New sports law scholarship -- Pt. 1

I'm finally getting caught up with recently published scholarship, and since it's been a while since I've posted these updates, I'm breaking up the list into parts over the next few days:

Tara M. Allport, Comment, This is hardcore: why the court should have granted a writ of mandamus compelling mandatory condom use to decrease transmission of HIV and STDs in the adult film industry, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 655 (2012)

Phoebe A. Amberg, Comment, Protecting kids’ melons: potential liability and enforcement issues with youth concussion laws, 23 MARQUETTE SPORTS LAW REVIEW171 (2012)

Brenda L. Ambrosius, Note, Title IX: creating unequal equality through application of the proportionality standard in collegiate athletics, 46 VALPARAISO UNIVERSITY LAW REVIEW 557 (2012)

Trisha Ananiades, Penalty on the field: creating a NCAA sexual assault policy, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 463 (2012) 

Paul M. Anderson, Title IX at Forty: an introduction and historical review of forty legal developments that shaped gender equity law, 22 MARQUETTE SPORTS LAW REVIEW 325 (2012)

Thomas A. Baker III et al., Consent theory as a possible cure for unconscionable terms in student-athlete contracts, 22 MARQUETTE SPORTS LAW REVIEW 619 (2012)

Talor Bearman, Note, Intercepting licensing rights: why college athletes need a federal right of publicity, 15 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 85 (2012)

Eric D. Bentley, He tweeted what? A First Amendment analysis of the use of social media by college athletes and recommended best practices for athletic departments, 38 JOURNAL OF COLLEGE & UNIVERSITY LAW 451 (2012)

Amy L. Bernstein, Comment, Into the red zone: how the National Football League’s quest to curb concussions and concussion-related injuries could affect players’ legal recovery, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 271 (2012)

Erin E. Berry, Respect for the fundamental notion of fairness of competition: the IAAF, hyperandrogenism, and women athletes, 27 WISCONSIN JOURNAL OF LAW GENDER & SOCIETY 207 (2012)

Annie Bersagel, Is there a stare decisis doctrine in the Court of Arbitration for Sport? An analysis of published awards for anti-doping disputes in track and field, 12 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 189 (2012)

Andrew C. Billings, Talking around race: stereotypes, media, and the twenty-first century collegiate athlete, 2 WAKE FOREST JOURNAL OF LAW & POLICY 199 (2012)

Michael Birch, Take some land for the ball game: sports stadiums, eminent domain, and the public use doctrine, 19 SPORTS LAWYERS JOURNAL 173 (2012)

Kevin B. Blackstone, The whitening of sports media and the coloring of black athletes’ images, 2 WAKE FOREST JOURNAL OF LAW & POLICY 215 (2012)

Jessica Blumert, Note, Home games: legal issues concerning the displacement of property owners at the site of Olympic venues, 21 CARDOZO JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 153 (2012)

Brian Bodansky, Note, Kicking the penalty: why the European Court of Justice should allow salary caps in UEFA, 36 FORDHAM INTERNATIONAL LAW JOURNAL 163 (2013)

Deborah L. Brake, Going outside Title IX to keep coach-athlete relationships in bounds, 22 MARQUETTE SPORTS LAW REVIEW 395 (2012)

Andrew W. Breck, Note, Keeping your head on straight: protecting Indiana youth athletes from traumatic brain injuries through “return-to-play” legislation, 9 INDIANA HEALTH LAW REVIEW 215 (2012)

Jacquelyn L. Bridgeman, The end game: envisioning equality for women and girls in sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY 267 (2012)

Garrett R. Broshuis, Comment, Deterring opportunism through clawbacks: lessons for executive compensation from minor league baseball, 57 ST. LOUIS UNIVERSITY LAW JOURNAL 185 (2012)

Zak Brown, Note, What’s said in this locker room, stays in this locker room: restricting the social media use of collegiate athletes and the implications for their institutions, 10 JOURNAL OF TELECOMMUNICATIONS & HIGH TECH LAW 421 (2012)

Maggie Jo P. Buchanan, Note, Title IX turns 40: a brief history and look forward, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 91 (2012)

Timothy J. Bucher, Game on: sports-related games and the contentious interplay between the right of publicity and the First Amendment, 14 TEXAS REVIEW ENTERTAINMENT & SPORTS LAW 1 (2012)

Alexander Bussey, Stretching copyright to its limit: on the copyrightability of yoga and other sports movements in light of the U.S. Copyright Office’s new characterization of compilations, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 1 (2013)

Erin E. Buzuvis & Kristine E. Newhall, Equality beyond the three-part test: exploring and explaining the invisibility of Title IX’s equal treatment requirement, 22 MARQUETTE SPORTS LAW REVIEW427 (2012)

