright law, I could not help but ask: How can they do this? How can they seemingly rip off Marilyn Monroe and The Beatles by using the same aesthetic in their music video? Doesn’t copyright law exist to protect artists from issues like this?
Then I slowly realized that this is not a new thing. Just watch the video for Nirvana’s “In Bloom” or the Red Hot Chili Pepper’s “Dani California” and you will see what I mean. If you don’t care for rock music, watch the music video for “Treasure” by Bruno Mars (the vibe is so similar to the Temptations that it is scary). Bands have been using the aesthetic of other bands in their music videos for quite some time now. But these videos still left me with the open question: How can this be? Even if everyone is doing it, why aren’t the legal teams for these labels ripping their hair out?
It seems as though artists and labels do this because Federal Copyright Law allows them to do so. 17 U.S.C § 102 (a)(7) extends copyright protection to original audiovisual works. Given this statute, one would think that when contemporary artists seemingly steal the aesthetic of older ones that it would be copyright infringement. But this could not be case for a number of reasons. It is possible that there is no specific copyright for the audiovisual work used by these bands or that they were given permission by property holder (be it The Beatles, their label, i.e. the owner of the intellectual property) to use the aesthetic. It is also entirely possible that these music videos fall under the category of “ideas” that manifest in their own work, which are not considered protected intellectual property pursuant to 17 U.S.C. (b).
Whatever may be the case, these videos are not copyright infringements and I am incredibly thankful that Federal Copyright Law is flexible enough to allow for contemporary music artists to use vintage inspired aesthetics in their music videos. These videos provide an important avenue through which bands are able to pay homage to older artists who may have been influential to them. For thousands of fans, they are a means of transporting them back in time to the glory days of rock and roll. For myself, they have become, if only for a few minutes, a simple respite from the daunting stresses of 1L coursework.
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