David S. Cerra, Note, Unringing the bell: former players sue NFL and helmet manufacturers over concussion risks in Maxwell v. NFL, 16 MICHIGAN STATE UNIVERSITY JOURNAL OF MEDICINE & LAW 265 (2012)

Walter T. Champion & Danyahel Norris, Obama vs. Bush on steroids: two different approaches to a pseudo-controversy—or is it really worthy of note in a state of the union address?, 36 THURGOOD MARSHALL LAW REVIEW193 (2011)

Jeremy Corapi, Note, Red card: using the National Football League’s “Rooney Rule” to eject race discrimination from English professional soccer’s managerial and executive hiring practices, 23 FORDHAM INTELLAW PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 341 (2012)

Nathan Crown, Hart v. Electronic Arts, Inc.: the District of New Jersey tackles college athletes’ publicity rights, 19 SPORTS LAWYERS JOURNAL 345 (2012)

George B. Cunningham, Occupational segregation of African Americans in intercollegiate athletics administration, 2 WAKE FOREST JOURNAL OF LAW & POLICY 165 (2012)

Paul A. Czarnota, The World Anti-Doping Code, the athlete’s duty of “utmost caution,” and the elimination of cheating, 23 MARQUETTE SPORTS LAW REVIEW 45 (2012)

Christopher David & Cameron Ruiz, You can’t win if you don’t play: the surprising absence of Latino athletes from college sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY227 (2012)

Lindsay N. Demery, Note, What about the boys? Sacking the contact sports exemption and tackling gender discrimination in athletics, 34 THOMAS JEFFERSON LAW REVIEW 373 (2012)

Nicholas A. Deming, Note, Drafting a solution: impact of the new salary system on the first-year Major League Baseball amateur draft, 34 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 427 (2012)

Javier Diaz, Comment, Beware of deadly flying bats: an examination of the legal implications of maple bat injuries in Major League Baseball, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 311 (2012)

John Dillon, Comment, Major League Baseball team bankruptcies: who wins? Who loses?, 32 LOYOLA-L.A. ENTERTAINMENT LAW REVIEW297 (2012)

William A. Drennan, Taxing commercial sponsorships of college athletics: a balanced proposal, 73 OHIO STATE LAW JOURNAL 1353 (2012)

Thomas M. Duncan, Comment, Driving Americans’ perception of recreation: awaiting the Park Service’s long-term solution to address snowmobile access in Yellowstone National Park, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 699 (2012)

Dennis Durao, An endangered species: professional sports team physicians, 15 QUINNIPIAC HEALTH LAW JOURNAL 33 (2011-2012)

Chika Duru, Out for blood: employment discrimination, sickle cell trait, and the NFL, 9 HASTINGS RACE & POVERTY LAW JOURNAL 265 (2012)

N. Jeremi Duru, Call in the Feds: Title VI as a diversifying force in the collegiate head football coaching ranks, 2 WAKE FOREST JOURNAL OF LAW & POLICY143 (2012)

Hart v. Electronic Arts: First Amendment Does Not Trump the Right of Publicity

In adopting and applying the transformative use test for balancing the First Amendment against the right of publicity, yesterday the Third Circuit ruled in Hart v. Electronic Arts that the First Amendment does NOT trump college players' right of publicity in the context of video game use of their likenesses.  The court's 62-page opinion is here and it is a fascinating read for those of you who, like me, have an interest in right of publicity law.

Courts that have rejected professional athletes' right of publicity claims in various contexts (such as fantasy league use and parody trading card use) have sometimes highlighted the fact that "they are already handsomely compensated."  While in my view this has no relevance in evaluating a professional athlete's right of publicity claim, the Third Circuit in a footnote (pg. 23 of the opinion) points out that it is obviously inapplicable to right of publicity cases involving amateur athletes:

We reject as inapplicable in this case the suggestion that those who play organized sports are not significantly damaged by appropriation of their likeness because "players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsement and sponsorship arrangements." (citations omitted)  If anything, the policy considerations in this case weigh in favor of [the athletes].  As we have already noted, intercollegiate athletes are forbidden from capitalizing on their fame while in school.

The right of publicity claim in the O'Bannon/Keller consolidated case is pending appeal on the opposite side of the country in the Ninth Circuit.  The district court in that case has already ruled that the First Amendment does not trump the players' right of publicity in the context of video game use.  It would surprise me if the Ninth Circuit does not ultimately uphold the district court's ruling.  But even if the Ninth Circuit were to reverse the district court, it would result in a split of circuits on this question.   The bottom line, therefore, is that this is a highly significant and ground-breaking decision by the Third Circuit in favor of college players.